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                              Fullerton Healthcare & Wellness Centre, LP d/b/a The Pavilion at Sunny Hills, DAB CR5691 (2020)
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Fullerton Healthcare & Wellness Centre, LP d/b/a The Pavilion at Sunny Hills, DAB CR5691 (2020)








  
  
    

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





Fullerton Healthcare & Wellness Centre, LP
	d/b/a The Pavilion at Sunny Hills,
	(CCN: 55-5733),
	Petitioner,
v.
Centers for Medicare & Medicaid Services,
	Respondent.
Docket No. C-18-17Decision No. CR5691August 25, 2020

        
              
    

      DECISION
As explained herein, I find in favor of Respondent, the Centers for Medicare & Medicaid Services (CMS), against Petitioner, Fullerton Healthcare & Wellness Centre, LP d/b/a The Pavilion at Sunny Hills (Fullerton), and sustain the imposition of an $11,005 per-instance civil money penalty.
I.    Background
Fullerton is a skilled nursing facility doing business in Fullerton, California, certified by and participating in the Medicare/Medicaid programs.  As a result of an abbreviated survey conducted by the California Department of Public Health (CDPH) on July 26, 2017, CMS found Fullerton to be substantially noncompliant with Tag F309 (42 C.F.R. §§ 483.24 and 483.25(k)(l)1
 – provide care/services for highest well-being) at the “G”
Page 2
scope/severity level (indicating an isolated instance of noncompliance that causes actual harm that is not immediate jeopardy).2
  CMS Exhibit (Ex.) 1.
On August 8, 2017, CDPH advised Fullerton it therefore had recommended CMS:  (1) impose a civil money penalty; (2) terminate Fullerton’s provider agreement if the facility did not achieve substantial compliance by January 26, 2018; and (3) deny payment for new admissions (DPNA) beginning October 26, 2017 if Fullerton did not achieve substantial compliance with an acceptable plan of correction and subsequent revisit.  CMS Ex. 20.
On October 6, 2017,3
 Fullerton requested a hearing before an administrative law judge and I was designated to hear and decide this case.  On October 13, 2017, I issued an Acknowledgment and Pre-hearing Order (APHO) that set forth deadlines by which the parties were required to file their pre-hearing exchanges, including briefs, exhibits, witness lists, and the direct testimony of any witnesses identified.  APHO at 3.  The APHO specified that a hearing in this matter would only be deemed necessary if a party filed written direct testimony of a witness and the opposing party requested to cross-examine that witness.  *Id*. at 6, 7.
Page 3
On October 24, 2017, CMS imposed a per-instance civil money penalty of $11,005 for the deficiency identified under Tag F309 and notified the facility that it denied or withdrew approval for any facility-based nurse aide training and competency evaluation programs, as required by statute based on the amount of the civil money penalty that was assessed.4
  CMS Ex. 9 at 2.  CMS also acknowledged that CDPH had conducted a revisit survey on September 7, 2017 and found Fullerton had returned to substantial compliance as of that date.  *Id.*
CMS filed its pre-hearing exchange, including the written direct testimony of two witnesses, and a pre-hearing brief (CMS Br.).  Fullerton subsequently filed its pre-hearing exchange, including the testimony of four witnesses (six witnesses listed altogether), and a pre-hearing brief (P. Br.).  CMS moved for leave to file a reply, accompanied by its reply.  I grant CMS’s motion and accept its reply.  CMS also sought to cross-examine the four witnesses for whom Fullerton had submitted written direct testimony.  As a result, I scheduled a hearing to take place in this matter from August 22 to August 23, 2018.
On July 6, 2018, CMS withdrew its request to cross-examine Fullerton’s witnesses and asked that I decide the case on the written record.  CMS proposed that the parties be allowed to submit closing briefs by August 31, 2018.  With no objection from Fullerton, I canceled the hearing in this matter and permitted the filing of supplemental briefs.  I advised the parties I would decide the case based on the written record.  Civ. Remedies Div. P. § 19(d).  Both CMS and Fullerton filed closing briefs on August 31, 2018 (CMS Closing Br.; P. Closing Br.).
II.      Admission of Exhibits
CMS filed 21 exhibits in its pre-hearing exchange, identifying them as CMS Exhibits 1 through 21.  Fullerton filed 14 exhibits in its pre-hearing exchange, identified as Petitioner’s Exhibits 1 through 14.  There being no objection from either party, all exhibits are entered into the record.
III.     Statement of Issues
The issues presented are:
A. Whether Fullerton was in substantial compliance with 42 C.F.R. §§ 483.24 and
Page 4
483.25 (Tag F309) at the time of the survey completed in July 2017;5
 and
B. If Fullerton was not in substantial compliance, whether the civil money penalty imposed by CMS is reasonable.
IV.     Discussion
**A.       Applicable Legal Authority**
The Social Security Act (Act) sets requirements for skilled nursing facilities to participate in the Medicare program.  The Act authorizes the Secretary of the United States Department of Health and Human Services (Secretary) to promulgate regulations implementing those statutory provisions.  Act § 1819 (42 U.S.C. § 1395i-3).  The Secretary’s regulations are found at 42 C.F.R. pts. 483 and 488.
A facility must maintain substantial compliance with program requirements in order to participate in the program.  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 agencies to conduct periodic surveys to determine whether skilled nursing facilities are in substantial compliance with the participation requirements.  Act § 1864(a) (42 U.S.C. § 1395aa(a)); 42 C.F.R. § 488.10.  The Act also authorizes the Secretary to impose enforcement remedies against skilled nursing facilities that do not comply with the participation requirements.  Act § 1819(h)(2) (42 U.S.C. § 1395i-3(h)(2)).  The regulations specify the enforcement remedies that CMS may impose if a facility is not in substantial compliance.  42 C.F.R. § 488.406.  Among other enforcement remedies, CMS may impose a per-instance civil money penalty for each instance of noncompliance.  42 C.F.R. § 488.430(a).  The authorized range for a per-instance civil money penalty is $1,000 to $10,000, adjusted annually for inflation.  42 C.F.R. § 488.438(a)(2).6
  In 2017, the applicable range was $2,097 to $20,965.  45 C.F.R. § 102.3.
Page 5
If CMS imposes one or more enforcement remedies against a skilled nursing facility based on a noncompliance determination, the facility may request a hearing before an administrative law judge (ALJ) to challenge the noncompliance finding and enforcement remedies.  Act §§ 1128A(c)(2), 1866(h); 42 C.F.R. §§ 488.408(g), 488.434(a)(2)(viii), 498.3(b)(13).  However, the facility may not appeal CMS’ choice of remedies.  42 C.F.R. § 488.408(g)(2).
