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                              Liberty Health Care Center, DAB CR5416 (2019)
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Liberty Health Care Center, DAB CR5416 (2019)








  
  
    

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





Liberty Health Care Center,
(CCN:  675540),
Petitioner,
v.
Centers for Medicare & Medicaid Services
Docket No. C-17-980Decision No. CR5416September 10, 2019

        
              
    

      DECISION
The Centers for Medicare & Medicaid Services (CMS) moves for summary judgment, alleging that Liberty Health Care Center (Petitioner or facility) was not in substantial compliance with Medicare participation requirements at 42 C.F.R. §§ 483.10(c)(6), (c)(8), (g)(12) and 483.24(a)(3) and that the per-instance civil money penalty (CMP) imposed for Petitioner’s noncompliance is reasonable in amount. Petitioner contests these allegations and opposes CMS’s motion.
As explained below, I conclude that summary judgment is appropriate in this case because the evidence, even viewed in the light most favorable to Petitioner, establishes that: (1) Petitioner did not substantially comply with the Medicare participation requirements at 42 C.F.R. §§ 483.10(c)(6), (c)(8), (g)(12) and 483.24(a)(3); and (2) the per‐instance CMP imposed is reasonable. I therefore grant CMS’s motion for summary judgment.
I. Background and Procedural History
Petitioner is a skilled nursing facility (SNF) located in Liberty, Texas. CMS Exhibit (Ex.) 1 at 1. The Texas Department of Aging and Disability Services (state agency) completed a survey of Petitioner’s facility on May 17, 2017, and found that the facility was not in substantial compliance with Medicare participation requirements and that the
**Page 2**
conditions constituted immediate jeopardy. CMS Ex. 1; CMS Ex. 3. Based on the survey findings, CMS determined that the facility was not in substantial compliance with the following requirements:
42 C.F.R. §§ 483.10(c)(6), (c)(8), (g)(12) and 483.24(a)(3) (Tag F155–Right to Refuse; Formulate Advanced Directives) at scope and severity level L (widespread noncompliance that poses immediate jeopardy to resident health and safety);
		42 C.F.R. § 483.10(j)(2)-(4) (Tag F166–Right to Prompt Efforts to Resolve Grievances) at scope and severity level F (widespread noncompliance that causes no actual harm with the potential for more than minimal harm that is not immediate jeopardy);
		42 C.F.R. § 483.25(g)(4), (5) (Tag F322–Nursing Treatment/Services – Restore Eating Skills) at scope and severity level D (isolated instance of noncompliance that causes no actual harm with the potential for more than minimal harm that is not immediate jeopardy);
		42 C.F.R. § 483.45(b)(2), (b)(3), (g), (h) (Tag F431–Drug Records, Label/Store Drugs & Biologicals) at scope and severity level E (pattern of noncompliance that causes no actual harm with the potential for more than minimal harm that is not immediate jeopardy);
		42 C.F.R. § 483.75(g)(1)(i)-(iii), (g)(2)(i)-(ii), (h), (i) (Tag F520–QAA Committee Members/Meet Quarterly Plans) at scope and severity level L; and
		42 C.F.R. § 483.70(a) (Tags K351, K372–Life Safety from Fire) at scope and severity level F.
CMS Ex. 2 at 1. In a letter dated June 8, 2017, CMS informed Petitioner of its determination of substantial noncompliance, immediate jeopardy, and the imposition of a $16,907 per-instance CMP for noncompliance with Tag F155; CMS later revised the CMP to a $20,965 per-instance CMP. *Id.*at 2, 13. CMS initially notified Petitioner that it would terminate Petitioner’s Medicare and Medicaid Agreement and impose a denial of payment for new admissions, but after a revisit survey, CMS rescinded those remedies, finding that Petitioner had corrected the deficiencies cited as of June 16, 2017. *Id.* at 1‐3, 13.
