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                              Longview Hill Nursing and Rehabilitation Center, DAB CR5961 (2021)
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Longview Hill Nursing and Rehabilitation Center, DAB CR5961 (2021)








  
  
    

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





Longview Hill Nursing and Rehabilitation Center
(CCN:  455684),
Petitioner,

v.

Centers for Medicare & Medicaid Services.
Docket No. C-21-416Decision No. CR5961October 19, 2021

        
              
    

      DECISION

I enter summary judgment in favor of the Centers for Medicare & Medicaid Services (CMS) and against Petitioner, Longview Hill Nursing and Rehabilitation Center, a skilled nursing facility.  Undisputed material facts establish that Petitioner failed to comply with Medicare participation requirements and that Petitioner’s noncompliance was so egregious as to comprise immediate jeopardy for residents of Petitioner’s facility.  I sustain CMS’s determination to impose the following remedies:

A civil money penalty of $11,300 for each day of a period that began on July 28, 2020, and that continued through July 30, 2020.
	A civil money penalty of $1,300 for each day of a period that began on July 31, 2020, and that continued through August 1, 2020.I. Background

CMS filed a total of 25 exhibits, identified as CMS Ex. 1-CMS Ex. 25, in support of its motion. Petitioner filed four exhibits, identified as P. Ex. 1-P. Ex. 4, in opposition.  Petitioner also objected to some of CMS’s exhibits.

**Page 2**

In deciding whether summary judgment may issue I must rely only on material facts that are undisputed.  I do so here.  It is unnecessary that I receive the parties’ exhibits into evidence to decide the motion, and it is also unnecessary that I rule on Petitioner’s objections, because I rely only on facts that the parties do not dispute. ****

I note, however, that a party does not create a fact dispute simply by saying that it disputes facts.  In opposing a motion for summary judgment, the party must offer facts that call into question the truthfulness of the facts relied on by the moving party.  To be meaningful, challenges to facts must raise disputes that are material.

II. Issues, Findings of Fact and Conclusions of Law

**A. Issues**

The issues are:  whether Petitioner failed to comply with Medicare participation requirements; whether Petitioner offered facts to show that CMS’s determination of immediate jeopardy level noncompliance was clearly erroneous; and whether CMS’s remedy determinations are reasonable.

**B. Findings of Fact and Conclusions of Law**

This case centers on the care that Petitioner’s staff provided to a resident who is identified as Resident # 1. CMS alleges that the staff failed to consult with the resident’s treating physician when this resident manifested significant changes in his medical condition on July 28, 2020 and failed to administer cardio-pulmonary resuscitation (CPR) when the resident was found to be unresponsive very early on the morning of July 29, 2020.

CMS alleges that these failures by Petitioner’s staff violated the requirements of the following regulations:  42 C.F.R. § 483.10(g)(14), which requires a facility staff to immediately consult with a resident’s treating physician whenever a resident manifests a significant change in his or her medical condition; 42 C.F.R. § 483.24(a)(3), which requires a facility staff to provide personal support including CPR to any resident who is in need of such care; and 42 C.F.R. § 483.25, which requires a skilled nursing facility to provide care of a quality that meets professional standards of practice.

CMS argues that Petitioner’s noncompliance with each of these regulations posed immediate jeopardy for Resident # 1 because such noncompliance was likely to cause serious injury, harm, impairment, or death.  It asserts that its remedy determinations were justified by Petitioner’s immediate jeopardy level noncompliance.

The undisputed facts establish each of CMS’s allegations.  I address these allegations in detail.  At the outset, however, I note that Petitioner’s noncompliance with just one of the

**Page 3**

regulations at issue – its failure to provide CPR to Resident # 1 consistent with the requirements of 42 C.F.R. § 483.24(a)(3) – in and of itself justifies a conclusion that Petitioner was noncompliant at the immediate jeopardy level, and it also supports CMS’s remedy determinations in their entirety.  I would sustain CMS’s remedy determinations even if no basis existed for me to enter summary judgment in favor of CMS as to Petitioner’s compliance with the requirements of the other two regulations.

