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                              Midwest Rehabilitation & Respiratory, DAB CR5127 (2018)
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Midwest Rehabilitation & Respiratory, DAB CR5127 (2018)








  
  
    

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





Midwest Rehabilitation & Respiratory,
	(CCN: 14-5290),
	Petitioner,
v.
Centers for Medicare & Medicaid Services.
Docket No. C-16-561Decision No. CR5127June 27, 2018

        
              
    

      DECISION
In this case, I consider a long-term-care facility’s responsibility to meet the special needs of a super-morbidly obese resident and the extent to which the facility must consider those needs in its emergency and disaster preparedness plans.
Petitioner, Midwest Rehabilitation & Respiratory, is a long-term-care facility, located in Belleville, Illinois, that participates in the Medicare program.  Based on a complaint investigation, completed March 16, 2016, the Centers for Medicare & Medicaid Services (CMS) determined that, from March 16 through April 4, 2016, the facility was not in substantial compliance with Medicare program requirements and that its deficiencies posed immediate jeopardy to resident health and safety.  CMS imposed a civil money penalty (CMP) of $3,550 per day for 20 days of immediate jeopardy.
Petitioner appeals, and the parties have filed cross-motions for summary judgment.
For the reasons set forth below, I grant CMS’s motion and deny Petitioner’s.  The undisputed evidence establishes that, from March 16 through April 4, 2016, the facility was not in substantial compliance with either the quality-of-care requirement governing
Page 2
tracheostomy care (42 C.F.R. § 483.25(k)) or with the disaster-preparedness requirements (42 C.F.R. § 483.75(m)(1)); the undisputed evidence also establishes that the facility’s failure to prepare properly for a disaster posed immediate jeopardy to resident health and safety.  The penalty imposed is reasonable.
Background
The Social Security Act (Act) sets forth requirements for nursing facility participation 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 483.1
  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.  The regulations require that each facility be surveyed annually, with no more than fifteen months elapsing between surveys.  42 C.F.R. § 488.308(a).  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).
Here, responding to a complaint, surveyors from the Illinois Department of Public Health (state agency) visited the facility and, from March 5 through 16, 2016, conducted a complaint investigation survey.  Based on their findings, CMS determined that the facility was not in substantial compliance with two program requirements:
42 C.F.R. § 483.25(k) (Tag F328 – quality of care:  special needs) at scope and severity level D (isolated instance of noncompliance that causes no actual harm with the potential for more than minimal harm); and
	42 C.F.R. § 483.75 (m)(1) (Tag F517 – administration:  disaster/emergency preparedness) at scope and severity level J (isolated instance of substantial noncompliance that poses immediate jeopardy to resident health and safety).CMS Ex. 1.  Thereafter, CMS determined that the facility removed the immediate jeopardy and returned to substantial compliance on April 5, 2016.  CMS Exs. 4, 10, 11.
Page 3
CMS has imposed a CMP of $3,550 per day for 20 days of immediate jeopardy ($71,000).  CMS Ex. 13.
Petitioner timely requested review.
The parties have filed cross-motions for summary judgment.  With its motion and brief (CMS Br.), CMS submitted 45 exhibits (CMS Exs. 1-45).  With its response/cross-motion and brief (P. Br.), Petitioner submitted 36 exhibits (P. Exs. 1-36).  CMS also responded to Petitioner’s summary judgment motion (CMS Response).
Issue
As a threshold matter, I consider whether summary judgment is appropriate.
On the merits, the issues before me are:
from March 16 through April 4, 2016, was the facility in substantial compliance with 42 C.F.R. §§ 483.25(k) and 483.75(m)(1);
	if the facility was not then in substantial compliance with section 483.75(m)(1), did that deficiency pose immediate jeopardy to resident health and safety; and
	if the facility was not in substantial compliance, is the penalty imposed – $3,550 per day – reasonable.2Page 4
Discussion
**Summary judgment**.  Summary judgment is appropriate if a case presents no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law. *Ill. Knights Templar Home*, DAB No. 2274 at 3-4 (2009), and cases cited therein.