CMS has the burden to come forward with evidence sufficient to make a *prima facie* case that Fullerton is out of substantial compliance with participation requirements to establish a basis to impose an enforcement remedy.  *See, e.g., Evergreene Nursing Care Ctr.*, DAB No. 2069 at 7 (2007).  If CMS makes this *prima facie* showing, then Fullerton bears the ultimate burden of persuasion as to whether it substantially complied.  In other words, Fullerton must show, by a preponderance of the evidence that it was in substantial compliance with program participation requirements.  *Id*.  Fullerton has both the burden of coming forward and the burden of persuasion as to any affirmative defense.  *Evergreene Nursing Care Ctr.*, DAB No. 2069 at 7; *Batavia Nursing & Convalescent Inn*, DAB No. 1911 (2004), *aff’d, Batavia Nursing & Convalescent Ctr.* *v. Thompson*, 129 F. App’x 181 (6th Cir. 2005).
**B.       Fullerton’s challenge to the validity of the July 26, 2017 survey is without merit.**
Fullerton first challenges the validity of the July 26, 2017 survey, arguing it was invalid because it was conducted by only one surveyor rather than a multidisciplinary team of professionals.  P. Br. at 11, citing 42 C.F.R. § 488.314 (requiring surveys be conducted by an interdisciplinary team including a registered nurse); *Avon Nursing Home*, DAB CR4670 (2016) (concluding no basis for the imposition of remedies existed because the survey team did not include a registered nurse).
CMS responds that complaint surveys are not required to be conducted by a multidisciplinary team,7
 explaining that while section 1819(g)(2)(E) of the Act explicitly requires a team of surveyors for standard recertification surveys, no such requirement is imposed in the case of complaint surveys.  CMS correctly observes the Departmental Appeals Board (Board) vacated and remanded the *Avon* decision cited by Fullerton, rejecting the proposition that CMS could not impose a remedy for deficiencies discovered by a survey team that did not conform to statutory requirements.8
  *Avon Nursing Home*, DAB No. 2830 at 9-15 (2017).
Page 6
Instead, the regulations are clear that inadequacies in survey performance do not relieve a facility from meeting all the requirements of program participation or invalidate adequately documented deficiencies.  42 C.F.R. § 488.318(b).  As the Board reasoned in *Avon*,
allegations of inadequate survey performance are irrelevant to ALJ or Board review of CMS’s noncompliance and remedy determinations.  (internal citations omitted).  The Board’s holdings in this area emphasize that, under the governing administrative appeal regulations, the ultimate issue before an ALJ is not how the state agency performed the survey or what process it followed to reach its conclusions, but ‘whether the *evidence* as it is *developed before the ALJ* supports’ CMS’s independent ‘finding of noncompliance’ under the relevant participation requirements.  (internal citations omitted). . . . Because the ALJ reviews CMS’s noncompliance determination de novo, an allegation that the state survey agency used improper methods or personnel to make its findings and conclusions is irrelevant, except to the extent that the state agency’s survey practices undermine the credibility of evidence that CMS identifies as supporting the noncompliance determination.
DAB No. 2830 at 11-12 (emphasis in original).
The Board emphasized “the issue here is not whether *the state survey agency’s* findings are documented and supportable but whether *CMS* has substantiated *its*determination of noncompliance based on the evidence submitted during the administrative appeal.”  *Id.*at 14 (emphasis in original).  Thus, any alleged irregularities in the survey process are irrelevant to my de novo review of whether Fullerton was substantially noncompliant with Medicare participation requirements.
Page 7
**C.       CMS has established by a preponderance of the evidence that Fullerton failed to substantially comply with 42 C.F.R. §§ 483.24 and 483.25, Tag F309, when Fullerton failed to recognize that Resident 2 had a significant change in condition requiring immediate physician notification.**
**1.  Relevant Facts**
Resident 2, a 93-year-old female, was admitted to Fullerton from the hospital on November 10, 2016.  Her diagnoses at admission included surgical repair of a right hip fracture due to a fall, unspecified abnormalities of gait and mobility, generalized muscle weakness, age-related osteoporosis, and unspecified interstitial pulmonary disease.  CMS Ex. 4 at 1.  Facility staff assessed Resident 2 to be at moderate risk for falls.  P. Ex. 2.****They noted she had fallen one to two times within the last six months, was prescribed narcotic medication, and required hands-on assistance to move from place to place.  *Id*.  A November 10, 2016 admission note stated Resident 2 was alert, verbally responsive, and able to make simple needs known, but had episodes of forgetfulness secondary to dementia.  CMS Ex. 4 at 141.
On November 28, 2016, at approximately 2:10 a.m., Resident 2 had an unwitnessed fall.  According to the progress notes and Fullerton’s incident report, Certified Nursing Assistant (CNA) Amabel Visitacion heard the charge nurse call for help from Resident 2’s room, where she found the resident on the floor lying on her left side in front of the bathroom.  P. Ex. 8 at 1; CMS Ex. 4 at 121.****Resident 2 denied hitting her head when she fell.  *Id*.  The RN Supervisor and CNA in charge assessed Resident 2 and found no bumps to her head, or any skin tears or redness to her elbows, knees, back, hip, or any other part of her body.  *Id*.
Resident 2 was able to move her left lower extremity and upper extremities without discomfort.  P. Ex. 8 at 1; CMS Ex 4 at 121.****She was able to minimally move her right lower extremity, but complained of moderate hip pain.  *Id.*****After being transferred back to bed, Resident 2 explained that she fell attempting to go to the bathroom.  *Id.*  She denied hitting her head.  *Id.* ****She was alert and able to verbalize simple needs but had episodes of confusion.  *Id*. Staff immobilized Resident 2’s legs with an abductor pillow.  At 2:38 a.m., Resident 2 was administered a 325 mg. Norco tablet for moderate pain.  *Id*.  Because there were no witnesses to her fall, Fullerton conducted neurological checks (neuro checks) of Resident 2.9
  P. Ex. 8; CMS Ex. 4 at 121, 123.
Page 8
Around 3:00 a.m., Fullerton’s staff paged Resident 2’s physician, Dr. Carl Buckhorn,  and shortly thereafter notified Resident 2’s daughter her fall.  CMS Ex. 4 at 123**.**At 3:30 a.m., a nurse spoke with Dr. Buckhorn and informed him of Resident 2’s fall and her condition.  *Id*.; s*ee* P. Ex. 8 at 4.  The nurse suggested that Resident 2 be transferred to the ER, but Dr. Buckhorn instead ordered X-rays of Resident 2’s right hip and femur.  CMS Ex. 4 at 88, 123; *see* CMS Ex. 4 at 121; P. Ex. 8 at 1.  Resident 2’s daughter and other family members arrived at the facility around 3:30 a.m.  CMS Ex. 2 at 25; CMS Ex. 4 at 123.
