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                              Consulate Health Care of Tallahassee, DAB CR6059 (2022)
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Consulate Health Care of Tallahassee, DAB CR6059 (2022)








  
  
    

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





Consulate Health Care of Tallahassee,
(CCN: 105764),
Petitioner,

v.

Centers for Medicare and Medicaid Services.
Docket No. C-20-759Decision No. CR6059April 8, 2022

        
              
    

      DECISION

In this case, staff at a long-term-care facility did not begin to administer cardiopulmonary resuscitation to a full code resident until he had been without vital signs for about 35 minutes.  I consider whether this delay meant that the facility deprived the resident of necessary services, including basic life support, and whether its quality assessment and assurance committee properly identified and reported the problems associated with the incident.

Petitioner, Consulate Health Care of Tallahassee, is a long-term care facility, located in Tallahassee, Florida, that participates in the Medicare program.  Based on a complaint investigation survey, completed May 7, 2020, the Centers for Medicare and Medicaid Services (CMS) determined that the facility was not in substantial compliance with Medicare requirements, and that its deficiencies posed immediate jeopardy to resident health and safety.  CMS has imposed a civil money penalty (CMP) of $21,393 per day for two days of immediate jeopardy.

Page 2

I find that the facility was not in substantial compliance with Medicare program requirements and that its deficiencies posed immediate jeopardy to resident health and safety.  Petitioner has not challenged the size of the penalty.

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 survey skilled nursing facilities in order to determine whether they 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, and 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 an anonymous complaint, surveyors from the Agency for Health Care Administration in Florida (state agency) completed a complaint investigation survey on May 7, 2020.  Based on their findings, CMS determined that the facility did not comply substantially with the following program requirements:

42 C.F.R. § 483.12(a)(1) (Tag F600 – freedom from abuse and neglect) cited at scope and severity level J (isolated instance of noncompliance that poses immediate jeopardy to resident health and safety);
	42 C.F.R. § 483.24(a)(3) (Tag F678 – quality of life:  cardio-pulmonary resuscitation) cited at scope and severity level J; and
	42 C.F.R. § 483.75(g)(2) (Tag F867 – quality assurance and performance improvement program) cited at scope and severity level J.CMS Ex. 1; P. Ex. 1 at 1-2.

CMS imposed against the facility a penalty of $21,393 per day for two days of immediate jeopardy (May 5 and 6, 2020), for a total penalty of $42,786.  P. Ex. 1 at 2.

Page 3

Although CMS also determined that the facility remained out of substantial compliance until May 27, 2020, the question of its ongoing noncompliance is not before me because CMS did not impose any penalties for the period of substantial noncompliance that did not pose immediate jeopardy.  The remedy, not the citation of a deficiency, triggers the right to review.  42 C.F.R. §§ 488.406, 498.3(b)(13); *San Fernando Post Acute Hosp.*, DAB No. 2492 at 7-8 (2012); *Columbus Park Nursing & Rehab. Ctr.*, DAB No. 2316 at 7 (2010); *Lutheran Home – Caledonia*, DAB No. 1753 (2000); *Schowalter Villa*, DAB No. 1688 at 3 (1999).

The parties filed pre-hearing briefs (CMS Br.; P. Br.).  With its pre-hearing brief, CMS submitted nine exhibits (CMS Exs. 1-9).  With its pre-hearing brief, Petitioner submitted ten exhibits (P. Exs. 1-10).  In the absence of any objections, I have admitted into evidence CMS Exs. 1-9 and P. Exs. 1-10.  Order Summarizing Pre-hearing Conference at 2.

Each party waived cross-examination of the opposing party's witnesses and the parties agreed that this case should be decided based on the written record.  Order Summarizing Pre-hearing Conference at 3.

Issues

The issues are:

On May 5 and 6, 2020, was the facility in substantial compliance with Medicare program requirements, specifically, 42 C.F.R. §§ 483.12(a)(1), 483.24(a)(3), and 483.75(g)(2); and
	If the facility was not in substantial compliance with those program requirements, did its deficiencies pose immediate jeopardy to resident health and safety?Except to argue that it was in substantial compliance so that no penalty should be imposed, Petitioner has not challenged the amount of the penalty.

Discussion

***The facility was not in substantial compliance with sections 483.12(a)(1) and 483.24(a)(3) because, contrary to facility policy and professional standards of practice, staff delayed providing cardiopulmonary resuscitation to a resident who was "full code" and had stopped breathing.1***Page 4

**Program requirement:  42 C.F.R. § 483.12 (Tag F600)**.  A facility resident has the right to be free from abuse, neglect, and exploitation.  42 C.F.R. § 483.12.  "Abuse" is defined as the "willful infliction of injury, unreasonable confinement, intimidation or punishment with resulting physical harm, pain, or mental anguish."  Abuse *includes depriving the resident, regardless of any mental or physical condition, "of goods or services that are necessary* to attain or maintain physical, mental, and psychosocial well-being."  "Willful" means that the individual acted deliberately, not that the individual must have intended to inflict injury or harm.  42 C.F.R. §§ 483.5, 488.301 (emphasis added).