The moving party may show the absence of a genuine factual dispute by presenting evidence so one-sided that it must prevail as a matter of law or by showing that the non-moving party has presented no evidence “sufficient to establish the existence of an element essential to [that party’s] case, and on which [that party] will bear the burden of proof at trial.”  *Livingston Care Ctr. v. U.S. Dep’t of Health & Human Servs.*,388 F.3d 168, 173 (6th Cir. 2004) (quoting *Celotex Corp. v. Catrett*, 477 U.S. 317, 322 (1986)).  To avoid summary judgment, the non-moving party must then act affirmatively by tendering evidence of specific facts showing that a dispute exists.  *Matsushita Elec. Indus. Co. v. Zenith Radio Corp.*,475 U.S. 574, 586 n.11 (1986); *see also Vandalia Park*,DAB No. 1939 (2004); *Lebanon Nursing & Rehab. Ctr.*,DAB No. 1918 (2004).
In examining the evidence for purposes of determining the appropriateness of summary judgment, I must draw all reasonable inferences in the light most favorable to the non-moving party.  *Brightview Care Ctr.*, DAB No. 2132 at 2, 9 (2007); *Livingston Care Ctr.*, 388 F.3d at 172; *Guardian Health Care Ctr.,*DAB No. 1943 at 8 (2004); *but see* *Brightview*, DAB No. 2132 at 10 (entry of summary judgment upheld where inferences and views of non-moving party are not reasonable).  However, drawing factual inferences in the light most favorable to the non-moving party does not require that I accept the non-moving party’s legal conclusions.  *Cf. Guardian Health Care Ctr.*, DAB No. 1943 at 11 (“A dispute over the conclusion to be drawn from applying relevant legal criteria to undisputed facts does not preclude summary judgment if the record is sufficiently developed and there is only one reasonable conclusion that can be drawn from those facts.”).
***1. CMS is entitled to summary judgment because the undisputed evidence establishes that facility staff did not provide one of its residents with proper tracheostomy care, as required by 42 C.F.R. § 483.25(k), and had not prepared detailed plans and procedures to meet potential emergencies and disasters, as required by 42 C.F.R. § 483.75(m)(1).3***
**Resident 3 (R3)**.  R3 was a 32-year-old man, admitted to the facility on August 4, 2014, suffering from massive exogenous obesity (i.e., obesity caused by consuming more food than his activity level warrants) and respiratory failure.  CMS Ex. 28 at 2, 3; CMS Ex. 30
Page 5
at 9.  He then weighed 768.9 pounds.  CMS Ex. 27 at 1.  He had a tracheostomy and required a ventilator.  CMS Ex. 26 at 1, 3, 5; CMS Ex. 28 at 40; CMS Ex. 30 at 2, 8, 9, 13.
R3 was obviously a difficult resident, who regularly refused care.  *See*, *e.g.*, CMS Ex. 30 at 22, 23, 24, 26 (indicating, in August 2014, that he refused bed baths, refused turning/repositioning, refused skin assessments, refused to go to the hospital to have his trach changed, and refused safety measures in place around his bed); CMS Ex. 30 at 8 (reporting, in September 2015, that, for three weeks in a row, R3 refused to allow the wound doctor to examine him); CMS Ex. 30 at 9, 20 (indicating, in October and November 2015, that he refused most monthly weight checks); CMS Ex. 30 at 13 (reporting, in January 2016, that he would not allow his trach tube to be changed); *see* P. Ex. 30 at 1 (Parks Decl. ¶¶ 8, 9).
