Generations at Riverview , DAB CR6454 (2024)

DECISION 

Following complaint investigation surveys completed on November 10, 2020 and December 18, 2020, by the Illinois Department of Public Health (IDPH), the Centers for Medicare & Medicaid Services (CMS) determined that Petitioner, Generations at Riverview, was not in substantial compliance with several Medicare participation requirements.  CMS imposed a per-day civil money penalty (CMP) of $1,410 against Petitioner from November 4, 2020 continuing through December 6, 2020, for a total of $46,530. 

Petitioner filed an initial appeal, which was docketed before me under C-21-959.  CMS subsequently issued revised initial determinations, and Petitioner then filed another appeal, which was docketed before me under C-22-229.  In the interest of judicial economy, I consolidated the two cases under C-22-229, dismissing C-21-959.  CMS filed a partial motion to dismiss in C-21-959, and, following consolidation, filed another partial motion to dismiss in C-22-229. 

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For the reasons set forth below, I grant CMS’s partial motion to dismiss.  Furthermore, I find that Petitioner was not in substantial compliance with three Medicare requirements, and CMS’s imposed CMP is reasonable.  

I.     Background and Procedural History

Petitioner is a skilled nursing facility (SNF) located in East Peoria, Illinois.  CMS Exhibit (Ex.) 1 at 1; Joint Stipulation of Undisputed Facts (Jt. Stip.) at 1.  Based on a complaint it received, the IDPH conducted an investigation survey of Petitioner’s facility that ended on November 10, 2020.  The survey also included a COVID-19 Focused Infection Control Survey.  CMS Ex. 1 at 1; CMS Ex. 5 at 1; CMS Exs. 11, 12, 19.¹ 

Based on the November 10, 2020 survey, the IDPH found that Petitioner was not in substantial compliance with three Medicare requirements:  

1.  42 C.F.R. § 483.25(b)(1) (Tag F686), Scope and severity (S/S) level G (an isolated deficiency that involves actual harm but does not pose immediate jeopardy to resident health or safety)
2.  42 C.F.R. § 483.25(g)(1) (Tag F692),  S/S level E (pattern of deficiencies that causes no actual harm but has the potential for more than minimal harm that does not amount to immediate jeopardy)
3.  42 C.F.R. § 483.10(g)(14) (Tag F580), S/S level D (an isolated deficiency that does not cause actual harm but has the potential for more than minimal harm that does not amount to immediate jeopardy)

CMS Ex. 1. 

Based on these findings, CMS issued an initial determination dated May 25, 2021.  CMS Ex. 5.  CMS determined that Petitioner was not in substantial compliance, noting the most serious deficiency was cited at S/S level G for Tag F686.  CMS Ex. 5 at 1.  The May 25th notice imposed a federal civil money penalty (CMP) of $1,410 per day for a total of 33 days, beginning November 4, 2020 through December 6, 2020, totaling  $46,530.  CMS Ex. 5 at 2.  CMS also notified Petitioner that it is subject to a Nurse Aide

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Training and Competency Evaluation Program (NATCEP) prohibition for two years because the CMP amounted to $11,160 or more.  CMS Ex. 5 at 3-4. CMS later issued two notices of Amended Disposition of Remedies, the first dated October 8, 2021, and the second dated November 3, 2021.  CMS Ex. 6; CMS Ex. 7.  The October 8th notice amended the CMP imposed, increasing the duration to 44 days from 33 days for a total of $62,040, based on the date of compliance being changed by the IDPH from December 6, 2020 to December 18, 2020.  CMS Ex. 6 at 1.  The November 3rd notice amended the previous October 8th notice.  The November notice changed the duration of the CMP back to 33 days, for a total of $46,530, based on the IDPH changing Petitioner’s date of compliance to December 7, 2020, after additional review by CMS.  CMS Ex. 7 at 1. 

Petitioner initially filed a hearing request on July 23, 2021 based on the May 25, 2021 notice.  That case was docketed under C-21-959 and assigned to me.  On January 3, 2022, Petitioner filed another hearing request to appeal CMS’s revised November 3, 2021 notice.  That case was also assigned to me and docketed under C-22-229.  On January 10, 2022, I issued an Acknowledgment and Consolidation Order, in which I dismissed C-21-959 and consolidated both cases under C-22-229, as well as reissued my Standing Prehearing Order (SPO). 

On February 9, 2022, CMS filed a partial motion to dismiss, as well as three exhibits labeled CMS Exs. A, B, and C.²  CMS then filed its prehearing exchange on April 11, 2022 in accordance with my SPO.  CMS included its prehearing brief (CMS Br.), along with twenty-eight exhibits (CMS Ex. 1-28).  One of CMS’s exhibits is the direct testimony of its one listed witness. 

Petitioner filed a prehearing exchange consisting of a prehearing brief (P. Br.), sixteen exhibits (P. Exs. 1-16), and objections to a number of CMS’s proposed exhibits. 

CMS filed a response to Petitioner’s evidentiary objections, as well as a reply brief (CMS Reply). 

Lastly, the parties filed a joint statement of issues, joint stipulation of undisputed facts, and a joint settlement status report.  

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A. Evidentiary Objections

Petitioner objected to CMS Exs. 1, 8, 11, and 20 ³ on the basis of hearsay, and CMS Ex. 12 on both hearsay and relevancy grounds.  While they can be used as guidance, the Federal Rules of Evidence do not govern these proceedings.  See 42 C.F.R. § 498.61 (“[e]vidence may be received at the hearing even though inadmissible under the rules of evidence applicable to court procedure.”).  The regulations that govern these proceedings state that an Administrative Law Judge (ALJ) “inquires fully into all of the matters at issue, and receives in evidence . . . any documents that are relevant and material.”  42 C.F.R. § 498.60(b)(1). 

CMS Exs. 1 and 8 are both statements of deficiencies (SODs), which, generally speaking, set out the survey findings that CMS bases its enforcement actions on.  The Departmental Appeals Board (Board) has previously ruled that SODs are “unquestionably relevant and material evidence.”  Avalon Place Trinity, DAB No. 2819 at 38 (2017).  CMS Ex. 1 is the SOD for the November 10, 2020 survey, and CMS Ex. 8 is the SOD for the December 18, 2020 survey, which was previously part of the same survey cycle, and later separated into a separate survey cycle.  Petitioner has appealed the alleged deficiencies cited in the November 10, 2020 survey, and although the December 18, 2020 survey is not before me, it is nevertheless included as part of the procedural history.  Thus, CMS Exs. 1 and 8 are relevant and material.  

CMS Ex. 11 is a complaint intake document containing the details of a complaint, and CMS Ex. 12 is a complaint/incident investigation report.  Both documents are hotline phone call records of complaints made to the IDPH, which contain multiple allegations of improper care by Petitioner.  Petitioner objects to CMS Ex. 11 on the basis of hearsay, and CMS Ex. 12 on both hearsay and relevancy grounds.  As previously noted, hearsay is not grounds to exclude an exhibit in this administrative proceeding, and the weight I assign such evidence may vary accordingly.  Additionally, as testified by CMS’s witness, Elizabeth Boyer, the complaint documented in these records resulted in the November 10, 2020 complaint investigation survey.  CMS Ex. 21 at 2-3.  As such, they are relevant. 

