The Oasis at Beaumont, DAB CR6451 (2024)

DECISION

Petitioner, The Oasis at Beaumont, is a long-term care facility located in Beaumont, Texas, that participates in the Medicare program.  Between July 22 and September 9, 2022, the Texas Health and Human Services Commission (state agency) completed three surveys of the facility – a recertification survey (including health and Life Safety Code); a complaint investigation survey; and an abbreviated health/complaint investigation survey.  Based on the survey findings, the Centers for Medicare and Medicaid Services (CMS) determined that, from July 20 through September 10, 2022, the facility was not in substantial compliance with Medicare program requirements and that, for three days (July 20, September 7 and 8, 2022), its deficiencies posed immediate jeopardy to resident health and safety.  CMS imposed civil money penalties (CMPs) of $23,989 per day for the three days of immediate jeopardy and $245 per day for 50 days of substantial noncompliance that did not pose immediate jeopardy, for a total penalty of $84,217.¹

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Petitioner appealed and CMS has moved for summary judgment. 

For the reasons set forth below, I grant CMS’s motion.  Based on the undisputed facts, and drawing all reasonable inferences in Petitioner’s favor, I find that, from July 20 through September 10, 2022, the facility was not in substantial compliance with Medicare program requirements, and, for three of those days – July 20, September 7, and September 8, 2022 – its deficiencies posed immediate jeopardy to resident health and safety. 

Background

The Social Security Act (Act) sets forth requirements for nursing facility participation in the Medicare program and authorizes the Secretary of Health and Human Services to 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.  The regulations require that each facility be surveyed annually, with no more than fifteen months elapsing between surveys.  42 C.F.R. § 488.308(a).  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). 

July 22, 2022 recertification survey (Life Safety Code).  On July 20, 2022, the state agency completed the Life Safety Code (LSC) portion of the facility’s recertification survey and determined that it was not in substantial compliance with the following LSC requirements:  

• K321 (LSC §§ 19.3.2.1; 19.3.5.9 – hazardous areas:  enclosure) cited at scope and severity level E (pattern of substantial noncompliance that causes no actual harm with the potential for more than minimal harm);
• K372 (LSC §§ 19.3.7.3; 8.6.7.1(1) – subdivision of building spaces:  smoke barriers) cited at scope and severity level F (widespread substantial noncompliance that causes no actual harm with the potential for more than minimal harm);
• K511 (LSC §§ 18.5.1.1; 19.5.1.1; 9.1.1; 9.1.2 and NFPA § 70 – utilities:  gas and electric) cited at scope and severity level E; and

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• K900 (Health Facilities Code – other) cited at scope and severity level D (isolated instance of noncompliance that causes no actual harm with the potential for more than minimal harm).

CMS Exs. 3, 4, 21. 

July 22, 2022 recertification survey (health).  On July 22, 2022, state agency surveyors completed the health section of the facility’s standard recertification survey.  Based on the survey findings, CMS determined that the facility was not in substantial compliance with two program requirements: 

• 42 C.F.R. § 483.20(k)(1)-(3)(ii) (Tag F645 – resident assessment:  preadmission screening for individuals with mental disorder or intellectual disability) cited at scope and severity level D; and
• 42 C.F.R. § 483.25(i) (Tag F695) – quality of care:  respiratory care, including tracheostomy care and tracheal suctioning) cited at scope and severity level J (isolated instance of substantial noncompliance that poses immediate jeopardy to resident health and safety).

CMS Exs. 3, 4, 6. 

August 20, 2022 complaint investigation survey.  Surveyors from the state agency returned to the facility and completed a complaint investigation survey on August 20, 2022.  CMS Ex. 40 at 2 (Miller-Jones Decl. ¶ 4).  Based on their findings, CMS determined that the facility was not in substantial compliance with two program requirements: 

• 42 C.F.R. § 483.12(c)(1)(4) (Tag F610 – freedom from abuse and neglect:  reporting) cited at scope and severity level D; and
• 42 C.F.R. § 483.25(d) (Tag F689 – quality of care:  accident prevention) cited at scope and severity level J.

CMS Exs. 3, 26. 

September 9, 2022 abbreviated health survey.  About three weeks later, another state agency surveyor returned to the facility and, on September 9, 2022, completed an abbreviated health/complaint investigation survey.  CMS Ex. 42 at 2 (Pille Decl. ¶ 4).  Based on her findings, CMS determined that the facility was not in substantial compliance with:

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• 42 C.F.R. § 483.10(g)(14)(i)-(iv)(15) (Tag F580 – resident rights:  notification of changes) cited at scope and severity level J; and
• 42 C.F.R. § 483.25 (Tag F684 – quality of care) at scope and severity level J. 

CMS Exs. 3, 31. 

Thereafter, CMS determined that the facility returned to substantial compliance on September 11, 2022.  CMS Ex. 2. 

CMS has imposed CMPs of:  

• $23,989 for one day of immediate jeopardy (July 20, 2022);
• $245 per day for 48 days of substantial noncompliance that did not pose immediate jeopardy (July 21-September 6, 2022) (total:  $11,760);
• $23,989 per day for two days of immediate jeopardy (September 7-8, 2022) (total:  $47,978); and
• $245 per day for two additional days of substantial noncompliance that did not pose immediate jeopardy (September 9-10, 2022) (total:  $490).

Total:  $84,217 ($23,989 + $11,760 + $47,978 + $490 = $84,217).  CMS Exs. 1, 2. 

Petitioner timely requested review, and CMS now moves for summary judgment, which Petitioner opposes. 

Exhibits.  With its motion and brief (CMS Br.), CMS submitted 44 exhibits (CMS Exs. 1-44).  Petitioner submitted a pre-hearing brief with 18 exhibits (P. Exs. 1-18) and a separate response to CMS’s motion (P. Response). 

Petitioner has objected to my admitting CMS Exs. 10, 11, 12, 22, 29, and 34, which are surveyor notes, and CMS Ex.36, a document titled “[Immediate Jeopardy] template,” which is a chart listing the factual findings that underlie CMS’s September 2022 immediate jeopardy determination.  

For purposes of summary judgment, I need not rule on whether these documents are admissible.  I must consider all proffered evidence to determine whether it creates a material fact in dispute.  Lilia Gorovits, M.D., P.C., DAB No. 2985 at 3 n.4 (2020), aff’d, Gorovits v. Becerra, 20-1850 (E.D. Pa. May 17, 2021); Ill. Knights Templar Home, DAB No. 2274 at 6-7 (2009).

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In any event, Petitioner’s objections are without merit.  The documents are admissible. 

Petitioner complains that the surveyor notes include inadmissible hearsay and violate the “best evidence rule.”  P. Objections.  Under the regulations that govern these proceedings, I have broad discretion to admit evidence.  I am required to “inquire fully into all of the matters at issue” and to admit any documents that are relevant and material, which surveyor notes unquestionably are.  42 C.F.R. § 498.60(b).  I may receive evidence, including hearsay, that would be inadmissible under the federal rules.  42 C.F.R. § 498.61; Lifehouse of Riverside, DAB No. 2774 at 9 (2017); Britthaven Inc. d/b/a/ Britthaven of Smithfield, DAB No. 218 at 3 (2006) (“In administrative proceedings generally, and in Chapter 498 proceedings expressly, hearsay is admissible and can be probative on the issue of the truth of the matter asserted, where sufficient indicia of reliability are present.”). 

And much of the content to which Petitioner objects – notes of interviews with facility staff – would be admissible under the federal rules.  Fed. R. Evid. 801(d)(2)(D); see Beatrice State Developmental 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); See Richardson v. Perales, 402 U.S. 389, 410 (1971).²

Nor does the best evidence rule preclude my admitting the exhibits.  Windsor Health Care Ctr., DAB No. 1902 (2003) (pointing out that the underlying documents are in the facility’s possession and could have been produced to show any discrepancies).  Finally, under Rule 803 of the federal rules, recorded recollections are admissible. 

With respect to CMS Ex. 36, Petitioner argues that it represents “nothing more than a charted organization of [CMS’s] charges” and is not relevant.  P. Objections at 4.  Inasmuch as CMS’s “charges” are at the heart of these proceedings, they are obviously relevant.  Further, even under the federal rules, charts can be used to summarize facts and are admissible so long as they fairly and accurately represent the underlying evidence.  See Fed. R. Evid. 1006. 

CMS’s exhibits are therefore admissible. 

Issues

I consider whether summary judgment is appropriate.

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On the merits, the issues are: 

• From July 20 through September 10, 2022, was the facility in substantial compliance with Medicare program requirements;
• If, on July 20, 2022, and September 7 and 8, 2022, the facility was not in substantial compliance, did its deficiencies then pose immediate jeopardy to resident health and safety; and
• If the facility was not in substantial compliance, are the penalties imposed – $245 per day for 50 days of substantial noncompliance that did not pose immediate jeopardy (July 21-September 6 and September 9-10, 2022) and $23,989 per day for three days of immediate jeopardy (July 20, September 7, and September 8, 2022) – reasonable?

Discussion

Summary judgment.  Summary judgment is appropriate if a case presents no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law.  Southpark Meadows Nursing & Rehab. Center, DAB No. 2703 at 5 (2016); W. Texas LTC Partners, Inc., DAB No. 652 at 5 (2015), aff’d, W. Tex. LTC Partners, Inc. v. U.S. Dep’t of Health & Human Servs., 843 F.3d 1043 (5th Cir. 2016); Bartley Healthcare Nursing & Rehab., DAB No. 2539 at 3 (2013) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-25 (1986)); Ill. Knights Templar Home, DAB No. 2274 at 3-4, and cases cited therein. 

The moving party may show the absence of a genuine factual dispute by presenting evidence so one-sided that it must prevail as a matter of law or by showing that the non-moving party has presented no evidence “sufficient to establish the existence of an element essential to [that party’s] case, and on which [that party] will bear the burden of proof at trial.”  Livingston Care Ctr. v. U.S. Dep’t of Health & Human Servs., 388 F.3d 168, 173 (6th Cir. 2004) (quoting Celotex, 477 U.S. at 322).  To avoid summary judgment, the non-moving party must then act affirmatively by tendering evidence of specific facts showing that a dispute exists.  Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 n.11 (1986); see also Vandalia Park, DAB No. 1939 (2004); Lebanon Nursing & Rehab. Ctr., DAB No. 1918 (2004).  The non-moving party may not simply rely on denials but must furnish admissible evidence of a dispute concerning a material fact.  Ill. Knights Templar, DAB No. 2274 at 4; Livingston Care Ctr., DAB No. 1871 at 5 (2003).  In doing so, the non-moving party must show more than “some metaphysical doubt as to the material facts.”  W. Tex. LTC Partners, DAB No. 2652 at 6; 1866ICPayday.com, L.L.C., DAB No. 2289 at 3 (2009) (quoting Matsushita, 475 U.S. at 587).

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In examining the evidence for purposes of determining whether summary judgment is appropriate, I must draw all reasonable inferences in the light most favorable to the non-moving party.  Brightview Care Ctr., DAB No. 2132 at 2, 9 (2007); Livingston Care Ctr., 388 F.3d at 172; Guardian Health Care Ctr., DAB No. 1943 at 8 (2004).  However, drawing factual inferences in the light most favorable to the non-moving party does not require that I accept the non-moving party’s legal conclusions or draw inferences that are not reasonable.  W. Tex. LTC, DAB No. 2652 at 6-7; cf. Guardian, DAB No. 1943 at 11 (“A dispute over the conclusion to be drawn from applying relevant legal criteria to undisputed facts does not preclude summary judgment if the record is sufficiently developed and there is only one reasonable conclusion that can be drawn from those facts.”); see Green Valley Health Care & Rehab. Ctr., DAB No. 2947 at 8 (2019), (quoting Johnson v. Perez, 823 F. 3d, 701, 705 (D.C. Cir. 2016)) (noting that a genuine factual dispute does not exist “when a putatively disputed body of evidentiary material could not, even assuming a sympathetic factfinder, reasonably support a finding crucial to the nonmoving party’s legal position.”); Brightview, DAB No. 2132 at 10 (entry of summary judgment upheld where inferences and views of non-moving party are not reasonable). 

