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                              Generations at Riverview, DAB CR6046 (2022)
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Generations at Riverview, DAB CR6046 (2022)








  
  
    

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





Generations at Riverview,
(CCN: 14-5524),
Petitioner,

v.

Centers for Medicare & Medicaid Services
Docket No. C-20-412Decision No. CR6046March 15, 2022

        
              
    

      DECISION

This case involves the last days of a facility resident, who suffered from diabetes and had a history of diabetic coma.  A nurse aide did not report that he failed to eat his dinner and that she could not wake him.  His blood sugar fell to dangerously low levels, and the nurses could not rouse him.  Staff looked for – but could not find – the crucial medication, glucagon, so they attempted to force orange juice and sugar down the unconscious resident's throat.  I now consider whether the facility provided that resident the necessary care and services so that he could attain or maintain the highest practicable physical, mental, and psychosocial well-being, in accordance with his comprehensive assessment and plan of care.

Petitioner, Generations at Riverview, is a long-term-care facility located in East Peoria, Illinois, that participates in the Medicare program.  Following a complaint investigation, completed October 29, 2019, 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 civil money penalties (CMPs) of $9,705 per day for 16 days of substantial noncompliance that posed immediate jeopardy and $415 dollars per day for 32

Page 2

days of substantial noncompliance that did not pose immediate jeopardy.  Based on the facility's evidence of financial hardship, CMS subsequently reduced the total penalty by 50%.

Petitioner has appealed.

For the reasons set forth below, I find that, from October 9 through November 25, 2019, the facility was not in substantial compliance with Medicare program requirements, specifically 42 C.F.R. § 483.25; that from October 9 through 24, 2019, its deficiencies posed immediate jeopardy to resident health and safety; and that 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.

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).

**The earlier surveys**.  Petitioner Generations underwent two surveys shortly before the October 29, 2019 survey that is the subject of this appeal:

The Illinois Department of Public Health (state agency) completed a complaint investigation on **August 22, 2019**.  Based on the survey findings, CMS determined that the facility was not in substantial compliance with **42 C.F.R. § 483.25** (Tag F689 – quality of care), cited at scope and severity level G (isolated instance of substantial noncompliance that causes actual harm that is not immediate jeopardy).  Petitioner did not appeal the survey findings, which are therefore final and binding.  CMS Exs. 1, 2, 3; P. Ex. 2; Joint Stip. of Issues ¶¶ 2, 3; *see* 42 C.F.R. § 498.20(b).Page 3

On **September 11, 2019**, CMS conducted a Life Safety Code Federal Monitoring Survey, citing 11 deficiencies, the five most serious cited at scope and severity level F (widespread substantial noncompliance that causes no actual harm with the potential for more than minimal harm).  Petitioner did not appeal the survey findings, which are therefore final and binding.  CMS Ex. 3; P. Ex. 3; Joint Stip. of Issues ¶¶ 4, 5; *see* 42 C.F.R. § 498.20(b).**The October 2019 survey**.  On **October 29, 2019**, the state agency completed an extended complaint investigation survey.  Based on the survey findings, CMS determined that the facility was not in substantial compliance with **42 C.F.R. § 483.25** (Tag F684 – quality of care), cited at scope and severity level J (isolated instance of substantial noncompliance that poses immediate jeopardy to resident health and safety).  CMS Exs. 4, 5; Joint Stip. of Issues ¶¶ 6, 7.

Following a November 26, 2019 revisit survey, CMS determined that the facility returned to substantial compliance that day.  CMS imposed against the facility penalties of $9,705 per day for 16 days of immediate jeopardy (October 9 through 24, 2019) and $415 per day for 32 days of substantial noncompliance that did not pose immediate jeopardy.  (October 25 through November 25, 2019), for a total penalty of $168,560 ($155,280 + $13,280 = $168,560).  CMS also imposed a denial of payment for new admissions, which ran from November 12 through 25, 2019.  CMS Ex. 4; Joint Stip. of Issues ¶¶ 9, 11.

In a letter dated May 27, 2020, CMS advised the facility that it was reducing the penalty amount by 50%.  CMS Ex. 37.  The total amount due is therefore $84,280.

Petitioner appealed.1

The parties have filed Joint Stipulations of Issues and Joint Stipulations of Facts.  (DAB E-file #7 and #7a).

CMS filed a pre-hearing brief (CMS Br.) with 51 exhibits (CMS Exs. 1-51).  Petitioner filed its own pre-hearing brief, which it later amended (P. Br.) and 19 exhibits (P. Exs. 1-19).  CMS filed a response (CMS Response).

Page 4

**Petitioner's objections to CMS's exhibits**.  Petitioner objects to 17 of CMS's exhibits:

**CMS Ex. 9** – facility records, which include a surveyor's highlighting and marginal comments.  *See* CMS Ex. 9 at 3, 4, 6, 9.  Without explaining the exact basis, Petitioner objects to the surveyor notes and the highlighting that are part of the document.
	**CMS Ex. 17** – facility policy addressing incident procedures.  The document duplicates CMS Ex. 15, and CMS has withdrawn it.
	**CMS Exs. 20 and 21** – surveyor notes.  Petitioner points out that the documents include interview and survey notes written by the surveyors.  Petitioner argues that the documents should be barred as hearsay.2
	**CMS Exs. 22 and 23** – facility records for Residents 2 (R2) and 3 (R3).  Petitioner argues that the documents are irrelevant because the residents are not discussed in the Statement of Deficiencies or in CMS's brief.
	**CMS Exs. 38-47 and 49** – documents relating to the November 26, 2019 follow-up survey, including the Statement of Deficiencies (Form CMS 2567).  Petitioner argues that the documents are irrelevant because it has stipulated that it "was investigated and placed back into substantial compliance on November 26, 2019."  P. Objections at 2.  Hence, according to Petitioner, no details of the investigation are relevant.**Rulings on Petitioner's objections**.  So long as the proffered evidence is relevant and material, it will be admitted.  42 C.F.R. § 498.60(b).

Medical records for the resident whose care is the primary focus of this matter comprise the bulk of **CMS Ex. 9**.  As such, the exhibit is plainly relevant and material.  The surveyor notes, to which Petitioner objects, are minimal and easily distinguishable from the medical records themselves.  Two of them simply reflect what is already in those

Page 5

records.  CMS Ex. 9 at 3, 4.  The other two include statements from staff.  CMS Ex. 9 at 6, 9; *see* CMS Ex. 18 at 3 (Boyer Decl. ¶ 5).  As I discuss below, surveyor notes and statements from staff are relevant, material, and admissible.  I therefore overrule Petitioner's objection.  The document will be admitted.

