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                              Copperas Cove LTC Partners, Inc., DAB CR5120 (2018)
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Copperas Cove LTC Partners, Inc., DAB CR5120 (2018)








  
  
    

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





Copperas Cove LTC Partners, Inc.,
	(CCN: 455515),
	Petitioner,
v.
Centers for Medicare & Medicaid Services,
Respondent.
Docket No. C-17-206Decision No. CR5120June 25, 2018

        
              
    

      DECISION
I sustain the determination of the Centers for Medicare & Medicaid Services (CMS) to impose the following remedies against Petitioner, Copperas Cove LTC Partners, Inc., a skilled nursing facility:
Civil money penalties of $11,641 for each day of a period beginning on October 13 and running through October 15, 2016; and
	Civil money penalties of $2,053 for each day of a period beginning on October 16 and running until November 3, 2016.I. Background
I held a hearing in this case on February 7, 2018, at which I received exhibits from the parties and heard the cross-examination of a witness, Melissa Schwartz.  CMS’s exhibits are identified as CMS Exhibit (Ex.) 1-CMS Ex. 36, and Petitioner’s exhibits are identified as Petitioner (P.) Ex. 1-P. Ex. 22.
Page 2
II. Issues, Findings of Fact and Conclusions of Law
**A. Issues**
The issues are whether Petitioner failed to comply substantially with Medicare participation requirements, whether CMS’s determination of immediate jeopardy level noncompliance is clearly erroneous, and whether CMS’s remedy determinations are reasonable.
**B. Findings of Fact and Conclusions of Law**
In this case CMS makes multiple allegations of immediate jeopardy level noncompliance by Petitioner.  Specifically, CMS alleges that Petitioner failed to substantially comply, at the immediate jeopardy level of noncompliance, with the following regulations:  42 C.F.R. § 483.13(b) and (c), and Standard 19.7.1.1 of the National Fire Protection Association, 101 Life Safety Code (Life Safety Code).1
 I address these allegations in this decision.  Additionally, CMS alleges noncompliance that does not rise to the level of immediate jeopardy but that caused actual harm to a resident.  That is Petitioner’s alleged noncompliance with 42 C.F.R. § 483.13(a).
CMS alleges also that Petitioner failed to comply substantially with other regulations albeit at a level of noncompliance that did not pose immediate jeopardy for Petitioner’s residents.  I do not address these allegations here.  It is unnecessary that I do so because Petitioner’s immediate jeopardy level noncompliance amply justifies the remedies that CMS determined to impose.  Indeed, Petitioner’s immediate jeopardy level noncompliance with any of the regulations involved here would justify the remedies that CMS determined to impose.  Moreover, noncompliance causing harm that is not immediate jeopardy is ample support for CMS’s imposition of non-immediate jeopardy level civil money penalties.
This case centers around the care that Petitioner gave to a Resident who is identified as Resident # 5.  This resident is a profoundly disabled individual.  As of the date of the survey that is the basis for this case Resident # 5 was 35 years old.  He had resided at Petitioner’s facility since 1988.
The resident is severely cognitively impaired and is totally dependent on caregivers for all of his activities of daily life.  CMS Ex. 5 at 6, 11, 15-48.  His numerous diagnoses and
Page 3
medical issues include:  cerebral palsy, hypothyroidism, encephalopathy, macular degeneration, contracture, aphasia, and convulsions.  *Id.* at 2.  Problems associated with these diagnoses include attention deficit hyperactivity disorder and intellectual disabilities.  *Id.*  The resident is unable to walk.  He can ambulate by moving about on his knees and in a wheelchair.  The resident is unable to speak and is unable to comprehend instructions concerning his personal safety.  P. Ex. 6 at 2-4.
During the years of his residence at Petitioner’s facility, Resident #5 manifested numerous behavioral issues.  He wandered into other residents’ rooms.  On occasion he grabbed at other residents and or staff, pulling on their hair or touching them inappropriately.  He grabbed or pulled on objects inappropriately.  He made loud noises to express himself, and he resisted instruction or requests from staff.  He became aggressive at times and was agitated on occasion.  CMS Ex. 5 at 51-54.
