Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD

Civil Remedies Division

Deltona Health Care,
(CCN: 10-5447),

Petitioner,
v.
Centers for Medicare and Medicaid Services.
Docket No. C-11-362
Decision No. CR2657

Date: November 5, 2012

DECISION

Petitioner, Deltona Health Care (Petitioner or facility), is a long-term care facility located
in Deltona, Florida, that participates in the Medicare program. Based on a survey
completed on January 6, 2011, the Centers for Medicare and Medicaid Services (CMS)
determined that Petitioner was not in substantial compliance with Medicare participation
requirements. CMS imposed against Petitioner a civil money penalty (CMP) of $5,550
per day from September 20, 2010 through January 19, 2011 (122 days at an immediate
jeopardy level) and a CMP of $100 per day from January 20, 2011 through February 14,
2011 (26 days of substantial noncompliance that was not at an immediate jeopardy level).

I find Petitioner not to be in substantial compliance with 42 C.F.R. §§ 483.25(i),
pertaining to Failure to Maintain Nutritional Status, 483.25(h), pertaining to Supervision
and Prevention of Accidents, and 483.20(d) pertaining to Sufficiency of Resident Care
Plans. I also find CMS’s determinations relating to immediate jeopardy not clearly
erroneous, and the CMP that CMS imposed is reasonable.
I. Background

The Florida Agency for Health Care Administration (state survey agency) conducted a
complaint survey of the facility from January 4-6, 2011. The state survey agency
determined that Petitioner was not in substantial compliance with the following five
Medicare participation requirements: 42 C.F.R. § 483.13(c) (Tag F224); 42 C.F.R.

§ 483.20(d) (Tag F279), 42 C.F.R. § 483.25(h) (Tag F323); 42 C.F.R. § 483.25(i) (Tag
F325), and 42 C.F.R § 483.75(0)(1) (Tag F520).

By letter dated January 24, 2011, CMS notified Petitioner that the survey found that the
facility was not in substantial compliance with Medicare participation requirements and
that the conditions constituted immediate jeopardy and substandard quality of care to the
residents’ health and safety. CMS stated that the immediate jeopardy was considered
ongoing since July 20, 2010. CMS informed Petitioner that it was imposing the
following remedies: a CMP of $5,550 per day, effective July 20, 2010, until the
immediate jeopardy was removed or Petitioner’s provider agreement was terminated; a
denial of payment for new admissions (DPNA) effective January 26, 2011, if the facility
was still out of compliance on that date; and termination of Petitioner’s provider
agreement on January 29, 2011, if the immediate jeopardy was not removed by that date.

By letter dated February 28, 2011, CMS notified Petitioner that a revisit survey on
January 26, 2011, found that the immediate jeopardy was removed as of January 20,
2011, but that the facility remained out of substantial compliance. CMS advised
Petitioner that the remedies imposed in the January 24, 2011 notice letter remained in
effect, but the CMP would be decreased as a result of the revisit survey findings. CMS
stated that, effective January 20, 2011, the CMP would accrue at the revised rate of:
$5,550 per day effective July 20, 2010 through January 19, 2011,' and then $100 per day
effective January 20, 2011, until substantial compliance was achieved. With respect to
the continuing remedies, CMS stated that the DPNA remained in effect as of January 26,
2011, and that termination would now be effective July 6, 2011, if Petitioner had not
achieved substantial compliance by that date.

In another letter dated February 28, 2011, CMS notified Petitioner that a second revisit
survey conducted on February 15, 2011, found that Petitioner was in substantial
compliance with Medicare participation requirements. CMS advised Petitioner that the
DPNA would remain in effect from January 26, 2011 through February 14, 2011. CMS
stated further that Petitioner’s provider agreement would be continued.

Petitioner requested a hearing before an administrative law judge (ALJ) on March 25,
2011, and this case was assigned to me for hearing and decision on March 29, 2011.

' In its prehearing briefing and at a prehearing conference, CMS confirmed that it revised
the immediate jeopardy period to actually begin on September 20, 2010.
On December 12, 2011, I convened a video hearing from the offices of the Departmental
Appeals Board in Washington, D.C. Counsel and CMS witness, Katherine D. Johnson,
R.N., convened in Orlando, Florida. I have admitted into evidence CMS Exhibits (Exs.)
1-36 and Petitioner Exhibits (P. Exs.) 1-34. Order Following Prehearing Conference
(November 4, 2011); Transcript (Tr.) at 7. At the hearing, I also admitted into evidence
CMS Exs. 37-39. Tr. at 7.

In accordance with my prehearing order, Petitioner offered direct testimony in the form
of declarations from Paul J. Maluso, M.D. (P. Ex. 27); Nurse Consultant Karen Robbins,
RIN. (P. Exs. 28, 30); Richard Weber, R.N. (P. Ex. 29); Victoria DeJesus, L.P.N. (P. Ex.
31); Carmen Aponte, C.N.A. (P. Ex. 32), and Pearl Moyer, L.P.N. (P. Ex. 33). CMS
chose not to cross-examine any of Petitioner’s witnesses. The parties have filed pre-
hearing briefs (CMS Pre-hrg. Br.; P. Pre-hrg. Br.) and post-hearing briefs (CMS Br.; P.
Br.). CMS filed a post-hearing reply brief (CMS Reply).

II. Issues

Although CMS cited Petitioner for five deficiencies, I make findings of fact and
conclusions of law for three of the five deficiencies cited: 42 C.F.R.

§ 483.25(i) (Tag F325) , 42 C.F.R. § 483.25(h) (Tag F323), and 42 C.F.R. § 483.20 (Tag
F279), deficiencies which fully support the imposition of the CMP.”

Therefore, I consider here:

1) Whether, from September 20, 2010 through February 14, 2011, Petitioner was in
substantial compliance with the requirements of 42 C.F.R. § 483.25(i), pertaining to
Failure to Maintain Nutritional Status, and 42 C.F.R. § 483.25(h), Supervision and
Prevention of Accidents;

2) If, from September 20 through January 19, 2011, Petitioner was not in substantial
compliance with 42 C.F.R. § 483.25(h), 42 C.F.R. § 483.25(i), and 42 C.F.R. § 483.20,
whether CMS’s scope and severity determinations of immediate jeopardy to the health
and safety of Petitioner’s residents were clearly erroneous; and

3) Whether the CMP that CMS imposed was reasonable.

> An ALJ need not review all survey findings of noncompliance if those findings are not
necessary to support the remedies imposed or are not material to the outcome of the case.
Plott Nursing Home, DAB No. 2426 (2011); Western Care Mgmt. d/b/a Rehab
Specialties Inn, DAB No. 1921 (2004); Beechwood Sanitarium, DAB No. 1824 (2002),
modified on other grounds, Beechwood v. Thompson, 494 F.Supp.2d 181 (D.N.Y. 2007).
Ill. Applicable Law

The Social Security Act (Act) sets forth requirements for nursing facilities’ participation
in the Medicare program and authorizes the Secretary of Health and Human Services
(Secretary) to promulgate regulations implementing those statutory provisions. Act

§ 1819 (42 U.S.C. § 1395i-3). The Secretary’s regulations are found at 42 C.F.R. Part
483. To participate in the Medicare program, a skilled nursing facility (SNF) must
maintain substantial compliance with program requirements. To be in substantial
compliance, a facility’s deficiencies may pose no greater risk to resident health and safety
than “the potential for causing minimal harm.” 42 C.F.R. § 488.301.

The Secretary contracts with state agencies to conduct periodic surveys to determine
whether skilled nursing facilities are in substantial compliance. Act § 1864(a) (42 U.S.C.
§ 1395aa(a)); 42 C.F.R. § 488.20. The Act and regulations require that each facility be
surveyed once every twelve months, and more often if necessary, to ensure that identified
deficiencies are corrected. Act § 1819(g)(2)(A) (42 U.S.C. § 1395i-3(g)(2)(A)); 42
C.E.R. §§ 488.20(a), 488.308.

CMS may impose a CMP for the number of days a facility is not in substantial
compliance or for each instance of noncompliance. 42 C.F.R. § 488.430(a). A CMP
imposed against a facility on a per day basis will fall into one of two ranges of penalties.
42 C.F.R. §§ 488.408, 488.438. The upper range of a CMP, $3,050 per day to $10,000
per day, is reserved for deficiencies that pose immediate jeopardy to a facility’s residents
and, in some circumstances, for repeated deficiencies. 42 C.F.R. § 488.438(a)(1)(i),
(d)(2). “Immediate jeopardy means a situation in which the provider’s noncompliance
with one or more requirements of participation has caused, or is likely to cause, serious
injury, harm, impairment, or death to a resident.” 42 C.F.R. § 488.301 (emphasis in
original). The lower range of a CMP, $50 per day to $3,000 per day, is reserved for
deficiencies that do not constitute immediate jeopardy but either cause actual harm to
residents, or cause no actual harm but have the potential for causing more than minimal
harm. 42 C.F.R. § 488.438(a)(1)(ii).

A hearing before an ALJ is available to a long-term care facility against which CMS has
determined to impose an enforcement remedy. Act §§ 1128A(c)(2), 1866(h) (42 U.S.C.
§§ 1320a-7a(c)(2), 1395cc(h)); 42 C.F.R. §§ 488.408(g), 498.3(b)(13). The hearing
before an ALJ generally involves a de novo standard of review. See, e.g., Emerald Oaks,
DAB No. 1800, at 11 (2001). A facility has a right to appeal a “certification of
noncompliance leading to an enforcement remedy.” 42 C.F.R. § 488.408(g)(1); 42
C.F.R. §§ 488.330(e), 498.3. However, the choice of remedies, or the factors CMS
considered when choosing remedies, is not subject to review. 42 C.F.R. § 488.408(g)(2).
A facility may only challenge the scope and severity level of noncompliance that CMS
determined if a successful challenge would affect the range of the CMP amounts that

CMS could collect or a substandard quality of care finding causes the loss of the facility’s
nurse aide training program. 42 C.F.R. § 498.3(b)(14), (d)(10)(i).. The CMS
determination as to the level of a facility’s noncompliance, including the finding of
immediate jeopardy, “must be upheld unless it is clearly erroneous.” 42 C.F.R.