With respect to Petitioner's hearsay objections to the surveyor notes, **CMS Exs. 20 and 21**, it is well-settled that I may receive evidence, including hearsay, that would be inadmissible under the Rules of Evidence.  42 C.F.R. § 498.61; *Lifehouse of Riverside Healthcare Ctr.*, DAB No. 2774 at 9 (2017); *Britthaven Inc. d/b/a/ Britthaven of Smithfield*, DAB No. 2018 at 3 (2006) ("In administrative proceedings generally and in Chapter 498 proceedings expressly, hearsay is admissible and can be probative on the issue of the truth of the matter asserted, where sufficient indicia of reliability are present.").

Moreover, much of the content to which Petitioner objects – interviews with facility staff – would be admissible under the federal rules.  Fed. R. Ev. 801(d)(2)(D); *see* *Beatrice State Developmental Ctr.*, DAB No. 2311 at 17, 18 (2010) (pointing out that the facility could have but did not present employee testimony that refuted the statements the surveyors claimed they made); *Omni Manor Nursing Home*, DAB No. 1920 at 11 (2004) (holding that statements of facility employees to the surveyors may be admitted in an administrative proceeding and may constitute substantial evidence); *see Richardson v. Perales*, 402 U.S. 389, 410 (1971).  Because the documents are relevant and material, I overrule Petitioner's objections.  They will be admitted.

I do not agree that the medical records for two additional facility residents (R2 and R3) are irrelevant.  **CMS Exs. 22 and 23**.  I am reviewing the quality of care that the facility provided to a diabetic resident.  As the documents indicate, R2 and R3 also suffered from diabetes, which means that they too could be affected by the staff's ability (or inability) to treat their condition.  I therefore overrule Petitioner's objections and admit the exhibits.

I also find relevant **CMS Exs. 38-47 and 49**, the Statement of Deficiencies and other documents relating to the November 26, 2019 survey.  The date the facility returned to substantial compliance is relevant.  Moreover, these documents also include evidence that relates back to the period of purported noncompliance.  *See, e.g*., CMS Ex. 41 (care plan initiated on November 18, 2019); CMS Ex. 44 (care plan initiated on October 21, 2019).  Because the documents are relevant and material, I overrule Petitioner's objections and admit them.

**CMS objections to Petitioner's exhibits**.  CMS objects to many of Petitioner's exhibits, including some that relate to the earlier surveys that Petitioner did not appeal.

Page 6

**P. Exs. 1-3** – the facility's September 13, 2019 request for informal dispute resolution following the August 22, 2019 survey, and statements of deficiencies/plans of correction generated after the August 22 and September 11, 2019 surveys.  CMS argues that the documents are irrelevant because Petitioner did not appeal those survey findings, which are final and binding.
	**P. Exs. 4-15** – CMS objects to these documents because they duplicate exhibits proffered by CMS.  *See* Standing Order at 3 (¶ 4(c)(3)) (Mar. 31, 2020) (ordering Petitioner not to submit documents that CMS has already submitted).  Petitioner apparently does not disagree because it responded by filing an amended brief, which substituted citations to the CMS exhibits for citations to its own exhibits.
	**P. Ex. 17** – unsigned financial statements, dated December 31, 2019.  CMS objects because the document is not signed or certified and is offered without foundation.
	**P. Ex. 19** – January 24, 2020 letter from the state agency advising the facility that, based on its October 29, 2019 complaint investigation, it was imposing a penalty of $50,000.  CMS objects, arguing that the document is irrelevant and lacks foundation.**Rulings on CMS's objections**.  CMS is correct that the August 22 and September 11 survey findings are final and binding.  I agree that **P. Ex. 1**, an Informal Dispute Resolution Form, asking the state agency to review the August 22 survey, is irrelevant and decline to admit it.3

Petitioner argues that **P. Exs. 2 and 3**, the plans of correction for the earlier surveys, "are important to show the inexcusable length of time between the initiation of the survey cycle and its eventual follow-up."  From this, Petitioner argues that the documents should be "reviewed as part of determining the [CMP calculations] . . . and, just as importantly, the length of the denial of payment for new admissions."  P. Response at 1-2.

I question both Petitioner's underlying premise, and its logic.  The October 29 survey was a *complaint investigation*, its timing unrelated to the earlier surveys.  CMS Ex. 6; CMS Ex. 18 at 1 (Boyer Decl. ¶ 2).  As required by statute, surveyors went to the facility to investigate a complaint.  Act § 1819(g)(4).  Based on the survey findings, CMS determined that the facility was not in substantial compliance, and it imposed remedies.4

Page 7

I am authorized to review CMS's finding of substantial noncompliance that results in its imposing a remedy.  42 C.F.R. § 498.3(b)(13).  I may *not* review CMS's choice of remedy nor the factors it considered in determining the remedy.  42 C.F.R. §§ 488.408(g)(2), 498.3(d)(14); *Beverly Health & Rehab. Servs., Inc. v. Thompson*, 223 F. Supp. 73, 111 (D.D.C. 2002) (holding that the "determination of what remedy to seek is "beyond challenge.").  So, I will not review Petitioner's complaints about the CMS imposing the Denial of Payment for New Admissions.

I nevertheless find that the documents are relevant, although not because of any purported delay in surveying.  I am authorized to determine whether the CMP is reasonable.  In doing so, I consider, among other factors, the facility's history of noncompliance.  42 C.F.R. § 488.438(f).  I will consider P. Exs. 2 and 3 when I assess whether the civil money penalty is reasonable.  I therefore overrule CMS's objection and admit the exhibits.

I agree with CMS that Petitioner proffers **P. Ex. 17**, purported to be the facility's financial statements, without any foundation.  Petitioner defends the exhibit by declaring, again without providing underlying support, that CPA Thomas Winter, whose name appears among the unsigned documents, works for the facility's consulting company, not for the facility itself.  According to Petitioner, because CPA Winter is a certified public accountant, "there is no indication he has improperly or mistakenly created this record."  P. Response at 2.

