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                              Rehabilitation Center at Hollywood Hills, LLC, DAB CR5232 (2019)
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Rehabilitation Center at Hollywood Hills, LLC, DAB CR5232 (2019)








  
  
    

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





Rehabilitation Center at Hollywood Hills, LLC,

(CCN: 10-5021),

Petitioner,

v.

Centers for Medicare & Medicaid Services
Docket No. C-18-169Decision No. CR5232January 16, 2019

        
              
    

      DECISION

Petitioner, Rehabilitation Center at Hollywood Hills, LLC, was a long-term care facility located in Hollywood, Florida, that, until recently, participated in the Medicare program. In the aftermath of Hurricane Irma, the facility’s air conditioning system stopped functioning, and its residents languished in sweltering conditions. Eight of them died of heat stroke caused by environmental heat exposure, leading the Broward County Medical Examiner to pronounce their deaths “homicides.”

Thereafter, the Centers for Medicare & Medicaid Services (CMS) determined that the facility was not in substantial compliance with Medicare program requirements and that its deficiencies posed immediate jeopardy to resident health and safety. CMS imposed a civil money penalty (CMP) of $20,965 per day for four days of immediate jeopardy and terminated the facility’s program participation. Petitioner appealed, and CMS now moves for summary judgment.

I grant CMS’s motion. The undisputed evidence establishes that, from at least September 10 through 13, 2017, the facility was not in substantial compliance with Medicare

**Page 2**

program requirements; its deficiencies posed immediate jeopardy to resident health and safety; and the penalties imposed are reasonable.

BACKGROUND

The Social Security Act (Act) sets forth requirements for nursing facilities to participate in the Medicare program and authorizes the Secretary of Health and Human Services to promulgate regulations implementing those statutory provisions. Act § 1819. The Secretary’s regulations are found at 42 C.F.R. Part 483. To participate in the Medicare program, a nursing facility must maintain substantial compliance with program requirements. To be in substantial compliance, a facility’s deficiencies may pose no greater risk to resident health and safety than “the potential for causing minimal harm.” 42 C.F.R. § 488.301.

In a situation like this one – with its potential for criminal or civil liability – it is important to distinguish the Medicare “substantial compliance” standard from those applied in other types of cases. I am *not* deciding whether anyone associated with the facility is guilty of homicide or criminal neglect; I *am* deciding whether the facility kept its residents sufficiently comfortable to avoid the risk of more than minimal harm. *See* *Jennifer Matthew Nursing & Rehab. Ctr.*, DAB No. 2192 at 25 (2008). To make that determination, I need not find malevolent intent; I need not find a connection between the resident deaths and the facility’s actions (or inactions) nor even an actual injury. *Id.* at 5-6, 9 (criticizing a facility’s “misdirected” and “irrelevant” argument that CMS failed to show actual harm to residents). And, significantly, the facility, not CMS, has the ultimate burden of proving, by a preponderance of the evidence, that it was in substantial compliance. *Id.* at 2 (citing*Batavia Nursing. & Convalescent Ctr.*, DAB No. 1904 (2004), *aff’d, Batavia Nursing & convalescent Ctr.*, 129 F. App’x 181 (6th Cir. 2005)); *see also Jennifer Matthew* at 20-21, n.12.

The Secretary contracts with state survey agencies to conduct periodic surveys to determine whether skilled nursing facilities are in substantial compliance. Act § 1864(a); 42 C.F.R. § 488.20. Each facility must be surveyed annually, with no more than fifteen months elapsing between surveys. Facilities must be surveyed more often, if necessary, to ensure that identified deficiencies are corrected. Act § 1819(g)(2)(A); 42 C.F.R. §§ 488.20(a); 488.308. The state agency must also investigate all complaints. Act § 1819(g)(4).

Here, responding to a report of resident deaths, surveyors from the Florida Agency for Health Care Administration (state agency) arrived at the facility on September 13, 2017, to investigate. They were unable to conduct a normal survey, however, because, when they arrived, the residents had been evacuated, and the facility was an active crime scene. CMS Ex. 51 at 1; CMS Ex. 91 at 208-209, 214, 219 (Sosiak Testimony). Nevertheless, over the next nine days, they completed an investigation. CMS Ex. 1.

**Page 3**

Based on the state agency’s findings, CMS determined that the facility was not in substantial compliance with four Medicare participation requirements. Specifically:

42 C.F.R. § 483.10(i) (Tag F252 – resident rights; safe environment) at scope and severity level K (pattern of noncompliance that poses immediate jeopardy to resident health and safety);42 C.F.R. § 483.12(a)(1) (Tag F223 – freedom from abuse, neglect, and exploitation) at scope and severity level K;42 C.F.R. §§ 483.24, 483.25(k) and (*l*) (Tag F309 – quality of life; quality of care) at scope and severity level K; and42 C.F.R. § 483.70 (Tag F490 – administration) at scope and severity level K.CMS Exs. 1, 2.

CMS terminated the facility’s Medicare participation, effective October 13, 2017. It imposed a CMP of $20,965 per day for four days of immediate jeopardy (September 10-13, 2017), for a total penalty of $83,860. CMS Ex. 3 at 1-2. Petitioner appeals, and CMS has moved for summary judgment.

ISSUES

I must consider whether summary judgment is appropriate.

On the merits, the issues before me are:

from September 10 through 13, 2017, was the facility in substantial compliance with Medicare program requirements;if the facility was not then in substantial compliance, did its deficiencies pose immediate jeopardy to resident health and safety; andif the facility was not in substantial compliance, is the CMP imposed – $20,965 per day – reasonable.So long as I find that the facility was not in substantial compliance, I may not review CMS’s choice of remedy, which includes its choice to terminate the facility’s program participation. 42 C.F.R. §§ 488.408(g)(2); 498.3(d)(11); 498.5(b).

**Page 4**

DISCUSSION

**Summary judgment**. Summary judgment is appropriate if a case presents no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law. *Bartley Healthcare Nursing & Rehab.*, DAB No. 2539 at 3 (2013) (citing*Celotex Corp. v. Catrett*, 477 U.S. 317, 322-25 (1986)); *Ill. Knights Templar Home*, DAB No. 2274 at 3-4 (2009), and cases cited therein.

The moving party may show the absence of a genuine factual dispute by presenting evidence so one-sided that it must prevail as a matter of law or by showing that the non-moving party has presented no evidence “sufficient to establish the existence of an element essential to [that party’s] case, and on which [that party] will bear the burden of proof at trial.” *Livingston Care Ctr. v. Dep’t of Health & Human Servs.*, 388 F.3d 168, 173 (6th Cir. 2004) (quoting *Celotex Corp.*, 477 U.S. at 322). To avoid summary judgment, the non-moving party must then act affirmatively by tendering evidence of specific facts showing that a dispute exists. *Matsushita Elec. Indus. Co. Ltd. v. Zenith Radio Corp.*, 475 U.S. 574, 586 n.11 (1986); *see also Vandalia Park*, DAB No. 1939 (2004); *Lebanon Nursing & Rehab. Ctr.*, DAB No. 1918 (2004). The non-moving party may not simply rely on denials, but must furnish admissible evidence of a dispute concerning a material fact. *Ill. Knights Templar*, DAB No. 2274 at 4; *Livingston Care Ctr*., DAB No. 1871 at 5 (2003). In doing so, the non-moving party must show *more than “some metaphysical doubt* as to the material facts.” *West Texas LTC Partners, Inc. v. U.S. Dep’t of Health & Human Servs.*, 843 F. 3d 1043 (5th Cir. 2016) (emphasis added); *1866ICPayday, Inc.*, DAB No. 2289 at 3 (2009) (quoting *Matsushita Elec. Indus. Co.*, 475 U.S. at 587).

In examining the evidence for purposes of determining the appropriateness of summary judgment, I must draw all reasonable inferences in the light most favorable to the non-moving party. *Brightview Care Ctr.*, DAB No. 2132 at 2, 9 (2007); *Livingston Care Ctr.*, 388 F.3d at 172; *Guardian Health Care Ctr.*, DAB No. 1943 at 8 (2004); *but see* *Brightview*, DAB No. 2132 at 10 (entry of summary judgment upheld where inferences and views of non-moving party are not reasonable). 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. *West Texas LTC Partners, Inc.*, DAB No. 2652 at 6-7, 14-15 (2015); *Cf. Guardian Health Care Ctr.*, DAB No. 1943 at 11 (“A dispute over the conclusion to be drawn from applying relevant legal criteria to undisputed facts does not preclude summary judgment if the record is sufficiently developed and there is only one reasonable conclusion that can be drawn from those facts.”).

Here, CMS has come forward with compelling evidence – primarily the facility’s own documents (or the absence of necessary documentation), as well as weather reports, medical treatises, and unchallenged expert opinions – showing that the facility was not in substantial compliance with program requirements. Petitioner responds by objecting to

**Page 5**

CMS’s evidence, by raising “metaphysical doubts,” and by asking me to draw unreasonable inferences; it fails to produce admissible evidence establishing a material fact in dispute.

**Petitioner’s disregard of my initial order interfered with the speedy and orderly conduct of these proceedings**. Petitioner supports its factual assertions, opinions, legal theories, and conclusory statements with string citations to multi-page exhibits. Violating my orders, Petitioner cites no specific page numbers. In my initial order, I directed the parties to “cite the exhibit number *and relevant page number*.” Acknowledgment and Initial Pre-hearing Order at 4, ¶ 7 (“If a party’s argument relies on a particular exhibit, the party *must* cite the exhibit number and relevant page number.”) (emphasis added). Throughout its brief, Petitioner cites generally to exhibits but includes no page numbers, making it difficult (in some cases impossible) to determine the exact evidence upon which it relies for any particular proposition. The density of the record compounds the problem. This case has already been investigated and litigated in another forum and has generated massive numbers of documents, as well as days of video footage. Virtually every witness has been examined and cross-examined; the record includes written declarations, depositions, and testimony from the state administrative hearing.

Petitioner’s failing to comply with my order has interfered with the speedy and orderly conduct of these proceedings. I either ignore the evidence entirely or parse through multiple pages of documents (which I am not required to do) to find the support for Petitioner’s assertions. As I advised the parties in my initial order, the Act authorizes me to sanction a party that fails to comply with my orders. Pre-hearing Order at 5, ¶ 11; Act § 1128A(c)(4). Among those sanctions, I may prohibit a party from relying on certain evidence. Act § 1128A(c)(4)(B). In this case, I have generally reviewed the cited exhibits as much as practicable, looking for the relevant evidence that might support my finding a material fact in dispute; however, Petitioner has waived its right to rely on any evidence not cited in accordance with my order.

**Petitioner’s objections to CMS’s evidence**. Petitioner complains that, in presenting its evidence supporting summary judgment, CMS impermissibly exceeded the contents of the survey report form. In Petitioner’s view, the statement of deficiencies rigidly frames the scope of the evidence that can be admitted. The Departmental Appeals Board (Board) has repeatedly and definitively rejected this position. In *Pacific Regency Arvin*, the Board held that the statement of deficiencies is “not designed to lay out every single detail in support of a finding that a violation has been committed.” DAB No. 1823 at 9 (2002). There, the Board faulted the administrative law judge for *not*looking beyond the specifics alleged in the statement of deficiencies. *Id.* at 9, 10; *accord*, *Life Care Ctr. of Bardstown*, DAB No. 2479 at 7 (2012) (holding that, so long as Petitioner has notice and a meaningful opportunity to be heard, CMS may raise issues and present evidence of facts not specifically raised in the statement of deficiencies), *aff’d*, *Life Care Ctr. of Bardstown v. Secretary*, 535 F. App’x 468 (6th Cir. 2013).

