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                              Auburn Village, DAB CR5780 (2020)
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Auburn Village, DAB CR5780 (2020)








  
  
    

  
      
Department of Health and Human Services 
    DEPARTMENTAL APPEALS BOARD
          Civil Remedies Division





Auburn Village
(CCN: 155666),
Petitioner,

v.

Centers for Medicare & Medicaid Services.
Docket No. C-20-580Decision No. CR5780December 18, 2020

        
              
    

      DECISION

I grant summary judgment in favor of the Centers for Medicare & Medicaid Services (CMS), sustaining its determination to impose remedies against Petitioner, Auburn Village, a skilled nursing facility, for noncompliance with Medicare participation requirements.  The remedies that I sustain include a per-diem civil money penalty for each day of the period running from February 6, 2020 through February 9, 2020, to address Petitioner’s immediate jeopardy level noncompliance.  They also include a per-diem civil money penalty for each day of the period running from February 10, 2020 through February 23, 2020, to address Petitioner’s continuing noncompliance at a scope and severity that is less than immediate jeopardy.1
  Petitioner also loses the authority to

Page 2

conduct a nurse aide training and competency evaluation program (NATCEP) as a consequence of its immediate jeopardy level noncompliance.

I. Background

CMS moved for summary judgment.  With its motion it filed 28 supporting exhibits that it identified as CMS Ex. 1-CMS Ex. 28.  Petitioner opposed the motion and filed seven supporting exhibits that it identified as P. Ex. 1-P. Ex. 7.

I do not receive these exhibits as evidence inasmuch as I grant CMS’s motion for summary judgment.  In this decision I cite to some of the exhibits, but only for the purpose of identifying facts that are not in dispute.

II. Issues, Findings of Fact and Conclusions of Law

**A. Issues**

The issues are whether, based on undisputed facts:  Petitioner failed to comply substantially with a Medicare participation requirement; CMS’s determination of immediate jeopardy level noncompliance is not clearly erroneous; and, CMS’s remedy determination is reasonable.

**B. Findings of Fact and Conclusions of Law**

CMS alleges that Petitioner failed to comply substantially with a Medicare participation requirement codified at 42 C.F.R. § 483.25(b)(1)(ii).  This regulation mandates that a skilled nursing facility ensure that a resident with pressure ulcers receives the necessary treatment and services, consistent with professional standards of practice, to promote healing, prevent infection, and prevent new ulcers from developing.  CMS asserts that Petitioner failed to comply with this requirement in providing care to a resident who is identified as Resident B.  It asserts additionally that Petitioner’s deficient care was so egregious as to pose immediate jeopardy for the resident.  Immediate jeopardy is defined by regulations to mean a compliance deficiency that causes, or is likely to cause, serious injury, harm, impairment, or death to a resident.  42 C.F.R. § 488.301.

The undisputed material facts amply support CMS’s allegations of immediate jeopardy level noncompliance.  Specifically, these facts establish that, in providing care to a resident (Resident B), Petitioner failed to:

identify and describe a pressure ulcer on the resident’s right hip, plan the care for that ulcer, and systematically treat it;
	provide appropriate treatment for a pressure ulcer on Resident B’s coccyx;Page 3

request the resident’s treating physician to order a dressing, a treatment that is necessary to promote the healing of pressure ulcers; and
	assure that the resident was attended to promptly by a wound specialist after the resident complained of discomfort from the ulcer on his coccyx.This deficient care violated Petitioner’s own policies for the identification and treatment of pressure ulcers, violated regulatory requirements, and endangered and seriously harmed Resident B.

I find the following facts to be undisputed.

Resident B was admitted to Petitioner’s facility on October 28, 2019.  CMS Ex. 2 at 3-4.  The resident suffered from several serious medical conditions, including Spina Bifida (a deformity of his spine), obesity, chronic respiratory failure, and end-stage renal disease.  CMS Ex. 5 at 5, 30.  These conditions left the resident severely impaired and highly dependent on caregivers.  The resident required a ventilator to breathe and was incontinent.  *Id.*at 29-30.  He had an indwelling catheter.  He needed assistance for activities of daily living that included toileting and transfers from his bed.  CMS Ex. 6 at 4-5, 10-12.

