Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD

Civil Remedies Division

In the Case of: )
)
Jennifer Matthew Nursing & Rehab )
Center, ) Date: December 27, 2007
(CCN: 33-5439), )
)
Petitioner, )
)
-Vv.- ) Docket No. C-06-671
) Decision No. CR1717
Centers for Medicare & Medicaid )
Services. )
)
DECISION

Until recently, Jennifer Matthew Nursing & Rehabilitation Center (Petitioner or facility)
was a skilled nursing facility located in Rochester, New York, that participated in the
Medicare program. The Centers for Medicare & Medicaid Services (CMS) determined
that from July 13 through September 15, 2005, it was not in substantial compliance with
Medicare conditions of participation, and that, from July 13 through 20, 2005, its
conditions posed immediate jeopardy to resident health and safety. Petitioner did not
appeal many of CMS’s findings, which are therefore final. In a ruling dated February 15,
2007, which I attach and incorporate into this decision, I decided that, from July 13
through 20, the facility was not in substantial compliance with 42 C.F.R. § 483.15(h)(6) —
which requires that facilities maintain safe and comfortable temperature levels — because
facility residents were exposed to high humidity and to temperatures reaching well into
the 90’s. I now consider the remaining issues: whether facility staff appropriately cared
for residents exposed to excessive heat and humidity; the facility’s accountability for the
apparent choking death of one of its residents; and whether its deficiencies posed
immediate jeopardy to resident health and safety.
2

I find that from July 13 through 20, 2005, the facility was not in substantial compliance

with 42 C.F.R. § 483.13(c) (staff treatment of residents), 42 C.F.R. § 483.25 (quality of
care), and 42 C.F.R. § 483.75 (administration). I also find that the facility’s deficiencies
posed immediate jeopardy to resident health and safety, and find reasonable the $10,000
per day civil money penalty.

I. Background’

The Social Security Act (Act) sets forth requirements for nursing facility participation in
the Medicare program, and authorizes the Secretary of Health and Human Services to
promulgate regulations implementing those statutory provisions. Act, section 1819. The
Secretary’s regulations are found at 42 C.F.R. Part 483. To participate in the Medicare
program, a nursing facility 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 survey agencies to conduct periodic surveys to
determine whether skilled nursing facilities are in substantial compliance with program
participation requirements. Act, section 1864(a); 42 C.F.R. § 488.20. The regulations
require that each facility be surveyed once every twelve months, and more often, if
necessary, to ensure that identified deficiencies are corrected. Act, section 1819(g)(2)(A);
42 C.F.R. §§ 488.20(a); 488.308.

In this case, an anonymous caller advised the New York State Department of Health
(State Agency) that a facility resident had choked to death while staff failed to provide
him appropriate assistance. CMS Ex. 22, at 1; CMS Ex. 52, at 2 (Francis Decl. § 5); Tr.
248. No one from the facility had reported such an incident. On June 17, 21, and 24,
2005, state surveyors went to the facility to investigate. The State Agency subsequently
consolidated that investigation with the facility’s annual survey, and, from July 11
through 18, 2005, surveyors returned to complete the annual survey. CMS Ex. 52, at 4
(Francis Decl. § 8). During this latter period, temperatures and the air quality in
Rochester were at unhealthy levels. The facility was not air-conditioned, and, according
to the surveyors, facility staff did not monitor and assess vulnerable residents, nor
respond appropriately when certain residents exhibited heat-related symptoms. See,
discussion, infra.

' My February 15, 2007 ruling and order summarizes this case’s procedural
history up until that point.
3

Based on the survey findings, CMS determined that, from July 13 through 20, 2005, the
facility was not in substantial compliance with the following program requirements
(among others which Petitioner has not appealed):

. 42 C.F.R. § 483.13(c) (Tag F224 — failure to implement policies and procedures
that prohibit mistreatment, neglect and abuse of residents, at scope and severity
level L — widespread immediate jeopardy);

. 42 C.F.R. § 483.75 (Tag F493 — failure to administer the facility 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,
at scope and severity level L);

. 42 C.F.R. § 483.15(h)(6) (Tag 257 — Quality of Life - failure to provide
comfortable and safe temperature levels, at scope and severity level L); and

. 42 C.F.R. § 483.25 (Tag 309 - Quality of Care, at scope and severity level J —
isolated instance of immediate jeopardy).