Summary judgment applied to administrative review in Medicare cases.  It is well-established that an administrative law judge is empowered to decide a case on a motion for summary judgment, without an evidentiary hearing.  Shah v. Azar, 920 F.3d 987, 996 (5th Cir. 2019), citing Cedar Lake Nursing Home v. U.S. Dep’t of Health & Human Servs., 619 F.3d 453, 457 (5th Cir. 2010); see Fal-Meridian, Inc. v. U.S. Dep’t of Health & Human Servs., 604 F.3d 445, 449 (7th Cir. 2010). 

There seems to be some confusion about applying such well-founded principles of civil litigation to these proceedings, with some suggesting that, to do so, denies a party a fundamental right.  In one succinct observation, Judge Posner of the Seventh Circuit Court of Appeals shattered this misconception:  “All it means for a decision to be based on a grant of summary judgment is that there are no issues that would benefit from being resolved in an evidentiary hearing.”  Fal-Meridian, 604 F.3d at 449 (emphasis added).³

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The July 22, 2022 Survey Findings. 

1. CMS is entitled to summary judgment because it has come forward with evidence establishing that the facility was not in substantial compliance with the Life Safety Code of the National Fire Protections Association, and Petitioner presents no evidence establishing a dispute of a material fact.⁴

The parties have barely commented on the LSC findings.  In its hearing request, Petitioner explicitly contested those survey findings.  Hearing Request at 2, 4-5 (e-file # 1).  In response, CMS submitted evidence – the LSC statement of deficiencies (CMS Ex. 21), the surveyor notes and worksheets from that survey (CMS Exs. 22, 23), a map of the facility (CMS Ex. 24), and the written direct testimony of James Downey, Life Safety Code Safety Officer (CMS Ex. 44) – to establish that the facility did not meet four LSC requirements.  In its brief, CMS incorporates by reference the “findings and evidence related to the Life Safety Code to support those findings of noncompliance.”  CMS Br. at 3 n.1.  Although Petitioner did not respond to CMS’s evidence, it did not indicate that it was abandoning the claims it raised in the hearing request.  I therefore consider the issue, based on the evidence before me.⁵

A facility must be designed, constructed, equipped, and maintained to protect the health and safety of residents, personnel, and the public.  42 C.F.R. § 483.90.  To this end, it must meet the applicable provisions of the LSC of the National Fire Protections Association (NFPA).  42 C.F.R. § 483.90(a).  CMS presents evidence that the facility was not in substantial compliance with four LSC requirements:

• Smoke resisting partitions for hazardous areas.  K321 (NFPA 101, LSC §§ 19.3.2.1; 19.3.5.9).  In a sprinklered “hazardous” room (containing a gas-fired water heater and a gas-fired boiler), Surveyor Downey observed:  a ¾ inch by 4 foot opening in the left side of the wall so that the wall did not limit the transfer of smoke; a two foot by four foot opening in the rear corner of the wall, which, again meant that the wall did not limit the transfer of smoke; the bottom of the walls on the left, rear, and right side were deteriorating – falling apart from exposure to moisture; and ¼ inch gaps around the hot and cold water lines in the rear wall that did not limit the transfer of smoke and were not protected by a system or material capable of restricting the transfer of smoke.  CMS Ex. 21 at 7-8; CMS Ex. 44 at 2 (Downey Decl. ¶ 6).

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Surveyor Downey spoke to the maintenance supervisor, who said that the room had been in that condition since at least February 2022 (when he started working at the facility).  The facility’s administrator told the surveyor that five residents could be affected by the conditions.  Surveyor Downey reviewed the facility’s information sheet and confirmed that five residents resided on the affected wing.  CMS Ex. 21 at 8; CMS Ex. 44 at 2 (Downey Decl. ¶ 6). 

• Smoke barriers.  K372 (NFPA 101, LSC §§ 19.3.7.3, 8.6.7.1(1).  The LSC requires that smoke barriers be constructed to a half hour fire resistance rating.  Surveyor Downey found that that openings were not sealed in two of the facility’s six barrier walls in two of six smoke compartments.  This failure could allow the transfer of fire or smoke from one smoke compartment to another and expose residents to smoke inhalation and fire-related injuries.  The facility’s maintenance director admitted that he had not noticed the openings in the barrier walls.  The facility’s administrator told the surveyor that all 53 of the facility’s residents could be affected by that condition.  CMS Ex. 21 at 10-11; CMS Ex. 44 at 2-3 (Downey Decl. ¶ 7).
• Utilities – gas and electric.  K511 (NFPA 70, LSC §§ 18.5.1.1, 19.5.1.1, 9.1.1, 9.1.2)).  Surveyor Downey determined that the facility did not ensure that its electrical wiring and equipment complied with the NFPA in two of six smoke compartments.  An unused opening in an electrical circuit breaker panel was not covered.  The facility had not replaced a broken electrical outlet.  Such failures could lead to an electrical fire.  CMS Ex. 21 at 14-15; CMS Ex. 44 at 3 (Downey Decl. ¶ 8).
• Health Care Facilities Code – other).  K900 (NFPA 99).  Surveyor Downey listed deficiencies with the facility’s Essential Electrical System (EES), which included:  the wrong system for a critical care room; lacking at least 14 electrical receptacles at each resident bed location; not providing emergency electrical receptacles with a distinctive color; lacking three separate emergency branches.  The emergency power was intermingled in three red panels.  One panel, labeled “Main Power to Emergency Generator,” was not in use.  CMS Ex. 21 at 23-24; CMS Ex. 44 at 4 (Downey Decl. ¶ 10).

For its part, Petitioner submits no evidence of specific facts showing that a dispute exists on any of the LSC findings.  CMS is therefore entitled to summary judgment on the LSC deficiencies, which puts the facility out of substantial compliance with Medicare program requirements.

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2. The undisputed evidence establishes that the facility did not follow its own policies nor professional standards of practice in providing respiratory care.  These failures put the facility out of substantial compliance with 42 C.F.R. § 483.25(i).

Program requirement:  42 C.F.R. § 483.25(i) (Tag F695).  Quality of care “is a fundamental principle that applies to all treatment and care provided to facility residents.”  42 C.F.R. § 483.25. 

The statute and regulation require that the facility ensure that each resident receive the necessary care and services to allow a 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); 42 C.F.R. § 483.25.  To this end, the facility must, among other requirements, ensure that a resident who requires respiratory care, including tracheostomy care and tracheal suctioning, is provided such care, consistent with professional standards of practice, the individual’s comprehensive person-centered care plan, the resident’s goals and preferences, and 42 C.F.R. § 483.65 (which governs specialized rehabilitative services).  42 C.F.R. § 483.25(i). 

Professional standards.  The American Association for Respiratory Care has established guidelines for long-term invasive mechanical ventilation.  CMS Ex. 17.  According to the guidelines, a patient-disconnect (e.g., low-pressure or low exhaled-volume) and a high-pressure alarm are essential.⁶  If a patient disconnection is likely to produce a serious adverse effect, a remote alarm and a secondary alarm may be indicated.  A secondary alarm may be based on chest-wall impedance and cardiac activity, exhaled volume, end-tidal CO₂, or pulse oximetry with alarm capabilities.  The alarms must be loud enough to be heard by caregivers in all areas.  CMS Ex. 17 at 3. 

Facility policy:  mechanical ventilation.  The facility had in place a written policy for mechanical ventilation.  The policy addresses how the facility is to provide “assisted or controlled ventilation to a resident with acute or chronic respiratory insufficiency.”  CMS Ex. 14 at 1. 

The policy directs staff to verify that there is a physician’s order for this procedure, including instructions for: 

1. Tidal volume;
2. Ventilatory rate;

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3. Peak flow rate;
4. Pressure limit;
5. Sensitivity
6. Oxygen concentration;
7. Mode (assist control or rate control);
8. Special parameters such as positive end expiratory pressure (PEEP) settings;
9. Respiratory therapist will check ventilator alarms (circuit disconnect, apnea alarm, low VTE alarm, High VTE alarm, low minute ventilation, low respiratory rate, high respiratory rate, low inspiratory pressure) for proper functioning and set up upon admission. 
10. If the respiratory therapist has not been trained on the ventilator alarms settings, admission will be held . . . to admit during the weekday when a trained respiratory therapist is present.

The policy also directs staff to review the resident’s care plan to assess for the resident’s special needs. 

Only a qualified nurse or respiratory therapist can initiate mechanical ventilation, based on the appropriate physician order.  CMS Ex. 14 at 1. 

According to the policy, while the resident is on mechanical ventilation, staff must assess for signs and symptoms of:  restlessness, increased pulse rate, increased rate and depth of respirations, diminished lung sounds, cyanosis, fatigue, pallor, and/or confusion.  Staff must also check for airway obstruction (and suction as indicated), arterial blood gases or oxygen saturation, take vital signs, and check cardiac rhythm.  CMS Ex. 14 at 2. 

The policy includes 18 procedural steps.  Among them are instructions to set the ventilator for the settings established in the physician’s order; adjust the remote and ventilator alarms so they can be heard by responsible staff; and review and document the resident’s status and ventilator settings at least every four hours or as indicated by the resident’s condition.  CMS Ex. 14 at 2. 

Staff are required to document the mechanical ventilator settings (tidal volume; ventilatory rate; peak flow rate; pressure limit; sensitivity; oxygen concentration; mode (assist control or rate control); and special parameters such as positive end expiratory pressure (PEEP) settings).  CMS Ex. 14 at 3. 

Facility policy:  admission criteria.  The facility’s admissions policy dictates that the services the facility provides “must meet the level of health care needs of the patient upon admission.”  CMS Ex. 18 at 1.

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The policy includes acceptance criteria for individuals on ventilators.  Among other provisions, the DON, or designee, reviews hospital clinical referrals for current lab work, and arterial blood gas levels, if available.  The respiratory therapist reviews the ventilator referral for settings, trach size, code status, and lab work.  The DON or designee coordinates the referral to the ventilator company to assess the resident at the hospital.  The hospital assessment includes trach type (if it’s fresh, stable, or established), how the resident is breathing on the current ventilator settings, respiratory assessment, and review of the ventilator settings with the hospital flow sheet for any abnormal levels.  The ventilator company notifies the respiratory therapist, admissions coordinator, and DON of the hospital assessment findings and advises whether it can provide a ventilator and coordinate its delivery.  CMS Ex. 18 at 2.

Resident CR# 106.  CR# 106 was a 63-year-old woman, admitted from the hospital to the facility, on July 11, 2022.  She suffered from acute and chronic respiratory failure, chronic obstructive pulmonary disease, and multiple sclerosis.  She had a tracheostomy (an opening created in the front of the neck so that a tube can be inserted into the windpipe to help the individual breathe) and was on a ventilator.  CMS Ex. 6 at 9; CMS Ex. 8 at 1, 3, 7, 13, 20, 41.  She was full code.  CMS Ex. 8 at 5.  She required a one-to-two-person physical assist for activities of daily living.  CMS Ex. 8 at 6-7.  She was, nevertheless, alert and cognitively intact.  CMS Ex. 8 at 8, 19. 