CMS Ex. 20 comprises Surveyor Boyer’s survey notes.  Petitioner objected to this exhibit on the basis of hearsay, and that “[t]here is no guarantee of accuracy as these interviews and documents are not transcribed word for word.”  Petitioner’s Objections at 2.  Again, in this administrative hearing, hearsay is not grounds to exclude an exhibit, and Surveyor Boyer’s survey notes are relevant and material to the survey forming the basis of the citations.  Therefore, the survey notes are admissible.  Any contended inaccuracies within the survey notes will be considered in light of the total evidence in the record.

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I overrule Petitioner’s objections to the aforementioned exhibits.  CMS did not file any objections to Petitioner’s proposed exhibits.  I admit CMS Exs. 1-28, and P. Exs. 1-16 to the record.

B. Ruling on CMS’s Partial Motion to Dismiss

In its January 3, 2022 request for hearing, Petitioner states it “is contesting the imposition outlined in the November 3, 2021 letter.”  Petitioner states further that it contests “the IDPH notice, the CMS Notice of Imposition, the Statement of Deficiencies issued to the Facility, as well as any other penalty that shall arise from this survey.”  Jan. 3, 2022 Request for Hearing at 1.  Petitioner also requested that CMS refrain from using the disputed citations proposed to calculate the facility’s 5 Star Quality Rating on CMS’s Nursing Home Compare website until an ALJ issued a decision in the matter.  Id. 

In its partial motion to dismiss, CMS moved to partially dismiss Petitioner’s appeal under 42 C.F.R. § 498.70(b).  CMS argues that Petitioner’s appeal should be dismissed as to: 

1.  the various CMS actions pursuant to statute, regulation, and policy that are not remedies, including CMS’ recalculation of Petitioner’s Star Rating and the posting of Petitioner’s deficiencies on Nursing Home Compare;
2.  CMS’ May 25, 2021 imposition of remedies letter, referenced by Petitioner as “IDPH Notice”;
3.  the scope and severity level of the imposed deficiencies; and
4. the selection of remedies.  

CMS partial motion to dismiss (CMS Mot.) at 4.  CMS contends that none of these actions are appealable under 42 C.F.R. § 498.3.  Id.  CMS argues that “neither a reduction in Star Rating nor the posting of deficiencies to CMS’ Nursing Home Compare website or availability elsewhere nor any of the other actions are enumerated enforcement remedies under 42 C.F.R. § 488.406.”  Id.  CMS cites 42 C.F.R. §§ 488.406 and 498.3, as well as Generations at Regency Center, DAB No. 2950 (2019), in support of its argument.  Id at 4-5.  Petitioner did not respond to CMS’s partial motion to dismiss when CMS refiled it in the consolidated docket C-22-229.  

Petitioner also contests the “IDPH notice” in its request for hearing.  Jan. 3, 2022 Request for Hearing at 1.  However, based on Petitioner’s request for hearing, it appears that Petitioner intended by this reference to contest either the IDPH’s December 3, 2020 notice, or CMS’s May 25, 2021 revised determination.  To the extent that Petitioner was

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referring to CMS’s May 25, 2021 letter, I note that this is a letter from CMS, and is not a notice from IDPH.  Moreover, because CMS’s November 3, 2021 revised determination reopened and revised its May 25, 2021 determination, the latter determination is now moot and not appealable.  CMS attached, as CMS Ex. C to its motion, a December 3, 2020 IDPH letter.  CMS notes that this IDPH notice informed Petitioner of the imposition of a Denial of Payment for New Admissions (DPNA), and that, to the extent Petitioner is referencing this notice, CMS advised Petitioner in the November 3, 2021 revised determination that the DPNA did not go into effect because Petitioner had returned to substantial compliance.  CMS Mot. at 5-6.  As such, there is no IDPH notice in the record before me which conferred appeal rights on Petitioner. 

CMS argues that Petitioner does not have the right to contest the “scope or severity of the imposed deficiencies or CMS’ choice of remedies.”  CMS Mot. at 6.  CMS contends that a successful challenge to the scope or severity would not affect the range of the CMP, as there was no finding of immediate jeopardy, or substandard quality of care.  CMS Mot. at 6.  The regulations provide for a different (i.e. higher) per-day CMP range only for immediate jeopardy level deficiencies, and limit Petitioner’s right to appeal CMS’s selection of remedies.  42 C.F.R. § 488.438(a); 42 C.F.R. § 488.408(g)(2). 

The CMP is the only enforcement remedy imposed on Petitioner for which Congress has provided the right to a formal Administrative Procedure Act (APA) hearing.  42 U.S.C. § 1395i-3(h)(2)(B)(ii)(I); see 5 U.S.C. §§ 554(a), 556(a)-(b); 42 U.S.C. § 1320a-7a(c)(2).  The Star Rating is not an enforcement remedy listed in 42 C.F.R. § 488.406.  Additionally, CMS did not impose the DPNA issued in the December 3, 2020 IDPH notice, and CMS’s May 25, 2021 notice was revised to the current November 3, 2021 notice that is now at issue.  Thus, as noted above, both of those documents are moot.  Lastly, Petitioner cannot appeal the scope and severity levels imposed, as there was no finding of immediate jeopardy.  As the ranges for per-day CMPs are only different for deficiencies cited at immediate jeopardy, a challenge to the level of noncompliance could not result in a change to the CMP range amount.  Therefore, the level of noncompliance here is not an initial determination and is not subject to appeal in this proceeding.  42 C.F.R. § 498.3(b)(14); 42 C.F.R. § 488.438(a).  Additionally, “[a] Facility may not appeal the choice of remedy, including the factors considered by CMS or the State in selecting the remedy, specified in § 488.404.”  42 C.F.R. § 488.408(g)(2).  For these reasons, I grant CMS’s motion. 

II.     Issues

The issues in this case are:  

Whether Petitioner was in substantial compliance with Medicare requirements at 42 C.F.R. §§ 483.25(b)(1), 483.25(g)(1), and/or 483.10(g)(14); 

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and

If Petitioner was not in substantial compliance, whether the amount and duration of the CMP imposed on Petitioner is reasonable under the factors in 42 C.F.R. § 488.438(f).  

III.     Jurisdiction

I have jurisdiction to hear and decide this case.  Social Security Act (Act) §§ 1128A(c)(2), 1819(h)(2)(B)(ii) (codified at 42 U.S.C. §§ 1320a-7a(c)(2), 1395i3(h)(2)(B)(ii)); 42 C.F.R. §§ 488.408(g), 488.434(a)(2)(viii), 498.3(b)(13).  

IV.     Discussion

A. Applicable Legal Authority

The Act sets requirements for SNFs to participate in the Medicare program and authorizes the Secretary of Health and Human Services (Secretary) to promulgate regulations implementing those statutory provisions.  Act § 1819; 42 U.S.C. § 1395i-3.  The Secretary’s regulations are found at 42 C.F.R. pts. 483 and 488.  