**1. Noncompliance with 42 C.F.R. § 483.24(a)(3)**

I find the following material facts to be undisputed:

Petitioner’s policy for administration of CPR informs the staff that:

When you find a patient unresponsive and no pulse noted you are to immediately determine the Code Status of the patient.  If the Code Status is Full Code you must immediately call Code Blue and initiate CPR on the resident.

CMS Ex. 19.  There is nothing vague or ambiguous about this policy.  Without exception the staff must immediately determine whether a nonresponsive resident is “full code” and if he or she is, staff must immediately implement CPR.

There is no dispute as to the meaning of the term “full code.”  This term is universally accepted in the healthcare community to mean that CPR must be provided to an unresponsive patient (or, as in this case, a nursing facility resident) unless that individual has directed that resuscitation not be attempted.

Resident # 1 had full code status. Petitioner’s records repeatedly document this status.  CMS Ex. 10 at 2; CMS Ex. 13 at 3; CMS Ex. 14 at 1, 7-9, 12, 16-19, 21; CMS Ex. 22 at 1-3, 6, 10-13, 15.

Shortly after 1:00 a.m. on July 29, 2020, a licensed vocational nurse entered Resident # 1’s room and discovered that he was unresponsive.  The resident was not breathing and had no pulse.  CMS Ex. 11 at 4.  The nurse found that there was white foam in the resident’s mouth.  He was warm to the touch and his skin color was normal.  CMS Ex. 23 at 5-6, ¶ 15.1

**Page 4**

Neither the licensed vocational nurse nor anyone else on Petitioner’s staff initiated CPR.  CMS Ex. 11 at 2.  The licensed vocational nurse did not immediately refer to the resident’s chart to determine his code status.  She looked at the resident’s chart about 15 minutes after she first discovered him to be unresponsive and discovered that the resident had full code status.  CMS Ex. 23 at 6, ¶ 16.  She spoke to another licensed vocational nurse who informed her that the resident was already dead and that CPR would be futile. *Id.*2

These undisputed facts establish an obvious – indeed, blatant – violation by Petitioner’s staff of Petitioner’s CPR policy and noncompliance with the requirements of 42 C.F.R. § 483.24(a)(3).  When Resident # 1 was discovered to be unresponsive, the staff’s absolute duties were to immediately:  (1) ascertain the resident’s code status; and (2) initiate CPR upon discovery that the resident was full code.  The staff did neither.  They did not check the resident’s code status for about 15 minutes after the resident was found to be nonresponsive and, upon discovering that the resident was full code, assumed that CPR would be futile.

Petitioner offers no meaningful defense.

Petitioner contends that CPR would have almost certainly been futile had the staff utilized it. Petitioner’s Response to Respondent’s Motion for Summary Judgment and Prehearing Brief (Petitioner’s brief) at 20.  As support Petitioner argues that Resident # 1 may have expired considerably earlier than when he was first discovered to be unresponsive on the morning of July 29, 2020.  Id. at 15.  Thus, according to Petitioner:  “Successful CPR is the rare exception, rather than the rule. . . . The *chance*of survival . . . was less than 1% and that meets the definition of the Principle of Futility.”  *Id.* at 20 (emphasis and underlining in text).

This argument fails for the following reasons.  It fails, first, because Petitioner’s policy did not allow its staff to decide that implementing CPR would be futile based solely on the discovery of a resident who is unresponsive. The policy requires nothing less than to immediately implement CPR for every unresponsive resident who has a full code status.