CR# 106’s hospital discharge records indicate that she had been hospitalized on June 29, 2022, for acute respiratory failure with hypoxia/hypercapnia (a condition in which “competing mechanisms are simultaneously acting to increase . . . and decrease . . . brain blood flow, resulting in an adjustment that is ideal for neither the regulation of oxygen delivery nor tissue pH.”).  The discharge records did not indicate her (then) condition or ventilator settings.  CMS Ex. 6 at 10; see CMS Ex. 8 at 79-104.  According to the facility’s policy, the DON would have coordinated with the ventilator company to assess the resident at the hospital, so the facility should have had this information.  CMS Ex. 18 at 2.

CR# 106’s admissions assessment.  CR# 106’s facility admissions assessment lists her equipment:  a tracheostomy; a ventilator; and a CPAP (Continuous Positive Airway Pressure) device, which is a common treatment for obstructive sleep apnea; obstructive sleep apnea occurs when the throat muscles relax and block the airways, and it increases the risk of sudden cardiac death.  https://www.acc.org/About-ACC/Press-Releases/2013/06/12/11/30/Sleep-Apnea-Increases-Risk-of-Sudden-Cardiac-Death.  A CPAP device uses a hose connected to a mask or nosepiece to deliver constant and steady air pressure to help the individual breathe while sleeping.  CMS Ex. 6 at 9.  CR#106’s assessment notes that CR# 106 used the CPAP at night but had left it at the hospital.  CMS Ex. 6 at 9-10; CMS Ex. 8 at 20-21.  The facility did not follow up; it did not assess whether or why the resident required a CPAP.  The assessing nurse checked that the

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resident did not have apnea but did not determine why, if not to treat apnea, CR# 106 used a CPAP. 

Because the facility disregarded this significant factor in CR# 106’s treatment, its assessment was less than “comprehensive.” 

CR# 106’s care plan.  A physician order, dated July 11, 2022, indicates ventilator settings:  “AVAPs Rate 16 IPAP 10 EPAP 7 3L O2 bleed-in with target VT 350.”  The order does not include directions for alarm settings.  CMS Ex. 6 at 11; P. Ex. 9. 

CR# 106’s care plan indicates that she required “oxygen therapy, suctioning, tracheostomy care,” and that she was on a ventilator or respirator.  CMS Ex. 8 at 7.  A physician order directed “trained personnel” to change her tracheostomy as needed and to notify her physician prior to the change, “as needed per protocol” or for accidental decannulation (removal of the trach tube).  CMS Ex. 8 at 30.  The care plan provided specific instructions for ensuring oxygen saturation levels between 88 and 92% and for tracheal suctioning and care.  CMS Ex. 8 at 31-33.  With respect to the ventilator’s settings, the care plan reflected the physician’s order.  CMS Ex. 8 at 33. 

The care plan is conspicuously silent on CR# 106’s need for and use of a CPAP device.  It says nothing about the appropriate alarm settings for her ventilator.  CMS Ex. 6 at 10; see CMS Ex. 8 at 30-36.  Similarly, the order from the ventilator company says nothing about the alarm settings.  CMS Ex. 6 at 1-12.  Even though its policy dictates that the facility meet the resident’s health care needs “upon admission,” the care plan does not address the resident’s practice of pulling out her trach – a behavior that she displayed almost immediately.  See CMS Ex. 18 at 1. 

Progress notes.  From the beginning of her stay, progress notes record incidents of CR# 106 pulling out her trach.  At 9:02 a.m. on July 12, the facility’s respiratory therapist reported that she’d been “informed” that the resident had been “pulling the vent circuit off.”  CMS Ex. 8 at 39. 

At 11:55 a.m. on July 12, 2022, staff heard the vent alarm going off and discovered that CR# 106 had pulled the trach “completely out.”  She was turning “a grey/blue color.”  Staff reinserted the trach and put her back on the ventilator.  When the resident continued reaching to pull out the trach, a nurse aide sat with her while a nurse obtained Xanax (a sedative) to calm her down.  CMS Ex. 6 at 12; CMS Ex. 8 at 39. 

A physician note, dated July 12, 2022, at 2:30 p.m., indicates that the resident was “on the vent on SIMV [synchronized intermittent mandator ventilation]” and was tolerating it well and “has been put on CPAP . . . from time to time.”  The note also describes

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CR# 106 as “alert and showing she wants to get off the ventilator.”  CMS Ex. 6 at 13-14 (emphasis added).⁷

A progress note entered at 6:57 p.m. on July 12 describes the resident as “very agitated,” pulling at her trach, and disconnecting the tubing.  She was confused, so staff were not successful in their efforts to persuade her to stop.  CMS Ex. 8 at 37.

No other progress notes suggest that CR# 106 had any problems until the following morning.  See CMS Ex. 8 at 37.  However, based on the other evidence, which allude to problems that were not documented, the progress notes are incomplete.  CR# 106 was apparently setting off the alarm either repeatedly or occasionally (depending on the source of the information) throughout the night of July 12-13.  CMS Ex. 6 at 22; CMS Ex. 12 at 7; P. Ex. 12.

The events of July 13, 2022, and CR# 106’s hospitalization and death.  The facility’s record-keeping was not as complete as it might have been, so evidence of the morning’s events is sparse.⁸  Nevertheless, in describing the events of July 13, CMS relies on the facility’s progress notes and staff interviews.  For its part, Petitioner has not come forward with any evidence – including the testimony of the nurses involved – suggesting a dispute of the facts that CMS presents.

According to a progress note, at 5:00 a.m. on July 13, a Licensed Vocational Nurse (LVN), referred to as LVN C in the survey documents, went into the resident’s room in response to the sound of the resident’s ventilator alarm.  The note does not describe the resident’s condition nor indicate why the alarm was sounding.  LVN C recorded no assessment or vital signs.  The alarm stopped sounding, and LVN C left the room.  CMS Ex. 6 at 15; CMS Ex. 8 at 37: P. Ex. 13.

About ten minutes later, a second nurse, Robyn Mitchell, LVN, entered CR# 106’s room and found the resident unresponsive.  P. Ex. 8 (Mitchell Decl. ¶ 2).  Staff called emergency medical services and started CPR.  The EMTs arrived and took the resident to

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the hospital.  Staff informed the resident’s physician.  CMS Ex. 6 at 15; CMS Ex. 8 at 37; P. Ex. 13.

Hospital records indicate that CR# 106 was hospitalized because she suffered a cardiac arrest, referred to as “pulseless electrical activity (PEA).”  CMS Ex. 6 at 15-16.  The hospital continued advanced cardiovascular life support protocols, but the resident displayed no evidence of brain activity.  She died several hours after her admission.  CMS Ex. 6 at 16.

The progress notes for the morning of July 13 are sketchy, and Petitioner’s witness testimony does not fill in the details.  First, Petitioner has not produced LVN C as a witness.  Instead, it submits a one-paragraph, hand-written statement that the LVN signed a week after CR# 106’s death.  The statement does not further explain what happened.  LVN C writes that she was passing morning medications, and “entered [CR# 106’s] room at 0500 due to [the resident’s] alarm machine sounding all night due to suctioning [and resident] care.”⁹  The ventilator “stabilize(d) on its own.”  The rest of the LVN’s statement is ambiguous.  She seems to conflate her 5:00 a.m. response with LVN Mitchell’s subsequent actions, when she writes that “the [resident] was bagged and CPR was started.”  She also writes that she “can’t state if the alarm was sounding.”  P. Ex. 12.

LVN C was more forthcoming when interviewed by the surveyors on July 19 (the day before she prepared her written statement).  She told them that she worked the 10:00 p.m. to 6:00 a.m. shift on the night of July 12-13, 2022.  During that time, CR# 106 repeatedly tried to get out of bed, which caused the ventilator alarm to go off because her trach would disconnect.  LVN C said that “the last time she heard R# 106’s ventilator alarm go off was around 5:00 a.m. on 7/13/22.”  When she heard the alarm, she went into the resident room, and the resident was “fine.”  The ventilator alarm “cut off on its own,” and “whatever the issue was resolved itself.”  The LVN admitted that she did not record vitals or the ventilator settings.  She left the room and continued her rounds.  CMS Ex. 6 at 16-17; CMS Ex. 12 at 7 (emphasis added).

LVN C also told the surveyors that, about ten minutes after she left CR# 106’s room, LVN Mitchell (identified as LVN D) “yelled for her to come.”  LVN Mitchell told LVN C that she “happened to be walking by CR# 106’s room and noticed from the hallway” that the resident’s color looked off.  She entered the room and discovered that the resident had no pulse.  The ventilator alarm was not going off.  Id.

Although LVN Mitchell submits a written declaration, her testimony adds no additional information.  She simply defers to the survey findings to describe the events of the morning:  “I was the nurse who found resident CR106 unresponsive as detailed in the July 22, 2022 survey.”  P. Ex. 8 (Mitchell Decl. ¶ 2).

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Like LVN C, LVN Mitchell offered more details when she spoke to the surveyors.  At that time, she confirmed that CR# 106’s ventilator alarm went off “a few times” during the night.  She told the surveyors that she happened to be walking in the hall and, glancing into the resident’s room, noticed that the resident looked pale.  She went into the room to check, and the resident did not have a pulse.  She called for help and began resuscitation efforts.  The ventilator alarm had not been going off when she discovered the resident.  She could not remember if the alarm went off when she disconnected the resident from the ventilator.  CMS Ex. 6 at 22; CMS Ex. 12 at 7.

Neither LVN denies making any of these statements, and neither asserts that they are untrue.  To the contrary, LVN Mitchell incorporates the survey findings into her testimony.  P. Ex. 8 (Mitchell Decl. ¶ 2) (“as detailed in the July 22, 2022 survey.”).  See Beatrice State Development Ctr., DAB No. 2311 at 17, 18 (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 (holding that statements of facility employees to the surveyors may be admitted in an administrative proceeding and may constitute substantial evidence).

Other staff confirmed that they heard the alarm sound when LVN C entered the resident’s room at 5:00 a.m. but did not hear it after that.  See, e.g., CMS Ex. 6 at 18-19 (nurse aide reporting that she heard the alarm go off at around 5:00 a.m., saw LVN C enter and leave the room, but did not hear the ventilator alarm sounding anymore.”).

The surveyor checked ventilator alarm settings, which showed that only one alarm was set.  The circuit disconnect alarm was set for five seconds; all other alarms, including the high-pressure alarm and the apnea alarm, were turned off.  CMS Ex. 10 at 5; CMS Ex. 12 at 10; P. Ex. 14.  The parties argue about whether the apnea alarm should have been set, but the undisputed evidence establishes that professional standards dictate that both a disconnect alarm and a high-pressure alarm are essential.  CMS Ex. 17 at 3.  Without regard to whether the apnea alarm should have been set, the facility was not in substantial compliance with section 483.25(i) because it did not follow professional standards that require setting a high-pressure alarm.

Petitioner argues that the ventilator company is responsible for any problems with the alarm settings.  P. Br. at 7.  In fact, the regulations explicitly make the facility responsible for the quality of services provided by outside resources.  42 C.F.R. § 483.70(g); see Agape Rehabilitation of Rock Hill, DAB No. 2411 at 9 (2011); Maysville Nursing & Rehab. Facility, DAB No. 2317 at 14 (2010).  If the ventilator company made a mistake, the facility is responsible.