"Neglect" is the failure of the facility, its employees, or service providers to provide a resident with the goods and services necessary to avoid his suffering physical harm, pain, mental anguish, or emotional distress.  42 C.F.R. §§ 483.5, 488.301.

**Program requirement:  42 C.F.R. § 483.24(a)(3) (Tag F678)**.  The "quality of life" regulation characterizes "quality of life" as a "fundamental principle" that applies "to all care and services provided to facility residents."  Under the Medicare statute and this regulation, the facility must care for its residents "in such a manner . . . as will promote maintenance or enhancement of the quality of life of each resident"; each resident must receive, and the facility must provide, necessary care and services to attain or maintain the highest practicable physical, mental, and psychosocial well-being, in accordance with the resident's comprehensive assessment and person-centered care plan.  Act § 1819(b); 42 C.F.R. § 483.24.  Among other specific requirements, personnel *must provide basic life support, including CPR*, to a resident requiring such emergency care, prior to the arrival of emergency medical personnel, and subject to physician orders and the resident's advance directives.  42 C.F.R. § 483.24(a)(3).

**Facility policy:  cardiopulmonary resuscitation (CPR).**  The facility had in place a policy requiring that CPR be provided to all residents who are identified to be in cardiac arrest unless the resident has a fully executed Florida Do Not Resuscitate order (DNR).

In the event of cardiac arrest, the policy directs staff to call for assistance *immediately*.  Two registered nurses must verify the resident's identity and determine whether the resident has fully executed a DNR.  Using the paging system, someone should call "Code Blue" three times, naming the room number or location of the event.  In the absence of a DNR, staff must *immediately* begin CPR and continue until the Emergency Medical Technicians (EMTs) assume responsibility for it.  Staff may discontinue CPR if the resident responds.

Staff should notify the physician and the resident's representative and *document* the incident in the resident's medical record.  CMS Ex. 7 at 2.

Page 5

**Facility policy:  abuse and neglect.**  Consistent with the regulation, the facility's policy on abuse and neglect mandates that each resident be afforded the right to be free from abuse, neglect, mistreatment, exploitation and/or misappropriation of property.  Like the regulation, its definition of abuse includes depriving the resident of goods or services necessary to attain or maintain physical, mental, and psychosocial well-being.  To be "willful," according to the policy, the individual must have acted deliberately, whether or not he/she intended to inflict injury or harm.  CMS Ex. 7 at 3.

Also consistent with the regulation, the facility's policy defines neglect as the failure to provide to a resident goods and services that are necessary to avoid physical harm, pain, mental anguish, or emotional distress.  CMS Ex. 7 at 5.

According to the policy, the facility's abuse coordinator or designee investigates all reports or allegations of abuse, neglect, misappropriation, and exploitation.  CMS Ex. 7 at 8.  Among other procedures, the nurse or director of clinical services thoroughly evaluates and documents nursing performance and notifies the attending physician.  The individual in charge, in conjunction with the person who reported the abuse, files an incident report with the abuse coordinator "as soon as possible in order to provide the most accurate information in a timely fashion."  CMS Ex. 7 at 9.  The abuse coordinator and/or director of clinical services takes statements from the victim, from suspects, and from all possible witnesses, including all employees in the vicinity of the alleged abuse.  When the investigation is complete, a detailed report is prepared.  *Id*.

Any employee or contracted service provider who witnesses or has knowledge of an act of abuse or an allegation of abuse, neglect, exploitation, or mistreatment, must report that information to the Administrator and other officials "in accordance with state law."  If the events involve abuse or result in serious bodily injury, they must *report immediately*, but no later than two hours after the allegation is made.  If the events do not involve abuse or result in serious bodily injury, they must report no later than 24 hours after the allegation is made.  CMS Ex. 7 at 9-10.

When the allegation of abuse is reported, the Executive Director, as the abuse coordinator, ensures that "reporting is completed timely and appropriately to appropriate officials," in accordance with federal and state regulations.  The Executive Director or Director of Clinical Services also ensures that the resident's legal guardian, family member, responsible party, or significant other is notified and that the resident's physician is notified as well.  CMS Ex. 7 at 10.

Within five working days of the incident, staff must report the results of all investigations to the Executive Director or designated representative and to other officials, including the state survey agency, in accordance with state law.  If the alleged violation is verified, appropriate corrective action must be taken.  CMS Ex. 7 at 10.