Resident B stayed at Petitioner’s facility from October 28, 2019 to November 29, 2019.  He was then transferred to an emergency room.  The physicians at the emergency room identified a severe ulcer on the resident’s lower back that was very foul smelling and bleeding.  CMS Ex. 11 at 4, 6.  The following day, the resident was transferred to another hospital and admitted to that facility’s intensive care unit.  CMS Ex. 12 at 7.  There, he was diagnosed with an extensive and unstageable ulcer involving his entire buttock.  *Id.* at 17.  He was also diagnosed with sepsis.  He died later that day.  *Id.* at 62-63, 101.

The resident had spent several weeks prior to his October admission to Petitioner’s facility at a specialty care hospital.  That facility assessed Resident B as suffering from several pressure ulcers.  These included pressure ulcers on the resident’s right hip and coccyx.  CMS Ex. 1 at 4-6.  The specialty care hospital staff treated the resident’s ulcers with dressings (iodosorb).  CMS Ex. 2 at 3-4.  These ulcers improved somewhat during the resident’s stay at the specialty hospital, decreasing in size during the course of the resident’s stay.  CMS Ex. 1 at 4-8, 10.

The discharge documents from the specialty hospital identified the pressure ulcers on Resident B’s coccyx and right hip and included treatment orders for these ulcers and other pressure ulcers.  CMS Ex. 2 at 3-4.

Page 4

The undisputed facts establish that Petitioner’s staff failed to identify the ulcer on the resident’s right hip at the time of his admission to the facility, failed to develop a treatment plan for that ulcer, and failed to monitor the ulcer’s progress.

Petitioner’s policy for treating pressure ulcers required that its staff make a head to toe assessment of a resident’s skin upon that resident’s admission to the facility.  CMS Ex. 22 at 7.  That policy required additionally that the staff maintain a description of each pressure ulcer, to be updated weekly.  *Id.* at 2.

The ulcer on Resident B’s hip was not small.  As of the date of discharge from the specialty hospital and admission to Petitioner’s facility, the specialty hospital’s records describe this ulcer as measuring 8.5 x 9.5 centimeters (about 3.5 x 3.7 inches).  CMS Ex. 1 at 8.  I take notice that these measurements identify an ulcer roughly corresponding in size to the palm of a human’s hand.

Petitioner’s staff failed to document the pressure ulcer on Resident B’s right hip when he was admitted.  The resident’s wound management records do not discuss this ulcer, addressing only the pressure ulcers on his coccyx.  CMS Ex. 5; CMS Ex. 7.  This failure was a gross dereliction by Petitioner’s staff of its duty to provide care to Resident B consistent with regulatory requirements.  No reasonably trained and competent staff would fail to document an ulcer on the resident’s hip the size of the one manifested by Resident B if the staff had performed the required head to toe skin assessment at the time of the resident’s admission.

The failure to document the pressure ulcer on Resident B’s hip at the time of his admission to the facility led to a failure to plan for or systematically address the care of this ulcer.  The resident’s wound management records and resident care plan do not address – in fact, do not even mention – the pressure ulcer on Resident B’s right hip.

The ulcer on Resident B’s hip eventually was noticed by a nurse on Petitioner’s staff.  That nurse first noted the presence of a pressure ulcer on November 5, 2019, a week after the resident was admitted to the facility.  The nurse made additional notes citing the ulcer’s presence on November 15, 16, 17, 19, 21, 26, and 28, 2019.  CMS Ex. 5 at 7-10, 14-16, 23.  However, merely recording the presence of an ulcer does not satisfy Petitioner’s own policy for identification and treatment of ulcers, much less does it comply with regulatory requirements.  These notes do not contain a description or measurement of the ulcer, in contravention of Petitioner’s wound care policy.  Nor do they even suggest a treatment plan to address the ulcer.  Finally, there are no treatment records that explain what – if anything – Petitioner’s staff did to care for the wound on the resident’s right hip.