§ 498.60(c)(2); Woodstock Care Ctr., DAB No. 1726, at 9, 38 (2000), aff'd, 363 F.3d 583
(6th Cir. 2003).

CMS has the burden of coming forward with evidence to make a prima facie showing of
a basis for imposition of an enforcement remedy. Petitioner then bears the burden of
persuasion to prove by a preponderance of the evidence that it was in substantial
compliance with participation requirements or to prove any affirmative defense. Batavia
Nursing and Convalescent Ctr., DAB No. 1904 (2004), aff'd, 129 F. App’x. 181 (6th Cir.
2005); Batavia Nursing and Convalescent Inn, DAB No. 1911 (2004); Emerald Oaks,
DAB No. 1800; Cross Creek Health Care Ctr., DAB No. 1665 (1998); see Hillman
Rehab. Ctr., DAB No. 1611 (1997), aff'd, No. 98-3789, 1999 WL 34813783 (D.N.J. May
13, 1999).

The burden of proof that the Departmental Appeals Board (Board) applies is not a rule
under the Administrative Procedure Act, 5 U.S.C. § 556(d), but instead is in the nature of
an order setting forth a rationale, based on the statute and regulations, that establishes
precedent for ALJ hearings in these cases. See, e.g., Batavia Nursing and Convalescent
Ctr., DAB No. 1904 (2004), aff'd, Batavia Nursing and Convalescent Ctr. v. Thompson,
129 F. App’x. 181 (6th Cir. 2005). While this rationale was originally set forth in
Hillman Rehab. Ctr., DAB No. 1611 (1997), it has not been treated as a binding rule but
has been reexamined as appropriate to different types of cases. Moreover, how an ALJ
allocates the burden of persuasion is relevant only when the evidence is in equipoise.
Owensboro Place and Rehab. Ctr., DAB No. 2397, at 9 (2011) (citing Azalea Court,
DAB No. 2352, at 16 (2010)); Fairfax Nursing Home, Inc., DAB No. 1794 (2001), aff'd,
Fairfax Nursing Home v. Dep’t of Health & Human Srvcs., 300 F.3d 835 (7th Cir. 2002),
cert. denied, 2003 WL 98478 (Jan. 13, 2003).

IV. Findings of Fact and Conclusions of Law

A, Petitioner was not in substantial compliance with 42 C.F.R. § 483.25(i)
(Tag F325) because it did not ensure that residents maintained acceptable
parameters of nutritional status, as demonstrated by several residents’
severe and unplanned weight losses.

42 C.F.R. § 483.25(i) requires:

(i) Nutrition. Based on a resident’s comprehensive assessment, the facility must
ensure that a resident —
(1) Maintains acceptable parameters of nutritional status, such as body weight and
protein levels, unless the resident’s clinical condition demonstrates that this is not
possible; and

(2) Receives a therapeutic diet when there is a nutritional problem.

According to interpretative guidelines in CMS’s State Operations Manual (SOM), the
intent of 42 C.F.R. § 483.25(i) is to “assure that the resident maintains acceptable
parameters of nutritional status, taking into account the resident’s clinical condition or
other appropriate intervention, when there is a nutritional problem.” SOM App. PP
(accessible at http://www.cms.hhs.gov/Manuals/IOM/list.asp). The SOM suggests
parameters for evaluating the significance of unplanned and undesired weight loss:

Interval Significant Loss Severe Loss

1 mont 5% Greater than 5%

3 months 7.5% Greater than 7.5%
6 months 0% Greater than 10%

The Board has held that unplanned weight loss may raise an inference of inadequate
nutrition sufficient to be a CMS prima facie showing of a deficiency. Carehouse
Convalescent Hosp., DAB No. 1799, at 21-22 (2001). The Board stated that, “[i]f CMS
relies on weight loss as evidence of a deficiency, the facility may present rebuttal
evidence that the resident did receive adequate nutrition or that the weight loss is due to
non-nutritive factors, such as a clinical condition.” Carrington Place of Muscatine, DAB
No. 2321, at 5 (2010), quoting The Windsor House, DAB No. 1942, at 18 (2004). The
Board’s interpretation of 42 C.F.R. § 483.25(i)(1) is that a facility is not strictly liable for
a resident’s weight loss (Carehouse, DAB No. 1799, at 21), but a “facility is responsible
for taking all reasonable steps to ensure that the resident receives nutrition adequate to his
or her needs” (Windsor House, DAB No. 1942 at 18 ). The Board has stated further that
the “clinical condition exception” is narrow and applies only when a facility demonstrates
that it cannot provide nutrition adequate for the resident’s overall needs so that weight
loss is unavoidable. Windsor House, DAB No. 1942, at 18. “[T]he mere presence of a
significant clinical condition, without additional evidence, does not prove that
maintaining acceptable nutritional status is not possible.” Jd.

1. Petitioner did not sufficiently rebut CMS’s showing of inadequate
nutrition regarding Resident 6’s severe unplanned weight loss.

At the time of the January 6, 2011 survey, Resident 6 (R6) was a 94-year-old woman.
She was admitted to Petitioner’s facility on November 22, 2010, after a hospital stay for a
fractured hip and arm. CMS Ex. 16, at 1. R6’s diagnoses included depressive disorder,
anxiety disorder, hypertension, difficulty in walking, and lack of coordination. CMS Ex.
16, at 1, 85. R6 was alert, with confusion at times, was able to feed herself, and could
make her needs known. CMS Ex. 16, at 4, 65, 80.

Petitioner’s dietician noted in an assessment document titled “Nutrition Data Collection
Tool” that R6 weighed 108 pounds at the time of her November 22, 2010 admission to
the facility. Petitioner’s dietician indicated that R6’s usual body weight was unknown,
and her ideal body weight was 105 pounds, plus or minus 10%. CMS Ex. 16, at 4.
However, on January 3, 2011, the day before the survey, R6 weighed 89.6 pounds, a loss
of approximately 17% of her body weight. CMS Ex. 24, at 2; see CMS Ex. 23.
According to the SOM guidance, a greater than 5% loss in body weight in one month is
considered to be a “severe loss.”

In an entry on the Nutrition Data Collection Tool, dated December 2, 2010, Petitioner’s
dietician stated that R6 was able to feed herself and that she was on a NAS (no added
salt) diet with “intake documented as usually good.” CMS Ex. 16, at 4. She indicated
that R6’s albumin was 2.8, which was “mildly depleted but acceptable for advanced age
of 94.” She stated that she would order “Med Pass 90 cc” as a nutritional supplement
three times a day to prevent weight loss and repair R6’s visceral protein stores. She
indicated that R6 should continue to be monitored for changes. CMS Ex. 16, at 5.
Petitioner does not dispute that R6 did not receive the Med Pass supplement daily as
ordered.

Petitioner’s December 2, 2010 care plan included the following nutritional goals:

“Resident will improve nutrition status” and “[r]esi
changes.” CMS Ex. 16, at 6. The care plan listed t

ent will not have any significant wt
e following interventions: weigh

weekly for one month, then weigh monthly; provide snacks per facility policy, provide

dietary supplements, allow adequate time to eat, off
CMS Ex. 16, at 6.
During the survey, in an interview on January 4, 20

provided the nurse surveyor the monthly residents’
dietary manager stated that R6 had had the stomach

other than that, she was not aware of any changes w:

Pass 90 cc three times a day, do labs as ordered, and

‘er food preferences as available, Med
consult the dietician as needed.

1, Petitioner’s dietary manager
weights obtained the day before. The
flu for two days in December, but
ith R6 in the last 30 days. When

asked if she was aware of R6 experiencing an 18-pound weight loss since December 2,

2010, the dietary manager indicated that she would

ave R6 re-weighed the next day to

ensure accuracy of the weight. P. Ex. 1, at 35; CMS Ex. 1, at 35.

In an interview on January 5, 2011, Petitioner’s diet technician stated that several of the
residents had been re-weighed and provided an updated weight log. R6’s re-weight was
reported as 90.3 pounds, which verified a 17.7-pound weight loss since her admission
less than two months earlier. When asked if she had been made aware of any changes in
R6’s condition prior to the significant weight loss, the diet technician stated “no.” When
asked if R6 was consuming the Med Pass supplement that had been ordered, the diet
technician responded that she would have to check with the nurse. P. Ex. 1, at 35.

The registered dietician reevaluated R6 during the survey on January 5, 2011. CMS Ex.
16, at 5. In an entry on the Nutrition Data Collection Tool, the dietician noted that R6
weighed 90.3 pounds, which was an almost 18 pound loss in the last 30 days. The entry
stated that R6 had been on a clear liquid diet. R6 had recently been prescribed Lexapro
for her depression. The dietician stated that R6’s diet was “back to reg[ular] [with] good
acceptance/tolerance.” She noted that R6 was currently receiving “Med Pass 90 ml” and
that R6 accepted and tolerated it well. R6 had a good appetite and had eaten well at
dinner that day. The dietician recommended increasing the Med Pass to “120 cc” three
times a day to help maximize R6’s nutrient intake, promote weight gain, and prevent
further weight loss. The dietician also recalculated R6’s caloric needs and increased her
daily intake to 1500 calories a day. CMS Ex. 16, at 5. R6’s physician agreed and
ordered that the Med Pass supplement be increased to “120 cc” three times a day. CMS
Ex. 16, at 8-10.

