Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD
Civil Remedies Division
Life Care Center of Bardstown,

(CCN: 185149),

Petitioner,

v.

Centers for Medicare and Medicaid Services.
Docket No. C-09-338
Decision No. CR2509

Date: February 27, 2012

DECISION

This case is before me pursuant to a March 19, 2009 remand from an appellate panel of
the Departmental Appeals Board (Board) (Remand Decision). The Board vacated one of
my four findings and remanded the other three findings to me for further deliberation,
development of the record, if necessary, and a revised decision. After thoroughly
reviewing the evidence, and the arguments of the parties following a re-briefing of the

case, I find t

at the Centers for Medicare & Medicaid Services (CMS) in fact did show,

and Petitioner could not rebut, that Petitioner was out of substantial compliance, at an
immediate jeopardy level of severity, with Medicare participation requirements

including: t

e physician consultation requirement at 42 C.F.R. § 483.10(b)(11) (Tag F-

157); the quality of care requirement at 42 C.F.R. § 483.25 (Tag F-309); and the facility
administration requirement at 42 C.F.R. § 483.75 (Tag F-490). I further find that the
remedy CMS imposed for the period of immediate jeopardy, a $4,050 per day civil
money penalty (CMP), and the duration of that remedy for the immediate jeopardy period

of noncomp

iance (January 3 through March 27, 2007), is reasonable.
I. Procedural Background

Petitioner, a long term care facility located in Bardstown, Kentucky, is authorized to
participate in Medicare as a skilled nursing facility (SNF) and in the Kentucky Medicaid
program as a nursing facility (NF). On April 3, 2007, the Division of Health Care
Facilities and Services for the State of Kentucky (state agency) completed a survey of the
facility and determined that Petitioner was not in substantial compliance with
participation requirements at Tags F-157, F-309, and F-490 at the immediate jeopardy
level and with 42 C.F.R. §§ 483.20(d)(3) and 483.10(k)(2) (Tag F-280) at a scope and
severity level of “D” (no actual harm with a potential for more than minimal harm, but
not immediate jeopardy). CMS Ex. 3; P. Exs. 1, 2. On April 20, 2007, CMS imposed a
$4,050 per day CMP on Petitioner based on the survey completed on April 3, 2007.!
CMS Ex. 5.

On May 1, 2007, CMS notified Petitioner that a revisit survey completed on April 23,
2007, determined that Petitioner continued not to be in substantial compliance with
participation requirements. CMS stated, however, that the per day CMP would be
revised to $100 a day because Petitioner only continued out of compliance with Tag F-
280 at a scope and severity level “D.” CMS Exs. 9, 11; P. Ex. 3. CMS determined that
Petitioner had corrected the immediate jeopardy level F Tags as of March 28, 2007, and
then later determined that Petitioner corrected the “D” level deficiency at Tag F-280 as of
April 10, 2007. CMS Exs. 13, 24.

On May 25, 2007, Petitioner requested a hearing to contest the findings of
noncompliance underlying the April 20 and May 1, 2007 CMS determinations and the
CMPs imposed by CMS.

I held a hearing on February 19 and 20, 2008, and admitted CMS Exs. 1-26 and P. Exs.
1-35. The parties submitted post-hearing briefs (CMS and P. Br.) and replies (CMS and
P. Reply). Based on this record, I found that Petitioner was in substantial compliance
with Medicare participation requirements at the relevant times and that there was no basis
for CMS to impose remedies against Petitioner. I made four findings of fact:

1. Petitioner established by a preponderance of the evidence that it was in
compliance with 42 C.F.R. § 483.10(b)(11) (Tag F-157).

' CMS also notified Petitioner that it would impose a denial of payment for new
admissions (DPNA), to be effective on April 22, 2007, if Petitioner was not in substantial
compliance as of that date, and termination of Petitioner’s provider agreement, to be
effective on April 26, 2007, if immediate jeopardy to resident health and safety was not
removed by that date. CMS Ex. 5. As CMS found Petitioner in substantial compliance
with participation requirements prior to those dates, the remedies did not effectuate.
CMS Ex. 24.
2. Petitioner established by a preponderance of the evidence that it was in
compliance with 42 C.F.R. § 483.25 (Tag F-309).

3. Petitioner established by a preponderance of the evidence that it was in
compliance with the requirements of 42 C.F.R. § 483.75 (Tag F-490).

4. CMPs of $4,050 and $100 per day respectively, are unreasonable based on the
facts of this case as there are no violations and therefore no basis for the
imposition of CMPs.

CMS appealed my decision to the Board.

The Board vacated Finding 4 and remanded the case to me regarding the other findings
by decision dated March 19, 2009. Specifically, the Board vacated my conclusion that
the $100 per day CMP was unreasonable, finding a basis for the imposition of a $100 per
day CMP based on the comprehensive care plan deficiency alleged by CMS at Tag F-
280. The Board made two findings that:

Pl

FCL A-1. Petitioner failed to substantially comply with the comprehensive care
plan requirements at 42 C.F.R. §§ 483.20(d)(3) and 483.10(k)(2).

FFCL A-2. A CMP of $100 per day, extending from January 3, 2007 through
April 9, 2007 is reasonable based on Petitioner’s noncompliance with 42 C.F.R. §§
483.20(d)(3) and 483.10(k)(2).

In vacating my finding and remanding the case to me for further proceedings regarding
my other three findings, the Board determined that my decision failed to address material
evidence that conflicted with my findings of fact and also determined that my decision
reflected errors of law. The Board’s remand mandate to me was to further deliberate the
record, develop the record if necessary, and revise my decision as appropriate. The
Board also stated that if I should find Petitioner not in substantial compliance with
participation requirements, I am to evaluate whether the CMS determination that the
deficiencies posed immediate jeopardy to facility residents was “clearly erroneous.” I am
also to address the duration of the noncompliance and the reasonableness of the CMP
based on the factors at 42 C.F.R. §§ 488.438(f) and 488.404.

I held a telephone pre-hearing conference on May 27, 2009. The parties agreed, and I
concurred, that the existing record comprising the hearing transcript, the parties’ exhibits
as admitted at the hearing, and the parties’ pleadings, was sufficient to address the
questions raised in the Board’s remand and that a second evidentiary hearing would be
unnecessary. They agreed, and I concurred, that the best approach to resolving the
Board’s questions on remand would be a cycle of briefing augmented by the opportunity

to proffer additional documentary evidence as well as an opportunity to submit proposed
findings of fact and conclusions of law.

Both parties filed briefs (CMS and P. Remand Br.) and reply briefs (CMS and P. Remand
Reply Br.) and findings of fact and conclusions of law (CMS and P. Remand FFCL).
Petitioner also submitted proposed exhibits 36-44. In the absence of objection, I admit P.
Exs. 36-44 into evidence.

After considering and addressing the Board’s questions, the parties’ further arguments,
and the entire evidentiary record, I revise my prior findings in favor of CMS.

II. Legal Background

To participate in Medicare and Medicaid, long term care facilities, including SNFs,
must comply with the requirements in 42 C.F.R. Part 483, subpart B. A facility’s
compliance with the participation requirements is assessed through surveys performed
by state health agencies. Sections 1819 and 1919 of the Social Security Act (Act)? ; 42
C.F.R. Parts 483, 488, and 498.

“Substantial compliance” means a level of compliance such that “any identified
deficiencies pose no greater risk to resident health or safety than the potential for causing
minimal harm.” 42 C.F.R. § 488.301. “Noncompliance,” in turn, is defined as

“any deficiency that causes a facility to not be in substantial compliance.” 42 C.F.R. §
488.301.

CMS may impose remedies against a facility that is not in substantial compliance with
the participation requirements. 42 C.F.R. §§ 488.408, 488.440(a). CMS determines
the seriousness of each deficiency found during a survey in order to select the
appropriate remedies, if any, to impose on the facility. See 42 C.F.R. § 488.404. The
level of seriousness is based on an assessment of scope (whether the deficiency is
isolated, a pattern, or widespread) and severity (the degree of harm, or potential harm,
to resident health and safety posed by the deficiency). Jd. The highest level of
severity is “immediate jeopardy,” defined at section 488.301 of the regulations as “a
situation in which the provider’s noncompliance . . . has caused, or is likely to cause,
serious injury, harm, impairment, or death to a resident.”

CMS may impose a CMP for “either the number of days a facility is not in substantial
compliance” (a per day CMP), or “for each instance that a facility is not in substantial
compliance” (a per instance CMP). 42 C.F.R. § 488.430(a). Ifa per day CMP is
imposed for noncompliance at the immediate jeopardy level, the CMP must be in the

> The current version of the Social Security Act can be found at
http://www.socialsecurity.gov/OP_Home/ssact/ssact.htm.
range of $3,050 to $10,000 per day. 42 C.F.R. § 488.438(a)(1)(i). I
is less serious, the CMP must be set within the lower range of $50 to

the noncompliance
$3,000 per day. 42

C.F.R. § 488.438(a)(1)(ii). To determine the amount of a CMP, CMS considers the
following factors: The facility’s history of noncompliance (including repeated
deficiencies), its financial condition, its degree of culpability for the cited deficiencies,

the seriousness of the noncompliance, and the relationship of one de
deficiencies resulting in noncompliance. 42 C.F.R. §§ 488.404, 488.

iciency to the other
438(f).

Under 42 C.F.R. § 488.454(a), a per day CMP continues to accrue until “[t]he facility has

achieved substantial compliance, as determined by CMS or the state
or after an examination of credible written evidence that it can verify
visit.” A “plan of correction” is a plan developed by the facility and

based upon a revisit
without an on-site
approved by CMS or

the state agency describing the actions the facility will take to correct its deficiencies. 42

C.F.R. § 488.401. The plan of correction also specifies the date by w!
will be corrected. Jd.

Ill. Factual Background

ich the deficiencies

This case regards deficiencies identified by the state agency relating to Petitioner’s care
of Resident | on the night and early morning of January 2 and 3, 2007.

The Board drew the following undisputed facts from my decision.

- Resident 1 was an 87-year-old woman who was initially admitted to LCCB [Life
Care Center of Bardstown] in the Summer of 2006. ALJ Decision at 7; LCCB Ex.
7; CMS Ex. 17. Resident | had diagnoses that included Alzheimer’s disease,

hypothyroidism, diabetes, and hypertension. Id.

- Following a brief hospitalization in mid-November 2006, Resident 1 was

readmitted to LCCB on November 17, 2006, at which time he
ordered, among other things, oxygen saturation readings to be
and vital signs “routinely.” CMS Ex. 17, at 9.

r treating physician
monitored “daily,”

- On the evening of January 2, 2007, Resident 1’s granddaughter, Ms. Donna
Wherry, visited her grandmother at LCCB. ALJ Decision at 7.

- Resident 1 vomited profusely at approximately 8:30 p.m. on the evening of

January 2, 2007. ALJ Decision at 7-10 citing CMS Ex. 17, at
215-216. [Footnote omitted].