The failures by Petitioner’s staff to identify, assess, monitor, plan the care of, and treat the pressure ulcer on Resident B’s right hip contravene professionally recognized

Page 5

standards of practice for treatment of pressure ulcers.  CMS Ex. 25 at ¶ 10.  These failures thus violate the regulation’s requirement that a skilled nursing facility provide necessary services to address and care for the resident’s pressure ulcers.

I would find regulatory noncompliance by Petitioner if these derelictions were the only failures by Petitioner to comply with regulatory requirements.  In fact, they are not the only compliance failures.

The undisputed facts establish that the staff failed to appropriately treat pressure ulcers situated on Resident B’s coccyx.  The treatments that the staff employed were inconsistent with professionally recognized standards of practice.  Furthermore, the staff neglected to address the resident’s complaints of discomfort relating to these ulcers.

The ulcers on the resident’s coccyx were substantial.  As of October 29, 2019, one of these ulcers – a wound on the resident’s lower buttocks – measured 8.5 centimeters (about 3.3 inches) in length by about one centimeter in width.  CMS Ex. 7 at 9.  A second ulcer, located near the resident’s anus, measured 4.5 centimeters by 3.1 centimeters (about 1.8 by about 1.4 inches).  *Id.* at 4.

As I discussed above, the specialty hospital at which Resident B had resided prior to his admission at Petitioner’s facility treated these ulcers and others by applying dressings.  Petitioner’s staff abandoned this treatment regime.  Instead, the staff opted to treat Resident B’s coccyx ulcers by applying barrier cream, gentamicin cream (an antibiotic cream), and Z Paste (an anti-irritant) to these ulcers.  CMS Ex. 8 at 1-2, 7.

Resident B’s treatment records offer no explanation for the staff’s decision to abandon the treatment regime employed by the specialty hospital.  Indeed, the resident’s plan of care does not explain why the staff thought that the treatment that it opted for would promote healing of the resident’s coccyx ulcers.  CMS Ex. 8 at 1-2, 7.

This unexplained change in treatment regime contravened professionally recognized standards of practice.  The appropriate treatment regime would have been to continue utilizing dressings as had been employed by the specialty hospital.  CMS Ex. 25 at ¶ 11.  Petitioner’s staff should have obtained an order from Resident B’s physician for dressings and then, applied the dressings as per the physician’s order.  *Id.*  It failed to do so.  That failure to comply with professionally recognized standards of practice is a regulatory violation.

The undisputed facts establish also that Petitioner’s staff failed to respond appropriately to Resident B’s complaints of discomfort.  On November 11, 2019, the resident asked for his coccyx to be examined.  The resident was experiencing discomfort in that region.  CMS Ex. 5 at 18.  Notwithstanding the resident’s complaints, Petitioner did not arrange a visit with a wound specialist until November 21, 2019.  CMS Ex. 9.  Petitioner provided

Page 6

no explanation for its failure to arrange a consultation with a wound specialist until ten days had elapsed from the resident voicing complaints.

Complaints of wound discomfort must be addressed quickly because such discomfort may be a sign of infection.  CMS Ex. 25 at ¶ 12.  Failure by Petitioner’s staff to promptly arrange an appointment violated professionally recognized standards of practice and the regulation’s requirements, because that failure not only prolonged the resident’s discomfort but put the resident at risk of sustaining an infection.

CMS determined that Petitioner’s failure to treat Resident B’s pressure ulcers consistent with Petitioner’s own policies, professionally recognized standards of practice, and regulatory requirements, was so egregious as to comprise immediate jeopardy level noncompliance.  I find this determination to be amply supported by the undisputed facts.

The failure to identify – much less treat – the ulcer on Resident B’s hip endangered the resident.  Pressure ulcers may have life-threatening consequences.  Additionally, the failure by staff to promptly arrange a consultation with a wound specialist after Resident B complained of discomfort in his coccyx region endangered the resident, because the discomfort is a sign of infection that required immediate attention.  CMS Ex. 25 at ¶ 12.

In finding immediate jeopardy level noncompliance I do not conclude that Petitioner’s noncompliant failure to treat Resident B’s pressure ulcers caused the resident’s death.  It is unnecessary for me to reach that conclusion in order to sustain CMS’s determination of immediate jeopardy based on the undisputed facts.  It suffices that I conclude that the noncompliance created a likelihood of serious injury, harm, or death to Resident B.  That is, as I have stated, amply supported by the undisputed facts.