Petitioner argues that “[f]luctuations in weight may be caused by a wide variety of factors
including changes in fluid volume and metabolic reactions to medical conditions, and of
course, variations in scales.” P. Pre-hrg. Br. at 8. According to Petitioner, R6 had a
plaster cast removed from her arm during December 2010, and the loss of the cast likely
contributed to her decreased weight. P. Pre-hrg. Br. at 9. Additionally, Petitioner
suggests that R6’s appetite may have been suppressed because she had recently started
the antidepressant Lexapro. While these factors may have contributed to the weight loss,
I find it concerning that staff did not even initially recognize that R6 was experiencing
weight fluctuations. Between December 2, 2010 and January 3, 2011, R6 lost 18.4
pounds. Had Petitioner’s staff been monitoring R6’s weight weekly as ordered under her
care plan, they would have been alerted to the fact that her weight was on the decline,
and they could then have modified her care plan with appropriate interventions.
However, there was an extended period when Petitioner’s staff was completely unaware
that R6 was losing weight, and at no time did staff modify R6’s care plan to recognize
and address any weight fluctuations until the state survey alerted Petitioner to the
problem. In fact, Petitioner admits that the “first indication” its staff had that R6 was
losing weight was when they received the monthly weights on January 3, 2011. P. Pre-
hrg. Br. at 11.

Further, there is no documentation that Petitioner ever evaluated the effectiveness of the
dietary interventions contained in R6’s December 2, 2010 care plan. Although R6’s care
plan stated that she would receive a Med Pass supplement three times a day, it is
questionable how often R6 received it. Although the care plan stated that the dietician
would be consulted as needed, it was not until January 5, 2011, after R6 had already lost
over 18 pounds, when staff consulted with the dietician regarding R6’s weight loss.
I find R6’s weight loss was unplanned and undesired. Petitioner’s staff did not weigh R6
weekly, as directed by her care plan, and it has admitted that it was unaware until January
2011 that R6 had suffered the severe weight loss. It was incumbent on Petitioner to
monitor R6’s weight and nutritional status so that any weight loss could be identified and
addressed to any extent that the weight loss was avoidable. However, the record does not
reflect any such documentation. I conclude that Petitioner did not sufficiently rebut
CMS’s showing that the facility did not maintain nutrition adequate to R6’s needs or
show that R6’s weight loss was unavoidable.

2. Petitioner did not sufficiently rebut CMS’s showing of inadequate
nutrition regarding Resident 7’s severe unplanned weight loss.

Resident 7 (R7) also suffered a severe weight loss at Petitioner’s facility. R7, who was
admitted on October 3, 2010, weighed 208 pounds on October 4, 2010. A month later,
she weighed 197.8 pounds. On December 2, 2010, R7 weighed 198.6 pounds. Then, on
January 3, 2011, she weighed 173.4 pounds. CMS Ex. 23; CMS Ex. 24, at 1; see CMS
Ex. 17, at 12.

R7’s nutrition and hydration plan of care, dated October 5, 2010, indicated that she would
not have any significant weight changes through her next review. CMS Ex. 17, at 10.
The care plan also listed the following directives: weigh weekly for four weeks, then
weigh monthly; liberalized diet as necessary; provide snacks at bedtime per the diabetic
diet; provide supplements as ordered; perform labs as ordered; consult the dietician as
necessary; monitor for changes; and monitor for signs and symptoms of dehydration.
CMS Ex. 17, at 10.

Despite these care plan directives, there is no evidence that Petitioner weighed R7
weekly. From December 2010 to January 2011, R7 lost 25 pounds. She lost 12.69% of
her body weight in one month (December 2010 to January 2011) and 16.63% of her body
weight in only three months (October 2010 to January 2011). According to the SOM
guidance, a greater than 5% loss in body weight in one month, and a greater than 7.5%
loss in body weight in three months, are considered to be severe losses.

In an October 26, 2010 entry, Petitioner’s dietician recognized that R7’s weight was
“trending down” but stated that it was “not a significant wt. loss” and that her plan of care
should be continued. CMS Ex. 17, at 9. However, the record shows that from October 4,
2010 to November 3, 2010, R7 lost more than ten pounds, which was 4.9% of her body
weight. When Petitioner’s interdisciplinary care team reviewed R7 on December 28,
2010, the team indicated that R7 was “maintaining” in the area of nutrition, hydration,
and weight, and listed no new risk factors or changes in interventions. CMS Ex. 17, at 4.
Given that R7 had weighed 208 pounds around the time of her admission in October 3,
2010 and then weighed 198.6 pounds on December 2, 2010, the fact that Petitioner’s care
team assessed her as “maintaining” her weight is problematic and shows that Petitioner’s
staff was not properly monitoring R7’s weight and documenting any steps to address a
severe weight loss.

Petitioner’s staff acknowledges they first became aware of R7’s weight decline when she
was discovered to weigh 173.4 pounds on January 3, 2011 (P. Pre-hrg. Br. at 9-10, 11; P.
Ex. 28 (Robbins Decl. § 56)), which was right before the survey commenced. By this
point, R7 had lost almost 35 pounds since her admission in October 2010, a loss in body
weight of over 16%. Petitioner’s staff had not weighed R7 weekly as care-planned,
monitored her nutritional status, or identified her weight loss.

According to Petitioner, R7’s weight loss was beneficial to her health because she was
“morbidly obese,” and R7 was content with losing weight. P. Pre-hrg. Br. at 9.
However, if R7’s assessment team truly intended for her to lose weight, then I would
expect her plan of care to contain this as a goal, which it did not. In fact, her October 5,
2010 nutrition and hydration care plan stated the opposite — that she would not have any
significant weight changes through the next review. I note further that the dietary
manager stated in an interview with a state surveyor that R7’s weight loss was not
planned. P. Ex. 1, at 37; CMS Ex. 1, at 37.

Petitioner also suggests that R7’s hypothyroidism (a condition where the thyroid gland
does not produce enough thyroid hormone), her dislike of many foods, and her
medications may have accounted for her weight loss. See CMS Ex. 17, at 6, 9, 13. Also,
Petitioner’s Director of Nursing (DON) told surveyors that in December 2010, there was
an outbreak of gastrointestinal flu at Petitioner’s facility that lasted for 24-48 hours, and
R7 was among the residents who caught it. See P. Ex. 1, at 37, CMS Ex. 1, at 37; CMS
Ex. 6, at 2.

I find that none of these reasons excuses Petitioner’s failure to properly monitor R7’s
nutritional status. Petitioner was aware of R7’s hypothyroidism when she was admitted
to the facility. While the condition may have caused some weight loss, one would expect
that R7’s thyroid levels were controlled and monitored. See CMS Ex. 36 (Johnson Decl.
4 14). If R7’s thyroid medication or any other medications were causing side effects such
as weight loss, then Petitioner’s physician should have been alerted to a significant
change in patient condition so that the physician could order any appropriate adjustments
such as a medication or diet change.

The fact that R7 did not like a lot of foods is also not an acceptable excuse for Petitioner
to not monitor her weight and nutritional status. Petitioner’s dietary services should have
offered her replacement meals that she liked and offered her snacks and nutritional
supplements. Furthermore, while R7’s gastrointestinal flu may have accounted for some
weight loss, considering its short 24-48 hour duration, I find Surveyor Johnson’s
testimony credible (CMS Ex. 36, at 3) that it is not reasonable to expect it to have
significantly contributed to the severe overall weight loss R7 experienced, especially
11

considering R7’s severe weight loss trend had started before the December onset of her
flu.

Petitioner has not shown that R7’s unplanned weight loss was attributable to poor overall
clinical conditions that were documented during the time of the loss. It was incumbent
upon Petitioner to identify and address R7’s weight loss, and any related dietary
concerns, by implementing appropriate interventions. By the time Petitioner’s staff
identified her weight loss and took measures to address it during the state survey, the
resident had suffered “severe” weight loss under the SOM guidelines. I thus find that
Petitioner did not sufficiently rebut CMS’s showing that Petitioner did not maintain
acceptable parameters of nutrition for R7, as demonstrated by her unplanned and severe
weight loss.

3. Petitioner did not sufficiently rebut CMS’s showing of severe weight
loss in eight other residents.

CMS contends that, in addition to R6 and R7, there were eight other residents who lost
more than five percent of their body weight in only one month. CMS Exs. 23-24; CMS
Ex. 6, at 2. Petitioner argues that the survey only cited R6 and R7 in the SOD under Tag
F325, and CMS did not provide adequate notice for these eight other residents. P. Pre-
hrg. Br. at 1; P. Br. at 19.

Notice of additional evidence, however, may be provided through prehearing record
development without amending the SOD. Alden Town Manor Rehab. and Health Care
Ctr., DAB No. 2054, at 18 (2006); Livingston Care Ctr., DAB No. 1871, at 20 (2003),
aff'd, Livingston Care Ctr. v. U.S. Dep’t of Health and Human Srvcs., 338 F.3d 168 (6"
Cir. 2004). The addition of new issues is permitted provided that timely notice is given
to the parties. 42 C.F.R. § 498.56. In this case, the eight residents not cited in the SOD
are identified in Petitioner’s own weight charts. CMS Ex. 24. Petitioner provided these
records to the surveyors, and CMS included them among its proposed exhibits when
CMS submitted its prehearing exchange in June 2011. I therefore find that Petitioner
received adequate notice that other residents besides R6 and R7 suffered unplanned
weight loss. I further find that, inasmuch as Petitioner’s unrefuted weight chart does
reflect that eight other residents besides R6 and R7 lost more than five percent of their
body weight in only one month, this evidence further supports my decision.