The facility’s substantial noncompliance:  failing to assess or investigate when the alarm sounded at 5:00 a.m.  The absence of a high-pressure alarm was not the facility’s

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only failure.  The nurse’s 5:00 a.m. response to CR# 106’s ventilator alarm fell short of what is required by professional standards of practice and the facility’s policies.

LVN C’s 5:00 a.m. response (or lack of response) to the resident’s alarm did not ensure that the resident received the care and services she needed.  The ventilator alarm was sounding and then – for no apparent reason – it stopped.  That the alarm was sounding suggests a problem – either with the resident or with the alarm.  That, on its own, the alarm stopped sounding suggests a problem with the alarm itself.  Yet, the LVN did not take the resident’s vital signs or otherwise assess her.  She did not check the ventilator alarm to see what was causing the problem.

A circuit-disconnect alarm goes off when there is a disconnect in the circuit, which could mean that something is unplugged or disconnected.  As the facility’s respiratory therapist, Tiffany Dixon, told the surveyors, when the alarm sounds, “staff should check the patient and assess why it was going off by checking all the lines and attachments to make sure they were connected.”  CMS Ex. 6 at 20 (emphasis added).  Respiratory Therapist Dixon, who challenges several other of the statements attributed to her, does not deny making that statement and does not claim that it is incorrect.  See P. Ex. 3 (Dixon Decl.).

Although something puzzling was happening to CR# 106 and/or her ventilator, the nurse did not investigate why the alarm started or why it stopped.  She did not check the lines and attachments.  She did not “document [the resident] status and ventilator settings . . . as indicated by the resident’s condition,” which is contrary to the facility’s written policy and also puts the facility out of substantial compliance with section 483.25(i).  See CMS Ex. 14 at 2.

The facility’s substantial noncompliance:  failing to follow-up on questions regarding the resident’s need for a CPAP device.  The parties argue about whether CR# 106 suffered from sleep apnea and therefore required an apnea alarm.  I do not consider this a material fact.

The parties agree that CR# 106’s ventilator “circuit disconnect alarm” was set for five seconds, and all other alarms, including the apnea alarm, were set to “off.”  CMS Br. at 7, citing CMS Ex. 10 at 1-5; P. Br. at 7; P. Response at 9.  As a result, no alarm would sound if the resident had no pulse or was in respiratory distress (which occurred).  From this, CMS argues that CR# 106’s alarms were not properly set because she had sleep apnea.  When she stopped breathing, no alarm sounded to alert staff because the apnea and other critical alarm settings were turned off.  CMS Br. at 6, 7, 14.

Petitioner derides CMS’s evidence that the resident required treatment for sleep apnea (even though this comes from the facility’s own document), arguing that the reference, in her admission assessment, to a CPAP device is insufficient to establish that she had

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apnea.  P. Br. at 7; P. Response at 4, citing CMS Ex. 8 at 21.  In making this assertion, Petitioner disregards the physician’s note that discussed the CPAP.  CMS Ex. 6 at 13-14.

Petitioner points to an unchecked box on the resident’s assessment, labeled “apnea,” as evidence that the CR# 106 did not suffer from the disorder.  CMS Ex. 8 at 19.  As the Board has recognized, checking or not checking a box is a tenuous thread upon which to hang the existence or nonexistence of a finding.  See Brenham Nursing and Rehabilitation Center, DAB No. 2619 at 11 (2015) (finding that the ALJ reasonably concluded that the facility did not rule out the possibility of abuse or neglect, notwithstanding someone’s having put a check mark in the “No” box).

Moreover, the assessment form paradoxically suggests, by means of the omitted check mark, that the resident did not have apnea but, by means of actual words, that she was prescribed a device used to treat apnea.  Although it was critically important information, we don’t know if CR# 106 had sleep apnea because facility staff did not attempt to resolve the apparent incongruity.  To provide her with the care and services she required so that she would attain or maintain her highest practicable physical, mental, or psychosocial well-being, the facility needed to know whether she suffered from apnea.  Because it did not do so, it was not in substantial compliance with section 483.25(i).

Petitioner’s arguments that are not material and, even if they were material, do not preclude my deciding this case on summary judgment.  LVN C’s inadequate response to the 5:00 a.m. alarm put the facility out of substantial compliance with section 483.25(i); the facility’s failure to determine why CR# 106 had been prescribed a CPAP device put the facility out of substantial compliance with section 483.25(i).  Nevertheless, the parties argue about whether an alarm was sounding when LVN Mitchell entered the room at 5:10 a.m., and whether it sounded when LVN Mitchell disconnected the resident’s trach.¹⁰

Petitioner has come forward with no evidence to establish that the alarms were sounding.  Petitioner inaccurately asserts that, “when she was found, the ‘ventilator was disconnected from [CR# 106].’”  From this false premise, Petitioner argues that, because the ventilator was disconnected, the alarm must have been sounding when the nurses entered the resident’s room at 5:10 a.m.  P. Response at 7, 9.  Two obvious problems defeat Petitioner’s assertions:  1) the evidence in the record establishes that the ventilator was connected, and no alarms were sounding when LVN Mitchell entered the resident’s room; and 2) Petitioner’s reasoning is fallacious.  See Ill. Knights Templar, DAB No. 2274 at 4; Livingston Care Ctr., DAB No. 1871 at 5, aff’d Livingston Care Ctr. v. Dep’t

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of Health & Human Services, 388 F. 3d 168 (6^th Cir. 2004) (finding that, for purposes of summary judgment, the judge need not accept the unsupported assertions of counsel).

First, no factual evidence supports Petitioner’s assertions.  The “evidence” Petitioner points to is LVN C’s convoluted statement, dated July 20.  P. Ex. 12.  LVN C wrote that the alarm was sounding when she was passing meds, which is consistent with her progress note and means that the alarm was sounding at 5:00 a.m.  In her next sentence, LVN C segues into a description of what occurred after 5:10 a.m., when LVN Mitchell called her into the resident’s room; by then, LVN Mitchell had disconnected the ventilator and was performing CPR.

This is the only reasonable interpretation of LVN C’s statement.  It is consistent with the progress notes, all of LVN Mitchell’s statements, LVN C’s statements to the surveyors, and statements from other staff.  See CMS Ex. 6 at 16; CMS Ex. 12 at 7 (quoting LVN C, who told surveyors that “the last time she heard CR# 106’s ventilator alarm go off was around 5:00 a.m. on 7/13/22”); CMS Ex. 6 at 17 (quoting LVN C, who told surveyors that she did not hear the alarm going off when LVN Mitchell called her to the resident’s room); CMS Ex. 6 at 16-17; CMS Ex. 12 at 7 (reporting that LVN Mitchell did not respond to an alarm but “happened to be walking by” the resident’s room); CMS Ex. 6 at 16; CMS Ex. 12 at 7, 9 (citing LVN Mitchell’s statement that, when she entered CR# 106’s room, the ventilator alarm was not going off); CMS Ex. 6 at 22; CMS Ex. 12 at 7 (citing LVN Mitchell’s statement that she disconnected the resident from the ventilator in order to perform CPR but could not remember if the alarm then went off); CMS Ex. 6 at 18-19 (reporting Nurse Aide F’s statement that, at 5:00 a.m., she heard CR#106’s alarm go off for the last time and saw LVN C enter the room and leave “shortly after she went in”).

Although, in examining the evidence for purposes of determining the appropriateness of summary judgment, I must draw all reasonable inferences in the light most favorable to the non-moving party, I am not required to draw inferences and accept the views of the non-moving party if those views are not reasonable.  Brightview Care Ctr., DAB No. 2132 at 10 (2007).  Petitioner’s interpretation of the statement is not reasonable.¹¹

Second, Petitioner’s logic is flawed.  Even if the ventilator were disconnected at 5:10 a.m., it does not follow that the alarm “must have been” sounding.  If the ventilator alarm was not set properly or was malfunctioning, it might have failed to go off even if the

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ventilator were disconnected (and the statement from the nurse aide that no alarm sounded after 5:00 a.m., provides the only definitive evidence on the issue – although, again, I find this not material).

Petitioner also attacks CMS for reporting that “LVN D” (i.e., LVN Mitchell) said that no ventilator alarm was going off when she found the resident unresponsive, with her trach still attached, but “ignoring” the LVN’s statement that she could not recall if the alarm went off when she disconnected the resident from the ventilator to perform CPR.  P. Response at 9.  According to Petitioner, these statements are inconsistent, and the latter is more reliable because it “coincides with the nurse’s [LVN C’s, not LVN Mitchell’s] statement provided to the administrator right after the incident.”  Id., citing P. Ex. 12.

The issue is not material.  Even if it were material, Petitioner’s argument is flawed:

• LVN C did not provide her statement to the facility’s administrator “right after the incident.”  The incident occurred on July 13; the LVN’s statement is dated a week later – July 20 – during the time of the survey.  In fact, LVN C spoke to the surveyors on July 19, the day before she submitted her statement to the facility’s administrator.  CMS Ex. 12 at 7.
• LVN Mitchell’s statements are wholly consistent.  They involve two distinct times:  1) when LVN Mitchell entered the room, and no alarm was sounding; and 2) when LVN Mitchell subsequently disconnected the ventilator and could not recall if the alarm went off.

August 20, 2022 Survey Findings.

3. CMS is entitled to summary judgment because the undisputed evidence establishes that the facility did not ensure that an erratic and sometimes-delusional resident was adequately supervised.  Because he was not supervised, the resident disappeared and was missing for five days.  By failing to ensure that the resident received adequate – or any – supervision, the facility was not in substantial compliance with 42 C.F.R. § 483.25(d).

CMS has come forward with evidence that facility staff did not adequately supervise a resident, identified as R1, who disappeared from the facility on August 4, 2022.  The facility cannot explain the circumstances surrounding his disappearance, and his whereabouts were unknown for five days.  On August 9, 2022, a staff member found him, naked, in a janitor’s closet, sitting in (not on) a bucket containing his own waste.  Petitioner does not challenge any of these facts but argues that these were the resident’s choices and that the facility acted appropriately. 

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Program requirement:  42 C.F.R. § 483.25(d) (Tag F689).  To assure that residents receive necessary care and services, the “quality of care” regulation also mandates that the facility “ensure” that each resident’s environment remain as free of accident hazards as possible and that each resident receive adequate supervision and assistance devices to prevent accidents.  42 C.F.R. § 483.25(d); Logan Healthcare Leasing, LLC d/b/a/ Logan Care and Rehabilitation, DAB No. 3036 at 12-13 (2021); Heritage Plaza Nursing Ctr., DAB No. 2829 at 6 (2017).  The facility must therefore eliminate or reduce a known or foreseeable risk of accidents “to the greatest degree practicable.”  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.”).  A facility is permitted the flexibility to choose the methods it uses to prevent accidents, but the chosen methods must constitute an “adequate” level of supervision under all the circumstances.  42 C.F.R. § 483.25(d); Briarwood, DAB No. 2115 at 5; Windsor Health Care Ctr., DAB No. 1902 at 5 (2003), aff’d sub nom. Windsor Health Care Ctr. v. Leavitt, 127 F. App’x 843 (6th Cir. 2005).

Facility policy:  Discharge against Medical Advice.  Petitioner has produced a facility policy titled “Discharge Against Medical Advice.”  It provides that facilities honor requests for discharge against medical advice by the resident or a representative with legal authority to make decisions for him.  According to the policy, such discharges would be arranged “in accordance with” the resident’s request to arrange discharge.  “Appropriate discharge documentation will be completed as applicable,” and referral to Adult Protective Services would be made when appropriate.  P. Ex. 16 at 1 (emphasis added).

