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                              Windsor Gardens Healthcare Center of the Valley, DAB CR5202 (2018)
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Windsor Gardens Healthcare Center of the Valley, DAB CR5202 (2018)








  
  
    

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





Windsor Gardens Healthcare Center of the Valley,
	(CCN:  55-5012),
	Petitioner,
v.
Centers for Medicare & Medicaid Services.
Docket No. C-18-94Decision No. CR5202October 26, 2018

        
              
    

      DECISION
I sustain the imposition of two per-instance civil money penalties, each in the amount of $10,000, against Petitioner, Windsor Gardens Healthcare Center of the Valley.
I. Background
I held a hearing on August 8, 2018, at which I received into evidence exhibits from the Centers for Medicare & Medicaid Services (CMS) identified as CMS Ex. 1-CMS Ex. 27 and exhibits from Petitioner, identified as P. Ex. 1-P. Ex. 6. Each party filed a pre- and post-hearing brief.
II. Issues, Findings of Fact and Conclusions of Law
**A. Issues**The issues are whether Petitioner, a skilled nursing facility in the State of California, failed to comply substantially with Medicare participation requirements and whether CMS’s remedy determinations are reasonable.
**Page 2**
**B. Findings of Fact and Conclusions of Law**CMS grounds its remedy determinations on allegations that Petitioner failed to comply substantially with two Medicare participation requirements:
42 C.F.R. § 483.10(g)(14). The regulation requires in relevant part that a skilled nursing facility consult immediately with a resident’s treating physician about any significant change in the resident’s physical, mental, or psychosocial status. The regulation defines a “significant change” to be a deterioration in status in either life-threatening conditions or clinical complications.42 C.F.R. § 483.24 and 483.25. These regulations address the quality of life and quality of care that a skilled nursing facility must provide to its residents. Each resident must receive and a facility must provide the necessary care and services to attain the highest practicable physical, mental, and psychosocial well-being consistent with the resident’s comprehensive assessment and plan of care. 42 C.F.R. § 483.24. A skilled nursing facility must ensure that each resident receives treatment and care consistent with professional standards of practice, the resident’s care plan, and the resident’s choices. 42 C.F.R. § 483.25.CMS Ex. 1 at 1-10, 12-21; CMS Ex. 24 at 2. CMS also originally cited Petitioner for failing to comply with a third participation requirement that is stated at 42 C.F.R. § 483.21(b)(3)(i). CMS Ex. 1 at 10‐12, 27-29. I do not address this additional noncompliance allegation because: CMS imposed no remedy based on Petitioner’s alleged noncompliance with this regulation; and also because Petitioner’s compliance or noncompliance with this regulation forms no basis for my findings as to the reasonableness of the civil money penalties that CMS determined to impose.
The noncompliance allegations that are relevant to my decision center on the care that Petitioner gave to a resident who is identified as Resident 1. The resident had been an independent member of her community. CMS Ex. 26 at 2. She was hospitalized on March 22, 2017, suffering from pneumonia and sepsis. CMS Ex. 7 at 1, 19. Petitioner admitted the resident from the hospital to its facility on March 27, 2017. CMS Ex. 6 at 1. Her diagnoses upon admission included sepsis, pneumonia, chronic obstructive pulmonary disease, schizophrenia (unspecified), and generalized muscle weakness. *Id.*at 1-2.
On the morning of April 13, 2017, a certified nursing assistant reported to a charge nurse – a licensed vocational nurse – that Resident 1’s speech was slower than usual and that the resident exhibited increased weakness and tiredness. CMS Ex. 1 at 8-9; CMS Ex. 3 at 2; CMS Ex. 5 at 14; CMS Ex. 20 at 1. Nothing in the resident’s clinical record shows that the charge nurse examined the resident or assessed her condition in response to the nursing assistant’s report.