But according to an unsigned statement, purportedly from CPA Winter, *he did not create the record at all and disavows any responsibility for it*.  In the statement, he writes that the financial statements were "prepared by management who is responsible for their integrity and objectivity.  These statements *have not been* compiled, reviewed or audited by outside accountants."  P. Ex. 17 at 3 (emphasis added).  Although Petitioner submits a written declaration from Amanda Colwell, the facility's interim administrator, she does not authenticate the proffered exhibit; in fact, she says nothing about the financial statements.  I decline to admit P. Ex. 17 because it is offered without any foundation, and, on its face, appears unreliable.

Page 8

**P. Ex. 19**, the state agency letter proposing an additional penalty, is self-authenticating.  I agree that it has little probative value, particularly with respect to assessing the facility's ability to pay the penalty.  But I find that it has at least marginal relevance, if only to reinforce that the state agency found that one of the complaints lodged against the facility was valid, that a resident was injured, and that, as a result of its findings, the state imposed a monetary penalty and restricted the facility's license.  I therefore overrule CMS's objection and admit P. Ex. 19.

**I admit into evidence CMS Exs. 1-16 and 18-51**.

**I admit into evidence P. Exs. 2-3, 16, and 18-19**.

**Decision on the written record**.  My standing order directed the parties to exchange, as a proposed exhibit and in the form of an affidavit or written declaration, the written direct testimony of any proposed witness.  Acknowledgment and Pre-hearing Order at 3 (¶ 4(c)(4)) (Mar. 31, 2020).  The order also directed each party to indicate whether it wanted to cross-examine the opposing party's witnesses.  Acknowledgment at 5 (¶ 9).  It pointed out that a hearing would be necessary only if a party files admissible, written direct testimony, and, in compliance with the order, the opposing party asks to cross-examine.  Acknowledgment at 5 (¶ 10).  Neither party has asked to cross-examine the opposing party's witnesses.  Because the witnesses' direct testimonies are already in the record, and no witnesses will be cross-examined, an in-person hearing would serve no purpose.  This matter may therefore be decided based on the written record.5

Issues

The issues before me are:

From October 9 through November 25, 2019, was the facility in substantial compliance with 42 C.F.R. § 483.25;
	If, from October 9 through 24, the facility was not in substantial compliance, did its deficiencies then pose immediate jeopardy to resident health and safety; andPage 9

If the facility was not in substantial compliance with section 483.25, are the penalties imposed – $9,705 per day for the period of immediate jeopardy and $415 per day for the period of substantial noncompliance that did not pose immediate jeopardy – reasonable.Discussion

***The facility was not in substantial compliance with 42 C.F.R. § 483.25 because staff violated facility policies and professional standards of practice for monitoring a diabetic resident's blood sugar levels and responding to that resident's episode of extreme hypoglycemia.6*****Program requirement:  42 C.F.R. § 483.25 (Tag F684)**.  "Quality of care is a fundamental principle that applies to all treatment and care provided to facility residents."  42 C.F.R. § 483.25.

The Medicare statute and the "quality-of-care" regulation mandate that the facility ensure that each resident receive, and the facility provide, the necessary care and services to allow the resident to attain or maintain the highest practicable physical, mental, and psychosocial well-being, in accordance with the resident's comprehensive assessment and plan of care.  Act § 1819(b)(2); *see* 42 C.F.R. § 483.20 (requiring the facility to conduct, initially and periodically, a comprehensive, accurate, standardized, reproducible assessment of each resident's functional capacity); 42 C.F.R. § 483.21(b) (requiring the facility to develop and implement a comprehensive, person-centered care plan for each resident, consistent with the resident's rights, that includes measurable objectives and timeframes to meet a resident's medical, nursing, and mental and psychosocial needs that are identified in the comprehensive assessment).

"Where a facility policy or a resident's care plan requires staff to take specific measures in caring for a resident, the Departmental Appeals Board has repeatedly held that those measures reflect the facility's own determination of what it must do to attain or maintain the resident's ‘highest practicable physical, mental, and psychosocial well-being' as required by the overarching quality-of-care requirement."  *Heritage Plaza Nursing Ctr.*, DAB No. 2829 at 6 (2017); accord *North Las Vegas Care Ctr.*, DAB No. 2946 at 5 (2019); *W. Tex. LTC Partners d/b/a Cedar Manor*, DAB No. 2652 at 14 (2015) (holding that, at a minimum, the facility must follow its own policies and protocols), *aff'd*., *W. Tex. LTC Partners v. HHS*, 843 F.3d 1043 (5th Cir. 2016); *Columbus Nursing & Rehab.*, DAB No. 2247 at 7 (2009); *Green Oaks Health & Rehab. Ctr*., DAB No. 2567 at 5 (2014) (holding that the methods a facility chooses to protect its residents are reflected in its policies, assessments, and care plans).

Page 10

**Facility policy:  Managing hypoglycemia**.  The facility had in place a policy for managing episodes of hypoglycemia experienced by its diabetic residents.  CMS Ex. 12.

The policy lists symptoms of hypoglycemia:  perspiring or sweating excessively, weakness, dizziness or fatigue, hunger or excessive eating, nervousness, blurred vision, trembling, headache, *not able to wake up, appears to be in a coma, unconscious, or partially unconscious*.  The onset of hypoglycemia is sudden.

The policy instructs staff to do the following if a resident has symptoms of hypoglycemia:

Take a blood sugar level, using a blood glucose meter;
	*If the resident is responsive*, immediately administer orange juice, packets of sugar or sweetened candy.  If no improvement or if it is impossible to administer a carbohydrate because *the resident is unconscious*, Glucagon7
 may be administered, 911 should be called, and the physician should be notified;
	If the blood sugar level is outside parameters set by the physician for administering insulin, notify the physician for additional treatment.  Follow physician orders immediately.  In addition, thoroughly assess the resident, and, if the resident's condition indicates that emergency medical treatment is needed, transport the resident to the hospital.CMS Ex. 12.

**Facility policy:  Change in a resident's condition or status**.  The facility had in place a policy requiring staff to notify *promptly* the resident, the resident's attending physician, and representative, of changes in the resident's condition and/or status.  The policy also directs the nurse to notify the resident's physician if there is a need to alter the resident's treatment significantly.8
  The nurse *must record*, in the resident's medical record, any changes in the resident's medical condition or status.  CMS Ex. 14.