Petitioner argues the surveyor admitted at hearing that she and her trainee surveyor did
not completely review those residents’ medical records. P. Br. at 18; Tr. at 75.
Nonetheless, CMS relies on weight loss as prima facie evidence of a deficiency, and
Petitioner has not rebutted this evidence with a showing that the weight loss is due to
non-nutritive factors. See Carrington Place of Muscatine, DAB No. 2321, at 5 (2010).
Instead, Petitioner only refers to the testimony of Nurse Consultant Karen Robbins, R.N.,
to show that no preventable weight loss occurred and that residents’ nutritional status was
12

maintained. P. Ex. 30. Petitioner did not produce any of the relevant plans of care for
these residents. Although Ms. Robbins’ testimony was not challenged through cross-
examination by CMS, without any clinical documentation to support her assertions, I do
not find Petitioner has proven by a preponderance of the evidence that it maintained the
nutritional status of these residents in response to CMS’s prima facie showing of severe
weight losses.

B. Petitioner was not in substantial compliance with 42 C.F.R. § 483.25(h)
(Tag F323) because Petitioner did not take all reasonable precautions to
prevent falls and injuries to Residents 3 and 10.

42 C.F.R. § 483.25 provides:
(h) Accidents. The facility must ensure that —

(1) The resident environment remains as free of accident hazards as is
possible; and

(2) Each resident receives adequate supervision and assistance devices to
prevent accidents.

In Meridian Nursing Ctr., DAB No. 2265, at 3 (2009), the Board interpreted the
requirements of this subsection, stating:

Section 483.25(h)(1) requires that a facility address foreseeable risks of
harm from accidents “by identifying and removing hazards, where possible,
or where the hazard is unavoidable because of other resident needs,
managing the hazard by reducing the risk of accident to the extent
possible.” Maine Veterans’ Home — Scarborough, DAB No. 1975, at 10
(2005). Section 483.25(h)(2) requires that a facility take “‘all reasonable
steps to ensure that a resident receives supervision and assistance devices
that meet his or her assessed needs and mitigate foreseeable risks of harm
from accidents.” Briarwood Nursing Center, DAB No. 2115, at 11 (2007),
citing Woodstock Care Ctr. v. Thompson, DAB No. 1726 (2000) (facility
must take “all reasonable precautions against residents’ accidents”), aff'd,
Woodstock Care Ctr. v. Thompson, 363 F.3d 583 (6th Cir. 2003).

The Board has also held that facilities “have the ‘flexibility to choose the methods of
supervision’ to prevent accidents so long as the methods chosen are adequate in light of
the resident’s needs and ability to protect himself or herself from a risk.” Briarwood
Nursing Ctr., DAB No. 2115, at 5, citing Liberty Commons Nursing and Rehab —
Alamance, DAB No. 2070, at 3 (2007).
13

Petitioner violated 42 C.F.R. § 483.25(h) because staff failed to take all reasonable
precautions necessary to prevent foreseeable accidents and injuries for two residents —
Resident 3 (R3) and Resident 10 (R10), who suffered falls that resulted in fractures. P.
Ex. 1, at 19-20; CMS Ex. 1, at 19-20.

I. Petitioner did not take all reasonable precautions to prevent
foreseeable falls and injuries to Resident 3.

R3 was an 88-year-old woman at the time of the survey and was admitted to Petitioner’s
facility on November 6, 2009. CMS Ex. 15, at 1. R3’s diagnoses included hemiplagia,
esophagitis, general osteoarthrosis, hypertension, syncope and collapse, difficulty in
walking, and dysphagia. CMS Ex. 15, at 1; see CMS Ex. 15, at 22. On November 3,
2010, R3 was found on the floor calling for help. P. Ex. 1, at 24; CMS Ex. 1, at 24.
According to the SOD, R3’s left leg was externally rotated and shorter than her right leg.
She had a prominent bulge on her left hip, which was painful when palpated. Five to six
staff members lifted R3 and put her back into bed. An x-ray revealed that R3 had
fractured her left hip. It is undisputed that it was not until five hours after she was found
on the floor that R3 was taken to the emergency room for treatment. P. Ex. 1, at 25, 27;
CMS Ex. |, at 24-25, 26-27.

CMS alleges that Petitioner, despite knowing that R3 was at risk for falls, failed to
provide R3 with closer supervision and adequate assistive devices to prevent her
accident. CMS further alleges that Petitioner made no changes in its care of R3 even
after it became evident that the current measures in place were ineffective. Moreover,
CMS contends that, despite the serious nature of R3’s injury on November 3, 2010, she
waited five hours after falling before being transported to the emergency room, and
during this time, Petitioner’s DON did not appropriately intervene.

Petitioner argues that it “did everything it could to prevent” R3’s fall on November 3,
2010 but that it was “unpreventable.” P. Br. at 11. Petitioner asserts that appropriate
interventions were in place and that R3 received “appropriate care and treatment once her
fall occurred.” P. Br. at 14.

I find the record shows that Petitioner did not implement adequate interventions to ensure
R3’s safety given that she was a known fall risk. Also, when R3 fell in November 2010
and exhibited signs of a possible hip fracture, Petitioner’s staff, including the DON, failed
to act promptly to provide her with necessary care and treatment. Moreover, Petitioner
had previously failed to update R3’s care plan to reflect the fact that her treating
physician had given an order to administer to R3 a reduced dosage of Ambien because
excessive sedation could contribute to a fall.

R3 had a care plan dated September 20, 2010, to address her risk for falls. Under this
care plan, staff were required, among other things, to “assist with one,” observe her for
14

medication side effects, and provide appropriate safety and enabler devices. CMS Ex.

15, at 3. Despite the interventions in her care plan, R3 fell on November 3, 2010, and
was found on the floor, yelling for help. Staff picked her up, and placed her back into her
bed. There is also no dispute that Petitioner’s DON, who is a registered nurse, responded
to the initial “Code Green” call to R3’s room for additional assistance, stood in R3’s
doorway observing the scene, and left soon after. P. Ex. 1, at 27; CMS Ex. 6, at 6; CMS
Ex. 36, at 5 (Johnson Decl. § 31-32). The DON purportedly told surveyors that the
“nursing staff had things under control” and that the “physician would be contacted to get
orders.” CMS Ex. 6, at 6. Instead of a registered nurse assessing R3, however, a licensed
practical nurse assessed R3’s injuries. CMS Br. at 14; Tr. at 84; CMS Ex. 36, at 5
(Johnson Decl. §j 32); see CMS Ex. 6, at 4. Staff did not call 911 immediately, and it was
not until over five hours had passed that R3 was transported to the hospital.

Further, although the DON remained in the facility, no staff consulted him for further
advice. According to surveyor notes, Petitioner’s Medical Director appeared to question
the way Petitioner handled the emergency. CMS Ex. 5, at 7. The DON had an obligation
to ensure that R3 received appropriate treatment and services after she fell but did not
perform his duty, which potentially placed R3 at further risk of harm.

Before the November 3, 2010 fall, Petitioner had not updated R3’s care plan to reflect
that her treating physician ordered a reduced dosage, as needed, of the sedative Ambien.
R3 took Ambien to help her sleep. See Tr. at 47. Following a fall on June 17, 2010, a
consultant pharmacist identified a potential adverse event to R3 from a 5 mg dose of
Ambien and recommended that the Ambien either be decreased to 2.5 mg at bedtime, as
needed, or discontinued entirely. P. Ex. 2, at 10. Specifically, on June 18, 2010, the
consultant pharmacist wrote the following note on a Medication Regimen Review Sheet:

Due to recent fall, the nursing center has requested a review of current
medications relating to falls. This patient is receiving Ambien 5 mg at
bedtime nightly so this could contribute to a fall due to excessive sedation.
Recommend decreasing the dose to 2.5 mg at bedtime and making this
order an “AS NEEDED” MEDICATION OR DISCONTINUING THE
AMBIEN.

P. Ex. 2, at 12; CMS Ex. 15, at 2.

The record shows further that R3’s treating physician agreed with the consultant
pharmacist and issued an order on June 25, 2010 for a reduced dosage of Ambien, 2.5 mg
at bedtime, as needed. P. Ex. 2, at 12, 14. On June 26, 2010, R3’s physician indicated
via a handwritten note on the Medication Regimen Review Sheet that R3’s Ambien
should be “| to 2.5 Ambien” at bedtime. P. Ex. 2, at 10, 13.
15

However, despite the physician’s order that the Ambien dosage be reduced to 2.5 mg,
Petitioner’s staff did not update R3’s care plan to reflect this and continued to administer
Ambien 5 mg to R3. An entry in R3’s Medication Record shows that, on June 26, 2010,
5 mg of Ambien was ordered to be administered at bedtime, 9 p.m. The entry also states
the following: “Instructions: continue this order” and “Forever DX: Insomnia.” CMS
Ex. 15, at 30.

Petitioner’s expert witness Dr. Paul Maluso, a Board-certified orthopedic surgeon, noted
that on November 2, 2010, the night before she fell, R3 received, a 5 mg dose of Ambien.
He opined, however, “to a reasonable degree of medical certainty,” that “the medication
did not contribute to [R3’s] fall. The effects of the Ambien would have worn off long
before the resident’s fall.” P. Ex. 27, at 2 (Maluso Decl. { 6). Petitioner also notes that
CMS’s witness, Surveyor Johnson, testified on cross-examination that 5 mg of Ambien
was the “recommended geriatric dose.” Tr. at 47. Petitioner notes further that Surveyor
Johnson agreed that if a person took Ambien at bedtime, he or she would not still be
drowsy in the morning, because Ambien’s “half-life” meant that “within so many hours it
would start to be absorbed by the body and then excreted.” Tr. at 47.