**Page 3**
The resident’s daughter, whose testimony I find to be credible, visited her mother at around 11:20 on the morning of April 13. CMS Ex. 2 at 2-3. This visit was one of many visits that the daughter regularly made to her mother at Petitioner’s facility. CMS Ex. 26 at 2. On days when the resident’s daughter did not physically visit her mother, she would often call and talk with her by first calling Petitioner and then asking the receptionist to transfer the call to the resident’s room. *Id.* Prior to April 13, 2017, Resident 1’s speech was intelligible and her daughter had no difficulty understanding what her mother said. *Id.*
On April 13, the daughter immediately noticed that something was wrong with her mother. CMS Ex. 26 at 2. She found Resident 1 to be in bed, appearing to be gaunt and pale. *Id.*Her speech was unintelligible and incoherent. *Id.*The daughter could not comprehend what her mother was trying to say. *Id.*She observed that her mother had difficulty lifting her head from her pillow and that she kept closing her eyes. *Id.* at 2-3. The daughter spoke with a member of Petitioner’s staff in her mother’s room, who stated that Resident 1’s speech appeared to be off and that the resident seemed to be tired. *Id.* at 3.
The daughter encountered a nurse in the hallway outside of Resident 1’s room. CMS Ex. 26 at 3. She reported her concerns about her mother to the nurse, who responded by speculating that, perhaps, the resident had not slept well the previous night*.* *Id.* There is nothing in Petitioner’s treatment records that show that the nurse investigated the resident’s condition in response to the resident’s daughter’s concerns.
The resident’s daughter sent a text to her mother’s physician at the same time that she brought her concerns to the nurse’s attention. CMS Ex. 26 at 3. At about noon on April 13, the physician called Petitioner and inquired about the resident’s condition. CMS Ex. 10 at 4. In response, the staff recorded the resident’s blood pressure, heart rate, and temperature, but performed no additional assessment or examination of the resident. *Id.*
Resident 1 went to physical therapy around midday on April 13, 2017. CMS Ex. 13 at 2. The physical therapist made a note showing that the resident manifested increased confusion, decreased motivation, and that she complained of face and neck pain. *Id.* There is nothing in the record to show that the physical therapist reported these observations to Petitioner’s nursing staff on April 13.
Resident 1 showed a significant loss of appetite throughout April 13. Petitioner’s records establish that on that date she ate between zero and 25 percent of her breakfast and lunch and refused to eat dinner. CMS Ex. 17 at 2. This contrasts with Petitioner’s records for previous dates, which show that the resident regularly ate at least one-half of her meals. *Id.*
**Page 4**
Resident 1’s daughter continued to be concerned about her mother’s condition throughout the day and evening of April 13, 2017. Between 1:05 p.m. and 7:23 p.m. on that date she placed a total of seven calls to Petitioner, most of which were calls in which she requested to be transferred to her mother in order to inquire about her condition. CMS Ex. 25; CMS Ex. 26 at 3. Her mother did not answer her calls. In one of the calls, made at around 7:00 p.m., the daughter spoke directly to Petitioner’s receptionist and stated that she had attempted to speak to her mother throughout the day, but that her mother had not answered her calls. CMS Ex. 26 at 3. A member of Petitioner’s staff went to the resident’s room and, Resident 1’s daughter believes, put the receiver to Resident 1’s ear so that she could communicate with her daughter. *Id.* The resident was incoherent and the call was disconnected after a few minutes. *Id.* at 4.
Concerned, the daughter immediately called Petitioner back and spoke with the facility’s charge nurse, expressing once again her concerns about her mother’s condition. CMS Ex. 26 at 4. The charge nurse told the daughter that the facility’s staff was monitoring her mother’s condition. *Id.*
Petitioner’s staff observed the resident hourly between midnight and 3:00 a.m. on April 14, 2017. CMS Ex. 10 at 3. At 2:20 a.m. the staff measured the resident’s vital signs while the resident was asleep. CMS Ex. 23 at 11, 17. A little over an hour later, the staff found Resident 1 nonresponsive. CMS Ex. 10 at 3. The resident died at or shortly before 4:01 a.m. on April 14, 2017. *Id.*; CMS Ex. 19 at 3.