Page 11

**Resident 1 (R1)**.  R1 was an 83-year-old man, admitted to the facility on September 3, 2019, suffering from a long list of impairments, including:  uncontrolled type 2 diabetes mellitus with complications and long-term current use of insulin; chronic combined systolic and diastolic congestive heart failure; coronary artery disease; and paroxysmal atrial fibrillation.  He had a history of diabetic coma.  He had a wound on his left lower leg and an open wound on his right lower leg.  His gait was unstable.  CMS Ex. 9 at 8, 13, 45; CMS Ex. 26 at 9-10; Joint Stip. of Facts at 1 (¶ 1).

R1 suffered no mental impairment.  His speech was clear; he could express and understand his ideas and wants.  CMS Ex. 9 at 43, 44, 46.  His BIMS (Brief Interview for Mental Status) was 15, which shows that his cognition was intact.  CMS Ex. 9 at 47.

R1 worried about his fluctuating blood sugar levels.  CMS Ex. 9 at 12; CMS Ex. 20 at 6.

Despite his significant impairments, R1 had the potential to be discharged to his home when his clinical and rehabilitation goals were met.  CMS Ex. 9 at 29.

**R1's care plan**.  To ensure that R1 had no complications related to his diabetes, his care plan directed staff to:

Administer his diabetic medication as ordered; *monitor and document side effects and effectiveness*;
	Educate the resident regarding his medications and the importance of his compliance; and
	*Offer substitutes for foods not eaten*.CMS Ex. 9 at 34.

R1's physician ordered Accu-checks (blood glucose monitoring) with each meal, at bedtime, midnight, and 4:00 a.m.  CMS Ex. 9 at 2, 19; Joint Stip. of Facts at 2 (¶ 4).9

**October 9, 2019:  the 4:00 a.m. episode**.  There is no question that, at 4:00 a.m. on October 9, 2019, R1 experienced a hypoglycemic event.  CMS Ex. 9 at 12; Joint Stip. of Facts at 1 (¶¶ 2, 4); *see* CMS Ex. 9 at 5, 6.  Advanced Practice Nurse (APN) Melissa

Page 12

Norris, who treated R1, confirmed this.  She told surveyors that facility staff sent her an SBAR (Situation, Background, Assessment, Recommendation) on October 9, alerting her that R1 had experienced a hypoglycemic event at approximately 4:00 a.m. that morning.  Further, when she examined R1 later that day, he expressed concern about the low blood reading – 63 – that he had that morning.  She reassured him that orders were in place to obtain Accu-Checks with each meal, at bedtime, midnight, and 4:00 a.m.  CMS Ex. 9 at 12; Joint Stip. of Facts at 2 (¶ 4).

Contrary to facility policies and professional standards of practice, facility staff did not record that a hypoglycemic episode occurred at 4:00 a.m.  R1's progress notes don't mention it.  CMS Ex. 9 at 10.  R1's MAR (Medication Administration Record) records his 4:00 a.m. blood sugar level as 76, which may be low, but not hypoglycemic.  CMS Ex. 9 at 2; Joint Stip. of Facts at 2 (¶ 5).  Hypoglycemia occurs when blood sugar levels fall below 70.

Staff did not even record in R1's medical record that it sent the SBAR to APN Norris.  Surveyor Boyer asked the facility to furnish a copy of that SBAR, but it did not do so.  Petitioner has not produced a copy of the SBAR for these proceedings but does not deny sending it to APN Norris.  CMS Ex. 18 at 3-4 (Boyer Decl. ¶ 8).

Although CMS has not pursued the issue, the facility's response to the 4:00 a.m. episode is deeply disturbing, violating standards of care and the facility's policy, which required that the nurse "record in the resident's medical record any [changes] in the resident's medical condition or status."  CMS Ex. 14 at 1.

**October 9, 2019:  the crisis**.  At 4:00 p.m. staff administered R1's scheduled dose of insulin.  CMS Ex. 9 at 4; Joint Stip. of Facts at 2 (¶ 7).  Contrary to the instructions in his care plan, staff did not then monitor and document for side effects and effectiveness – even when the resident showed signs of serious hypoglycemia.

Nurse Aide Crystal Savage told the surveyors that she took R1 his dinner tray at about 5:30 p.m.  He was sleeping, and she woke him up.  She did not check on him again until 6:30, when she again found him sleeping.  He had not eaten.  She woke him up, and he "woke up a bit."  She left him and did not return.  She did not tell the nurse about his sleepiness or that he hadn't eaten.  CMS Ex. 20 at 17.

R1 did not eat his meal.  CMS Ex. 9 at 17.

Shortly after 7:00 p.m., Registered Nurse (RN) Amanda Barwick, who was passing medications, entered R1's room.10
  He appeared to be asleep and was snoring.  She

Page 13

administered a sternal rub, but he did not respond.11
  She checked his blood sugar, which was very low, 52.  CMS Ex. 20 at 3, 29; *see* CMS Ex. 9 at 6.

RN Barwick also told the surveyors that glucagon was not in her medication cart, and she could not find it.  She did not administer sugar, water, or orange juice because the resident was unresponsive.  CMS Ex. 20 at 3, 29.  She left the resident's room in order to call 911, telling staff at the nurses' station that R1 was unresponsive.  CMS Ex. 20 at 3, 6.  She called 911 at 7:46 p.m., almost 45 minutes after she found the unresponsive resident and more than an hour after the nurse aide found him sleeping for the second time and was unable to wake him up.

The EMTs (emergency medical technicians) arrived at the facility at 7:56 p.m.  CMS Ex. 11 at 4.

In the meantime, RN Cherry Phelps and Nurse Aide Brandy Embrey went to R1's room.  RN Phelps told surveyors that R1 appeared to be in a deep sleep.  She tried a sternal rub, and he did not respond.  He was sweating profusely.  His blood sugar level was 29-30.  They went looking for a glucagon pen and could not find one.  RN Phelps attempted to administer sugar packets sublingually.  She mixed sugar and water and rubbed it inside his cheeks and on his gums.

I was giving him sugar and orange juice with a syringe.  I was just giving him drops so it would continue to absorb and get his sugar up.  I would have given him [g]lucagon but we were three nurses[,] and we could not find it.  We had the crash cart.  I was afraid I needed [an] order to start an IV (intravenous line) so I didn't.

CMS Ex. 20 at 6, 35-36.  Nurse Aide Embrey confirmed that they were not able to find glucagon.  She also observed that RN Phelp's efforts were ineffectual.  The orange juice she was attempting to administer was "draining out of the sides of [R1's] mouth."  CMS Ex. 20 at 9.