However, I give Dr. Maluso’s and Surveyor Johnson’s opinions less weight than the
orders of R3’s treating physician who had a history of caring for the resident. Both R3’s
treating physician and the consultant pharmacist were aware that R3 took Ambien at
bedtime. Both took this into consideration when the pharmacist recommended, and the
physician approved, that the Ambien dosage be reduced. There can be little doubt that the
treating physician’s reason for decreasing the dosage was due to the fact that he agreed
with the consultant pharmacist that a higher dosage could result in excessive sedation and
a higher risk for falls. Also, while it may be that 5 mg of Ambien was the “recommended
geriatric dose,” as testified by Surveyor Johnson, I also give her testimony little weight
on this point in light of the orders of R3’s treating physician. Once R3’s physician gave
the order to reduce the dosage of Ambien, Petitioner’s staff was required to update R3’s
care plan and comply with the new order. They did not do so, and I find this increased
the likelihood of R3 suffering serious harm from a fall resulting from oversedation.

There were also other reasonable precautions Petitioner’s staff could have taken to
safeguard R3 from falls. Petitioner had a fall prevention program known as a “Falling
Star” program, specifically for residents who were at high risk for falls and who required
frequent monitoring. See CMS Br. at 9. However, R3 was not included in this program,
neither at the outset upon admission assessment nor even later after her falls. P. Br. at 12.
Also, as CMS points out, Petitioner could have reasonably implemented additional safety
interventions to address R3’s risk for falls, such as moving call buttons in close reach of
R3 and installing a bed alarm to alert nurses if R3 tried to walk without assistance.

16

2. Petitioner did not take all reasonable precautions to prevent
foreseeable falls and injuries to Resident 10.

R10 was a 66-year-old woman at the time of the survey and was admitted to Petitioner’s
facility on May 8, 2010. CMS Ex. 18, at 1. R6’s diagnoses included deep vein
thrombosis, pulmonary embolism, dementia, diabetes, epilepsy, hypothyroidism,
ypertension, esophageal reflux, hyperlipidemia, and schizoaffective disorder. CMS Ex.
18, at 1, 20. R10 also had gait unsteadiness, difficulty walking and prior falls. CMS Ex.
18, at 20. R10 was receiving rehabilitation for a previous fracture of her right hip. See
CMS Ex. 6, at 13. She was taking several different psychoactive medications, including
Lamictal, Zyprexa, Risperdal, Xanax, and Phenobarbital. See CMS Ex. 18, at 21, 24.
R10 was also taking Coumadin. CMS Ex. 18, at 22.

Nursing notes show around 6:45 p.m. on November 12, 2010, R10 was found on the

floor. CMS alleges that R10 complained of pain in the “upper area” of her leg. CMS Ex.
18, at 9. The RN supervisor was notified, and she decided not to immediately transfer
R10 to the ER. R10 was assisted back into bed. The RN supervisor called the physician
and obtained orders for a portable x-ray. Around 7:15 p.m., the x-ray results were called
in and showed a left hip fracture. CMS Ex. 18, at 9, 14-15; P. Ex. 5, at 1; P. Br. at 16; see
CMS Ex. 6, at 13. The RN supervisor did not report the results to the physician
immediately because she chose to wait until she received a faxed copy from the provider.
The faxed copy did not arrive until 10:00 p.m., at which time staff notified the physician.
The physician ordered that R10 be transferred to the ER. R10 left Petitioner’s facility via
ambulance at 10:30 p.m. on November 12, 2010. CMS Ex. 18, at 9; P. Ex. 1, at 28; CMS
Ex. 1, at 28; see CMS Ex. 6, at 13.

CMS argues that Petitioner failed to provide the necessary interventions and supervision
to prevent R10 from falling and fracturing her hip. CMS also contends R10 waited too
long for emergency care and that, after R10 fell, Petitioner failed to monitor R10 for
bruising or excessive bleeding even though she was taking the anticoagulant Coumadin.

Petitioner contends that R10 suffered a spontaneous hip fracture that then caused her to
fall. Petitioner claims that R10’s fracture was due to osteoporosis and osteopenia and
was unpreventable and unpredictable. Petitioner contends further that R10 had an
appropriate care plan in place and received appropriate care and treatment once her
fracture occurred.

The record shows that Petitioner assessed R10 as being at risk for falls upon her
admission, completing a “Fall Risk Identification and Plan of Care” dated May 8, 2010.
According to this care plan, R10 had a history of falls in the previous three months and
required assistance with transferring/ambulating. P. Ex. 5, at 2. Staff were directed to:
“[a]ssist w/1;” “[i]nstruct and reinforce proper use of adaptive equipment,” observe for
medication side effects, such as sedation, confusion, drowsiness, ataxia, weakness or
17

dizziness; provide appropriate safety and enabler devices (walker); and provide therapy
as ordered. P. Ex. 5, at 2. In June 2010, on a “Risk Identification Review” form,
Petitioner’s nurse stated that there was a continued risk to R10 related to her history of
falls. P. Ex. 5, at 3. Further plan of care documentation, dated November 3, 2010,
indicated that R10 needed the assistance of one person for transfers and for walking in a
room or hallway. The care plan noted that R10 was inconsistent in understanding her
limitations. It noted that R10 was taking antipsychotic and anti-anxiety medications, as
well as insulin and pain medications. P. Ex. 5, at 16, 21.

Petitioner’s records show that, prior to R10’s fall on November 12, 2010, she had fallen
four days previously. On November 8, 2010, R10’s daughter reported that R10 had
fallen during the night, apparently when she went to the bathroom. The nurse told R10
that she should ask for help, and R10 stated that she had not wanted to bother staff
because they are busy. R10 exhibited no signs or symptoms of injury. Following R10’s
November 8, 2010 fall, Petitioner’s staff documented that R10 was taking medications
that affected her balance, dizziness, or caused vertigo; she required a “1/2 SR [side rails]
x 2;” and she had been educated related to safety. No additional interventions were
implemented. P. Ex. 5, at 24; P. Ex. 28, at 6.

The fact that R10 fell twice in four days (November 8 and 12, 2010) and suffered a
fractured hip suggests that Petitioner’s interventions to deal with her risk for falls were
not adequate to prevent accidental injury. Despite the interventions that were put in place
in May 2010 at the time of her admission, R10 fell on November 8, 2010. Although
Petitioner claims that its staff updated R10’s care plan after she fell, I see no evidence
that it modified the interventions that were in place or implemented any additional safety
measures to address R10’s risk for falls. As CMS points out, following R10’s November
8 fall, Petitioner’s staff could have designated her to be in the “Falling Star” fall
prevention program and thereby ensure that she would receive better identification as a
fall risk and more frequent monitoring. Petitioner does not dispute that it did not include
er in this program. Further, in a “Post Event Evaluation” form that was completed on
November 12, 2010, after R10 fell for the second time and suffered a fractured hip,
Petitioner’s staff noted that R10 did not have a low bed, a tab alarm, or a sensor pad. P.
Ex. 5, at 1. Petitioner could have added these interventions to R10’s care plan after R10
fell on November 8, but it did not do so. It was not until November 18, 2010 that
Petitioner provided R10 with a sensor pad in bed and a tab alarm out of bed. CMS Ex.
18, at 4.

CMS contends that Petitioner’s staff did not call 911, and R10 waited four hours after
falling before being transported to the emergency room. The RN supervisor did not
report the x-ray results to R10’s physician right away when they were called in because
she chose to wait until she received a faxed copy from the provider.

18

Petitioner argues that R10 did not experience any delay in care, noting that “[R10]
comfortably waited in her own bed for her x-ray results, which once received, resulted in
a transfer to the hospital for an acute level of care.” P. Br. at 17. I find Petitioner’s
characterization of R10 to be inconsistent with other evidence in the record. R10 had
fallen, and the x-rays showed that she had fractured her left hip. I find it unlikely that
R10 would have been “comfortable” while waiting to be transported to the hospital.
More likely than not, R10 would have been experiencing pain while lying in bed with a
fractured hip for four hours. CMS Br. at 15.

Petitioner does not satisfactorily explain why it took four hours to have R10 transported
to the hospital when her circumstances called for prompt medical attention. Petitioner’s
own Medical Director stated in an interview that when a nurse suspects a fracture, the
nurse should call 911. See CMS Ex. 5, at 7. Here, R10 was found on the floor lying on
her back around 6:45 p.m., complaining of pain in the upper area of her leg. Around 7:15
p.m., the x-ray results were called in to the RN Supervisor and revealed a fracture of
R10’s left hip. However, the RN Supervisor chose to wait for a faxed copy of the x-ray
results and therefore did not notify R10’s physician of the x-ray results until 10:00 p.m.
At that time, the physician ordered that R10 be transferred to the ER. R10 left via
ambulance at 10:30 p.m. I find that Petitioner’s staff failed to respond appropriately to
R10’s situation by not arranging a prompt transfer to the ER after confirmation of her
fracture, and as a result, R10 suffered an inexcusable delay in care for her fractured hip.

CMS also contends that Petitioner’s staff failed to monitor R10 for excessive bleeding
despite the fact that she was on the anticoagulant Coumadin. Petitioner, however, argues
that any abnormal bleeding relating to Coumadin was unlikely. P. Br. at 17. In support
of its position, Petitioner offers the testimony of Dr. Maluso, who states that “[R10]’s last
PT/INR showed that her clotting levels were within the therapeutic range” and that
“{cjonsequently, she was at no greater risk for abnormal bleeding than a patient not on
Coumadin.” Dr. Maluso also states that R10’s taking of Coumadin “would have lowered
her risk” for blood clots and that “there was no indication that [R10] had developed a
blood clot which would have placed her at increased risk for stroke or embolitic event.”
According to Dr. Maluso, “[p]atients, even those on Coumadin or other anticoagulants,
are unlikely to experience excessive bleeding after a fall.” Dr. Maluso states that “[i]t
was not likely or even probable that [R10] would suffer an adverse bleeding event or
bleed to death while waiting for transfer to the hospital.” P. Ex. 27 (Maluso Decl., 4 17,
18, 20).