The evidence establishes that on April 13, 2017, Resident 1 manifested the following clinical signs that were departures from her previously documented condition:
*Incoherence*. Both a nursing assistant and the resident’s daughter observed that the resident was having difficulty expressing herself. The nursing assistant and the daughter informed Petitioner’s professional staff of their observations.*Confusion.*Petitioner’s physical therapy staff observed the resident to show heightened confusion on April 13.*Loss of appetite.* The resident ate only a tiny fraction of her meals or refused to eat on April 13. This marked a notable decline in the resident’s appetite.*Fatigue and weakness.*Both Petitioner’s staff and the resident’s daughter observed the resident to be fatigued on April 13. At 11:20 a.m. the daughter found her mother still in bed and barely responsive, manifesting difficulty lifting her head from her pillow.**Page 5**
*Pain.*On April 13 Petitioner’s physical therapist noted that the resident complained of face and neck pain.I find that this constellation of signs established a significant change in the resident’s condition on April 13. In numerous ways the resident manifested signs that she was deteriorating substantially on that date.
The changes evidenced by Resident 1 ought to have set off alarm bells among Petitioner’s staff. They did not. Despite all of the signs of significant change, the staff failed to examine and assess the resident for a possible serious problem. The staff either ignored or overlooked obvious signs that Resident 1 was deteriorating rapidly, and they failed to communicate those signs to the resident’s physician, notwithstanding that the physician had inquired about the condition of the resident.
What should the staff have done when they observed or learned about the changes in the resident’s condition? First and foremost, the staff professionals should have done a complete assessment of the resident, recording not just the resident’s vital signs, but examining and assessing her neurological status. CMS Ex. 27 at 6. They should have carefully documented the resident’s incoherence and confusion. *Id.* at 4, 7. They should have assessed whether the resident was experiencing weakness in her extremities as reported. *Id.* at 4. They should have inquired carefully about the resident’s complaints of pain in her face and neck. *Id.* at 4-6. Additionally, the staff should have checked to see whether the resident’s pupils reacted equally to light, whether the resident could move her eyes in unison, whether she could read, whether she could purse her lips, and they should have assessed her hearing. *Id.*at 6. And, they should have communicated all of their findings to the resident’s physician and consulted with him about what steps they should take on behalf of Resident 1. *Id.* at 6-7.
It was certainly not enough for the staff to simply record the resident’s vital signs. Blood pressure, body temperature, and heart rate are *elements*of an assessment. CMS Ex. 27 at 6. But, these measurements, as important as they may be, are insufficient to establish a complete picture of a resident’s condition where the resident – as was the case with Resident 1 – manifests signs of neurological issues (incoherence, confusion, fatigue, and weakness). *Id.* at 4-6.
Petitioner’s staff plainly failed to assess Resident 1’s condition meaningfully. Their failure violated professional standards of nursing care. CMS Ex. 27 at 4-6. It also violated Petitioner’s own policy.
Petitioner has a “Change of Condition” policy. CMS Ex. 22 at 7. The policy requires Petitioner’s professional staff to assess a resident’s condition upon receiving a report of a possible significant change. *Id.* The policy defines an assessment to include, among other things, assessing a resident’s cognitive status and mobility. *Id.* The nursing
**Page 6**
assistant’s report on April 13, 2017, that the resident’s speech was slow and that she complained of being very tired triggered the duty to assess comprehensively Resident 1’s condition pursuant to Petitioner’s policy. CMS Ex. 1 at 8-9; CMS Ex. 5 at 14. The subsequent statements made by the resident’s daughter also triggered that duty. CMS Ex. 26 at 2-4. Petitioner’s staff’s failure to act in response to the communications from the nursing assistant and the resident’s daughter plainly contravened Petitioner’s policy as well as professionally recognized standards of nursing care.
As a consequence of failing to assess thoroughly Resident 1’s condition, Petitioner’s staff failed to consult meaningfully with the resident’s physician. That violated the requirements of 42 C.F.R. § 483.10(g)(14). The regulation requires more than simple communication between a facility’s staff and a resident’s physician. It requires consultation. In order for consultation to be meaningful, a facility’s staff must perform its professional duty to fully assess any resident who is exhibiting problems.
Petitioner also contravened the requirements of 42 C.F.R. § 483.24 and 483.25. These regulations impose a duty of diligence on the part of a skilled nursing facility. The facility must provide a resident care of a professional level, consistent with standards of care and its own policies. A skilled nursing facility must work diligently to anticipate and treat any problems that its residents might manifest. In this case, Petitioner clearly failed to satisfy the duty imposed on it by the regulations.