Clearly, Resident # 5 is an individual who can be at times extremely difficult to manage.  He posed at the very least a serious annoyance to other residents.  His behavior – which doubtlessly intruded on the peace and quality of life of other residents at Petitioner’s facility – raises the question of whether a skilled nursing facility was an appropriate place for Resident # 5 to reside.
The staff’s solution to the problems inherent in caring for Resident # 5 was to seclude him involuntarily, locking him in his room for extended periods of time.  During those periods the staff often deprived the resident of stimuli, leaving him without toys to play with or without television.  The staff further subdued the resident by administering psychotropic medications to him for their sedative effect.  In short, the staff solved the behavioral problems manifested by Resident # 5 by walling him off, both physically and chemically, from the rest of Petitioner’s facility and its residents.
Petitioner’s staff equipped both the Resident’s room’s exit door and the doors to the closet and toilet in Resident # 5’s room with locks that the resident was unable to operate.  CMS Ex. 8 at 51; CMS Ex. 9 at 69-80.2
  The staff locked the resident in his room for extended periods.  CMS Ex. 5 at 95; CMS Ex. 8 at 3, 9, 41, 51; CMS Ex. 36.  Often, staff deprived Resident # 5 of any stimuli while he was locked in his room, denying him access to toys and television.  CMS Ex. 8 at 41, 51; CMS Ex. 36.
Resident # 5 had been receiving Risperidone, an anti-psychotic medication, prior to June 17, 2016.  His dosage up until that date was 0.5 mg of the drug twice daily.  However, on or just prior to that date, his physician ordered that the resident’s dosage be increased to 2 mg twice daily, a four-fold increase in the medication.  The stated reasons for this sudden and very substantial dosage increase were:  “attention-deficit hyperactivity disorder,
Page 4
predominately inattentive type” and “unspecified intellectual deficiencies.”  CMS Ex. 5 at 50, 52-53.
Neither the order nor an assessment by Petitioner’s staff explained why a greatly increased dose of this anti-psychotic medication was warranted at this time.  Nothing in the resident’s treatment record suggests that his behavior had changed in the days leading up to June 17.  The month before Petitioner increased the dosage, progress notes indicate that “[s]ince admission [in 1988], Resident continues to be the same . . . .”  CMS Ex. 5 at 54.  As I have discussed, the resident had lived at Petitioner’s facility for nearly 28 years prior to June 17, 2016, and his behaviors were well noted and consistent.  No evidence suggests a sudden deterioration as of that date.  On June 17 the resident was observed being aggressive and agitated, making loud noises, and pulling other residents’ hair.  CMS Ex. 8 at 5; CMS Ex. 5 at 53, 98-101.  This behavior, while certainly disruptive, did not constitute a change in the resident’s condition.
Nor was there a clinical basis for administration of a substantially increased dosage of Risperidone.  The resident did not have a diagnosed condition that suggested that administration of this drug was appropriate.  Risperidone is generally used to treat schizophrenia and bipolar disorder.  It is not generally used to treat attention deficit disorder and certainly not to treat “unspecified intellectual deficiencies.”  CMS Ex. 7.3
Furthermore, although there may be certain conditions for which it would be appropriate for Petitioner’s staff to administer 2 mg of Risperidone twice daily to a resident, there is no evidence that Petitioner assessed Resident # 5’s need for a significantly increased daily dosage of Risperidone.  There is no evidence that Petitioner assessed Resident # 5 to specifically need 2 mg of Risperidone twice daily.