**Page 6**

Moreover, the authorities Petitioner relies on – three administrative law judge decisions and one regulation – do not, in fact, help it. First, as the Board never tires of reminding us, decisions by administrative law judges are not precedential. *Donald W. Hayes, D.P.M.*, DAB No. 2862 at 6, n.8 (2018); *Avalon Place Trinity*, DAB No. 2819 at 12 (2017); *Green Oaks Health & Rehab. Ctr.*, DAB No. 2567 at 9 (2014).

Second, at least two of the decisions Petitioner relies on simply do not support its position. In *Pinehurst Healthcare & Rehab. Ctr.*, the facility objected because CMS introduced evidence concerning a resident who was not mentioned in the statement of deficiencies. DAB CR1854 at 11 (2008). The judge did not explicitly rule on the objection, but tacitly overruled it because, in deciding whether the facility was in substantial compliance, he considered the challenged evidence. *Id.* at 11-12 , *aff’d in part*, DAB No. 2246 (2009).

The second case, *West Miami CMHC, Inc.*, further undercuts Petitioner’s position. The case is a supplier enrollment appeal. Although the same procedural regulations (42 C.F.R. Part 498) generally apply to both nursing home and provider and supplier enrollment appeals, there are some differences. Section 498.58 applies solely to the provider and supplier cases. It precludes the provider or supplier from introducing new documentary evidence at the hearing level absent a showing of good cause.1
 That this limitation *does not apply* to nursing home appeals underscores the fact that new evidence is admissible here. Ironically, considering Petitioner’s reliance on the case, the judge in *West Miami* found good cause and admitted the new evidence. DAB CR2315 at 6-7 (2011).

Finally, Petitioner cites 42 C.F.R. § 498.56(b) to support its position that CMS must limit its evidence to the contents of the survey report form and the notice letter. Section 498.56(b) does not say that. To the contrary, it allows me to consider new issues so long as they arose before the completion date of the survey upon which the termination is based or the effective date of the termination. 42 C.F.R. § 498.56(b)(5). That Petitioner misunderstands section 498.56 is well-illustrated by its complaints about the evidence CMS has produced, which include: the recorded temperatures in Hollywood, Florida, on September 13; the venting of the facility’s spot coolers during the period of alleged substantial noncompliance; witness reports of facility temperatures during that time; and the results of resident autopsy reports. All of this evidence is relevant to the conditions in the facility *prior* to the completion of the survey and the termination of the facility’s

**Page 7**

program participation. Nothing in section 498.56 nor any other provision governing these proceedings precludes me from considering such evidence.

***1. CMS is entitled to summary judgment because the undisputed evidence establishes that facility staff were aware of the approaching hurricane but did not adequately prepare. The facility did not assess its residents to determine who was most susceptible to heat-related illnesses. When the air-conditioning failed, the facility did not ensure that resident room temperatures were comfortable and safe. Staff did not follow physician orders or resident care plans; they did not, completely and accurately, document resident progress; and they did not provide vulnerable residents with necessary and appropriate care. This put the facility out of substantial compliance with 42 C.F.R. §§*** ***483.10(i), 483.12(a)(1), 483.24, 483.25(k) and (l), and 483.70.2***

**Program requirement: 42 C.F.R. §** **483.10(i) (Tag F252)**. Each resident has the right to a safe, clean, comfortable, and homelike environment, which includes receiving treatment and supports for daily living safety. For facilities initially certified after October 1, 1990, this means that they must maintain a temperature range of 71o to 81o Fahrenheit (F). 42 C.F.R. § 483.10(i)(6). Although that regulation apparently does not apply directly to Petitioner – at least, CMS does not rely on it – it offers some guidance as to which temperatures are safe and which are not. CMS Ex. 100 at 37 (Casa Deposition) (agreeing that a facility temperature above 81oF puts residents at increased risk); CMS Ex. 98 at 50 (Williams Deposition).

**Program requirement: 42 C.F.R. §** **483.12(a)(1) (Tag F223)**. Each resident has the right to be free from abuse, neglect, misappropriation of his/her property, and exploitation. 42 C.F.R. § 483.12. Neglect is the failure of the facility, its employees, or service providers to provide, to a resident, the goods and services necessary to avoid physical harm, pain, mental anguish, or emotional distress. 42 C.F.R. §§ 483.5, 488.301.

**Program requirement: 42 C.F.R. §§** **483.24 and 483.25 (Tag F309)**. The regulations characterize “quality of life” and “quality of care” as “fundamental” principles that apply “to all care and services provided to facility residents.” Under the Medicare statute and these regulations, each resident must receive, and the facility must provide, necessary treatment and care to allow a resident to attain or maintain the highest practicable physical, mental, and psychosocial well-being, in accordance with the resident’s comprehensive assessment and person-centered plan of care. Act § 1819(b); 42 C.F.R. §§ 483.24; 483.25. The regulations impose on facilities an affirmative duty designed to achieve favorable outcomes “to the highest practicable degree.” *Windsor Health Care*

**Page 8**

*Ctr.*, DAB No. 1902 at 16-17 (2003), *aff’d*, *Windsor Health Ctr. v. Leavitt*, 127 F. App’x 843 (6th Cir. 2005); *Woodstock Care Ctr.*, DAB No. 1726 at 25-30 (2000), *aff’d*,*Woodstock Care Ctr. v. Thompson*, 363 F.3d 583 (6th Cir. 2003).3

**Program requirement: 42 C.F.R. §** **483.70 (Tag F490)**. The facility must be administered in a manner that enables it to use its resources effectively and efficiently to attain or maintain the highest practicable physical, mental, and psychosocial well-being of each resident.

**a. The facility’s inadequate planning and ad hoc response to the loss of air-conditioning.**

**The temperatures**. Hurricane Irma hit South Florida on Sunday, September 10, 2017, and, at approximately 3:00 p.m. that day, the facility’s central air-conditioning stopped working. P. Ex. 3 at 3-4 (Williams Decl. ¶ 31). The facility had power, which was provided by a back-up generator, but, according to the facility’s plant manager, James Williams, it lacked the capacity to run the building’s air-conditioning system. P. Ex. 3 at 2 (Williams Decl. ¶ 17).4

It is no secret that South Florida in late summer is hot and humid. CMS has come forward with evidence showing that the outdoor temperatures were miserably hot and humid during the time the facility lacked central air-conditioning (September 11 through 13). According to CMS’s evidence, high temperatures reached 98oF, 109oF, and 117oF, with heat indices of 108.6oF, 122.3oF, and 127.3oF. CMS Ex. 56 at 1, 3, 4, 6, 8, 11.

Petitioner challenges these numbers and has come forward with evidence of its own to show that the temperatures were lower. Petitioner relies on the testimony of a climatologist, Andrew Grundstein (P. Ex. 8), which is an odd choice, considering that we are concerned with the temperatures in Hollywood, Florida, on specific dates. Unlike a forensic meteorologist, who reconstructs weather conditions for a specific location and

**Page 9**

time (and is more likely to be called to testify as an expert witness), a climatologist studies historical weather patterns, using primarily statistical methods. *See* Bureau of Labor Statistics, U.S. Dep’t of Labor, *Occupational Outlook Handbook*, Atmospheric Scientists, Including Meteorologists, https://www.bls.gov/ooh/life-physical-and-social-science/atmospheric-scientists-including-meteorologists.htm#tab-2 (last visited Jan. 10, 2019).

I find Climatologist Grundstein’s testimony confusing and speculative; much of it is irrelevant, particularly his discussion of weather patterns over the years and his theories as to what the facility’s internal temperatures *could* have been.5
 I find the theorizing unhelpful, not even rising to the level of “some metaphysical doubt as to the material facts” because it does not tell me the actual temperatures throughout the facility – particularly in the resident rooms – on the relevant days. As discussed below, the facility had an affirmative duty to measure those temperatures and to document its measurements. No amount of after-the-fact theorizing relieves it of that responsibility or establishes what the temperatures actually were.

Nevertheless, for purposes of summary judgment, I accept Petitioner’s representations that conditions were not as hot as CMS maintains and were not “abnormally hot for Florida.” P. Ex. 9 at 5 (Casa Decl. ¶ 16); P. Ex. 8 at 4 (Grundstein Decl. ¶ 22). But I find this temperature dispute not material. There is a reason Florida facilities must be air-conditioned in the summer. Florida’s “normal” summer temperatures are dangerously hot and humid and, for vulnerable individuals, this increases the risk of their developing heat-related illnesses. *See* discussion below. Petitioner concedes that, on September 11, the high temperature was 91oF, with a heat index of *105oF*. P. Ex. 44 at 3, 4; P. Ex. 120 at 5 (Grundstein Decl. Addendum ¶ 25).6
 According to the National Weather Service, this is in the “danger” category. P. Ex. 44 at 4. The following day, September 12, the temperature decreased slightly. Petitioner submits charts showing that the temperature reached 90oF, but, according to Climatologist Grundstein, the high temperature was 89.6oF (which I will accept). He does not mention the humidity, but his charts show a heat index in the high 90s (approximately 97oF), requiring “extreme caution.” P. Ex. 44 at 3, 4, 7; P. Ex. 120 at 5 (Grundstein Decl. Addendum ¶ 25).

The outdoor temperature for September 13 is largely irrelevant because residents were evacuated in the early morning hours. For what it’s worth, the outdoor heat index

**Page 10**

remained in the upper 90s. P. Ex. 44 at 4. CMS has produced evidence that law enforcement officials measured the indoor facility temperatures later that morning and documented their findings; it was very hot. CMS Ex. 57. Petitioner, however, disputes the accuracy of those measurements (discussed below).

**The facility’s response.** With Hurricane Irma approaching, staff recognized that the facility could lose power and air-conditioning. They also knew that exposing vulnerable residents to South Florida’s dangerously high temperatures would jeopardize the residents’ health and safety. But, as the undisputed evidence establishes, the plans to cool the facility were haphazard and inadequate. When those plans failed, the facility had no practicable back-up.

As the storm approached, Plant Manager Williams, on his own, decided that “it would be prudent” to rent “spot coolers” in case the facility units went down. P. Ex. 3 at 11 (Williams Decl. ¶ 21). But there were serious problems with his plan. He had no idea how much cooling capacity the space required. He did not consult the supplier or anyone else about the number of coolers needed to keep the facility at a safe temperature. CMS Ex. 98 at 25-26, 83 (Williams Deposition).

In any event, by the time Plant Manager Williams tried to acquire the units, few were available. The facility was housed in the same building as Larkin Behavioral Health Hospital, and Plant Manager Williams was responsible for maintenance in both institutions. CMS Ex. 53; P. Ex. 3 at 2 (Williams Decl. ¶ 10). He tried to order twenty spot coolers, to be shared, but was able to obtain just ten. CMS Ex. 98 at 23 (Williams Deposition). Seven coolers went to the facility. He placed four on the first floor and three on the second floor.

When the air-conditioning failed, Petitioner responded by placing the spot coolers and some fans in the hallways and by trying to persuade Florida Power & Light to repair the malfunction. P. Ex. 2 at 5 (Carballo Decl. ¶¶ 22, 23); P. Ex. 3 at 3, 4, 5 (Williams Decl. ¶¶ 25, 33, 34, 35, 36, 39). The problem with these approaches is that they were not effective. Florida Power & Light did not appear; the spot coolers were incapable of cooling the space; and fans alone (which, in any event, were not placed in resident rooms) are inadequate in preventing heat-related illness. CMS Ex. 65 at 1. Moreover, no evidence suggests that the facility made any specific effort to cool the resident rooms. *See* CMS Ex. 89 at 7 (Sronce Deposition) (testifying that no fans or coolers were placed in resident rooms).