I have considered the arguments and evidence offered by Petitioner in its defense and I find them to be unpersuasive.
Petitioner contends that there was no significant change in Resident 1’s condition on April 13, 2017. Petitioner Pre-hearing Brief at 7-9; Petitioner Post-hearing Brief at 3-5. Therefore, according to Petitioner, it was neither under a duty to assess the resident nor to consult with the resident’s treating physician. Petitioner Pre-hearing Brief at 9‐10.
This argument is in part circular and it fails for that reason. Petitioner contends that its staff did not find anything particularly wrong with Resident 1 on April 13. Petitioner Pre-hearing Brief at 5; Petitioner Post-hearing Brief at 7. Therefore, there was no clinical evidence of a significant change in the resident’s condition, according to Petitioner. However, if a facility’s staff does not carefully assess a resident, the odds become overwhelming that the staff is not going to find anything wrong with that resident. Here, the failure to assess the resident for signs of neurological deterioration meant that Petitioner’s staff very likely would not see such signs.
Petitioner also predicates its argument that there was no significant change in Resident 1’s condition on the resident’s multiple diagnoses. Petitioner Pre-hearing Brief at 2, 7-9; Petitioner Post-hearing Brief at 8. Essentially, it asserts that Resident 1 was very ill. Therefore, according to Petitioner, any signs of illness that the resident
**Page 7**
manifested on April 13, 2017, were simply aspects of her ongoing disease process and did not constitute a significant change in her condition.
Petitioner’s assertion notwithstanding, the evidence establishes that there *were* signs of a significant change in Resident 1’s condition on April 13. The credible evidence establishes that both a nursing assistant and the resident’s daughter reported that the resident manifested heightened inability to communicate, fatigue, and weakness. CMS Ex. 1 at 8-9; CMS Ex. 5 at 14; CMS Ex. 26 at 2-4. The daughter’s concerns, in and of themselves, mandated that Petitioner’s staff thoroughly assess Resident 1. A physical therapist took note of the resident’s increased confusion and complaints of face and neck pain. CMS Ex. 13 at 2. The staff recorded the resident’s sudden loss of appetite on April 13. CMS Ex. 17 at 2. Petitioner’s staff should have interpreted all, or any, of these signs as indicating a potentially serious deterioration in the resident’s condition. That triggered a duty to assess the resident further and thoroughly.
Petitioner mainly rests its argument of an absence of significant change on assertions by members of Petitioner’s staff: Eleanore Punzalan, L.V.N. (P. Ex. 2); Visitacion Gorriceta, R.N. (P. Ex. 3); Lisa Rubi, P.T.A. (P. Ex. 4); Dayanara Hernandez, C.N.A. (P. Ex. 5); and Carol Quinteros, L.V.N. (P. Ex. 6). Summarized, these assertions are as follows:
Resident 1 had a diagnosis of aphasia – an inability to speak clearly based on an underlying medical condition. Her aphasia interfered with her ability to speak and also to process (understand) language. P. Ex. 2 at 2.On the morning of April 13, Ms. Punzalan saw the resident, assessed her, and found that her only problem was that she was tired and “a little bit weak.” P. Ex. 2 at 2. There were some speech issues, but nothing that was inconsistent with the resident’s baseline condition. *Id.* She had a discussion with the resident’s daughter about the resident’s condition on April 13 but does not recall the daughter raising any concerns about her mother’s ability to speak. *Id.* at 3.Ms. Gorriceta assessed the resident on April 13 after speaking with the resident’s physician. P. Ex. 3 at 2. The physician called the facility after communicating with the resident’s daughter and reported that the daughter told him that the resident’s speech was impaired to the extent that she could not finish a single sentence*.* *Id*. However, Ms. Gorriceta found the resident to be coherent. *Id*. She failed to record her conversation with the physician in her progress notes because, based on her finding that the resident was coherent, she did not believe that the resident’s condition had changed, and because the physician had not issued any new orders. *Id.***Page 8**
Ms. Rubi provided physical therapy services to Resident 1 on April 13. P. Ex. 4 at 1. The resident complained about a stomach ache and was distracted, unfocused, and preoccupied while complaining about her pain. *Id.* at 1-2. This is why Ms. Rubi wrote in the resident’s physical therapy note that the resident was displaying increased confusion. *Id.*at 2.Ms. Hernandez attended to Resident 1 on the morning of April 13. P. Ex. 5 at 1-2. She helped the resident dress. *Id.* at 2. She noticed nothing about the resident other than that she complained that she was tired and wanted to sleep more. *Id.* That did not strike Ms. Hernandez as unusual given the resident’s age and the fact she was “recovering from an illness.” *Id.*Ms. Hernandez also recalled that the resident only ate part of her lunch, but that the resident asked her to save the uneaten part for later. *Id.*Ms. Quinteros worked the evening shift on April 13, 2017 (from 3:00 p.m. until 11:00 p.m.). P. Ex. 6 at 1. She saw Resident 1 at 3:30 p.m. *Id.* at 1-2. At that time she was in bed but awake and alert without manifesting any signs of distress. *Id.* at 2. Ms. Quinteros reported the resident to be “fine” at 5:30 p.m. *Id.* At 9:00 p.m. the resident was up and awake and asked for a snack. *Id.* During her 10:30 p.m. rounds, the resident was sleeping comfortably. *Id.*I find these assertions not to be credible.