Petitioner timely requested a hearing, and the case was assigned to me. On August 10, 2017, I issued an acknowledgment and pre-hearing order establishing a briefing schedule. In accordance with the schedule I set, CMS filed a prehearing exchange, including a combined prehearing brief and motion for summary judgment (CMS Br.), exhibit list,
**Page 3**
and 21 proposed exhibits (CMS Exs. 1-21). Petitioner also timely filed its prehearing exchange, including a combined opposition to CMS’s motion for summary judgment and prehearing brief (P. Br.), exhibit and witness lists, and 4 proposed exhibits (P. Exs. 1-4).
Petitioner objects to a number of CMS’s proposed exhibits, arguing that several overarching problems render the evidence unreliable. Petitioner’s objections include the following:
CMS’s exhibits, including the written direct testimony of its witnesses, rely heavily on impermissible hearsay;
		None of the surveyor notes submitted were properly authenticated;
		The witnesses’ written direct testimony does not identify the specific documents they reviewed to prepare their testimony; and
		The written direct testimony of CMS witness Rhonda L. Loden includes opinions on the issues of substantial compliance and immediate jeopardy, which are legal issues to be decided by the judge.
P. Br. at 16-21.
I overrule these general objections. In this administrative proceeding, I am not bound by the Federal Rules of Evidence when ruling on the admissibility of evidence. 42 C.F.R. § 498.61. Accordingly, Petitioner’s objections here do not serve as a basis for excluding evidence.1
 To the extent Petitioner objects to the testimony of any witness testimony as improper opinion testimony, I will disregard any witness testimony that purports to opine on the ultimate legal issues that are reserved for my decision.
Petitioner also objects to the written direct testimony of CMS’s witness Daniel J. McElroy. P. Br. at 20-22. Petitioner contends that Mr. McElroy’s testimony about the facility’s compliance history and the facts supporting the reasonableness of the remedy imposed is incorrect or at least inconsistent with the evidence in the record. *Id.*at 21-22 (arguing that this is the first noncompliance cycle, not the sixth, as Mr. McElroy testifies, and that no residents died from the deficiencies identified in the survey, contrary to Mr. McElroy’s testimony); *see also* P. Br. at 21 (arguing that Mr. McElroy’s testimony also violates the “Best Evidence Rule”).
For purposes of ruling on CMS’s motion for summary judgment, I exclude Mr. McElroy’s testimony (CMS Ex. 21) on the basis that it is irrelevant to my decision. After excluding CMS Ex. 21, I admit CMS Exs. 1-20 into the record. CMS has not objected to Petitioner’s exhibits, and so I admit Petitioner’s Exs. 1-4 into the record.
**Page 4**
II. Issues
The issues in this case are:
1. Whether summary judgment is appropriate;
2. Whether Petitioner failed to comply substantially with Medicare participation requirements; and
3. If Petitioner did not comply substantially with Medicare participation requirements, whether the remedy imposed is reasonable.
I note that, in addition to disputing CMS’s findings of noncompliance, Petitioner also challenges CMS’s immediate jeopardy determination. P. Br. at 3-9, 11-13; 15-16. Petitioner argues that the examples in the State Operations Manual (SOM) for immediate-jeopardy-level violations of Tag F155 do not “correlate to any of the residents involved in this survey.” P. Br. at 8.
The regulations do not permit me to review CMS’s immediate jeopardy determination in this case. I may review CMS’s scope and severity findings (including a finding of immediate jeopardy) only if: 1) a successful challenge would affect the range of the CMP; or 2) CMS has made a finding of substandard quality of care that results in the loss of approval of a facility’s nurse aide training program. 42 C.F.R. § 498.3(b)(14), (d)(10); *see also Cedar Lake Nursing Home*, DAB No. 2344 at 9 (2010); *Evergreen Commons*, DAB No. 2175 (2008), *aff’g*DAB CR1684 (2007); *Aase Haugen* *Homes*, DAB No. 2013 at 17-19 (2006).