Following his admission, R3 gained weight at an alarming pace, eating double and triple portions of all meals and demanding more.  CMS Ex. 27.  In June 2015, he weighed 1,032 pounds.  CMS Ex. 27 at 8; P. Br. at 8.4
  By November 2015, he weighed over 1,200 pounds, and thereafter he refused to allow himself to be weighed.  CMS Ex. 25 at 3; CMS Ex. 30 at 9.  By January 2016, his estimated weight was over 1,400 pounds.  CMS Ex. 31.
It must have been apparent early on that the facility was not equipped to address R3’s exceptional needs, but the facility seems to have taken a surprisingly passive approach to meeting those needs.  Aside from documenting his frequent refusals and attempting to persuade him otherwise, no evidence suggests that facility staff took any other steps to assure that R3 received proper care.  *See* P. Ex. 30 at 2 (Park Decl. ¶ 10).5
 Eventually, it
Page 6
seems, the facility began looking for a more suitable placement (including one that specialized in bariatric services).  *See, e.g*., CMS Ex. 17 at 1 (complaining that the facility wanted to eliminate its ventilator unit and was trying to discharge the resident); CMS Ex. 21 at 4 (indicating, on March 5, that R3 agreed to a hospital-based bariatric placement); CMS Ex. 22 at 6 (indicating ongoing communications regarding long-term placement); P. Ex. 22.  Unfortunately, by that point, Petitioner’s situation was dire, and it was difficult to find a suitable facility willing to accept him.  *See* P. Ex. 22.
**Program requirement:  42 C.F.R. § 483.25(k)**.  Under the statute and quality-of-care regulation, each resident must receive, and the facility must provide, the necessary care and services to allow a resident to attain or maintain the highest practicable physical, mental, and psychosocial well-being, in accordance with the resident’s comprehensive assessment and plan of care.  Act § 1819(b); 42 C.F.R. § 483.25.  To this end, the facility must, among other requirements, ensure that residents with tracheostomies receive proper treatment and care.  42 C.F.R. § 483.25(k).6
**Facility noncompliance: trach care**.  R3’s trach tube could not safely be changed in-house, but, per physician order, had to be changed in the hospital emergency room.  CMS Ex. 26 at 1, 3; CMS Ex. 29 at 10; CMS Ex. 30 at 11; P. Ex. 30 at 2 (Parks Decl. ¶¶ 13, 14).  His physician ordered that it be changed every twelve weeks, but, because R3 often refused to go to the hospital, it seems that it was seldom, if ever, changed.  CMS Ex. 30 at 13, 23; P. Ex. 1; P. Ex. 30 at 1 (Parks Decl. ¶ 7).
In January 2015, Abbott Ambulance Service, with whom Petitioner contracted to provide ambulance services, took R3 to Memorial Hospital in Belleville, where emergency room staff successfully changed his trach.  CMS Ex. 30 at 3-6; P. Ex. 29 at 2.  I cannot tell from this record whether R3’s trach was changed again in 2015, and, if so, when it was changed.  According to facility consultant, Kelly Kelley, during the entire year of 2015, R3’s trach tube was changed twice.  P. Ex. 31 at 2 (Kelley Decl. ¶ 10).  The facility prepared a “timeline of clinical chart notes,” which indicates that R3’s trach was changed
Page 7
by the facility’s respiratory therapist on April 8, 2015.  P. Ex. 22 at 3.  Petitioner cites no underlying record to support this, however.  In a report of a December 30, 2015 visit (dictated January 4, 2016), Petitioner’s physician states that R3’s trach was last changed in August 2015.  P. Ex. 14 at 1.  No underlying record supports this claim, Petitioner’s timeline does not mention it, and Petitioner has not asserted that the change occurred.  P. Ex. 22 at 6-7.  Ultimately, the question is not material.  The undisputed evidence establishes that, although R3’s trach was supposed to be changed every 12 weeks, it was seldom changed.