CMS Ex. 63. CMS also determined that these deficiencies reflected “substandard quality
of care” and posed immediate jeopardy to resident health and safety. CMS has imposed a
$10,000 per day CMP for eight days of immediate jeopardy.

After partially granting CMS’s motion for summary judgment, I held a hearing in
Rochester, New York on June 13 and 14, 2007. Joseph L. Bianculli appeared on behalf
of Petitioner and Fernando Morales appeared on behalf of CMS. I admitted into evidence
CMS Exs. 1-64 and Petitioner (P) Exs. 1-93. Tr. 3.

> Petitioner objects to provisions of my initial pre-hearing order directing each
party to submit, in writing and under oath, the testimony of its proposed witnesses. In
rulings dated October 15, 2007, Judge Kessel carefully considered the issues Petitioner
raises. Based on the reasoning set forth in those rulings, I overrule Petitioner’s
objections. Rulings Denying Motion to Permit Oral Examination of Witnesses,
Sunbridge Care and Rehabilitation For the Triad, Docket N. C-07-608; Golden Living
Center — North Little Rock, Docket No. C-07-676 (October 15, 2007) (copy attached).
II. Issues

The facility did not appeal CMS’s determination that, from July 13 through September
15, 2005, it was not in substantial compliance with the following:

. 42 C.F.R. § 483.13(c)(1)(i1) (Tag F225 — staff treatment of residents, at scope and
severity level D — isolated instance presenting no actual harm, with the potential
for more than minimal harm;

. 42 C.F.R. § 483.15(a) (Tag F241 — quality of life, at scope and severity level D);

. 42 C.F.R. § 483.20(k)(3)(i) (Tag F281 — resident assessment, at scope and severity
level D);

. 42 C.F.R. § 483.25(a)(3) (Tag F312 — quality of care, at scope and severity level
D);

. 42 C.F.R. § 483.25(j) (Tag F327 — quality of care, at scope and severity level G —
isolated instance of actual harm that is not immediate jeopardy);

. 42 C.F.R. § 483.35(h)(2) (Tag F371 — dietary services, at scope and severity level
F — widespread deficiency, presenting no actual harm with the potential for more
than minimal harm);

. 42 C.F.R. § 483.75(b) (Tag 492 — administration, at scope and severity level E —
pattern of noncompliance that presents no actual harm, with the potential for more
than minimal harm).

Hearing Request (September 20, 2005), see n.2; CMS Ex. 63. The facility was therefore
not in substantial compliance with these un-appealed program requirements from July 13
through September 15, 2005. I have also concluded that, from July 13 through 20, 2005,
the facility was not in substantial compliance with 42 C.F.R. § 483.15(h)(6) (safe and
comfortable temperatures). See Ruling and Order (February 15, 2007).

The following issues remain:
. Whether, from July 13 through 20, 2005, the facility was in substantial compliance

with 42 C.F.R. § 483.13(c) (staff treatment of residents); 42 C.F.R. § 483.25
(quality of care); and 42 C.F.R. § 483.75 (administration);
5

. If the facility was not in substantial compliance, did its deficiencies pose
immediate jeopardy to resident health and safety; and

. If the facility was not in substantial compliance, is the $10,000 per day penalty
reasonable?

III. Discussion

A, From July 13 through 20, 2005, the facility was not in substantial
compliance with 42 C.F.R. §§ 483.13(c), 483.25, and 483.75.

“Neglect” means failure to provide goods and services necessary to avoid physical harm,
mental anguish, or mental illness. 42 C.F.R. § 488.301. A facility must develop and
implement written policies and procedures that prohibit resident neglect. 42 C.F.R.

§ 483.13(c). This regulation governing staff treatment of residents “addresses a
deficiency related to lack of an effective policy as opposed to one directed at the
occurrence of neglect itself.” Emerald Oaks, DAB No.1800, at 12 (2001). However, the
drafters of the regulation characterized as “inherent in § 483.13(c)” the requirement that
“each resident should be free from neglect as well as other forms of mistreatment.” 59
Fed. Reg. 56,130 (Nov. 10, 1994). The drafters also deliberately rejected the suggestion
that the regulations require evidence of a negative outcome to support the finding of
neglect:

We do not accept this comment because neglect may be determined even if
no apparent negative outcome has occurred. The potential for negative
outcome must be considered.

Id.