Page 14

Responding to calls for help, Nurse Aide Karen Barwick came into the room.  She noted that RN Phelps was trying to give the resident sugar and orange juice.  The resident was snoring "every now and again."  He was not talking; he was not opening his eyes.  Using a 10 ml syringe, Nurse Aide Barwick filled it with the orange juice and sugar mixture and forced it into the resident's mouth.  She told the surveyors that she "came up with the idea" of using the syringe.  CMS Ex. 20 at 12, 30; Joint Stip. of Facts at 2 (¶ 9).

This was going on when the paramedics arrived in the room at 7:57 p.m.  They described R1 as unresponsive, his breathing shallow, although his pulse was strong.  His skin was pale, cool, and moist.  *His blood glucose (BG) level was 38*.  CMS Ex. 11 at 1, 4.  They immediately started an IV, administering dextrose, but the resident's condition did not improve.  CMS Ex. 11 at 1.12

In the meantime, RN Dacia Davis noticed that she was alone on the floor.  She found RN Barwick and asked her what was going on.  RN Barwick told her that she was looking for glucagon and could not find it.  Referring to the facility's emergency medications box, RN Davis told the surveyors that glucagon is kept in the medication carts and in the "CAPSA (C/E-box)."  CMS Ex. 20 at 21; *see* CMS Ex. 26 at 67.13
  RN Davis went to the "CAPSA," retrieved the glucagon, and took it to R1's room.  By the time she got there, the EMTs had started the IV, and the glucagon was no longer needed.  CMS Ex. 20 at 21.

While the EMTs were transferring R1 into an ambulance, the resident began going into respiratory arrest followed by cardiac arrest.  The EMTs could not intubate him because of the physiology of his mouth and airway and because "copious amounts of secretions" were in his mouth, even after suctioning.  CMS Ex. 11 at 1; *see* CMS Ex. 10 at 3, 6.

Page 15

R1 was hospitalized and died on October 11, 2019.  CMS Ex. 9 at 1; CMS Ex. 10 at 1; Joint Stip. of Facts at 2 (¶ 10).

**The facility's substantial noncompliance**.  The evidence establishes that facility staff did not properly monitor R1's condition and were ill-prepared to respond when he suffered a life-threatening episode of hypoglycemia.

Throughout the day of October 9, staff should have been monitoring R1 for symptoms of hypoglycemia.  *See* CMS Ex. 18 at 7 (Boyer Decl. ¶ 18); CMS Ex. 9 at 34.  He had a history of diabetic coma and unstable blood sugar levels.  He was understandably anxious about experiencing another episode.  Most significant, he had suffered a hypoglycemic event that morning, although the incident was not recorded, and the record does not indicate whether the nurse aide caring for him that afternoon and evening was aware of it.

The nurse aides' job description required that they *report to the charge nurse any changes in the resident's condition, including his eating habits*.  CMS Ex. 35 at 2.  Nurse Aide Savage was apparently unaware of this requirement.  When she delivered his dinner tray at 5:30 p.m., R1 was asleep.  Because sleepiness can be a symptom of hypoglycemia, the nurse aide should probably have reported this to the nurse.  CMS Ex. 12.  On the other hand, Nurse Aide Savage said that she was able to wake him, so she may not have considered his sleepiness significant.  When she returned an hour later, however, R1 was still sleeping, and she could barely rouse him (he "woke up a bit"); she absolutely should have reported that.  CMS Ex. 20 at 17.

She also should have reported that he hadn't eaten his meal.  R1 routinely ate the bulk of his meals.  CMS Ex. 9 at 17.  Leaving a meal uneaten was a significant change for him.  Moreover, missing a meal was potentially very dangerous.  His 4:00 p.m. dose of Insulin would have lowered his blood sugar level.  His meal was intended to balance that effect, preventing the levels from falling too low.  *See* CMS Ex. 18 at 6-7 (Boyer Decl. ¶¶ 17, 18).

CMS suggests that the nurse aide was also required to follow R1's care plan, which instructed her to offer substitutes for foods not eaten.  CMS Ex. 9 at 34.  She was apparently not aware of this requirement.  *See* *Oxford Manor*, DAB No. 2167 at 5-6 (2008) (holding that, in the absence of contemporaneous documentation justifying their failure to follow facility policy, it is "certainly reasonable" to infer that staff were not aware of it, or that they simply disregarded it).  Of course, R1 didn't skip his meal because he didn't like it and preferred something else.  He skipped his meal because he was sleeping and could not wake up.  Nurse Aide Savage must have recognized that the resident wasn't capable of eating anything, which makes it all the more baffling that she did not report his condition to the nurse.

Page 16

Thus, throughout the late afternoon/early evening of October 9, facility staff failed to monitor R1's reaction to his 4:00 p.m. Insulin dose.  The nurse aide observed, but did not report, his symptoms of severe hypoglycemia (likely because she had not been trained to recognize them).  This put the facility out of substantial compliance with the quality-of-care regulation.

Eventually, during her 7:00 p.m. medication pass, RN Barwick discovered the sleeping resident.  She recognized that he was suffering from hypoglycemia and needed treatment immediately.  She also recognized that, because R1 was unresponsive, she could not safely or effectively administer sugar or orange juice orally.  In keeping with facility policies, she opted to administer glucagon.  However, she couldn't find the medication.  CMS Ex. 12; CMS Ex. 20 at 3, 29.  Nor could RN Phelps or Nurse Aide Embrey ("We were three nurses, and we could not find it.").  CMS Ex. 20 at 6.

Low blood sugar that causes an individual to become unconscious creates a medical emergency.  Facility staff must be prepared to respond immediately.  As the facility's policies recognized, glucagon is critically important for treating the unconscious resident.  Here, the facility violated professional standards and its own policies because glucagon was not readily available in the nurse's medication cart.

More disturbing, at least two registered nurses and a nurse aide *did not know where to find extra glucagon* (even though it was stored in the emergency medications box, which seems an obvious place).  This evidences a systemic problem:  staff were not properly trained to respond to a serious episode of hypoglycemia.

Finally, staff violated standards of care and the facility's policy when a nurse aide attempted to force a substantial quantity of orange juice and sugar down the throat of an unconscious resident.  I reject Petitioner's suggestion that trying to administer orange juice and sugar to an unconscious person is proper, even preferable to administering glucagon.  *See* P. Br. at 8, 9, citing CMS Ex. 12.