Moreover, the regulation’s and Petitioner’s policy’s requirement that a staff employ CPR upon discovery of a nonresponsive resident are predicated on universally accepted guidelines established by the American Heart Association (AHA).  *Green Valley Healthcare and Rehab. Ctr.,* DAB No. 2947, at 6 (2019).  The AHA guidelines delineate the few exceptions to the requirement that CPR be employed immediately upon discovery of an unresponsive individual – where attempts to perform CPR would place the rescuer

**Page 5**

at risk of serious injury, harm, or mortal peril, or where the unresponsive individual shows obvious clinical signs of irreversible death such as rigor mortis, dependent lividity, decapitation, transection, or decomposition.  CMS Ex. 25 at 2.

There are no facts suggesting that any of the exceptions contained in the AHA guidelines were present here.

In fact, and what Petitioner ignores, is that Resident # 1’s unresponsive state was precisely what Petitioner’s guidelines described as the circumstance mandating implementation of CPR.  CMS Ex. 19.

Petitioner asserts that it frequently in-services its staff about its CPR policy and that its staff was aware of its obligations.  Petitioner’s brief at 20.  With this assertion Petitioner evidently contends that it is exempt from its staff’s dereliction because it did all that it could do to ensure that the staff followed Petitioner’s CPR policy.  I find this argument to be unpersuasive.  A facility’s employees are that entity’s agents for executing facility policy and complying with regulatory requirements governing the care that is given to residents.  The facility bears responsibility for the staff’s failure to execute its policies.  If facilities could hide behind their staff when noncompliance occurs, then the regulations governing those facilities’ compliance would become largely meaningless.

**2. Noncompliance with 42 C.F.R. § 483.10(g)(14)**

These facts are undisputed:

Resident # 1 was admitted to Petitioner’s facility on July 27, 2020.  The resident suffered from multiple conditions, including chronic obstructive pulmonary disease, pneumonia, high blood pressure, and atrial fibrillation.  CMS Ex. 10 at 1-2.  The resident often experienced hypoxia (oxygen deficit).  CMS Ex. 13 at 4.

The resident received multiple medications.  However, on July 27-28, 2020, he did not receive some of them due to their unavailability.  Medications that were not provided to the resident on July 27 and 28 included bronchodilators that made it easier for the resident to breathe.  P. Ex. 2 at 1-3.  Missed doses of these medications could lead to a decline in the resident’s respiratory status and decreased oxygen saturation. *Id.*

Shortly after noon on July 28, a nurse noted that the resident alternated slow with rapid breathing after the placement of a Foley Catheter to aid in the passage of urine.  She recorded the resident’s blood oxygen saturation level at 99 percent.  The resident received supplementary oxygen at the rate of two liters per minute.  CMS Ex. 17.

Shortly before midnight on July 28, a nurse observed the resident.  She found that he appeared to be awake but unable to focus.  She recorded his respiration at 40 breaths per

**Page 6**

minute and “wet” (meaning that there could be fluid in the resident’s lungs).  The resident’s oxygen saturation level had dropped to 90 percent.  The nurse increased the rate of supplemental oxygen flow to the resident to three liters per minute.  CMS Ex. 17.

There were obvious changes in Resident # 1’s condition between noon on July 28 and that night.  His breathing changed from alternating slow and rapid breaths to rapid breathing, at 40 breaths per minute. The resident’s breathing became wet, suggesting fluid in his lungs.  His oxygen saturation level dropped from 99 to 90 percent. One of Petitioner’s nurses determined that Resident # 1’s condition necessitated an increase in the rate of flow of supplemental oxygen.3

There is nothing in the resident’s records to show that Petitioner’s nursing staff assessed these changes in the resident’s condition and determined their significance.  Nor has Petitioner offered testimony of the staff who cared for Resident # 1 on July 28-29, 2020, that might explain how and why the staff reacted to the changes that are documented by the undisputed facts.