As the name suggests, “spot coolers” are designed to cool limited areas (spots), not to substitute for a full air-conditioning system. CMS Ex. 93 at 55 (Crawford Deposition). The spot coolers’ capacity simply did not approach what was required. For the entire building, the facility was replacing an 85-ton chiller with just nine tons of cooling capacity. The replacements thus lacked the capacity – by a lot – to cool the space in the

**Page 11**

resident areas. CMS Ex. 93 at 24-25 (Crawford Testimony). And only three spot coolers were on the facility’s second floor, with a total capacity of just 3.3 tons. CMS Ex. 93 at 31, 117, 121 (Crawford Deposition and Testimony). CMS’s witness, Mechanical Engineer William Crawford, testified that “no way” could the coolers have maintained 81 degree temperatures on the second floor. CMS Ex. 93 at 48, 49, 144 (Crawford Deposition and Testimony).

Petitioner’s witness, Engineer Nicholas R. Ganick, testified that the spot coolers “could be expected to maintain temperatures *within the corridors* in the building in a range of 75-77 degrees.” P. Ex. 12 at 2 (Ganick Decl. ¶ 11) (emphasis added). For summary judgment purposes, I accept this as true but find it not material. First, Engineer Ganick does not claim that the coolers would have affected temperatures in resident rooms or elsewhere in the facility. Indeed, he deliberately excluded resident rooms from his calculations. CMS Ex. 97 at 27-30. Second, as the floorplan shows, resident rooms took up significantly more floor space than the corridors. CMS Ex. 53. It would be unreasonable to infer that the spot coolers could keep the entire area anywhere close to 75-77 degrees. Thus, this testimony does not contradict Engineer Crawford’s testimony that the coolers on the second floor could not have maintained 81 degree temperatures on the second floor.

**Did the spot coolers make the situation worse?** The parties argue about whether, in fact, the spot coolers made the facility hotter. According to CMS, as time passed, the situation deteriorated – especially on the second floor – because the spot coolers were improperly installed, and they heated more than they cooled.

Everyone agrees that, because of their exhaust, spot coolers give off more heat than they cool. *See* CMS Ex. 98 at 26, 35 (Williams Deposition). As Engineer Crawford explained, when a spot cooler cools space, it also “rejects” heat; in fact, it rejects more heat than it cools. “So if you put one of those in a room [and close] the door, [the room] gets warmer, not colder.” CMS Ex. 93 at 98, 141 (Crawford Testimony). To prevent heating the space, the coolers must be ventilated properly. CMS Ex. 98 at 26, 35 (Williams Deposition); *see* CMS Ex. 93 at 195 (instructing installers of portable air conditioners to vent the units *to the outside*because they extract hot air).

It is also undisputed that Plant Manager Williams installed the units; he had no manual or other instructions for installation; he did not consult the supplier or the manufacturer. CMS Ex. 98 at 82 (Williams Deposition). He did not vent the coolers to the outside. CMS Ex. 93 at 44 (Crawford Deposition). Instead, he removed a ceiling tile and inserted the cooler’s vent, allowing the exhaust to go into the ceiling. CMS Ex. 98 at 27 (Williams Deposition); CMS Ex. 57 at 94, 96, 108. He did not consider whether he was sending that exhaust into a closed space and, if so, what effect that would have.

**Page 12**

The discharge air coming off the spot coolers would heat the space quickly. CMS Ex. 93 at 45-46 (Crawford Deposition). Engineer Crawford estimated that, conservatively, the discharge air from the first floor coolers would have been 95 to 100 degrees if the first floor temperature was 80 degrees, and that heat remained within the envelope of the building. CMS Ex. 93 at 141-142 (Crawford Testimony). The discharge air went to the space above the ceiling, which heated up the slab on the second floor. Because there was no insulation, the heat was transmitted through the slab. CMS Ex. 93 at 145 (Crawford Testimony). As a result, the facility residents on the second floor were subject to higher temperatures, according to Engineer Crawford. Petitioner’s witness, Exercise Physiologist Douglas Casa, who studies heat-related illnesses and injuries, agreed that coolers not vented to the outside would cause heat to accumulate within the building. CMS Ex. 100 at 28 (Casa Deposition); P. Ex. 9 at 1 (Casa Decl. ¶ 2).

In his report, Engineer Ganick agrees that the facility’s exterior walls and the fire walls were sealed (as required by fire codes). P. Ex. 66 at 1. Nevertheless, he opines that the “plenum” space (space provided for air circulation, usually between the structural ceiling and the drop-down ceiling) above the first floor was “adequate for heat dissipation of the spot cooler condensers exhaust,” although he concedes that “there will be localized warming of surfaces near the ceiling mounted discharge.” P. Ex. 66 at 2; P. Ex. 12 at 3 (Ganick Decl. ¶ 15). This is all a little vague and doesn’t really explain where all that heat went. Engineer Ganick does not identify which surfaces would have been warmed nor explain how all of the hot air remaining within four sealed exterior walls of the building would not ultimately affect temperatures. Nevertheless, drawing all reasonable inferences in the light most favorable to Petitioner, I’ll accept that heat would have dissipated and that any temperature increase would have been limited to the areas above the exhaust vent (wherever those might have been).7

Ultimately, the factual disputes regarding installation of the spot coolers are not material. The undisputed evidence establishes that outdoor temperatures were very hot and that the facility made no efforts to cool the resident rooms, particularly those on the second floor. Without regard to whether the spot coolers made temperatures hotter, the undisputed evidence establishes that temperatures in resident rooms on the west wing of the second floor (Two-West) were hot enough to cause at least seven of its residents – who were confined to their rooms – to develop extreme hyperthermia.8
 *See* discussion below.

**Page 13**

**Inadequately monitoring the facility’s temperature**. Although facility staff recognized that they would have to consider other actions (e.g., whether to evacuate or not) if temperatures exceeded 81oF, they “didn’t go into detail” in their planning of what they would do. CMS Ex. 98 at 51 (Williams Deposition). They did not discuss how constant that 81 degree temperature had to be before they acted. CMS Ex. 98 at 51-52 (Williams Deposition). More significantly, Petitioner has not established that it tracked the building temperatures in any consistent or reliable way (so that it would know when to “take other action”). If, as Plant Manager Williams claims, staff planned to maintain the residents in the facility only so long as temperatures remained below 81oF, it was incumbent upon them to keep methodical and accurate records of the temperatures. At a minimum, they should have been measuring and recording the temperatures in the resident rooms.

But the facility produces no temperature records. Plant Manager Williams asserts that he “periodically” took temperature readings “in the facility” and recorded them. He concedes that he did not do so “on any set schedule or at any designated location.” He did so only when he “had a second” between all of his other tasks. P. Ex. 3 at 7 (Williams Decl. ¶ 60); *see also* P. Ex. 2 at 5 (Carballo Decl. ¶ 24) (corroborating that Plant Manager Williams used a laser gun device “to collect and record temperatures in the building”).

Both Administrator Carballo and Plant Manager Williams point out that each of the spot coolers had an ambient temperature reading display. P. Ex. 2 at 5 (Carballo Decl. ¶ 24); P. Ex. 3 at 6 (Williams Decl. ¶ 59). I accept that as true but of limited value. The temperature reading would be limited to the area immediately adjacent to the unit itself and says nothing about the temperatures elsewhere, such as in the resident rooms. Indeed, maintaining an 81oF temperature in what should be the coolest area of the facility (near the spot cooler) means that the temperatures are higher elsewhere. *See* CMS Ex. 80 at 25 (Santiago Deposition) (observing that “you couldn’t feel the cold air unless you were like 6 inches away from the vent, a foot at most”).

I accept, for purposes of summary judgment, that Plant Manager Williams periodically checked the temperatures on the spot coolers and that, using a temperature gun, he sporadically checked temperatures elsewhere in the facility – but he was on no set schedule and measured in no specifically designated locations. P. Ex. 3 at 7 (Williams Decl. ¶¶ 60, 65, 67). Most significant, Petitioner presents no evidence that Plant Manager Williams or anyone else measured the temperatures in resident rooms, particularly the rooms on the second floor. No one claims and no documents suggest that anyone ever measured the temperatures in rooms 208 (where two residents died, suffering from hyperthermia), 226 (where three residents experienced hyperthermia, and two of them died), 218 (where one resident experienced hyperthermia and died), 219 (where another resident experienced hyperthermia and died), or any other room on Two-West. *See* CMS Ex. 100 at 108-110 (in which Exercise Physiologist Casa emphasizes that he did not know what the temperatures were in Room 226).

**Page 14**

Petitioner thus cannot establish that resident room temperatures were safe. And other compelling evidence – seven dead (or dying) hyperthermic residents within four hours – establishes that those room temperatures were dangerously high.

**b. The west wing of the second floor housed residents who were exceptionally susceptible to heat-related difficulties.**

Not surprisingly, the facility housed residents who were highly susceptible to heat-related problems. P. Hrg. Req. at 9. The most vulnerable of them resided on Two-West, which housed “critical care” residents, along with residents suffering from dementia and residents considered high risk for elopement. Because of the elopement concerns, the unit’s windows could not be opened more than six to eight inches, and doors were kept locked. CMS Ex. 16 at 6.

In Petitioner’s view, resident vulnerability absolves the facility from culpability in the suffering and deaths of its residents. CMS, on the other hand, looks at the same underlying facts and concludes that the residents’ vulnerabilities imposed upon the facility a heightened duty to protect them, which the facility failed to do. CMS is correct.

**Problems associated with excessive heat**. Heat stroke is a severe illness that results in a body temperature greater than 104oF. Signs of heat stroke include, but are not limited to, hyperthermia, hot dry skin, tachycardia, hypotension, hyperventilation, cognitive dysfunction, and, eventually, organ dysfunction. CMS Ex. 8 at 7-8; CMS Ex. 100 at 17, 138 (Casa Deposition).

**The facility’s vulnerable residents**. The parties agree that the elderly and infirm are exceptionally susceptible to heat-related difficulties because their bodies are less able to regulate and respond to temperature changes. CMS Ex. 65 at 1; CMS Ex. 66 at 2-3; CMS Ex. 69 at 1; CMS Ex. 95 at 55 (Castro Deposition); CMS Ex. 100 at 41, 133 (Casa Testimony); P. Ex. 9 at 4 (Casa Decl. ¶ 9f); P. Ex. 11 at 8 (Jentzen Decl. ¶ 31). Under normal conditions, a body maintains its core temperature within a narrow range (97.7oF to 99.5oF) by balancing the amount of heat absorbed with the amount of heat lost. CMS Ex. 69 at 1. As people age, their thermoregulatory ability (ability to regulate body temperature) declines. They can experience chronic volume depletion (reduction in extracellular fluid volume that occurs when salt and fluid losses exceed intake). Their cardiac output no longer increases in response to the heat. Their ability to sweat diminishes. CMS Ex. 69 at 3; CMS Ex. 70 at 6.