To begin with, Petitioner’s staff did not assess Resident 1 as having aphasia. Assertions by Petitioner’s witnesses that the resident was aphasic cannot be based on the facility’s evaluations of Resident 1 because these evaluations do not reveal any speech impairment. If the resident’s medical records from other sources contain a diagnosis of aphasia, there is zero evidence in the record of this case to show that Petitioner’s staff was aware of that diagnosis prior to the resident’s death on April 14, 2017. Based on what records the facility had, Resident 1 was not aphasic and the staff had no basis to conclude that she was.
No diagnosis of aphasia appears in the resident’s admission record. CMS Ex. 6. Petitioner’s assessment of the resident, made on April 2, 2017, found no impairment in Resident 1’s speech or cognitive function. CMS Ex. 8 at 6-8. None of the four assessments made of Resident 1 by her treating physician included a diagnosis of aphasia, and in fact the physician conspicuously left the box for “aphasia” unchecked in each assessment. CMS Ex. 11 at 3-6.
Many of the other assertions made by Petitioner’s witnesses concerning their observations of Resident 1 on April 13, 2017, are unsupported by the resident’s clinical record. I find these assertions not to be credible for that reason.
**Page 9**
On April 13, the resident’s daughter, alarmed by her observations of her mother’s condition, relayed her concerns to Petitioner’s staff sometime between 11:00 a.m. and noon, and again during the evening. CMS Ex. 26 at 2-4. The resident’s physician, motivated by the daughter’s expressions of concern, called the facility around midday on the 13th. CMS Ex. 10 at 4. One would expect that the staff would have documented these expressions of concern and would have carefully recorded any observations it made in response. But, the resident’s treatment record on April 13, 2017, is virtually devoid of observations by the staff and devoid of clinical findings that support the staff’s contentions as to the resident’s condition on that date. CMS Ex. 10 at 2-5.
Moreover, Petitioner’s treatment records covering Resident 1’s care on April 13-14, 2017, are highly suspect because they are not contemporaneous records. At a minimum, there is no correlation between the times listed in the notes and the time the entry was actually made, and it appears Petitioner’s staff entered these notes late, and only after Resident 1’s death. CMS Ex. 10 at 2-5. An April 13, 12:15 p.m. “Late Entry” note describes Petitioner receiving a call from the resident’s physician. CMS Ex. 10 at 4. A later, April 14, 4:30 a.m. note is not described as a “Late Entry” note, yet includes information from 11:00 p.m. on the previous day, through *7:00 a.m.* on April 14 – *after*the note was allegedly made. *Id.* at 2-3. The inescapable inference that I draw is that these notes are, at the least, self-serving and are written in a way that is intended to depict the staff’s actions in a way that is favorable to them and Petitioner.