Fullerton’s staff apparently initiated neuro checks in accordance with its policy relating to response to falls.  In addition, Dr. Buckhorn ordered neuro checks to be performed for 72 hours secondary to the resident’s unwitnessed fall.  CMS Ex. 4 at 88.
Fullerton’s nursing staff conducted neuro checks of Resident 2 beginning at 2:10 a.m., documenting the findings on a form titled “Neurological Flow Sheet.”  *Id.*at 155.  After the 2:10 a.m. neuro check, nursing staff conducted checks thereafter at 2:25 a.m., 2:40 a.m., 2:55 a.m., 3:25 a.m., 3:55 a.m., 4:55 a.m., 5:55 a.m., 6:55 a.m., 7:55 a.m., and 11:55 a.m.  *Id.*  For each neuro check, the Neurological Flow Sheet required the nurse to document the resident’s level of consciousness, movement, hand grasps, pupil size, pupil reaction, speech, vital signs (blood pressure, pulse, respiration, temperature), and pain level.  The form also required the nurse performing the neuro check to initial his or her findings.  *Id*.
For each of the nine neuro checks conducted from 2:10 a.m. through 6:55 a.m. on November 28, 2016, nursing staff documented that Resident 2’s level of consciousness was “1,” indicating that she was “fully conscious – awake, aware, oriented.”  During this time span, a nurse also documented neuro checks showed that Resident 2’s pupils measured 3 mm, and assessed her movement, hand grasps, pupil reaction, and speech as “1,” meaning Resident 2 was able to move all extremities and exhibited equal, strong hand grasps, brisk pupil reaction, and clear speech.  *Id.*Resident 2 reported a pain level of 5 out of 10 through the 3:25 a.m. neuro check, which decreased to 4 and then 3 at the 3:55 a.m. and 4:55 a.m. checks, respectively.  *Id*.  From 5:55 a.m. through the 11:55 a.m. neuro check, Resident 2 reported a pain level of 0.  *Id*.
At the 7:55 a.m. neuro check, LVN Lovely Cachoa documented a change in Resident 2’s level of consciousness to “3,” meaning she was “obtund – very drowsy, responds to touch stimuli.”  CMS Ex. 4 at 155. ****LVN Cachoa noted Resident 2 continued to exhibit a “1” in the areas of movement and hand grasps, and her pupils remained at 3 mm with brisk reaction.  The box for “speech” was left blank.  *Id*.  Neither LVN Cachoa nor any other member of Fullerton’s staff notified Resident 2’s physician of this change in her level of consciousness.  CMS Ex. 17 at 7.
Page 9
A CNA delivered breakfast to Resident 2 at approximately 8:00 a.m., but she was asleep.  Resident 2’s daughter attempted to feed Resident 2, but the resident was very drowsy and could hardly stay awake.  CMS Ex. 17 at 7-8.  Resident 2 kept chewing on a slice of toast but had no other food or drink.  *Id*. at 8.  At 9:50 a.m., LVN Cachoa was unable to administer medication to Resident 2 because she was still sleeping.  *Id*.  Resident 2 was still asleep at 10:40 a.m. when a CNA entered to offer her a shower.  *Id*.
On November 28, 2016, around 10:54 a.m., LVN Jane Munoz reported the results of Resident 2’s hip and pelvis X-rays to Dr. Buckhorn.  CMS Ex. 4 at 119.  When LVN Munoz informed Dr. Buckhorn that Resident 2’s daughter wished to speak with him, Dr. Buckhorn advised he would visit Resident 2 when he came in later that day.  *Id*.  Dr. Buckhorn was not scheduled to arrive at the facility until 2 p.m.  *Id*.  LVN Munoz admitted that when she spoke to Dr. Buckhorn, she did not mention the results of Resident 2’s 7:55 a.m. neuro check.  CMS Ex. 17 at 9.
At the 11:55 a.m. neuro check LVN Munoz noted Resident 2’s level of consciousness was “4,” indicating “stupor – responds only to painful stimuli.”  CMS Ex. 4 at 155.****Resident 2 was unable to move her extremities and was not able to perform hand grasps.  *Id*.
Around noon, a CNA notified LVN Munoz that Resident 2 was lethargic and her family was concerned.  CMS Ex. 4 at 119**.**The nurse observed Resident 2 was sleeping and did not respond to verbal or tactile stimuli.  *Id*.**** Although Resident 2 had a pulse and was breathing, she was not able to follow commands, not able to open her eyes, and was unable to wake up.  *Id*.  RN Supervisor Beatriz Guadron was called to the room.  *Id.*at 118, 119.  When Nurse Guadron asked Resident 2’s daughter and grandson what they wished to do, noting that Resident 2 had a “do not resuscitate” order in place, they asked that Dr. Buckhorn examine Resident 2.  *Id*.  Nurse Guadron and LVN Munoz recommended that Resident 2 be sent to the ER for evaluation due to her lethargy, and Resident 2’s daughter and grandson agreed.  *Id*.  Staff called a code blue to the resident’s room around 12:05 p.m. and called 911.  *Id*.****At around 12:10 p.m., paramedics arrived to transport Resident 2 to the hospital.  At 12:20 p.m., a member of Fullerton’s staff left a voice mail message for Dr. Buckhorn concerning Resident 2.  *Id*.
Resident 2 was admitted to the hospital on November 28, 2016.  CMS Ex. 4 at 91.  A CT scan revealed a “very large,” “3.5 cm right-sided acute subdural” hematoma.  CMS Ex. 4 at 102, 104, 107.  Resident 2 died on November 30, 2016, her cause of death listed as “massive subdural hematoma, non-traumatic.”  CMS Ex. 4 at 107, 167.