The policy lays out a process for staff to follow if a resident, who has the capacity to make his own medical decisions, asks for discharge against medical advice.  It directs the nurse to:

• “attempt to discern” the reason the resident wants to leave and “attempt to address any relevant issue”;
• explain to the resident the benefits of remaining in the facility and the potential consequences, risks, or complications of leaving against the advice of a physician;
• immediately notify the resident’s physician/advance practice provider and the resident representative that the resident wishes to discharge himself; and

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• immediately notify the administrator, director of nursing, and social services director of the resident’s discharge request.  The physician, administrator, director of nursing, and/or social services director must determine the risk presented, and, if they determine that the resident is at high risk, the facility must contact the Ombudsman, Adult Protective Services, and law enforcement (when applicable).

The facility administrator or designee must notify the facility’s medical director of the resident’s discharge.

If the resident’s representative opposes the discharge, the resident’s wishes are honored.  P. Ex. 16 at 1.

The policy requires that the discharge be documented.  The resident must sign a “Voluntary Discharge Against Medical Advice” form, which should be placed in the clinical record.  If the resident refuses to sign, the nurse writes “refuses to sign” on the form and signs the form.  A second staff member must sign as a witness.  The form is placed in the clinical record.

Documentation must be made in the medical record with details of the discharge that include:

• persons and agencies notified;
• statement of reasons for discharge (if known);
• explanation of benefits of remaining in the facility;
• explanation of potential complications, risks, and consequences of leaving the facility against the advice of the physician; and
• date and time of discharge, mode of transportation, and by whom.

P. Ex. 16 at 2.

Resident 1 (R1).  R1 was a 56-year-old man, admitted to the facility on July 21, 2022.  CMS Ex. 28 at 24, 26, 74.  His diagnoses included Rhabdomyolysis,¹² alcohol

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dependence with withdrawal delirium, dysphagia, and altered mental status.  He had a seizure disorder, lacked coordination, and exhibited abnormalities of gait and mobility.  CMS Ex. 28 at 48-49.  He had problems with swallowing, coughing or choking during meals or when swallowing medications.  CMS Ex. 28 at 54.  He was frequently incontinent of bowel and bladder.  CMS Ex. 28 at 46.

R1 was six feet tall and weighed 123 pounds.  CMS Ex. 28 at 54.  Shortly after his admission, his physician clarified the results of a modified barium swallow test (MBS) and noted that the resident “still aspirates silently and need to continue” with a mechanical soft diet and thin liquids.  CMS Ex. 28 at 75, 87.

R1 did not walk and required supervision when moving between locations on and off the unit; he used a wheelchair.  CMS Ex. 28 at 37, 38.  He required limited assistance with bed mobility, transfers, dressing, and eating.  He required extensive assistance for toilet use and personal hygiene.  CMS Ex. 28 at 37.  His balance during transfers was not steady, and he required staff assistance for changing positions.  CMS Ex. 28 at 38.  He had a history of falls.  CMS Ex. 28 at 52.

He was at risk of developing pressure ulcers.  CMS Ex. 28 at 56.

R1 scored 12 out of 15 on the BIMS (Brief Interview for Mental Status) assessment (he did not know the correct month, year, or day of the week), which shows a moderate cognitive impairment.  CMS Ex. 28 at 29.  Nevertheless, his thinking was described as “continuously” disorganized or incoherent.  CMS Ex. 28 at 30.  He had physical, verbal, and other behavior problems.  CMS Ex. 28 at 33.  The assessment identifies a significant number of “triggered” care areas, including cognitive loss/dementia, visual function, communication, psychosocial well-being, falls, behavior, and nutritional status.  CMS Ex. 28 at 69.

R1 was prescribed antianxiety and hypnotic medications.  CMS Ex. 28 at 59.  Among his medications, he was prescribed two sedatives, Alprazolam (Xanax) and Chlordiazepoxide, for anxiety.  CMS Ex. 28 at 76.¹³  He was prescribed Levetiracetam to control his seizures.  CMS Ex. 28 at 77.

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CMS has come forward with evidence – progress notes prepared by facility staff – that describe R1’s incoherence and bizarre behavior:

• A note entered at 6:39 a.m. on July 22 describes the resident sitting on the side of his bed, chewing on a diaper and his gown, attempting to drink from an empty urinal.  CMS Ex. 28 at 149.  A second note, entered at 9:55 a.m., describes him as “confused and disoriented.”  Id. 
• A behavior note, entered at 9:36 p.m. on July 25, describes the resident as “getting increasing[ly] irate.”  He grabbed a nurse aide’s arm, would not let go, and called her names.  Whenever staff entered his room he grabbed them, cursed at them, and yelled that he was going home.  He used a racial slur.  He attempted, “numerous times,” to throw himself out of bed.  He removed his diaper and attempted to “suck the urine out.”  CMS Ex. 28 at 143.
• A nurse’s note, entered at 2:36 p.m. on July 26, reports that the resident is “unable to comprehend or hold a conversation, incoherent.”  He is unable to follow directions and requires assistance with all activities of daily living, including feeding.  CMS Ex. 28 at 143 (emphasis added).
• On July 27 at 1:12 p.m., a nurse aide reported that R1 was “acting aggressively.”  He was hitting and kicking the wall and trying to get out of bed.  When the nurse aide assisted him, he became violent toward the aide and the speech therapist.  CMS Ex. 28 at 142.
• A note, entered at 8:22 a.m. on July 28, describes the resident as “rambling incoherently.”  CMS Ex. 28 at 142.

One nurse aide, identified as CNA E, told Surveyor Loralee Pille that R1 did not know that he lived in the nursing facility nor why he lived in the nursing facility.  CMS Ex. 41 at 4 (Pille Decl. ¶ 13).  The nurse aide has not denied making the statement nor challenged its accuracy, so I accept the statement as evidence.  See Beatrice State, DAB No. 2311 at 17, 18; Omni Manor, DAB No. 1920 at 11.

For its part, Petitioner does not challenge any of this evidence, and the record includes little evidence that the facility developed any interventions to address the resident’s significant issues.

Within 14 days of admission, the facility must conduct a “comprehensive, accurate, standardized, reproducible assessment of each resident’s functional capacity.”  42 C.F.R. §§ 483.20, 483.20(b)(2).  A partial assessment, dated August 4 (which was the 14th day following R1’s admission), indicates that R1 was discharged to the community on that day.  CMS Ex. 28 at 114.  The assessment includes no cognitive findings, except that the

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resident had memory problems, his decision-making skills were moderately impaired, and his thinking was disorganized.  CMS Ex. 28 at 115-116.  His mood was not assessed.  CMS Ex. 28 at 117-118.  According to the assessment, R1 had delusions.  His behaviors included physical and verbal attacks against others and wandering.  He rejected care.  CMS Ex. 28 at 119.  His functional status was limited.  He was totally dependent on staff for toileting; required extensive assistance for bed mobility, eating, bathing, personal hygiene; and required limited assistance for transfers and dressing.  CMS Ex. 28 at 120-121.  He was incontinent of bowel and bladder.  CMS Ex. 28 at 125.  He was prescribed multiple antianxiety medications (7) and hypnotics (7), according to the assessment.  CMS Ex. 28 at 131.¹⁴

Notwithstanding these disturbing and significant findings, Petitioner asserts that R1 was completely capable of making his own medical decisions.  However, aside from some conclusory assertions by facility staff, the record includes no evidence that anyone ever specifically assessed R1’s capacity for doing so.

The disappearance August 4-9, 2022.  The facility’s administrator and the DON told surveyors that “a few days prior to his leaving,” R1 “indicated that he wanted to leave to get beer.”¹⁵  CMS Ex. 26 at 7; see P. Br. at 13.  Contrary to its policy requiring staff to document the details of a discharge against medical advice, the facility did not document the events surrounding R1’s disappearance, including the times, prior to his disappearance, that he expressed the desire to leave.  See P. Ex. 16 at 2.  The documentation is limited to the following:

• A progress note, entered at 4:49 p.m. on August 4, states that R1’s mother and father came to the facility.  Staff told them that R1’s “friend” (who is not identified) had been visiting and “the resident was stating that he wanted to leave and go to the store for a beer.”  CMS Ex. 28 at 140.  The note does not indicate when this occurred, but staff told the surveyors that R1 was gone sometime after about 1:00 p.m.  CMS Ex. 26 at 7, 13.

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• The next entry indicates that, at 8:51 p.m., R1’s father called to follow-up on his son.  Id.

The progress notes include no additional information.  They do not indicate when R1 left the facility nor describe any additional circumstances surrounding his departure.  CMS Ex. 28 at 140.

Other uncontroverted evidence establishes that R1 was not formally discharged – against medical advice or otherwise – he simply disappeared.  No one knows when or how he left the facility.  In interviews, staff conceded that they could not find him, assumed that he had discharged himself against medical advice, and filled out the AMA form after his departure.  See P. Response at 11 (conceding that, after a fruitless search for the resident, the facility’s DON completed the AMA form).

• A nurse, identified as LVN M, told surveyor Pille that she helped search for R1 when no one could find him at the facility.  CMS Ex. 41 at 4 (Pille Decl. ¶ 14).  LVN M has not denied making the statement nor challenged its accuracy.  See Beatrice State, DAB No. 2311 at 17, 18; Omni Manor, DAB No. 1920 at 11. 
• A nurse aide, identified as CNA 8, told Surveyor Pille that “he did not see how [R1] left the facility or see who[m] he left with.”  The nurse aide said that he assisted with the search and did not find R1 in the facility or around the perimeter of the facility.  CMS Ex. 41 at 4 (Pille Decl. ¶ 15).  Again, the nurse aide has not denied making this statement nor challenged its accuracy.
• Surveyor Pille interviewed the facility’s administrator and its DON.  Both said that they did not consider R1 as missing or eloped; they considered that he left the facility against medical advice.  However, like the other facility staff, “they could not say how he left, when he left, or who[m] he left with.”  CMS Ex. 41 at 5 (Pille Decl. ¶ 16).  In her written declaration, the facility’s DON does not deny making the statement nor does she claim that it was inaccurate.  Although she declares that she told R1 about the dangers of leaving the facility and completed the AMA form, she does not explain when, how, or with whom he left the facility.  She does not list what “dangers” she warned him about nor specify when she did so.  P. Ex. 5 (Taylor Decl. ¶¶ 4, 5). 

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The next day, August 5, R1’s family called the police and reported the resident missing.  CMS Ex. 28 at 83, 139.¹⁶  A progress note, entered at 10:35 a.m. indicates that the police came to the facility but decided that the resident had no “cognition diagnosis that would stop him from leaving the facility.”  According to the note, at 10:44 a.m. on August 5, staff reported R1’s departure to the nurse practitioner.  CMS Ex. 28 at 140.

Petitioner produces a copy of a form titled “Against Medical Advice” that was filled out by Patience Taylor, the facility’s DON.  The form is very general.  R1’s name and the name of the facility are filled in.  The form says that medical risks/benefits have been explained by a member of the medical staff and that the resident understands those risks.  Four medical risks are listed on the form, and all are checked:  death; additional pain and/or suffering, permanent disability/disfigurement, and, remarkably, “risks to unborn fetus.”  Inasmuch as R1 was a 56-year-old male, I doubt that staff advised him that his departure could harm an unborn fetus.  No benefits for remaining in the facility are checked or otherwise listed.  P. Ex. 15.

According to the AMA form, R1 refused to sign.  Petitioner does not explain the signatures on the form, which purport to be the physician and nurse practitioner signatures, witnessed by DON Taylor.  Id.  See P. Ex. P. Ex. 5 (Taylor Decl. ¶ 5).  DON Taylor does not explain how those signatures were affixed to the form, and no evidence suggests that either were present or that they spoke to R1 at the time of his departure.  Indeed, as noted above, the DON’s nurse’s note indicates that she advised the nurse practitioner of R1’s departure the following morning.  CMS Ex. 28 at 140.