Ms. Punzalan made an entry in which she states that she observed the resident in bed on April 13, 2017, and the resident stated “I’m OK.” CMS Ex. 10 at 4. She reported that the resident was not complaining of chest pain, that she had no shortness of breath, and no wheezing. *Id.* This note omits any discussion of the daughter’s concerns that her mother had impaired speech, was incoherent, and manifested significant weakness. Even if these notes are correct, they demonstrate a failure by Ms. Punzalan to respond to the daughter’s concerns about her mother.
But, in her testimony, Ms. Punzalan asserts that the resident was slightly weak and that her speech was normal (given the resident’s asserted aphasia). P. Ex. 2 at 2. Those alleged findings at least address the daughter’s concerns. But, there is nothing whatsoever in Ms. Punzalan’s after-the-fact notes to support them. CMS Ex. 10 at 2-5. I infer that Ms. Punzalan did not write a note addressing these alleged findings because she never assessed Resident 1 for weakness and impaired speech.
Indeed, Ms. Punzalan is not qualified to do the type of assessment that was necessary given the concerns expressed by the resident’s daughter. Ms. Punzalan is a licensed vocational nurse. Under California law she is licensed only to collect information and not to interpret it. Cal. Code Regs. tit. 16, § 2518.5. Ms. Punzalan’s duty was to relay the daughter’s concerns to a registered nurse on Petitioner’s staff so that the registered nurse could perform a complete assessment.
**Page 10**
I find Ms. Gorriceta’s assertion that she found Resident 1 to be coherent to be unsupported by the resident’s after-the-fact clinical record and not credible for that reason. Ms. Gorriceta contends that she assessed the resident in response to the resident’s physician’s call. P. Ex. 3 at 2. Given that the physician called Petitioner’s facility in response to the resident’s daughter’s concerns – including her concern that her mother was incoherent – one would expect that assessing the resident’s cognitive state and speech would be Ms. Gorriceta’s *primary* objective. The fact that Ms. Gorriceta made no record of her asserted finding that the resident was coherent gives the lie to that assertion. It is far more probable that Ms. Gorriceta made no record because she did not assess the resident for neurological signs.
Ms. Rubi’s assertion that she attributed the resident’s increased confusion during her physical therapy session on April 13, 2017, to her complaints of a stomach ache similarly contains no support in the record. Ms. Rubi observed that the resident manifested increased confusion along with her complaints. P. Ex. 4 at 2. But, nothing in her notes suggests that she investigated that confusion and made a reasoned determination that it was due to the resident’s stomach ache. Furthermore, she should have reported her findings of increased confusion to Petitioner’s nursing staff even if she thought the confusion was due to the resident’s pain. She did not.
Ms. Hernandez’s testimony is impeached significantly by her assertion that she does not remember her conversations with the State agency surveyor who responded to the complaint about Petitioner’s care of Resident 1. P. Ex. 5 at 2. I also find not credible her assertion that she did not notice “anything out of the ordinary” with Resident 1’s speech on April 13. *Id.*Ms. Hernandez does not relate any conversations that she had with the resident on the morning of April 13. It is reasonable to infer that Ms. Hernandez did not speak to the resident at all on that morning given the resident’s daughter’s credible testimony that the resident was virtually nonresponsive at that time.
Ms. Hernandez averred that she had a conversation with the resident at lunch during which the resident asked her to save some of the food that the resident’s daughter had brought to the facility. P. Ex. 5 at 2. I find this assertion to be unbelievable when contrasted by credible evidence that the resident had become incoherent.
I find Ms. Quinteros’s testimony to be unbelievable. Ms. Quinteros made a number of assertions about Resident 1 that find no support whatsoever in Ms. Quinteros’s nursing notes. P. Ex. 6 at 1-2. Her assertions that the resident was “fine,” and that the resident asked for a snack are completely unsupported by the record. Petitioner’s records showing that the resident had essentially stopped eating on April 13, 2017, also belie Ms. Quinteros’s assertions. CMS Ex. 17 at 2. Ms. Quinteros’s note of the care that she provided to Resident 1 on April 13 – a note that she potentially made after the fact – says
**Page 11**
only that the resident was sleeping comfortably at 10:30 p.m. CMS Ex. 10 at 2-5. I find that note to be self-serving given that it appears Ms. Quinteros wrote it after the resident had died.