What was the reason for Petitioner to administer such a high dose of Risperidone to Resident # 5?  I infer the answer to that question from the resident’s clinical record and from what the resident’s physician told surveyors when asked about his prescribing the drug to Resident # 5.  The original stated bases for administering Risperidone to the resident included “behavior management.”  CMS Ex. 5 at 7-8.  A consent form indicated
Page 5
Resident # 5 was being treated with Risperidone for the conditions of “combative” and “impulse control.”  CMS Ex. 5 at 87.  The resident’s physician stated that the purpose of increasing the dosage was to treat “restlessness.”  Hearing Transcript (Tr.) at 52; CMS Ex. 5 at 49.  Thus, administering a high dosage of the drug was a form of chemical restraint in addition to the physical seclusion and restraint accomplished by locking the resident in his room.
I infer also that the administration of Risperidone in a greatly increased dose had the effect of sedating Resident # 5.  Surveyors noted that the resident was often in bed and apparently asleep, particularly in late afternoons.  CMS Ex. 36.  They observed the resident to manifest a flat affect.  Tr. at 49.  Resident # 5’s mother noticed a change in the resident’s demeanor, finding that he appeared to be drugged.  CMS Ex. 5 at 98-101; CMS Ex. 8 at 5-6.
If a skilled nursing facility participates in Medicare, it is obligated to comply with all of the regulations that govern its participation.  Those regulations make it abundantly clear that a skilled nursing facility may not serve simply as a warehouse for sick and disabled persons nor may it imprison them.  A resident of a skilled nursing facility has the right to a dignified existence.  42 C.F.R. § 483.10.  A facility is obligated to protect and promote each resident’s rights.  *Id.*  A resident has the right to be free from any physical or chemical restraints that are imposed for the purpose of discipline or convenience and not required to treat the resident’s medical symptoms.  42 C.F.R. § 483.13(a).  The resident has the right to be free from abuse and involuntary seclusion.  42 C.F.R. § 483.13(b).  In order to protect its residents a facility’s staff must develop and implement policies that are designed to prohibit resident mistreatment, neglect, and abuse.  42 C.F.R. § 483.13(c).
There are other regulatory requirements that a facility must comply with in order to protect its residents and to enhance the dignity and quality of residents’ lives.  Among these are the requirements of the Life Safety Code, a document that specifies how a skilled nursing facility (among other entities) must engineer and operate its physical plant and protect its residents against accidents such as fires.  42 C.F.R. § 483.70.  The code requires a skilled nursing facility to have a written plan for the protection of all of its residents in the event of a fire, for their evacuation to areas of refuge, and for their evacuation from the facility when necessary.  National Fire Protection Association, Life Safety Code Standard, Standard 19.7.1.1.
The evidence graphically proves that Petitioner failed to furnish a dignified existence to Resident # 5 in contravention of the requirements of 42 C.F.R. § 483.13(a), (b) and (c).  Assuredly, Petitioner confronted difficult issues of behavior management in dealing with Resident # 5.  As I have discussed, the resident was ungovernable at times.  He did not comprehend or follow instructions, he wandered through Petitioner’s facility and into other residents’ rooms, he touched other residents and staff inappropriately, he grabbed and pulled at other residents’ and staff’s hair, he emitted loud and disruptive noises, and
Page 6
he was occasionally aggressive.  I have no doubt that managing the resident’s behavior required considerable effort and inventive solutions, solutions that may have exceeded the capacities and training of Petitioner’s staff.
But, even if that was so, the problems posed by the resident did not justify secluding and restraining him.  Petitioner’s approach to dealing with Resident # 5 was to wall him off from the rest of the facility and furthermore, to restrain him chemically by administering drugs that the staff obviously intended as sedatives.  These approaches may have freed Petitioner’s staff and other residents from the problems created by Resident # 5’s behavior but in executing these approaches, Petitioner’s staff rendered the resident a subdued prisoner, deprived of any opportunity to enjoy life.  I find that to be utterly unacceptable.