Page 6

**The complaint**.  On May 4, 2020, an anonymous complainant reported to the state agency that a facility patient "coded and died in the facility from not receiving [his] morning medication."  The caller charged that the facility's administration was trying to cover up the incident.  CMS Ex. 4 at 1.

The state agency then called the facility and obtained the resident's (R1's) treatment records, including his medication administration record (MAR).  In an undated document labeled "Five Day Report," the facility confirmed that its nurse did not administer R1's medications on the morning of April 21, 2020, the day of his death.2
  Although the responsible nurse claimed that she had not been assigned to care for him, this was apparently not so, according to the facility's schedule.  The nurse was fired.  The facility nevertheless claimed that its own investigation found that the resident had not been neglected, and his death was unrelated to staff's failing to administer his medications.  CMS Ex. 4 at 1-2; CMS Ex. 5 at 17-18.

I find the facility's conclusion puzzling.  Failing to provide a resident, particularly someone as compromised as the resident in this case, with medications prescribed to avoid his suffering physical harm and pain seems to fall squarely within the definition of neglect.  Certainly, the facility considered the transgression significant enough to merit terminating the responsible nurse's employment without further investigation (although the nurse maintained that the fault lay with the facility's scheduling systems).  The lapse is all the more inexcusable because the resident himself, who was in distress, brought the omission to staff's attention.  He asked the nurse aide caring for him on the 7-3 shift (Nurse Aide # 2) about his medication, and the nurse aide reported that to the nurse, who apparently did not follow up.  Nevertheless, CMS has not pursued the issue, focusing instead on the facility's lapses in timely providing the resident with CPR and its failure to recognize that those lapses demonstrated quality assurance issues that the facility's Quality Assurance and Performance Improvement Committee (QAPI) was required to address (discussed below).

After receiving the Five Day Report, the state agency sent a surveyor to the facility to investigate.  CMS Ex. 1; CMS Ex. 9 at 1 (Ingrassia Decl. ¶ 3).

**Resident 1 (R1).**  R1 was a 67-year-old man, admitted to the facility on March 23, 2020, for rehabilitation.  He planned to return to his home in Oregon when his rehabilitation program ended.  CMS Ex. 3 at 1; CMS Ex. 8 at 4.  He had many impairments, including coronary artery disease, with a history of myocardial infarction, chronic obstructive pulmonary disease, diabetes, obesity, hypertension, and anxiety.  CMS Ex. 3 at 5; CMS

Page 7

Ex. 5 at 5.  His cognition was intact.  CMS Ex. 5 at 18.  He also had a history of alcohol abuse and had been undergoing alcohol rehabilitation.  CMS Ex. 8 at 4.

R1 had a long list of prescribed medications:  Folic acid (a vitamin); Zoloft (an anti-depressant); Tradjenta (an anti-diabetic); Plavix (a blood thinner); Amiodarone (used to treat life-threatening heart rhythm problems); Metformin (an anti-diabetic); Potassium (a mineral); Coreg (a beta-blocker); Midodrine (used to treat hypotension); and Lorazepam (a sedative).  CMS Ex. 5 at 18; *see* CMS Ex. 4 at 7.3

R1's code status was Full Code.  CMS Ex. 8 at 1.

**The April 21, 2020 incident**.  R1 was not doing well on April 21, 2020.  He ate very little breakfast and only 25% of his lunch.  His scheduled therapy was withheld because he showed "increased confusion."  When a nurse stopped by his room at 2:40 p.m. and asked how he was doing, he responded by moaning.  At 3:20 p.m. the incoming (3-11 shift) nurse aide (Nurse Aide # 1) checked on him and noted that "he didn't look well."  CMS Ex. 5 at 18.  The outgoing (7-3 shift) nurse aide (Nurse Aide # 2) was in the room at the time.  CMS Ex. 5 at 18.4

The evidence as to the exact timing of subsequent events, although important, is inconsistent.5
  According to the Five Day Report, the two nurse aides remained in R1's room for some unspecified period of time, discussing R1's condition.  CMS Ex. 5 at 18; *see* CMS Ex. 9 at 2 (Ingrassia Decl. ¶ 8) (confirming "some sort of discussion" occurred between the nurse aides, which suggests that "one or both were unsure as to [R1's] condition and/or why blood pressure was not obtainable.").  A nurse's note (entered at 10:28 p.m. on April 22) includes no specific times but records that the nurse aide

Page 8

assigned to care for R1 was unable to obtain a blood pressure reading.  She reported this to the assigned nurse, who assessed the resident, called a Code Blue, checked the resident's advance directive, and administered CPR until the emergency medical responders arrived.  The resident expired.  CMS Ex. 3 at 13; CMS Ex. 5 at 13; CMS Ex. 8 at 2.  The cause of death was cardiac arrest.  CMS Ex. 3 at 3; CMS Ex. 5 at 3.