On December 11, 2015, R3’s physician again ordered that R3’s trach be changed.  Abbott Ambulance Service arrived to take the resident to Barnes Jewish Hospital in St. Louis, Missouri.  Firefighters from the Belleville Fire Department were there to assist.  However, R3 refused to go.  P. Ex. 18; P. Ex. 31 at 3 (Kelley Decl. ¶ 17).  According to Consultant Kelley, R3 himself called the hospital to cancel the procedure.  P. Ex. 31 at 3 (Kelley Decl. ¶ 17).
By January 2016, the trach may have become infected.  CMS Ex. 30 at 13 (describing the trach site as “green, foul-smelling, extremely red . . . .”); P. Ex. 30 at 1, 2 (Parks Decl. ¶¶ 8, 9, 10).
A handwritten note, dated January 25, 2016, states that, if the resident is in respiratory distress, staff should call 911, ask for a bariatric ambulance, and inform the service that the resident weighs 1,400 pounds and depends on an “assist control ventilator.”  CMS Ex. 31.  According to Petitioner, this note was placed in the front of R3’s chart so that staff would know what to do in case of an emergency.  P. Br. at 10-11; P. Ex. 35 at 3-4 (Jorn Decl. ¶ 20).7
  But this entry does not address how the facility would provide proper treatment and care for R3’s tracheostomy.  The regulation does not permit a facility to wait until a resident is in distress before it provides the required treatment.  Indeed, such delay endangers the resident’s health and safety.
By February 27, 2016, R3’s tracheostomy cuff had begun to leak, so he absolutely needed to have his trach changed in order to breathe properly.  CMS Ex. 29 at 27.8
  Facility staff notified his physician, who ordered them to send the resident to the hospital
Page 8
for a trach change.  Initially, R3 refused to go.  Staff warned him about the risks of his refusal, and checked on him every 15 minutes; he showed no signs or symptoms of respiratory distress.  CMS Ex. 29 at 27.
The next morning, however, R3 changed his mind and asked to be taken to the hospital so that he would not have to remain continuously on his ventilator.  P. Ex. 21 at 1 (“Resident agreed to have tracheostomy changed at the hospital.”); CMS Ex. 29 at 27-28; *see* CMS Ex. 1 at 5 (for a more legible version); P. Ex. 20.  But it seems that the facility had no way of getting him there.  At about 11:45 a.m., staff called Abbott Ambulance and requested a bariatric ambulance to transport R3, but the ambulance company would not take him, explaining that it could not transport anyone weighing more than 1,000 pounds.  CMS Ex. 29 at 28; *see* CMS Ex. 1 at 5-6.9
 A nurse’s note, written at 2:30 p.m., says that the local hospitals would not accept him because they did not have sufficient staff to assist him off the stretcher.  CMS Ex. 29 at 28; *see* CMS Ex. 1 at 6.  Thereafter, R3 apparently remained on his ventilator, and, until the time of the survey, the facility had not replaced his trach.  CMS Ex. 1 at 6; *see* CMS Ex. 29 at 28-37.
By the evening of March 4, R3 was showing signs of respiratory distress.  Staff observed bright red blood in his sputum, and his physician again ordered that he be sent to the emergency room.  CMS Ex. 26 at 7; CMS Ex. 29 at 36.  The facility still had no means of transporting R3 to the hospital so that his trach could be changed safely.  *See, e.g.*, CMS Ex. 22 at 6 (indicating “ongoing” communications about replacing the trach).
At that point, the state agency began to receive complaints about R3’s situation:
On March 4, Memorial Hospital’s emergency medical services (EMS) coordinator contacted the state agency to complain that R3 was not receiving adequate care; specifically, he complained that the resident required trach replacement, which the facility would not allow except at the hospital.  But the EMS team could not transport him because of his size.  The EMS coordinator also complained that the resident’s bed was breaking, and the EMS team feared that it would collapse.  CMS Ex. 14 at 1-2.