30-31; Tr. at 38,

- At approximately 1:00 a.m. on January 3, 2007, Resident 1 was observed by
LCCB staff to have a “sm[all] amount of emesis” on her night clothes. CMS Ex.

17, at 31; CMS Ex. 3, at 6.
- At approximately 4:00 a.m. on the morning of January 3, 2007, LCCB certified
nursing assistants (CNAs) and the licensed professional nurse on duty, Natalie
Suffoletta, found Resident 1 in bed, unresponsive and with unstable vital signs.
Nurse Suffoletta attempted to call the on-call physician about Resident 1’s
condition, but she was unable to reach the physician. Nurse Suffoletta then called
LCCB’s Director of Nursing (DON), who ordered Resident 1 be sent to the
hospital emergency room. ALJ Decision at 7-8.

- At approximately 4:15 a.m. on January 3, 2007, Nurse Suffoletta called
emergency medical services (EMS). CMS Ex. 18, at 1. Emergency medical
technicians (EMTs) arrived at LCCB at approximately 4:20 a.m. to transport
Resident | to the hospital. Id.

- Resident | was thereafter transferred and died at the hospital at approximately
7:10 a.m. on January 3, 2007. CMS Ex. 18, at 3.

IV. Findings of Fact, Conclusions of Law, and Analysis

Below in boldface type are my numbered conclusions followed by the pertinent findings
of fact and analysis.

I do not review the deficiency with regard to Tag F-280 (42 C.F.R. §§ 483.20(d)(3) and
483.10(k)(2)) because the Board made findings with regard to that deficiency and I do
not have the authority to alter those findings. I note, however, that the violation of Tag F-
280 was based on CMS’s finding that Petitioner failed to revise Resident 1’s
comprehensive care plan to reflect physician orders for routine vital signs and daily
oxygen saturation readings to be done. CMS Ex. 3, at 11-12. The deficiency findings
specifically state that review of Resident 1’s treatment records “revealed the vital signs
and oxygen saturation readings were not obtained as ordered. /d. Remand Decision at 8.
During the hearing, Petitioner admitted that it did not contest this deficiency and expected
that I would impose some amount of CMP based on it. Petitioner specifically admitted
that it did not document Resident 1’s breathing status in the way that was ordered. Tr. at
22; P. FFCL Finding of Fact No. 109; P. FFCL Conclusion of Law No. 31 [‘Petitioner
has conceded that the evidence is sufficient to find a ‘potential for harm’ violation of 42
C.F.R. § 483.20(d) in that its staff did not consistently document Resident #1’s oxygen
saturation level according to a November, 2006 admission order.” P. Ex. 14, at 4; P. Ex.
15, at 6; CMS Ex. 17, at 9.]. The Board determined from this admission that $100 per
day is a reasonable amount of CMP and that the period of January 3 through April 9,
2007, is the duration for Petitioner’s noncompliance based on this violation.’ Petitioner

* The Board found that the admitted violation was a basis for a $50 per day penalty but,
since Petitioner has not contended that the regulatory factors to be considered in
addresses the Board’s findings regarding Tag F-280 in its remand briefing, arguing that
its admission did not mean that it accepted a $100 per day CMP is reasonable based on
the noncompliance or that the duration of the CMP as determined by CMS is correct.
Petitioner argues that its assessment and documentation errors are at best marginally
tangential to the immediate jeopardy citations and should not be used to support an
immediate jeopardy citation. P. Remand Br. at 2-7. The Board’s findings dictate my
decision in this case and, as noted, I do not have the authority to alter them or to consider
Petitioner’s arguments with regard to whether the $100 CMP or the duration of the CMP
is reasonable.

I note Petitioner’s argument that while the physician’s order with regard to Resident 1’s
vital signs could have been clearer regarding what the physician meant by having vital
signs “routinely” monitored, the record shows that her vital signs were recorded in
nursing notes nearly every day. Petitioner argues this presumably qualifies as routine. P.
Remand Br. at 2-3 n. 1. While I make no finding regarding this, I observe that it is
Petitioner’s responsibility to clarify physician orders when those orders are unclear.

1. Petitioner failed to substantially comply with the physician consultation
requirement at 42 C.F.R. § 483.10(b)(11) (Tag F-157).

The regulation at 42 C.F.R. § 483.10(b)(11) provides in pertinent part that:

Notification of changes. (i) A facility must immediately inform the resident;
consult with the resident’s physician; and if known, notify the resident’s legal
representative or an interested family member when there is—
...(B) A significant change in the resident’s physical, mental, or
psychosocial status (i.e., a deterioration in health, mental, or psychosocial
status in either life-threatening conditions or clinical complications); . . .

In my initial decision I noted that the central issue in the case turned on the interpretation
of what constituted a “significant change” in Resident 1’s condition and when that
change occurred during the night and early morning of January 2 and 3, 2007. I reversed
CMS’s determination that Petitioner’s conduct violated section 483.10(b)(11) when it
failed to immediately notify Resident 1’s physician of what CMS had determined were

determining the penalty amount warrants a reduction of the $100 per day CMP, the Board
has no basis to conclude that the per day amount should be revised. Remand Decision at
9. The Board found further that since Petitioner did not dispute that it failed to
substantially comply with Tag F-280 during the entire period under review, it was
reasonable to conclude that the per day CMP was effective on the first day remedies were
imposed, January 3, 2007, and extended until April 10, 2007, when the corrections for the
Tag F-280 deficiency were completed. Id.
repeat vomiting episodes constituting a significant change in status during that period
which required physician notification. CMS Ex. 3, at 3-11.

The Remand Decision at pages 12-14 summarizes my decision at pages 6-12. I briefly
discuss my initial decision here in order to discuss my revised findings.

In arguing that Resident 1 did not have a significant change in status prior to 4:00 a.m. on
January 3, 2007, Petitioner relies on criteria in its physician notification policy, which is
based on the American Medical Directors Association (AMDA) guidelines, whose
sufficiency CMS has not challenged. CMS Reply Br. at 6-7. The AMDA guidelines
provide that for an episode of emesis (vomiting) a physician must be contacted
immediately where there is: (1) bloody or coffee ground vomit; (2) more than one
episode of emesis within 24 hours; or (3) the emesis is accompanied by abdominal pain
and changes in vital signs. A single episode of emesis need not be reported to the
physician until the next office day. P. Ex. 29, at 20. Petitioner’s notification policy for
emesis echoes the AMDA policy by requiring immediate notification when there is: (1)
bloody or coffee ground emesis; (2) repeat episodes of emesis; or (3) pain associated with
a change in vital signs. A one-time episode of emesis does not require immediate
notification, and the emesis may be reported to the physician the next office day. P. Ex.
30, at 2.

Applying this policy to the evidence and testimony, I found that there was one
intermittent episode of emesis extending over a limited period of time and that Petitioner
did not have to immediately report the emesis to Petitioner’s physician. I found the
episode began at approximately 8:30 p.m. on January 2 when the Resident vomited,
paused for a very short time, and then vomited again in large quantity. In this regard, I
relied on nursing notes prepared by Nurse Suffoletta (CMS Ex. 17, at 30-31) and her
hearing testimony (Tr. at 215-16). As neither party defined it, I used a common
understanding of the word “episode,” referring to the dictionary definition of an
“episode” as “an event that is distinctive and separate although part of a larger series.”
Merriam-Webster’s Collegiate Dictionary (10" ed. 2001). I determined that Resident 1’s
two releases of vomitus around 8:30 constituted one episode of vomiting, because I
considered and relied on the short period of time between the two, and my impression
that the emesis observed on Resident 1’s night clothes at 1:00 a.m. did not constitute a
separate episode of emesis at all, but rather a final, much-less-serious, manifestation of
the episode that began earlier in the evening. In this I relied on Nurse Suffoletta’s
description of the emesis as a very small amount of emission, as if Resident 1 “burped”
or “coughed up something” and Director of Nursing (DON) Morgeson’s testimony
regarding Nurse Suffoletta’s description to her of Resident 1’s 1:00 a.m. emission as a
“golf ball size” stained area which she determined was not an area of vomitus.* Neither
DON Morgeson nor Nurse Suffoletta stated there were reports from the CNAs that
Resident 1 vomited again that evening or that her condition worsened between 8:00 p.m.
and 4:00 a.m. Tr. at 192-93, 219-20; CMS Ex. 17, at 31. I concluded from this
testimony and evidence that Nurse Suffoletta reasonably concluded that Resident 1 did
not vomit at 1:00 a.m. and that under both the AMDA and facility policies Nurse
Suffoletta was not required to immediately notify Resident 1’s physician.

Lalso addressed and rejected CMS’s argument that changes in Resident 1’s condition
congruent with the vomiting should have prompted Petitioner’s staff to immediately
notify Resident 1’s physician. In this regard, CMS cited Ms. Wherry’s testimony that she
observed her Grandmother’s demeanor had changed negatively, that her body had
become cold and rigid, and her legs had become discolored. Tr. at 33-38. I noted that
Ms. Wherry was a very attentive granddaughter who visited Resident 1 on a daily basis.
Tr. at 28-29, 165. I found, however, that Ms. Wherry was not a trained health care
professional and her observations were those of a lay person. | stated that nurse’s notes
did not indicate that Ms. Suffoletta or the CNAs observed a significant change in
Resident 1’s condition until 4:00 a.m. I found that facility policy required immediate
notification only when a resident experienced an episode of emesis and a change in vital
signs (i.e., body temperature, blood pressure, pulse, respiration rate, etc.). I noted Nurse
Suffoletta testified that she checked Resident 1’s vital signs twice between 8:00 p.m. and
2:00 a.m. and found them to be stable. Tr. at 217,227. Although I noted that Nurse
Suffoletta failed to document Resident 1’s vital signs, and that CMS criticized Petitioner
for using a “documentation by exception” system, CMS did not dispute whether staff
took Resident 1’s vital signs or whether documentation by exception is a common
practice. CMS Br. at 11, 14-15; Tr. at 261. Based on her credibility, I found that Nurse
Suffoletta took, but did not record, Resident 1’s vital signs that evening because they
were normal.

Finally, I found that thereafter Petitioner acted in accordance with applicable regulations
and facility policy. At 4:00 a.m. on January 3, 2007, staff discovered that Resident 1’s
vital signs were unstable and recorded them [pulse 43, blood pressure 125/23, respiration
12, and temperature 94.9]. These unstable vital signs and Resident 1’s prior episode of
emesis triggered Petitioner’s responsibility to contact her physician immediately. Staff

+ DON Morgeson stated in an incident investigation form regarding this 1:00 a.m.
incident that Resident 1 “was responding and had such a small amount of emesis stained
on her gown the second time the charge nurse used her judgment and did not feel the
resident needed to be sent out [at] that time. When [Resident 1’s] condition changed the
nurse did assess and followed protocol to send her out for [treatment].” P. Ex. 24, at 7.
Of course, DON Morgeson did not see this emesis. DON Morgeson was repeating what
Nurse Suffoletta told her.
10

called both the attending and on-call physicians but was unable to reach either of them.
Staff eventually reached the DON following which emergency services were called and
Resident | was transported to the hospital.