LVN Taylor submits a written declaration, declaring that she spoke to R1 “about the dangers of leaving the facility,” although, again, she does not specifically indicate when she spoke to him or what she said.  She did not document that conversation in the medical record.  She declares, generally, that after he left on August 4, she completed the AMA form and discharged him.  According to LVN Taylor, the resident was “competent to make his own decisions, including the decision to leave” and was “was aware of the danger and safety interventions” the facility wanted to put into place, but the resident declined them.  P. Ex. 5 (Taylor Decl. ¶¶ 4, 5).  But the dangers purportedly conveyed, as listed on the AMA form, were boilerplate, not specific to him, and, in one respect (damage to the fetus) were ridiculous.  Further, nothing in DON Taylor’s declaration or the medical record explains what the purportedly-offered “safety interventions” were.  Moreover, contrary to the facility’s policy, DON Taylor did not document her explanation of the benefits of remaining in the facility and did not document the date and time of the discharge, the mode of transportation, and by whom.  See P. Ex. 16 at 2. 

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The reappearance.  The facility’s maintenance supervisor reported that on Tuesday, August 9, 2022, at about 10:55 a.m., a “breaker” went out, so he went to the janitorial closet.  It was locked.  When he unlocked the closet, he saw a naked man sitting in a mop bucket.  He quickly ran to get a nurse.  CMS Ex. 28 at 78.  The nurse reported that R1 was sitting in the mop bucket.  He was naked and his feet were hanging out.  He was awake and verbal.  Staff returned the resident to his room and called 911.  CMS Ex. 28 at 82, 138.

At 11:00 a.m., a nurse assessed R1 and noted that his legs were “extremely swollen” below the knees.  He had a wound on the middle back of his spine (4 x 1.5 x 0) and one on his coccyx (7 x 4.5).  He had multiple other wounds, including bruising and scabs.  CMS Ex. 28 at 82, 138.

At 12:30 p.m., R1’s family arrived and took the resident to the hospital.  CMS Ex. 28 at 139.  When R1 arrived at the hospital emergency room, his heartbeat was fast – 114 beats per minute.  His knees were contracted to the right side of his body.  He was nonresponsive, so his mentation could not be assessed.  His diagnoses included altered mental status, Covid-19 dehydration, musculoskeletal pain, and an electrolyte imbalance.  CMS Ex. 28 at 1-2.  He was admitted to the hospital.  Id. at 4.

The facility’s substantial noncompliance.  Petitioner maintains that R1 voluntarily left the facility against medical advice, that the facility was powerless to prevent his leaving, and that, because they deemed him competent to make his own medical decisions, the facility had no further obligation to supervise him or otherwise keep him safe.

Putting aside the significant questions surrounding R1’s being deemed capable of making his own medical decisions (if, in fact, anyone, besides his family members – who adamantly insisted that he was not – even considered the question), Petitioner’s argument fails.  R1 was not “discharged against medical advice.”  He was unsupervised and was able to disappear without anyone knowing when he left (assuming he left), where he went, and with whom he might have gone.  Moreover, Petitioner misunderstands the facility’s obligation to protect competent residents who voluntarily leave the facility.

Citing the administrative law judge decision in Venetian Gardens, DAB CR1966 (2009), Petitioner argues that it is not liable for hazards that occur outside the facility.  P. Br. at 11.  In fact, Venetian Gardens was appealed, and, on appeal, the Departmental Appeals Board rejected the suggestion that a facility has no further responsibilities to a competent resident who “exercises his right to leave the facility and place himself in danger.”  Venetian Gardens, DAB No. 2286 at 20-21 (2009).  Quoting an earlier decision, the Board held that a facility must “‘take steps to protect residents from harm when they temporarily [leave] the facility’ by being aware of the circumstances of a resident’s departure.”  Venetian Gardens, DAB No. 2286 at 22, quoting Eastwood Convalescent

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Center, DAB No. 2088 (2007).  The Board saw such an obligation as “consistent with the goal of the [quality-of-care] provisions.”  Venetian Gardens, DAB No. 2286 at 22.

In Venetian Gardens, the Board also pointed out that a resident’s choice to leave a facility could be considered a refusal of the care and supervision that the facility might otherwise provide.  Id.  As with any situation in which a resident refuses care, the facility must ensure that the refusal is informed, attempt to address the cause of the refusal, and look for alternatives.  This includes assessing the potential consequences of the refusal and reasonable alternatives that would not violate resident rights.  Id.

The Board reiterated this position in Van Duyn Home and Hospital, DAB No. 2368 (2011), confirming that the facility must “fully assess” the particular risks of accidents and injuries a resident faces when leaving the facility, must plan and offer reasonable alternatives to minimize those risks, and must document that the resident, despite being informed of the risks, chose to refuse the care.  Id at 10.  The Board approved the notion that a facility should “impose ‘an escalating series of constraints and parameters’ to set safe conditions for resident absences.”  Id. at 7 (2011).  The question, then, is whether the evidence supports the conclusion that the facility took adequate steps to achieve such a balance.

Here, the undisputed evidence establishes that, at some unspecified time, R1 threatened to leave the facility because he “wanted a beer.”  Facility staff did not adequately supervise him while he remained at the facility.  After he disappeared, and they were unable to find him, DON Taylor filled out the AMA form, declaring that he discharged himself.  Such an after-the-fact justification does not satisfy the facility’s obligation to supervise the resident adequately and to ensure that he receives necessary care and services, as required by section 483.25(d).

The facility’s response to R1’s disappearance was deficient in another respect.  The facility did not report the disappearance to Adult Protective Services, as required by its own policy.  CMS Ex. 16 at 1.  The facility’s administrator and the DON maintained that they were not required to call Adult Protective Services because R1 was his own responsible party.  CMS Ex. 26 at 12, 14-16.  But the policy explicitly applies to residents who have “medical decision-making capacity.”  P. Ex. 16 at 1.  If such a resident requests a discharge against medical advice, the resident’s physician/advance practice provider, the facility administrator, the DON, and/or director of social services must determine the risk a discharge poses to the resident.  If they determine that the resident is high risk, the facility must contact Adult Protective Services.  Id.

Here, Petitioner does not claim that facility staff made the required determination, or even considered it, and no evidence suggests that they did so.  This was an individual who could not swallow safely; he could not feed himself; he could not take himself to the

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bathroom.  He had periods of incoherence and even delusions.  If he were not at high risk, facility staff were required to explain how that was possible.  They did not do so.

Thus, even accepting the facility’s justifications, the undisputed evidence establishes that it ignored its own policies for discharging a purportedly competent resident against medical advice.  This again put the facility out of substantial compliance with section 483.25(d).  Green Valley Healthcare and Rehab. Ctr., DAB No. 2947 at 19 (2019) (holding that 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 the residents’ highest practicable physical, mental, and psychosocial well-being); North Las Vegas Care Ctr., DAB No. 2946 at 6 (2019); Hanover Hills Health Care Ctr., DAB No. 2507 at 6 (2013).

September 9, 2022 Survey Findings.

4. CMS is entitled to summary judgment because the undisputed evidence establishes that facility staff did not adequately consult a resident’s physician regarding the resident’s alarming lab results, and the facility did not subsequently provide the resident with necessary care and services to combat his severe dehydration, which puts the facility out of substantial compliance with 42 C.F.R. §§ 483.10(g) and 483.25. 

Program requirement:  42 C.F.R. § 483.10(g)(14)(i)-(iv)(15).  Among other rights, a resident has a right to “communication with and access to persons and services inside and outside the facility.”  42 C.F.R. § 483.10(a).  Consistent with this right, section 483.10(g)(14) requires that the facility immediately inform the resident, consult the resident’s physician, and notify the resident representative(s) of (among other events):  a significant change in the resident’s physical, mental, or psychosocial status; or a need to alter treatment significantly.  The facility must ensure that “all pertinent information” is available and provided at the physician’s request.  See 42 CFR § 483.15(c)(1)(2).

If the facility fails to consult the resident’s physician immediately of a significant change in the resident’s status or a need to alter treatment, or, if it fails to implement the physician’s instructions, it is not ensuring that the resident receives the necessary care and services to allow the resident to attain or maintain the highest practicable physical, mental, and psychosocial well-being, which puts it out of substantial compliance with section 42 C.F.R. § 483.25.

Facility policy:  change in condition communication.  The facility had in place a written policy regarding communications between physicians and nursing staff.  Its stated purpose:  to promote optimal resident care, “provide nursing staff with guidelines for

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making decisions regarding appropriate and timely notification of medical staff regarding changes in a resident’s condition and provide guidance for the notification of . . . residents and their responsible party regarding changes in condition.”  CMS Ex. 35 at 1.

The policy requires a complete resident assessment, describing a list of factors, including the resident’s current physical condition, previous condition, mental status, vital signs, recent labs and x-ray results, medications, allergies, code status and other factors.  Nursing staff should complete an “SBAR,” which is a communication tool, describing situation, background, assessment, and recommendation.

Staff must notify the physician of a change in the resident’s medical condition.  In this regard, the policy refers to a “physician notification grid.”  Id.  Among other conditions, the grid includes instructions for advising the physician of a resident’s elevated BUN (blood urea nitrogen) test.  According to the grid, treatment is required within one hour if the resident’s BUN is elevated more than 50% above usual in someone on diuretics or who is at high risk for dehydration or if the resident’s BUN is greater than 60 mg/dl (unless that is a consistent level, and the physician is aware of it).  CMS Ex. 35 at 5.

The nurse must document, in the medical record, all assessments and changes in the resident’s condition.  CMS Ex. 35 at 1.

If the physician does not respond within an acceptable time frame, staff should notify the facility’s medical director and the DON.  The medical director then provides medical orders as necessary.  Id.

Staff must also notify the resident, the resident’s family member, or legal representative of any changes in the resident’s medical condition or treatment plan.  Id.  All attempts to notify the physicians and family members or legal representatives “will be thoroughly documented” in the medical record.  CMS Ex. 35 at 2.  (Emphasis added).

Resident CR# 1.  CR# 1 was a 68-year-old man, admitted to the facility on August 2, 2022, suffering from a long list of impairments, including streptococcal arthritis, hypertension, peripheral autonomic neuropathy, anxiety, bipolar disorder, episodic paroxysmal anxiety, metabolic encephalopathy, vascular dementia (decline in thinking skills caused by conditions that block or reduce blood flow to various regions of the brain), transient cerebral ischemic attack (stroke), diabetes, and depression.  CMS Ex. 33 at 1, 170-171, 192, 276, 283; CMS Ex. 42 at 3 (Pille Decl. ¶ 7).

According to an assessment, dated August 5, 2022, CR# 1 was usually understood but had difficulty communicating some words or finishing thoughts; he was usually able to understand others but would miss some part or intent of a message.  CMS Ex. 33 at 153.  Significantly, the resident was not able to complete a BIMS test.  He had memory

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problems and could not recall basic information:  the season, the location of his room, staff names and faces, or even that he was in a nursing home.  His decisions were poor; he required cues and supervision in order to make decisions regarding the tasks of daily life.  CMS Ex. 33 at 154, 155.

CR# 1’s functional status was severely limited.  He required extensive assistance for bed mobility, transfers, dressing, toilet use, and personal hygiene.  He required supervision or a one-person physical assist for eating.  CMS Ex. 33 at 159.  In moving from a seated to standing position or transferring from one surface to another, he was not steady and was able to stabilize only with staff assistance.  He did not walk but used a wheelchair.  CMS Ex. 33 at 160, 285.