Because he was unresponsive, protocol dictated that staff administer glucagon.  Administering the sugared orange juice to an unconscious person is not only generally ineffective; it is dangerous.  An unconscious person cannot swallow properly.  The liquid could also go into the person's lungs, rather than his stomach, which does nothing to raise his blood sugar but risks aspiration.  CMS Ex. 18 at 8 (Boyer Decl. ¶¶ 21, 22).

Professional staff understood the dangers; that's why they took the time to search for glucagon and likely why RN Phelps rubbed the sugar inside the resident's mouth and administered the orange juice in drops.  CMS Ex. 12; CMS Ex. 18 at 4, 6 (Boyer Decl. ¶¶ 11, 16); CMS Ex. 28 at 4 ("If the patient has altered levels of consciousness, parenteral glucose or glucagon is administered."); *see* CMS Ex. 20 at 6, 35-36.  The nurse aide, who opted to force sugared orange juice down R1's throat, apparently did not understand this

Page 17

and should not have been allowed to devise her own treatment strategy.  Staff's misguided response to R1's episode of severe hypoglycemia put the facility out of substantial compliance with the quality-of-care regulation.  *See* CMS Ex. 34 at 1 (Independent Informal Dispute Resolution reviewer observing that staff demonstrated confusion regarding the location of the glucagon; that their actions were directly against facility policy; and that staff were not adequately educated or prepared to handle emergencies).

Petitioner argues that it should not be accountable for any purported failings of staff "during a stressful emergency situation" because it had systems in place to ensure quality care.  Its staff were qualified for their positions and were properly trained, according to Petitioner.  P. Br. at 10-16.  Of course, had staff been monitoring the resident properly, the situation might have been addressed before it became so stressful.  Moreover, as shown by staff's response to R1's condition, they were ill-prepared to respond to this medical emergency.  They didn't know where to find glucagon, and they ultimately responded in a way that further compromised the resident's safety.
In any event, the Board has long held that a facility may not disavow the errors of its staff and may properly be held responsible for their actions.  *Madison County*, DAB No. 2895 at 8-9 (2018); *Kindred Transitional Care*, DAB No. 2792 at 10 (2017); *Springhill Senior Residence*, DAB No. 2513 at 14 (2013), citing *Beverly Health Care Lumberton*, DAB Ruling No. 2008-5 (Denial of Petition for Reopening Decision No. 2156) at 6-7 (2008); *Gateway Nursing Ctr.*, DAB No. 2283 at 8 (2009); *North Carolina State Veterans Nursing Home, Salisbury*, DAB No. 2256 (2009); *Emerald Oaks*, DAB No. 1800 at 7 n.3 (2001).

***CMS's determination that the facility's substantial noncompliance posed immediate jeopardy to resident health and safety is not clearly erroneous.***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).  Once CMS presents evidence supporting a finding of substantial noncompliance, it need not offer evidence to support its immediate jeopardy determination.  The burden is on the facility to show that CMS's determination is clearly erroneous.  *Grace Healthcare of Benton*, DAB No. 2189 at 13 (2008), citing *Liberty Commons Nursing & Rehab Center- Johnston*, DAB No. 2031 at 17-18, *aff'd*, *Liberty Commons Nursing & Rehab Ctr. – Johnston v. Leavitt*, 241 F. App'x 76 (4th Cir. 2007).

The Board has repeatedly explained 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

Page 18

‘[o]ne could reasonably conclude' that immediate jeopardy exists."  *Florence Park Care Ctr.*, DAB No. 1931 at 27-28 (2004), *citing Koester Pavilion*, DAB No. 1750 (2000); *Daughters of Miriam Center*, DAB No. 2067 at 7, 9 (2007); *see Yakima Valley School*, DAB No. 2422 at 8 (2011) (holding that the "clearly erroneous" standard is highly deferential and "places a heavy burden on the facility to upset CMS's finding regarding the level of noncompliance.").

In challenging CMS's finding of immediate jeopardy, Petitioner repeats its claims – which I have rejected – that it was in substantial compliance and that it had appropriate systems in place "to promote the highest quality of care for its residents."  P. Br. at 17.

As discussed above, the facility did not have appropriate systems in place to provide R1 with the care and services he needed.  Hypoglycemia can be a life-threatening event.  R1 was particularly vulnerable, given his history of unstable blood sugar levels and diabetic coma and his recent episode of hypoglycemia.  Yet, staff did not monitor his reaction to the insulin he was administered.  The nurse aide who cared for him apparently did not recognize his obvious symptoms of hypoglycemia and did not report them to the nurse.  When he was unconscious, the facility did not have glucagon readily available.  Members of the facility's nursing staff, who were charged with treating diabetic residents, did not know where to find the emergency supply.  Then, an unqualified staff member administered a treatment that was both ineffectual and dangerous.

The facility's substantial noncompliance caused R1 to suffer actual harm.  Further, that facility staff were ill-equipped to address a diabetic's episode of hypoglycemia was likely to cause "serious injury, harm, impairment, or death to a resident."

Petitioner has thus not met its burden of establishing that CMS's immediate jeopardy determination is clearly erroneous.

***The undisputed evidence establishes that 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, 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

Page 19

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; *CarePlex of Silver Spring*, DAB No. 1683 at 8 (1999).

The burden is on the *facility* to demonstrate that a reduction is necessary to make the CMP amount reasonable.  *Heritage Plaza Nursing Ctr.*, DAB No. 2829 at 22.

Here, CMS initially proposed penalties of $9,705 per day for the 16 days of immediate jeopardy, which is in the low to very-low end of the penalty range ($6,808 to $22,320), and $415 per day for each day of substantial noncompliance that did not pose immediate jeopardy, which is at the very low end of the penalty range ($112 to $6,695).  42 C.F.R. §§ 488.408(e), 488.438; 45 C.F.R. § 102.3; 85 Fed. Reg. 2869, 2880 (Jan. 17, 2020).14
  CMS subsequently cut the penalty in half, based on the facility's financial condition.

Considering the relevant factors, these amounts are reasonable.

The facility has a poor compliance history, including noncompliance with the quality-of-care regulation, 42 C.F.R. § 483.25.