Chronic illnesses, such as diabetes and cardiovascular disease, are also associated with heat-related illnesses and death. Medications can undermine the body’s ability to sweat or otherwise regulate body temperature. CMS Ex. 65 at 2. Some inhibit the body’s ability to increase cardiac output or to vasodilate effectively. Diuretics increase

**Page 15**

susceptibility to dehydration at high ambient temperatures. Anticholinergics, used to treat Parkinson’s disease, may impair the body’s ability to perspire. CMS Ex. 66 at 3; CMS Ex. 69 at 3; CMS Ex. 70 at 6; CMS Ex. 100 at 39-41 (Casa Deposition); CMS Ex. 101 at 177-178 (Jentzen Deposition); *see* CMS Ex. 65 at 2, for a list of medications that contribute to heat-related illness.

Nearly all non-exertional heat stroke deaths are preventable. CMS Ex. 101 at 244-45 (Jentzen Deposition). However, as researchers from John Hopkins’ School of Public Health have emphasized, “*identifying high-risk patients in medical facilities lacking sufficient air conditioning and taking appropriate measures to avoid hyperthermia are essential for decreasing mortality during heat waves*.” CMS Ex. 70 at 7. (Basu and Samet, “Relation between Elevated Ambient Temperature and Mortality: A Review of the Epidemiologic Evidence.”) (emphasis added).

No one seriously disputes the negative impact high ambient temperatures have on the elderly and infirm. Nevertheless pointing to opinions from its witnesses, Petitioner attempts to diminish its significance. But those witness opinions do not, in fact, support Petitioner’s argument. If anything, the opinions strengthen CMS’s case. Mischaracterizing a statement made by Exercise Physiologist Casa, Petitioner asserts that “ambient air temperatures do not correlate to residents’ core body temperatures.” P. Response to MSJ at 2 ¶ 4.9
 In fact, Exercise Physiologist Casa testified:

Core body temperature does not correlate *directly* to the surrounding ambient air temperature. Thus, ambient air temperature does not need to be 105 degrees for a person to develop heat stroke with a core body temperature of 105 degrees or higher.

P. Ex. 9 at 4 (Casa Decl. ¶ 9e) (emphasis added). Of course, no one has suggested that the ambient temperatures in the rooms on Two-West matched the core body temperatures of its residents who died (104.1oF to 109.9oF), and this testimony simply underscores how important it is to maintain moderate ambient temperatures.

Exercise Physiologist Casa acknowledged that “severe environmental conditions,” along with a person’s inability to handle the heat, usually causes heat stroke.

If we’re talking about classic heat strokes that happen during heatwaves, yes, you have exposure to these high

**Page 16**

environmental conditions and then you have the ensuing extreme hyperthermia.

CMS Ex. 100 at 42-43.10
 Exercise Physiologist Casa also stated that high body temperatures indicate somebody has been exposed to environmental heat. CMS Ex. 100 at 107;*see* *also* CMS Ex. 100 at 105 (agreeing that “extremely elevated” core body temperatures indicate that “heat definitely played a role in this person’s body temperature.”) (Casa Deposition). “[T]hese people were hot at the time they died.” CMS Ex. 100 at 107 (Casa Deposition). Although he speculated that, given their comorbidities, these residents might have died eventually, “[t]he heat exacerbated it [sic] and their demise came sooner.” CMS Ex. 100 at 108 (Casa Deposition).

Petitioner’s witness, Jeffrey Jentzen, M.D., generally agreed, conceding that, for at least some of the September 13 victims, the temperature *was a significant factor in their deaths*. CMS Ex. 101 at 123, 244 (Jentzen Deposition) (stating that R2, R7, and R8 “probably would not have succumbed” had they been in a cooler environment); CMS Ex. 100 at 16-17 (Exercise Physiologist Casa agreeing that the “comorbidities were there and that the residents died of heat stroke.”).

**No triage**. Recognizing that it could not guarantee safe temperatures, the facility’s back-up plan, at a minimum, should have identified those residents most susceptible to heat-related problems and planned interventions to keep them safe. Facility staff admit that they did nothing to identify those residents most at risk from high temperatures. The facility’s Director of Nursing (DON), Maria Castro, conceded that staff did not assess residents to determine which were most vulnerable to heat or dehydration, declaring that “every patient is vulnerable” because of their ages and most “were on some kind of medication that would make them vulnerable.” CMS Ex. 95 at 55-56 (Castro Deposition). This is not a fact – simply her ill-conceived and unsupported opinion.

No doubt, many residents were vulnerable, but this did not excuse staff from its obligation to assess them, determine their individual needs, and respond appropriately, as required by the Act and regulations. Act § 1819(b); 42 C.F.R. §§ 483.24 and 483.25. Any resident who was totally dependent on staff and unable to move from a very hot environment to a cooler one would have to be considered more vulnerable than the healthier, more mobile residents. *See* CMS Ex. 100 at 134-35 (Casa Deposition); CMS Ex. 103 at 16-17. Any cognitively impaired resident, who could not recognize that he

**Page 17**

was in a dangerous environment, would have to be considered more vulnerable than residents who were alert and oriented. In fact, as the witnesses agree, residents of Two-West succumbed because they were especially vulnerable. CMS Ex. 100 at 108, 134-35 (Casa Deposition); *see* CMS Ex. 101 at 175, 244 (Jentzen Deposition). And, according to the facility’s night shift supervisor, RN Sergo Colin, even after the facility had been without air-conditioning for four days, “[t]here were many, many stable residents . . . .” P. Ex. 5 at 7 (Colin Decl. ¶ 59).

Petitioner, nevertheless, defends the facility’s failure to assess. P. Resp. at 8 (¶ 21). Pointing to the testimony of geriatrician David Dosa, M.D., Petitioner argues that there are no criteria to identify which residents are at high-risk for heat-related injuries. But Geriatrician Dosa did not say that. He discussed the difficulties with evacuating nursing home residents and the need for “exquisite planning,” and he opined that there are no standard protocols for determining who should be evacuated. P. Ex. 10 at 5 (Dosa Decl. ¶¶ 24-28). He did not suggest that a facility could not identify its vulnerable residents; he did not suggest that the facility shouldn’t assess who would be most vulnerable among the population and plan accordingly, at a minimum, monitoring the temperatures in their rooms and planning other measures to keep them safe.

**The facility’s inadequate and unreliable records.** In evaluating the care provided, treatment records and nursing notes can be invaluable. Ordinarily, those documents will accurately describe each resident’s ongoing signs and symptoms, as well as the care provided. Poor documentation supports the conclusion that the facility has provided inadequate care. *Nightingale Home Healthcare, Inc.*, DAB No. 2784 at 23 (2017).

Here, the parties agree that the facility’s record-keeping was abysmal. DON Castro severely criticized her staff – particularly individual nurses caring for residents on Two-West – because they “left everything undocumented.” CMS Ex. 95 at 58, 108.11
 Moreover, the undisputed evidence establishes that, when the electricity failed – and vulnerable residents were most in need of careful monitoring – staff essentially stopped taking and recording their vital signs. CMS Ex. 9 at 30; CMS Ex. 14 at 252, 271-72

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(showing that, contrary to the care plan, staff recorded no temperatures between 10:30 a.m. on September 10 and midnight September 12); CMS Ex. 17 at 131, 132, 256-57 (showing that, contrary to the care plan and physician orders, staff recorded no temperatures between 12:17 a.m. on September 8 and 3:20 a.m. on September 12); CMS Ex. 26 at 14, 25-26, 32; CMS Ex. 31 at 57. This shoddy documentation puts the facility out of substantial compliance with section 483.70(i), which requires that the facility maintain records that are complete, accurately documented, readily accessible, and systematically organized. 42 C.F.R. § 483.70(i)(1). Each medical record must include (among other requirements) a record of the services provided and nurse’s progress notes. 42 C.F.R. § 483.70(i)(5).

**Resident 3 (R3): a terminal resident who may have been the first to succumb**.12
 R3 was a 99-year-old woman, who lived on Two-West (Room 213). She was unquestionably very ill. Her diagnoses included acute respiratory distress syndrome, congestive heart failure, peripheral vascular disease, and dementia, and, like so many of the residents of Two-West, was at increased risk of suffering heat-related illness. She was at risk for aspiration and had muscle weakness. CMS Ex. 14 at 4, 5, 57, 184, 191. Her vision was impaired, and she was totally dependent on staff for activities of daily living. CMS Ex. 14 at 175, 176, 178. At the time of the hurricane, she had been receiving hospice care for almost a year. CMS Ex. 14 at 38.

R3 was prescribed a long list of medications, including several that are associated with increased risk of heat-related illness: amlodipine (a calcium channel blocker); ativan (a benzodiazepine); metoprolol (a beta blocker); and milk of magnesium (a laxative). CMS Ex. 14 at 250; CMS Ex. 65 at 2.

R3’s care plan instructed staff to take her vital signs daily, and it seems that they did so through the morning of September 10. At 10:30 a.m. on September 10 (while the facility was still air-conditioned), her temperature was 97.1oF. CMS Ex. 14 at 252, 258. For reasons the facility has not satisfactorily explained, however, staff then stopped following her care plan. No one recorded her temperature at all on September 11 – the first full day that the facility was without air-conditioning. Staff next recorded R3’s temperature at

**Page 19**

12:00 a.m. on September 12 and recorded it as 97oF. CMS Ex. 14 at 252, 271-72. That her temperature was then still normal does not absolve the facility of its responsibility to follow the resident’s care plan. Failing to do so, by itself, puts the facility out of substantial compliance with the quality-of-care regulation. *Cedar Lake Nursing Home*, DAB No. 2344 at 7 (2010); *Livingston Care Ctr.*, DAB No. 1871 (2003); *Cherrywood Nursing & Living Ctr*., DAB No. 1845 (2002).

**Resident 1 (R1)**. R1 was an 84-year-old woman who lived on Two-West (Room 208). CMS Ex. 4 at 151; CMS Ex. 8 at 6. She suffered from a long list of ailments, including those that would make her more susceptible to heat-related illnesses: chronic obstructive pulmonary disease (COPD), heart failure, congestive heart failure, dyspnea (difficulty breathing), type 2 diabetes, and hypertension. She also had muscle weakness, and her mobility was impaired. CMS Ex. 4 at 152. She needed assistance with ambulation and activities of daily living. CMS Ex. 4 at 258, 299, 303, 317, 321, 334, 344. She was on fluid restriction (commonly ordered for patients with heart failure) and required two liters of oxygen per day via nasal cannula. CMS Ex. 4 at 308, 397-98.

Among her multiple medications were three that are associated with increased risk of heat-related illnesses: Amlodipine (a calcium channel blocker); Furosemide (a diuretic); and Levothyroxine (thyroid agonist). CMS Ex. 4 at 2; CMS Ex. 65 at 2.

On the morning of September 10, before the air conditioning failed, R1 was apparently fine. Her blood pressure was 128/72; pulse was 79 beats per minute; respiration 18 per minute; and temperature 97oF. CMS Ex. 4 at 391. The following morning, (about eight or nine hours after the air conditioning failed), she continued to be okay, according to facility records. At about 11:50 a.m., her blood pressure was 130/72; pulse 80 beats per minute; respiration 19 per minute; and temperature 97oF. CMS Ex. 4 at 390. Between then and September 12, no records or contemporaneous notes describe R1’s vital signs or condition.