In its Remand Decision, the Board determined that: (1) my characterization of what
constitutes a single “episode” of emesis was unsubstantiated and my reliance on Nurse
Suffoletta’s hearing testimony failed to take into account conflicting evidence; (2) my
decision did not address evidence that an additional vomiting incident occurred prior to
8:30 p.m.; and (3) my finding that Nurse Suffoletta took Resident 1’s vital signs twice
between January 2 at 8:00 p.m. and January 3 at 2:00 p.m. is flawed. I discuss each
determination below, after first addressing overarching issues regarding Nurse
Suffoletta’s credibility, which includes a discussion of whether the SOD is evidence or,
as Petitioner urges, merely a notice document.

Credibility of Nurse Suffoletta’s testimony. Nurse Suffoletta was the licensed practical
nurse (LPN) in charge of Resident 1’s care from 6:00 p.m. on January 2 to 6:00 a.m. on
January 3, 2007. In making my original decision, I relied on Nurse Suffoletta’s
testimony and the nursing notes she prepared. I found her testimony to be credible,
taking into account her demeanor and candor while testifying. I also found her testimony
consistent with all other written and oral evidence, her own experience and training, and
the absence of impeaching evidence of record. The Board pointed out other evidence of
record that should have, and has, caused me to re-evaluate Nurse Suffoletta’s testimony
and nursing notes against other evidence of record. Although I do not doubt that Ms.
Suffoletta’s testimony and the notes she prepared are essentially accurate, I find them in
retrospect to be incomplete. And where she testified that Resident 1’s vital signs were
taken on the evening of January 2-3, 2007 prior to 4:00 a.m., I now find that testimony to
be outweighed by a preponderance of evidence to the contrary.

I recognize Petitioner’s argument that I should not revise my opinion regarding Nurse
Suffoletta’s credibility. P. Remand Br. at 7-13. Petitioner asserts that the Board relied on
the SOD in finding that Nurse Suffoletta admitted to a surveyor that Resident 1 vomited
not only at about 8:30 p.m. but again between 12:00 and 1:00 a.m., finding this admission
constitutes a prior inconsistent statement and impeaching evidence undercutting my
credibility finding. Petitioner asserts that the Board takes the allegations and conclusions
set forth in the SOD (CMS Ex. 3) as presumptively correct and evidence o:
noncompliance. Petitioner admits that in some cases it may be true that an allegation set
forth in a SOD stands if not contested or rebutted by Petitioner. However, where
Petitioner contests such allegations and offers competing evidence, the appropriate
standard for fact-finding is a preponderance of the evidence, taken as a whole. Where the
allegations are at best hearsay or conclusions based on hearsay, Petitioner may rebut them
by ordinary evidence. P. Remand Br. at 9-10.

11

As noted by CMS, the Board has stated that a SOD may function as both a notice
document and as evidence of the facts asserted therein. Ifa finding is disputed, the issue
is whether a petitioner showed substantial compliance by a preponderance of the
evidence and mere denials by a Petitioner are not enough. The Laurels at Forest Glen,
DAB No. 2182, at 7-8 (2008); Oxford Manor, DAB No. 2167, at 2-3 (2008). This is the
standard I follow and it does not appear to be materially different than the standard
Petitioner urges me to follow.

Petitioner’s argument specifically with regard to Ms. Suffoletta notes that the SOD did
not allege that she ever “‘said” to the surveyor that Petitioner vomited more than once.
Instead, Petitioner asserts that the SOD statement is that Petitioner “revealed” Resident 1
vomited again between 12:00 a.m. and 1:00 a.m. Petitioner seems to believe that
somehow the use of the word “revealed” instead of the use of the word “said” is a
surveyor conclusion, and not a quotation from Nurse Suffoletta. Petitioner argues that
the SOD does not quote any direct statement by Nurse Suffoletta herself regarding
Resident | and states that in other cases SODs have quoted “virtually verbatim” from
surveyor notes. Petitioner argues that in this case there is nothing in the surveyor notes
provided (CMS Ex. 23) to substantiate that Nurse Suffoletta ever told a surveyor that
Resident 1 vomited again after 8:30 p.m. or between 12:00 a.m. and 1:00 a.m. Petitioner
states that while surveyors Beard and Branham both testified that they interviewed Nurse
Suffoletta, there are no notes memorializing those interviews. The only surveyor notes
memorializing such interviews record questions about Nurse Suffoletta’s orientation
training. CMS Ex. 23, at 31-32. Moreover, testimony at hearing made clear that the
basis for Surveyor Beard’s conclusion that Resident 1 vomited about 1:00 a.m. was her
extrapolation from Nurse Suffoletta’s nursing notes, not Nurse Suffoletta’s statements.
Tr. at 106. Petitioner contrasts this with Nurse Suffoletta’s denial that she observed
anything that caused her to believe that Petitioner vomited again.

I find, as discussed below, that Petitioner has been afforded the chance to rebut the
statements in the SOD and that Petitioner did not prove by a preponderance of the
evidence that the SOD statements were erroneous or inaccurate. | also find that
Petitioner has shown no material difference between the surveyors’ use in the SOD of the
word “said” or the word “revealed” with regard to what Nurse Suffoletta or any other
individual may have told the surveyors during the survey. Although Petitioner argues
that CMS did not produce surveyor notes memorializing Nurse Suffoletta’s interviews
with surveyors, that alone does not impeach the statements in the SOD unless those
statements are rebutted by Petitioner by a preponderance of the evidence.

Finally, Petitioner disputes the Board’s suggestion that Nurse Suffoletta’s credibility is
adversely affected because Petitioner terminated her employment. In rebuttal, Petitioner
argues, citing DON Morgeson’s testimony, that Nurse Suffoletta was let go because
Petitioner felt it would be “better for the facility” (Tr. at 204), not because Nurse
Suffoletta was untrustworthy or not credible. Tr. at 196. The basis for my credibility
12

determination, however, does not rest on the fact that Petitioner terminated Nurse
Suffoletta’s employment.

Determination 1. The Board asked me to clarify what constitutes an “episode” of
vomiting for purposes of applying Petitioner’s physician notification policy, making clear
the authority on which I rely. The Board told me to address Nurse Suffoletta’s
representation to the surveyor, reflected in the SOD, that Resident 1 vomited “again”
between midnight and 1:00 a.m. The Board also asked me to address evidence relating to
Nurse Suffoletta’s professional judgment that physician consultation was not required
prior to 4:00 a.m. Board Remand at 14-16.

In reviewing my finding that Resident 1 had only one episode of vomiting, the Board
took exception to my view that it is not uncommon that when an individual vomits there
is an initial release followed by a more significant release shortly thereafter and that two
releases separated by a short period of time may be considered a single episode. The
Board stated that I did not cite any authority or evidence to support my understanding of
the physiological process of vomiting nor define what constitutes a short period of time
between releases. The Board asserted that I did not rely on any standard of care in
defining the term “episode” as used in facility policy. Instead, I relied upon what I
considered common knowledge without articulating the basis for my conclusion.

I gave the parties the opportunity to address the issues raised by the Board, which both
took. CMS did not offer a definition of what constitutes an “episode” of vomiting. It
asserts only that when it uses the word episode it does so in its “ordinary meaning.”
CMS Remand Reply at 4. Petitioner asserts that there is no standard medical definition
of what constitutes an “episode” of vomiting, and asserts that medical references describe
episodes of vomiting caused by various conditions as lasting for hours or days. P.
Remand Br. at 14-16, referencing P. Exs. 36-38. Petitioner urges in this regard that my
interpretation and application of the AMDA guidelines and Petitioner’s change of
condition policy is reasonable. It asserts that most people know what vomiting is from
their ordinary life experiences and that most vomiting is not serious. Petitioner asserts
that vomiting can involve repeated gagging and regurgitation until the stomach is purged.
Petitioner urges that there is no reason why I should not incorporate this common
knowledge into the interpretation and application of what appears to be a non-technical
term. P. Remand Br. at 15. Before the Board, and before me citing DON Morgeson’s
testimony (P. Remand Br. at 15, citing Tr. at 187-89), Petitioner argues that what
constitutes an episode of emesis requires some degree of nursing judgment and asserts
that Nurse Suffoletta made a reasonable judgment that Resident 1 experienced only one
episode of vomiting and did not undergo a significant change in condition prior to 4:00
a.m. Petitioner argues, moreover, that CMS did not show that Nurse Suffoletta’s
judgment was so unreasonable or outside of any standard of care that it constituted a
regulatory violation.

13

The Board specifically disagreed with Petitioner’s contention regarding Nurse
Suffoletta’s judgment and asserted that Nurse Suffoletta’s judgment that Resident 1 had
only one episode of vomiting was contradicted by other record evidence, citing Nurse
Suffoletta’s interview with the surveyor where Nurse Suffoletta, as documented in the
SOD, “revealed the resident vomited again between 12:00 a.m. and 1:00 a.m. (CMS Ex.
3, at 7) and Nurse Suffoletta’s nurse’s note stating that Resident 1 was observed to have a
small amount of emesis on her night clothes (CMS Ex.17, at 31). Remand Decision at
15.

The Board also noted other evidence of record, including summaries of survey interviews
set forth in the SOD, and in the facility’s own investigation documents, which show that
Nurse Suffoletta’s judgment did not meet professional standards of care. The Board
referenced a SOD summary of a February 19, 2007 interview with the “present” DON
(apparently DON Morgeson, who took over as DON in January 2007 (Tr. at 179)), who
“revealed the nurse should have called the physician after the first episode of vomiting
[and that the] documentation revealed this was a change of condition for the resident.”
CMS Ex. 3, at 8. The Board noted this conclusion is consistent with the attending
physician’s opinion, reflected in a March 14, 2007 survey interview noted in the SOD, in
which the “physician revealed he would have wanted to be called after the first episode of
vomiting,” and that “he stated he probably would have ordered medication to control the
vomiting.” Jd. The Board also noted that the physician reportedly told the surveyor that
“if he was called after the second episode of vomiting (at 1:00 a.m.), he would have sent
the resident to the hospital.” Jd.; P. Ex. 17, at 2. The Board observed that P. Ex. 17, at 2,
is a written note prepared by Petitioner’s attending physician on March 19, 2007. The
Board noted that the physician stated “the nurse should have called the M.D. when the
person first started profusely vomiting at 8:00 p.m. on 1-2-07” and “that the failure to call
when the pt. first started profusely vomiting was an exercise in poor judgment.” I note,
however, that the Board did not address the rest of the physician’s note, which states that
Nurse Suffoletta “obviously was doing what she thought was right, because the patient
appeared stable.”