	On March 8, R3’s mother called the state agency to complain that her son needed his trach replaced; the facility would not allow it except at the hospital; and he could not go to the hospital because the ambulance would not hold his weight.  AsPage 9
a result, he was forced to stay on a ventilator full-time.  CMS Ex. 16 at 1; CMS Ex. 17.
Thus, R3’s trach was in dire need of replacement, and, as late as March 16, 2016, the facility had not replaced it.  The facility was therefore not in substantial compliance with 42 C.F.R. § 483.25(k).
Petitioner makes much of R3’s repeatedly refusing care, particularly his refusal to go to the hospital for replacement of his trach tube.  However, the resident’s past refusals do not excuse the facility from providing necessary care when he agreed to it.  In fact, because R3 made it so difficult for facility staff to provide him the care he needed, it was all the more important that it take advantage of every opportunity he afforded them.  He desperately needed to have his trach tube changed, and this was the chance to do it.
I accept that R3’s trach could not be safely changed at the facility and that the procedure had to be performed at a hospital.  P. Ex. 30 at 2 (Parks Decl. ¶ 13).  For that reason, the facility should have ensured that it had the means by which it could safely transport the resident there.
Petitioner blames the ambulance service and the hospitals.  In her declaration, Consultant Kelley claims that in July 2013, when the facility negotiated its contract for ambulance services, it “specifically inquired about whether Abbott could provide transportation services for R3.”  P. Ex. 31 at 3 (Kelley Decl. ¶ 13).  This assertion is puzzling because R3 was not admitted to the facility until more than a year later *after* the facility negotiated the contract.  But the discrepancy is not material.  Presumably, Abbott would have been able and willing to transport a 700 or even 800-pound resident to a hospital that agreed to accept him.  *See* P. Ex. 17.  After all, as Petitioner points out, in January 2015 (and possibly in April or August), the ambulance service successfully took R3 to the hospital and returned him.  CMS Ex. 30 at 3-6; P. Ex. 29 at 2.  But he was smaller then.  The problem here was that the facility was asking Abbott to transport a *1,400* pound resident, and the service was simply not equipped to do it.  Moreover, the hospital that might have accepted him at a lower weight did not have the staff needed to move him off a stretcher.
Facility staff well knew that R3 was gaining weight at an alarming rate and should have recognized that transporting a 1,400 pound individual presented unique challenges.  Yet, they did not develop a workable plan for getting him to the hospital, apparently relying on the resident’s refusal to go.  In fact, as late as the close of the survey, the facility did not have a workable plan for changing R3’s tracheostomy tube.
Finally, placing blame on the facility’s contractors does not relieve the facility of responsibility for ensuring that its residents receive proper treatment and care.  *See* 42 C.F.R. § 483.20(k)(3) (making the facility responsible for the services provided by its contractors).
Page 10
**Program requirement:  42 C.F.R. § 483.75(m)(1)**.  The facility must be governed in a manner that enables it to use its resources effectively and efficiently to attain or maintain the highest practicable physical, mental, and psychosocial well-being of *each* resident.  42 C.F.R. § 483.75.  Among other administrative requirements, it must have detailed written plans and procedures to meet *all* potential emergencies and disasters, such as fire, severe weather, and missing residents.  42 C.F.R. § 483.75(m)(1).
The facility’s plan must contain sufficient detail so that staff will know how to provide care to all residents.  *The Peaks Care Ctr.*, DAB No. 2564 at 6 (2015); *see* CMS Ex. 45 at 3 (directing facilities to establish transportation arrangements “adequate for the type of individuals being served”).  In *Peaks Care*, the facility’s emergency plan did not address a resident’s need for suctioning, for which staff used an electrical-powered suction machine.  Because the facility’s emergency plan did not detail how the facility would power electrical equipment during a power outage, the facility was not in substantial compliance with section 483.75(m)(1).  *Peaks Care*, DAB No. 2564 at 10-11.