Petitioner argues that CMS failed to establish even a prima facie case that Petitioner failed to comply with the requirements of 42 C.F.R. § 483.24 and 483.25 because, allegedly, CMS did not prove that Resident 1 required “certain care” (meaning specific care). Petitioner Pre-hearing Brief at 3; Petitioner Post-hearing Brief at 8-9. Petitioner effectively premises this argument on its contention that the resident manifested no significant change in her condition on April 13, 2017. It reasons that if there was no significant change then Petitioner was under no duty to provide any care other than that which had been ordered previously.
This argument fails because there clearly *was* a significant change in the resident’s condition. But even if there had been *no*significant change, Petitioner’s staff was obligated to assess Resident 1 thoroughly and carefully to determine whether a significant change had occurred. That is because Petitioner’s nursing staff had received credible and persistent statements from Resident 1’s daughter that her mother’s condition had deteriorated dramatically. At the very least, those statements mandated the staff to do a complete assessment of the resident – an assessment that they never performed.
I find the remedies that CMS determined to impose to remedy the two established regulatory violations – two per-instance civil money penalties of $10,000 each– to be entirely reasonable. They reflect the seriousness of Petitioner’s noncompliance, its staff’s culpability, and Petitioner’s prior history of noncompliance with participation requirements.
Petitioner’s noncompliance was extremely serious. Its staff had received credible reports that Resident 1 – who was very ill to begin with – had suddenly deteriorated markedly. That put Petitioner on notice that its staff must immediately perform a thorough assessment of the resident in order to determine whether her condition had deteriorated and furthermore, to consult with the resident’s treating physician about the results of that assessment. The staff was not only put on notice by one of its nursing assistants that something might be gravely wrong with Resident 1, but they received credible statements from the resident’s daughter and an inquiry from the resident’s treating physician. Yet, and in response to all of these comments and inquiries, the staff did next to nothing to assess the resident.
I find that Petitioner bears a high level of culpability for its noncompliance. A skilled nursing facility is not just a boarding house for elderly and sick individuals. The very purpose of a skilled nursing facility is to provide care that a resident may not obtain on his or her own. In order to qualify for Medicare reimbursement, a skilled nursing facility must comply with the letter and spirit of the regulations governing its participation. That
**Page 12**
includes working conscientiously to identify any problem a resident might manifest and working diligently to address that problem.
Here, Petitioner’s staff essentially ignored their responsibilities. Resident 1, very ill to begin with, deteriorated rapidly on April 13, 2017. Petitioner’s staff ignored all of the warning signs manifested by the resident and communicated by the resident’s daughter. I cannot say based on this record that Petitioner’s neglect of the resident caused her death. But, I can say that the neglect deprived the resident of the opportunity to receive care that might have saved her life.
Petitioner’s poor compliance history provides additional support for the two $10,000 penalties. Petitioner was found noncompliant at three surveys prior to the complaint survey that resulted in CMS’s remedy determination. Prior findings of noncompliance include findings that Petitioner failed to comply with the same regulations that I find it to have violated here. CMS Ex. 4 at 2.
In challenging the penalty amounts Petitioner argues that any deficiencies that CMS proved were isolated and that its culpability for those deficiencies is low. Petitioner Pre-hearing Brief at 2, 9-11; Petitioner Post-hearing Brief at 9-10. The deficiencies may have been isolated in the sense that CMS did not find that Petitioner’s noncompliance extended to residents other than Resident 1. However, that does not gainsay the seriousness of Petitioner’s noncompliance as respects the resident. Moreover, the noncompliance was not “isolated” in the sense that it was confined to a single act of neglect. Petitioner’s staff repeatedly ignored Resident 1’s condition over the course of an entire day, failing to address multiple warning signs that something was gravely amiss with the resident.
As to culpability, I disagree with Petitioner’s assertion that it should not be held culpable for its noncompliance. The failure to attend to Resident 1 was a profound act of neglect that had potentially lethal consequences. Petitioner raises additional arguments challenging the constitutionality of CMS’s actions and the regulations on which CMS relies. I do not address these arguments because I have no authority to hear and decide them.
I therefore sustain the imposition of two per-instance civil money penalties, each in the amount of $10,000, against Petitioner.
  
          /s/
        Steven T. Kessel

                      Administrative Law Judge Back to top
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