He was incontinent and had an indwelling catheter.  CMS Ex. 33 at 168.

He took multiple medications:  three antipsychotics; three antianxiety medications; and two antidepressants.  CMS Ex. 33 at 180.

Lab tests.  On August 8, 2022, CR# 1’s nurse practitioner ordered a series of lab tests:  a complete blood count (CBC); a basic metabolic panel (BMP), which measures, among other items, the person’s blood urea nitrogen level (BUN); a thyroid-stimulating hormone test (TSH); a Lipid panel; an A1C test (measuring blood sugar levels over the last three months); a liver function test (LFT); a uric acid blood test (UA); and a chest x-ray.  CMS Ex. 31 at 6; CMS Ex. 33 at 270.

The following day, the ordered tests were performed.  Virtually all of the test results fell outside the reference ranges, and some were dangerously high:

• BUN - 64 (normal levels are 8-23).  BUN levels above 50 indicate impaired kidney function.  High BUN levels may also indicate dehydration.
• Creatinine - 4.70 (normal levels are 0.7-1.20).  Creatinine levels above 1.4 indicate that the kidneys are not working as normal.  Dehydration can raise creatinine levels. 
• Glucose - 212 (normal levels are 74-109), which is high.  Staying hydrated can help manage blood sugar levels. 
• Alkaline phosphatase - 213 (normal levels are 40-129).  High levels may indicate liver disease.
• Alanine transaminase (ALT) - 171 (normal levels are 0-41).  An ALT test result above 100 indicates severe liver disease.

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• Aspartate aminotransferase (AST) - 113 (normal levels are 0-40).  AST levels above 40 can indicate liver inflammation or damage to the heart, bones, or muscles.

CMS Ex. 31 at 6; CMS 33 at 122.

A note jotted at the bottom of the lab report is dated “8/9/22.”  It says, “NP notified” and is signed by LVN “K. Carter.”  Beneath her signature, she writes, “No new orders.  Push fluids.”  CMS Ex. 33 at 122.  LVN Carter, who was the facility’s Assistant Director of Nursing (ADON) did not specify what she conveyed to the nurse practitioner, nor did she indicate the time of the exchange.  This is the sole record entry describing ADON Carter’s communication with the nurse practitioner, and, as discussed below, the document was not incorporated into the resident’s medical record prior to the resident’s death.

Failure to consult adequately.  There is no dispute that ADON Carter did not text or fax the lab report itself to the nurse practitioner nor to CR# 1’s treating physician.  She told the surveyors that she did not and does not know why she failed to do so.  Again, ADON Carter does not deny making the statement nor claim that the statement is untrue.  CMS Ex. 31 at 8; see P. Ex. 7 (Carter Decl.).  See Beatrice State, DAB No. 2311 at 17, 18; Omni Manor, DAB No. 1920 at 11.

CMS faults the facility for not consulting the resident’s physician.  Although I agree with the physician (and CMS) that he should have been notified, if not consulted, and, as facility staff concede, he should have received a copy of the lab results, I accept that consulting a nurse practitioner can satisfy the consultation requirements of the regulation.

The nurse practitioner told surveyors that she had, in fact, ordered, IV fluids.  ADON Carter insists that she did not.  For purposes of summary judgment, I accept Petitioner’s assertion that the nurse practitioner directed the facility to “push fluids” but did not order IV fluids.

We do not know exactly what transpired between ADON Carter and the nurse practitioner because the ADON did not adequately document the conversation (contrary to the facility policy requiring that contacts be thoroughly documented).  Even during these proceedings, in her very abbreviated written declaration, the ADON does not explain what she told the nurse practitioner.  P. Ex. 7 (Carter Decl.); see CMS Ex. 35 at 1.  This puts the facility out of substantial compliance with section 483.10(g).  As the Departmental Appeals Board has explained, consultation “requires a dialogue with and a responsive directive” from the physician as to what actions are needed.  The facility “must provide the physician with all the information necessary to properly assess any changes to the resident’s condition and what course of action is necessary.  Failure to provide even one aspect of the change in a resident’s condition can significantly impact

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whether the physician has been properly consulted.”  River City Care Ctr., DAB No. 2627 at 8 (2015), citing Magnolia Estates, DAB No. 2228 at 8-9 (2009).

In River City, the communication between the facility and the physician was “in the form of a telephone order.”  Neither the order nor the nursing notes contained any documentation of the information provided to the physician or what discussion occurred about the resident’s condition.  The Board held that, even accepting the facility’s contention that telephone orders indicate communication, and even assuming that the content of such an order implies some awareness of the resident’s problems, the judge was not obliged to infer that the information communicated included all the necessary facts.  River City, DAB No. 2627 at 8.

Here, as in River City, the record contains no evidence that the facility communicated all necessary facts.  In fact, arguably, the record in River City included more details than the record in this case.  Because the facility has not come forward with evidence establishing that staff adequately consulted with the resident’s physician or nurse practitioner, it was not in substantial compliance with section 483.10(g).

Inadequate care and services.  Even if I considered the ADON’s contact with the nurse practitioner a sufficient consultation (which I do not), I could not find that the facility subsequently provided the resident with the care and services he required.  This finding, by itself, would justify the penalties.  As the Board has observed, the seriousness of the facility’s substantial noncompliance is based on the underlying facts, not on the number of regulations cited.  Edgemont Healthcare, DAB No. 2202 at 20 (2008).

The gravity of CR# 1’s condition is not in dispute.  He was severely dehydrated.  Both the nurse practitioner and the resident’s physician told the surveyors that.  The physician explained that CR# 1 had a urinary tract infection and was probably septic.  CMS Ex. 34 at 10.  Petitioner’s witness, Nick Pomonis, D.O. (who was an opinion witness and was not involved in treating the resident), also noted that CR# 1 had recurrent sepsis and does not dispute that he was severely dehydrated.  P. Ex. 6 at 3 (Pomonis Decl. ¶ 3).

Nor does anyone dispute that the resident needed to be rehydrated quickly.  In fact, CMS has come forward with evidence showing that “pushing fluids” was an inadequate response to CR# 1’s condition; he should have been administered IV fluids.  CMS Ex. 31 at 9-10; CMS Ex. 34 at 10.  CR# 1’s treating physician told surveyors that, had he been consulted (which he was not), he would have ordered in-patient IV fluids, where the physician could have monitored the resident’s progress daily.  “He said that the dehydration cycle would have to be interrupted, and, when residents have dementia and were severely dehydrated[,] they did not remember to drink.”  CMS Ex. 31 at 10.  Petitioner has produced no evidence indicating a dispute over any of this; it simply points out that the nurse practitioner did not order IV fluids.

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Even assuming that adequate rehydration could have been accomplished by pushing fluids, Petitioner has not come forward with any evidence showing that the facility did so.  In fact, those instructions were not conveyed to staff.  The facility’s DON conceded to surveyors (and did not subsequently deny in her written declaration) that neither the lab report nor the nurse practitioner’s instructions to push fluids found its way into CR#1’s medical record, and, contrary to the facility policy, no evidence suggests that those instructions were timely implemented.  CMS Ex. 31 at 10; see CMS Ex. 34 at 10 (nurse indicating that she never saw “push fluids” ordered and “was not aware of the actual order for fluids”); CMS Ex. 35 at 5 (requiring treatment within one hour if the resident’s BUN is greater than 60 mg/dl).

Except that the resident had his own personal cup that was filled with water and received water with his meal trays, Petitioner does not point to any actions that staff took to implement the nurse practitioner’s instructions.  CMS Ex. 31 at 8.  Such a passive response was not sufficient to meet the nurse practitioner’s order to push fluids and did not ensure that the resident received necessary care and services to allow him to attain the highest practicable physical well-being.  This puts the facility out of substantial compliance with section 483.25.

CR# 1’s death.  Progress notes indicate that at 2:34 a.m. on August 10, CR# 1 was lying in bed with his eyes closed.  His chest was rising and falling.  CMS Ex. 33 at 268, 269.  The next note indicates that, while making her rounds at 3:50 a.m., a nurse entered the resident’s room and found him “sitting on side of bed showing no signs of life, no pulse, O2 sat. or blood pressure.”  Staff began CPR and called 911, although the note does not indicate exactly when they placed the call.  Emergency Medical Services arrived, and CR# 1 was transferred to the hospital.  CMS Ex. 33 at 269.

The resident was dead when he arrived at the hospital early in the morning on August 10.  A hospital record, dated August 10, 2022, indicates that the resident was found cold and unresponsive in his room.  Staff attempted CPR for 45 minutes before the EMTs arrived (the hospital faults the facility for a delay in calling the EMTs).  The EMTs reported that, when they arrived, the resident’s pupils were fixed and dilated and partial rigor mortis was present.  The estimated time of death was 5:00 a.m.  CMS Ex. 33 at 8.

5. The undisputed evidence establishes that CMS’s determination that, for three days, the facility’s substantial noncompliance posed immediate jeopardy to resident health and safety is not clearly erroneous.

Immediate jeopardy exists if a facility’s noncompliance has caused or is likely to cause “serious injury, harm, impairment, or death to a resident.”  42 C.F.R. § 488.301.  CMS’s determination as to the level of a facility’s noncompliance (which would include an immediate jeopardy finding) must be upheld unless it is “clearly erroneous.”  42 C.F.R. § 498.60(c).  Once CMS presents evidence supporting a finding of substantial

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noncompliance, it need not offer evidence to support its immediate jeopardy determination.  The burden is on the facility to show that CMS’s determination is clearly erroneous.  Woodland Oaks Healthcare Facility, DAB No. 2355 at 17-18 (2010); Grace Healthcare of Benton, DAB No. 2189 at 13 (2008), citing Liberty Commons Nursing & Rehab Center- Johnston, DAB no. 2031 at 17-18 (2006), aff’d, Liberty Commons Nursing & Rehab Ctr. – Johnston v. Leavitt, 241 F. App’x 76 (4^th Cir. 2007).

The Board has observed repeatedly that the “clearly erroneous” standard imposes on facilities a “heavy burden” to show no immediate jeopardy and has sustained determinations of immediate jeopardy where CMS presented evidence “from which ‘[o]ne could reasonably conclude’ that immediate jeopardy exists.”  Florence Park Care Ctr., DAB No. 1931 at 27-28 (2004), citing Koester Pavilion, DAB No. 1750 (2000); Daughters of Miriam Center, DAB No. 2067 at 7, 9 (2007); see Yakima Valley School, DAB No. 2422 at 8 (2011) (holding that the “clearly erroneous” standard is highly deferential and “places a heavy burden on the facility to upset CMS’s finding regarding the level of noncompliance.”).

Relying on Appendix Q, a provision of the State Operations Manual, and naming – but not citing – an administrative law judge decision,¹⁷ Petitioner attempts to shift this burden.  Petitioner argues that to find “immediate jeopardy,” CMS must establish “a crisis situation.”  P. Br. at 2 (emphasis in original).  According to Petitioner, if the situation has not caused actual harm, it must have “a high potential to occur in the very near future.”  Id. (emphasis in original).