There is no doubt that these changes were significant.  As Petitioner concedes, the signs observed on the night of July 28 constituted a change from signs observed earlier during that day.  Petitioner’s brief at 17. Petitioner concedes, moreover, that:  “[t]achypnea [rapid breathing such as that exhibited by the resident] can be a symptom of serious illness such as sepsis or acidosis, diabetic ketoacidosis or metabolic acidosis, [and] congestive heart failure.”  *Id.* at 10.  Petitioner acknowledges that rapid breathing may have pathological causes that include a variety of potential lethal diseases. *Id.* at 10-11. Finally, Petitioner admits that rapid breathing can be “concerning for patients” and that some patients exhibiting this condition may need immediate medical care. *Id.* at 11.

The regulation requiring immediate consultation with a physician when a resident exhibits significant changes in his or her condition implicitly recognizes that nursing staff in a facility such as Petitioner’s facility are not qualified to make the medical determination that observed changes are or are not dangerous.  42 C.F.R. § 483.10(g)(14). That is why the regulation gives a facility’s staff no discretion in its duty to report a significant change such as rapid breathing.  The staff must defer to the judgment of a more qualified medical professional.

**Page 7**

The failure by Petitioner’s staff to consult with Resident # 1’s physician on the evening of July 28, 2020 when the resident exhibited rapid breathing, among other signs of a deteriorating condition – wet breathing sounds and decreased oxygen saturation – violated regulatory requirements.  The staff had an absolute duty to report those changes and they failed to do so.

Petitioner challenges the qualifications of the surveyor who conducted the survey of Petitioner’s facility. Petitioner asserts that the surveyor, who is not a nurse, is not qualified to adjudge what Petitioner’s nursing staff should or should not have done.  Petitioner’s brief at 16.

I make no findings in this decision relying on the surveyor’s conclusions about whether Petitioner’s staff complied with accepted nursing standards or regulatory requirements.  In deciding whether Petitioner’s nurses failed to discharge their duty to consult I rely on the undisputed facts that I identify above, the plain language of the governing regulations, and Petitioner’s concessions that the changes evidenced by Resident # 1 could very well have been signs of a serious deterioration in his condition.

Petitioner argues that, while the signs exhibited by Resident # 1 on the night of July 28 might have evidenced a significant change in the resident’s condition, they might also have been consistent with the resident’s baseline condition and therefore were not significant.  Petitioner’s brief at 17.  Implicit in that argument is the contention that Petitioner’s nurses were qualified to judge whether the changes manifested by the resident were not worthy of reporting even though they might portend grave medical complications.

There are multiple reasons why I find this argument to be unpersuasive.

First, and as I have explained, the regulation does not vest discretion in a facility’s nursing staff to decide whether changes in a resident’s condition such as those manifested by Resident # 1 are signs of a serious problem that needs to be reported.  Petitioner’s staff had no choice but to report the changes manifested by Resident # 1 because these changes very well could have portended ominous consequences for the resident.

Second, Petitioner’s staff had no way of knowing whether the changes manifested by Resident # 1 were consistent with his baseline condition or were signs of something grave.  This resident was admitted to Petitioner’s facility on July 27, 2020, barely a day prior to his death.  Staff hadn’t had the opportunity over a period of days or weeks to observe the resident, to assess his baseline condition, or to record the fluctuations in his vital signs.  The staff had not prepared a comprehensive assessment of the resident’s condition.  The staff didn’t have data against which to compare the changes manifested by the resident.  In sum, the staff could not have known what the resident’s baseline condition was. Therefore, Petitioner’s staff could not have concluded reasonably that the

**Page 8**

signs that the resident exhibited on the night of July 28 were merely indicators of the resident’s baseline condition.

Third, Petitioner points to no evidence in the resident’s facility records that shows that the staff made a considered judgment that the changes exhibited by Resident # 1 merely reflected his baseline condition.  If the staff had made such a judgment – albeit in violation of the regulation – I would expect to see something in the record explaining why no decision to consult was made.  There is nothing.4

Finally, Petitioner’s staff knew that the resident had not received medications that were prescribed to address his breathing problems.  The staff therefore knew that the changes exhibited by Resident # 1 might be the consequence of necessary medications being withheld.  That was reason for the staff to consult Resident # 1’s treating provider, if only to determine whether there were alternative medications or treatments that the physician might prescribe.