**Facility noncompliance:  emergency preparedness**.  The facility had in place written plans and procedures for fires, and other disasters, including “any . . . situation that would warrant evacuation of the facility in order to protect the lives and safety of the facility’s staff and residents.”  P. Ex. 23 at 4.  The plan generally requires that residents be evacuated in an orderly fashion, that transportation and alternate placement be arranged, and that no residents be left behind.  P. Ex. 23 at 4-5.  Bedfast residents are to be removed by moving their beds out of the danger area.  P. Ex. 23 at 6.
Here, none of the facility’s plans even mentioned – much less detailed – what facility staff should do to keep R3 safe in an emergency.  Removing him from his room was plainly impossible.  The facility had replaced R3’s bed in August 2015.  His new bed was 52 inches wide by 87 inches long.  Yet his room door was just 43.5 inches wide, and the fire exit door nearest his room was 45.5 inches wide.  A wooden ramp, 57 inches wide rail-to-rail, connected to the exit but a gate at the bottom was 49 inches wide.  CMS Ex. 1 at 11; CMS Ex. 43 at 2 (Golden Decl. ¶ 5).  The resident’s bed would not fit through any of the doors or the exit gate.  Inasmuch as R3 was bedfast, this presented some serious problems in the event of an emergency, such as a fire, that requires evacuation of the building.
Petitioner argues that, under section 483.75(m)(1), it was not required to develop plans for each individual resident.  P. Br. at 20.  Petitioner reads the regulation too narrowly and disregards the regulation’s introductory paragraph that includes the overarching requirement that the facility “attain or maintain the highest practicable physical, mental, and psycho-social well-being of *each* resident.”  42 C.F.R. § 483.75 (emphasis added).  In planning for emergencies, the facility is not free to disregard the special needs of any single resident.
Page 11
It seems that the facility’s governing body at least recognized its responsibilities.  In a telephone conference held on February 28, 2016, the facility administrator and corporate officers (vice-president of operations, vice-president of clinical, regional director of clinical, chief operating officer) recognized that they had a problem.  CMS Ex. 32.  Abbott Ambulance would no longer provide a gurney for evacuating R3 from his room – an approach that, in any event, was not incorporated into the emergency plans, which, in itself, violates the regulation.  *Peaks Care*, DAB No. 2564 at 6.
But even if the facility had properly incorporated into its written plans Abbott’s active participation in evacuating R3, the facility no longer had that as an option.  Given the width of his bed and the width of the doors, it had no way of evacuating R3 from his room or from the facility.  The team suggested that he shelter in place, but recognized that this plan would not resolve the requirement that the facility have a plan to evacuate him, if necessary.  To do that, the team discussed widening the door and working with local and regional emergency services to resolve the transportation difficulties.  CMS Ex. 32.
Someone noted that the facility had tools with which to widen the width of the doorway, suggesting that staff do so in an emergency.  Such a solution was not incorporated into the facility’s emergency plans, which was just as well.  Putting aside the feasibility of expecting staff to knock down a wall during an emergency evacuation, it turned out that the wall was cinderblock and destroying it risked disturbing the concrete above the door, which supported the roof.  CMS Ex. 25 at 8; *see* CMS Ex. 43 at 2 (Golden Decl. ¶ 4).
The facility had no workable plan for protecting R3’s life and safety in an emergency situation requiring his evacuation from the facility.  It was therefore not in substantial compliance with 42 C.F.R. § 483.75(m)(1).