**Resident 2 (R2)**. R2 was R1’s roommate (Room 208). She was a thin, frail 78-year-old woman. CMS Ex. 9 at 29, 47; CMS Ex. 13 at 2. Her conditions included many that made her more susceptible to heat-related problems: severe coronary arteriosclerosis, moderate cerebral arteriosclerosis, whooping cough, a history of pneumonia post aspiration, dysphasia, an acute embolism and deep vein thrombosis, history of a transient ischemic attack, a nutritional deficiency, a cutaneous abscess of the perineum, and dementia. CMS Ex. 9 at 42, 48; CMS Ex. 13 at 6. She had a PEG (percutaneous endoscopic gastrostomy) tube in place. And she was totally dependent on nursing staff for mobility and activities of daily living, including to administer food and fluids through her PEG tube. CMS Ex. 13 at 8.

**Page 20**

Among R2’s medications were two laxatives, docusate sodium and polyethylene glycol, which are associated with increased risk of heat-related illness. CMS Ex. 9 at 2; CMS Ex. 65 at 2. R2 was full code. CMS Ex. 9 at 47.

**Resident 4 (R4)**. R4 was a 96-year-old man, living on Two-West (Room 226), sharing a room with R11 and R5. CMS Ex. 17 at 8, 228, 231. He suffered from iron deficiency anemia, hypertension, congestive heart failure, arteriosclerotic heart disease, peripheral vascular disease, and dysphagia, and was at increased risk of developing heat-related illness. He had muscle weakness and depression. CMS Ex. 17 at 232-35. His right leg had been amputated above the knee. CMS Ex. 17 at 232. He needed extensive to total assistance with activities of daily living. CMS Ex. 17 at 136. He was full code. CMS Ex. 17 at 215, 231. Among his medications was the laxative, Milk of Magnesia.

His care plan directed staff to monitor his vital signs daily. CMS Ex. 17 at 131, 132, 246. On September 8 at 12:17 a.m., R4’s temperature was 98oF and his respiration 20. Contrary to his physician’s order – and federal requirements – staff did not take his temperature again until 3:20 a.m. on September 12; according to facility records, it was 98.6oF and his respirations were 19.

Notwithstanding his serious impairments, facility records suggest that R4 had been doing relatively well. They indicate that, as late as 1:28 a.m. on September 13, R4’s recorded temperature was 97oF, his pulse was 74, his respirations 18, and his blood pressure was 128/74. CMS Ex. 17 at 239, 256-57.

**Resident 5 (R5)**. R5 was an 84-year-old man who shared Room 226 with R4 and R11. CMS Ex. 22 at 1, 8. He also had a long list of ailments, including several that increased his risk for developing heat-related illness and death: hypertension, history of cerebral infarction (stroke), transient ischemic attack (mini-stroke), and history of a cardiovascular accident. He had a nutritional deficiency, dysphagia, dementia, and hyponatremia (low sodium level). CMS Ex. 22 at 1, 109, 113, 114, 122. He required total assistance with his activities of daily living. CMS Ex. 22 at 111.

Among his medications were diuretics, which increased his susceptibility to dehydration, especially at high ambient temperatures. CMS Ex. 22 at 116, 126-27; *see* CMS Ex. 65 at 2; CMS Ex. 66 at 3.

Staff regularly monitored R5’s vital signs until the afternoon of September 12. At 2:20 p.m. they recorded his vital signs – temperature (98.6oF), pulse (76), respirations (16), and blood pressure (126/72). CMS Ex. 22 at 33. But after that, except for one blood pressure reading at 5:00 p.m. (142/74), they reported no additional vital signs. CMS Ex. 22 at 42;*see* CMS Ex. 22 at 33 (indicating that staff recorded the reading at 6:31 p.m.).

**Page 21**

No nursing notes were recorded between September 2, 2017, and the time of R5’s death. CMS Ex. 22 at 24. Facility records do not document his temperature or other observations on the day R5 died. CMS Ex. 25 at 8. By itself, this suggests neglect that was not even related to the heat.

**Resident 6 (R6)**. R6 was a 92-year-old man, who also lived on Two-West (Room 229). CMS Ex. 26 at 1. His diagnoses included many that increased his risk for heat-related problems: chronic obstructive pulmonary disease, bronchitis, asthma, peripheral vascular disease, and hypertension. He also suffered from dysphagia, hypokalemia (low potassium levels), and a nutritional deficiency. CMS Ex. 26 at 5-7; 101-02. He had muscle weakness and a history of falls. CMS Ex. 26 at 6, 106. He depended on staff for his activities of daily living. CMS Ex. 26 at 100, 136. He was full code. CMS Ex. 26 at 4, 54, 65.

He took multiple medications that are associated with increased risk of heat-related problems: Amiloride (a diuretic); Metoprolol tartate (a beta blocker); Oxybutynin (an anticholinergic); and Milk of Magnesia (a laxative). CMS Ex. 26 at 66-67; CMS Ex. 65 at 2.

Staff recorded R6’s temperature daily from September 1 through September 8, but did not record it again until September 12. According to his chart, at 3:21 a.m. on September 12, R6’s temperature was 98oF. CMS Ex. 26 at 14, 32. At 8:56 p.m. on September 12, licensed practical nurse (LPN) Vivienne James recorded his temperature as 97oF, with a pulse of 84 (up from 80, recorded four minutes earlier). CMS Ex. 26 at 14, 31-33.

It is not possible to determine what was going on with R6 in the days before he died because the last nursing note in his chart is dated September 4, 2017, more than eight days prior to his death, more evidence of staff disregard for the requirement that they maintain complete and accurate progress notes. CMS Ex. 26 at 25-26.

**Resident 7 (R7)**. R7 was a 71-year-old woman, who also resided on Two-West (Room 219). CMS Ex. 31 at 36. Despite her relatively young age, she suffered from the types of conditions that increased her risk of heat-related illnesses: arteriosclerotic and hypertensive heart disease. She had suffered a stroke. She also had a urinary tract infection, muscle weakness, and dysphagia. She was malnourished, cognitively impaired, and depended on staff for activities of daily living. CMS Ex. 31 at 40-42, 179, 187, 192. She was full code. CMS Ex. 31 at 39.

As with other residents on Two-West, her medications included several that increased her risk for developing heat-related illness: Metoprolol (a beta blocker); Nifedipine (a calcium channel blocker); Docusate Sodium (a laxative); and Milk of Magnesia (a laxative). CMS Ex. 31 at 2, 45; CMS Ex. 65 at 2; CMS Ex. 101 at 177-178 (Jentzen Deposition).

**Page 22**

According to facility records, staff took R7’s vital signs, including her temperature, at 10:17 p.m. on September 10; at 7:13 p.m. on September 11; and at 10:34 p.m. on September 12. Her temperatures were normal (97.8oF; 97.8oF; and 97oF). CMS Ex. 31 at 47.

Again, the appalling sparsity of the facility’s progress notes in R7’s chart, by itself, puts the facility out of substantial compliance. Notwithstanding R7’s serious medical conditions and near-total reliance on staff, staff recorded *no progress notes for an entire month prior to her death* – including during the period the facility was without air-conditioning. And, from March 23 through August 9, 2017, staff recorded just five notes, two of them labeled “quarterly note.” CMS Ex. 31 at 57.

**Resident 8 (R8)**. R8, who resided on Two-West (Room 218), was another relatively young woman (70 years old) who was especially vulnerable to heat-related problems. CMS Ex. 36 at 19. She suffered from cerebrovascular disease and hypertension. She had a urinary tract infection and had suffered a stroke. She was obese. CMS Ex. 36 at 20, 54, 208-09. She was also bed-ridden, required a full-body lift for transfers, and was totally dependent on staff for activities of daily living. CMS Ex. 36 at 113, 117, 183. She was full code. CMS Ex. 36 at 20, 207.

Her long list of medications included several that increased her risk for heat-related illnesses: Furosemide (a diuretic); Metoprolol (a beta blocker); and Milk of Magnesia (a laxative). CMS Ex. 36 at 216-17; CMS Ex. 65 at 2. Dr. Jentzen testified that she also took anticholinergics and calcium channel blockers, which increased her risk. CMS Ex. 101 at 177, 180, 185 (Jentzen Deposition). He characterized her as one of the residents *most susceptible* to developing a heat-related illness. And yet facility staff had not identified her as such, had not monitored her room temperature, and had not planned any special interventions to keep her safe when the air-conditioning failed.

At 5:16 p.m. on September 11, R8’s temperature was 98oF, her pulse 74, and her respirations 16. But, at 4:16 a.m. on the morning of September 12, her temperature was up to 102oF. According to facility records, it was down to 98.2oF at 2:18 p.m. CMS Ex. 36 at 221.

**c. The catastrophe of September 13**.

Facility records suggest that, by the morning of September 12, staff recognized that at least some of the residents were probably in trouble. In emails sent on September 12, staff reported that the facility was without air conditioning or ice and that the residents “had a difficult night.” CMS Ex. 60 at 23. Maintenance Supervisor Williams specifically told Administrator Carballo that “those patients don’t look good . . . .” CMS Ex. 60 at 14.

**Page 23**

**The multiple heat-related deaths**. Given the poor quality of the facility’s records, it is impossible to recreate an exact timeline of events for the morning of September 13. No one questions the accuracy of the emergency responders’ timelines, however, and those records show that, within four hours (roughly, 3:00 a.m. until 7:00 a.m.), seven residents of Two-West were stricken with extreme hyperthermia. They all died.

**Time (approx.)**
			**Resident**
			**Temperature**3:05 a.m.
			EMTs respond to call regarding **R1**
			107.5oF (tympanic)134:05 a.m.
			EMTs respond to call regarding **R2**
			107.5oF (tympanic)5:30 a.m.

			5.45 a.m.
			Staff find **R4** unresponsive

			EMTs find **R4** dead
			104.6oF (rectal, post-mortem)6:21 a.m.
			EMTs find **R8** in respiratory distress
			109.9oF (rectal)6:47 a.m.
			EMTs find **R7** in respiratory distress
			108.5o (rectal)6:57 a.m.
			EMTs pronounce **R5** dead
			104.1oF (rectal, post-mortem)6:59 a.m.
			EMTs pronounce **R6** dead
			105.9oF (rectal, post-mortem)**September 13 at 3:00 a.m.**In the early morning hours of September 13, **R1**(the 84-year-old woman in Room 208) went into respiratory distress. Facility staff called emergency services. Dispatched at 3:01 a.m., the EMTs (emergency medical technicians) arrived at the facility at **3:05 a.m.** CMS Ex. 5 at 2; P. Ex. 79 (filing #55a).

Nurses’ notes were written between 4:25 a.m. on September 13 and 8:17 p.m. on September 14 and say very little about what was going on before the EMTs arrived. CMS Ex. 4 at 383. In a very late entry, drafted at 7:43 p.m. on *September 14*, RN Meggie claimed that, when she came on duty at 7:00 p.m., (presumably on the night of September 12), the resident was sitting in bed in the hallway, in stable condition “with no signs of respiratory distress or A-febrile.” She wrote that vital signs were assessed and stable – even though there is no contemporaneous record of her or anyone else having taken vital signs, and there is no record of what the specific signs were. She also wrote that fluids were offered and tolerated well. Again, there is no contemporaneous record of this. CMS Ex. 4 at 383.

Petitioner has produced heavily edited video showing R1 in the hallway from about 7:30 p.m. September 12 until 12:44 a.m. on the 13th. She is more or less adjacent to one of the spot coolers. She looks terrible, and, except for an occasional flutter of her eyelids or

**Page 24**

twitch of her mouth, she is completely inert, even when one staff member gives her a shake (at about 11:05 p.m.). At 12:44 a.m., a staff member returned her to her room, still inert. P. Ex. 79 (filing #54f); *see* P. Ex. 5 at 3-4 (Colin Decl. ¶ 30). Viewing the video, it is difficult to credit the nurse’s note that says she was sitting and that she accepted and tolerated fluids well.