Petitioner argues additionally that it had policies and procedures in place regarding its regulatory responsibilities and that it trained its staff about implementation of those policies and procedures. Petitioner’s brief at 18. Petitioner asserts that there are no facts supporting a conclusion that its staff failed to implement Petitioner’s policies. I disagree, as I have explained.

Finally, Petitioner contends that there can be no noncompliance because consultation with Resident # 1’s physician would have been unlikely to benefit the resident:  “Even if the physician had been called at 11:40 p.m., it’s quite likely that he would not have responded until after . . . [the resident] expired.” Petitioner’s brief at 17. This argument boils down to asserting that Petitioner should get a pass on its noncompliance because the resident was doomed, whether Petitioner’s staff complied or not.

The regulation does not allow for retrospective evaluation of a facility’s performance premised on the outcome in a particular case.  The duty to consult is absolute and not dependent on outcome.

I cannot conclude whether the resident would have benefitted or not had the staff contacted his physician immediately upon discovering the signs manifested by the

**Page 9**

resident on the night of July 28, 2020.  But I can conclude with absolute certainty that Petitioner’s staff’s failure to consult with the facility deprived the resident of any possibility of benefitting from that mandatory consultation.

**3. Noncompliance with 42 C.F.R. § 483.25**

CMS’s argument that Petitioner violated 42 C.F.R. § 483.25 because it failed to provide care that met professional practice standards derives from the facts it offers to show that Petitioner failed to provide CPR and to consult with Resident # 1’s treating physician.  It offers no additional facts to support its assertion.

The facts that CMS offers amply justify my conclusion that Petitioner failed to comply with professional standards of practice.

Professional standards of practice are incorporated into 42 C.F.R. §§ 483.10(g)(14) and 483.24(a)(3). The requirement that a facility staff immediately consult with a resident’s treating physician whenever the resident manifests a significant change in his or her condition is the standard of practice to which the Secretary of this Department and CMS have determined that a facility must adhere.  The requirement that staff immediately initiate CPR on an unresponsive resident not only reflects the standard of practice adopted by the Secretary and CMS but it incorporates the widely accepted AHA guidelines for administering CPR.  A facility’s failure to comply with either of these regulations, or as in this case, both, axiomatically is a failure by the facility and its staff to satisfy standards of practice and a violation of 42 C.F.R. § 483.25.

In its defense Petitioner rehashes the arguments that it made in opposition to CMS’s allegations that Petitioner failed to comply with 42 C.F.R. §§ 483.10(g)(14) and 483.24(a)(3).  I need not revisit my analysis of these arguments.

Petitioner also asserts that the surveyor who found noncompliance was unqualified to conclude that Petitioner’s staff violated professional practice standards.  This is the same argument that Petitioner made in its defense against allegations that it did not comply with other requirements.  As I have explained, I do not rely on the surveyor’s opinion as a basis for this decision.

**4. Immediate Jeopardy**

Regulations define “immediate jeopardy” to mean noncompliance so egregious as to cause, or to be likely to cause, serious injury, harm, impairment, or death to a resident or residents of a skilled nursing facility.  42 C.F.R. § 488.301.  Where noncompliance exists, the burden falls on the facility to prove that a finding of immediate jeopardy is clearly erroneous. 42 C.F.R. § 498.60(c)(2).

**Page 10**

In responding to a motion for summary judgment, a facility’s burden is slightly different.  Here, the facility must offer evidence-based facts that would support a finding that CMS’s determination is clearly erroneous were I to hold a full evidentiary hearing.

I find that Petitioner failed to offer such facts.

