Berkshire Place Nursing & Rehabilitation Center, DAB CR6453 (2024)

DECISION

I enter summary judgment in favor of the Centers for Medicare & Medicaid Services (CMS) and against Petitioner, Berkshire Place Nursing & Rehabilitation Center, a skilled nursing facility.  I sustain the remedy imposed against Petitioner by CMS, civil money penalties of $9,900 for each day of a period that began on July 3, 2020, and that ended on July 8, 2020.¹

I. Background

This case originally was assigned to another administrative law judge.  It was very recently reassigned to me.

CMS moved for summary judgment.  Petitioner opposed CMS’s motion and cross-moved for summary judgment.  Both CMS and Petitioner contend that the undisputed material

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facts support their motions.  In support of its motion CMS filed a brief and 11 exhibits, identified as CMS Ex. 1 – CMS Ex. 11.  Petitioner filed a brief and 16 exhibits, identified as P. Ex. 1 – P. Ex. 16.  It also offered several exhibits as attachments to its hearing request.  I find it unnecessary to rule on the admissibility of the parties’ exhibits because I enter summary judgment based on undisputed facts.  In this decision I cite to some of the parties’ exhibits to illustrate undisputed facts or to address a party’s contention.

II. Issues, Findings of Fact and Conclusions of Law

1. Issues

The issues are whether undisputed facts establish that Petitioner failed to comply substantially with a Medicare participation requirement, whether noncompliance put residents of Petitioner’s facility at immediate jeopardy, and whether CMS’s remedy determination is reasonable.

2. Findings of Fact and Conclusions of Law

I apply the principles of Rule 56 of the Federal Rules of Civil Procedure in deciding whether to grant summary judgment.  I base my decision on facts that are undisputed.  I make no fact finding that requires a credibility determination.  I find no impediment to deciding a case if resolving a fact dispute in favor of one party or the other would make no difference to the outcome.  Where reasonable inferences may be made from the undisputed facts, I make those inferences that are favorable to the party against whom the motion for summary judgment is filed.  Madison Cty. Nursing Home, DAB No. 2895 (2018).  However, I do not find fact disputes based on bald and unsupported allegations of fact.  Id.

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

There is no such issue in this case.  As I discuss below, undisputed facts unequivocally establish Petitioner’s noncompliance and its severity.  Undisputed facts establish also that CMS’s remedy determination is reasonable.

1. Noncompliance

CMS alleges that Petitioner failed to comply substantially with a subsection of 42 C.F.R. § 483.24, a regulation governing the quality of life that a skilled nursing facility must provide to its residents.  The regulation establishes an overall requirement that a skilled nursing facility must provide its residents with care and services that promote their

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highest possible physical, mental, and psychosocial well-being.  The subsection at issue addresses the performance of cardiopulmonary resuscitation (CPR) on an unresponsive resident:

Personnel provide basic life support, including CPR, to a resident requiring such emergency care prior to the arrival of emergency medical personnel and subject to related physician orders and the resident's advance directives.

42 C.F.R. § 483.24(a)(3).

This subsection imposes a duty on a skilled nursing facility to attempt resuscitation of any resident who has asked for it if he or she becomes unresponsive.  Green Valley Healthcare & Rehab. Ctr., DAB No. 2947 at 7 (2019); North Las Vegas Care Ctr., DAB No. 2946 at 6 (2019).  There are few, and highly limited, exceptions to this general requirement.  The American Heart Association (“AHA”) has provided guidance about when CPR must be performed.  In guidelines published in 2015, the AHA states that withholding CPR from an unresponsive individual is only appropriate where attempts to perform CPR would place a rescuer at risk of serious injury or mortal peril, there are obvious clinical signs of irreversible death (i.e., rigor mortis, dependent lividity, decapitation, transection, or decomposition), or where the individual has declared that he or she does not desire to be resuscitated.  CMS Ex. 7 at 5-6.

CMS asserts that a resident, identified as Resident ID # 4 (“R4”), had an advance directive that required that Petitioner’s staff administer CPR.  However, staff failed to do so on April 23, 2020, when the resident became unresponsive, thereby violating regulatory requirements.

Petitioner argues that administration of CPR would have been futile because the resident plainly had expired.  Furthermore, according to Petitioner, attempts by its staff to resuscitate R4 would have placed them at risk of serious injury or mortal peril, because R4 was infected with the Covid-19 (“Covid”) virus, and resuscitation attempts would have distributed the virus and possibly infected staff and other residents of Petitioner’s facility.