The Five Day Report also indicates that a nurse assessed R1's condition at "approximately 3:30 p.m.," found no vital signs, and initiated the code blue process.  CMS Ex. 5 at 18.

The Code Blue Documentation form, prepared at the time of the incident, is more specific about the timing of these events:  at **3:34 p.m.**, R1 displayed no vital signs; the Code Blue was called at **3:54 p.m.**; and cardiopulmonary resuscitation began at **3:55 p.m**.  Resuscitation ended at 4:26 p.m.  CMS Ex. 5 at 11.  Thus, according to the facility's contemporaneous documentation, about fifteen minutes elapsed between the time the nurse aides recognized that R1 was seriously ill and the time that a nurse assessed his condition (3:20 to 3:34); an additional twenty minutes elapsed between that assessment and staff's initiating CPR (3:34 to 3:55).

Kimberly King was the licensed practical nurse (LPN) who assessed R1 and called the Code Blue.  She told Surveyor Andrew Ingrassia that, between 3:00 and 3:30 on April 21, a nurse aide reported that she was unable to get R1's vitals.  When LPN King assessed the resident, he wasn't breathing.  LPN King called the Code Blue.  CMS Ex. 4 at 11.  Surveyor Ingrassia asked her what time CPR was started.  LPN King initially replied that she couldn't really think of that time.  When Surveyor Ingrassia showed her the Code Blue Documentation form, LPN King agreed that "3:54 looks right."  CMS Ex. 4 at 12.  She could not explain what took the most time between the nurse aide attempting to take his vitals and staff beginning CPR, responding vaguely, "After I went to assess him, he had no vitals, so it just kind of went on from there."  CMS Ex. 4 at 12; *see* *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).

William Watkins is the registered nurse (RN) who began CPR.  In his interview with Surveyor Ingrassia, he volunteered that he began CPR at 3:54 p.m. and "that was correct."  CMS Ex. 4 at 17.

Emergency Medical Services (EMS) records – which are meticulous and which I consider the most reliable evidence – are consistent with this timeline, and they also establish that facility staff inexplicably delayed calling them.  They show that the facility did not call EMS until 3:59 p.m., almost 40 minutes after the nurse aide was unable to take the resident's vital signs.  The EMTs arrived at the scene at 4:04 p.m.  CMS Ex. 6

Page 9

at 3.  Staff also told the EMTs that they began CPR at 3:54 p.m., which is consistent with the facility's Code Blue Documentation form.  CMS Ex. 6 at 6.

**Petitioner's defenses**.  Petitioner does not explain these time lapses.  Instead, it attacks the accuracy of its own contemporaneous documentation and denies that any such time lapses occurred.

Citing the surveyor's interview notes with Nurse Aide # 1, the nurse aide who was unable to take R1's vital signs, Petitioner asserts that Nurse Aide # 1 told the surveyor that R1 was struggling to breathe and that she "immediately" advised LPN King of the resident's condition.  P. Br. at 2-3, citing CMS Ex. 4 at 9.  Petitioner then points to an unsigned, undated "statement," purportedly from Nurse Aide # 2.  The statement says that Nurse Aide # 2 was present "at this exact moment" and witnessed Nurse Aide # 1 telling LPN King that R1 "did not look good."  P. Br. at 3, citing P. Ex. 7.  She does not say what time that was.

Based on this statement and written declarations from additional staff members, Petitioner asserts that LPN King assessed R1 within minutes (of some unspecified time) and called the Code Blue within two to three minutes thereafter.  P. Br. at 3.

There are significant problems with Petitioner's claims.  The statement attributed to Nurse Aide # 2 is submitted without foundation.  It is unsigned and undated.  It is also inconsistent with what Nurse Aide # 2 told Surveyor Ingrassia, which, in turn, is inconsistent with what Nurse Aide # 1 told Surveyor Ingrassia.

According to the unsigned statement, attributed to Nurse Aide # 2, she was working the 3-11 shift on April 21, 2020.  P. Ex. 7.  This is a glaring error.  She was working the 7-3 shift.  CMS Ex. 4 at 10.  I find it highly unlikely that the nurse aide herself would have made that mistake.
	The written statement says that, while Nurse Aide # 1 was attempting to take R1's blood pressure, Nurse Aide # 2 left the room and apparently left the 600 Hall in order to dispose of soiled linens.  The statement does not say how long Nurse Aide # 2 was gone but, according to the statement, when she returned to the 600 Hall, she saw LPN King standing at the medication cart.  The nurse aide then stopped and talked to the LPN.  P. Ex. 7.
	In their interviews with Surveyor Ingrassia, neither Nurse Aide # 2 nor Nurse Aide # 1 mentioned soiled linens or that Nurse Aide # 2 left the 600 Hall.  CMS Ex. 4 at 9-11.Page 10