In the case of a per-instance CMP, the regulations provide for a single penalty range ($2,097 to $20,965)2
 without regard to the level of noncompliance. 42 C.F.R. § 488.438(a)(2). Thus, the finding of immediate jeopardy does not affect the range of the CMP. Similarly, CMS’s scope and severity finding does not affect approval of the facility’s nurse aide training program. Under the statute and regulations, the state agency cannot approve the program if CMS imposes a penalty of $10,4833
 or more; the facility loses its approval without regard to the immediate jeopardy finding. Social Security Act (Act) § 1819(f)(2)(B); 42 C.F.R. § 483.151(b)(2)(iv). Accordingly, it is the dollar amount of the CMP, and not the level of noncompliance, that results in the loss of the
**Page 5**
facility’s nurse aide training program. For these reasons, I have no basis to review CMS’s determination that Petitioner’s deficiencies posed immediate jeopardy to its residents.
III. Jurisdiction
I have jurisdiction to hear and decide this case. Act §§ 1128A(c)(2), 1819(h)(2)(B)(ii) (codified at 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).
IV. Discussion
**A. Statutory and Regulatory Framework**
The Social Security Act sets requirements for SNF participation in the Medicare program. The Act authorizes the Secretary of the U.S. Department of Health & 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. parts 483 and 488.
A facility must maintain substantial compliance with program requirements in order to participate in Medicare. To be in substantial compliance, a facility’s deficiencies may pose no greater risk to resident health and safety than “the potential for causing minimal harm.” 42 C.F.R. § 488.301. A deficiency is a violation of a participation requirement established by sections 1819(b), (c), and (d) of the Act (42 U.S.C. § 1395i-3(b), (c), and (d)) or the Secretary’s regulations at 42 C.F.R. pt. 483, subpt. B. *Id.* “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 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 Act also authorizes the Secretary to impose enforcement remedies against SNFs that are not in substantial compliance with the program participation requirements. Act § 1819(h)(2) (42 U.S.C. § 1395i-3(h)(2)). Among other enforcement remedies, CMS may impose a per-instance CMP for each instance of noncompliance. 42 C.F.R. § 488.430(a). At the time of the May 2017 survey at issue in this case, the range for a per-instance CMP was $2,097 to $20,965. 42 C.F.R. § 488.438(a)(2).
**Page 6**
**B. Findings of Fact, Conclusions of Law, and Analysis**
***1. Summary judgment is appropriate.4***
Summary judgment is appropriate if there is “no genuine issue as to any material fact, and the moving party is entitled to judgment as a matter of law.” *Mission Hosp. Reg’l Med. Ctr.*, DAB No. 2459 at 5 (2012) (citations omitted). In order to prevail on a motion for summary judgment, the moving party must show that there is no genuine dispute of material fact requiring an evidentiary hearing and that it is entitled to judgment as a matter of law. *Id.* If the moving party meets this initial burden, the non-moving party must “come forward with ‘specific facts showing that there is a *genuine issue for trial* . . . .’” *Matsushita Elec. Indus. Co. v. Zenith Radio Corp.*, 475 U.S. 574, 587 (1986) (emphasis in original). “To defeat an adequately supported summary judgment motion, the non-moving party may not rely on the denials in its pleadings or briefs, but must furnish evidence of a dispute concerning a material fact—a fact that, if proven, would affect the outcome of the case under governing law.” *Senior Rehab. & Skilled Nursing Ctr.*, DAB No. 2300 at 3 (2010) (quoting *Matsushita*).