I find that the undisputed facts establish that Petitioner’s staff failed to comply with R4’s expressed desire to be resuscitated.  There was a period of about 45 minutes on April 23, 2020, after staff discovered the resident to be unresponsive, during which the staff made no effort to resuscitate him.  I find also that the resident’s infectious state did not justify the staff’s failure to attempt resuscitation.  Staff was on notice that it could perform CPR on a Covid-positive resident by using techniques and equipment intended to allow CPR and to protect rescuers.  That Petitioner and its staff may have been unprepared to do so provides it with no defense.

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Petitioner’s policy requires its staff to determine, on admission, whether a resident desires resuscitation if he or she becomes unresponsive.  CMS Ex. 4 at 4.  The policy contains nothing defining the circumstances when staff might refrain from attempting to resuscitate a nonresponsive resident who has expressed a desire to be resuscitated.  Id. Petitioner implements this policy by requesting a newly admitted resident or his or her representative to complete an “advance directive” form on which the resident selects his or her advance directive status in case of a medical emergency or for end of life care.  CMS Ex. 3 at 3.  The advanced directive – a form bearing Petitioner’s letterhead – states that for any resident who is identified as “Full Code”:  “[a]ll life support and resuscitation efforts will be utilized by the staff of the facility until rescue personnel (911 medical emergency) arrive and take over care and/or resuscitation efforts (this may include defibrillation, IV’s, hospitalization and mechanical ventilation.)”  Id.

I interpret this form as a pledge by Petitioner to its residents whose code status is “Full Code,” that Petitioner’s staff will perform CPR and administer other life-saving techniques in the event they become unresponsive.  That pledge puts the onus on Petitioner to justify any failure by its staff to provide such care.

Petitioner’s staff knew that R4 desired resuscitation if he became unresponsive.  It is undisputed that R4 and/or his representative executed Petitioner’s advance directive form, stating that he was “Full Code.”  CMS Ex. 3 at 3.  It is also undisputed that R4 had a physician’s order in his record that identified the resident as “Full Code.”  Id. at 4-7. Moreover, R4’s care plan, a document prepared by Petitioner’s staff, identified him as “Full Code.”  Id. at 12.

It is equally undisputed that Petitioner’s staff failed to make any effort to resuscitate R4 when he was found to be unresponsive on the morning of April 23, 2020.

R4 had multiple illnesses and impairments.  At about 10:30 on the morning of April 23, 2020, Petitioner’s staff received notification that the resident had tested positive for infection by the Covid virus.  CMS Ex. 3 at 18.

Staff observed R4 on several occasions on the morning of April 23.  At 7:45 a.m., staff observed the resident to be alert and showing no signs of respiratory distress.  Petitioner’s hearing request, Ex. C at 5 (document page counter).  Staff observed the resident in his room between 9 and 9:30 a.m., between 9:30 and 10 a.m., between 10 and 10:30 a.m., between 10:30 and 11 a.m., and between 11 and 11:30 a.m.  CMS Ex. 3 at 20.  The resident was responsive during each of these observations.  See Petitioner’s hearing request.

Around 11:45 a.m., a member of Petitioner’s staff found R4 to be unresponsive.  That staff member immediately made a “stat” call, informing staff of the resident’s status.  Petitioner’s hearing request, Ex. C at 5.

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No attention was given to R4 for at least 20 minutes after the staff member made the “stat” call.  Petitioner’s director of nursing donned personal protective equipment (“PPE”) before entering R4’s room.²  She did not enter the room until between 12:05 and 12:10 p.m. on the morning of April 23.  Petitioner’s hearing request, Ex. C at 6.  No staff member attended to R4 or attempted to resuscitate him during the time between the first observation that the resident was unresponsive and the director of nursing’s entry into the resident’s room.  P. Br. at 20.