To participate in the Medicare program, a SNF must maintain substantial compliance with program requirements.  To be in substantial compliance, a facility’s deficiencies may “pose no greater risk to resident health or safety than the potential for causing minimal harm.”  42 C.F.R. § 488.301.  “Noncompliance” means “any deficiency that causes a facility to not be in substantial compliance.  Id. 

The Secretary contracts with state agencies to conduct periodic surveys to determine whether SNFs are in substantial compliance with the participation requirements.  Act § 1864(a) (42 U.S.C. § 1395aa(a)); 42 C.F.R. § 488.10, 488.20.  The Act and its implementing regulations require that facilities be surveyed on average every twelve months and more often if necessary to ensure that identified deficiencies are corrected. Act § 1819(g)(2)(A) (42 U.S.C. § 1395i-3(g)(2)(A)); 42 C.F.R. §§ 488.20(a), 488.308.  The state agency must also investigate all complaints.  Act § 1819(g)(4) (42 U.S.C. § 1395i-3(g)(4)). 

The regulations specify the enforcement remedies that CMS may impose if a facility is not in substantial compliance with Medicare requirements.  42 C.F.R. § 488.406.  Among other remedies, CMS is authorized to impose a per-day CMP for the number of days a facility is not in substantial compliance or a per-instance CMP for each instance of the facility’s noncompliance.  42 C.F.R. § 488.430(a).  In this case, CMS imposed a per-day CMP.  The regulations specify that a per-day CMP will fall into one of two ranges of penalties.  42 C.F.R. §§ 488.408, 488.438.  The upper range, $6,808 to $22,320 per day,

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is reserved for deficiencies that pose immediate jeopardy to a facility’s residents, and, in some circumstances, for repeated deficiencies. ⁴  42 C.F.R. § 488.438(a)(1)(i), (d)(2); 45 C.F.R. § 102.3 (Table)(2020).  The lower range, $112 to $6,695 per day, is reserved for deficiencies that do not pose immediate jeopardy, but either cause actual harm to residents, or cause no actual harm but have the potential for causing more than minimal harm.  42 C.F.R. § 488.438(a)(1)(ii); 45 C.F.R. § 102.3 (Table).  

Petitioner was also notified that it would be ineligible to conduct a NATCEP.  Pursuant to 42 C.F.R. § 483.151(b)(2) and (f), a state may not approve and must withdraw any prior approval of a NATCEP offered by a SNF or nursing facility that has been:  (1) subject to an extended or partial extended survey under sections 1819(g)(2)(B)(i) or 1919(g)(2)(B)(i) of the Act; (2) assessed a CMP of not less than $11,690 (45 C.F.R. § 102.3 (Table) (2020)); or (3) subject to termination of its participation agreement, a DPNA, or the appointment of temporary management.  Ineligibility or withdrawal of approval to conduct a NATCEP is mandatory if the conditions are satisfied.  See 42 C.F.R. § 488.406.  

If CMS imposes a remedy based on a noncompliance determination, such as a CMP, then the facility may request a hearing before an ALJ to determine whether there was a basis for the deficiency findings that led to the imposition of the remedy and whether the CMP imposed was reasonable.  Act §§ 1128A(c)(2), 1819(h)(2)(B)(ii) (42 U.S.C. §§ 1320a-7a(c)(2), 1395i-3(h)(2)(B)(ii)); 42 C.F.R. §§ 488.408(g), 488.434(a)(2)(viii), 498.3(b)(13).  However, the facility may not appeal CMS’s choice of remedies or the factors CMS considered in selecting remedies.  42 C.F.R. § 488.408(g)(2). 

A facility may only challenge CMS’s determination as to the scope and severity of noncompliance if a successful challenge would affect the range of the CMP that may be imposed, or impact the facility’s authority to conduct a NATCEP.  42 C.F.R. § 498.3(b)(14), (d)(10)(i).  The CMS determination as to the level of noncompliance, including the finding of immediate jeopardy, “must be upheld unless it is clearly erroneous.”  42 C.F.R. § 498.60(c)(2); Woodstock Care Ctr., DAB No. 1726 at 9, 39 (2000), aff’d, Woodstock Care Ctr. v. Thompson, 363 F.3d 583 (6th Cir. 2003).  The Board has held that the net effect of the regulations is that a provider has no right to challenge the scope and severity level assigned to a noncompliance finding, except in the situation where that finding was the basis for an immediate jeopardy determination.  See, e.g., Ridge Terrace, DAB No. 1834 (2002); Koester Pavilion, DAB No. 1750 (2000).  ALJ review of a CMP is subject to the parameters set forth in 42 C.F.R. § 488.438(e). 

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B. Findings of Fact, Conclusions of Law, and Analysis

1. Resident 4 had a pressure ulcer upon admission to Petitioner’s facility.
2. Petitioner was not in substantial compliance with 42 C.F.R. § 483.25(b)(1) (Tag F686), because Petitioner failed to take appropriate measures to promote the healing of pressure ulcers for two residents.

CMS alleges that Petitioner “did not ensure that ‘a resident does not develop pressure ulcers unless the individual's clinical condition demonstrates that they were unavoidable[.]’”  CMS Brief at 8.  However, Petitioner has shown that both Resident 1 and Resident 4 had documented pressure ulcers upon admission.  P. Ex. 1.  Thus, under Petitioner’s care, neither resident developed a pressure ulcer after admission.  Both residents had pressure ulcers upon admission to Petitioner’s facility; however, while Resident 1 and Resident 4 were in Petitioner’s care, they did not receive the necessary treatment and services to promote healing of their pressure ulcers. 

With respect to quality of care for skin integrity, the regulations at the time of survey provide that: 

Based on the comprehensive assessment of a resident, the facility must ensure that—

(i) A resident receives care, consistent with professional standards of practice, to prevent pressure ulcers and does not develop pressure ulcers unless the individual’s clinical condition demonstrates that they were unavoidable; and

(ii) A resident with pressure ulcers receives necessary treatment and services, consistent with professional standards of practice, to promote healing, prevent infection and prevent new ulcers from developing.  

42 C.F.R. § 483.25(b)(1). 

Under the quality of care regulation, a facility is required to “provide the care and services necessary to attain or maintain a resident’s highest practicable well-being.”  Act § 1819(b); 42 C.F.R. § 483.25; Spring Meadows Health Care Ctr., DAB No. 1966 at 14 (2005).  The Departmental Appeals Board (Board) has explained that 42 C.F.R. § 483.25 imposes a duty that a facility must provide care and services that, at a minimum, meet accepted “professional standards of quality.”  Spring Meadows, DAB No. 1966 at 17, citing 42 C.F.R. § 483.25.  When assessing a facility's compliance with this regulatory requirement, the question is whether the facility took “all necessary

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precautions” to promote healing.  Senior Rehab., DAB No. 2300 at 13-14, aff'd, Senior Rehab. & Skilled Nursing Ctr. v. Health & Human Servs., 405 F. App'x 820 (5th Cir. 2010); Koester Pavilion, DAB No. 1750 at 32 (2000).  And if the evidence establishes that the facility fell short of taking all necessary precautions, it has violated the regulation.  See id. 