The evidence also establishes that Petitioner did not comply with the requirement of the Life Safety Code that it create a fire protection plan that addressed the needs of all of its residents.  Petitioner had a plan that contained general information concerning evacuation of residents during an emergency.  CMS Ex. 2 at 9-22; CMS Ex. 32 at 38.  But, this plan lacked specific guidance for residents, such as Resident # 5, who were helpless to protect themselves from an emergency such as a fire.  The section addressing special needs residents referred to an appendix in which such residents would be listed; however, there was no list in the appendix.  CMS Ex. 32 at 7, 38, 80-87.  Nothing in the plan addressed how to evacuate a resident – like Resident # 5 – who did not comprehend or follow instructions, who was likely to be obstructive or highly agitated during an emergency, or who, alternatively, might be non-responsive due to being administered high doses of Risperidone.  Moreover, this plan failed to address the specific needs of other residents, including Residents #s 3 and 25, who were bed-bound.  Petitioner offers no documentary evidence of any other plan.  *See* Petitioner’s Closing Argument Brief (Petitioner’s brief) at 21.
CMS advocates that I find Petitioner’s noncompliance with the requirements of 42 C.F.R. § 483.13(b) and (c) and Standard 19.7.1.1 to have comprised immediate jeopardy for residents.  The evidence amply supports CMS’s determinations of immediate jeopardy level noncompliance.  Certainly, CMS’s findings are not clearly erroneous.  There was a likelihood of serious injury, harm, or death resulting from Petitioner’s noncompliance.  As I have discussed, Petitioner’s treatment of Resident # 5 rendered him a prisoner for much of his stay at the facility, confining him to a locked room without any stimuli.  That constitutes deprivation of the most basic human rights, tantamount to imprisoning Resident # 5 in solitary confinement.  Moreover, Petitioner lacked a specific plan for evacuating the resident and other helpless residents in the event of an emergency.  In that circumstance, a fire for example, the consequences for these residents very likely would have been lethal.
Page 7
Furthermore, I find the use of chemical restraints (Risperidone) to sedate Resident # 5 to have caused actual harm to the resident.  Subduing the resident chemically was another way of secluding him from the rest of the resident population and of depriving him of any opportunity to enjoy life.
Petitioner offers a variety of arguments to counter these noncompliance findings.  I find these arguments to be unpersuasive, both individually and collectively.
First, Petitioner argues that in confining and sedating Resident # 5 it was merely carrying out the wishes of the resident’s guardian, his mother.  Indeed, Petitioner asserts that there was a court order that allowed the resident’s mother to direct that the resident be confined to a locked room.  Petitioner’s brief at 4.  But, Petitioner has offered no credible evidence to support this assertion, and even if that assertion were true it would not excuse Petitioner’s noncompliance with regulations.
Petitioner purports to support its assertion with the sworn testimony of Heather Beaver, Petitioner’s administrator.  P. Ex. 6.  She avers that during guardianship proceedings, Petitioner’s mother “worked with a judge and regulatory [sic] to be able retain and implement non-standard equipment in Resident #5’s room to meet his unique needs and circumstances.  For example, it was permitted for him to retain the Dutch door for observation purposes . . . .”  *Id.* at 2.
Petitioner offers nothing to support this claim.  I find it to be a naked and unsubstantiated assertion.  Petitioner offered no statement from the resident’s mother suggesting that confining and sedating the resident fulfilled any request that she’d made.  Nor did it offer any official documents – a court order for example – suggesting that Resident # 5’s mother or Petitioner had obtained official permission to lock up and sedate the resident.  Indeed, Petitioner’s mother related her concerns to surveyors that the resident was confined without stimuli and appeared to be drugged when she observed him.  CMS Ex. 8 at 6.
But, Petitioner’s seclusion and sedating of Resident # 5 would not be justified even if those actions fulfilled the express desires of the resident’s mother.  A resident or a resident’s guardian has the right, under Medicare regulations, to refuse treatment.  42 C.F.R. § 483.10(b)(4).  But, that right does not expand to a right to request mistreatment or abuse.  Here, there was no refusal of treatment.  Rather, Petitioner affirmatively mistreated Resident # 5.