I find CMS’s determinations to impose per-diem civil money penalties of $21,393 to remedy Petitioner’s immediate jeopardy level noncompliance and $110 to remedy Petitioner’s non-immediate jeopardy level noncompliance reasonable, as subsequently reduced by 50 percent due to Petitioner’s financial condition.

Regulations governing the amount of civil money penalties describe factors that may be considered in determining penalty amounts.  These factors include a facility’s culpability for its noncompliance, the seriousness of its noncompliance, and its financial condition.  42 C.F.R. §§ 488.438(f)(1)-(4), 488.404 (incorporated by reference into 42 C.F.R. § 488.438(f)(3)).  I find the penalty amounts to be justified here for the following reasons.

First, Petitioner’s staff was highly culpable for the failure to provide appropriate care to Resident B.  Only gross neglect can explain why the staff failed to identify the very large pressure ulcer on the resident’s hip, failed to assess and measure it, and failed to develop a plan to treat it.  That was an ulcer so large – the size of a human’s palm – that any reasonable staff member should have identified it instantly upon seeing the resident.  The

Page 7

fact that the staff failed to do so upon the resident’s admission to Petitioner’s facility leads inexorably to the conclusion that the staff was not paying even modest attention to this resident’s condition.

Similarly, Petitioner’s failure to promptly arrange for a wound consultant to examine the ulcers on Resident B’s coccyx was an act of gross neglect.  Staff should have known that the resident’s complaints were a sign of a possible infection.  Yet, staff allowed ten days to ensue between the resident’s voicing his complaints and a visit by a wound specialist.

The noncompliance was very serious.  As the undisputed facts establish, pressure ulcers that are neglected can become infected and can even lead to a victim’s death.  The wholesale failure by Petitioner’s staff to appropriately treat the ulcers manifested by Resident B plainly put this resident’s life in jeopardy.

CMS’s determination to reduce its penalty determinations by 50 percent is a discretionary act.  There are no facts in the record to show that this determination was inappropriate or that the penalty amount should have been reduced further.

I have considered Petitioner’s arguments in opposition to CMS’s motion for summary judgment and I find them to be without merit.

Petitioner argues, first, that Resident B’s pressure ulcers were unavoidable and that healing these ulcers was impossible.  Auburn Village’s Brief and Response to CMS’s Motion for Summary Judgment (Petitioner’s brief) at 2, 10-11.  However, whether pressure ulcers were avoidable is not at issue in this case.  CMS did not assert that Petitioner had failed to prevent the development of Resident B’s pressure ulcers.  CMS’s allegations focus entirely on the failure by Petitioner’s staff to provide care necessary to treat the ulcers that the resident manifested upon admission to the facility.

Petitioner also argues that one cannot conclude from undisputed facts that Resident B’s pressure ulcers resulted in his death.  Petitioner’s brief at 13.  As I have explained, my decision does not hinge on the issue of whether Resident B’s demise resulted from pressure ulcers or their complications.

Petitioner contends that there are issues of material fact that preclude the issuance of summary judgment.  Petitioner’s brief at 6-7, 13-14.  I am not persuaded by this assertion.

In discussing Petitioner’s claims that there are disputed facts I note, preliminarily, that a party does not identify a fact dispute simply by claiming that that one exists.  At times, Petitioner attempts to draw conclusions without citing to facts that might support them.  For example, Petitioner contends, without pointing to any evidence, that it “adamantly

Page 8

disagrees with the conclusion that it ignored Resident B’s wounds.”  Petitioner’s brief at 11.  That does not suffice to establish a fact dispute or a basis for denying CMS’s motion.

A party asserting a fact dispute must establish that there is a *genuine issue*of material fact that is supported by admissible evidence.  I find nothing in the record of this case to establish a dispute about the facts that I have identified as material.  Petitioner failed to identify any fact dispute that would affect the outcome of this case.