In a September 2016 health survey, the facility was out of substantial compliance with two quality-of-care requirements:  42 C.F.R. § 483.25 (then Tag F309, now Tag F684), cited at scope and severity level D (isolated instance of substantial noncompliance that causes no actual harm with the potential for more than minimal harm), and 42 C.F.R. § 483.25(b)(1) (then Tag F314, now Tag F686 – quality of care:  pressure ulcers), cited at scope and severity level G (isolated instance of substantial noncompliance that causes actual harm that is not immediate jeopardy).
	In August 2017, the facility was not in substantial compliance with four requirements, cited at and severity level D, these included a quality-of care deficiency, 42 C.F.R. § 483.25(e) (then Tag F315, now Tag F690 – quality of care:  incontinence), and deficiencies involving comprehensive assessments, 42 C.F.R. § 483.20(h)-(j) (then Tag F278, now Tag F642), comprehensive care plans, 42 C.F.R. § 483.21(b)(1) (then Tag F279, now Tag F656), and infection control, 42 C.F.R. § 483.80(a) (then Tag F441, now F880).Page 20

In September 2018, the facility had multiple deficiencies, the majority cited at scope and severity level D.  However, two were cited at scope and severity level G – one under the quality-of-care regulation (pain management), 42 C.F.R. § 483.25(k) (Tag F697) and one under medication errors, 42 C.F.R. § 483.45(f)(2) (Tag F760), medication errors.
	In surveys conducted in September 2016, August 2017, September 2018, and July 2019, the facility was not in substantial compliance with multiple life safety code requirements.CMS Ex. 36.

Petitioner complains that it was not afforded the opportunity to contest these survey findings.  P. Br. at 21.

A facility has no right to a hearing unless CMS imposes one of the remedies specified in the regulations.  *San Fernando Post Acute Hosp.*, DAB No. 2492 at 7-8 (2012); *Columbus Park Nursing and Rehab. Ctr.*, DAB No 2316 at 7 (2010); *Lutheran Home – Caledonia*, DAB No. 1753 (2000); *Schowalter Villa*, DAB No. 1688 (1999).  The remedy, not the citation of a deficiency, triggers the right to a hearing.  *Schowalter Villa*, DAB No. 1688 at 3; *see* 42 C.F.R. §§ 488.406, 498.3(b)(13).  Assuming CMS did not impose penalties for the deficiencies cited (a strategy that did not produce "consistent and lasting corrective action"), Petitioner would not have been entitled to review.

Even if I disregard the survey findings that Petitioner claims it had no opportunity to contest, I would find that the facility has a poor compliance history.  During another complaint investigation, completed on August 22, 2019, just two months before the survey here, CMS determined that the facility was not in substantial compliance with the quality-of-care regulation, 42 C.F.R. § 483.25 (Tag F689), at scope and severity level G, which means that someone suffered actual harm.  P. Ex. 2.  Petitioner had the opportunity to contest the finding, but it did not.

The deficiency involved the facility's failure to prevent accidents, which is part of the quality-of care regulation, 42 C.F.R. § 483.25(d)(1)(2).  Within just 11 days, a resident fell twice.  Both times he suffered injuries to his head requiring sutures.  The facility had never completed a fall risk assessment for him.  There was no indication that the facility had investigated or documented the falls.  No fall interventions were implemented after the first fall.  The resident's care plan was not reviewed or revised.  P. Ex. 2 at 3-6.

In September 2019, the facility was cited under eleven life safety code deficiencies, five of which were cited at scope and severity level F.  P. Ex. 3.  Again, Petitioner had the opportunity to contest the findings, but it did not.

Page 21

By itself, the facility's history (even discounting the findings that were not appealable) justifies the relatively modest penalty imposed.

Based on Petitioner's allegations of financial hardship, CMS has significantly reduced the penalty imposed – from $168,560 to $84,280.  Petitioner, however, argues that the amount should be further reduced because the facility "is not profitable at this time."  P. Br. at 19.  Profitability is not the standard for determining whether the penalty amount should be reduced.

The facility has the burden of proving, by a preponderance of the evidence, that paying the penalty would render it insolvent or would compromise the health and safety of its residents.  *Van Duyn Home & Hosp.*, DAB No. 2368 (2011); *Gilman Care Ctr.*, DAB No. 2357 (2010).  To meet the standard for lowering a CMP based on financial condition, a facility's claims must be supported by compelling financial documentation.  In *Guardian Care Nursing & Rehab. Ctr.*, DAB No. 2260 (2009), for example, the facility could not even afford to represent itself on appeal.  Its Medicaid census was 90%; its annual shortfall was $250,000; and it relied on charitable contributions for its continued viability.  The Board, nevertheless, criticized the absence of financial documentation and concluded that the facility had not established that additional resources would not be available.  *But see, Columbus Nursing & Rehab. Ctr*., DAB No. 2505 (2013) (finding that the absence of documentation regarding the facility's financial condition did not preclude the ALJ from concluding, based on witness testimony, that its financial condition justified reducing the penalty amount).

Petitioner has not come forward with credible, admissible evidence as to its financial condition.  The "records" it produces are unreliable, and, as CMS points out, even if I accepted them (which I do not), raise additional questions about the financial relationship between the facility and its "related party" landlord.  *See* CMS Response at 9.  Petitioner submits the written declaration of its interim administrator, Amanda Colwell, L.N.H.A.  P. Ex. 18.  She points out that the Covid pandemic has imposed additional costs for the facility.  Her testimony, however, falls far short of establishing that paying the penalty would put the facility out of business or compromise resident health or safety, "the test for finding a CMP unreasonable based on financial condition articulated in Board decisions."  *Fireside Lodge Retirement Ctr.*, DAB No. 2794 at 20 (2017), and cases cited therein.

With respect to the remaining factors, I have discussed in some detail the facility's failures in responding to R1's entirely foreseeable episode of hypoglycemia.  Staff did not monitor his reaction to the insulin administered; the nurse aide failed to report that he was unable to eat his meal; he was left alone even as he began to exhibit signs and symptoms of hypoglycemia.  When he was finally discovered by the nurse making her routine medication passes and could not be roused, staff were ill-prepared to respond to the crisis.  For all of this, the facility is culpable.

Page 22

For these reasons, I find that the penalties imposed are reasonable.

Conclusion

The facility was not in substantial compliance with the Medicare program requirement governing quality of care, 42 C.F.R. § 483.25.  The penalties imposed – $9,705 per day for the period of immediate jeopardy, and $415 per day for the period of substantial noncompliance that did not pose immediate jeopardy – which CMS reduced by 50% based on the facility's financial condition, are reasonable.