When an individual is on Coumadin, blood levels must be monitored very carefully
because a possible complication is severe bleeding. CMS Ex. 33; CMS Ex. 36, at 7; Tr.
at 67. The Board has repeatedly recognized that Coumadin is extremely “dangerous.”
See, e.g., Life Care Ctr. of Elizabethton, DAB No. 2367, at 12 (2011). After R10 fell, it
was necessary for Petitioner’s staff to have a heightened concern for her overall condition
and monitor her so that if she had any internal bleeding, she could receive immediate
19

medical treatment. A facility must take every reasonable precaution to prevent injuries,
and I find Nurse Johnson’s testimony more persuasive regarding the dangers of
Coumadin. Petitioner had a duty to monitor R10 for dangerous bleeding considering the
monitoring would not be an unreasonable precaution for not such a remote possibility
with severe consequences. See CMS Ex. 7, at 7.

Cc Petitioner was not in substantial compliance with 42 C.F.R. § 483.20(d)
(Tag F279) because Petitioner did not adequately monitor and document
its residents’ conditions to ensure the sufficiency of their care plans.

A facility must address its residents’ needs by preparing individualized care plans
through comprehensive assessments and regular reviews. See 42 C.F.R. § 483.20(d).
Petitioner did not update the care plan of Resident 11 (R11) in a timely manner after she
returned from the hospital in a hard cast that needed frequent monitoring for possible
circulatory problems.

R11 was a 94-year-old woman at the time of the survey and was admitted to Petitioner’s
facility on December 8, 2001. CMS Ex. 19, at 1. R11’s diagnoses include
hypertension, vertebra fracture, senile depression, dementia, presenile dementia, and
muscle weakness. CMS Ex. 19, at 1. A Minimum Data Set assessment (MDS), with a
reference date of July 23, 2010, assessed R11 as being, among other things, severely
cognitively impaired and requiring total assistance with all activities of daily living.
CMS Ex. 19, at 3; see P. Ex. 6, at 5. R11 required the assistance of two staff members
for transfers. CMS Ex. 19, at 3. The MDS indicated that R11 had no falls or fractures in
the previous 180 days. CMS Ex. 19, at 4.

A care plan dated October 12, 2010, identified R11 as being at risk for traumatic skin
injury due to “impaired cognition, impaired safety awareness, impaired mobility, [and]
fall risk.” CMS Ex. 19, at 14. Interventions included: encouraging the resident to wear
long sleeves and/or pants; providing geri-sleeves or other protective clothing if
unavailable; avoiding stress to skin during transfers and re-positioning; and seating in the
common area to provide increased visibility. CMS Ex. 19, at 14.

According to a progress note dated December 20, 2010, at 10:30 a.m., a CNA reported
that something was wrong with R11’s right leg. A nurse then examined R11’s right leg
and found that the mid shaft area was bruised with a raised area and felt bones rubbing
together. CMS Ex. 19, at 18. The nurse notified an ARNP (advance registered nurse
practitioner). The ARNP ordered an x-ray of R11’s right lower leg and ankle and pain
medication every six hours as needed. P. Ex. 6, at 11. Portable x-rays were taken, and
they showed “a proximal fibular fracture and a mid tibia spiral fracture with anterior
angulation and slight shortening.” CMS Ex. 19, at 17; CMS Ex. 19, at 18. The x-ray
report noted also that R11’s “bones are osteopenic.” CMS Ex. 19, at 17. R11 went to the
ER for evaluation and treatment. P. Ex. 6, at 11; CMS Ex. 19, at 9, 18-19.
20

On December 21, 2010, after she returned from the ER with a temporary soft splint, the
facility initiated a care plan for R11 related to her fracture. CMS Ex. 19, at 15. On
December 22, 2010, an orthopedic surgeon treated R11, and her leg was placed in a hard
plaster type cast. CMS Ex. 19, at 20, 25-26; P. Ex. 1, at 7; CMS Ex. 1, at 7. The SOD
alleges that the care plan was not updated to reflect the new cast and need for frequent
assessment of R11’s foot for complications. According to the SOD, the nursing notes do
not contain any entries from December 21, 2010 through January 5, 2011, and there is
also no documentation in the medical record that R11 had been monitored and assessed
for circulatory problems following the placement of the cast. P. Ex. 1, at 24; CMS Ex. 1,
at 24.

CMS argues that R11’s medical records do not indicate that she suffered a spontaneous or
pathological fracture. CMS asserts that R11’s fractures were “most likely the result of
Petitioner’s] employee twisting her legs to transfer her from bed to her wheelchair.”
CMS Br. at 10. CMS contends further that Petitioner’s staff failed to closely monitor
R11’s leg for possible swelling and circulatory problems after she received a hard cast.

Petitioner argues that R11 had spontaneous fractures that occurred without a fall and that
the fractures were unforeseeable and unpreventable. Petitioner contends that R11’s
fractures could have occurred when she received routine care. Petitioner asserts that
there was no evidence that the fractures occurred during a transfer. P. Br. at 14-15.
Petitioner contends further that R11 was properly monitored for any complications.

Although it is not clear what exactly caused R11’s fractures, the record shows that
Petitioner’s staff failed to properly monitor R11’s leg when she returned to the facility
with a hard cast. R11 initially had a temporary soft splint when she returned to
Petitioner’s facility on December 21, 2010, and a care plan was implemented on that
date. The approaches on the care plan included the following: pain medication as
ordered; monitor for any signs and symptoms of pain or discomfort; monitor circulation
in right lower extremity; and bed rest. CMS Ex. 19, at 15.

The next day, on December 22, 2010, R11 had an appointment with the orthopedic
surgeon, and her splint was changed to a hard plaster cast. CMS Ex. 19, at 20, 25-26; P.
Ex. 1, at 7; CMS Ex. 1, at 7. The nursing notes show that when R11 returned to
Petitioner’s facility later in the afternoon on December 22, 2010, the nurses monitored
her, and documented that her cast was in place, there was no swelling or redness, and she
was given her pain medication. CMS Ex. 19, at 20-21. An entry on the care plan dated
December 22, 2010, notes that R11 had been to the orthopedic surgeon, the cast was
applied, and she was to follow up with the surgeon in two weeks. The entry states that
R11’s circulation was to be monitored in her right lower extremity. CMS Ex. 19, at 16.
21

Despite the care planning requirement to monitor R11’s circulation, the record contains
no further progress notes on R11’s condition until January 5, 2011, during the time of the
survey. CMS Ex. 19, at 24. Petitioner does not dispute the lack of progress notes, but
instead, relies on the direct written testimony of Dr. Maluso, who asserts that monitoring
did occur. Petitioner claims that, according to Dr. Maluso, the “methodology for
verifying circulation problems has changed in modern orthopedic practice.” P. Br. at 15-
16. Dr. Maluso states in his declaration that Petitioner’s staff “correctly followed the
physician’s order dated January 21, 2011, to check [R11’s] circulation”® and opines that
“{g]enerally such circulation checks are of very limited value.” He goes on to state the
following:

With a hard cast, it is very difficult to gain access to the
pulses in the lower limbs. Circulation can only be assessed
by checking for capillary refill on the toenail beds, which is
of limited value. In addition, in the most feared complication
of a fracture, compartmental syndrome which can result in a
limb threatening situation, pulses are often still palpable.

P. Ex. 27 (Maluso Decl. § 32).

According to Dr. Maluso, because checking R11’s circulation would have had limited
value, “the most important sign of complication would have been [R11’s] pain level.” He
notes that R11’s pain was frequently and appropriately assessed after her fracture. P. Ex.
27 (Maluso Decl. § 33).

Neither Dr. Maluso nor Petitioner cites to any evidence that lends support to his
testimony that circulation checks would have been ineffective for R11 and that the best
way to monitor for complications is to evaluate the level of pain. Moreover, I note that
Dr. Maluso does not refute CMS’s contention that there was no documentation in R11’s
record that her leg was monitored and assessed for possible circulation problems after she
received the hard cast.

From December 23, 2010 to January 4, 2010, there is nothing in the record to indicate
that Petitioner’s staff monitored R11’s leg for circulation problems. After the nursing
notes dated December 22, 2010, the next clinical notes concerning R11’s leg are dated
January 5, 2011 and January 21, 2011. CMS Ex. 19, at 23; P. Ex. 6, at 8.

Further, as previously discussed, Petitioner did not make adequate assessments and
develop effective care plans to meet the needs of R6 and R7. These residents

* The January 21, 2011 physician’s order to which Dr. Maluso refers states that, on every
shift, Petitioner’s staff is to monitor R11’s cast site at the right lower extremity and
monitor for any swelling, redness, and cyanosis to the toes. P. Ex. 6, at 8.
22

experienced severe weight loss even though they were supposed to be weighed weekly,
and their care plans did not plan for their weight losses. Petitioner also did not update
R3’s care plan when her physician ordered the lowered dosage of Ambien because it
could lead to another fall. Petitioner did not also provide R3 and R10 with proper care
plans to address their fall risks. In addition, Petitioner did not monitor R10 for excessive
bleeding after her fall despite her use of Coumadin which can cause fatal bleeding.