The Board asserted that the reported opinions of the DON and the physician are
consistent with the facility’s investigation (following interview with Nurse Suffoletta, the
two CNAs working that night, and DON and Medical Director chart review) which found
that Nurse Suffoletta “failed to act appropriately and use good nursing judgment.” CMS
Ex. 21, at 2, 4 [“The results of our investigation revealed that, although the nurse failed to
act appropriately and use good nursing judgement (sic), we cannot determine that her
actions were intentional or that they caused harm. We have, however, terminated the
employee because we do not have confidence in her ability to perform her assigned
job.”]. The Board then stated that I did not address this evidence and characterizes it as
evidence which suggests that Nurse Suffoletta did not exercise sound professional
judgment in assessing Resident 1’s condition at the relevant time. Remand Decision at
16.
14

Petitioner argues that the statements attributed to the DON and attending physician
undercut the conclusion that the AMDA guidelines and Petitioner’s policy establish the
governing standard of care. Petitioner asserts that the statement in the SOD regarding the
physician “revealing” he would have wanted to be called after the first episode is a
surveyor conclusion rather than a direct statement and is inconsistent with the physician’s
note, at CMS Ex. 23, at 50, that Nurse Suffoletta “did what she thought was right.”
Petitioner also questions whether the note written by the physician on March 19, 2007
was actually written by him, but, as Petitioner did not call the physician in question to
resolve the issue, I find that argument to be specious. Petitioner argues moreover that the
note is based only on the physician’s review of Resident 1’s record as of March 19, 2007,
because he was not available at the time of the pertinent events and his clinical summary
is recited from the Resident’s chart. Petitioner asserts that the surveyors ignored the
physician’s note that Nurse Suffoletta “did what she thought was right” because her
patient appeared stable. Petitioner argues the physician’s opinion provides only the
flimsiest basis to conclude that a standard of care required Nurse Suffoletta to contact a
physician. Petitioner also argues that the SOD statement that the physician said he would
ave sent Resident | to the hospital after the second episode of vomiting at 1:00 a.m. is
peculiar at best, and hypothetical, since he had no first-hand knowledge of the events in
question and was not in a position to give orders as events developed. He likely based his
response on the survey team having told him about two episodes of vomiting several

ours apart. P. Remand Br. at 21-22. Petitioner also asserts that in an interview with
DON Dempsey, who was the DON on January 2 and 3, 2007, DON Dempsey revealed
that Nurse Suffoletta should have called the physician after the first episode of vomiting,
citing CMS Ex. 3, at 8 (a view that was echoed by DON Morgeson, also at CMS Ex. 3, at
8). Petitioner says this is not a fair conclusion of DON Dempsey’s actual statements in
surveyor notes. Petitioner asserts DON Dempsey told a surveyor on March 14, 2007, that
she “did not know” why Nurse Suffoletta did not call the physician at 8:00 p.m. but that
she “would have called the 1“ time.” CMS Ex. 23, at 4. Petitioner argues that this
statement is more equivocal than an opinion that Nurse Suffoletta violated any facility
policy or standard of care. Petitioner asserts that other interview notes from that night
make clear that DON Dempsey did not consider physician notification to be the most
significant issue that night. CMS Ex. 23, at 1-2; CMS Ex. 3, at 1.

At the end, I am left with no definition of “episode” other than the one that I used in my
original decision. In spite of the Board’s dissatisfaction with it, I am unable to feel
discomfort with this everyday definition based on what I believe is almost universal
human experience, since that is the definition of an “episode” exactly as CMS would
have it in its “ordinary meaning.” I am left to determine whether the evidence shows that
Nurse Suffoletta made a reasonable judgment that only one episode, in its ordinary
meaning, of emesis occurred.
15

There appears to be no argument that the AMDA guidelines and facility policy are the
standard of care governing when Petitioner’s staff is to contact a physician in a situation
where a resident is vomiting. The argument here is whether the standard was met and
whether Nurse Suffoletta exercised proper judgment on the night in question and still
hinges in part on whether Resident 1’s vomiting on January 2 and 3 consisted of more
than one episode of emesis. In reviewing the evidence again, paying particular attention
to the evidence referred to by the Board, I conclude that the incident of emesis at 1:00
a.m. was another episode of emesis requiring Nurse Suffoletta to contact Resident 1’s
physician at 1:00 a.m. under both facility policy and the AMDA guidelines. I should
have relied on Nurse Suffoletta’s statement to the surveyor that Resident 1 vomited
again, in conjunction with her nurse’s note that there was a small amount of emesis on
the Resident’s night clothes, and found that the preponderance of the evidence indicated
that Resident 1 did have at least a second episode of emesis on the night in question. At
the relevant time, that is certainly what Nurse Suffoletta believed and her description of it
after the fact does not change that she believed it to be an episode of emesis. This
conclusion fits within what I found before and find now — in the absence of any other
suggested definition to the contrary — to be the common understanding of the word
“episode” as an event distinctive and separate, although part of a larger series.

As to the opinions of the DONs and the physician regarding when Nurse Suffoletta
should have called the physician, I find Petitioner’s point that this evidence would
undercut the AMDA guidelines and facility policy as the governing standard of care to be
well taken. However, in deciding whether Nurse Suffoletta exercised proper nursing
judgment in this situation, upon review, it is now clear to me that as of 1:00 a.m.
physician notification was necessary.

Determination 2. The Board required me to address “conflicting” evidence in the record
and determine whether the evidence it cited alters my conclusion that the physician
consultation requirement was not triggered prior to 4:00 a.m. Board Remand at 16-18.

In this regard, the Board was in essence asking whether the evidence it references would
lead me to conclude that Nurse Suffoletta should have consulted Resident 1’s physician
about 8:30 p.m. Put another way, the Board was asking me to thus address whether there
were two separate incidents of vomiting by that time of which Nurse Suffoletta had been
informed, which two separate incidents should be considered separate episodes, the
second requiring physician notification.

In evaluating the evidence discussed by the Board, I do not find that a second “episode”
of emesis occurred earlier than 1:00 a.m., although it is not really contested that Resident
1 vomited more than once while Ms. Wherry was visiting Resident 1 that evening.
Although the Board suggested that there was more than a one-hour gap between the two
incidents of vomiting, indicating to the Board that two episodes of vomiting may have
occurred, the evidence is not clear as to the amount of time constituting the gap between
the two incidents or its portent.
16

The Board first noted an undated written statement by CNA Betty Jo Rogers, which the
Board believed to have been taken in the course of Petitioner’s investigation. It states
that CNA Rogers:

Attempted to toilet [Resident 1] and granddaughter asked staff to put her to bed
because “she is too sick & weak.” Observed the [Resident] [and] what appeared
to be “vomit” on her clothing. Cleaned [the Resident] & put her to bed. Then
reported this to Natalie Suffoletta who was the charge nurse.

P. Ex. 19, at 1. This note also records that Resident 1’s granddaughter was present in the
room at approximately 6:30. The Board observed that at the side of this statement there
is a notation that says “@6:00 p.m. — 6:30.” However, it is unclear from this notation
exactly what is referred to; whether it is the time the CNA attempted to toilet the
Resident, whether it is the time the granddaughter attempted to put her to bed, or whether
it is the time the Resident vomited. CNA Rogers did not testify, and DON Morgeson,
who was the “recorder signature” on the document containing CNA Rogers’ written
statement, was not asked at hearing to clarify the citation. Tr. at 178-205.

The Board concluded that consistent with CNA Rogers’ statement is the SOD summary
of a March 14, 2007 interview with Ms. Wherry, where she reported that on January 2,
2007, she found Resident | slumped over in her wheelchair and abnormally quiet. She
requested Resident 1 be put in bed, the Resident began to vomit profusely and Ms.
Wherry asked the nurse if the physician should be called. CMS Ex. 3, at 5. The Board
noted that Ms. Wherry testified at hearing that the “first time” she observed her
grandmother vomiting was about 7:30 p.m. The Board noted that Ms. Wherry and the
staff changed the Resident’s clothes and got her cleaned up, the CNAs left, and Ms.
Wherry had time to sing “Amazing Grace” to her grandmother before the second
incidence. Tr. 33-39. The Board wrote that it is unclear in my description of this
timeframe as a “very short time” whether I overlooked Ms. Wherry’s testimony about the
gap, whether I considered and rejected the testimony, or whether I determined that the
gap was a very short time.

In answer to the Board’s questions, I have re-weighed the evidence. I have considered
Ms. Wherry’s testimony about this gap, determined that the conflicting testimony about
the timeframe makes it difficult to determine exactly what the duration of the gap was,
but now determine that it was still a short time, occurring entirely during Ms. Wherry’s
visit, constituting a continuing episode of vomiting.

Ms Wherry testified that she arrived around 7:00 p.m., and that the first incidence of
vomiting occurred around 7:30 because it took her time to find a nurse and get her
grandmother in bed. Ms. Wherry testified regarding her concern that she’d asked for her
grandmother to be put to bed by 7:00 p.m. but that she was still awake and at the nurse’s
17

station when she arrived, indicating that it could have been well after 7:00 p.m. Tr. at 32-
34. Ms. Wherry testified that she was not positive she arrived at exactly 7:00 p.m., but
just at some time around 7:00, p.m., and she said it was possible the second incident of
vomiting occurred around 8:30 p.m. Tr. at 60. As Ms. Wherry noted regarding when she
received a call from the facility on the morning of January 3, 2007, she’s “not good on
the times.” Tr. at 62. I note as well that the timeframe Ms. Wherry testified to conflicts
with the timeframe noted by CNA Rogers, who herself was trying to recall a timeframe
from at least a couple of months’ distance. Moreover, as noted by Petitioner (P. Remand
Br. at 16), surveyor notes of an interview with CNA Rogers reflect that she recalled very
little about Resident 1 or the events in question. CMS Ex. 23, at 21-22.

There is no way for me on this evidence to determine by a preponderance of the evidence
that the gap between the two incidents of vomiting was as long as an hour. I note in this
regard that both Ms. Wherry and Nurse Suffoletta testified that after this episode Resident
1 appeared better and that Ms. Wherry, an attentive granddaughter, felt comfortable
enough to leave her grandmother for the evening. Tr. at 39, 45, 61, 218, 221; P. Ex. 16,
at 8; CMS Ex. 17, at 30. Thus, on solely the issue of whether or not the two incidences of
vomiting prior to 8:30 constitute more than one episode of vomiting, I find Petitioner was
not required to contact Resident 1’s physician.

Determination 3: The Board required me to re-evaluate whether Resident 1 was
properly monitored and assessed on January 2 and 3, 2007. Remand Decision at 18-21.

The Board concluded that, in finding that Nurse Suffoletta took Resident 1’s vital signs
twice between 8:00 p.m. on January 2 and 2:00 a.m. on January 3, and found those vital
signs were normal, I misstated CMS’s position and failed to address material evidence
directly contradicting this finding. In so finding, the Board referred to my statement that
CMS did not dispute whether Nurse Suffoletta or other facility staff actually took
Resident 1’s vital signs. The Board noted, however, that the allegation of noncompliance
in the SOD with section 483.10(b)(11) states that Petitioner failed to ensure the
Resident’s vital signs and oxygen saturation levels were monitored as per physician’s
orders (CMS Ex. 3, at 4) and CMS argues in its CMS Reply Br. at 9, citing Tr. at 83-84,
that Nurse Suffoletta did not monitor Resident 1’s vital signs or oxygen saturation levels.
The Board found that my finding with regard to CMS’s position was thus in error.