Resident 1

At the time of the November 10, 2020, survey, Resident 1 was a 79-year-old man.  Jt. Stip. at 3-4.  Resident 1 was admitted to Petitioner’s facility on October 19, 2020.  Id.  On the same day as admission, Petitioner conducted an Admission/Readmission body assessment on Resident 1.  Id.  It is undisputed that Petitioner documented that Resident 1 had a pressure ulcer on his coccyx; however, the body assessment did not include the measurements, observations of tissue type, or any other description of the pressure ulcer.  Id.  It is also undisputed that Resident 1’s Treatment Administration History for October 1, 2020 to October 30, 2020 did not include any treatments for his pressure ulcer.  Id. 

Resident 1 had a baseline care plan which was initiated at the time of his admission.  P. Ex. 12 at 1.  With respect to pressure ulcers, the care plan indicated that to meet the goal of preventing breakdown and/or demonstrating healing of existing pressure ulcers, staff would “Assess Risk Using Braden Scale.”  Id.  No other interventions, such as “Treatment (per MD orders) to Area (Specify),” were checked off.  Id. 

Resident 1 had two wound consults while at Petitioner’s facility, but Petitioner did not implement the resultant treatment orders.  CMS Ex. 1, at 6; CMS Ex. 20, at 2; see CMS Ex. 27, at 31 & 35.  Resident 1 had his first wound consult on October 22, 2020.  P. Ex. 14 at 1-4; see P. Ex. 13 at 1.  During the October 22, 2020 consult, the wound physician documented Resident 1’s pressure ulcer on his coccyx as measuring 1.5 cm in length, 0.5 cm in width, with the depth “not measurable.”  P. Ex. 14 at 2.  The physician also noted that 35% of the wound was covered by granulation tissue, and 65% of the wound was covered by slough tissue.  Id.  The wound consult also stated that the ulcer was “unstageable (due to necrosis).”  Id.  The wound physician debrided the ulcer and ordered a dressing treatment plan consisting of the application of hydrocolloid dressing three times a week for 30 days.  Id. 

On October 29, 2020, Resident 1 had his second wound consult, where his ulcer measured 2.3 cm in length, 0.4 cm in width, with the depth “not measurable.”  P. Ex. 14 at 6; see P. Ex. 13 at 2. In other words, Petitioner’s pressure ulcer had increased in length by .8 cm and decreased in width by .1 cm and the depth remained immeasurable in both instances.  See also P. Ex. 13; P. Ex. 14 at 2, 6.  On this occasion, 65% of Resident 1’s wound was covered by epithelialization tissue, and 35% of the wound was covered by slough tissue.  Id.  The wound physician also noted that the “wound  progress” was “improved evidenced by decreased drainage” but the wound was again labeled as

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“unstageable (due to necrosis).”⁵  P. Ex. 14 at 6, 8.  He ordered a dressing treatment plan consisting of the application of hydrocolloid dressing three times a week for 23 days.  Id. 

Although the wound physician ordered treatment for Resident 1’s pressure ulcer at both of his visits, his orders were never implemented during Resident 1’s stay at Petitioner’s facility.  CMS Ex. 1, at 6; CMS Ex. 20, at 2; see CMS Ex. 27, at 31 & 35.  On November 1, 2020, Resident 1 was discharged from Petitioner’s facility.  P. Ex. 11.  Petitioner does not dispute that Resident 1 was not given any treatment for his pressure ulcer between his admission and October 30, 2020 (Joint Stip. at 4) other than that Resident 1’s wound was assessed and debrided on October 22 and 29, 2020, when Resident 1 was seen by the wound doctor.  P. Br. at 8. 

Because the wound physician noted in his second assessment some wound progress based on increased drainage, Petitioner contends that it was in substantial compliance with 42 C.F.R. § 483.25(b)(1) regarding Resident 1.  P. Br. at 8.  I disagree.  Substantial compliance here is not based on the observation of some wound improvement, but on the requisite provision of care according to professional standards of practice to facilitate pressure ulcer healing.  Even if the pressure ulcer did show some improvement – which Surveyor Boyer disputes in her declaration ⁶ – the improvement was despite Petitioner’s failure to implement the wound specialist’s orders.  The wound specialist’s treatment orders are the best evidence of “the necessary treatment and services” to facilitate healing based on professional standards of practice.  See Fireside Lodge Retirement Ctr., Inc., DAB No. 2794 at 12-13 (2017) (Petitioner’s failure to follow physician’s orders for treating a Resident’s pressure ulcer as reason for affirming determination of deficiency.);  Senior Rehab. & Skilled Nursing Ctr., DAB No. 2300 at 13-19 (2010) (Petitioner “did not take all necessary precautions to promote healing” of a Resident’s pressure ulcers when it failed to follow Resident care plans and its own facility’s policy.), aff'd, Senior Rehab. & Skilled Nursing Ctr. v. Health & Human Servs., 405 F. App'x 820 (5th Cir. 2010).  Had the treatment orders been implemented, much greater wound improvement may have been observed.  Petitioner did not meet the standard of care with respect to Resident 1’s pressure ulcer treatment. 

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Resident 4

Resident 4 was an 88-year-old man, and was admitted to Petitioner’s facility on October 29, 2020 at 2:12 p.m.  Jt. Stip. at 3.  Petitioner conducted an admission body assessment later that night at 11:42 p.m., and documented that Resident 4 had no pressure ulcers.  Id.  Despite this, as CMS recognizes (CMS Br. at 8-9), there is conflicting and inconclusive evidence in the record as to whether Petitioner had the pressure ulcer at issue upon admission or had developed the pressure ulcer while a patient at Petitioner’s facility. 

Petitioner noted on a facility wound summary report that Resident 4 had an “unspecified ulcer” present on his coccyx upon admission.  P. Ex. 1.  There was no description or additional information recorded about his wound.  Id.  In Resident 4’s care plan, staff noted, among other things, that he was “[a]dmitted to facility with unstageable pressure ulcer to sacrum,” but this description was edited on November 6, 2020.  CMS Ex. 18 at 19.  The hospital records from where Resident 4 was admitted prior to admission at Petitioner’s facility noted that at as of the evening of October 26 Petitioner had a “decubitis ulcer of [the] sacral region, stage 3,” (P. Ex. 4 at 2) and “sacral pressure sores” / “[w]ound [ ] medial coccyx pressure injury” early in the morning of October 27 (P. Ex. 3 at 1, 2).  This was just two days prior to Resident 4’s admission to Petitioner’s facility and further corroborates the likelihood that Resident 4 had a pressure ulcer in his sacral region upon his admission. 

However, because the November 5, 2020 wound physician’s report details that Resident 4 had three separate wound sites in the sacrum/coccyx region – two of which were resolved by November 5 and one unstageable pressure ulcer, it is possible that the unstageable pressure ulcer developed post-admission and the hospital records refer to one of the old wound sites.  CMS Ex. 18 at 13-14.  Neither the hospital records, nor Petitioner’s records indicate that Resident 4 had multiple wound sites in that region prior to November 5, but this could also be because the two old wound sites noted in the November 5, 2020 wound report had resolved prior to October 26, 2020 and therefore were not noted in the earlier records.  See P. Exs. 1, 3, and 4.  