In evaluating a motion for summary judgment, an administrative law judge does not address credibility or evaluate the weight of conflicting evidence. *Holy Cross Village at Notre Dame, Inc.*, DAB No. 2291 at 5 (2009). Rather, in examining the evidence to determine the appropriateness of summary judgment, an administrative law judge must draw all reasonable inferences in favor of the non-moving party. *See Brightview Care Ctr.*, DAB No. 2132 at 10 (2007) (upholding summary judgment where inferences and views of non-moving party are not reasonable). “[A]t the summary judgment stage the judge’s function is not . . . to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.” *Anderson v. Liberty Lobby, Inc*., 477 U.S. 242, 249 (1986). However, drawing factual inferences in the light most favorable to the non-moving party does not require that I accept the non-moving party’s legal conclusions. *Cedar Lake Nursing Home*, DAB No. 2344 at 7.
Petitioner opposes CMS’s motion for summary judgment, but on the grounds that the undisputed facts do not support CMS’s *immediate-jeopardy determination*. P. Br. at 3-9. Petitioner points to certain evidence to dispute the basis for the immediate jeopardy determination and to otherwise show that the facility was in substantial compliance with the cited regulations. P. Br. at 4-6.
As I have explained above, Petitioner may not challenge CMS’s immediate jeopardy determination in the present case because the level of Petitioner’s alleged noncompliance
**Page 7**
does not affect the range of the CMP or the approval of the facility’s nurse aide training program. Moreover, to the extent that Petitioner raises arguments addressing the underlying findings of noncompliance, and not the scope and severity of the noncompliance, those arguments center not on what the facts are, but rather on the legal significance of those facts. I address Petitioner’s arguments that it complied substantially with Medicare participation requirements in my analysis below. I find there is no genuine dispute of material fact. Consequently, I conclude that summary judgment is appropriate in this case.5
***2. Petitioner was not in substantial compliance with 42 C.F.R. §§ 483.10(c)(6), (c)(8), (g)(12) and 483.24(a)(3) (Tag F155) because it failed to ensure that the advance directive information, including code status, for Resident (R)7, R50, and R616**was clear and accurate for staff to follow.***
SNF residents have the right “to request, refuse, and/or discontinue treatment” and “to formulate an advance directive.” 42 C.F.R. § 483.10(c)(6). *See also*42 C.F.R. § 483.10(c)(8) (section 483.10(c) does not give residents the right to receive medical treatment or medical services deemed medically unnecessary or inappropriate); 42 C.F.R. § 483.10(g)(12) (requiring facilities to inform residents in writing of their right to formulate an advance directive). An advance directive is “a written instruction, such as a living will or durable power of attorney for health care . . . relating to the provision of health care when the individual is incapacitated.” 42 C.F.R. § 489.100. The State Operations Manual (SOM) similarly provides that an advance directive could be a living will, a directive to the attending physician, a durable power of attorney for health care, a medical power of attorney, a pre-existing medical order for “do not resuscitate (DNR),” or another document that directs the resident’s health care. SOM, CMS Pub. 100-07, Appendix PP – Guidance to Surveyors for Long Term Care Facilities (Rev. 168, eff. 03‐08‐2017).7
**Page 8**
Further, a SNF must provide “the necessary care and services to ensure that a resident’s abilities in activities of daily living do not diminish.” 42 C.F.R. § 483.24(a). In so doing, the facility must ensure that its “[p]ersonnel provide basic life support, including CPR [cardiopulmonary resuscitation], to a resident requiring such emergency care . . . and subject to related physician orders and the resident’s advance directives.” 42 C.F.R. § 483.24(a)(3).
The surveyors concluded that Petitioner failed to implement its advance directive policy and failed to maintain accurate code status information for 3 of 19 residents reviewed: R7, R50, and R61. CMS Ex. 3 at 3. The surveyors also concluded that the facility’s failure placed the census of 63 residents at risk of not receiving life saving measures or receiving CPR against their wishes.8
 CMS Ex. 3 at 3. CMS relied on the surveyors’ findings in determining that Petitioner was not in compliance with 42 C.F.R. §§ 483.10(c)(6), (c)(8), (g)(12) and 483.24(a)(3) (Tag F155). *See, e.g.*, CMS Ex. 2 at 1-4.