Sometime between 12:44 a.m. and 2:55 a.m., staff returned R1 to the hallway, although the video does not show when that occurred. P. Ex. 79 (filing # 54f).

In an entry drafted at 4:41 a.m., RN Meggie wrote:

Resident observed in respiratory distress. Assessment reveal [sic] and vitals BP 128/68, P. 120, O2 sat on room air 80% with 15 liters via nonbreather mask. O2 sat increase to 92% lung sounds with rhonchi. Blood sugar 198. IV Heplock started with 22 gauge given. New orders received to transfer resident to Memorial hospital for respiratory evaluation. Resident left via fire rescue in stable condition.

CMS Ex. 4 at 383.

According to the EMTs, when they arrived, the facility was “significantly hotter inside the building than . . . outside,” and the second floor was “significantly” hotter than the first. CMS Ex. 74 at 11, 45 (Santana Deposition). They asked staff what they were doing about the heat, and staff assured them that “there is work getting done.” CMS Ex. 74 at 11 (Santana Deposition). Supervisor Colin agrees that the EMTs commented that “it was kind of hot in the facility,” but otherwise claims that they did not mention anything about the heat. P. Ex. 5 at 4 (Colin Decl. ¶¶ 34, 35). Supervisor Colin also insists that the temperature in the building was “warm, but not hot.” P. Ex. 5 at 4 (Colin Decl. ¶ 39). To the extent that these are disputes of fact, I consider them not material.14

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The EMTs found R1 unconscious and in obvious respiratory distress with a tympanic (ear) temperature of an alarming ***107.5oF***. Her pulse was 140 and respirations 30, hardly what any reasonable person would consider “stable condition.” The EMTs administered chilled IV fluids and applied cold packs. They took R1 to the emergency room across the street. CMS Ex. 5 at 3-4, 6; *see* CMS Ex. 54 at 1, 2; CMS Ex. 73 at 127.

She arrived at the emergency room at 3:27 a.m. CMS Ex. 4 at 1. Her axillary (arm pit) temperature was **105.3oF** (40.7oC). Her blood pressure was 100/57; her pulse 150; and her respiration 27. CMS Ex. 4 at 110. She stopped breathing on her own at 3:38 a.m. and was intubated. CMS Ex. 4 at 19. Later that morning, hospital staff withdrew life support, and R1 died at 3:09 p.m. CMS Ex. 4 at 20, 50.

Supervisor Colin asserts that “the only body temperature I knew for Resident 1 was 98.9oF.” P. Ex. 5 at 4 (Colin Decl. ¶ 37.). He doesn’t say when this reading was taken or where it was recorded (or even if it was recorded). This does not create a dispute of fact. Rather, drawing all reasonable inferences in the light most favorable to Petitioner, it shows that Supervisor Colin simply did not know what R1’s temperature was in the early hours of September 13. To infer, based on Supervisor Colin’s unfounded assertion, that the EMTs (and, presumably, emergency room staff and the medical examiner) did not take the residents’ temperatures, or that they recorded them incorrectly, is simply unreasonable, and I am not required to draw unreasonable inferences. *Brightview*, DAB No. 2132 at 10.

The medical examiner found that R1 died of heat stroke due to environmental heat exposure. He characterized the manner of death as a “homicide.” CMS Ex. 8 at 8.

The EMTs claim that, before they left the facility, they asked about the rest of the residents, and staff assured them that “[e]verybody else was all right.” CMS Ex. 74 at 12. Supervisor Colin denies this. Although this issue might affect the facility’s criminal liability, the dispute is not material for purposes determining substantial compliance. P.

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Ex. 5 at 4 (Colin Decl. ¶¶ 34-35). Facility staff had an affirmative duty to assess the residents regardless of whether the EMTs had asked. Indeed, they could have enlisted the assistance of the EMTs, particularly since an additional crew had been sent. P. Ex. 5 at 4 (Colin Decl. ¶ 31).

**September 13 at 4:00 a.m.** In any event, it seems that everybody else on Two-West was *not* all right. In a late entry (8:15 p.m. on September 14), RN Meggie reported that, at “around” 4:00 a.m., she observed **R2** (the 78-year-old woman, who also resided in Room 208) experiencing shortness of breath.15
 Her lung sounds were positive for rhonchi, bilaterally, so the nurse initiated suction. R2’s blood pressure was 126/78; her pulse was 104; her respirations were 24 and labored. Her temperature was up to 101.6oF, according to the nurse’s entry. Her oxygen saturation level on room air was 77%. Staff administered 15 liters of oxygen via a non-rebreather mask, and it rose to 90%. CMS Ex. 9 at 38.

Nursing staff called 911 and reported that the resident had a fever. CMS Ex. 9 at 11. The EMTs, dispatched at 4:01, arrived at the facility at **4:05 a.m.** CMS Ex. 10 at 1; P. Ex. 79 (filing # 55c). They reported that the conditions at the facility were “untenable due to lack of functioning [air conditioning].” They observed fans but described them as “inadequate in relationship to [the] patients location whereabouts.” CMS Ex. 9 at 11. R2’s breathing was labored. Her skin was hot to the touch. Her tympanic temperature was ***107.5oF***. She had apparent vomit on her mouth and pillow. As the EMTs assessed her, she became apneic (suspension of breathing) and pulseless. CMS Ex. 10 at 5.

She arrived in the emergency room at 4:32 a.m., in critical condition. Despite the emergency staff’s efforts (CPR, shock), she died at 5:00 a.m. CMS Ex. 9 at 9. Her rectal temperature was **108.3oF** (42.4oC). CMS Ex. 9 at 6. Hospital staff called the abuse hotline. CMS Ex. 9 at 11.

The medical examiner found that R2 died of heat stroke due to environmental heat exposure. He characterized the manner of death as “homicide.” CMS Ex. 13 at 1. Petitioner’s medical expert, Jeffrey Jentzen, M.D. agreed that R2 “would probably not have succumbed to heat-related injury” had she been in an air-conditioned environment, although he did not think that her death was a homicide. CMS Ex. 101 at 244 (Jentzen Deposition).

In an entry that is ***word-for-word identical*** (right down to the ambiguous punctuation) to RN Meggie’s 4:41 a.m. entry in R1’s chart, Supervisor Colin reported at 5:20 a.m. that he observed R2 in respiratory distress. He wrote that her blood pressure was 128/68; her

**Page 27**

pulse 120; her O2 saturation level 80%, rising to 92% after receiving 15 liters of oxygen via a mask. He reported that the blood sugar was 198 and staff administered Heplock (R2 was not diabetic). He also reported that “new orders” were received to transfer her to Memorial Hospital and that she left, via fire rescue, “in stable condition.” (she had stopped breathing and had no pulse). CMS Ex. 9 at 30. This cannot have been correct and, at best, reflects sloppy and unreliable record-keeping.

**September 13 at 5:00 a.m.** The record is virtually silent as to what was happening between 4:10 a.m., when the EMTs took R2 to the hospital, and 5:30 a.m., when staff became aware of the next crisis. At 5:30 a.m., staff found **R4** (the 96-year-old man whose leg had been amputated) in his room (Room 226), unresponsive. P. Ex. 5 at 6 (Colin Decl. ¶ 51); P. Ex. 79 (filing # 55d). They called Supervisor Colin, who came to the resident’s room and began CPR. He told staff to call 911. P. Ex. 5 at 6 (Colin Decl. ¶ 52).

EMT records indicate that they were dispatched at 5:43 a.m. and arrived in the resident’s room at 5:45. CMS Ex.18 at 1; P. Ex. 79 (filing #55d). They told Supervisor Colin to stop performing CPR because the resident was dead, and, according to them, had been dead for some time. CMS Ex. 51 at 3; CMS Ex. 74 at 43 (Santana Deposition); *see* CMS Ex. 75 at 38 (“for someone to be stiff like that, it’s got to be [dead for] a decent amount of time. . . . a couple of hours.”). Supervisor Colin disagrees about when R4 died, but I don’t find that conflict material. The EMTs also report that the resident’s body was “hot to touch” and that the facility had “no functioning air conditioning unit or fan.” CMS Ex. 18 at 3; CMS Ex. 21 at 7. R4’s post-mortem rectal temperature was **104.6oF**. CMS Ex. 21 at 7.

Police were called, and they arrived at 5:53 a.m. P. Ex. 79 (filing #55e).

The medical examiner observed that R4’s treatment records did not document R4’s body temperature or describe any signs or symptoms on the date of his death. However, based on his core body temperature at the time of the investigation and the “totality of the circumstances,” the medical examiner found that the resident had been exposed to a hot environment prior to his death and that R4 depended on staff to remove him from a hazardous environment. The medical examiner concluded R4’s cause of death was environmental heat exposure; he ruled the death a homicide. CMS Ex. 21 at 7-8.

At this point, it becomes even more difficult to determine the sequence of deaths.

**September 13 at 6:00 a.m.** While the EMTs were still in R4’s room, they noticed that his roommate, 84-year-old **R5**, was no longer breathing. CMS Ex. 51 at 3. They pronounced R5 dead at **6:57 a.m**. CMS Ex. 24 at 3.

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The police contacted the medical examiner’s office, and an associate medical examiner, accompanied by an assistant, arrived at the facility at 12:07 p.m. They found R5’s body lying on his bed in his room. His rectal temperature was **104.1oF**. CMS Ex. 24 at 3. The medical examiner determined that R5 died of environmental heat exposure and ruled his death a homicide. CMS Ex. 25 at 1, 8.

At about 6:30 a.m., while the EMTs were still assessing the residents in room 226 (R4 and R5), they became aware of a commotion in the hallway. Captain Andrew Holtfreter testified at a state administrative hearing that he observed a nurse “waving her hands and yelling.” She pointed to a room. Captain Holtfreter entered the room and found **R6** dead in his bed. CMS Ex. 111 at 13, 40-41, 44-45. When Captain Holtfreter asked the nurse when she last had seen the resident, she did not give him a coherent answer. CMS Ex. 111 at 13. The EMTs pronounced R6’s death at 6:59 a.m. CMS Ex. 50 at 4.

The investigator from the medical examiner’s office reported that R6 had a rectal temperature of **105.9oF** at about noon on September 13. CMS Ex. 28 at 3. Again, the medical examiner noted that facility records did not describe any signs or symptoms on the day of R6’s death. However, based on his core temperature taken at the time of the investigation, as well as the totality of circumstances, the medical examiner concluded that R6 was exposed to a hot environment prior to his death; he depended on staff to remove him from that environment, which they failed to do. The cause of death was environmental heat exposure and the manner of death was a homicide. CMS Ex. 30 at 7; CMS Ex. 109 at 72-73 (Osborne Testimony).

A nurse’s note, recorded by LPN Tamika Miller at 3:30 a.m. on September 13, describes **R8** (the 70-year-old stroke victim) as alert and oriented but with skin that was flush and clammy. Her temperature was 101oF. Her O2 level was 88%. Her respiration was 19. The nurse administered two liters of oxygen via nasal cannula and her O2 level increased to 96%. Although the note says “continue to monitor,” staff recorded no other entries until after her death.