Because Petitioner asserts that Resident 4 had a pressure ulcer upon admission and the evidence in the record indicates that Petitioner’s assertion is more likely true than not, I find that Resident 4 had a stage 3 pressure ulcer upon admission.Even so, Petitioner’s care of Resident 4’s pressure ulcer fell short of the standard required by 42 C.F.R. § 483.25(b)(1)(ii). 

Petitioner’s records evidence a wound that worsened from the time of admission through at least the first week.  In a progress note dated October 31, 2020, at 1:11 a.m., one of Petitioner’s nurses documented “Resident examined and found redness in the perineal and his bottoms with excoriated wound on his coccyx.”  The nurses noted that he refused a dressing to the wound.  P. Ex. 9 at 1.  However, a later progress note at 3:39 a.m. states

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that the dressing was done.  Id.  A progress note at 11:04 p.m. that night on October 31, 2020, states, “[Resident 4] has wound on coccyx area, with darker area on each buttock.”  The notes state that the wound was cleansed and a border dressing was applied.  Id.  Resident 4 was examined by the hospital’s nurse practitioner via a televideo visit on November 2, 2020, and according to the corresponding “Rounding Sheet,” was noted to have a “[b]ilateral buttock wound.”  P. Ex. 8; P. Ex. 9 at 3.  This document also indicated that Resident 4’s skin was “intact, no tears, breakdown or rash.  Looks good.”  P. Ex. 8. 

The next progress note of a new dressing being applied “to wound of sacrum and coccyx” is dated November 4, 2020, at 11:11 a.m.  P. Ex. 9 at 4.  A progress note from November 5, 2020, at 2:47 a.m., states that wound care was done to a “large open wound with red drainage.”  Id.  Later that morning, according to another progress note, a televideo visit was completed with the hospital’s nurse practitioner.  Id.; P. Ex. 10.  The nurse practitioner’s progress note, stated, among other things, that Resident 4 would be seen by the wound physician that same day for the wound on his coccyx.  P. Ex. 9 at 4. 

On November 5, 2020, a wound physician examined Resident 4.  Resident 4 had an “unstageable” pressure ulcer on his coccyx region measuring 8.5 cm in length x 8.0 cm in width, with the depth “not measurable.”  CMS Ex. 1 at 4-5; CMS Ex. 18 at 14; see also Jt. Stip at 3.  The wound physician ordered silver sulfadiazine (primary dressing) and dry protective dressing (secondary dressing) to be applied twice daily for 30 days.  He recommended a Group-2 mattress; repositioning per Petitioner’s protocol; and turning the resident every 1-2 hours if able.  The wound physician noted that the wound was not debrided, because Resident 4 was under palliative care.⁷  CMS Ex. 18 at 14. 

Resident 4’s care plan was then updated on November 5, 2020, to include interventions for treatment of the pressure ulcer.  Interventions included:  “[p]osition with pillows to elevate pressure points off the bed;” [s]kin assessment and inspection as ordered with

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close attention to heels and coccyx;” “[t]o be followed by VOHRA wound care physician starting on 11/5/20;” and “[t]reatment as ordered by doctor.”  CMS Ex. 18 at 19-20.  
On November 6, 2020, Resident 4’s physician implemented the wound physician’s treatment plan by ordering silver sulfadiazine and dry dressing to be applied twice daily until healed, following cleansing with wound cleaner spray.  CMS Ex. 18 at 14, 16.  On November 6, 2020, Resident 4’s care plan was updated to include his physician’s order for treatment.  Id. at 16, 19-20. 

CMS contends that Petitioner’s treatment of Resident 4’s wound falls short of the requisite standard of care in contravention of  42 C.F.R. § 483.25(b)(1)(ii), and I agree.  See CMS Br. at 8.  In support, CMS provided as evidence a declaration from the Surveyor testifying to the relevant standards of care for a resident admitted with a Stage 3 pressure ulcer.  CMS Ex. 21.  The Surveyor is now a Public Service Administrator at IDPH with over twenty-five years of long-term care experience in positions including as a Regional Nurse Consultant, Director of Nursing, Minimum Data Set/Care Plan Coordinator, Licensed Practical Nurse, and Certified Nursing Assistant.  CMS Ex. 22 at 1; CMS Ex. 21 at 1-2 & 4.  The Surveyor testified that “[i]f a resident has a pressure ulcer upon admission, the standard of care would be to record it in the assessment, and document its measurements, the type of tissue, and other observations[,]” noting that the software utilized by Petitioner had specific spaces to record this information.  CMS Ex. 21 at 4-5.  Surveyor Boyer further testified that “the standard of care for a resident admitted with a pressure ulcer, especially a Stage 3 pressure ulcer, would be to obtain a physician order upon the resident’s admission or when verifying the resident’s physician’s orders because without a physician’s order only protective dressings can be applied, and again wounds can deteriorate so quickly.”  Id. at 7 (para. 20).  Surveyor Boyer observed that the dressings applied to Resident 4 prior to November 5th were preventive dressings, which do not require a physician’s order and would not heal a stage 3 pressure ulcer.  Id. at 7.  I find the Surveyor’s testimony credible, and Petitioner has not offered any rebuttal testimony into evidence. 

Petitioner argues that Resident 4’s stage 3 pressure ulcer did not progress or worsen during his time at Petitioner’s facility.  P. Br. at 8-9.  However, if Resident 4 was admitted to Petitioner’s facility with a stage 3 pressure ulcer, did not receive the necessary treatment to heal the pressure ulcer, and one week later on November 5, 2020, his pressure ulcer was unstageable, it can only be concluded that his pressure ulcer did worsen during that time under Petitioner’s care.  Additionally, the progress notes for Resident 4 provided by Petitioner display a gap between October 31, 2020 and November 4, 2020, where no treatment was noted for Resident 4’s pressure ulcer.  The progress note from November 5, 2020, then describes Resident 4’s wound as a “large open wound with red drainage.”  P. Ex. 9 at 4.  This appears significantly worse than the previous notes on October 31, 2020, where the wound was simply described as an “excoriated” wound.  P. Ex. 9 at 1. 

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In summary, during the first week of Resident 4’s admission, he went from having a stage 3 pressure ulcer in an undocumented state of healing upon admission, to having a wound with redness with intact skin that “looks good,” to a “large open wound with red drainage.”  P Exs. 8 and 9.  Despite admission with a stage 3 pressure ulcer in the sacral/coccyx area, Resident 4’s care plan did not originally include interventions for the pressure ulcer and there was no physician’s order for treatment of the pressure ulcer for an entire week upon admission.  Jt. Stip. at 3; CMS Exs. 18, at 16 & 19.  Other than dressings being applied, Resident 4 did not receive any treatment for his pressure ulcer until November 5, 2020, at which time the pressure ulcer was large and unstageable.  As such, Petitioner’s treatment of Resident 4’s wound falls short of substantial compliance with the requisite standard of care per 42 C.F.R. § 483.25(b)(1)(ii).  