Petitioner disputes these conclusions, arguing that it was in substantial compliance with the regulations cited by the state agency. Petitioner asks me to conclude that it complied with the participation requirements based on the following facts:
Petitioner had an advance directive policy to inform the residents about their right to accept or refuse medical treatment and Petitioner trained its personnel regarding its established written advance directive policy, consistent with section 483.10(g)(12);
		Each affected resident was permitted the opportunity to formulate and, in fact, communicated his or her advance directive to Petitioner consistent with section 483.10(c)(6); and
		No affected resident received any medically unnecessary or inappropriate treatment consistent with section 483.10(c)(8).
P. Br. at 3-9. Petitioner also argues that CMS did not prove that the facility failed to comply with section 483.24(a)(3) because CMS offered no evidence that Petitioner withheld CPR from any resident requiring such care. P. Br. at 6. For purposes of ruling on CMS’s motion for summary judgment, I accept as true the facts (but not the legal
**Page 9**
conclusions) Petitioner asserts. Nevertheless, based on the undisputed facts that I describe below, I conclude that Petitioner was not in substantial compliance with the cited regulations.
The surveyors documented (and Petitioner does not dispute) that Petitioner’s facility uses color-coded sheets in a resident’s medical record to display a resident’s code status. *See*P. Br. at 10-11. A red sheet indicates the resident has a DNR order in place, while a green sheet indicates the resident is full code.9
 *See, e.g.*, CMS Ex. 3 at 4; CMS Ex. 14 at 15 (information about a resident’s advance directive “shall be displayed prominently in the medical record”). Facility staff uses these color-coded sheets to determine a resident’s code status during medical emergencies. CMS Ex. 3 at 4. R7, R50, and R61 had conflicting or inaccurate code status documents in their charts. Specifically:
R7’s clinical record contained a green sheet indicating the resident was full code, an undated care plan documented that the resident was DNR, and physician orders for both DNR and full code. CMS Ex. 13 at 9, 16-17, 23. Similarly, R7’s admission record indicated his code status to be *both* DNR and full code. CMS Ex. 13 at 3.
		R50’s clinical record contained three conflicting pages: a red sheet for DNR, a green sheet for full code, and an Out of Hospital DNR Order (signed by the physician on March 20, 2017). CMS Ex. 14 at 6-8. During an interview with a surveyor, R50 stated that she had changed her previous full code status to DNR in March 2017. CMS Ex. 3 at 4 (meeting notes dated April 13, 2017, show that Resident 50 was DNR); *see also*CMS Ex. 14 at 18, 23, 75 (physician’s order and advance directive care plan show the resident was full code).
		R61’s clinical record contained two conflicting pages: a red sheet for DNR and an Out-of-Hospital DNR order that was not signed by the attending physician. CMS Ex. 16 at 4-6. Because the DNR order was not signed, the resident would be treated as full code based on the facility’s policy. CMS Ex. 3 at 6; *see also* CMS Ex. 14 at 14 (facility DNR policy), CMS Ex. 16 at 7 (care plan documenting resident was DNR).
Petitioner does not dispute that the medical records it maintained for the three residents contained inconsistent or otherwise inaccurate code statuses. P. Br. at 8, 11. I find that the inconsistent and inaccurate code statuses for the three residents at issue constitute a violation of the regulations at 42 C.F.R. §§ 483.10(c)(6), (c)(8), (g)(12) and 483.24(a)(3).
**Page 10**
The regulations cited at 42 C.F.R. §§ 483.10(c)(6), (c)(8), (g)(12) provide generally that SNF residents have the right to formulate an advance directive and that facilities are required to provide care consistent with the resident’s advance directives. While I agree that Petitioner had in place a policy to assist residents in formulating advance directives and to ensure that staff respected such directives, Petitioner’s own records contradict the assertion that facility staff in fact implemented the provisions of that policy. To be able to provide care consistent with a resident’s advance directives in medical emergencies, facilities must ensure that the resident’s advance directive information, including code status, is accurate and clear for the facility’s staff to follow. Here, the facility failed to do so for three residents, and this failure placed those residents at risk of receiving or not receiving care against their wishes.