Dz. 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);
Woodstock Care Ctr., DAB No. 1726, at 9, 38 (2000), aff'd, Woodstock Care Ctr. v.
Thompson, 363 F.3d. 583 (6" Cir. 2003). CMS’s determination of immediate jeopardy is
presumed to be correct, and Petitioner faces a “heavy burden” to demonstrate that CMS’s
determination is clearly erroneous. Owensboro Place and Rehab. Ctr., DAB No. 2397, at
9 (2011), citing Azalea Court, DAB No. 2352, at 16-17 (2010), and cases cited therein.

Petitioner contends in its posthearing brief that there were no immediate jeopardy level
deficiencies. Petitioner argues that it appropriately managed the weight loss suffered by
R6 and R7 and that it had appropriate safety measures in place to prevent R3’s and R10’s
injuries, which were not foreseeable or preventable.

I am not persuaded by Petitioner’s arguments. When addressing its residents’ unplanned
weight loss and falls, Petitioner has not shown that serious harm or death was not likely
due to its failure to follow resident care plans or to implement appropriate interventions
for resident safety. Petitioner failed to appropriately monitor the weights of R6 and R7,
and as a result, failed to notice that these residents were losing weight. Both R6 and R7
suffered severe, unplanned weight loss, and by the time Petitioner identified their weight
loss and took measures to address it, R6 had lost over 18 pounds since the time of her
admission, and R7 had lost almost 35 pounds since the time of her admission. It was
fortuitous that the state survey occurred because the likelihood of serious harm would
ave increased the longer the residents’ weight losses went unidentified and unaddressed.
Petitioner also did not successfully prove the severe weight losses of eight of its other
residents were unavoidable. Inadequate nutrition is a serious problem, especially for
elderly individuals who require skilled nursing care — nutrients are critical to the body’s
metabolism and its healing process. See CMS Ex. 36, at 2.

Despite the fact that Petitioner knew that both R3 and R10 were at risk for falls,
Petitioner failed to have appropriate interventions in place to prevent them from having
accidents. R3 and R10 fell and fractured their hips in separate incidents. R11, who

23

required total assistance with all activities, suffered a fracture of two bones in her leg.
Although the cause of her fractures is not definitive, I find that Petitioner also failed to
adequately implement R11’s care plan to prevent any further serious circulation
complications to a 94-year-old resident. Petitioner has not proven that CMS’s
determination of immediate jeopardy was clearly erroneous by demonstrating that severe
weight loss and injury from falls did not constitute “serious harm” in these circumstances
involving frail and elderly residents.

E. The penalty CMS imposed is reasonable.

To determine whether a CMP is reasonable, I apply the factors listed in 42 C.F.R.

§ 488.438(f): 1) the facility’s history of noncompliance; 2) the facility’s financial
condition; 3) factors specified in 42 C.F.R. § 488.404; and 4) the facility’s degree of
culpability, which includes neglect, indifference, or disregard for resident care, comfort,
or safety. The absence of culpability is not a mitigating factor. The factors in 42 C.F.R.
§ 488.404 include: 1) the scope and severity of the deficiency; 2) the relationship of the
deficiency to other deficiencies resulting in noncompliance; and 3) the facility’s prior
history of noncompliance in general and specifically with reference to the cited
deficiencies. I am neither bound to defer to CMS’s factual assertions, nor free to make a
wholly independent choice of remedies without regard for CMS’s discretion. Barn Hill
Care Ctr., DAB No. 1848, at 21 (2002); Cmty Nursing Home, DAB No. 1807, at 22 et
seq. (2002); Emerald Oaks, DAB No. 1800, at 9-10 (2001); CarePlex of Silver Spring,
DAB No. 1683, at 8 (1999).

Petitioner argues that “CMS failed to consider the factors in 42 C.F.R. § 488.438(f) when
it imposed a CMP of over $1,000,000.00.” P. Br. at 20. First, I note that Petitioner has
incorrectly stated the amount of the CMP that CMS imposed. CMS originally imposed a
CMP of $5,550 per day from July 20, 2010 through January 19, 2011 (184 days of
immediate jeopardy) and then $100 per day from January 20, 2011 through February 14,
2011 (26 days of substantial noncompliance that was not immediate jeopardy), for a total
CMP amount of $1,023,800. CMS Exs. 2-4. However, CMS later reduced the penalty,
imposing a CMP of $5,550 per day from September 20, 2010 through January 19, 2011
(122 days of immediate jeopardy), and then $100 per day from January 20, 2011 through
February 14, 2011 (26 days of substantial noncompliance that was not immediate
jeopardy, for a total CMP amount of $679,700. CMS Pre-hrg. Br. at 22.

Unless a facility contends that a particular regulatory factor does not support the CMP
amount, the ALJ must sustain it. Coquina Center, DAB No. 1860 (2002). Petitioner
argues that CMS has not considered the facility’s finances when imposing the CMP. P.
Request for Hearing. With respect to its financial condition, it is Petitioner’s
responsibility to show that it cannot pay the CMP. Petitioner was free to call any
witnesses to testify to its financial condition or to submit any documentary evidence
24

regarding its financial condition. However, Petitioner provided no evidence to show that
its financial condition hinders it from paying the proposed CMP.

The deficiencies in this case were serious. As stated above, Petitioner’s staff failed to
adequately monitor the weights of R6 and R7, resulting in severe unplanned weight loss
for both. Further, Petitioner did not satisfactorily account for the severe weight losses of
eight other residents. Because Petitioner’s staff failed to have appropriate interventions
in place to prevent accidents, R3 and R10, who were known fall risks, fell and fractured
their hips. Petitioner’s deficiencies caused R3, R6, R7, and R10 actual harm, for which
the facility is highly culpable for the disregard for residents’ care, comfort, and safety.

CMS considerably decreased the original CMP duration and determined September 20,
2010 would be an appropriate start date because that was when R3’s Fall Risk
Identification and Plan of Care was not updated to remove Ambien from her medications,
as ordered by her physician. CMS Pre-hrg. Br. at 22. Petitioner argued in its prehearing
exchange that this date was nonsensical. P. Pre-hrg. Br. at 16. However, considering that
I am finding Petitioner responsible for not following R3’s physician’s order starting June
25, 2010, CMS’s shortening of the CMP duration is actually already quite favorable to
Petitioner.

Petitioner contends that CMS failed to consider its history of noncompliance. P. Br. at
20. Petitioner states that it did not have any deficiency above a “D” scope and severity
level during surveys conducted in 2007 through 2010, and thus, its history of compliance
does not warrant the amount of the CMP. P. Exs. 22-26; CMS Ex. 34. Despite
Petitioner’s claim that its history of noncompliance is good, I find that the $5,550 per day
CMP from September 20, 2010 through January 19, 2011, is much less than the
maximum that CMS could have imposed upon Petitioner for immediate jeopardy-level
deficiencies. In fact, it is in the lower half of the CMP range for immediate jeopardy
level deficiencies ($3,050 per day to $10,000 per day). 42 C.F.R. §488.438(a)(1)(i),
(d)(2). I find further that the $100 per day CMP from January 20, 2011 through February
14, 2011, is at the very low end of the CMP range for non-immediate jeopardy level
deficiencies ($50 per day to $3,000 per day). 42 C.F.R. § 488.438(a)(1)(ii).

After carefully reviewing the circumstances of this case in light of the relevant factors, I
find that the amount of the CMP is reasonable.

V. Conclusion

Petitioner’s staff did not realize the severe weight loss of several of Petitioner’s residents
until the state survey occurred. Petitioner also did not take all reasonable precautions to
prevent residents from falling and their related injuries. One resident taking Coumadin
was not monitored for excessive bleeding after a serious fall and could have likely
experienced implications causing serious harm or death. Petitioner also did not follow a
25

physician’s order to discontinue a resident’s sedative, which increased her risk for falling,
and then she did in fact fall and fractured her hip. Residents who had just suffered long
bone fractures waited for excessive periods of time to be properly treated, and
Petitioner’s DON was not proactive in addressing emergency situations. Further,
Petitioner did not adequately monitor and document its residents’ conditions to ensure the
sufficiency of their plans of care.

I uphold CMS’s determination that Petitioner was not in substantial compliance with
program participation requirements, I do not find that CMS’s determinations of
immediate jeopardy were clearly erroneous, and I find that the CMP that CMS imposed
was reasonable.

/s/
Joseph Grow
Administrative Law Judge


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

Wildcreek Healthcare, Inc., d/b/a
Rosewood Rehabilitation Center,

Petitioner,
v.
Centers for Medicare & Medicaid Services.
Docket No. C-12-700
Decision No.: CR2655
Date: October 25, 2012
DECISION

I dismiss Petitioner’s hearing request in this case because CMS did not impose a remedy
specified in 42 C.F.R. § 488.406, and therefore Petitioner has no right to a hearing.

I. Background:

Petitioner is a nursing facility located in Reno, Nevada. On July 20, 2011, the Nevada
Department of Health and Human Services, Health Division, Bureau of Health Care and
Compliance (state agency) completed a complaint survey of Petitioner’s facility. By
letter dated July 26, 2011 (notice letter), the state agency informed Petitioner that the July
20 complaint survey found isolated deficiencies that constituted no actual harm, but with
the potential for more than minimal harm. The state agency noted that based on this
noncompliance it was imposing two remedies on Petitioner “as authorized by CMS or the
SMA” consisting of: (1) a “[d]irected plan of correction effective fifteen (15) days after
receipt of this notice, no later than 08/10/11. [§488.422] (See attachment)”; and, (2) a
“{dJenial of payment for new admissions” (DPNA).' Petitioner was also required to file a
plan of correction. The attachment referenced in the notice letter stated “Directed Plan of
Correction” and noted “Rosewood Rehabilitation Center must submit documented
evidence that the corrective action detailed in the facility’s plan of correction for all

' Both parties agree that the DPNA remedy was never effectuated.
deficiencies cited at a “D” level or higher has been implemented. Rosewood
Rehabilitation Center may submit the above documentation to this agency with the Plan
of Correction, but not later than August 10, 2011. Please indicate in the POC if
additional documents will be submitted after the POC has been submitted.” CMS Exhibit
(Ex.) 1, at 1-5; Petitioner’s Exhibit (P. Ex.) 1, at 1-5.