***

With respect to residents 1 and 4, Petitioner did not ensure that “resident[s] with pressure sores receives the necessary treatment and services to promote healing, prevent infection and prevent new sores from developing.”  The Harborage, DAB No. 2905 at 1-2 (2018).  As such, Petitioner was not in substantial compliance with 42 C.F.R. § 483.25(b)(1)(ii). 

3. Petitioner was not in substantial compliance with 42 C.F.R. § 483.25(g)(1) (Tag F692), because Petitioner failed to maintain acceptable parameters of four Residents’ nutritional status.

Petitioner was cited for not substantially complying with 42 C.F.R. § 483.25(g)(1)-(3).⁸  Under section 483.25(g)(1), facilities must ensure, based on a resident’s comprehensive assessment, that a resident:  

(1) Maintains acceptable parameters of nutritional status, such as usual body weight or desirable body weight range and electrolyte balance, unless the resident’s clinical condition demonstrates that this is not possible or resident preferences indicate otherwise[.]  

42 C.F.R. 483.25(g)(1). 

When analyzing a deficiency under this regulation, the question is not whether a resident's weight falls below a particular threshold; but rather, whether the facility takes reasonable and timely steps to help ensure that the resident maintains acceptable parameters of nutritional status.  Carrington Place of Muscatine, DAB No. 2321 at 9-10 (2010).  Additionally, the Board has held that a facility that fails to comply with its own

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policies “can support a finding that the facility did not achieve compliance with the regulatory standard.”  Bivins Mem'l Nursing Home, DAB No. 2771 at 9 (2017); see Rockcastle Health & Rehab. Ctr., DAB No. 2891 at 19 (2018) (ruling that, absent contrary evidence, it is reasonable to presume that the facility's policies reflect professional standards); Hanover Hill Health Care Ctr., DAB No. 2507 at 6 (2013); Life Care Ctr. of Bardstown, DAB No. 2233 at 21-22 (2009) (finding that a facility's failing to comply with its own policies can constitute a deficiency). 

Residents 1, 2 and 4

Residents 1, 2, and 4 all had a physician’s order for weekly weighing for four weeks after admission.  Jt. Stip. at 4; CMS Ex. 1 at 8-9; CMS Ex. 16 at 12; CMS Ex. 20 at 1-2, 4, 10, and 18.  Residents 1 and 2 were each weighed only one time (upon admission) despite residing at Petitioner’s facility for 12 days and 30 days, respectively.  CMS Ex. 16 at 12; CMS Ex. 20 at 1, 10; see also Jt. Stip. at 4.  And Resident 4’s medical records did not have an admission weight recorded as of November 6, 2020, which was 8 days after his admission.  CMS Ex. 20 at 10. 

With respect to meal intake, Resident 1’s medical record had documentation of only 17 of the 39 meals that he should have received while at the facility.  CMS Ex. 1, at 8; CMS Ex. 20, at 2 & 18.  Resident 2’s medical record did not have documentation for his meal intakes for two weeks from October 14 – 29, 2020.  CMS Ex. 1, at 9; CMS Ex. 20, at 4 & 10.  Resident 4’s medical record did not consistently document a meal intake after each meal.  CMS Ex. 1, at 9; CMS Ex. 20, at 10.  In his admission assessment, staff admitted that Resident 4’s usual intake pattern was “probably inadequate,” meaning he “[r]arely eats a complete meal and generally eats only about 1/2 of food offered.  Protein intake includes only 3 servings of meat or dairy products per day.  Occasionally will take a dietary supplement when offered.”  CMS Ex. 18 at 3.  During Resident 4’s wound consult on November 5, 2020, the wound doctor also noted on Resident 4’s file to “[p]lan to discuss patient’s abnormal BMI with current dietician” and that if Resident 4 did not already have a dietician following him, to recommend a dietary consultation for his abnormal BMI.  Id. at 15. 

CMS argues that any of these incidents establishes Petitioner’s noncompliance with Tag F692, as Petitioner “failed to ‘maintain[] acceptable parameters of nutritional status, such as usual body weight or desirable body weight range.’”  CMS Br. at 12; 42 C.F.R. § 483.25(g)(1).  CMS further contends that Petitioner did not act in accordance with its own weight maintenance policy, as it failed to “monitor the nutritional status of all residents, including all significant or trending patterns of weight change.”  CMS Br. at 12 (citing CMS Ex. 14 at 1). 

Petitioner does not contest the above facts, nor does it argue in its brief that it was in substantial compliance under Tag F692 with respect to these three residents.  I find that

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Petitioner was not in substantial compliance with Tag F692 as Petitioner did not weigh the residents in accordance with physician’s orders, and the three residents nutritional intake put them at risk for falling below acceptable nutritional parameters. 

Resident 3

Resident 3 was 90 years old in November of 2020 and required assistance with eating.  Jt. Stip. at 4.  On September 30, 2020, Resident 3’s weight was recorded as 216 pounds.  A little over one month later, on November 6, 2020, Resident 3’s weight was recorded as 188.5 pounds.  Jt. Stip. at 4.  This approximately 28-pound weight loss is equal to about 12% of Resident 3’s September 2020 weight.  CMS Ex. 1 at 8.  As of November 10, 2020, Resident 3’s weight loss was not reported to the Advanced Practice Nurse who routinely visited him and had been in the building on November 9, 2020.  Jt. Stip. at 4. 

Petitioner argues that Resident 3 had no significant weight loss to report, because Resident 3’s weight loss of 28 pounds over 37 days was allegedly a result of inaccurate weight loss documentation.  P. Br at 9-10.  Resident 3 was transferred and admitted to the hospital on November 13, 2020.  Id.  Upon admission to the hospital, Resident 3’s weight was recorded at 205 pounds.  Id. (citing P. Ex. 16).  Petitioner posits that it is not possible for Resident 3 to have weighed 188 pounds on November 6, 2020, since he weighed 205 pounds a week later on November 13, 2020.⁹  P. Br. at 9-10. 

Petitioner’s argument misses the issue entirely.  While a 17-pound weight gain in the course of a week may be unlikely,¹⁰ Petitioner’s understanding at least as of November 6th was that Resident 4 had lost 28-pounds – 12% of his body weight – in a little over a month.  Petitioner strains to interpret its weight loss procedure to mean that if the facility identifies a significant change in weight, it will conduct a reweigh by the 15th for accuracy prior to notifying an APN or physician.  P. Br. at 9-10; see CMS Ex. 14 at 1. 

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Petitioner argues that because Resident 3 had not been reweighed, the weight loss had not been validated and there was no need to notify Resident 3’s physician yet.  P. Br. at 10.  