Moreover, section 483.24(a)(3) specifically requires facilities to “ensure” that its personnel provide, for example, CPR to a resident requiring such emergency care and “subject to related physician orders and the resident’s advance directives.” By failing to correct conflicting and inaccurate code status records for the three residents, I find that Petitioner did not “ensure” its personnel would provide CPR subject to related physician orders and advance directives, and Petitioner therefore was out of substantial compliance with the plain terms of the regulation.
SOM Appendix PP provides further support for this conclusion. Appendix PP provides that a facility promotes resident rights to make advance directives and to be treated in accordance with them by “helping the resident to exercise these rights”; “incorporating the resident’s choices regarding these rights into treatment, care and services”; and “[e]stablishing mechanisms for documenting and communicating the resident’s choices to the interdisciplinary team,” among other requirements. Appendix PP specifically provides that the facility is in compliance with Tag F155 if, among other things, the facility has:
Incorporated the resident’s choices into the medical record and orders related to treatment, care and services;
		Consistently maintained advance directives and resident goals . . . in the same section of the clinical record or other document filing system for all appropriate residents, where those documents are easily retrievable by staff during both routine and urgent or emergent situations; and
		Monitored the care and services given to the resident to ensure that they are consistent with the resident’s documented choices and goals.
SOM, CMS Pub. 100-07, Appendix PP. Measured by this guidance, Petitioner was not in compliance with Tag F155. The facility failed to maintain clear and accurate advance directive information in the medical records for the three residents, placing those
**Page 11**
residents at risk of not receiving care consistent with their choices during medical emergencies.
Contrary to Petitioner’s arguments (P. Br. at 8‐9, 15-16), I need not find that the inconsistent and inaccurate code statuses resulted in actual harm to the residents to determine that Petitioner was out of substantial compliance with the requirement to respect residents’ advance directives. To be in substantial compliance, a facility’s deficiencies may pose no greater risk to resident health and safety than “the potential for causing minimal harm.” 42 C.F.R. § 488.301. Here, as Petitioner acknowledges, the inconsistent and inaccurate code statuses had the potential to result in more than minimal harm.10
 If any of the three residents had experienced a medical emergency, the facility’s staff might have provided or withheld treatment against the resident’s wishes. Petitioner was fortunate that its documentation errors did not result in actual harm to its residents, but that fact does not establish that Petitioner was in substantial compliance with the cited regulations.
For all these reasons, I conclude as a matter of law that Petitioner did not comply substantially with 42 C.F.R. §§ 483.10(c)(6), (c)(8), (g)(12) and 483.24(a)(3).
***3. Petitioner has no right to a hearing with respect to the deficiency cited at Tag F520 because CMS did not impose a remedy for that deficiency.***
In addition to disputing the findings related to Tag F155, Petitioner argues that it should have the opportunity to challenge the Tag F520 deficiency, which involved a finding that the facility failed to meet quarterly to identify quality assessment issues and to develop and implement plans of action to correct those issues, as required by 42 C.F.R. § 483.75(g). P. Br. at 9-10. Petitioner argues that the deficiency will hurt its record, which, in turn, will result in the loss of future income, and so denying it the opportunity to challenge the deficiency amounts to a deprivation of property without due process. *Id*. I reject these arguments.