The written statement says that, while Nurse Aide # 2 was talking to LPN King, Nurse Aide # 1 came out of R1's room and told LPN King that she could not get a blood pressure reading and that R1 did not look good.  P. Ex. 7.
	In contrast, Nurse Aide # 2 told Surveyor Ingrassia that she herself "got the nurse" at 3:30-3:35.  Her comments to the surveyor are somewhat confusing because she said that she was helping to position the resident as Nurse Aide # 1 was attempting to take his blood pressure, and that they were talking about the resident, which suggests that they were together in the room.  But she also said that Nurse Aide # 1 "met me at the door and said that she believes he is expiring and not breathing, and then I got the nurse at 3:30-3:35," which suggests that the two nurse aides were not in the same room at that time.  CMS Ex. 4 at 9-10.
	For her part, Nurse Aide # 1 told Surveyor Ingrassia that Nurse Aide # 2 was in the room when R1 stopped breathing at 3:20 p.m. and that she (Nurse Aide # 1) called LPN King, who "didn't hesitate" and "came into the room."  CMS Ex. 4 at 9.
	The written statement says that, after Nurse Aide # 1 reported that she couldn't get a blood pressure reading, LPN King immediately went into R1's room.  Nurse Aide # 2 followed the LPN and observed her check the resident's pupils, talk to him, and check his pulse.  According to the statement, the LPN said that she was going to check R1's chart, and she immediately left the room.  The statement also claims that Nurse Aide # 2 followed the LPN and observed her pull the resident's chart at the nurses' station.  LPN King and another nurse (RN Lul Redda) checked the resident's chart.  "I then saw Kim call overhead page for a code blue to [R1's] room.  This all happened within 2-3 minutes from Kim checking the resident and the code blue being called."  P. Ex. 7.
	Neither of the nurse aides told any of this to Surveyor Ingrassia.  Nurse Aide # 2 did not claim to have followed LPN King nor to have witnessed her checking R1's chart.  CMS Ex. 4 at 10.  And Nurse Aide # 1 told the surveyor that she didn't stick around to see if they had started CPR.  "So, I do not know when they started CPR."  CMS Ex. 4 at 9.
	The statement says that, at some unidentified point after the code was called, Nurse Aide # 2 went back into R1's room.  Several nurses were there, and she saw "Bill and Ishna doing CPR."  She left the room and, a few minutes later, she saw the EMTs arrive and enter R1's room.  P. Ex. 7.  (The EMTs arrived at 4:04 p.m.  CMS Ex. 6 at 3.)Page 11

Petitioner does not explain the multiple inconsistencies among the facility's contemporaneous documentation, the unauthenticated written statement attributed to Nurse Aide # 2, and the nurse aides' interviews with the surveyor.

Petitioner also submits written declarations from staff who witnessed some or all of the events surrounding R1's crisis.  Without offering specific times, they generally repeat the sequence of events:  a nurse aide reported that R1 stopped breathing; LPN King assessed him; LPN King and RN Redda checked the resident's chart; LPN King called the Code Blue; and staff began CPR.  P. Ex. 2 (King Decl. ¶ 3), P. Ex. 5 (Henry Decl. ¶ 3), P. Ex. 6 (Clark Decl. ¶ 3).

In a statement, signed and dated May 13, 2020 (about a week after the survey), RN Redda states that between 3:30 and 4:00 p.m. – she did not check the time – LPN King came to the desk where she was sitting and got R1's chart to check his code status.  They both confirmed that he was full code and paged "for overhead full code to [the] resident's room," which took seconds.  RN Redda immediately rushed to get the crash cart, according to the statement, but discovered that it was already in R1's room.  RN Redda observed two nurses (RN William Watkins and LPN Ishna Henry) performing CPR.  RN Redda applied a pulse oximeter to the resident's finger.  The Director of Nursing (DON) arrived; she "*requested the time documentation form[,] and I gave her the clipboard with the form*."  The DON asked if the EMTs had been called, RN Redda left to make sure they had been called and was told that they had been.  The EMTs arrived "very soon" after that.  P. Ex. 8 (emphasis added).

In his written declaration, RN William Watkins, who was the first to respond to the code announcement, claims that he began CPR at *3:30 to 3:35*.  P. Ex. 3 (Watkins Decl. ¶ 3).  But this is not consistent with what he told Surveyor Ingrassia.  In his interview with the surveyor, he volunteered, "The time we started CPR was at *3:54 p.m.* and that was correct."  CMS Ex. 4 at 17 (emphasis added).  Although RN Watkins currently claims that he was not interviewed by the survey team, I don't find this credible.  First, the survey notes are specific:  the interview began at 12:36 p.m. on May 6, 2020.  The notes include significant details that the surveyor might otherwise not have known:  that RN Watkins had been at the facility for close to three years; that he worked in "subacute" with LPN King.  And, except for his changing the time that he commenced CPR, the notes of the survey interview are consistent with his testimony.  CMS Ex. 4 at 17.  Moreover, inasmuch as the survey focused primarily on how quickly staff responded after R1 stopped breathing, I find it highly unlikely that the surveyor, whose investigation was thorough, would not have interviewed the person who initiated CPR.