***2. CMS’s determination that the facility’s deficiencies posed immediate jeopardy to resident health and safety is not clearly erroneous.***
**Immediate jeopardy**.  Immediate jeopardy exists if a facility’s noncompliance has caused or is likely to cause “serious injury, harm, impairment, or death to a resident.”  42 C.F.R. § 488.301.  CMS’s determination as to the level of a facility’s noncompliance (which would include an immediate jeopardy finding) must be upheld unless it is “clearly erroneous.”  42 C.F.R. § 498.60(c).  The Board has observed repeatedly that the “clearly erroneous” standard imposes on facilities a “heavy burden” to show no immediate jeopardy, and has sustained determinations of immediate jeopardy where CMS presented evidence “from which ‘[o]ne could reasonably conclude’ that immediate jeopardy exists.”  *Barbourville Nursing Home*, DAB No. 1962 at 11 (2005) (citing*Koester Pavilion*, DAB No. 1750 (2000)); *Daughters of Miriam Ctr.*, DAB No. 2067 at 7, 9 (2007).
Page 12
I need not find that the facility’s noncompliance actually caused serious harm or injury to a resident.  So long as the deficiencies are likely to cause serious injury or harm, they pose immediate jeopardy.
As discussed above, the facility plainly had no workable plan in place to keep R3 safe in an emergency, and the absence of an adequate emergency plan was likely to cause him serious harm.  In the event of a fire, bomb scare, tornado, or any other emergency requiring that facility residents be evacuated, he would have been virtually, if not completely, unprotected.  CMS’s determination that the deficiencies posed immediate jeopardy to resident health and safety is therefore not clearly erroneous.
***3. The amount of the CMP is 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 kind of deficiencies found, and in light of the section 488.438(f) factors.  I am neither bound to defer to CMS’s factual assertions nor free to make a wholly independent choice of remedies without regard for CMS’s discretion.  *Barn Hill Care Ctr.*, DAB No. 1848 at 21 (2002); *Cmty. Nursing Home*, DAB No. 1807 at 22 *et seq*. (2002); *Emerald Oaks*, DAB No. 1800 at 9 (2001); *CarePlex of Silver Spring*, DAB No. 1683 at 8 (1999).
Here, CMS imposes a penalty of $3,550 per day for each day of immediate jeopardy, which is at the very low end of the immediate jeopardy range ($3,050 to $10,000).  42 C.F.R. §§ 488.408(e)(1)(iii); 488.438(a)(1)(i).  Considering the relevant factors, this penalty is reasonable.
The facility has an abysmal history.  In surveys completed over the preceding ten years, it has been consistently out of substantial compliance, and an alarming number of its deficiencies (seven) have posed immediate jeopardy.  CMS Ex. 6.  In 2015, for example, its multiple quality-of-care deficiencies posed immediate jeopardy to resident health and safety and caused actual harm.  Another deficiency, cited under Tag F224 (42 C.F.R.
Page 13
§ 483.13(c) – preventing neglect and abuse) also caused actual harm.  CMS Ex. 6 at 2.  The facility’s history alone justifies a much higher penalty than was imposed here.
Petitioner does not claim that its financial condition affects its ability to pay the penalty.
Applying the remaining factors, I consider the facility’s failure to provide R3 with necessary tracheostomy care as well as its failing to include him in its emergency plans.  While I recognize that the facility was making some efforts to address these problems, they were serious.  I need not decide the facility’s culpability, however, because culpability is but one of many factors that may justify an increased penalty.  Here, the facility’s history and the seriousness of the deficiencies, by themselves, more than justify this relatively low penalty.
For these reasons, I find that the penalty imposed is reasonable.
Conclusion
I find that, from March 16 through April 4, 2016, the facility was not in substantial compliance with 42 C.F.R. §§ 483.25(k) and 483.75(m)(1); its section 483.75(m)(1)  deficiency posed immediate jeopardy to resident health and safety; and the penalty imposed is reasonable.