In one of several obviously inaccurate late entries, written on September 14 at 8:05 p.m., LPN Miller indicates that, at approximately 4:20 p.m. (no date provided and the “p.m.” is an obvious error), R8 had a change in condition. Her respiration was 28. Staff applied a “non-rebreather” (oxygen mask), called the EMTs, and transferred R8 to the hospital. CMS Ex. 36 at 234. The timing on this note cannot be accurate.16

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Emergency records show that an ambulance was dispatched at 6:18 a.m. and arrived at the facility at 6:21. CMS Ex. 37 at 1. The resident was in respiratory distress. EMTs provided cardio pulmonary resuscitation and transported R8 to the hospital. CMS Ex. 37 at 2-3. She got to the emergency department at 6:42 a.m. CMS Ex. 36 at 5. She was “extremely hyperthermic, in asystolic cardiac arrest.” CMS Ex. 36 at 6. Despite the emergency staff’s efforts, which included administering cold fluids, R8 was pronounced dead at 6:49 a.m. CMS Ex. 36 at 11. At 7:04 a.m., her core body temperature was a shocking **109.9oF** (43.3oC). CMS Ex. 36 at 8.

The medical examiner determined that the cause of death was heat stroke due to environmental heat exposure and ruled the death a homicide. CMS Ex. 40 at 9; *see* CMS Ex. 101 at 180. Again, although he did not consider the death a homicide, Dr. Jentzen agreed that R8 “would probably not have succumbed” had she been in a cooler environment. CMS Ex. 101 at 244 (Jentzen Deposition).

No facility records describe what happened to **R7** (the 71-year-old woman suffering from heart disease) on the night of September 12 to 13. According to the emergency medical services report, EMTs were dispatched to the facility at 6:35 a.m., arriving at 6:47. R7 was in severe respiratory distress. Her O2 level was 76%; her blood pressure 62/48; her pulse 16; and her respiratory rate was 12 and labored. CMS Ex. 32 at 2-3. Her tympanic temperature was **103.3oF**, and her skin was hot to the touch. CMS Ex. 32 at 2-3; CMS Ex. 111 at 162.

Hospital records indicate that she arrived at the emergency room at 7:03 a.m., suffering from cardiac arrest. CMS Ex. 31 at 1, 4. She died at 7:54 a.m. Her rectal temperature was **108.5oF** (42.5oC) and indicated that she died from heat stroke. CMS Ex. 31 at 9, 30; CMS Ex. 35; CMS Ex. 101 at 176 (Jentzen Deposition).

The medical examiner concluded that R7 died of heat stroke due to environmental heat exposure and ruled the death a homicide. CMS Ex. 35 at 8. Again, Petitioner’s own medical expert, Jeffrey Jentzen, M.D., agreed that R7 died from “environmental heat stress with arteriosclerotic and hypertensive heart disease, [cerebral vascular accident], and anticholinergic drugs and diuretics listed as contributing factors . . . .” CMS Ex. 101 at 175 (Jentzen Deposition). She “would probably not have succumbed” had she been in a cooler environment, although, again, he did not consider her death a homicide. CMS Ex. 101 at 244 (Jentzen Deposition).

**The aftermath**. After the residents presented with fatally-elevated temperatures, and their bodies were sent on to the medical examiner’s office, the authorities decided to take a closer look at **R3**(the 99-year-old woman in hospice care).

At 8:00 p.m. on **September 12**, R3’s temperature had been 99.5oF (axillary) and her respiratory rate was 36. When, at 9:00 p.m., her temperature rose to 102o and her

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respiratory rate rose to 38, she was given Tylenol. Her temperature dropped to 99.8oF. But, by **10:00 p.m.**, her temperature was back up to 102oF. CMS Ex. 52 at 5-6. She died shortly thereafter. CMS Ex. 52 at 4-5. The facility sent her body directly to a funeral home. CMS Ex. 16 at 6. Staff did not even consider the possibility that excessive heat contributed to her decline nor that other vulnerable residents could be at risk.

R3’s embalmed body was delivered to the medical examiner’s office for autopsy. CMS Ex. 16 at 2. The associate medical examiner noted that R3’s medical records *did not describe any signs and symptoms on the day of her death* (which is itself a serious deficiency). However, given the circumstances regarding her environment and her dependence on staff, the examiner concluded that the cause of death was environmental heat exposure and that her death was best described as a homicide. CMS Ex. 16 at 7.

I understand that R3’s death had been considered imminent for about a year, and, for purposes of summary judgment, I agree that material facts are in dispute as to whether the heat contributed to her death. Nevertheless, the facility was obligated to provide her with a safe and comfortable environment, which meant monitoring her room’s temperature, and no evidence suggests that its staff did so. If necessary, they should have taken steps to cool the room or move her to a safer setting. They should have followed her care plan and recorded her vital signs, as well as other signs and symptoms. Staff should also have considered the possibility that her death and R11’s hyperthermia were related to the heat and that other vulnerable residents of Two-West were at risk.

**Evacuation.** Exercise Physiologist Casa didn’t doubt “for a second [that] some of the people needed to be evacuated and needed emergency attention.” CMS Ex. 100 at 104 (Casa Deposition). Superintendent Colin agreed that there were problems and that “something had to be done,” but opined that the problems were confined to the second floor (which may be true). He testified that he and DON Castro “were going to start moving the residents downstairs,” which raises the question of why they hadn’t considered that earlier. P. Ex. 5 at 6 (Colin Decl. ¶¶ 56, 57). Before they could do so, emergency medical services decided to evacuate the facility. Staff from Memorial Regional Hospital arrived, and, with the EMTs, triaged the residents and moved them to a safer place. CMS Ex. 74 at 20-22 (Santana Deposition); P. Ex. 5 at 6-7 (Colin Decl. ¶ 58).

**Post-evacuation temperatures.** After the residents had been evacuated, law enforcement investigated. They went through the facility taking and recording temperatures, which ranged from 95o to 101oF. CMS Ex. 57 at 30-89. At 11:25 a.m. on September 13, the second floor temperature was 99oF. CMS Ex. 13 at 6. It was 100oF in room 226 (R4 and R5’s room) and 99oF in the hall outside room 229 (R6’s room) CMS Ex. 57 at 49, 51, 55.

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Petitioner presents no evidence of facility temperatures, but, citing the opinion of Climatologist Grundstein, argues that these readings are unreliable. Climatologist Grundstein has no particular expertise in this area. He simply claims that he read the manufacturer information for the instruments used (which Petitioner does not produce) and reviewed the testimony of the HVAC experts at the state administrative hearing. P. Ex. 8 at 9-10 (Grundstein Decl.). His opinion is thus without foundation and entitled to no more deference than the conclusions drawn by any lay person who reviews the evidence. Such conclusions do not create disputes of fact that would preclude summary judgment. *Guardian Health Care Ctr.*, DAB No. 1943 at 11. Significantly, Petitioner does not rely on the testimony of its actual expert – Engineer Ganick – who is a witness in these proceedings. *See* P. Ex. 12 (Ganick Decl.).

Ultimately, I need not rely on law enforcement’s temperature readings. Petitioner’s failure to come forward with evidence as to the temperatures in the resident rooms, coupled with the multiple instances of extreme hyperthermia, establishes the facility’s substantial noncompliance, without regard to what the temperatures were when someone finally measured and documented them in a systematic way.

**Very late entries**. It seems that, after the residents were transferred and the facility became a crime scene, DON Castro realized that nurses had not documented resident care. She claimed that documentation was “missing” because nurses “usually wait until the end of shift to document and, in this case, care was disrupted, they were kicked out of the building, they didn’t have access to go back and document on anyone.” CMS Ex. 95 at 101. She conceded that two nurses, RN Meggie and LPN Miller, “left everything undocumented . . . in the system.” CMS Ex. 95 at 58, 105, 108. At most, this explains only the absence of documentation from 7:00 p.m. September 12 on. It does not explain the multiple instances of missing documentation prior to the evening of September 12.

So DON Castro called the two nurses to Larkin Hospital to “complete the documentation that they didn’t do.” CMS Ex. 95 at 101-102, 104-05. I have discussed above the significant problems with some of these late entries, particularly the identical entries in the medical records of R1 and R2.

**Bases for my conclusions.** Based on the undisputed facts, I conclude that the facility was not in substantial compliance with 42 C.F.R. §§ 483.10(i), 483.12(a)(1), 483.24, 483.25(k) and (*l*), and 483.70. I base this decision solely on the undisputed evidence:

The air-conditioning failed;Facility staff did not assess residents or plan for their ongoing care when the facility lost its air-conditioning;**Page 32**

The facility had no back-up plan in place to protect residents if temperatures exceeded safe levels, which it determined to be 81oF;Although the facility installed some spot coolers in the hallways, it provided no cooling devices for the resident rooms;17The facility did not monitor the temperatures in the resident rooms and has offered no evidence as to what those temperatures were;During the period the facility was without air-conditioning, at least nine residents living on Two-West suffered from extreme hyperthermia;Environmental heat stress contributed to the deaths of at least three of those residents: R2, R7, and R8;The facility did not maintain complete, accurate, and reliable records; and at least some of their entries were patently incorrect.Based on these findings, the facility was not in substantial compliance with:

42 C.F.R. § 483.10(i) because it did not provide the residents of Two-West with a safe and comfortable environment;42 C.F.R. § 483.12(a)(1) because it did not provide the residents of Two-West with the goods and services they needed to avoid physical harm, mental anguish, and emotional distress;42 C.F.R. §§ 483.24 and 483.25 because, notwithstanding its “affirmative duty” to do so, the facility did not provide the residents of Two-West with the treatment and care they needed to attain or maintain their highest practicable physical, mental, and psychosocial well-being, in accordance with their care plans; and42 C.F.R. § 483.70 because the facility was not administered in a manner that enabled it to use its resources effectively and efficiently to attain or maintain the highest practicable physical, mental, and psychosocial well-being of its residents. Here, the facility’s deficiencies in planning for the loss of air-conditioning and**Page 33**

failing to maintain complete, accurate, and reliable records put it out of substantial compliance with section 483.70. In addition, its noncompliance in administration derives from its substantial noncompliance in other areas, and where, as here, “a facility has been shown to be so out of compliance with program requirements that its residents have been placed in immediate jeopardy,” I can reasonably conclude that the facility was not administered in a manner that used its resources effectively. *Stone Cnty. Nursing &Rehab. Ctr*., DAB No. 2276 at 15-16 (2009); *Odd Fellow & Rebekah Health Care Facility*, DAB No. 1839 at 7 (2002); *Asbury Ctr. at Johnson City*, DAB No. 1815 at 11 (2002).***2. CMS’s determination that the facility’s substantial noncompliance posed immediate jeopardy to resident health and safety is not clearly erroneous.***

**Immediate jeopardy**. Immediate jeopardy exists if a facility’s noncompliance has caused or is likely to cause “serious injury, harm, impairment, or death to a resident.” 42 C.F.R. § 488.301. CMS’s determination as to the level of a facility’s noncompliance (which would include an immediate jeopardy finding) must be upheld unless it is “clearly erroneous.” 42 C.F.R. § 498.60(c). The Board has observed repeatedly that the “clearly erroneous” standard imposes on facilities a “heavy burden” to show no immediate jeopardy and has sustained determinations of immediate jeopardy where CMS presented evidence “from which ‘[o]ne could reasonably conclude’ that immediate jeopardy exists.” *Barbourville Nursing Home*, DAB No. 1931 at 27-28 (2004) (citing*Koester Pavilion*, DAB No. 1750 (2000)); *Daughters of Miriam Ctr.*, DAB No. 2067 at 7, 9 (2007).