In her written declaration, the facility's DON, Darlene Cunningham, claims that the facility's documentation was incorrect.  She claims that she heard the Code Blue announced at "*around 3:30 p.m.*," and arrived at the resident's room "within a few minutes."  RN Watkins and LPN Henry were performing CPR.  She asked whether

Page 12

anyone had started "recording the code event," and staff informed her that no one had.  She began to record the event on the Code Blue Documentation form.  She asked how long they had been performing CPR, and RN Watkins told her "about 8 minutes."  According to DON Cunningham, "Based on the current time, I added those 8 minutes to what I wrote down instead of subtracting the 8 minutes."  P. Ex. 4 (Cunningham Decl. ¶ 3).

This claim is not credible for multiple reasons.  First, the usual suspicions attach to claims, such as this, raised for the first time during these proceedings, particularly where, as here, the facility had the opportunity to challenge the validity of its documentation, but did not.  *See* CMS Ex. 1 at 1-2, 14-15, 25-26 (responding to CMS's statement of deficiencies, the facility did not claim that any errors were made in recording the time that staff initiated CPR).

Moreover, these claims directly conflict with the contemporaneous documentation, which is generally more reliable.  *See The Bridge at Rockwood*, DAB No. 2954 at 17 (2019) (finding that "where the testimony prepared for the litigation minimized or downplayed aspects of the events or omitted telling details," the ALJ reasonably gave more credence to more contemporaneous statements as "the most reliable accounts of the events.");  *Cedar Lake Nursing Home*, DAB No. 2390 at 9 (2011) (finding that an administrative law judge may reasonably accord more weight to "eyewitness contemporaneous statements" than "after-the-fact testimony"), *aff'd Cedar Lake Nursing Home v. U.S. Dep't. of Health & Human Servs.*, 481 F. App'x 880 (5th Cir. 2012); *accord*, *Woodland Oaks Healthcare Facility*, DAB No. 2355 at 8 (2010).

And DON Cunningham's new assertions also fail on their own merits.

It seems highly unlikely that the DON would make such a fundamental mistake, given the critical importance of getting the time right in those circumstance.
	This revised timeline doesn't make a lot of sense.  If DON Cunningham left her office at 3:30, as she claims, and arrived at R1's room just a few minutes later (3:33?) and staff had actually been performing CPR for "about 8 minutes," they'd have started CPR at about 3:25, *before* the Code Blue was called, before LPN King assessed the resident, and probably even before a nurse aide reported that the resident was in distress.
	Approaching DON Cunningham's timeline from a different perspective, assuming she added (instead of subtracted) eight minutes, staff would have answered her CPR question at 3:46.  But she said that she left her office at 3:30 and arrived inPage 13

R1's room "within a few minutes."  How does she explain that 16-minute time gap?  She doesn't.6

Further, the revised timeline seems at odds with RN Redda's statement.  According to that statement, the DON and RN Redda were both in R1's room for a very short time, long enough for the DON to request and receive the Code Blue Documentation form and to ask whether the EMTs had been called.  At that point RN Redda left R1's room, and the EMTs arrived very soon thereafter.  Considering that the EMTs arrived at 4:04, this puts DON Cunningham's arrival in R1's room closer to 4:00 than to 3:30.  If, in fact, she arrived within a few minutes of the code being called, it is far more likely that the code was called at 3:54 p.m. than at 3:30 p.m.But even if I could overlook or explain away these discrepancies, two additional factors are decisive and fatal to Petitioner's position:

On the Code Blue Documentation form, DON Cunningham *wrote that the Code Blue was called at 3:54 p.m.*  CMS Ex. 5 at 11.  She heard that announcement herself and did not have to rely on staff's reporting or make any computations.  There is simply no credible explanation for how she could have erred in making that entry.
	The EMS records are consistent with the Code Blue Documentation form.  They reflect that staff began CPR at 3:54 p.m. and that the facility called EMS at 3:59 p.m.  CMS Ex. 6 at 3.  Of all the records maintained, I consider the EMS records the most reliable.**The facility's substantial noncompliance with sections 483.12(a)(1) and 483.24(a)(3)**.  As the facility's policy recognized, CPR is effective only if it is administered immediately.  CMS Ex. 7 at 2.  Permanent brain damage or death can occur within minutes after a person's blood flow stops.