This reading of the policy is unsupported, and even if it were supported, it would be in contravention of law.  Petitioner’s weight maintenance policy states that “[i]t is the policy of this facility to monitor the nutritional status of all residents, including all significant or trending patterns of weight change.”  CMS Ex. 14 at 1.  There are a number of actions Petitioner is to take in accordance with its weight maintenance policy when there is significant or trending patterns or weight change:  (1) completion of either “An Evaluation of Significant Weight Change” or “Evaluation of Significant and Insidious Weight Change Observation” form; the following steps:  “A. [d]etermine the possible cause, B. [d]etermine the plan of action, C. [d]ocument the investigation, and D. [n]otify the physician and responsible party;” review by the Director of Nursing or designee for possible referral to a dietician, and the Director of Nursing or designee “will ensure physicians and resident representatives are informed of significant or trending weight fluctuations or concerns regarding a change in the resident’s nutritional status.”  CMS Ex. 14 at 1-2.  Not one of these actions is contingent on a patient having a re-weigh; rather these actions are to occur when a significant change in weight is observed.  With respect to Resident 3, that was on November 6, 2020.  Given the incredible weight loss noted of Resident 3 on November 6th, if Petitioner was concerned about the accuracy of the scale used or that particular measurement, Petitioner ought to have taken an additional measurement or used another scale the same day.  The purpose of a later re-weigh is not to confirm the accuracy of the prior measurement and delay notification and action, but to establish trend and to increase monitoring in such circumstances of significant weight change.  

Resident 3’s care plan stated that he was “at risk for alterations in nutrition/hydration [related to] recovery from infection (sepsis and UTI [urinary tract infection] and CKD [chronic kidney disease]” and one of the approaches implemented to achieve the goal of the resident not showing significant weight change, was to “obtain, monitor, document weights as ordered; notify appropriate parties if sig[nificant] change occurs (MD, POA [power of attorney], responsible party).”  CMS Ex. 17 at 29.  Other approaches listed in the care plan were to “assist at meal times as needed” and “monitor, document PO [by mouth] intakes.”  Id.  Petitioner was aware that Resident 3 was at risk for nutrition deficiency and weight loss and had a set goal in his care plan that he would not show a significant change in weight.  Even if the weight that Petitioner recorded for Resident 3 on November 6 was an error, Petitioner did not follow its own weight maintenance policy or Resident 3’s care plan by notifying the appropriate parties.  Petitioner was aware of the possibility that Resident 3’s weight could change significantly and that his issues with nutrition required the prescribed interventions listed in his care plan. 

Surveyor Boyer also observed that Resident 3 was not getting the necessary assistance for his meals.  At 1:00 p.m. on the day of her observation, Resident 3 had only been fed the

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yogurt from his breakfast tray.  CMS Ex. 20 at 7.  Additionally, his meal intake was not being recorded; thus, there is no way to know whether or not Resident 3 was receiving the necessary nutrition from his daily meal intake.  Id.  These failures by Petitioner were clearly contrary to the interventions in Resident 3’s care plan and evidence of Petitioner’s noncompliance under Tag F692. 

4. Petitioner was not in substantial compliance with 42 C.F.R. § 483.10(g)(14) (Tag F580), because Petitioner failed to immediately consult with Resident 3’s physician when Resident 3 experienced significant weight loss. 

With respect to Resident 3, Petitioner was also cited for noncompliance of 42 C.F.R. § 483.10(g)(14)(i)(B) because of its failure to immediately consult with Resident 3’s physician when the resident exhibited significant weight loss on November 6, 2020.¹¹  The regulation states that:  

A facility must immediately . . . consult with the resident’s physician; and notify, consistent with his or her authority, the resident representative(s), when there is—

*          *          *

(B) A significant change in the resident’s physical, mental, or psychosocial status (that is, a deterioration in health, mental, or psychosocial status in either life-threatening conditions or clinical complications).  

42 C.F.R. § 483.10(g)(14)(i)(B). 

Petitioner also has a policy titled “Change in a Resident’s Condition or Status.”  CMS Ex. 13.  This policy describes the procedures for when the Nurse should notify a Resident’s attending physician.  The policy includes that when a “significant change in the resident’s physical . . . status” occurs, the nurse should notify the attending physician.  Id. 

Given the facts detailed above, Petitioner failed to substantially comply with this requirement.  The regulation states that a facility must immediately consult with the resident’s physician where there is a significant change in the resident’s physical status.  When Petitioner observed that Resident 3’s weight was significantly lower on November 6, 2020, than it was upon admission, Petitioner was required to immediately consult with the resident’s physician.  Petitioner failed to do so.  

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5. The imposed CMP is reasonable.

I have concluded that Petitioner violated 42 C.F.R. §§ 483.10(g)(14) (Tag F580), 483.25(b)(1) (Tag F686), and 483.25(g) (Tag F692).  The violation of 42 C.F.R. § 483.25(b)(1) caused actual harm to Resident 1 and Resident 4. 

In determining whether the CMP imposed against Petitioner 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) the 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 listed 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.  Unless a facility contends that a particular regulatory factor does not support the CMP amount, I must sustain it.  Coquina Ctr., DAB No. 1860 at 32 (2002). 

The Board has explained that “[i]t is settled law that ALJ review of the reasonableness of CMP amounts imposed by CMS is de novo.”  Fireside Lodge Retirement Ctr., Inc., DAB No. 2794 at 19 (2017).  I consider whether the evidence supports a finding that the amount of the CMP is at a level reasonably related to an effort to produce corrective action by a provider with the kind of deficiencies found and in light of the above factors. I am neither bound to defer to CMS’s factual assertions, nor free to make a wholly independent choice of remedies without regard for CMS’s discretion.  See, e.g., Barn Hill Care Ctr., DAB No. 1848 at 21 (2002).  The Board has explained that “[t]he determination of whether a CMP amount is reasonable is a conclusion of law, not a finding of fact.”  Cedar Lake Nursing Home, DAB No. 2344 at 12 (2010), aff’d, Cedar Lake Nursing Home v. U.S. Dep’t of Health & Human Servs., 619 F.3d 453, 457 (5th Cir. 2010).  

In assessing the reasonableness of a CMP amount, an ALJ considers the per-day amount, rather than the total accrued CMP.  See Kenton Healthcare, LLC, DAB No. 2186 at 28 (2008).  Pursuant to 42 C.F.R. § 488.408(g)(2), a facility cannot appeal CMS’s choice of a remedy, and an appeal of a CMP is limited to review based on the regulatory factors set forth at 42 C.F.R. §§ 488.438(f) and 488.404.  See, e.g., Senior Rehab. & Skilled Nursing Ctr., DAB No. 2300 at 19-20 (2010). 

The lower per-day CMP range of $112 to $6,695, as adjusted annually, is applicable to this case, because this range applies to deficiencies that do not constitute immediate jeopardy, but either cause actual harm to residents, or have the potential for causing more than minimal harm.  42 C.F.R. § 488.438(a)(1)(ii); 45 C.F.R. § 102.3 (Table) (2020); 83

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Fed. Reg. 51369, 51380 (Oct. 11, 2018).  Here, CMS imposed a per-day CMP of $1,410 per day for 33 days beginning November 4, 2020 and continuing through December 6, 2020 for a total of $46,530.  The $1,410 amount is at the lower end of the penalty range. 