The hearing rights of a long-term care facility are established by federal regulations at 42 C.F.R. Part 498. A provider dissatisfied with an initial determination is entitled to further review, but administrative actions that are not initial determinations are not subject to appeal. 42 C.F.R. § 498.3(a), (d). The regulations specify which actions are “initial determinations” and set forth examples of actions that are not. With an exception not applicable here, a finding of noncompliance that results in the imposition of a remedy
**Page 12**
specified in 42 C.F.R. § 488.406 is an initial determination for which a facility may request administrative law judge review. 42 C.F.R. § 498.3(b)(13). But a facility has no right to a hearing if CMS does not impose one of the specified remedies. *Lutheran Home‐Caledonia*, DAB No. 1753 (2000); *Schowalter Villa*, DAB No. 1688 (1999); *Arcadia Acres, Inc.*, DAB No. 1607 (1997). The remedy, not the citation of a deficiency, triggers the right to a hearing. *Schowalter Villa*, DAB No. 1688 at 3; *Arcadia Acres, Inc.*, DAB No. 1607 at 3. Where CMS withdraws proposed remedies or otherwise declines to impose remedies, Petitioner has no hearing right. *See*, *e.g.*, *Fountain Lake Health & Rehab., Inc.*, DAB No. 1985 at 5-6 (2005).
Aside from the per-instance CMP for the F155 deficiency, no other findings of noncompliance resulted in the *imposition of a remedy* *specified in* 42 C.F.R. § 488.406. CMS Ex. 2 at 13. The potential harms Petitioner complains of are not such remedies. Petitioner therefore does not have the right to dispute, and I do not have the authority to review, CMS’s findings of noncompliance with 42 C.F.R. § 483.75(g) (Tag F520).
***4. The remedy imposed is reasonable.***
Regarding the amount of the CMP, I examine whether a CMP is reasonable by applying 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 § 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 that CMS proposed, the administrative law judge must sustain it. *Coquina Ctr.*, DAB No. 1860 at 32 (2002).
The regulations leave the decision regarding the choice of remedy to CMS, and the amount of the remedy to CMS and the administrative law judge, requiring only that the regulatory factors at §§ 488.438(f) and 488.404 be considered when determining the amount of a CMP within a particular range. 42 C.F.R. §§ 488.408, 488.408(g)(2), 498.3(d)(11); *see also*42 C.F.R. § 488.438(e)(2) and (3); *Alexandria Place*, DAB No. 2245 at 27 (2009); *Kenton Healthcare, LLC*, DAB No. 2186 at 28-29 (2008).
Here, CMS decided to impose a $20,965 per-instance CMP for Petitioner’s noncompliance, the then-maximum amount for a per-instance CMP. CMS Ex. 3 at 13. CMS contends that the remedy is reasonable in light of the severity of the noncompliance and the potential immediate jeopardy for resident outcomes. CMS Br. at 12-13.
**Page 13**
In response, Petitioner points out that, besides the noncompliance itself, CMS does not provide any support for its claim that the CMP amount imposed here is reasonable and CMS does not specifically discuss the factors it considered for determining the CMP amount. P. Br. at 23. Petitioner also argues that the record in fact supports a reduced CMP, pointing out again that none of the residents was actually harmed and that the facility did not have a previous noncompliance history. P. Br. at 23.
Although CMS did not offer an extended discussion for the reasonableness of the CMP imposed, I nevertheless agree with CMS that the seriousness of the deficiency justifies the CMP amount imposed.
Petitioner’s noncompliance placed its residents at risk of serious harm. If any of the three residents had experienced a medical emergency, there was a risk that they would not receive timely treatment during the emergency and thereby suffer potentially serious and even life-threatening harm, not because of the emergency itself, but because of Petitioner’s failures to maintain clear, accurate records of the resident’s advance directive information. Given the errors in the residents’ charts, the facility’s staff might have provided or withheld treatment against the residents’ wishes. Moreover, there is no excuse for a resident’s chart to contain a red sheet and a green sheet (or two conflicting code status documents), one in front of the other, as was the case for R50 and R61. These discrepancies should have been obvious and corrected immediately, and so some level of culpability is apparent here.11
Contrary to Petitioner’s position, a regulatory violation need not cause actual harm to rise to the level of noncompliance authorizing CMS to impose enforcement remedies, including the per-instance CMP imposed here. 42 C.F.R. §§ 488.301, 488.402(b), 488.438(a). Accordingly, even if the facility’s residents did not suffer any adverse consequences from the facility’s deficiencies, this was fortuitous. The facility’s good fortune does not undermine my conclusion that the nature of the deficiency here was very serious and justifies the amount of the per-instance CMP imposed.