          /s/
        Carolyn Cozad Hughes

                      Administrative Law Judge
      1. I apply the regulations in effect at the time of the surveys here. Since then, CMS has amended its regulations governing nursing facility participation in the Medicare program. 81 Fed. Reg. 68,688 (October 4, 2016). back to note 1
                      2. In its hearing request, Petitioner complained that, until April 1, 2016, the state agency repeatedly rejected its plans of correction. Hearing Req. at 1. It has not, however, pursued this issue. See P. Br. In any event, I have no authority to review either the state agency’s/CMS’s determination to reject a provider’s plan of correction or their failure to act on the provider’s plan of correction. Those actions (inaction) are not listed as initial determinations and are therefore not reviewable. 42 C.F.R. §§ 498.3(b); 498.5; Apollo Behavioral Health Hosp., L.L.C., DAB No. 2561 at 9 (2014); HRT Lab., Inc., DAB No. 2118 at 11 (2007); Hermina Traeye Memorial Nursing Home, DAB No. 1810 at 13 (2002) (In affirming the termination of a provider, “ALJ properly concluded that he lacked authority to adjudicate the question of whether [CMS] abused its discretion in deciding to reject the [plan of correction].”), aff’d sub nom. Sea Islands Comprehensive Healthcare Corp. v. U.S. Dep’t of Health & Human Servs., 79 F. App’x 563 (4th Cir. 2003). back to note 2
                      3. My findings of fact/conclusions of law are set forth, in italics and bold, in the discussion captions of this decision. back to note 3
                      4. I could not find a date on the dietary assessment that is CMS Ex. 27 at 8. Petitioner represents that the date is June 2015 (P. Br. at 8), and I accept that representation. back to note 4
                      5. Indeed, the facility’s care planning for R3 was wholly inadequate. In an entry dated October 19, 2015 (when R3 weighed about 1,200 pounds), the plan identifies his problem: “[p]otential for weight gain [related to] receiving double portions or more at all meals and [R3] has food/snacks in room bought by family and he orders out often.” Inexplicably, the goal set was to “maintain weight with no significant weight loss by next review date.” One of the interventions listed was to provide him a “regular diet with double portions.” CMS Ex. 30 at 20 (emphasis added). Less astounding were instructions to educate the family on the importance of weight management, to record his monthly weight, and, when necessary, weight fluctuations. Id. This plan plainly was not designed to assure that R3’s care would be “appropriate” and “contribute to his . . . health and safety” as required by 42 C.F.R. § 483.25. Sheridan Health Care Ctr., DAB No. 2178 at 36 (2008); see also id. at 19 (noting that any further weight loss by a “severely underweight” resident “was cause for serious concern”). Moreover, even the more sensible interventions were, to an alarming degree, ineffective, yet the facility did not revise them. See Sheridan at 38 (holding that, implicit in the care planning regulation is the requirement that plan revisions “meaningfully respond to changes in the resident’s particular needs”). However, for reasons it has not explained, CMS has not pursued these apparent deficiencies in assessment and care-planning. See 42 C.F.R. §§ 483.20 and 483.25. back to note 5
                      6. A tracheostomy is a surgically-created opening in the neck, which provides a direct airway into the trachea. A tube is inserted through the opening to provide an airway. back to note 6
                      7. In error, Petitioner marked P. Ex. 35 (the written direct testimony of Becky Jorn, RN) as P. Ex. 33. However, the document is e-filed as P. Ex. 35, and Petitioner’s exhibit list identifies it as P. Ex. 35. back to note 7
                      8. If an individual requires the assistance of a respirator, his tracheostomy tube must be sealed by a cuff (also referred to as a balloon). The cuff blocks any air from flowing around the tube and assures that all air flows in and out of the tube itself so that the individual is well oxygenated. back to note 8
                      9. The record is not completely consistent on the reasons Abbott Ambulance demurred. According to Petitioner’s timeline, Abbott reported that the State of Illinois would no longer allow out-of-state trucks to pick up in Illinois, and the necessary truck was in Missouri. P. Ex. 21 at 1; see P. Br. at 12. But this apparent discrepancy is not material. Ultimately, the problem with transporting R3 was his size. See P. Ex. 21 at 2. back to note 9 Back to top
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