During the survey that followed, Surveyor Cynthia Sandoval interviewed LVN Cachoa, who stated that Resident 2 was asleep when she performed the 7:55 a.m. neuro check and did not fully wake up.  CMS Ex. 17 at 6-7. ****When LVN Cachoa asked Resident 2 to squeeze two of her fingers, “Resident 2 did not respond or grasp at all.”  *Id*. at 6.  LVN Cachoa told Surveyor Sandoval that “Resident 2 did not move her legs at all when [she]
Page 10
asked her to do so.”  *Id*.  When Surveyor Sandoval asked LVN Cachoa to explain why she had documented that Resident 2 exhibited equal, strong hand grasps and had been able to move her extremities at the 7:55 a.m. neuro check, LVN Cachoa reported she “did not have an explanation for this discrepancy.”  *Id.* at 6.  LVN Cachoa also informed Surveyor Sandoval that “she never saw Resident 2’s eyes open during her shift, which began at 7:00 a.m. on November 28, 2016.”  *Id.* at 7.  When asked why she left the box for speech blank on the neuro check flow sheet, LVN Cachoa stated that Resident 2 had not spoken to her.  LVN Cachoa did not realize that she had left the box blank.  *Id.*
Surveyor Sandoval asked LVN Cachoa whether she recognized that Resident 2 had experienced a significant change in her condition based on her assessment that Resident 2’s level of consciousness had worsened from a “1” to a “3,” and LVN Cachoa responded that she had not.  LVN Cachoa stated that “she thought Resident 2 was just sleepy because she had taken Norco,” though she conceded “she had never seen Resident 2 act drowsy in the past . . . when she had taken pain medication.”  *Id.* at 7.  LVN Cachoa admitted that she did not inform Resident 2’s physician of the resident’s change in her level of consciousness.  CMS Ex. 1 at 15; CMS Ex. 17 at 7.
**2.  Analysis**
The regulations at 42 C.F.R. §§ 483.24 and 483.25 encompassed by Tag F309 set forth expectations for the quality of life and care that residents in a skilled nursing facility should receive.  42 C.F.R. § 483.24 requires a skilled nursing facility to provide each of its residents with the necessary care and services to attain or maintain the highest practicable physical, mental, and psychosocial well-being, consistent with that resident’s comprehensive assessment and plan of care, while 42 C.F.R. § 483.25 requires a skilled nursing facility to provide each of its residents with treatment and care in accordance with professional standards of practice, the resident’s comprehensive plan of care, and the resident’s choices.
There is no controversy that a facility’s obligation to provide necessary care and services includes immediately notifying a resident’s physician when that resident experiences a significant change in condition.  *Magnolia Estates Skilled Care*, DAB No. 2228 at 19-21 (2009) (“Failure to notify a physician about a clinical condition that required immediate physician consultation and intervention in order to mitigate a risk of infection and more serious physical injury is clearly a failure to provide ‘necessary care and services’ to ensure that a resident attains or maintains her highest practicable well-being.”); *see also Spring Meadows Health Care Ctr.*, DAB No. 1966 (2005).10
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Fullerton’s own “Change of Condition Notification” policy broadly mirrors this obligation, requiring physician notification for “any sudden and marked adverse change . . . manifested by signs and symptoms different than usual [which] denote a new problem, complication or permanent change in status and require a medical assessment, coordination and consultation.”  P. Ex. 7 at 1.
In addition, the facility’s Neurological Flow Sheet form used to track a resident’s neurological state following a head injury provides:
Instruction:  The Licensed Nurse will complete the Neurological Flow Sheet for any un-witnessed fall, or witnessed fall with suspected or known head injury for seventy-two (72) hours following the fall.  The Attending Physician will be informed *if there is a deviation from the resident’s normal status* for further instruction.
CMS Ex. 4 at 155 (emphasis added).
The requirement in the Neurological Flow Sheet to notify a resident’s physician for any deviation from a resident’s normal status reflects a more specific standard for physician notification in the 72-hour period following a fall that involved an actual or possible head injury than otherwise mandated by the facility’s general policy, which only requires physician notification for a “sudden and marked adverse change” in a resident’s condition.  *Compare*CMS Ex. 4 at 155 *with* P. Ex. 7 at 1.
At minimum, this suggests the facility recognized and implemented a heightened duty to scrutinize a resident for any deviation and err on the side of contacting a resident’s physician during the 72-hour period following possible head trauma resulting from a fall.  Such a policy seems eminently reasonable.  As Surveyor Sandoval explained, neuro checks are particularly important for patients with possible head trauma, particularly those like Resident 2, who had memory issues related to dementia and may not have remembered hitting her head.  CMS Ex. 17 at 4-5.  As a result, I have no difficulty finding Fullerton’s physician notification policies demonstrate its attempt to conform to the regulations at issue here, and therefore I will apply that policy in assessing the facility’s compliance.  *See Hanover Hill Health Care Ctr.*, DAB No. 2507 at 6 (2013) (observing “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”).
The question before me is when a significant change in Resident 2’s condition occurred that triggered Fullerton’s duty under the regulations to notify her doctor and/or seek
Page 12
emergency services on her behalf.  CMS argues that such a change in condition was revealed at a neuro check that occurred at 7:55 a.m., when a member of Fullerton’s staff noted a change in Resident 2’s level of consciousness from “1” to “3” subsequent to a fall that occurred several hours earlier.  CMS Br. at 8-9, 11-13.
Fullerton responds that its staff properly monitored Resident 2’s neurological condition after her fall and that the resident’s drowsiness during the 7:55 a.m. neuro check was insufficient to trigger an obligation to alert her physician or take other action.  P. Br. at 9, 18-19.****According to Fullerton, Resident 2 did not exhibit a significant change in condition until the 11:55 a.m. neuro check, when staff noted changes in the resident’s pupil size and reactivity and then responded appropriately by calling 911.  *Id*. at 6-7, 16-17, 20; *see* P. Closing Br. at 2.
I find Fullerton’s argument unpersuasive.  The record before me reflects a significant change in Resident 2’s neurological condition occurred at 7:55 a.m. on November 28, 2016.  Neuro checks conducted from 2:10 a.m. through 6:55 a.m. showed Resident 2’s level of consciousness to be “1,” meaning she was “fully conscious – awake, aware, oriented.”  CMS Ex. 4 at 155.  In these earlier neuro checks, Resident 2 was able to move her extremities and exhibited equal, strong hand grasps and clear speech, while her pupils measured 3 mm with brisk reaction.  *Id*.
At the 7:55 a.m. neuro check, however, LVN Cachoa observed and documented a change in level of consciousness from “1” to “3,” meaning Resident 2 was “obtund – very drowsy, responds to touch stimuli.”  *Id.*  In addition, LVN Cachoa was not able to fully awaken Resident 2.  CMS Ex. 17 at 7.  Critically, Resident 2 was unable to respond when LVN Cachoa asked her to move her legs or squeeze her fingers.  *Id*. at 6.  Taken together, these changes clearly demonstrated a significant change in Resident 2’s condition that required notification of her physician.11
This conclusion is amply supported by the testimony of Surveyor Sandoval, who declared that a patient “whose neurological functioning is not impaired will wake up and respond promptly to stimulus, such as a nurse tapping the patient’s shoulder or speaking loudly to the patient.”  *Id*. at 7.  Surveyor Sandoval opined that LVN Cachoa should have recognized that Resident 2’s failure to completely wake up was in itself a significant change in condition requiring immediate physician notification and medical attention.  *Id.*I find Surveyor Sandoval’s unrebutted testimony in this regard to be fully credible.