In support of its chosen CMP amount, CMS contends that Petitioner’s culpability is high, as it “failed to follow its policies and the standard of care.”  CMS Br. at 15.  Additionally, Petitioner’s history shows that it has had an immediate jeopardy level deficiency as well as deficiencies at the level of actual harm in the two and a half years prior to the imposed deficiencies at issue.  CMS Br. at 15; CMS Ex. 4 at 1-2.  The prior deficiency cited at immediate jeopardy was a citation for Tag F684, quality of care, and there were numerous tags at scope and severity levels D, F, and G.  CMS Ex. 4 at 2-3. 

Petitioner argues that it was in substantial compliance with respect to all three cited tags and that any CMP is unreasonable.  Petitioner does not otherwise argue that the CMP is unreasonable for the cited deficiencies.  Although Petitioner was able to provide evidence to support that Resident 4 did not develop a pressure ulcer in its care, it is still culpable under section 483.25(b)(1), as it did not treat Resident 4’s pressure ulcer and the pressure ulcer worsened.  Similarly, Petitioner did not treat Resident 1’s pressure ulcer according to physician’s orders, which reasonably stymied the pressure ulcer’s healing.  Actual harm (s/s level G) remains appropriate for the citation, and Petitioner remains culpable. 

Petitioner also failed to maintain acceptable parameters of four Residents’ nutritional status, as it failed to conduct physician-ordered weekly weights for Residents 1, 2, and 4.  Petitioner also failed to maintain Resident 3’s body weight within acceptable parameters and nutritional status.  Further, Petitioner did not immediately notify Resident 3’s physician about Resident 3’s weight loss when it was recorded as 12% less than his body weight 37 days prior.  Petitioner is culpable for all three deficiencies cited.

Petitioner has not offered any evidence to establish that it cannot pay the $1,410 per-day CMP.  Its unsupported assertion that the CMP will cause it to “face financial hardship” falls short of meeting its burden of proof.  I thus find no basis to reduce the CMP based on Petitioner’s financial condition.¹²

As noted above, the CMP of $1,410 per day is at the lower end of the applicable penalty range.  Accordingly, based on the regulatory factors, I conclude that the $1,410 per-day CMP is reasonable.  

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6. Because CMS imposed a CMP in the total amount of $11,160 or more, CMS is required by law to prohibit Petitioner from having a NATCEP for two years. 

In its November 3, 2021 notice letter, CMS informed Petitioner that if it has been assessed a total CMP of not less than $11,160, then it would be prohibited from offering or conducting a NATCEP for two years.  CMS stated that, if Petitioner requested a hearing, then the two-year NATCEP prohibition would be effective from “the date of the final administrative decision upholding the CMP in the amount of $11,160.00 or more. This prohibition is not subject to appeal.”  CMS Ex. 7 at 3.  

The inflation-adjusted monetary threshold applicable to this case for the withdrawal of NATCEP approval was $11,160.  45 C.F.R. § 102.3 (Table) (2020).  Because the total amount of the CMP assessed in this case is greater than $11,160, CMS is required by law to prohibit Petitioner from having a NATCEP for two years. 

V.     Conclusion

For the reasons discussed above, I conclude that Petitioner was not in substantial compliance with the Medicare participation requirements at 42 C.F.R. §§ 483.25(b)(1), 483.25(g)(1) and 483.10(g)(14).  A $1,410 per-day CMP from November 4, 2020 and continuing through December 6, 2020, for a total of $46,530, is reasonable.  CMS is required by law to prohibit Petitioner from having a NATCEP for two years. 

Endnotes

¹  The IDPH conducted another complaint investigation survey, including another COVID-19 Focused Infection Control Survey, on December 18, 2020, and again found Petitioner out of substantial compliance.  CMS Ex. 5 at 1; CMS Ex. 8.  The December 18, 2020 survey is not at issue before me.

²  CMS had previously filed this partial motion to dismiss under C-21-959, and Petitioner filed a reply.  CMS refiled the partial motion to dismiss under C-22-229; Petitioner did not file a reply under the newly consolidated docket.

³  Petitioner’s objections listed CMS Exs. 1, 8, 11, 12, and 40.  CMS did not file an Ex. 40, but based on Petitioner’s description of the exhibit, it is clear that this is a typo and Petitioner intended to refer to CMS Ex. 20.

⁴  “Immediate jeopardy” means a situation in which the provider’s noncompliance with one or more requirements of participation has caused, or is likely to cause, serious injury, harm, impairment, or death to a resident.”  42 C.F.R. § 488.301 (emphasis in original). 

⁵  “Unstageable Pressure Injury:  Obscured full-thickness skin and tissue loss” refers to “Full-thickness skin and tissue loss in which the extent of tissue damage within the ulcer cannot be confirmed because it is obscured by slough or eschar.  If slough or eschar is removed, a Stage 3 or Stage 4 pressure injury will be revealed.”  npiap_pressure_injury_stages.pdf (ymaws.com) (Last visited November 17, 2023).

⁶  In her declaration, Surveyor Boyer stated that in her opinion, the wound worsened, as the amount of granulation tissue, which is a sign of healing, was not noted on the second wound consult’s visit, and the overall size increased.  CMS Ex. 21 at 8-9.

⁷  Palliative care is “specialized medical care that focuses on providing relief from pain and other symptoms of a serious illness.  It also can help you cope with side effects from medical treatments.  The availability of palliative care does not depend on whether your condition can be cured.”  https://www.mayoclinic.org/tests-procedures/palliative-care/about/pac-20384637 (Last visited November 17, 2023).  Both parties agree that “[p]alliative care requires a physician’s order and the resident’s consent if cognitively able.”  Jt. Stip. At 3.  However, Resident 4’s electronic medical record nowhere reflected that he was under palliative care.  CMS Br. at 7; CMS Ex. 21 at 5.  It is unclear from the record whether Resident 4 expressed that he wanted palliative care and his care plan failed to reflect his desire, or if Resident 4 did not want palliative care and Petitioner erroneously received a less aggressive treatment (no debridement) as a result.  In either event, Petitioner is not in substantial compliance with 42 C.F.R. § 483.25(b)(1)(ii), and a factual finding as to one or the other scenarios would not impact the outcome of my decision.

⁸  The statement of deficiencies cites subsection (1)-(3), however, it appears that the allegations only pertain to subsection (1), thus, only subsection (1) will be discussed here.

⁹  The transfer and weighing of Resident 3 took place after the survey, which ended on November 10, 2020.

¹⁰  Petitioner presents no evidence that a 17-pound weight gain in a week is impossible or to explain why the weight recorded on November 6, 2020 could be erroneous.  Depending on how malnourished or dehydrated Resident 4 was at the time of weighing on November 6, 2020, whether Resident 4 was more fully clothed during the latter weighing, or if Resident 4 was on medication that causes fluid retention, and given that the November 6th and 13th weights were taken on different scales possibly at different times of the day, it is possible that the November 6th recorded weight was accurate.  Of course, to the extent there was an inaccuracy in weighing Resident 4, it is just as likely that the inaccuracy was with the November 13th weight at the hospital given the lack of evidence in the record on this point.

¹¹  The SOD also cites 42 C.F.R. § 483.10(g)(15), however, CMS makes no allegations or arguments relating to this provision, so it will not be discussed in this decision.

¹²  CMS granted Petitioner a 24-month extended payment plan.  CMS Ex. 7 at 2.