As Petitioner makes clear, much of its argument that there exist disputed material facts hinges on its assertion that Resident B’s pressure ulcers were unavoidable.  Petitioner’s brief at 13-14.  That is a red herring, for the reasons that I have explained.  Whether the resident’s pressure ulcers were avoidable is not at issue here.

What *might*be relevant would be facts presented by Petitioner that would address CMS’s allegations and evidence concerning the failure by Petitioner’s staff to provide requisite care to Resident B, and that would raise a dispute as to the accuracy or probative value of those facts.  I have examined Petitioner’s depiction of the facts to see whether they are relevant and supported by evidence.  I find nothing in Petitioner’s case that establishes a fact dispute.

Petitioner contends that “Resident B had multiple wounds upon his admission, which were monitored and treated at the Facility.”  Petitioner’s brief at 6.  That assertion does not address the facts presented by CMS that show that Petitioner’s staff failed to identify, assess, and treat the pressure ulcer on Resident B’s hip.  Indeed, Petitioner offers no facts that contradict CMS’s evidence that Petitioner’s staff failed to identify the pressure ulcer on the resident’s hip at the time of the resident’s admission, failed to develop a treatment plan for that ulcer, and failed to treat it.

Furthermore, the assertion that Petitioner’s staff “treated” Resident B’s pressure ulcers begs the question of whether the staff treated those ulcers appropriately.  Petitioner did not rebut evidence offered by CMS establishing that Petitioner’s staff applied inappropriate treatments to the pressure ulcers on Resident B’s coccyx and that the staff unreasonably delayed arranging for an examination of those ulcers by a wound care specialist.

Petitioner asserts that its staff “made note of Resident B’s wounds.”  Petitioner’s brief at 6.  Noting the existence of pressure ulcers begs the question of whether the staff appropriately monitored and treated those ulcers.  As I discussed above, a nurse on Petitioner’s staff made notes of the ulcer on Resident B’s hip.  That said, there is nothing in the record – and Petitioner hasn’t pointed to anything – that shows that the staff appropriately treated that ulcer.

Page 9

Petitioner also attempts to explain away its staff’s failure to identify the pressure ulcer on Resident B’s hip by contending that there “is a discrepancy between the identification of the resident wounds upon admission and throughout his stay at the facility and those identified at the hospital prior to his discharge to Auburn Village.”  Petitioner’s brief at 11.  It contends that this asserted “discrepancy” leads to the unfounded conclusion that Petitioner failed to identify and treat the pressure ulcer on Resident B’s hip.  *Id.*  Effectively, Petitioner argues that there is a fact dispute as to whether this pressure ulcer existed.

In order to accept this argument, I would have to conclude that there is a fact dispute concerning the accuracy of the specialty hospital’s identification of a pressure ulcer the size of the palm of a human’s hand on Resident B’s hip.  Petitioner has offered no evidence that would lead to that conclusion.  There is nothing in the record to suggest that the specialty hospital’s findings concerning that ulcer are inaccurate.  By contrast, it is clear from Petitioner’s own records that its staff failed to identify the ulcer on the resident’s hip at the time of his admission.  That is made evident by the fact that a nurse subsequently noted the presence of this ulcer.

Petitioner contends that there are treatment notes that address pressure ulcers manifested by Resident B in his “buttock/hip area.”  Petitioner’s brief at 6-7.  This effort to conflate the ulcer on the resident’s hip with those on his coccyx does not confront the evidence offered by CMS showing that Petitioner did not provide care for the resident’s hip ulcer.

Next, Petitioner avers that the resident was seen by a wound specialist on November 21, 2019 and contends that the specialist recommended changing the treatment regime for the ulcers on the resident’s coccyx.  Petitioner’s brief at 7.  That assertion begs the question of why the visit was delayed for ten days.  It also begs the question of whether the treatment that the wound care specialist provided was appropriate.  CMS offered expert testimony that the appropriate care would have been to apply a dressing to the resident’s pressure ulcers.  Petitioner has not asserted that this expert’s conclusion is incorrect.

CMS presented its evidence addressing Petitioner’s noncompliance with professionally recognized standards of care in the form of an affidavit executed by Dan R. Berlowitz, M.D., M.P.H.  CMS Ex. 25.  Petitioner filed a general request to cross examine any witness called by CMS, but did not specifically request to cross examine Dr. Berlowitz.