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Fullerton makes several arguments in support of its contention that a significant change in Resident 2’s neurological condition did not occur until 11:55 a.m.  I address these in turn.  Fullerton first points out that at the 7:55 a.m. neuro check, LVN Cachoa documented Resident 2’s ability to move her extremities and demonstrate equal, strong hand grasps to support its contention that a change of consciousness level by itself did not indicate a significant change in her condition occurred.  P. Closing Br. at 12.  But Fullerton fails to address LVN Cachoa’s admission to Surveyor Sandoval that she had incorrectly documented neurological findings during that neuro check.  Specifically, LVN Cachoa admitted that while she had documented otherwise, Resident 2 was in fact unable to able to move her extremities or perform hand grasps at all.  CMS Ex. 17 at 6.
Fullerton has made no effort to contest LVN Cachoa’s admissions, which plainly undermine the findings she documented at Resident 2’s 7:55 a.m. neuro check.  Pointedly, the facility neither sought to rehabilitate her testimony nor introduce rebuttal testimony from another witness.  Nor did it exercise its right to cross-examine Surveyor Sandoval to undermine or impeach her recording of these hearsay statements.  In fact, the facility has submitted no evidence at all to refute Surveyor Sandoval’s memorialized recollection of LVN Cachoa’s statements during the survey.
Absent any effort by Fullerton to rebut these admissions, I find the 7:55 a.m. neuro check assessment findings recorded by LVN Cachoa, with the exception of Resident 2’s level of consciousness, do not accurately represent Resident 2’s neurological status at that time.12
  And while the facility does not appear to expressly argue it should not be held liable for LVN Cachoa’s conduct, any such argument would fail.  The Board has made plain that “[t]he facility acts through its staff, and is correspondingly responsible for their actions as employees . . . when a nurse acts within the scope of her employment, the ‘employer cannot disown the consequences of the inadequacy of the care provided by the simple expedient of pointing the finger at her fault, since she was the agent of her employer empowered to make and carry out daily care decisions.’”  *Royal Manor,*2005 WL 2046372 at 8 (July 28, 2005), quoting*Emerald Oaks,*DAB No. 1800 at 7 n.3 (2001).
Fullerton also argues a significant change did not occur at 7:55 a.m. because the neuro check at that time did not reveal a change in pupil size, contending that “[p]upil size and reaction is the most important factor in determining whether a resident has an intracranial
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bleed and is considered a ‘significant change of condition.’”  P. Br. at 16.  According to the facility, its staff appropriately determined that Resident 2 had a significant change in condition at the 11:55 a.m. neuro check because Resident 2 did not exhibit changes in pupil size and reaction until then.  *Id*. at 15, 16.
Fullerton’s argument is unpersuasive.  The facility offered no testimonial evidence in support of its contention that the most important variables indicative of a significant change in neurological condition following head trauma are pupil size and reaction.  None of Fullerton’s witnesses were apparently willing or able to testify that changes in pupil size and reaction would constitute the necessary neurological change in a resident’s condition following possible head trauma that would trigger physician notification.  P. Exs. 3, 4, 6, and 14.  Fullerton offered no medical expert testimony to corroborate this contention, instead relying on abstracts of scientific and medical journal articles about intracranial pressure and brain injury.  P. Closing Br. at 9-10, citing P. Exs. 9-11.
I have reviewed these exhibits, and find nothing to corroborate Fullerton’s claim that changes in pupil size and reaction are the most important and necessary indicators of serious neurological complications.  I find nothing to support the view that other neurological changes, such as a change in level of consciousness, are of lesser significance and could be ignored when performing a neuro check.  Instead, one source Petitioner cites makes plain that pupil size is useful to a neurosurgeon assessing whether a patient with known intracranial mass lesions requires surgical intervention or more conservative therapy; it does not suggest that a facility can ignore other neurological signs in deciding whether to contact a physician in the first place.  P. Ex. 9 at 2.
Fullerton next attempts to rely on other regulations and CMS’s State Operations Manual (SOM) to claim Resident 2 did not suffer a significant change in condition at 7:55 a.m.  Req. for Hearing at 6-7; P. Br. at 19; P. Closing Br. at 11.  Fullerton argues I should apply the definition of “significant change” found at 42 C.F.R. § 483.20(b)(2)(ii), which defines that phrase to mean a major decline that will not normally resolve itself absent intervention.  P. Br. at 18.  But Fullerton fails to acknowledge this regulation discusses conditions that would trigger a facility’s obligation to conduct a comprehensive resident assessment, not when to notify a resident’s physician of a change potentially requiring treatment.  42 C.F.R. § 483.20(b).  It should be clear the 14-day timeline afforded by that regulation for a facility to conduct a new comprehensive assessment of a resident following a major decline has nothing to do with when a facility must contact a resident’s physician to determine the need for immediate intervention following a significant change.13
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Fullerton’s reliance on interpretive guidance found in SOM is equally misplaced.  The facility first cites guidance concerning Tag F157 (notification of changes), which according to Fullerton14
 defines a “significant change” to require a decline in two or more areas.  P. Br. at 19, citing SOM at App. PP.  Even if that were true, and even if the facility had bothered to explain what it believes is meant by “areas” in this context or apply that definition to the facts before me, such guidance cannot supersede the regulations, which do not define significant changes for purposes of physician notification beyond “[a] significant change in the resident’s physical, mental, or psychosocial status (that is, a deterioration in health, mental, or psychosocial status in either life-threatening conditions or clinical complications).”  42 C.F.R. § 483.10(g)(14)(i)(B).
Certainly, both Fullerton’s general physician notification policy and its more specific one concerning neurological changes after a fall do not appear to have been modeled on the SOM’s guidance for Tag F157 deficiencies.  P. Ex. 7 at 1; CMS Ex. 4 at 155.  The facility does not explain why it never treated the SOM as dispositive guidance in fashioning its own policies if it truly believed the SOM to be authoritative in that regard.