          /s/
        Carolyn Cozad Hughes

                      Administrative Law Judge
      1. In fact, Petitioner filed two hearing requests.  It filed the first (docketed as C-20-220) in response to a letter from the state agency advising that, because the October 29 survey found a deficiency that posed immediate jeopardy, the state agency recommended that CMS impose a civil money penalty in addition to the Denial of Payment for New Admissions (DPNA) imposed following the earlier (un-appealed) surveys.  Petitioner's hearing request was premature because CMS had not yet imposed any penalties based on the October 29 survey.  The second hearing request (docketed as C-20-412) responded to CMS's notice that it was, in fact, imposing the recommended penalties.  In an order dated April 2, 2020, I consolidated the two appeals under Docket C-20-412. back to note 1
                      2. Without support, Petitioner claims that the documents were created with this litigation in mind.  In fact, these types of documents are generated with every survey, and few of those surveys are ultimately appealed.  Survey protocol directs all surveyors to take complete notes of their observations and to maintain detailed documentation of each interview conducted.  The worksheets and procedures are designed to assist the surveyor in gathering, organizing, and analyzing information about the quality of services provided by the facility.  They are used to determine whether the facility meets long-term-care requirements.  SOM Appendix P – Survey Protocol for Long Term Care Facilities – Part I; Tasks 5 and 6 – Information Gathering/Investigation; Information Analysis; see Surveyor Notes Worksheet (Form CMS-807). back to note 2
                      3. In any event, the state agency denied the request.  P. Br. at 3. back to note 3
                      4. There is some relationship between the earlier surveys (which Petitioner did not appeal) and the Denial of Payment for New Admissions.  Following the earlier surveys, CMS imposed the Denial of Payment for New Admissions, effective November 12, 2019.  Had the facility achieved and maintained substantial compliance prior to that date, the remedy would not have gone into effect.  CMS Ex. 2 at 2; CMS Ex. 3 at 3; CMS Ex. 4 at 1.  CMS was not required to afford the facility an opportunity to correct before it implemented the penalty.  Doing so was purely discretionary.  However, because the facility did not achieve substantial compliance until November 25, 2019, CMS was required to impose the penalty.  CMS Ex. 4 at 2; see 42 C.F.R. § 488.412(c) (requiring CMS to deny payment for new admissions if the facility is not in substantial compliance three months after the last day of the survey). back to note 4
                      5. Deciding a case based on the written record does not mean that it is decided without a hearing.  In reviewing administrative appeals, courts recognize that, by considering the evidence and applying the law, the ALJ has granted the petitioner a hearing, even if that hearing was not an "oral" or "evidentiary" hearing.  See CNG Transmission Corp. v. FERC, 40 F.3d 1289, 1293 (D.C. Cir. 1994) (holding that a "paper hearing" satisfies statutory requirements for "notice and opportunity for hearing.").  Thus, deciding a case on the written record (or granting summary judgment) satisfies the hearing requirements of sections 205(b) and 1866(h) of the Act. back to note 5
                      6. My findings of fact/conclusions of law are set forth, in italics and bold, in the discussion captions of this decision. back to note 6
                      7. Glucagon injection is an emergency medicine used to treat severe hypoglycemia in diabetes patients treated with insulin who have passed out or cannot take some form of sugar by mouth.  See, https://www.mayoclinic.org/drugs-supplements/glucagon-injection-route/description/drg-20064089. back to note 7
                      8. In several respects, the facility policy may not be wholly compatible with 42 C.F.R. § 483.10(g)(14), which mandates that the facility immediately inform the resident, consult (not just notify) the resident's physician, and notify the resident's representative when there is a significant change in the resident's physical, mental, or psychosocial status in either life-threatening conditions or clinical complications.  The facility policy also gives the facility 24 hours in which to make the notifications "except in medical emergencies," which is incompatible with the regulation. back to note 8
                      9. Checking blood sugar levels at meals and bedtime is standard.  However, adding checks at midnight and 4:00 a.m. is uncommon unless the person's blood sugar is unusually difficult to regulate (as was R1's).  CMS Ex. 18 at 5 (Boyer Decl. ¶ 14). back to note 9
                      10. I am not impressed with the quality of the facility's record-keeping.  A note indicates that RN Barwick entered the resident's room to administer his medication at 5:40 p.m.  She found him unresponsive.  The recorded time must be a mistake; it would mean that staff delayed more than two hours before calling 911, which no one thinks occurred.  The 5:40 time is also inconsistent with everything that staff (including RN Barwick) told the surveyors.  It is incompatible with the timing generally agreed to by both parties.  CMS Br. at 8; P. Br. at 7; see CMS Ex. 20 at 3 (RN Barwick explaining that she that she was not familiar with electronic charting and "probably did change the times."). back to note 10
                      11. In administering a sternal rub, the nurse (or EMT) applies the knuckles of her closed fist to the center of the patient's chest, which is painful.  Medical personnel use it to assess the patient's level of consciousness. back to note 11
                      12. Petitioner claims that, when the paramedics arrived, R1's blood sugar level was 50.  P. Br. at 8.  That number is not recorded anywhere and does not accurately reflect R1's blood sugar level when the EMTs arrived.  EMTs tend to keep meticulous records (unlike facility staff here), and I see no record of a blood sugar level of 50.  According to the EMTs' record, R1's blood sugar level was 38 when they arrived.  CNS Ex. 11 at 4.  The EMTs immediately started R1 on IV Dextrose.  In a subsequent interview (October 18), one of the EMTs told the surveyors that, by the time a nurse announced that she had glucagon, the EMTs had started the IV, and R1's blood sugar was 50.  CMS Ex. 5 at 8.  Even assuming that the EMT accurately remembered R1's blood sugar level rising to 50 (and, uncharacteristically, the EMTs did not record it), the resident achieved that level after he was administered IV Dextrose. back to note 12
                      13. Ironically, RN Davis, who told surveyors that the facility offered no training about treating a diabetic resident, seems to have been the only nurse who knew where to find glucagon.  CMS Ex. 20 at 21. back to note 13
                      14. Penalties are inflation-adjusted and change annually.  The amount is determined as of the date the penalty is assessed, in this case, January 24, 2020.  CMS Ex. 4; 85 Fed. Reg. 2869, 2880 (Jan. 17, 2020). back to note 14 Back to top
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