Petitioner argues also that its staff devoted special attention to the needs of Resident # 5, attention that exceeded that which the staff gave to other facility residents.  It asserts, for example, that the resident inhabited a room that was located four doors down from Petitioner’s nursing station and in proximity to Petitioner’s therapy, medical records, activities, and social work departments.  P. Ex. 2 at 1.  That, according to Petitioner,
Page 8
meant that Resident # 5 was:  “surrounded by more staff than perhaps any other resident in the facility and this was by design for safety purposes.”  Petitioner’s brief at 4-5.
Petitioner has not offered any evidence to show that the resident was situated by design for safety purposes.  But, even if that were true, that would not gainsay the fact that Petitioner’s staff secluded and restrained Resident # 5.  Nothing that Petitioner says derogates from that truth.
Petitioner argues that Resident # 5 needed to be secluded in his room to calm him and when he was overstimulated.  Petitioner’s brief at 5.  Petitioner’s own instructions to its staff undermine this argument.  For example, staff was encouraged “to assist resident to engage in activities for socialization and stimulation,” CMS Ex. 5 at 6, because he was “dependent on staff for activities, cognitive stimulation, [and] social interaction.”  CMS Ex. 5 at 11.  Petitioner offers no documentary evidence to support its assertions that it was necessary to seclude Resident # 5 due to overstimulation.
Additionally, Petitioner contends that Resident # 5 had been housed in essentially identical fashion for decades, decades during which other surveys had been conducted at Petitioner’s facility.  It contends that no one had ever criticized the manner in which Petitioner housed Resident # 5, and it again suggests that secluding the resident and restraining him was consistent with his guardian’s wishes.  It argues that it should not be penalized given that the manner in which it treated Resident # 5 was a long-standing practice, and it suggests that this practice was not objected to and even condoned by surveyors.  Petitioner’s brief at 5.
There is nothing in the record to show whether surveyors in past surveys specifically addressed Resident # 5’s circumstances.  However, whatever their opinions may have been, that doesn’t gainsay the fact that Petitioner’s staff secluded and chemically restrained Resident # 5 contrary to regulatory requirements.  A facility may not excuse unlawful behavior by arguing that it had gotten away with it for a long time nor may it obtain a pass from compliance requirements by asserting that state surveyors may have overlooked its noncompliance in the past.
Petitioner argues that even if it does not have a legal defense to the noncompliance findings it has an equitable one, claiming that principles of equitable estoppel bar CMS from imposing remedies against it.  Petitioner cites to no authority to support this claim and indeed, there is none that does.
Petitioner offers no evidence that surveyors ever affirmatively condoned Petitioner’s treatment of Resident # 5.  Its argument reduces to a contention that surveyors never explicitly addressed that treatment as an issue in prior surveys.  The doctrine of estoppel plainly does not apply in this case because Petitioner has offered nothing to show that it was affirmatively misled by anyone.  *Schweiker v. Hansen,*450 U.S. 785, 788 (1981).
Page 9
Petitioner asserts explicitly that Resident # 5’s mother consented to the administration of Risperidone to the resident.  But, the consent form cited by Petitioner is dated years prior to Petitioner’s administration of an increased dose of Risperidone to the resident.  Furthermore, although the form represents that Petitioner had obtained the consent of the resident’s representative (his mother), it is not signed by her.  *See* CMS Ex. 5 at 87.  I do not find this document to be persuasive evidence showing that Petitioner’s staff ever discussed the effects of Risperidone with the resident’s mother and obtained her explicit consent to administer it to the resident.
More importantly, there is *nothing* in evidence to suggest that Petitioner’s staff ever discussed with the resident’s mother increasing the resident’s dosage of Risperidone.  Indeed, the record is devoid of evidence to show that the staff ever assessed the resident’s need for an increased dose of the medication, nor is there any evidence to show that the staff weighed whatever potential benefits that they might have thought that the medicine would provide against the potential downside of administering the increased dose.