Fullerton’s attempt to rely on SOM guidance related to Tag F325 to deny Resident 2 experienced a significant change warranting physician notification is similarly inapt.  That tag sets forth a definition of “clinically significant” change in relation to nutritional status that defines it to mean “effects, results, or consequences that materially affect or are likely to affect an individual’s physical, mental, or psychosocial well-being either positively by preventing, stabilizing, or improving a condition or reducing a risk, or negatively by exacerbating, causing, or contributing to a symptom, illness, or decline in status.”  P. Br. at 19; P. Closing Br. at 11; P. Ex. 12.  This definition clearly has no relevance outside the context of nutritional status.  For example, it defines “clinically significant” changes to include positive changes in condition, a circumstance which clearly would not require immediate physician notification.
Ultimately, Fullerton’s reliance on the SOM guidance pertaining to specific tags that are not at issue before me is plainly erroneous.  The facility was not cited for deficiencies under either Tag F157 or F325, which implicate different regulatory provisions than those relied upon by CMS to impose a penalty in this case.  Because those tags are not at issue, the SOM’s interpretive guidelines for them have no bearing on my analysis.  Furthermore, the SOM is neither a statute nor a regulation and is therefore not a binding source of authority.  The purpose of the SOM is to provide interpretive guidance for surveyors on the applicable law and regulations; it is not substantive authority with the
Page 16
force and effect of law.  *Kindred Transitional Care & Rehab – Greenfield*, DAB No. 2792 at 16 (2017).
Despite Fullerton’s efforts to redefine a “significant change” to better suit its litigation position, the record establishes Fullerton’s staff failed to recognize significant changes in Resident 2’s condition at 7:55 a.m. which triggered an obligation to notify her physician.  Specifically, her level of consciousness decreased from “1” to “3” and she was unable to move her extremities, respond to hand grasps, or completely awaken.  In the context of the 72-period following an unwitnessed fall, these changes were deviations in Resident 2’s neurological status that taken together were a significant change in her condition.  Facility staff should have recognized this significant change warranted immediate notification to her physician.  Their failure to do so resulted in a significant delay in evaluating Resident 2, during which time her condition deteriorated further.  I therefore conclude that by failing to immediately notify Resident 2’s physician of her change in condition at 7:55 a.m., Fullerton failed to provide her with necessary care, treatment, and services in accordance with professional standards of practice, in violation of its own notification policy and of 42 C.F.R. §§ 483.24 and 483.25.
**D.       CMS has established by a preponderance of the evidence that Fullerton failed to substantially comply with 42 C.F.R. §§ 483.24 and 483.25 based on its failure to follow Resident 2’s physician’s order regarding the use of an abductor pillow.**
CMS also alleges Fullerton failed to meet the demand of 42 C.F.R. §§ 483.24 and 483.25 to provide quality of care when its staff failed to follow an order from Resident 2’s physician ordering use of an abductor pillow15
 when the resident was in bed.  CMS Br. at 14-18; CMS Closing Br. at 9-12.
Again, there is no dispute that these regulations require a facility to comply with physician orders to provide a resident both necessary care and services to attain or maintain the highest practicable physical, mental, and psychosocial well-being as well as treatment and care in accordance with professional standards of practice, the resident’s comprehensive plan of care, and the resident’s choices.  *See Life Care Ctr. of Tullahoma*, DAB No. 2304 at 34 (2010), *aff’d, Life Care Ctr. Tullahoma v. Sec’y of U.S. Dept. of Health & Human Servs.*, 453 F. App’x 610 (6th Cir. 2011) (providing “necessary care and services” include those ordered by a physician).
The record shows that on November 10, 2016, Resident 2’s physician ordered the facility to provide an abductor pillow to her at all times while in bed due to her fractured right hip.  CMS Ex. 4 at 47, 79, 141.  Resident 2’s daughter visited Resident 2 around 7:00
Page 17
p.m. on November 27, 2016, the night before her unwitnessed fall.  CMS Ex. 16 at 2; CMS Ex. 17 at 10; *see* CMS Ex. 2 at 25.  She declared that Resident 2 did not have the abductor pillow between her legs when she arrived that evening.  CMS Ex. 16 at 2.  Resident 2’s daughter told a nurse that her mother needed the abductor pillow, and the nurse stated that she would place the pillow after she straightened the resident’s bed first.  *Id.*When Resident 2’s daughter returned to the facility around 3:30 a.m. on November 28, 2016 after being notified of her mother’s fall, she noticed that the abductor pillow was still on the chair where it had been the night before.  CMS Ex. 16 at 2-3.
CNA Visitacion, who made rounds around 11:00 p.m. on November 27, 2016, acknowledged to Surveyor Sandoval that Resident 2 was supposed to have the abductor pillow between her legs, but stated she did not place the pillow at that time because Resident 2 told her that she did not want it in place yet.  CMS Ex. 17 at 11; P. Ex. 6.  Fullerton’s Medication Administration Record indicates, however, that for the evening shift on November 27, 2016 and the day shift on November 28, 2016, the abductor pillow was in place on Resident 2 at all times while the resident was in bed.  CMS Ex. 4 at 26.
Fullerton does not dispute that its staff failed to apply an abductor pillow for Resident 2, or that it was required by the physician’s order.  The facility instead argues it was not at fault because Resident 2 had exercised her right to refuse treatment on the night of November 27, 2016.  P. Br. at 20.  Fullerton’s argument is unpersuasive.  While the regulations make clear a resident has the right to refuse treatment, *see* 42 C.F.R. § 483.10(c)(6), nothing in Resident 2’s treatment notes made by facility staff documents her refusal to use the abductor pillow.  CNA Visitacion’s testimony at best establishes Resident 2 temporarily declined placement, not that she refused it altogether.  CMS Ex. 17 at 11.
Even if Resident 2 had actually refused the pillow, it was incumbent upon Fullerton’s staff to either persuade her to reconsider the physician-ordered treatment or attempt other measures to accommodate the resident but provide the quality of care demanded by the regulations.  *See* *White Sulphur Springs*, DAB No. 2520 at 15 (2013), citing *Van Duyn Home & Hosp.,*DAB No. 2368 at 7-8 (2011) (explaining facilities are obliged to ensure a resident’s refusal of treatment is informed, his or her basis for refusal is addressed, and that the resident is offered alternatives).
But there is no evidence before me that shows Fullerton’s staff counseled Resident 2, inquired as to her reasons for her alleged refusal, or worked to develop an alternate treatment plan that protected her from the risk of suffering a hip dislocation.  By failing to comply with Resident 2’s physician’s order regarding the use of the abductor pillow or document either Resident 2’s refusal or any efforts to implement alternative measures, Fullerton failed to provide necessary treatment, care, and services to Resident 2 in violation of 42 C.F.R. §§ 483.24 and  483.25.