The Board also stated that the record includes additional evidence and testimony that I
did not address. Specifically the Board cited evidence that neither Nurse Suffoletta nor
any other of Petitioner’s staff took Resident 1’s vital signs during the evening and early
morning of January 2 through 3, 2007. They cite as evidence summaries of survey
interviews in the SOD, the surveyors’ hearing testimony, and Ms. Wherry’s hearing
testimony. They also cite to two interviews Nurse Suffoletta had with the surveyors
where Nurse Suffoletta herself reported that she did not take Resident 1’s vital signs.
CMS Ex. 3, at 7, 12, 17. Both Surveyors Beard and Branham testified that they found no
18

documentation that Resident 1’s vital signs were taken prior to 4:00 a.m. on January 3.
See Tr. at 84, 86-87, 115-16, 131-33, 137-38. The Board determined also that I did not
address Ms. Wherry’s testimony that during the course of her visit on the evening of
January 2 she did not observe any member of Petitioner’s staff take Resident 1’s vital
signs. Tr. at 36-37.

The Board noted that while Nurse Suffoletta testified that she took, but did not record,
Resident 1’s vital signs at approximately 8:30 p.m. on January 2, in other testimony
Nurse Suffoletta implied that she did not personally take Resident 1’s vital signs after that
point. Tr. at 216-17, 227, 240. She testified that she checked on Resident 1 by walking
past the room and “would look in and check on her, make sure she hadn’t thrown up. I
know I did twice.” Tr. at 221. However, in response to whether Resident 1’s vital signs
were taken after 8:30 p.m. but before 4:00 a.m., Nurse Suffoletta stated “[w]e checked
them again probably — between midnight and 2:00.” Tr. at 227. Nurse Suffoletta later
confirmed she “didn’t personally check the resident’s vital signs each time,” and that the
vital signs were taken by CNAs, who reported their findings to her on pieces of paper
which were then discarded, and these vital signs were not otherwise documented in the
medical record. Tr. at 240-41. However, the SOD relates that in an interview with the
CNA who cared for Resident 1 on January 2-3, 2007, the CNA told the surveyor that she
was not instructed to take Resident 1’s vital signs at 8:30 p.m. or 1:00 a.m. CMS Ex. 3,
at 6, 18-19; see also Tr. at 138-39. The SOD relates that between 2:00 and 2:30 a.m., the
CNA performed an incontinence check on the Resident, during which “the resident kept
her eyes closed and there was no response from the resident.” CMS Ex. 3, at 6. The
CNA allegedly told the surveyors that this behavior “‘was unusual for this resident
because she would normally resist removal of the blanket during incontinence care.”
CMS Ex. 3, at 19. The Board also noted that Nurse Suffoletta did not testify
unequivocally that any staff member took vital signs.

The Board stated that the evidence it cited conflicts with my finding that Nurse Suffoletta
checked Resident 1’s vital signs twice between 8:00 p.m. and 2:00 a.m. and found them
to be stable. ALJ Decision at 11. The Board directed me to consider the SOD summary
interviews and hearing testimony cited and explain whether they change my prior
assessment of the weight of the evidence relating to the charge that the facility failed to
timely consult Resident 1’s physician due to a change in the Resident’s condition, as
required by Petitioner’s policy and 42 C.F.R. § 483.10(b)(11).

CMS also asserts this evidence calls into question Nurse Suffoletta’s credibility.
Summaries of surveyor interview with her indicate she made prior inconsistent
statements that constitute impeaching evidence on the point. The Board noted that my
assessment of her “experience and training” does not take into account evidence that
Petitioner terminated Nurse Suffoletta’s employment based on its determination that she
“failed to act appropriately and did not use good nursing judgment” and “the facility
management [did] not have confidence in [her] ability to perform her assigned job.”
19

CMS Ex. 21, at 2,4. The Board directed me to discuss my assessment of Nurse
Suffoletta’s credibility and her hearing testimony and nursing notes in light of the
conflicting evidence discussed.

Petitioner argues initially with regard to the physician’s order to monitor vital signs
routinely that, in fact, it did so, 29 times between November 17, 2006 and January 2,
2007. P. Remand Br. at 27. The specific issue here, however, is not so much whether
Petitioner was routinely monitoring Resident 1’s vital signs, but whether, in this instance,
Petitioner should have been monitoring and assessing Resident 1’s oxygen saturation
level and vital signs on January 2-3, 2007.

Although Petitioner initially argues that the Board was wrong when it disagreed with my
finding that Nurse Suffoletta took Resident 1’s vital signs at least twice during the
relevant time, in its reply on remand Petitioner recognizes that while Nurse Suffoletta
may not have personally taken the Resident’s vital signs, the evidence shows that she was
not unaware of the Resident’s vital signs between 8:00 p.m. and 1:00 a.m. Indeed, Nurse
Suffoletta testified that she was so aware. Tr. 217-18, 221, 227. She testified that CNAs
took the Resident’s vital signs, wrote the values on the scraps of paper and gave the
information to her. Although CMS ardently demands corroboration of this, Petitioner
quite reasonably asserts that “short of finding the scraps of paper, it is not clear what else
would suffice to credit Nurse Suffoletta’s testimony. ...” P. Remand Reply at 9.

Petitioner argues further that the gist of CMS’s argument is that Nurse Suffoletta should
have documented even normal vital signs in the Resident’s chart and, in the absence of
such documentation, I cannot in my role as a fact-finder determine that vital signs were
ever taken. According to Petitioner, CMS is asserting either that a policy of
documentation by exception is unacceptable or that Nurse Suffoletta used that policy as a
rationale to cover up her failure to take vital signs at all. Petitioner asserts that there is no
reason to disbelieve Nurse Suffoletta’s straightforward testimony about what she did and
that documentation by exception is a common, generally acceptable practice. P. Remand
Br. at 30-33; P. Remand Reply Br. at 10.

Petitioner argues that the real issue is rather whether Nurse Suffoletta was taking
reasonable steps during the night in question to inform her analysis as to whether
Resident 1 was seriously ill, including reviewing Resident 1’s chart to determine a reason
for her illness and evaluating whether the Resident was seriously ill by considering her
appearance and demeanor thereafter, and by visually monitoring her and measuring vital
signs.

I agree with Petitioner that the question is whether Nurse Suffoletta monitored the
Resident on the night in question. Moreover, the Board has specifically asked me to re-
evaluate whether Resident 1 was properly monitored and assessed on that night. After
consideration of the Board’s own observations in this regard, I find that Nurse Suffoletta

20

did not properly monitor and assess Resident | on the night in question and find,
moreover, that my initial finding that Nurse Suffoletta took unrecorded but normal vital
signs of Resident 1 twice between 8:00 p.m. and 2:00 a.m. is erroneous.

In re-evaluating the evidence I need not address the issue of whether Petitioner could
properly monitor and assess Resident 1 by documenting her vital signs by exception,
because other evidence cited by the Board should have led me to conclude that Resident
1’s vital signs were not taken that evening and that Petitioner was thus not properly
monitoring and assessing Resident | during the evening and early morning of January 2-
3, 2007.

The Board’s reference to summaries of survey interviews in the SOD, the surveyors’
hearing testimony, and Ms. Wherry’s hearing testimony, as well as Nurse Suffoletta’s
interviews with the surveyors, in conjunction with the lack of documentation regarding
whether vital signs were taken (CMS Ex. 3, at 7, 12, 17; Tr. at 36-37, 84, 86-87, 115-16,
131-33, 137-38), should have led me to conclude that by a preponderance of evidence,
despite Nurse Suffoletta’s testimony directly before me to the contrary, Resident 1’s vital
signs were not taken that evening. Although Petitioner argues that the physician’s orders
to monitor and assess Resident 1’s oxygen saturation and vital signs were for routine
monitoring, not for monitoring in an acute situation such as occurred on the night of
January 2-3, Petitioner’s policy and AMDA guidelines require immediate physician
notification where a resident has emesis combined with pain associated with a change in
vital signs. P. Ex. 29, at 20; P. Ex. 30, at 2. Unless Nurse Suffoletta took Resident 1’s
vital signs she would not know whether that, combined with Resident 1’s profuse
vomiting, required immediate physician notification.*

2. Petitioner failed to substantially comply with the quality of care regulation
at 42 C.F.R. § 483.25 (Tag F-309).

The Board’s remand asked me to reconsider my finding that that Petitioner was in
compliance with this participation requirement. Board Remand at 21-26. Having done
so, I find Petitioner failed substantially to comply with this participation requirement.

The Board noted that the quality of care regulation at 42 C.F.R. § 483.25 provides:

Each resident must receive and the facility must provide the necessary care and
services to attain or maintain the highest practicable physical, mental, and

* While Petitioner might argue that Resident 1 was not in pain, her profuse vomiting was
certainly not something that would make her comfortable. Moreover, given Resident 1’s

mental acuity, it is not clear whether or not she would be a valid reporter of pain. Thus, it
was even more incumbent that Nurse Suffoletta ensure that vital signs be taken.
21

psychosocial well-being, in accordance with the comprehensive assessment and

plan of care.
Applying this language, the Board noted it has previously held that a facility’s failure to
implement physician orders, to comply with its own policies, or to furnish care and
services in accordance with a resident’s plan of care can constitute a deficiency under
section 483.25. Woodland Village Nursing Center, DAB No. 2053, at 9 (2006), citing
Lakeridge Villa Health Care Center, DAB No. 1988, at 22 (2005), citing The Windsor
House, DAB No. 1942, at 55-56 (2004), Batavia Nursing and Convalescent Center, DAB
No. 1904 (2004), aff'd, Batavia Nursing & Convalescent Center, 129 Fed.Appx 181 (6"
Cir. 2005), and Spring Meadows Health Care Center, DAB No. 1966, at 16-17 (2005).
The Board stated it has also held that the quality of care provision “implicitly imposes on
facilities a duty to provide care and services that, at a minimum, meet accepted
professional standards of quality ‘since the regulations elsewhere require that the services
provided or arranged by the facility must meet such standards.’” Sheridan Health Care
Center, DAB No. 2178, at 15 (2008), quoting Spring Meadows, DAB No. 1966, at 17.

The Board cited specific areas for me to consider on reconsideration. The Board first
referenced that I described CMS’s allegations of noncompliance with this requirement as
“essentially based on the same set of facts and circumstances involving Resident 1.” ALJ
Decision at 12. The Board stated that my decision was unsupported by sufficient analysis
when I determined that Petitioner had established Resident | received the necessary care
and services, that CMS did not demonstrate that Petitioner failed to act based on a
particular standard of care, and that CMS did not demonstrate that Petitioner’s care plans
or assessments failed to meet Resident 1’s needs. The Board noted that I found that
Petitioner’s staff acted in a manner consistent with professional standards of care and
quality and that there was no failure on Petitioner’s part to properly monitor or assess
Resident 1.