Petitioner additionally asserts that the resident’s physician increased the dose of Risperidone to Resident # 5 on June 10, 2016, as an attempt to decrease administration of another psychoactive drug, Ativan.  Petitioner’s brief at 6, citing CMS Ex. 5 at 49.  Petitioner goes on to argue that:  “This was being done because it is common knowledge that [Risperidone] has fewer side effects than Ativan, and has less of a lethargic/sedative effect.”  Petitioner’s brief at 6*.*Petitioner’s argument notwithstanding there is nothing at all in the record of this case to suggest that Petitioner administered an increased dose of Risperidone to the resident in order to decrease the sedating effects caused by Ativan.  The exhibit relied on by Petitioner to support its argument doesn’t suggest anything of the kind.  It consists only of a laconic and unexplained order to increase the resident’s dose of Risperidone.  CMS Ex. 5 at 49.
Petitioner argues, baldly, that it did not administer Risperidone to Resident # 5 as a chemical restraint.  Petitioner’s brief at 8.  Petitioner hasn’t cited any evidence that supports this contention and the record proves otherwise.
Petitioner argues that no harm ensued from increasing the dosage of Risperidone to Resident # 5.  Indeed, according to Petitioner, the only documented harm was the increase in the resident’s aggressive behaviors when Petitioner acceded to surveyors’ findings and reduced the dosage of the medication.  Petitioner’s brief at 8-9.  This argument avoids the obvious.  Sedating an individual on a long term basis is an attack on the quality of that person’s life.  That is the harm that resulted from Petitioner’s reliance on Risperidone to restrain Resident # 5.
Next, Petitioner contends that it violated no participation requirements in configuring the resident’s room with a locked exterior door and locked doors to the closet and toilet.  It
Page 10
asserts that it configured the room in this way in order to prevent Resident # 5 from injuring himself or other residents.  And, it contends that it did so at the express request of the resident’s mother, his guardian.  Petitioner’s brief at 10.
But, Petitioner offers no credible evidence to support these claims.  It offers no facility records to show that the staff ever assessed the resident’s needs and made a clinical judgment that configuring the resident’s room with locked doors and without stimuli of any sort was a necessary element of the resident’s care.  Petitioner has not come forward with an assessment, a care plan, or a physician’s order to support its assertions.  Neither has it offered a statement from the resident’s mother.  Instead, Petitioner principally relies on the virtually identical affidavits of three individuals.  These are, respectively, Pearl Merritt, R.N. (P. Ex. 5), Joshua Henderson (P. Ex. 7), and Yvonne Fortson (P. Ex. 8).  Ms. Merritt is presently a regional dean of Texas Tech University.  Mr. Henderson and Ms. Fortson are officers of Petitioner’s parent corporation.  None of these witnesses has first-hand knowledge of what transpired at Petitioner’s facility.  None of them actually observed the resident, consulted with his physician, or participated in staff assessments of the resident’s condition.  All three witnesses offer conclusions based on unattributed sources, or make bald statements of fact without supporting documentation.  I find their testimony to be not credible.
I find to be most disturbing Petitioner’s repeated assertion that Resident # 5’s room was configured to meet the specific demands of the resident’s guardian.  As I have discussed, Petitioner would be noncompliant even if it had followed the guardian’s demands to the letter.  But, Petitioner offers absolutely no proof that the guardian (Petitioner’s mother) ever requested that the resident be isolated as he was.  There is not a shred of documentation in the resident’s record to suggest that his mother ever made such a request.
Petitioner argues that its noncompliance with Medicare participation requirements did not comprise immediate jeopardy.  Principally, it asserts that the scope and severity designation chosen by state agency surveyors requires a pattern of immediate jeopardy level noncompliance, and it contends that the treatment of Resident # 5 was, at most, an isolated incident.  Petitioner’s brief at 11.  I have explained previously why CMS’s findings are not clearly erroneous.  But, more than that, there clearly was a pattern of immediate jeopardy level noncompliance here.  The mistreatment of Resident # 5 continued – by Petitioner’s own admission – for years.  Furthermore, the fact that Petitioner’s staff isolated and restrained the resident without any assessment or documentation of its reasons for doing so is overwhelming support for the inference that they would do so as cavalierly in other cases as they did here.