Page 14

Time is very important when an unconscious person is not breathing.  Permanent brain damage begins after only four minutes without oxygen, and death can occur as soon as 4 to 6 minutes.

https://medlineplus.gov/ency/article/000013.htm; *see* CMS Ex. 9 at 2 (Ingrassia Decl. ¶ 6).

As noted above, the most reliable evidence in this record – the facility's own Code Blue Documentation form and the EMS report – are consistent, and they establish that about fifteen minutes elapsed between the time the nurse aides recognized that R1 was seriously ill and the time that a nurse assessed his condition (3:20 to 3:34); an additional twenty minutes elapsed between that assessment and staff's initiating CPR (3:34 to 3:54).  Then staff inexplicably and unjustifiably delayed contacting EMS.  CMS Ex. 5 at 11; CMS Ex. 6 at 6.

This delay violated the facility's policy that required staff *immediately* begin CPR and continue with it until the EMTs assumed responsibility.  CMS Ex. 7 at 2.  The Board has held repeatedly that a facility's policies "may reflect [its] own judgment about how best to achieve compliance" with participation requirements.  Thus, failing to comply with its own policies supports the finding that the facility was not acting within the standard of care and was not in substantial compliance with the regulations.  *See* *Heritage House of Marshall Health & Rehab*., DAB No. 3035 at 10-11 (2021) (quoting *Bivins Mem'l Nursing Home*, DAB No. 2771 at 9 (2017)); *Emery County Care & Rehab.*, DAB No. 3006 at 11 (2020) (explaining that CMS may "reasonably rely on the facility's protocols and treatment policies as evidencing the facility's own judgment on the care and services that are necessary at a minimum to attain or maintain its residents' highest practicable physical, mental, and psychosocial well-being"); *Green Valley Healthcare & Rehab. Ctr.*, DAB No. 2947 at 6 (2019) (citing *The Laurels at Forest Glenn*, DAB No. 2182 at 18 (2008)); *Hanover Hills Health Care Ctr.*, DAB No. 2507 at 6 (2013) (observing that "the Board has long held that a facility's own policy may be sufficient evidence . . . of what the facility has determined is needed to meet the quality of care requirements in section 483.25"); *Life Care Ctr. of Bardstown*, DAB No. 2233 at 21-22 (2009); *see 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).  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.  *Oxford Manor*, DAB No. 2167 at 5-6 (2008).7

Page 15

Thus, the facility's lengthy and unexplained delay in administering CPR deprived R1 of the basic life support services he needed to maintain life.  This put the facility out of substantial compliance with the abuse and neglect regulation, 42 C.F.R. § 483.12, and the quality-of-life regulation, 42 C.F.R. § 483.24(a)(3).  *See* *Southpark Meadows Nursing & Rehab.*, DAB No. 2703 at 9 (2016) (holding that failing to provide CPR to a full-code resident may evidence neglect); *Avalon Place Kirbyville*, DAB No. 2569 at 8-9 (2014).

Not much has been made of the facility's long delay in contacting the EMS, but that too violated the facility's policies and put it out of substantial with program requirements. *Royal Manor*, DAB No. 1990 (2005) (finding that professional standards of care require that health care providers dealing with a patient with absent or inadequate breathing must assess need, *call 911*, and begin the sequence of CPR resuscitation *quickly*).

***The facility was not in substantial compliance with section 483.75(g)(2) because its quality assessment and assurance committee did not recognize that, when one of its residents stopped breathing, staff unacceptably delayed initiating CPR and calling the EMTs.  Because the committee did not identify the issue, it could not develop any plan to correct the quality deficiency.*****Program requirement:  42 C.F.R. § 483.75(g)(2) (Tag F867)**.  The facility must maintain a quality assessment and assurance committee that reports to the facility's governing body.  The committee must meet at least quarterly and as needed to coordinate and evaluate activities under the facility's QAPI (quality assurance and performance improvement) program.  Among other duties, it must identify issues "with respect to which quality assessment and assurance activities . . . are necessary."  The committee

Page 16

must "develop and implement appropriate plans of action to correct identified quality deficiencies."