A request to cross examine a witness does not, by itself, create a fact dispute that is sufficient to overcome a motion for summary judgment.  In opposing CMS’s motion Petitioner was obligated – if it challenged Dr. Berlowitz’s testimony – to offer evidence that would refute that testimony or to at least explain why Dr. Berlowitz was incorrect.  It did neither.  Petitioner did not offer the testimony of a single witness.  Nor did Petitioner cite any evidence that contradicts Dr. Berlowitz’s opinions.  Consequently, Dr.

Page 10

Berlowitz’s testimony is unrebutted and Petitioner’s general request to cross examine witnesses does not raise a dispute as to a material fact.

Petitioner contends that there is a fact dispute as to whether Resident B’s pressure ulcers were infected as of November 28, 2019, the date when the resident was transferred from Petitioner’s facility.  Petitioner’s brief at 7.  Petitioner’s assertion and the exhibit that it cites contradict the findings made, first, at an emergency room and then, immediately thereafter, that the resident’s pressure ulcers on his coccyx were infected.  That dispute is not relevant to my decision in this case.  The deficient care that Petitioner provided to Resident B jeopardized the resident’s health and even his life whether or not the resident’s pressure ulcers became infected during the course of his stay at Petitioner’s facility.2

Petitioner relies on a statement issued by Dr. John Offerle, a physician at a hospital in Fort Wayne, Indiana, apparently as support for its overall assertion that it provided appropriate care to Resident B.  Petitioner’s brief at 9; *see* CMS Ex. 23.  Dr. Offerle opines that Resident B’s care “would meet the standard of care set forth by the Indiana State Medical Association.”  *Id.*  Neither CMS nor Petitioner provided testimony from Dr. Offerle.  Thus, his statement constitutes the sum total of his review of Resident B’s care.

Dr. Offerle addresses none of the deficiencies identified by CMS.  He does not discuss the failure by Petitioner’s staff to identify and care for the pressure ulcer on Resident B’s hip.  He does not address the issue of whether Petitioner’s staff appropriately treated the pressure ulcers on Resident B’s coccyx.  Nor does he discuss Petitioner’s delay in obtaining the visit of a wound care specialist to examine those pressure ulcers.  CMS Ex. 23.  I find his statement does not raise a fact dispute because it does not address CMS’s specific allegations.

Petitioner argues as a matter of fact that it provided substantial care for Resident B’s pressure ulcers.  Petitioner’s brief at 12.  To support that assertion, it offers a summary of the interventions that it made on the resident’s behalf.  *Id.* at 12-13.

Page 11

I accept Petitioner’s assertions of the care that it provided to Resident B as being true, for the purpose of deciding CMS’s motion for summary judgment.  However, the interventions provided by Petitioner do not respond to the allegations of noncompliance that CMS makes.  CMS identified specific deficiencies in the care that Petitioner provided to the resident.  The interventions described by Petitioner are not responsive to CMS’s allegations.

Petitioner asserts that the resident’s plan of care included “preventative repositioning, conducting weekly Braden assessments, utilizing barrier cream, pressure relieving air mattress, providing incontinent care, monitoring residents’ nutritional status during ‘Nutritionally at Risk’ meetings.”  Petitioner’s brief at 12.  None of these interventions – even assuming that they were performed – address the failure by Petitioner’s staff to identify the pressure ulcer on Resident B’s hip or to establish a plan of care for that ulcer.  None of these interventions address the failure by Petitioner’s staff to provide appropriate care – including obtaining a physician’s order to apply dressings – to Resident B.  And, none of these interventions relate to Petitioner’s delay in obtaining a wound specialist’s consultation.

Petitioner contends that, even if it failed to comply with participation requirements, there remains a dispute as to whether that noncompliance was so egregious as to comprise immediate jeopardy level noncompliance.  Petitioner’s brief at 14-16.