The Board noted that on appeal CMS argues that I did not fully address its allegations
that between the times that Resident 1 began vomiting, and Resident 1’s transport to the
ospital, Petitioner did not institute any interventions to help her condition or alleviate
er symptoms. CMS points out that there is no evidence or testimony that Petitioner
administered any treatment to Resident 1 between 4:00 and 4:21 a.m. on January 3 and
that based on physician orders and generally accepted standards of care for patients in
distress Petitioner should have provided suctioning or administered oxygen to her during
that period. CMS further argues that my analysis did not address Petitioner’s failure to
implement the physician’s November 17, 2006 orders regarding vital signs and oxygen
saturation levels.

The Board candidly and explicitly stated its view that CMS’s contentions have merit.

The Board noted that my summary factual findings that Resident 1 received the necessary
care and services and that Petitioner did not fail to properly monitor or assess Resident |
were based on my evaluation of the evidence and factual findings supporting my finding
22

that Petitioner was in compliance with the participation requirement reflected at Tag F-
157. As the Board remanded the finding at Tag F-157 to me, the Board determined to
also remand my finding with regard to Tag F-309 for a revised analysis of whether
Petitioner was in substantial compliance with section 483.25.

The Board concluded that I erred by limiting my analysis to the same questions addressed

and resolved in the facility’s favor with regard to Tag F-157. Its view of the matter, the

view by which I am obliged to proceed, was that the allegations of noncompliance are not

“merely duplicative or derivative” of CMS’s allegation of noncompliance regarding the
physician consultation requirement or limited to addressing the care and services
provided Resident | from the evening of January 2 until 4:00 a.m. on the morning of
January 3 when Resident | was found unresponsive. The Board cited six SOD findings
on which CMS’s determinations and allegations of Petitioner’s noncompliance with
section 483.25 are based. They include:

1. From November 2006 until Resident 1’s death, the facility failed to implement
the November 17, 2006 physician orders for routine vital signs and daily oxygen
saturation readings for Resident 1. The treatment administration records for
November and December 2006 showed only 10 oxygen saturation readings from
November 17, 2006 through December 31, 2006, and none for January 2007. The
records also showed that the Resident’s vital signs had not been taken daily as
ordered by the physician. CMS Ex. 3, at 14-15, 19-20; CMS Br. at 12-13, citing
CMS Exs. 3, 17, P. Ex. 12, Tr. at 22, 137-38.

2. “Documentation by exception” of vital signs and oxygen saturation levels is not

acceptable when there are explicit physician’s orders for monitoring those signs
and levels. CMS Br. at 13, citing Tr. at 22, 234-40; P. Ex. 12.

3. Between 4:00 and 4:21 a.m. on the morning of January 3, 2007, Petitioner
failed to suction or administer oxygen to Resident 1, contrary to the physician’s
orders for oxygen to be administered when Resident 1’s oxygen saturation levels
fell below 88% and to professional standards of care. CMS Ex. 3, at 13-14, 17;
CMS Br. at 13, citing P. Ex. 12; Tr. at 147-48.

4. Petitioner did not give EMS a verbal report of the Resident’s allergies, recent
medical history or inform them that the Resident had been vomiting when EMS
arrived to transport Resident | to the hospital on January 3, 2007. CMS Ex. 3, at
16.

5. The transfer paperwork prepared by the facility for EMS and the hospital did
not reveal the Resident had been profusely vomiting. CMS Ex. 3, at 16.
23

6. Ina survey interview with the attending physician on-call for the facility on
January 3, 2007, the physician stated he reviewed Petitioner’s nursing
documentation and the notes, and he stated it looked like the facility did not do
anything for the Resident until they “found her on death’s door.” CMS Ex. 3, at
16.

The Board also pointed out that while Petitioner argues CMS pressed the quality of care
tag only cumulatively, Petitioner presented evidence and argument to contest these six
allegations. The Board noted that I did not address these material disputes.

The Board also noted its finding that Petitioner admitted it did not follow physician
orders to document Resident 1’s oxygen saturation levels, citing Tr. at 22 and CMS Ex.
3, at 12 [where the SOD states that in a survey interview the DON revealed she was
unaware vital signs and oxygen saturation readings were not obtained as ordered. The
DON stated that nurses were to record Resident 1’s vital signs and oxygen saturation on
the treatment administration record (TAR)]. The Board found this failure material to the
question of whether Petitioner was in substantial compliance with section 483.25.

The Board stated that I also erred in finding that there was no allegation or evidence that
Petitioner’s care plans or assessments failed to meet Resident 1’s needs. The Board
noted that CMS’s determination was based on findings in the SOD, conceded by
Petitioner, that Petitioner failed to revise Resident 1’s care plan to reflect physician orders
for vital signs to be taken routinely and oxygen saturation readings to be done daily.
CMS pointed to other record evidence, including November 17, 2006 physician orders,
facility records indicating that the orders were not reflected in Resident 1’s plan of care,
and the SOD summary of the survey interview with the DON where she stated “the care
plan should have been revised when new orders were obtained.” CMS Exs. 3, at 12; 17,
at 9; P. Exs. 12-15. The Board directed that in light of CMS’s allegations and
Petitioner’s admission of noncompliance, I must consider whether Petitioner’s failure to
update Resident 1’s care plan to implement physician’s orders constitutes noncompliance
with 42 C.F.R. § 483.25.

I address the six SOD findings referenced by the Board.

1. Ido not have to decide whether Resident 1’s vital signs were taken “routinely” or only
sporadically. Petitioner admits that it did not monitor Resident 1’s oxygen saturation
levels daily, and that is a deficiency under this quality of care tag as the failure to
implement physician orders here constitutes a deficiency. Moreover, I have found that
Petitioner did not take Resident 1’s vital signs during the night in question, which at the
least constitutes a failure to follow its own emesis policy, and the failure to comply with
its own policies here also constitutes a deficiency under this participation requirement.
24

2. With regard to documentation by exception, Petitioner argues that the Board “mixes
apples and oranges” in evaluating Nurse Suffoletta’s observations during the night in
question in terms of a general admission order to periodically “monitor” oxygen
saturation and vital signs. Petitioner argues that the physician’s order had nothing to do
with her illness. Petitioner queries whether there is evidence in the record supporting a
finding that some standard of care or regulation required Nurse Suffoletta to record all

er vital sign observations when not abnormal. Petitioner notes unrebutted testimony by
Susan Lincoln, R.N., that there is nothing inherently wrong with the common practice of
documenting routine observations by exception, i.e., documenting only abnormal
findings, although what she actually testified is that it is a “customary practice.” Tr. at
261. Petitioner argues that in the absence of evidence to the contrary Nurse Lincoln’s
testimony regarding documenting routine observations by exception should be
conclusive. Petitioner references also excerpts from nursing textbooks and manuals to
buttress its argument that documenting by exception is a common practice and not per se
unreasonable. P. Remand Br. at 30-33, citing P. Exs. 39-44. Petitioner does note,
owever, that the practice is not “universally employed” and that specific training and
implementation of special flow sheets is recommended. P. Br. at 33.

I find that documentation by exception of vital signs and oxygen saturation levels is not
acceptable here, and thus Petitioner’s failure to document vital signs and oxygen
saturation levels on January 2-3, 2007, constitutes a deficiency. While Nurse Lincoln
testified that documentation by exception is a common practice, Petitioner did not prove
by a preponderance of the evidence that documentation by exception was a common
practice at Petitioner’s facility during the time in question. Petitioner has not shown that
it specifically trained its employees regarding documentation by exception, that there was
a written facility policy describing documentation by exception, or that special forms
were implemented to embrace that practice. Moreover, while Petitioner argues that it is
“mixing apples and oranges” to discuss whether Nurse Suffoletta’s actions on the night in
question should be evaluated against whether Petitioner should have been routinely
documenting physician’s orders for monitoring vital signs and oxygen saturation levels
by exception, the Board’s remand is not specific to the night in question but goes to the
broader question as to whether Resident 1’s physician’s orders could be documented by
exception and not charted. Petitioner has not shown that they could.

3. Petitioner argues that the Board set forth a “laundry list” of actions Nurse Suffoletta
should have done differently between 4:00 a.m. and 4:21 a.m. and that such discussion is
entirely speculative. P. Remand Br. at 37. Petitioner references the “extraordinarily
compressed” time frame in which these events unfolded and asserts the Board’s
discussion did not address this in a “realistic context” given Nurse Suffoletta’s actions
which included assessing the Resident, trying to call the attending and on-call physician,
discussion with the DON, calling 911, calling the local hospital, and returning to Resident
1’s room to check her vital signs prior to emergency services arriving at 4:21 a.m. P.
Remand Br. at 37-39.
25

Petitioner acknowledges that Nurse Suffoletta might have administered oxygen to
Resident 1 given her low observed oxygen saturation level of 46% at 4:00 a.m. and 36%
at 4:10 a.m., and that Resident 1’s physician had a standing order to administer oxygen to
Resident | if her oxygen saturation level fell below 88%. P. Remand Br. at 40.

Petitioner argues, however, that CMS offered no evidence that such intervention was
feasible given the circumstances noted above, and that the critique is thus at best
‘hypothetical and speculative.” Petitioner argues that CMS did not prove that Nurse
Suffoletta was “indifferent or impassive” during the emergency and “accomplished a
great deal in a very few minutes.” P. Remand Br. at 41.

Petitioner misapprehends its burden on this point. While Petitioner argues that there is no
evidence that Resident 1 had an airway obstruction or was not breathing, and that
therefore suctioning or oxygen administration was necessary treatment (P. Remand Reply
at 12), it is impossible on this record to know whether she displayed those conditions or
not because there is no evidence that Petitioner’s staff assessed the Resident for these
conditions. Petitioner did not show that staff contacting the Resident’s physician and
treating the Resident were mutually exclusive activities. Petitioner acknowledges that
when Resident 1’s oxygen saturation fell below 88% her physician ordered the
administration of oxygen. Petitioner’s argument that it might not have been “feasible” to
do so does not show that at 4:00 a.m., on January 3, 2007, Nurse Suffoletta or Petitioner’s
other staff recognized the order for oxygen administration, assessed whether that order
should have been followed, and then determined that they did not have the time to do so.
In fact, there is no evidence of record that this was considered. See Tr. at 148.
Petitioner’s failure to comply with physician’s orders is a failure to comply substantially
with this participation requirement.

4 and 5. Petitioner argues there is no direct evidence in the record regarding what Nurse
Suffoletta wrote or said to EMS personnel. The EMS “run report” does not reflect what
Nurse Suffoletta told them. P. Remand Br. at 41- 42. Petitioner argues that it is
unrealistic to expect that in a compressed period of time Nurse Suffoletta should have left
Resident 1’s bed and delayed what she was doing to draft a more complete history
regarding Resident 1’s allergies, recent medical history, or inform them the Resident had
been profusely vomiting. Petitioner argues that CMS did not offer any evidence that

Nurse Suffoletta’s actual nursing judgments in this regard were outside of any applicable
standard of care. P. Remand Br. at 40.