Petitioner filed a hearing request on August 11, 2011. The case was docketed as
Rosewood Rehabilitation Center, Docket No. C-11-676. CMS moved to dismiss the case
on September 15, 2011 (CMS September 15 motion), and Petitioner opposed the CMS
motion on October 3, 2011 (P. October 3 response). The point debated in the motion
practice was whether CMS or the state agency had imposed a remedy on Petitioner as a
result of the July 20 survey. My review of the pleadings and the attachments to
Petitioner’s hearing request persuaded me that a directed plan of correction had been
imposed and that the imposition of that directed plan of correction gave Petitioner a right
to appeal and to request a hearing. My Ruling and Order of October 28, 2011 (October
28 Ruling) denied the CMS motion and established a schedule for further case
development. CMS sought reconsideration of my denial by motion dated November 7,
2011 (CMS Br.). Petitioner opposed the motion on November 25, 2011 (P. Br.). I stayed
proceedings in the case on December 20, 2011, to permit the parties to attempt settlement
of the case. On January 25, 2012, Petitioner’s counsel of record, Michael L. Matuska,
filed a request asking that I dismiss the hearing request. I did so by Order dated January
31, 2012.

At the same time that Mr. Matuska was litigating and then requesting dismissal of the
case, a series of unofficial communications between December 5, 2011 and January 31,
2012, with Petitioner’s current counsel of record, Beverly B. Wittekind, indicated that
Petitioner underwent a change in ownership in December 2011. Mr. Matuska’s
relationship to the new owner was not clear during these communications. While it
appeared possible that Mr. Matuska might not have had the authority to file the January
25, 2012 request asking me to dismiss the case, no other counsel formally entered the
case as counsel of record prior to January 25, 2012 (although Ms. Wittekind was in
contact with CMS and with my office during this period). By motion dated April 5,
2012, Petitioner requested that I vacate the dismissal of the case for good cause shown,
arguing that the January 25 request for dismissal filed by Mr. Matuska was done without
the approval of Petitioner’s new owner. After allowing CMS an opportunity to respond,
by my Ruling dated May 18, 2012, I granted Petitioner’s request and reinstated
Petitioner’s case under a new name, Wildcreek Healthcare, Inc., d/b/a Rosewood
Rehabilitation Center, and docket number, C-12-700.

I held a prehearing conference in this case on June 27, 2012. My Order of June 27, 2012,
reflects the parties’ agreement that I should consider CMS’s November 7, 2011 motion

for reconsideration and the briefs the parties filed regarding it; CMS’s November 7, 2011
motion for reconsideration (CMS Br.) and Petitioner’s November 25, 2011 opposition (P.
Br.). My June 27, 2012 Order also gave the parties a final opportunity to supplement the
briefs they filed in November 2011. Petitioner filed a supplemental brief on July 13,
2012 (P. Supplemental Br.) and CMS filed a supplemental brief on July 17, 2012 (CMS
Supplemental Br.). The only exhibits filed in this case are CMS Exs. 1-3 and P. Exs. 1-3
(which were filed with the parties’ November 2011 submissions). In the absence of
objection I admit CMS Exs. 1-3 and P. Exs. 1-3 into evidence.

II. Issue

The only issue in this case is whether Petitioner is entitled to a hearing based on an initial
determination imposing the remedy of a directed plan of correction.

Ill. Finding of Fact, Conclusion of Law and Analysis

1. Petitioner is not entitled to request a hearing because neither CMS nor the
state agency imposed a directed plan of correction.

A facility such as Petitioner may request a hearing to contest an administrative action
that is an” initial determination.” 42 C.F.R. § 498.3(a). The regulations define an initial
determination to include, with regard to a skilled nursing facility (SNF) or a nursing
facility (NF), “a finding of noncompliance that results in the imposition of a remedy
specified in § 488.406 of this chapter, except the State monitoring remedy.” 42 C.F.R.

§ 498.3(b)(13). The regulation at 42 C.F.R. § 488.406 includes as an available remedy a
directed plan of correction. The Departmental Appeals Board (DAB) has held that a
facility has the right to hearing based on a directed plan of correction, whether or not it is
CMS, or a state agency acting on behalf of CMS, which imposes the remedy. Beechwood
Sanitarium, DAB No. 1824 (2002), aff'd, in pertinent part, Beechwood Restorative Care
Center v. Thompson, 494 F. Supp. 2d 181 (2007).

The regulations differentiate a “directed plan of correction” from a “plan of correction.”
A directed plan of correction is where:

CMS, the State survey agency, or the temporary manager (with CMS or State
approval) may develop a plan of correction and CMS, the State, or the temporary
manager require a facility to take action within specified time-frames.

42 C.F.R. § 488.424. A directed plan of correction thus involves CMS or the state
agency developing specific corrective actions that a facility must implement in order to
come back into substantial compliance with the regulations. For a plan of correction, on
the other hand, “each facility that has deficiencies with respect to program requirements
must submit a plan of correction for approval by CMS or the survey agency.” 42 C.F.R.
§ 488.402(d)(1). For a plan of correction, it is the facility, not CMS or the state agency,
that proposes the corrective actions it will take to come back into compliance with
regulatory requirements, and it is the facility that submits the corrective actions it
develops to CMS or the state agency for approval.

Petitioner argues that the state agency imposed a directed plan of correction in this case,
whereas CMS argues that it did not. I originally held that the state agency’s July 26,
2011 notice letter did impose a directed plan of correction. I made this determination
because the notice letter sent to Petitioner by the state agency stated quite explicitly, and
using that term of art, that a directed plan of correction was being imposed. Upon
reconsideration, however, I revise my determination. I find the state agency’s use of the
phrase “directed plan of correction” was an erroneous description of what it was asking
Petitioner to submit. Specifically, the attachment referred to as a directed plan of
correction in the July 26, 2011 notice letter was not a state agency-, CMS-, or temporary
manager-developed plan that the facility was required — or directed, to choose the term
of art explicitly — to follow. Instead, Petitioner was merely asked to submit evidence
that the corrective action detailed in its plan of correction for all deficiencies cited at a
“D” level or higher had actually been implemented. This erroneous description on the
part of the state agency does not, should not, and cannot, change what was and is a plan
of correction into a directed plan of correction.

Petitioner relies on the decision in Golden Living Center-Grand Island Lakeview v.
Sebelius, No. 8:11CV119 (D. Nebraska Dec. 16, 2011); 2011 WL 6303243 (D. Neb), in
arguing that it is entitled to a hearing. In Golden Living, however, the United States
District Court found a remedy was actually imposed — a DPNA which was in effect for
three days and affected the provider’s admissions and reimbursements during that period
— although the DPNA was subsequently rescinded. Golden Living Center-Grand Island
Lakeview v. Sebelius, No. 8:11CV119 (D. Nebraska July 6, 2012); 2012 WL 2685001 (D.
Neb). In contrast, in this case, I have found that CMS never imposed any of the remedies
specified at 42 C.F.R. § 488.406(a). Where, as here, CMS has imposed no remedies in
the first place, a facility has no hearing right because no determination properly subject to
a hearing exists. It is the final imposition of an enforcement remedy or sanction and not
the citation of a deficiency that triggers a facility’s right to a hearing pursuant to 42
C.F.R. Part 498. Golden Living Center-Grand Island Lakeview, DAB No. 2364 (2011);
Columbus Park Nursing and Rehabilitation Center, DAB No. 2316 (2010); Fountain
Lake Health and Rehabilitation, Inc., DAB No. 1985 (2005); Lakewood Plaza Nursing
Center, DAB No. 1767 (2001); The Lutheran Home-Caledonia, DAB No. 1753 (2000);
Schowalter Villa, DAB No. 1688 (1999); Arcadia Acres, Inc., DAB No. 1607 (1997).
Moreover, while acknowledging that the United States District Court’s resolution of that
case represents a direct contradiction of the Board’s decision in Golden Living Center-
Grand Island Lakeview, DAB No. 2364, and implicitly of mine in that appeal when it
was before me — I note that the instant case arises in neither the District of Nebraska nor
the Eighth Circuit, and that of the Board decisions on which I rely above, three —
Fountain Lake, Lakewood Plaza, and Lutheran-Caledonia — are longstanding Board
precedents that did arise in the Eighth Circuit. Thus, even if I were obliged to follow the
United States District Court’s decision as controlling for cases arising in the District of
Nebraska, it is far from clear that in cases from other Districts of the Eighth Circuit, let
alone this case arising in the Ninth Circuit, I would be so obliged.

It is true that the court in Golden Living was also concerned about adverse collateral
consequences to a facility where the facility is barred from appealing survey findings
unless a remedy has been imposed. However, I am not authorized to give a petitioner a
hearing based on collateral consequences to a facility that are not included as bases for
hearing in the Act or regulations. I am also not authorized to entertain Petitioner’s
argument that it has a constitutionally-protected property interest which has been harmed
by being precluded from contesting the survey findings. I am bound by applicable
statutes and regulations and I may not ignore or refuse to apply those laws on any ground,
even a constitutional one. Oaks of Mid City Nursing and Rehabilitation Center, DAB
No. 2375, at 30-31 (2011) (citations omitted).

IV. Conclusion

For the reasons discussed above, I dismiss Petitioner’s hearing request because no
remedy specified in 42 C.F.R. § 488.406 was imposed, and therefore Petitioner has no
right to a hearing.

/s/
Richard J. Smith
Administrative Law Judge