The undisputed facts show that Petitioner’s staff’s derelictions on the night of July 28-29, 2020 placed Resident # 1 at immediate jeopardy.  Failure to perform CPR on an unresponsive individual doesn’t just pose a risk that the resident will not be resuscitated, it guarantees it.  However small Resident # 1’s chances of survival were on that evening, the failure by Petitioner’s staff to perform CPR absolutely assured that he would not survive.

The staff’s failure to consult with the resident’s physician about the changes that they observed in the resident’s condition on the night of July 28-29 also created a likelihood of serious injury, harm, impairment, or death.  As Petitioner concedes, the resident’s rapid breathing coupled with other changes (wet breathing and a sharp decrease in blood oxygen saturation) were ominous signs of a possibly serious and even life-threatening illness. By not consulting with the resident’s physician Petitioner’s staff effectively assured that the underlying illness that caused the changes exhibited by the resident, and ultimately, his death, would not be addressed.

It is additionally apparent from the undisputed facts about Petitioner’s staff’s conduct on the night of July 28-29 that the staff did not understand their responsibility to provide care for Resident # 1. For example, Petitioner’s policy required staff to immediately determine whether an unresponsive resident was in full code status and to immediately commence CPR if he or she was.  Petitioner’s staff failed to appreciate the need to verify Resident # 1’s status and delayed ascertaining it for approximately 15 minutes after the resident was found unresponsive. The only reasonable inference that I can draw from these facts is that Petitioner’s staff was inadequately prepared to deal with unresponsive residents and to commence CPR when appropriate.

Similarly, staff failed to appreciate the ominous possibilities that were indicated by the changes manifested by Resident # 1 on the night of July 28-29.

These failures by staff to understand their responsibilities and the possible meaning of the signs manifested by the resident lead only to a conclusion that staff at Petitioner’s facility did not understand their obligations.  Thus, immediate jeopardy existed for Resident # 1, but also for all of Petitioner’s residents who were cared for by the staff who cared for that resident.

Petitioner contends that it has offered facts that could establish that CMS’s finding of immediate jeopardy level noncompliance is clearly erroneous.  Petitioner’s brief at 23.

**Page 11**

Petitioner does not say what those facts are.  *Id.*  However, I have considered Petitioner’s arguments concerning its noncompliance as if they also are arguments against a finding of immediate jeopardy level noncompliance.

Petitioner’s case rests heavily on its assertions that intervention would have been futile, whether it be to consult with Resident # 1’s treating physician about the changes in condition that the resident exhibited or whether to commence CPR when the resident was found unresponsive.  I infer that Petitioner contends that if interventions would have been futile then the failure to intervene posed no likelihood of adverse consequences to the resident.

This “no harm, no foul” argument fails because as even Petitioner concedes, there was some possibility that interventions might have been successful.  There is no way of determining whether consulting with the resident’s treating physician might have resulted in the resident receiving care that would have prolonged his life.  Nor is there any way of determining whether administering CPR would have resuscitated Resident # 1.  But what is certain is that failure to intervene – either to consult with the resident’s physician or to provide CPR – guaranteed that the resident would not obtain the benefit of those interventions.  Put bluntly, failure to provide CPR, for example, made it certain that the resident would not revive.

Petitioner argues also that it adopted policies concerning CPR and addressing changes in residents’ conditions and that it thoroughly trained its staff to implement those policies.  However, Petitioner offered no evidence establishing how the staff was trained or how thoroughly they were trained.  More important, the obvious failures of Petitioner’s staff to execute Petitioner’s policies can only lead to the inference that at least some members of Petitioner’s staff did not understand their obligations.  As I have stated, that failure jeopardized not only Resident # 1 but other residents as well.

**5. Remedies**

Petitioner does not challenge the reasonableness of CMS’s remedy determinations except to argue that they are excessive given the actual scope and severity of Petitioner’s noncompliance, which Petitioner contends is less than immediate jeopardy level if it exists at all.  I have sustained CMS’s findings of immediate jeopardy level noncompliance.