The run report prepared by EMS contains no evidence of Resident 1’s allergies, recent
medical history, or that the Resident had been vomiting. CMS. Ex. 18, at 1-2. The ER
physician caring for Resident 1 on January 3, 2007, told a surveyor that the paperwork
the facility prepared did not reveal Resident | had been profusely vomiting and that EMS
did not provide any information concerning Resident 1’s history of recent vomiting. The
ER physician stated to the surveyor that the vomiting could have contributed to Resident

26

1’s decline in condition. CMS Ex. 3, at 16. Given that Resident 1’s condition declined
after a recent bout of vomiting, this was information that should have been provided to
the EMS personnel while they were in the building. Even arguing that Nurse Suffoletta
may have believed that her vomiting was due to a minor stomach upset caused by
medicine or a minor flu bug, that the Resident had just been ill was something EMS
personnel should have been made aware of so that they, in turn, could relay that
information to the ER. That the information was not given to the EMS personnel I find to
constitute noncompliance with the participation requirement.

6. Inote the attending physician on-call’s statement to the surveyor, after his review of
the documentation regarding the incident, that it appeared to him that the facility did not
do anything for Resident 1 until they “found her on death’s door.” CMS Ex. 3, at 16.
While that may be his opinion, I do not find his statement, based as it is on a review of
uncertain documentation, and regarding which he did not testify, supports my basing a
regulatory violation on it.

Finally, as discussed above, | find that Petitioner’s failure to update Resident 1’s care
plan to implement physician’s orders that routine vital signs be taken and oxygen
saturation readings be done daily constitutes noncompliance with this participation
requirement. In this regard I rely on the SOD summary of the DON’s statement that
Resident 1’s care plan should have been revised when the physician’s order regarding
vital signs and oxygen saturation readings was obtained.

3. Petitioner failed to substantially comply with the Facility Administration
Requirement at 42 C.F.R. § 483.75 (Tag F-490).

The facility administration regulation at 42 C.F.R. § 483.75 requires that:

A facility must be administered in a manner that enables it to use its resources
effectively and efficiently to attain or maintain the highest practicable physical,
mental, and psychosocial well-being of each resident.

The Board discussed this deficiency at pages 26-29 of its decision. The Board noted that
I rejected CMS’s allegations in finding that CMS did not establish that systemic
breakdowns on the part of Petitioner’s administration caused a deficient facility practice.
The Board noted that I found the administration deficiency to be a derivative deficiency
based on the findings of other deficiencies, citing Cross Creek Health Care Center, DAB
No. 1665, at 19 (1998). It noted my conclusion that CMS’s case was refuted regarding
the predicate issue of its staff's response to Resident 1’s episode of vomiting and that
failure of the predicate case thus doomed the derivative citation.

The Board observed that a determination that a facility fails to substantially comply with
this requirement may be derived from findings that it was not in substantial compliance

27

with other participation requirements. The Board pointed out that in prior decisions,
including in Cross Creek, it has held that where a deficiency finding under this section is
derivative, i.e. based on surveyors’ identification of other deficient practices, the
existence of those separately identified deficiencies “may constitute a prima facie case
that a facility has not been administered efficiently or effectively as required by section
483.75.” Odd Fellow and Rebekah Health Care Facility, DAB No. 1839 (2002), citing
Asbury Center at Johnson City, DAB No. 1815 (2002). However, neither regulations nor
Board precedent requires that all administration deficiencies be exclusively derived from
findings of noncompliance with other, separately identified, deficiencies. Findings of
noncompliance with this requirement may be identified in the course of investigation of
other deficiencies but not wholly derived from them. Thus, a finding that a facility is in
substantial compliance with a separately identified requirement does not “doom” the
administration deficiency as I suggested. The reviewer must consider whether any of the
allegations of noncompliance with the requirement, standing alone, are supported by the
evidence and independently constitute noncompliance with this requirement. Thus, the
Board concluded that even if I find Petitioner complied with the quality of care and
physician consultation requirements, I should address whether Petitioner was
“administered in a manner that enabled it to use its resources effectively and efficiently to
attain or maintain the highest practicable physical, mental, and psychosocial well-being
of each resident.”

Given that I now find Petitioner out of substantial compliance with the quality of care and
physician participation requirements, at a level of immediate jeopardy as discussed
below, it is perhaps unnecessary that I address this requirement, since the Board has held
that “where a facility has been shown to be so out of compliance with program
requirements that its residents have been placed in immediate jeopardy, the facility was
not administered in a manner that used its resources effectively to attain the highest
practicable physical, mental, and psychosocial well-being of each resident.” Asbury
Center at Johnson City, DAB No. 1815, at 11. Thus, these two deficiencies alone justify
a finding that Petitioner was out of substantial compliance with this participation
requirement. However, to address the Board’s concerns, I note the parties’ arguments
and briefly discuss them.

The Board stated that CMS’s determination is based on SOD findings that:

1. Petitioner’s “Administrator failed to take necessary actions to correct deficient
practices involving residents with a significant change in condition, and
investigate events contributing to the deficient practice.”

2. Petitioner’s “Administrator failed to assure all staff were properly trained in
regard to their policy and procedure of notification of the physician when a
resident experienced a change in condition that required alteration or treatment.”
28

3. Petitioner’s “Administrator failed to investigate the incident of 01/02/07-
01/03/07 to determine the causative factors related to the care and services that
were not provided Resident #1.”

CMS Ex. 3, at 20-21.

The Board observed that to support the second finding, the SOD cited facility training
records, and survey interviews with Nurse Suffoletta, the Administrator, the DON, and
the nurse training consultant. CMS Ex. 3, at 3-4, 9-10, 19, 23-24. The SOD stated that
nursing staff had not received training and all materials on the facility’s physician
notification policies and that Petitioner did not review whether staff received, reviewed
and understood the policies and procedures. Jd.

The Board noted that to support the third finding, the SOD cited, among other things, a
March 14, 2007 survey interview with the Administrator who stated that “a thorough
clinical review should have been done after the incident, but had not.” CMS Ex. 3, at 22-
23. According to the SOD, only after this interview did Petitioner conduct a thorough
clinical review of whether appropriate care and services were provided to Resident 1.
The SOD also stated that findings from the investigation “revealed the nurse did not
follow the facility’s policy and procedures for change in condition and physician
notification.” Jd. The Board references CMS Ex. 21, at 4, a letter received on March 21,
2007, by the Kentucky Inspector General, in which Petitioner’s Senior Executive
Director states that following the investigation of neglect regarding Resident | Petitioner
terminated Nurse Suffoletta’s employment because she “failed to act appropriately and
use good nursing judgment” and that although they could not determine whether her
actions were appropriate or caused harm, Petitioner did “not have confidence in her
ability to perform her assigned job.”

The Board noted that Petitioner argues, among other things, that before the survey started
its administrators did investigate the incident and concluded that Nurse Suffoletta’s
clinical response was not inadequate. P. Ex. 24; Tr. at 245. However, as noted in
footnote 6 of the Board’s decision, P. Ex. 24, a seven-page document titled “Incident
Investigation Levels III & IV (Root Cause Analysis) Form” actually concluded that
Nurse Suffoletta “failed to follow facility policy & procedure of documentation,
assessment, and physician notification.” P. Ex. 24, at 7. The Board also noted
Petitioner’s contention that the state agency previously concluded Petitioner’s training
was effective, and written evidence and Nurse Suffoletta’s hearing testimony establish
that she received adequate training in Petitioner’s physician notification policy and, in
fact, knew the content of Petitioner’s physician notification policy. Tr. at 144-46, 222-
24.

In its remand, the Board required me to consider whether CMS’s allegations that
Petitioner failed to conduct a timely and thorough investigation of the circumstances

29

surrounding Resident 1’s death, and failed to ensure that staff were properly trained in
facility policy and procedures, are supported by a preponderance of the evidence and
constitute noncompliance with the administration regulation.

CMS argues in its remand briefing that systemic failures existed at the facility and that
the administrator is responsible for those failures. CMS Remand Reply Br. at 11-13. It
cites to Surveyor Branham’s testimony regarding immediate jeopardy at the facility with
regard to those systemic failures, stating that,

[I]t’s the system. I looked at the facility’s system of they didn’t have an effective
system to identify when a resident had a change in status. They didn’t have an
effective system to notify that doctor when there was a change in status. And even
after the occurrence, there was no care and services provided this resident. Even
when she was found at 4:00 a.m. unresponsive and her vital signs was nothing and
her 02 SATs was 42 I think it was or 46, there was no -- there was nothing
provided to this resident. I asked the nurse what do you do. She went to call the
doctor. Well, I understand that but there was -- there was no suctioning, there was
no oxygen provided for her.

Tr. at 147-48. CMS notes that Petitioner’s administration was unaware of many of the
issues surrounding Resident 1’s sudden decline and death. CMS acknowledges that the
administrator would not be responsible for knowing the smallest details of Resident 1’s
condition, but argues that he should have investigated whether the care provided to
Resident | was appropriate. Moreover, CMS argues that the facility should have looked
deeper into the issue regarding the on-call physicians being unavailable prior to the
surveyors bringing the issue to the facility’s attention. CMS argues that during the
“scramble” to locate the on-call physician, staff lost time they could have used to care for
Resident 1’s acute needs. CMS also references that the administrator was not aware that
Petitioner’s training was flawed, in that its nurses had not all received the relevant
training materials or had understood the material evaluated.

Petitioner argues that there is nothing so noteworthy about Resident 1’s situation that
should have prompted its Administrator to “investigate” and that what CMS is really
saying is that its Administrator should have anticipated the deficiencies found by the
survey team only weeks after the fact. In this regard, Petitioner asserts: Resident 1 died
a natural death after a period of declining health; if the administrator found out that
Resident 1 had been vomiting he would have learned that Nurse Suffoletta believed it to
be a single episode of emesis as she reported to the DON; the administrator would not
have discussed the matter with the physician because he was out of town; the state
agency had approved Petitioner’s change of condition policy the day before Resident 1
became ill, so it is unlikely the administrator would have questioned its efficacy; and thus
it is unclear what an investigation at that time might have found. Petitioner notes that the
facility did investigate Ms. Wherry’s complaint regarding the advanced directive, found
30

the complaint valid, and the DON discussed the matter with Nurse Suffoletta. P. Remand
Reply Br. at 14-15; P. Remand Br. at 44, 47-48. Once the state agency brought the issue
of physician notification to the facility’s attention, the DON immediately conducted a full
investigation. Referencing decisions in Cedar View Good Samaritan, DAB CR997
(2003) and Pathfinder Healthcare, Inc., DAB CR958 (2002), Petitioner argues that the
regulatory requirement to investigate is triggered only when an administrator actually
learns of facts or allegations that require investigation. P. Remand Br. at 48-49.