Petitioner asserts that it did not violate Life Safety Code standards because it “had an evacuation plan in place for [Resident # 5], just as it has had such a plan for the 25-plus years he has resided in the nursing home.”  Petitioner’s brief at 21.  Petitioner doesn’t
Page 11
identify its “plan,” but I infer that it is the general evacuation plan that Petitioner adopted.  CMS Ex. 32; *see*CMS Ex. 2 at 9-22.  However, the issue isn’t whether there was an evacuation plan but whether the plan specifically provided for residents like Resident # 5, who were incapable of protecting themselves in the event of an emergency like a fire.  As I have discussed, this resident was not capable of rapid ambulation without a wheelchair, was resistant to instruction, did not understand instruction, and was heedless of his personal safety.  Petitioner needed to provide its staff with instructions dealing with the specific needs of Resident # 5 in the event of an emergency and it failed to do so.  Likewise, Petitioner failed to address the specific needs of two other bedbound residents.
The civil money penalties that CMS determined to impose are reasonable and I sustain them.  CMS determined to impose a per-diem civil money penalty of $11,641 to remedy Petitioner’s immediate jeopardy level noncompliance during the period of October 13-15, 2016, and a per-diem civil money penalty of $2,053 to remedy Petitioner’s non-immediate jeopardy level noncompliance during the period beginning October 16, 2016 and continuing until November 3, 2016.  Both of these penalty amounts fall within the ranges for immediate jeopardy level and non-immediate jeopardy level penalties respectively.  The immediate jeopardy level penalty amount is slightly more than one-half the maximum allowable per-diem civil money penalty for immediate jeopardy level deficiencies.  The non-immediate jeopardy level penalty amount is one-third of the maximum allowable per-diem amount for non-immediate jeopardy level deficiencies.  42 C.F.R. § 488.408.
I find these penalties to be modest in light of the egregiousness of Petitioner’s noncompliance.  As I have discussed, Petitioner severely impinged on the rights of Resident # 5.  Rather than treat him with dignity as the regulations require, Petitioner’s staff essentially imprisoned him, plainly as a way of removing a nuisance that caused problems for other residents and staff.  Moreover, Petitioner failed to design a plan that would have protected the resident and two other helpless residents in the event of an emergency.  These are serious violations and show a high degree of culpability on Petitioner’s part.  42 C.F.R. § 488.438(f).
Petitioner has not offered evidence to challenge CMS’s findings concerning the duration of Petitioner’s noncompliance.  I find the non-immediate jeopardy level penalties, which covered a period of about three weeks after the end of immediate jeopardy, to be reasonable both in amount and in duration.  There is no evidence showing that Petitioner completely rectified its noncompliance prior to November 3, 2016.


          /s/
        Steven T. Kessel

                      Administrative Law Judge
      1. Effective November 28, 2016, CMS revised and redesignated the requirements for skilled nursing facilities in Part 483 subpart B. Final Rule, Medicare and Medicaid Programs; Reform of Requirements for Long-Term Care Facilities, 81 Fed. Reg. 68,688, 68,848 (Oct. 4, 2016). I cite to the regulations in effect when the state agency performed the survey in question. back to note 1
                      2. The door to the resident’s room was a “dutch” door with the bottom half locked in the closed position. back to note 2
                      3. There is a reference to bipolar disorder in Resident # 5’s clinical record. P. Ex. 1 at 1. However, there is no clinical assessment justifying that statement. The record is devoid of any evidence to suggest that a psychiatrist or a psychologist diagnosed the resident to be suffering from bipolar disorder. See, e.g., P. Ex. 4 at 2 (listing diagnoses but not listing bipolar disorder); CMS Ex. 5 at 29 (same; box on form to indicate diagnosis of “Manic Depression (bipolar disease)” unchecked). On the Consent for Psychoactive Medication Therapy form, which the resident’s guardian had not signed, the “conditions treated” were listed as “[c]ombative” and “impulse control,” while “[b]ipolar [d]isorder” was not a listed condition being treated despite its presence among the options. CMS Ex. 5 at 87. back to note 3 Back to top
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