The civil money penalties that CMS imposed fall into two categories:  (1) daily penalties for immediate jeopardy level noncompliance extending over a period of three days consisting of July 28-30, 2020, and (2) daily penalties for non-immediate jeopardy level noncompliance extending over a period of two days consisting of July 31-August 1, 2020.  The daily immediate jeopardy level penalty amount is $11,300. The daily non-immediate jeopardy level penalty amount is $1,300.

**Page 12**

Both penalty amounts fall well within the permissible ranges for daily civil money penalties.  42 C.F.R. § 488.438(a)(1)(i), (ii); 45 C.F.R. § 102.3.  Indeed, they are relatively modest.  The immediate jeopardy level penalty amount is only slightly more than one-half the maximum daily penalty amount for penalties falling within the immediate jeopardy range.  The non-immediate jeopardy level penalty amount is only about one-fifth of the maximum daily penalty amount for penalties falling within the lower range.

There are regulatory criteria for deciding whether a civil money penalty amount – whether it be for immediate jeopardy level noncompliance or for non-immediate jeopardy level noncompliance – is reasonable.  42 C.F.R. §§ 488.438(f)(1)-(4), 488.404 (incorporated by reference into 42 C.F.R. § 488.438(f)(3)).

Two of the regulatory factors that may be considered are the seriousness of a facility’s noncompliance and its compliance history.  Here, the undisputed facts unequivocally establish that Petitioner’s noncompliance was extremely serious, certainly justifying the relatively modest penalties that CMS determined to impose.  As I have discussed, Petitioner’s staff guaranteed that Resident # 1 would not receive care that potentially might have saved his life.  Members of the staff betrayed an ignorance of their responsibilities that jeopardized not just Resident # 1, but any resident to whom they provided care.

Furthermore, Petitioner has a poor compliance history that justifies the penalty amounts. Petitioner was cited for deficiencies causing actual harm to residents twice within the two years preceding the events of July 28-29, 2020. CMS Ex. 8.

Petitioner argues that a facility’s financial condition may impact the civil money penalty amounts that are imposed against it.  Petitioner’s brief at 7.  That is correct.  However, it is not CMS’s burden to offer evidence showing that a facility can afford to pay a civil money penalty, it is Petitioner’s burden to offer facts showing that it is incapable of doing so if it wishes to make that argument. Petitioner has offered no facts to show that it cannot pay the penalties that CMS determined to impose.


          /s/
        Steven T. Kessel

                      Administrative Law Judge
      1. Petitioner objected to portions of CMS Ex. 23, the declaration of Tabitha Timberlake, a surveyor who obtained evidence at Petitioner’s facility. However, Petitioner did not object to Ms. Timberlake’s attributed observations of the resident’s appearance at the time when the vocational nurse discovered him to be unresponsive. back to note 1
                      2. Petitioner did not object to this attributed statement and, therefore, I find that it relates undisputed facts. back to note 2
                      3. The nurse’s decision to increase the flow of oxygen to Resident # 1 raises the question of whether she was authorized to do so absent a physician’s order. CMS has not alleged that this action constitutes noncompliance with a specific regulation, so I do not resolve this question. However, the fact that the nurse felt it necessary to increase the flow of oxygen supports the conclusion that the changes exhibited by Resident # 1 were medically significant. back to note 3
                      4. Petitioner offers the testimony of two witnesses, Stacey Whalon and Kaleena Beene, both nurses. P. Ex. 2; P. Ex. 3. Neither of these witnesses provided care for Resident # 1. Their testimony adds no facts. Each of these witnesses offers opinions to the effect that Petitioner complied with regulatory requirements. Those opinions do not differ from the arguments Petitioner makes. I reject these opinions because they are belied by undisputed facts but also because they ignore Petitioner’s regulatory responsibilities. back to note 4 Back to top
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