The Board has discouraged this kind of reliance on the State Operations Manual, pointing out that its provisions are “instructive,” but they are not binding.  Instead, we are bound by the regulatory definition of immediate jeopardy found in section 488.301.  Countryside Rehab. and Health Care, DAB No. 2853 at 25 (2018) (“The imminence of resident harm is not an element of the regulatory definition of immediate jeopardy”); Kindred, DAB No. 2792 at 20; Miss. Care Ctr. of Greenville, DAB No. 2450 at 15-16 (2012); Foxwood Springs Living Ctr., DAB No. 2294 at 9 (2009).  That definition “neither defines the term ‘likelihood’ nor sets any parameters as to the timing of potential harm.”  Miss. Care Ctr., DAB No. 2450 at 16 (quoting Agape Rehab. of Rock Hill, DAB

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No. 2411 at 19 (2011)).  Thus, the Board has concluded that a facility’s deficiencies may pose immediate jeopardy even though they do not create a “crisis situation.”  Miss. Care Ctr., DAB No. 2450 at 16.¹⁸

July 22, 2022 survey:  42 C.F.R. § 483.25(i) (Tag F695).  I reject Petitioner’s efforts to trivialize its significant deficiencies.  I have already explained why the facility was not in substantial compliance with section 483.25(i) when staff failed to assess the resident or to investigate why CR# 106’s ventilator alarm was sounding at 5:00 a.m. and why, for no apparent reason, it stopped sounding.  For someone who is ventilator-dependent, to be disconnected from her ventilator creates a likelihood of serious harm or even death.  She will not be able to breathe properly.  Therefore, the alarm must sound, and staff must respond immediately.  Failing to investigate the potential malfunction of a ventilator or its alarm puts the resident at significant risk and poses immediate jeopardy to resident health and safety.  See Dumas Nursing and Rehabilitation, DAB No. 2347 at 18-20 (2010); Bergen Regional Medical Center, DAB No. 1831 (2002).

Similarly, it is not “clearly erroneous” to conclude that the facility’s failure to follow-up on why CR# 106 had been prescribed a CPAP device was likely to cause her serious harm.  That she had been prescribed the device suggests that she suffered from a serious – even potentially fatal – sleep disorder.  In order to keep her safe, it was incumbent upon the facility to follow-up and to respond appropriately.

August 20, 2022 survey:  42 C.F.R. § 483.25(d) (Tag F689).  I have explained in some detail how vulnerable R1 was.  He could not swallow safely; he could not feed himself; he could not take himself to the bathroom.  He had significant periods of incoherence and delusions.  He had threatened to leave the facility.  Yet, he was not supervised and was able to disappear without staff having any idea how he left or where he went.  In light of the condition he was in when discovered, he suffered actual harm as a result of his disappearance.  In any event, determining that a facility’s failing to supervise such a vulnerable resident is likely to cause him serious injury is not clearly erroneous.

September 9, 2022 survey:  42 C.F.R. §§ 483.10(g) (Tag F580) and 483.25 (Tag F684).  I have described CR# 1’s fragile condition.  His lab test results were alarming, and he was severely dehydrated.  His lab results should have been conveyed to his treaters immediately and his condition fully explained; he needed rehydration.  Yet, the facility has not documented what information staff conveyed to the nurse practitioner.  I have accepted Petitioner’s assertion that the nurse practitioner did nor order IV fluids.  I also accept the undisputed statements from the nurse practitioner and CR# 1’s physician that the nurse practitioner should have ordered IV fluids.  Not conveying every aspect of

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the resident’s condition and then not immediately implementing the nurse practitioner’s instructions to push fluids was likely to (and probably did) cause serious injury.

The facility’s deficiencies were likely to cause serious harm to vulnerable facility residents.  Petitioner has thus not met its burden of establishing that CMS’s immediate jeopardy determination is clearly erroneous.

6. The penalties imposed – $23,989 per day for three days of immediate jeopardy and $245 per day for 50 days of substantial noncompliance that did not pose immediate jeopardy – are reasonable.

To determine whether a civil money penalty is reasonable, I apply the factors listed in 42 C.F.R. § 488.438(f):  (1) the facility’s history of noncompliance; (2) the facility’s financial condition; (3) 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 section 488.438(f) 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 Ctr., DAB No. 1848 at 21 (2002); Cmty. 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 Rehabilitation, DAB No. 2738 at 20 (2016).

Penalties are inflation-adjusted and change annually.  The amount is determined as of the date the penalty is assessed, in this case, January 11, 2023.  CMS Ex. 1; 87 Fed. Reg. 15100, 15111-15112 (Mar. 17, 2022).  For the three days of immediate jeopardy, CMS imposed a penalty of $23,989 per day, which is at the top of the penalty range for situations of immediate jeopardy ($7,317 to $23,989).  CMS imposed a penalty of $245 per day for the period of substantial noncompliance that did not pose immediate jeopardy, which is at the very low end of the range ($120 to $7,195).  42 C.F.R. §§ 488.408(e), 488.438; 45 C.F.R. § 102.3; 87 Fed. Reg. 215111-15112 (Mar. 17, 2022).

Except to argue that the facility was in substantial compliance so no penalties should be imposed, Petitioner has not argued that the amounts of the penalties are unreasonable.

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See P. Br. at 23-24.  In the absence of any argument, I may summarily affirm the amounts of the penalties.  In any event, considering the relevant factors, these amounts are reasonable.

CMS presents no evidence of the facility’s compliance history prior to the July 20, 2022 survey.

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

Even when the immediate jeopardy was removed, the facility did not correct its substantial noncompliance.  Given the number and seriousness of the deficiencies, including LSC, the extremely-low $245 per day penalty is more than justified.

With respect to the immediate jeopardy penalties, I have detailed the facility’s significant failures, which endangered the health and safety of vulnerable residents:

• Staff did not assess whether and why a new resident had been prescribed a CPAP device, which is used to treat serious sleep disorders.  The facility is culpable for this failure.
• Staff did not investigate a ventilator alarm’s apparent malfunction and did not assess the resident after the alarm sounded.  For this, the facility is culpable.
• Staff did not properly supervise a seriously impaired resident, who disappeared from the facility and was missing for five days.  When he reappeared, he had suffered multiple wounds, extremely swollen legs, contractions in his knees, and an altered mental state.  The facility is culpable for failing to supervise the resident.
• Facility staff did not adequately convey to his treating physician/nurse practitioner a fragile resident’s condition.  Although he required immediate rehydration, staff did not implement the nurse practitioner’s instructions to push fluids.  For these failures, the facility is again culpable.

Because staff did not provide its residents with the care they required, I find reasonable the $23,989 per day penalty for the days of immediate jeopardy.

Page 40

Conclusion

I grant CMS’s motion for summary judgment.

The undisputed evidence establishes that, from July 20 through September 10, 2022, the facility was not in substantial compliance with Medicare program requirements.  On three of those days – July 20, September 7, and September 8 – its deficiencies posed immediate jeopardy to resident health and safety.

The penalties imposed are reasonable.

Endotes

¹   CMS’s January 11, 2023 notice letter puts the “combined per day civil money penalty” at $54,741.05.  CMS Ex. 1 at 2.  This is obviously incorrect.  Both parties correctly list the per-day penalties and the subtotals.  See CMS Br. at 3-4; P. Br. at 23.

²  Notwithstanding its objection, Petitioner cites the surveyor notes to support one of its arguments.  See P. Response at 8.

³  Deciding a case on summary judgment (or based on the written record) does not mean that it is decided without a hearing, and, in applying the principles of summary judgment to administrative proceedings, courts have been careful to avoid any suggestion that the case is decided without a hearing.  Throughout their decisions, they refer to deciding the case without an “oral hearing” or without an “evidentiary hearing.”  Although a case may be decided on summary judgment (or based on the written record), an administrative law judge, by considering the evidence and applying the law, has granted the petitioner a hearing, as required by sections 205(b) and 1866(h) of the Act.  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  My findings of fact/conclusions of law are set forth, in italics and bold, in the discussion captions of this decision.

⁵  For the July 22 survey, the parties instead focused their attention on the deficiency cited at the immediate jeopardy level:  42 C.F.R. § 483.25(i).

⁶  A low-pressure alarm indicates that the pressure in the ventilator circuit has dropped, usually because of a leak or disconnect.  A high-pressure alarm sounds when the pressure in the circuit increases, which can be caused by secretions, water, or kinks in the tubing.

⁷  The surveyors quoted the physician’s note.  Petitioner did not produce the underlying document but did not challenge the accuracy of CMS’s evidence.  See Windsor, DAB No. 1902.

⁸  As is evident throughout this decision, inadequate documentation was an ongoing problem at the facility and makes it difficult to determine exactly what was going on.  (Nor do Petitioner’s witnesses fill in the missing information).  CMS, however, has not cited the facility for failing to maintain complete medical records.  42 C.F.R. § 483.70(i).  Nevertheless, the facility may not profit from its own shortcomings, and its inadequate documentation is further evidence of substantial noncompliance with the requirements that CMS cited.

⁹  Staff did not document the alarm’s sounding “all night.”

¹⁰  Certainly, the alarm not sounding when the ventilator was disconnected suggests that the alarm was not working properly.  But this case may be resolved without my making that finding.

¹¹  Although the statement is poorly written, I find that its meaning is consistent with the record evidence.  If Petitioner wished to establish a different interpretation, it could have called LVN C as a witness, but it did not do so.  Further, because LVN C is not available, an in-person hearing would not resolve any arguable ambiguity and would serve no purpose.  See Fal-Meridian, 604 F.3d at 449 (holding that summary judgment should be granted when no issues “would benefit from being resolved in an evidentiary hearing.”).

¹²  Rhabdomyolysis is a serious medical condition in which muscle tissue breaks down and releases damaging protein into the blood.  It is often caused by direct traumatic injury but can also be the result of drugs, toxins, infections, muscle ischemia, electrolyte and metabolic disorders, genetic disorders, or other causes. https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4365849/#:~:text=Although%20rhabdomyolysis%20is%20most%20often,as%20neuroleptic%20malignant%20syndrome%20(NMS).

¹³  Chlordiazepoxide is used to relieve anxiety and to control agitation caused by alcohol withdrawal.  https://www.ncbi.nlm.nih.gov/books/NBK547659.

¹⁴  Although the assessment did not include all of the information required by the regulation, CMS has not alleged that the facility violated 42 C.F.R. § 483.20 (requiring that the assessment be comprehensive).

¹⁵  If this constituted R1’s request for discharge, staff were supposed to “immediately” notify the resident’s physician/advance practice provider, and, with the administrator, DON, and/or social services director, determine the risk presented by his departure. P. Ex. 16 at 1.  See Magnolia Estates Skilled Care, DAB No. 2228 at 8 (2009) (finding that “immediately means “without any intervening interval of time”); Rolling Hills Rehab. Center, DAB No. 2119 at 9-10 (2007).

¹⁶  The record does not suggest that anyone from the facility contacted the police.  CMS Ex. 28 at 83, 139 (indicating that the family reported the resident missing); see CMS Ex. 28 at 140 (“Beaumont police department was notified”).

¹⁷  Petitioner names, without citation, “Columbus Nursing and Rehabilitation Center v. CMS.”  A case called Columbus Nursing and Rehabilitation Center can be found at DAB CR2574 (2012).  However, an ALJ’s decision has no precedential value.  Shaun Thaxter, DAB No. 3053 at 29 (2021); Monique Barbour, M.D., DAB No.2958 at 16 (2019); Bibb Medical Ctr. Nursing Home, DAB No. 2457 at 7 (2012).  Moreover, inasmuch as the Board has directly addressed the issue, including the significance of Appendix Q, it serves no purpose to consider an ALJ decision, which may or may not accord with the Board’s decisions. 

¹⁸  This approach comports with the Supreme Court’s comments as to the value of sub-regulatory guidance.  See Azar v. Allina Health Servs., 139 S. Ct. 1804 (2019).