As a rule, a finding of immediate jeopardy noncompliance must be upheld unless that finding is clearly erroneous.  In responding to CMS’s motion for summary judgment, Petitioner is not obligated to prove that CMS’s immediate jeopardy finding is clearly erroneous.  However, it is responsible for adducing facts which could reasonably lead to a conclusion that the immediate jeopardy finding is clearly erroneous.  In other words, Petitioner must establish a fact dispute on the issue of whether there was immediate jeopardy level noncompliance.

Petitioner failed to do so.

The gravamen of Petitioner’s argument is that there is a dispute as to whether immediate jeopardy existed and that the findings of noncompliance are confined solely to the care that the staff provided to Resident B.  Petitioner argues that there is a question of fact about whether one can infer from the care that its staff gave to that resident that there was systemic noncompliance at its facility.  Petitioner’s brief at 14-16.

First, there is nothing in the regulations suggesting that, for a finding of immediate jeopardy to be sustained, there must be evidence showing that noncompliance is systemic.  The regulatory definition of immediate jeopardy makes it clear that the likelihood of serious injury, harm, impairment, or death involving even a single resident is sufficient to sustain a finding of immediate jeopardy.  42 C.F.R. § 488.301.  Facts

Page 12

offered by CMS addressing the likelihood of serious injury, impairment, harm, or death encountered by Resident B as a result of Petitioner’s noncompliance are all that are needed to sustain summary judgment if Petitioner does not offer facts that create a legitimate fact dispute.

Thus, the deficient care that Petitioner provided to Resident B is in and of itself sufficient to sustain CMS’s motion for summary judgment on the issue of immediate jeopardy.  I have explained why that care endangered the resident.  Petitioner has offered no facts that call into question that conclusion.

That said, it is not unreasonable to generalize from the care that Petitioner provided to Resident B to conclude that other residents at Petitioner’s facility were also in jeopardy.  As I have explained, Petitioner’s noncompliance was not simply deficient, but egregiously so.  Failing to identify and plan for the care of a pressure ulcer so large as the one extant on Resident B’s hip suggests a gross lack of comprehension by Petitioner’s staff of the urgent need to identify and care for pressure sores that posed the potential to be fatal.  Failure to continue with appropriate treatments for pressure ulcers indicates a generalized misunderstanding by the staff of how pressure ulcers needed to be cared for.  Failure to timely obtain the services of a wound specialist leads to the conclusion that Petitioner’s staff did not comprehend the risks of infection existing for a resident who suffered from pressure ulcers.

Petitioner argues that the civil money penalties that CMS determined to impose are unreasonable because there are disputes as to whether Petitioner was, in fact, noncompliant with participation requirements and whether that noncompliance, if it existed, was so egregious as to comprise immediate jeopardy.  Petitioner’s brief at 16-17.  I have addressed those assertions and need not revisit them.

Finally, Petitioner argues that the penalty amounts – albeit reduced by CMS – should be reduced further, even if they are otherwise justified.  Petitioner purports to justify an additional reduction because it allegedly is required to incur expenses as a consequence of the Covid-19 pandemic.  Petitioner’s brief at 17.  Petitioner has offered no evidence concerning its present financial condition.  In particular, it offers no facts to show that it is incapable of paying the reduced penalties that CMS determined to impose.  There is nothing of record, therefore, to support an additional reduction of penalty amounts.


          /s/
        Steven T. Kessel

                      Administrative Law Judge
      1. The immediate jeopardy level civil money penalty amount that CMS initially determined to impose is $21,393 per day.  The non-immediate jeopardy level civil money penalty amount is $110 per day.  CMS ultimately determined to reduce these penalty amounts by 50 percent based on findings that it made about Petitioner’s financial condition. back to note 1
                      2. Dr. Berlowitz testified that Petitioner’s records are impossible to reconcile with the emergency room and hospital diagnoses of sepsis made upon Resident B’s transfer from Petitioner’s facility.  CMS Ex. 25 at ¶¶ 13-16.  I do not make findings as to the accuracy of Petitioner’s records – even as I do not find that the resident’s ulcers were infected prior to his transfer – only because I want to make it clear that I am avoiding possible fact disputes in deciding this case.  That said, the evidence in Petitioner’s treatment records that suggest that the resident’s ulcers were possibly improving prior to his discharge is highly suspect. back to note 2 Back to top
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