These factors more than outweigh Petitioner’s arguments about its compliance history. Petitioner also does not claim that its financial condition affects its ability to pay the CMP. Accordingly, I find that the $20,965 per-instance CMP imposed here is reasonable.
**Page 14**
V. Conclusion
For the reasons explained above, I conclude that the undisputed facts of record demonstrate that Petitioner was not in substantial compliance with the participation requirements at 42 C.F.R. §§ 483.10(c)(6), (c)(8), (g)(12) and 483.24(a)(3). I further conclude that the $20,965 per-instance CMP imposed here is reasonable. In light of the foregoing, I grant CMS’s motion for summary judgment.


          /s/
        Leslie A. Weyn

                      Administrative Law Judge
      1. In cases where material facts are in dispute, I would evaluate Petitioner’s objections in deciding what weight to give to the evidence.  But, because I decide this case based on undisputed facts, I need not engage in this inquiry. back to note 1
                      2. CMP amounts increased, effective February 3, 2017, for deficiencies occurring after November 2, 2015.  See 82 Fed. Reg. 9174, 9182, (Feb. 3, 2017). back to note 2
                      3. Likewise, the CMP dollar amount that triggers disapproval of a nurse aide training program was adjusted upward for 2017.  82 Fed. Reg. 9174 at 9188. back to note 3
                      4. My conclusions of law appear as numbered headings in bold italic type.  My findings of undisputed fact appear in the supporting text. back to note 4
                      5. Petitioner requested to cross-examine three of CMS’s four proposed witnesses, as well as an additional adverse witness.  P. Br. at 1.  However, because I find that summary judgment is appropriate in this case, such cross-examination is not necessary. back to note 5
                      6. To protect their privacy, I refer to the residents by the numerical identifiers assigned to them during the survey. back to note 6
                      7. Petitioner offered a draft revision of SOM Appendix PP as P. Ex. 1.  The draft revision was effective November 28, 2016.  See P. Ex. 1 at 2.  Although the content of P. Ex. 1 appears largely consistent with the content of Rev. 168, I refer to Rev. 168 when citing to SOM Appendix PP, as Rev. 168 became effective after the draft in P. Ex. 1, but before the date of the survey at issue. back to note 7
                      8. The surveyors also alleged that the facility failed to include provisions to inform and provide written information to all adult residents concerning the right to accept or refuse medical or surgical treatment and, at the resident’s option, formulate an advance directive.  CMS Ex. 3 at 2-3.  The surveyors and CMS, however, did not further elaborate on this particular allegation.  Regardless, I need not resolve whether the facility failed to provide the requisite written information, as there is no dispute that the facility failed to maintain accurate code status and advance directive information for three residents, which, as explained below, is dispositive in this case. back to note 8
                      9. Full code status indicates that all appropriate life-saving measures, including attempts at resuscitation, should be used to save the person’s life. back to note 9
                      10. Petitioner acknowledges that its documentation was deficient in that the facility “had not yet obtained medical orders that were consistent with each resident’s choice” and that one resident’s choice “was not made clear.”  P. Br. at 12.  Petitioner further admits that its deficient practice “reflects the potential for more than minimal harm.”  Id. at 13. back to note 10
                      11. Indeed, the record suggests that Petitioner was aware that there “was a problem with advance directives” prior to the survey, but had not taken steps to correct the problem.  See CMS Ex. 3 at 7.  This suggests, at a minimum, indifference or disregard for resident safety. back to note 11 Back to top
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