Staff made no attempt to resuscitate R4 after the director of nursing had appeared, and she did not order her staff to attempt resuscitation.  The director of nursing assessed R4 and found that the resident was not breathing, showed no pulse, and was cold to the touch.  Petitioner’s hearing request, Ex. C at 6.  Petitioner’s medical director called the director of nursing at some point during this assessment.  The medical director advised the director of nursing that emergency medical services had arrived at the front door of Petitioner’s facility but were refusing to enter the building or to take R4.  Id.  The emergency medical service personnel arrived at Petitioner’s facility at about 12:30 p.m. and averred that the local hospital’s emergency department had declined to accept R4 because of his unresponsive status.  Id.; Petitioner’s brief at 9.

Petitioner’s medical director and director of nursing declared R4 to be dead at 12:30 p.m. on April 23, 2020.  Petitioner’s hearing request, Ex. C at 6.

These facts establish failure by Petitioner and its staff to honor the pledge that it had made to R4 to use all resuscitation and life support efforts pending the arrival of emergency medical services to Petitioner’s facility.  The refusal by emergency medical service personnel to provide care to R4 or to transport him to a local hospital and that hospital’s refusal to accept him do not justify or excuse the staff’s failure to attempt resuscitation during the period before the personnel arrived.  About 45 minutes transpired between staff’s discovery of R4 in an unresponsive state and the arrival of the emergency medical services personnel, a period during which staff made no attempt to resuscitate R4.

Petitioner cannot justify withholding CPR on the ground that performing CPR would have been futile.  At no time after 11:45 a.m. on April 23, when the resident was found in an unresponsive state, did he display the signs of irreversible death identified by the AHA as justification for not performing CPR.  Even if it was arguably futile to attempt CPR at 12:30 p.m., when the medical director and director of nursing declared R4 to be dead, that does not excuse Petitioner’s staff’s failure to do anything during the 45 preceding minutes.

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Petitioner’s contention that performing CPR would have put staff at risk of serious injury or in mortal peril due to R4’s infection with the Covid virus fails as well.

Petitioner’s premise is that the Covid infection was a game changer and that what might have been possible prior to the infection became impossible once the virus invaded Petitioner’s premises.  It contends that it is indisputable that performing CPR on R4 would have exposed the rescuer, as well as Petitioner’s entire resident population and staff, to the Covid virus, resulting in risk of serious injury and mortal peril.  Petitioner’s brief at 12.

In fact, there are professionally recognized techniques that enable performance of CPR on Covid-infected individuals.  On April 9, 2020, the AHA published guidance on its website to address that issue.  CMS Ex. 6 at 26-36; P. Ex. 1.  The AHA advised that if a health care provider encountered an unresponsive adult who was suspected of being infected with the Covid virus, or who was infected, the provider should don PPE, limit the personnel in the room, activate the emergency response system, assess the individual’s breathing and pulse, and if no breathing or pulse is found, begin CPR by using a bag-mask device with a filter and a tight seal.  Id. at 29; P. Ex. 1 at 4.  The AHA acknowledged that an individual’s age, comorbidities, and the seriousness of his or her infection might influence a decision to perform CPR if that individual became unresponsive.  But these issues should be addressed in planning the individual’s care and should be incorporated into a facility’s policies and procedures.  Id. at 27-28; P. Ex. 1 at 2-3.

The AHA guidance appeared on its website two weeks prior to R4’s demise.  Petitioner had ample time to adjust its CPR policy in accordance with AHA guidance.  It failed to do so.  There is nothing to suggest that it addressed the issue of whether, and how, it should perform CPR on Covid-infected residents who became unresponsive.  There is likewise nothing to show that Petitioner made certain that it had the necessary equipment – a bag-mask device with a filter and tight seal – that would enable its staff to perform CPR in relative safety.  Indeed, Petitioner concedes that it did not have such equipment.  Petitioner’s brief at 15; P. Ex. 15 at 9.

Petitioner asserts that the AHA guidance was not published in print form until June 2020.  But that offers Petitioner no excuse for failing to be aware of it.  Petitioner’s management and staff should have anticipated the need to perform CPR on Covid-infected residents and should have been aware of any guidance that AHA published online.

Petitioner argues that the Covid pandemic placed unique stresses on its operation.  I have no doubt that is true.  In skilled nursing facilities Covid is an especially devastating illness with a very high mortality rate.  However, the terrible effects of Covid on a resident population didn’t excuse Petitioner from protecting its residents.  To the contrary,

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Petitioner should have acted with extra urgency to protect its residents to the extent possible.  With 200 residents, many of whom were ill with Covid in April 2020, Petitioner should have been absolutely prepared for the likelihood that residents infected with the virus would become unresponsive.  It should have planned for that eventuality and should have made policy determinations about how and when it would employ CPR with such residents.  It should have advised its residents and their families of its decisions.  And it should have made all possible efforts to acquire the equipment that would enable its staff to perform CPR in relatively safe conditions.  There is nothing in the record to show that Petitioner did any of that.