With regard to CMS’s critique of Petitioner’s clinical training practices, Petitioner argues
that CMS did not explain the basis for a non-clinician administrator’s obligation
personally to participate in, much less to oversee, clinical training. There is no regulatory
requirement that an administrator grade or review test grades. DON Morgeson testified
she was responsible for clinical training and she assured herself that the new change of
condition policy was implemented appropriately, via staff training of nurses, including
Nurse Suffoletta, both face-to-face and via written material and testing of nurses who
work at night. Nurse Suffoletta was trained in the facility’s new change of condition
policy, as indicated by her signature on the sign-in sheet regarding the training (Tr. at
222; P. Ex. 28, at 2). P. Remand Reply Br. at 15-16; P. Remand Br. at 46.

I disagree with Petitioner that is logically inconsistent to find Petitioner’s implementation
of the new physician notification policy deficient the same day SSA and then CMS
approved it. The problem in this case has never been the policy, which essentially re-
states the AMDA guidelines. The problem is Nurse Suffoletta’s understanding and
application of that policy. I accept that Petitioner trained Nurse Suffoletta on the policy.
However, assuming Petitioner did so, the training was deficient. Nurse Suffoletta came
out of the training not understanding what the policy required when she had to apply it on
January 2-3, 2007. Moreover, although she apparently missed questions on the written
test following reading the information left for her, nobody at the facility followed up to
ensure that her (and presumably any other staff’s) understanding of the obligations was
correct. While it may not be an administrator requirement to make up, administer, or
grade a test, it is certainly a facility administrator’s ultimate responsibility to ensure that
staff are properly trained in facility policy and procedures. Petitioner has not shown that
its administration showed that they were here.

Petitioner argues that a decision by a federal appellate court, Emerald Shores Health
Care Associates, LLC v. DHHS, 545 F.3d 1292 (11th Cir. 2008), warns against
imposition of regulatory liability based on unknown and unknowable standards.
Petitioner’s argument asserts that CMS’s interpretive guidelines to the administration
regulation are worded in general terms and it is difficult to see how an administrator
could find a regulatory obligation to anticipate and correct a deficiency even the survey
team had trouble developing. P. Remand Br. at 45. In this case, however, the survey
team had problems precisely because Petitioner did not conduct a timely and thorough
investigation of what occurred that night and was thus unaware of issues surrounding
31

Resident 1’s decline and death. Given the change in its physician notification policy
following a change in condition, Petitioner should have been acutely conscious of how it
was fulfilling this obligation. Staff was certainly cognizant of the problems Nurse
Suffoletta had in reaching the physician. But nobody in authority at the facility asked
whether those issues could have affected Resident 1’s treatment. While a facility
administrator does not, and as CMS notes perhaps should not, focus on the minutia of
day-to-day care provided to individual residents, the administrator is ultimately
responsible for the care the facility provides to residents. See Tr. at 121; CMS Br. at 16.

4. CMS’s determination that the facility’s noncompliance posed immediate
jeopardy to resident health and safety is not clearly erroneous.

Immediate jeopardy exists if a facility’s noncompliance has caused, or is likely to cause,
“serious injury, harm, impairment, or death to a resident.” 42 C.F.R. § 488.301. CMS’s
determination as to the level of a facility’s noncompliance (which includes an immediate
jeopardy finding) must be upheld unless it is “clearly erroneous.” 42 C.F.R. § 498.60(c).
The Board has observed repeatedly that the “clearly erroneous” standard imposes on
facilities a heavy burden to show no immediate jeopardy and has sustained
determinations of immediate jeopardy where CMS presented evidence “from which
‘[o]ne could reasonably conclude’ that immediate jeopardy exists.” Barbourville Nursing
Home, DAB No. 1962, at 11 (2005); Florence Park Care Center, DAB No. 1931, at 27-
28 (2004), citing Koester Pavilion, DAB No. 1750 (2000).

I find CMS’s determination of immediate jeopardy is not clearly erroneous. Petitioner
acknowledges that a finding of immediate jeopardy is “presumptively correct . . . after a
finding of noncompliance is sustained.” P. Remand Reply Br. at 16. Here I have found
substantial noncompliance to exist. The noncompliance has to do with, among other
things, Petitioner’s staff’s failure to recognize that Resident 1’s physician needed to be
contacted after her second episode of emesis; Petitioner’s failure to monitor Resident 1’s
vital signs on the night of January 2 and early morning of January 3, 2007 to determine
whether a change in vital signs would necessitate contacting the physician or treating the
Resident; and Petitioner’s failure to consider treatment options when Resident 1 was
found in distress at 4:00 a.m. on January 3, 2007, staff not recognizing that it should have
assessed the Resident for, and considered implementation of, the physician’s order for
oxygen when Resident 1 had low oxygen saturation levels. This noncompliance, at the
very minimum, was certainly likely to cause serious harm to the Resident even if it did
not actually cause her death.

5. Petitioner’s noncompliance at a level of immediate jeopardy extended
from January 3 through March 27, 2007.

As noted above, the Board has determined that a CMP of $100 per day, extending from
January 3 through April 9, 2007, is reasonable based on Petitioner’s noncompliance with
32

42 C.F.R. §§ 483.20(d)(3) and 483.10(k)(2) (Tag F-280) a participation requirement not
cited at an immediate jeopardy level. The Board’s determination precludes my finding
that noncompliance began later than January 3 or concluded prior to April 9, 2007. My
only inquiry is whether the noncompliance with the three other participation requirements
at issue constitutes immediate jeopardy for the period January 3 through March 27, 2007.

Petitioner argues that it took several months for the state agency to identify that anyone
was placed in jeopardy by Nurse Suffoletta’s judgments. Petitioner argues that where
noncompliance focuses on a specific incident or incidents CMS has an obligation to
define the temporal boundaries of the noncompliance with some specificity. Petitioner
argues that where noncompliance focuses on the care of a specific resident as opposed to
a systemic failure, the period of noncompliance ends when the resident dies or leaves the
facility. See Heron Pointe Health and Rehabilitation, DAB CR1401 (2006); Britthaven
of Havelock, DAB CR1392 (2006). Petitioner argues that here CMS actually reviewed
the policy at issue and determined that the policy was compliant on the same day the
incident occurred. Petitioner asserts that the only basis to extend the period of
noncompliance beyond the time Resident 1 left the facility would be to extrapolate, from
staff who trained Nurse Suffoletta stating that they could not recall whether Nurse
Suffoletta was inserviced on the physician notification policy, to a conclusion that
Petitioner’s training policies were so lax as to pose immediate jeopardy to all residents.
Petitioner notes that Nurse Suffoletta testified she was aware of the policy on the evening
and early morning of January 2-3, 2007. Tr. at 224. Petitioner argues that Nurse
Suffoletta’s judgment was not so unreasonable as to be inconsistent with the terms of
Petitioner’s policy.

Petitioner’s arguments are unavailing. I have found Nurse Suffoletta’s judgment
inconsistent with Petitioner’s policy. It is clear from her actions (busy or not as she may
have been that evening) that she did not understand when she had a duty to contact
Resident 1’s physician. I am able to extrapolate her failure to be a failure on the part of
the facility. Her training appears to have been conducted by her reading some material
and taking a written test on which she failed to answer several questions correctly. While
this type of training may be effective in a given circumstance, it is not effective when a
test is not reviewed and misconceptions or outright errors reflected in the test-taker’s
answers addressed. There were also other problems at the facility found during the
investigation. For example, on the evening in question Resident 1’s code status was not
immediately accessible; the physician on-call system did not work; and pertinent
information regarding Resident 1’s condition was not passed to the emergency room.

Although Petitioner urges that the period of noncompliance ended when Resident | left
the facility, the fact is that a facility’s noncompliance is deemed to be corrected only
when incidents of noncompliance have ceased and a facility has implemented appropriate
measures to ensure that similar incidents will not occur. The cases alluded to by
Petitioner are extremely fact-specific and hardly go so far as to say that once a resident
33

leaves a facility — or dies — the facility is back in substantial compliance even where
the conditions that contributed to the deficiency still exist. What I consider instead is
evidence regarding when the noncompliant conduct comes to an end. According to the
state agency and CMS, it was not until March 28, 2007, that the state agency deemed the
immediate jeopardy canceled, after Petitioner conducted additional in-services regarding
physician notification, documentation, and carrying out physician orders. CMS Remand
Reply Br. at 15. Petitioner has not shown that it was in compliance any earlier.

6. The CMP imposed for the period of immediate jeopardy, $4,050 per day
from January 3 through March 27, 2007, is reasonable.

To determine whether the CMP imposed is reasonable, I apply the factors listed in 42
C.F.R. § 488.438(f), which are: (1) the facility’s history of noncompliance; (2) the
facility’s financial condition; (3) factors specified in 42 C.F.R. § 488.404; and (4) the
facility’s degree of culpability, which includes neglect, indifference, or disregard for
resident care, comfort, or safety. The absence of culpability is not a mitigating
circumstance in reducing the amount of the penalty. The factors listed in 42 C.F.R. §
488.404 include: (1) the scope and severity of the deficiency; (2) the relationship of the
deficiency to other deficiencies resulting in noncompliance; and (3) the facility’s prior
history of noncompliance in general and specifically with reference to the cited
deficiencies.

In reaching a decision on the reasonableness of the CMP, I must consider whether the
evidence supports a finding that the amount of the CMP is at a level reasonably related to
an effort to produce corrective action by Petitioner with the kind of deficiency found, in
light of the above factors. I am neither bound to defer to CMS’s factual assertions, nor
free to make a wholly independent choice of remedies without regard for CMS’s
discretion. Barn Hill Care Center, DAB No. 1848, at 21 (2002).

In evaluating the regulatory factors, I find that Petitioner has not submitted evidence
regarding its financial condition. CMS does not contest aggravating factors in
Petitioner’s history. The deficiency is serious and Petitioner is culpable in that
Petitioner’s actions had a serious negative effect on Resident 1’s care, comfort, and
safety. Petitioner’s staff failed to recognize Resident 1’s change in condition, did not
monitor her vital signs, and did not attempt to contact her physician until the Resident
was unresponsive and had an oxygen saturation level of 46%, a level which continued to
drop until she left the facility. CMS Ex. 17, at 31. The only intervention attempted by
Petitioner’s staff was to make phone calls, finally calling EMS, despite physician orders
for treatment for low oxygen saturation levels.

[he CMP range for immediate-jeopardy level noncompliance is from $3,050 to $10,000
per day. 42 C.F.R. § 488.438(a)(1)(i). Here CMS imposed a penalty of $4,050 per day,

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which is at the lower end of the range. Given that the noncompliance was serious, the
$4,050 per day CMP is reasonable.

V. Conclusion

For the reasons discussed above, I find that Petitioner’s facility was not in substantial
compliance with Medicare participation requirements and that its noncompliance posed
immediate jeopardy to resident health and safety. In accordance with the dictate of the
Board, I now find that a $4,050 per day CMP, from January 3 through March 27, 2007, is
reasonable.

/s/
Richard J. Smith
Administrative Law Judge