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**E.       The $11,005 per-instance civil money penalty imposed by CMS is reasonable.**
CMS imposed a per-instance civil money penalty of $11,005 for the noncompliance with 42 C.F.R. §§ 483.24 and 483.25(k).  Fullerton challenges both the basis for the penalty and the reasonableness of the amount imposed.  In determining the reasonableness of the penalty amount imposed by CMS, I look to the factors set forth at 42 C.F.R. §§ 488.438(f) and 488.404 (incorporated by reference into 42 C.F.R. § 488.438(f)(3)).  These factors include the seriousness of the deficiency, the facility’s compliance history, its financial condition, and its degree of culpability.
Neither party argues the facility’s financial condition to be a factor affecting the penalty amount.  Considering the remaining factors, I have no difficulty concluding Fullerton’s noncompliance was very serious.  It was Fullerton’s duty to monitor Resident 2’s neurological status following her fall and immediately notify her physician upon the discovery of any deviation from her normal status.  Fullerton’s staff, however, ignored several neurological changes exhibited by Resident 2 during the 7:55 a.m. neuro check, including her level of consciousness.  On a policy level, the facility understood that it was crucial to closely monitor a resident’s neurological condition in the time period following an unwitnessed fall.  Its neuro check forms were designed to ensure its staff evaluated multiple factors, not only pupil size and reaction, and required physician notification for a deviation in any of those factors.  Yet in practice, Fullerton’s staff inaccurately documented neurological findings, including which staff member completed which evaluation.  As a result, facility staff did nothing until 11:55 a.m., by which time Resident 2 had deteriorated even further.  Fullerton plainly failed to properly evaluate Resident 2’s condition and notify her physician, as required by its own policy, leading to an hours-long delay in providing her potentially life-saving medical attention in a timely manner.  The seriousness of this noncompliance cannot be overstated.
With respect to facility history, CMS submitted Fullerton’s Certification and Survey Provider Enhanced Reports (CASPER) report, which includes a synopsis of survey findings for the period October 2013 through February 6, 2017, and the SODs from surveys conducted on January 20, 2016 and February 6, 2017.  CMS Exs. 18, 19, and 21.  These documents show that Fullerton had a significant history of noncompliance prior to the July 26, 2017 survey at issue.  At the January 20, 2016 survey, Fullerton was cited for 23 deficiencies at a “D” scope/severity level or higher, including a prior deficiency citation under Tag F309.  CMS Ex. 18.  At the February 6, 2017 survey, Fullerton had 20 citations at a “D” scope/severity level or higher, including a prior deficiency citation under Tag F309.  CMS Ex. 19 at 2-72.  Fullerton was also cited for violating numerous deficiencies at surveys conducted in October 2013 and December 2014, including citations under Tag F309 at the “K” scope/severity level (October 2013) and at the “D” scope/severity level (December 2014).  CMS Ex. 21 at 2.
Page 19
Fullerton argues that none of its past deficiencies resulted in a resident suffering a subdural hematoma which allegedly resulted in the resident’s death.  P. Closing Br. at 14.  While this may be true, this does not detract from the fact that the facility has a significant noncompliance history that includes previous citations under Tag F309 in 2013, 2014, 2016, and 2017.  It is unfortunate that a resident death is apparently necessary for the facility to take its compliance obligations seriously.
I have also considered Fullerton’s culpability and find it significant.  Fullerton failed to recognize Resident 2’s change in condition at 7:55 a.m. and failed to immediately notify her physician, waiting four hours before taking any action.  Of notable concern, before me Fullerton attempts to avoid accountability by blaming Resident 2’s family members for not insisting she be sent to the emergency room earlier.  P. Br. at 19-20; P. Closing Br. at 12. ****Fullerton also blames Resident 2’s physician for not ordering her transfer to the hospital when he was first notified of her fall.  P. Br. at 3, 21; P. Closing Br. at 14.  It should be unnecessary for me to point out that the regulations do not require untrained family members of residents in a skilled nursing facility to exercise better medical judgment than facility staff.  And the primary mistake made by Resident 2’s physician appears to have been trusting the facility to follow its own policies and carefully monitor her neurological condition.  For failing to do so, the facility is clearly culpable here.
The authorized range for a per-instance civil money penalty is $1,000 to $10,000, with appropriate adjustments for inflation.  42 C.F.R. § 488.438(a)(2).  For violations occurring in 2017, the applicable range was $2,097 to $20,965.  45 C.F.R. § 102.3.  Given the seriousness of Fullerton’s noncompliance, its significant history of prior deficiency citations, and its high degree of culpability, I find CMS’ imposition of an $11,005 per-instance civil money penalty, which is in the middle of the authorized range, to be more than reasonable.
V.       Conclusion
I affirm CMS’ determination and find its imposition of an $11,005 per-instance civil money penalty to be reasonable.