Petitioner argues that in the spring of 2020 it was confronted with constantly changing guidance about how to deal with Covid.  Petitioner’s brief at 2.  From this assertion it seems to contend that it was difficult, if not impossible, for it to establish a coherent policy addressing Covid patients.  Id. at 6.  This argument is unpersuasive.  Petitioner hasn’t identified any guidance that conflicts with the AHA April 9, 2020, guidance.  That guidance was not vague or ambiguous.  Petitioner has not established that there existed any impediment to its implementation of that guidance.

2. Immediate Jeopardy

CMS determined that Petitioner’s noncompliance with the requirements of 42 C.F.R.  § 483.24(a)(3) was so egregious as to comprise immediate jeopardy for residents of Petitioner’s facility.  Regulations define immediate jeopardy as noncompliance that causes, or is likely to cause, a resident or residents of a facility to experience serious injury, harm, impairment, or death. 42 C.F.R. § 488.301.

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

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

I do not find anything in the record that could lead me to conclude that CMS’s determination of immediate jeopardy level noncompliance is clearly erroneous.  To the contrary, the undisputed facts lead inexorably to the conclusion that Petitioner’s noncompliance put residents at immediate jeopardy. 

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Petitioner acknowledges that in April 2020 Covid was running rampant in Petitioner’s facility.  It states that in April and May 2020 the impact of the pandemic at Petitioner’s facility was particularly intense.  Petitioner’s brief at 6.  Eventually, nearly every member of Petitioner’s staff and nearly every resident became infected.  Id.; P. Ex. 12 at 1.

But the intensity of the pandemic provided Petitioner with no excuse for its failure to plan for administration of CPR to unresponsive Covid-stricken residents.  To the contrary, the very intensity of the pandemic coupled with the terrible toll that it took on aged and infirm residents should have spurred Petitioner and its staff to take urgent measures to develop and implement a CPR policy that protected residents to the maximum possible extent.  I find that the failure to do so led to indecision whether to perform CPR on R4 on April 23, 2020, and the resulting failure to implement CPR.  The absence of a coherent policy, the failure to plan for possible implementation of CPR, and the failure to act in R4’s case created a likelihood that every resident of Petitioner’s facility would be seriously injured, harmed, or expire if he or she became unresponsive while infected.

Petitioner argues that CMS’s determination of immediate jeopardy is clearly erroneous because it bases that determination on an erroneous conclusion that Petitioner had an unwritten policy to not administer CPR to unresponsive residents who were infected with the Covid virus.  Petitioner’s brief at 19.  There is a fact dispute whether Petitioner had such a policy; however, it is not relevant to my decision, and I make no finding whether that was the case.  However, and as I have explained, the undisputed absence of any policy addressing when and how to apply CPR to residents with Covid, coupled with the failure by Petitioner to implement AHA guidance, was as deleterious to the safety of residents as any unwritten policy not to apply CPR would have been.

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3. Remedy

The remedy that CMS determined to impose – civil money penalties of $9,900 for each day of a period that began on July 3, 2020, and that ended on July 8, 2020 – falls within the permissible range of penalties that may be imposed to remedy immediate jeopardy level noncompliance.  42 C.F.R. § 488.438(a)(1); 45 C.F.R. Part 102.  Petitioner has not challenged either the penalty amount or the duration of penalties except to argue that it was not deficient and that therefore, no basis existed to impose remedies against it.  I sustain CMS’s remedy determination based on the undisputed facts establishing immediate jeopardy level noncompliance and because the penalty amount falls within the permissible range.

Endnotes

¹  CMS imposed an additional remedy against Petitioner, a two-year prohibition against Petitioner conducting a nurse aide training and competency evaluation program, effective July 9, 2020, through July 8, 2022.  That period has long since expired.

²  It takes three to five minutes for staff to don PPE.  P. Ex. 15 at 9.  Therefore, the amount of time that it took the director of nursing to don PPE does not explain the at least 20 minute delay before she entered R4’s room.