According to the Five Day report, responding to the May 4, 2020 call from the state agency, the DON began an investigation.  CMS Ex. 5 at 17.  Only then did the facility's QAPI committee investigate the allegation that a nurse had not administered R1's medications as ordered.  CMS Ex. 5 at 17.  As part of that investigation, the facility put together a timeline that established that, at 3:20 p.m., a nurse aide recognized that R1 was in distress.  Rather than reporting immediately, according to the timeline, she and another nurse aide "discussed" the resident's condition.  The facility nurse did not assess the resident until 3:30 p.m., ten minutes later.  Yet, in its investigation, the facility overlooked this ten-minute delay and did not even consider staff's additional delays in initiating CPR, which even a cursory review of the Code Blue Documentation demonstrates.  CMS Ex. 5 at 18.  Because the staff did not investigate, the committee could not correct the quality assurance deficiency.  This put the facility out of substantial compliance with section 483.75(g)(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 substantial 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."  *Heritage House of Marshall Health and Rehab.*, DAB No. 3035 at 21 (2021); *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, when facility staff delayed longer than four minutes, they assured that R1 would, at best, suffer brain damage.  After six minutes, his fate was sealed.  The delay all but guaranteed that he would die.  Any such delay in initiating CPR to a full-code resident who has stopped breathing thus poses immediate jeopardy to resident health and safety.

Page 17

Conclusion

For the reasons discussed above, I find that the facility was not in substantial compliance with 42 C.F.R. §§ 483.12(a)(1), 483.24(a)(3), and 483.75(g)(2).  Its deficiencies posed immediate jeopardy to resident health and safety, and the penalty imposed is reasonable.


          /s/
        Carolyn Cozad Hughes

                      Administrative Law Judge
      1. My findings of fact/conclusions of law are set forth, in italics and bold, in the discussion captions of this decision. back to note 1
                      2. Inasmuch as the facility submitted the document at least two weeks after the incident occurred and did so at the explicit request of the state agency, "Five Day Report" is a misnomer. back to note 2
                      3. Although the MAR has been made part of this record, it is virtually indecipherable.  However, the medications were listed in the facility's Five Day report (CMS Ex. 3 at 6-10), and the surveyor listed them in his notes as well.  CMS Ex. 4 at 7. back to note 3
                      4. Throughout this decision, I refer by name to the staff who are listed as witnesses and have provided witness declarations or (in one case) a signed statement.  Because these nurse aides are not witnesses in these proceedings and signed no statements, I refer to them by number. back to note 4
                      5. The facility should not benefit from the inadequacies of its own record-keeping.  Medical records must be kept in accordance with accepted professional standards; they must be complete and accurately documented.  42 C.F.R. § 483.70(i)(1); see Putnam Ctr., DAB No. 2850 at 20 (2018) (emphasizing the importance of complete and accurate clinical records); Nightingale Home Healthcare, Inc., DAB No. 2784 at 23 (2017) (holding that "[p]oor documentation supports the conclusion that the facility has provided inadequate care."). back to note 5
                      6. Citing the written declarations of some of its witnesses, Petitioner asserts that DON Cunningham arrived at R1's room approximately 15 minutes after CPR had been initiated.  P. Br. at 4.  But none of the cited witness declarations say this.  RN Watkins says that the DON arrived "several minutes" after CPR had been initiated.  P. Ex. 3 (Watkins Decl. ¶ 4).  The declarations of LPN Henry and PA Clark include statements identical to that of RN Watkins:  the DON arrived "several minutes after the code was called and CPR had been initiated."  P. Ex. 5 (Henry Decl. ¶ 5); P. Ex. 6 at 1 (Clark Decl. ¶ 4).  RN Redda's statement says simply that the DON arrived after she did.  P. Ex. 8.  And DON Cunningham, herself, says that she arrived "within a few minutes" of hearing the Code Blue announced.  P. Ex. 4 (Cunningham Decl. ¶ 3). back to note 6
                      7. Facility policy also required staff to investigate and to report immediately any allegation of abuse or neglect.  CMS Ex. 7 at 9-10.  The facility investigated nothing and reported nothing until after the state agency's May 4, 2020 inquiry.  Then, the facility investigated the nurse's failing to administer the resident's medication and (inexplicably) exonerated itself.  It did not even recognize that its inadequate response to R1's crisis should have been investigated and reported.  I discuss below why this put the facility out of substantial compliance with section 483.75(g)(2).  Moreover, failing to investigate and report suspicions of neglect or abuse, by itself, may put the facility out of substantial compliance with the abuse and neglect regulation.  Beverly Health Care Lumberton, DAB No. 2156 at 15 (2008) (holding that where "the system does not function properly in response to an allegation that is subsequently found not to constitute abuse . . . it is reasonable to conclude . . . that the system is broken and residents who may experience serious abuse cannot rely on that system to protect them"); aff'd, Beverly Healthcare Lumberton v. Leavitt, 338 F. App'x. 307, 314-15 (4th Cir. 2009) (agreeing that the facility's failure to implement its policies for reporting and investigating abuse "indicated a wider systemic problem in the facility" that leaves its residents "at real risk for serious harm"); Century Care of Crystal Coast, DAB No. 2076 at 25 (2007) (concluding that, where an incident went unreported and uninvestigated, the facility could not even identify, much less correct, the flaws in its systems.). back to note 7 Back to top
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