          /s/
        Bill Thomas

                      Administrative Law Judge
      1. Effective November 28, 2016, CMS revised and reorganized many of the participation requirements codified in 42 C.F.R. pt. 483.  81 Fed. Reg. 68,688 (Oct. 4, 2016).  CMS subsequently modified its deficiency tags to conform to the reorganized regulations on June 30, 2017, though the changes to the tags did not become effective until November 28, 2017.  Ctrs. for Medicare & Medicaid Servs., Center for Clinical Standards and Quality/Survey & Certification Group, Revisions to State Operations Manual (SOM) Appendix PP for Phase 2, F-Tag Revisions, and Related Issues, available at   https://www.cms.gov/Medicare/Provider-Enrollment-and-Certification/SurveyCertificationGenInfo/Downloads/Survey-and-Cert-Letter-17-36.pdf (eff. Nov. 28, 2017).  In the record before me, CMS and CDPH cite Tag F309, which corresponded to quality of life regulations prior to the November 2016 reorganization but was still technically in effect at the time of the survey.  However, I review the alleged deficiency under the quality of life regulations, and there is no dispute as to the applicable regulation here.  The change in tag designation has no effect on the outcome but when necessary, I cite to Tag F309 as it was in effect at the time of the survey. back to note 1
                      2. CMS and state survey agencies consider the scope and severity of deficiencies when selecting enforcement remedies.  The scope and severity level is designated by letters A through L, and CMS summarizes these levels in a matrix published in Chapter 7 of the State Operations Manual (SOM), available at https://www.cms.gov/Regulations-and-Guidance/Guidance/Manuals/Downloads/som107c07pdf (last rev. Nov. 16, 2018). back to note 2
                      3. Fullerton sought review before me relying on the August 8, 2017 notice of deficiency issued by CDPH.  P. Req. for Hearing, Att. 1.  But that notice did not impose remedies; it instead advised the facility of CDPH’s recommendation that CMS impose remedies.  The regulations do not permit a facility to seek such a hearing absent the actual imposition of remedies.  42 C.F.R. § 498.3(b)(13) (providing “a finding of noncompliance leading to the imposition of enforcement remedies specified in [42 C.F.R.] § 488.406 [e.g., CMPs and DPNA]” is an appealable initial determination).  When Fullerton filed its request for hearing, no such remedy had yet been implemented.  However, CMS did impose remedies on October 24, 2017, and perhaps correctly recognizing the lack of economy in seeking dismissal where the facility could remedy the defect by simply refiling its appeal, CMS subsequently litigated the merits of Fullerton’s noncompliance without mention of the facility’s premature hearing request, thus waiving any objection. back to note 3
                      4. Although CMS denied approval of nurse aide training, Fullerton does not claim to have had such a program.  Nor has it argued the impropriety of this remedy.  Therefore, I will not discuss this penalty further. back to note 4
                      5. The Statement of Deficiencies (SOD) alleges Fullerton’s noncompliance under 42 C.F.R. §§ 483.24 and 483.25(k),(l).  Subsections (k) and (l) of 42 C.F.R. § 483.25 relate to provision of pain management and dialysis.  Fullerton correctly observed in its hearing request that the state agency “did not make any findings as to pain management or dialysis” and that Resident 2 was not a dialysis patient.  P. Req. for Hearing at 2.  CMS has not disputed these statements.  It appears the state agency cited subsections (k) and (l) of 42 C.F.R. § 483.25 in error, and I have not considered them here. back to note 5
                      6. Civil money penalty amounts increased, effective February 3, 2017, for deficiencies occurring after November 2, 2015.  See 82 Fed. Reg. 9,174, 9,175 (Feb. 3, 2017).  The range for a per-instance CMP in effect at the time of the survey at issue here was $2,097 to $20,965.  42 C.F.R. § 488.438(a)(2); 45 C.F.R. § 102.3; 82 Fed. Reg. at 9,175. back to note 6
                      7. Although CMS characterizes the July 26, 2017 survey as a complaint survey, it is more accurately described as an abbreviated survey that arose out of a complaint. back to note 7
                      8. Fullerton made no reference to the Board’s decision in Avon in its briefing.  Citing a non-precedential decision that has been reversed and remanded but failing to apprise me of that fact could be viewed as a violation of the ethical rule requiring attorneys to display candor towards a tribunal.  Fullerton’s counsel should take greater care before employing legal arguments that have been explicitly rejected by the Board or other appellate bodies.  See State Bar of California, Cal. Rules of Prof’l Conduct, r. 3.3(a)(2) (eff. Nov. 1, 2018) (“A lawyer shall not. . .fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel, or knowingly misquote to a tribunal the language of a book, statute, decision or other authority.”), available at http://www.calbar.ca.gov/Portals/0/documents/rules/Rule_3.3-Exec_Summary-Redline.pdf; see also Am. Bar Ass’n, Model Rules of Prof’l Conduct, r. 3.3(a)(2), available at https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_3_3_candor_toward_the_tribunal/ (last visited Aug. 11, 2020). back to note 8
                      9. As Surveyor Sandoval explained, “Neuro checks are an exam of the resident’s level of consciousness, movement, hand grasps, left and right pupil size and reaction, speech, pain level, and vital signs . . . Neuro checks were necessary in this case because Resident 2 had an unwitnessed fall.  When a fall is unwitnessed, it is possible that a resident hit her head, and head trauma could make a resident forget that she hit her head.”  CMS Ex. 17 at 4. back to note 9
                      10. Indeed, the Secretary’s regulations explicitly require facilities to “immediately consult” a resident’s physician if a “significant change” in a resident’s physical, mental, or psychosocial status occurs.  42 C.F.R § 483.10(g)(14).  It is unclear why CMS did not cite the facility for violation of this regulation, but it is sufficient for me to note that whether under this regulation or more broadly under 42 C.F.R. §§  483.24 and 483.25, a skilled nursing facility is obliged to immediately notify a resident’s physician if a resident’s condition significantly changes. back to note 10
                      11. Fullerton seeks to diminish the significance of the change in Resident 2’s consciousness level by claiming she was merely “very drowsy” from pain medication and being awake for several hours.  P. Br. at 15-16.  However, LVN Cachoa conceded “she had never seen Resident 2 act drowsy in the past . . . when she had taken pain medication.”  CMS Ex. 17 at 2.  In any event, as I have explained, the change in level of consciousness was not the only indicator of a significant change in Resident 2’s condition. back to note 11
                      12. The reliability of the facility’s neuro checks as a whole is questionable.  It is unclear who actually performed the nine neuro checks prior to 7:55 a.m.  LVN Yandoc initialed these neuro checks, but later claimed RN Supervisor Diana Malaiba actually performed them.  CMS Ex. 17 at 5.  Meanwhile, Nurse Malaiba stated she only performed the first neuro check at 2:10 a.m. and that LVN Yandoc performed the others.  Id. at 6.  It is not necessary for me to resolve this discrepancy, but the facility staff’s nonchalant approach to documenting the neuro checks coupled with LVN Cachoa’s failure to accurately document a critical neuro check do not paint the facility’s approach to neurological evaluation of a resident following an unwitnessed fall in a particularly good light. back to note 12
                      13. Even if I agreed to apply this definition, it would hardly improve Fullerton’s position.  As I discussed previously, Resident 2 exhibited several neurological changes at 7:55 a.m. on November 28, 2016 that in combination could easily be found to demonstrate a “major decline” in her neurological condition. back to note 13
                      14. Appendix PP to the SOM is 749 pages long.  SOM, App. PP, Rev. 173 (Nov. 22. 2017), available at https://www.cms.gov/Regulations-and-Guidance/Guidance/Manuals/downloads/som107ap_pp_guidelines_ltcf.pdf.  Counsel for Fullerton may wish to consider pin citations to support its arguments, rather than expecting me to survey enormous documents in an effort to divine evidence to support their claims.  U.S. v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991) (“Judges are not like pigs, hunting for truffles buried in briefs.”). back to note 14
                      15. An abductor pillow is a cushioned wedge placed between a patient’s legs to maintain position and prevent hip joint dislocation, a possible complication after hip surgery.  CMS Ex. 17 at 10. back to note 15 Back to top
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