Here, both CMS’s and Petitioner’s witnesses agreed that the critical-care residents of Two-West were most vulnerable to developing heat-related illnesses. Yet the facility did not identify them as such nor take appropriate measures to prevent hyperthermia. No one measured the temperatures in their rooms. Nine of them became seriously ill; their body temperatures established that they had been exposed to environmental heat. The witnesses also agreed that temperature was a significant factor in the deaths of at least three of the residents.

Because the facility’s deficiencies were likely to cause serious harm and, in fact, caused actual harm, to vulnerable residents, CMS’s determination that the deficiencies posed immediate jeopardy to resident health and safety is not clearly erroneous.

***3. The penalties imposed are reasonable.***

To determine whether a civil money penalty is reasonable, I apply the factors listed in 42 C.F.R. § 488.438(f): (1) the facility’s history of noncompliance; (2) the facility’s financial condition; (3) factors specified in 42 C.F.R. § 488.404; and (4) the facility’s degree of culpability, which includes neglect, indifference, or disregard for resident care,

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comfort, or safety. The absence of culpability is not a mitigating factor. The factors in 42 C.F.R. § 488.404 include: (1) the scope and severity of the deficiency; (2) the relationship of the deficiency to other deficiencies resulting in noncompliance; and (3) the facility’s prior history of noncompliance in general and specifically with reference to the cited deficiencies.

I consider whether the evidence supports a finding that the amount of the CMP is at a level reasonably related to an effort to produce corrective action by a provider with the kind of deficiencies found, and in light of the section 488.438(f) factors. I am neither bound to defer to CMS’s factual assertions nor free to make a wholly independent choice of remedies without regard for CMS’s discretion. *Barn Hill Care Ctr.*, DAB No. 1848 at 21 (2002); *Cmty. Nursing Home*, DAB No. 1807 at 22 *et seq*. (2002); *Emerald Oaks*, DAB No. 1800 at 9 (2001); *CarePlex of Silver Spring*, DAB No. 1638 at 8 (1999).

Here, CMS imposes a penalty of $20,965 per day for four days of immediate jeopardy, which was the then-maximum per-day penalty for periods of immediate jeopardy. 42 C.F.R. §§ 488.408(e)(1)(iii); 488.438(a)(1)(i); 45 C.F.R. § 102.3; *see* 82 Fed. Reg. 9182 (Feb. 3, 2017). Considering the relevant factors, these penalties are reasonable.

CMS has submitted evidence of the facility’s history back to 2001. It shows that the facility has virtually never been found in substantial compliance with program requirements. CMS Ex. 146 at 1-12. Its most recent surveys cite multiple instances of significant substantial noncompliance:

In March 2017, it had multiple deficiencies, including: three life safety code deficiencies, cited at scope and severity level F (pattern of substantial noncompliance that causes no actual harm but with the potential for more than minimal harm) and multiple health deficiencies, four cited at scope and severity level D (isolated instance of substantial noncompliance that causes no actual harm but with the potential for more than minimal harm), six cited at scope and severity level E (pattern of substantial noncompliance that causes no actual harm but with the potential for more than minimal harm), and two cited at scope and severity level F.CMS Ex. 146 at 1.

In February 2016, the facility had two life safety code deficiencies cited at scope and severity levels D, three cited at scope and severity level E, and one cited at scope and severity level F. It had multiple health deficiencies, cited at scope and severity levels D (seven), E (seven), and F (two).CMS Ex. 146 at 2.

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In a December 2014 survey, the facility was not in substantial compliance with eighteen life safety code requirements, 15 cited at scope and severity level F, one cited at level E, and two cited at level D. It was not in substantial compliance with five health requirements, cited at levels D, E, and F, including the requirement that it maintain complete and accurate records.CMS Ex. 146 at 3.

Petitioner does not claim that its financial condition affects its ability to pay the CMP.

With respect to the remaining factors, the deficiencies here were serious to the point of deadly. The facility did not bother to determine which of its residents were most vulnerable to a hot environment and to plan their care accordingly. It knew that exposing residents to temperatures above 81oF would jeopardize resident health and safety, yet it did not systematically monitor the temperatures in the rooms to which those residents were confined and made no special effort to cool those rooms. This shows disregard for resident comfort and safety, for which the facility is culpable. CMS therefore justifiably imposed the maximum per-day penalty.

Conclusion

For all of these reasons, I find that, from at least September 10 through 13, 2017, the facility was not in substantial compliance with Medicare program requirements and that its deficiencies posed immediate jeopardy to resident health and safety. The penalty imposed – $20,965 per day for four days of immediate jeopardy – is reasonable. I have no authority to review CMS’s choice of termination as an additional remedy.


          /s/
        Carolyn Cozad Hughes

                      Administrative Law Judge
      1. Unlike nursing home appeals, the provider/supplier appeals process includes a reconsideration stage at which parties have the opportunity to present evidence.  42 C.F.R. §§ 498.22, 498.24. back to note 1
                      2. My findings of fact/conclusions of law are set forth, in italics and bold, in the discussion captions of this decision. back to note 2
                      3. Since these cases were decided, CMS has amended its regulations governing nursing facility participation in the Medicare program.  81 Fed. Reg. 68,688 (October 4, 2016).  However, the substance of the “quality of care” requirements – which are also statutory—has not changed, so the Board decisions that pre-date the regulatory changes remain valid. back to note 3
                      4. Plant Manager Williams refers to himself as “director of engineering.”  But he is not a trained or licensed engineer.  He has “certificates of completion” in HVAC (heating, ventilation, and air-conditioning), “EPA HVAC,” and “Engineering Operations Management.”  His curriculum vitae lists no licenses.  P. Ex. 24.  The facility’s administrator refers to him as the “plant manager,” which seems more accurate.  P. Ex. 2 at 4-5 (Carballo Decl. ¶ 21). back to note 4
                      5. Compounding the confusion with Climatologist Grundstein’s testimony was Petitioner’s failing to include any page numbers when citing to exhibits. back to note 5
                      6. Notably, Climatologist Grundstein did not mention the critically important heat index.  For that, the reader must consult other documents.  See P. Ex. 44.  The heat index is particularly important because high humidity levels impede sweat from evaporating, inhibiting the body’s ability to cool itself.  CMS Ex. 69 at 1. back to note 6
                      7. Engineer Ganick also claims that the cooler installation was “consistent with manufacturer’s regulations,” which seems verifiably not so since the manufacturer says that the coolers must be vented to the outside, and Engineer Ganick admits that they were not.  P. Ex. 12 at 3 (Ganick Decl. ¶ 13).  But, again, none of this is material. back to note 7
                      8. For the most part, the first floor residents were more mobile and could leave their rooms to sit near windows, fans, or the spot coolers.  CMS Ex. 103 at 16-17. back to note 8
                      9. Again, Petitioner ignored my order and cited only to the exhibit number, leaving it to me to find the bases for its assertion.  back to note 9
                      10. Exercise Physiologist Casa disingenuously described “documented cases of heat stroke that have developed in ambient air temperatures as low as 65-70 degrees.”  P. Ex. 9 at 4 (Casa Decl. ¶ 9e).  When questioned, he conceded that those cases of heat stroke involved marathon runners.  CMS Ex. 100 at 43 (Casa Deposition).  His initial statement was thus not only misleading, but also irrelevant in the context of elderly and infirm individuals subjected to high temperatures. back to note 10
                      11. CMS presents a much darker picture with respect to nursing staff’s record-keeping practices.  Comparing video footage recorded outside resident rooms with documentation that the nurses monitored and cared for the Two-West residents, CMS argues that they could not have provided the limited care that they claim to have provided.  CMS Exs. 118-123 (apparently showing that, between 9:20 p.m. and 4:56 a.m., staff entered Room 226 just four times, stayed 12 to 43 seconds, and brought no ice or equipment with them).  I don’t need to resolve that issue.  The inadequacy of the nursing notes, coupled with the nurses’ documented failures to follow physician orders and care plans, sufficiently establishes the facility’s substantial noncompliance.  (See below for examples of nurses’ notes that are patently incorrect). back to note 11
                      12. At 1:15 p.m. on September 12, Resident 11 (R11), an elderly and infirm occupant of Two-West (Room 226), was transported to the emergency room, suffering from shortness of breath, elevated respiration (55), and a dangerously high temperature, 103.3oF (axillary); 106.5oF (rectal).  CMS Ex. 43 at 6, 7, 11, 50.  The emergency department administered IV fluids and antibiotics; the resident’s temperature dropped, and his condition improved.  CMS Ex. 43 at 11, 13.  CMS has not included him among the residents whose treatment forms the basis for its findings of substantial noncompliance.  See CMS Ex. 43 at 16 (diagnosing sepsis).  Significantly, R11’s two roommates also developed hyperthermia, and neither survived.  See discussion below. back to note 12
                      13. A person’s body temperature can be taken in a variety of ways:  orally; rectally (which tends to be 0.5 to 0.7 degrees higher than those taken orally); axillary (under the arm, which tends to be 0.3 to 0.4 degrees lower than if taken by mouth); tympanic (by ear, which reflects the body’s core temperature); and by skin.  CMS Ex. 117 at 1. back to note 13
                      14. I find them not material because the facility has failed to come forward with admissible evidence as to temperatures in the resident rooms on Two-West, which would tell us what temperatures the residents were subjected to.  I cannot reasonably infer, from Supervisor Colin’s subjective opinion (which, in any event, does not mention resident rooms), that those room temperatures were safe.  Moreover, drawing all reasonable inferences in the light most favorable to the non-moving party does not mean that I must ignore reality.  Contrary to Petitioner’s argument, the parties’ differing conclusions of video footage do not create disputes of fact.  I can observe the footage and determine what it shows.  Cf. Scott v. Harris, 550 U.S. 372, 378-81 (2007) (concluding that no “genuine” dispute of fact existed where party opposing summary judgment relied on affidavit that was “blatantly contradicted” by video footage; “Respondent’s version of events is so utterly discredited by the record that no reasonable jury could have believed him.  The Court of Appeals should not have relied on such visible fiction; it should have viewed the facts in the light depicted by the videotape.”).  So I reject Supervisor Colin’s claim that no one in the video footage “is wiping their foreheads, fanning themselves, or doing any of the things that would indicate the building was hot.”  P. Ex. 5 at 5-6 (Colin Decl. ¶ 39).  This is not so.  In footage recorded at 9:36 p.m. on September 12, a staff member, who is closer to the cooler vent than R1, is visibly wiping her entire face.  P. Ex. 79 (filing # 54d).  Footage recorded at 4:33 a.m. on September 13 shows a woman in what appears to be sweat-stained scrubs standing directly in front of a spot cooler, pointing the cool-air cylinder directly at herself, adjusting it, obviously cooling herself off.  She is there for a full minute.  P. Ex. 80 (filing ## 138a, 138b, 138c, 139). back to note 14
                      15. Video footage suggests that staff discovered something amiss in Room 208 at about 3:52 a.m.  P. Ex. 79 (filing #55b). back to note 15
                      16. If these times are accurate (aside from the erroneous “p.m.”), serious questions arise regarding the delay between the onset of R8’s crisis and the facility’s calling in emergency medical services.  The EMTs were at the facility at 5:45 a.m., but staff did not mention R8’s distress to them. back to note 16
                      17. Although not critical to my decision, I find it significant (and generally undisputed) that the spot coolers, at best, provided only about 10.6% of the broken system’s cooling capacity.  At best, they could be expected to maintain safe temperatures for only a fraction of the entire floor space.  And that fraction did not include the resident rooms on Two-West. back to note 17 Back to top
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