Under the statute and the “quality of care” regulation, each resident must receive, and the
facility must provide, the necessary care and services to allow a resident to attain or
maintain the highest practicable physical, mental, and psychosocial well-being, in
accordance with the resident’s comprehensive assessment and plan of care. Act, section
1819(b); 42 C.F.R. § 483.25.

> My findings of fact and conclusions of law are set forth, in italics and bold, in
the discussion captions.
6

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. 42 C.F.R. § 483.75. A finding of substantial
noncompliance in the facility’s administration may derive from findings of substantial
noncompliance in other areas.

[W]here 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 (2002).

1. Staff delayed in providing critical assistance to a choking
resident.

Over time, the facility has generated multiple conflicting statements as to the events
leading up to the death of Resident (R) 17 on June 9, 2005. However, in their

contemporaneous notes describing those events — which I consider the most reliable
evidence — the staff members with first-hand knowledge were reasonably consistent.

R17 was an 81-year-old facility resident. He suffered from a multitude of problems,
including end-stage dementia. His muscle memory was impaired. He was aphasic (loss
of ability to produce or comprehend language). He had also forgotten how to move his
fork from plate to mouth; he had difficulty moving food from the front of his mouth to the
back to swallow. He chewed, but then left the food where it was, or “pocketed” it in his
cheeks. According to his care plan, staff were supposed to feed him his meals. CMS Ex.
22, at 79; P. Ex. 76; Tr. 40, 218, 419.

For reasons not adequately explained, this man who was forgetting how to eat was given
a hot dog for dinner. Hot dogs are known to present choking hazards. Tr. 108, 223- 224.*

+ Based on the testimony of the Director of Nursing (DON), who was not at the
facility at the time, Petitioner claims that R17 was given an Italian sausage, not a hot dog.
Petitioner also claims, based on no evidence, that an Italian sausage presents less of a
choking risk than a hot dog. P. Posthearing Br. at 35, n.17, citing Tr. 420. The Certified
Nurse Assistant (CNA) and the Licensed Practical Nurse (LPN), who were in the dining
room and observed the meal, told the surveyors that R17 was eating a hot dog. CMS Ex.
22, at 2,3, 28. In any event, I am not aware of any support for the proposition that an
Italian sausage presents less of a choking risk than a hot dog, particularly for someone
who has forgotten how to eat.
Notwithstanding the directive in R17’s care plan that staff feed him his meals, they did not
do so. He regularly fed himself, and was feeding himself on the evening of June 9. CMS

Ex. 22, at 2, 3, 28 (“most days he fed himself, but on some days staff had to finish feeding
him.”)

At the time of the incident, Certified Nurse Assistant (CNA) Pat Brooks was responsible
for R17’s care, and she was in the dining room when the incident occurred. She told
Surveyors Judith Carpenter and Stephanie Sulyma-Mauro that she gave R17 his tray. His
food was cut up and he started feeding himself. She then passed out trays to other
residents, periodically looking back at R17. At one point, she saw that he was staring at

is tray; his complexion changed to bluish; he was not making any sounds; he was clammy
and his eyes were rolled back. CNA Brooks asked Licensed Practical Nurse (LPN) Sara
Jacobs, who was standing by the door, to check on him. CMS Ex. 48, at 8 (Carpenter
Decl. ff 28, 29); CMS Ex. 49, at 6 (Sulyma-Mauro Decl. § 20); Tr. 29, 107.

CNA Brooks then helped to transfer R17 from his dining room chair to his wheelchair, and
they took him back to his room. In his room, he turned “completely blue,” was “bent over
ackwards in the wheelchair, almost tilting out of the chair.” Registered Nurse (RN) Judi

Buckalew, who was the facility’s development coordinator, and a social worker were in

the room, and RN Mary Charles, who was the supervising nurse on the evening shift,
arrived. R17 could not stand so they put him on the floor “and worked on him” until the
Emergency Medical Technicians (EMTs) arrived. CMS Ex. 48, at 8 (Carpenter Decl. §
30); CMS Ex. 22, at 4; Tr. 36, 385.

LPN Jacobs wrote a contemporaneous nursing note that is wholly consistent with CNA
Brooks’ statement to the surveyors. The signed note, dated June 9, 2005, at 6:20 p.m.,
says that the resident was in the dining room, eating supper, “chewing food, pocketing
food, lips blue, resident not swallowing, encouraged resident to spit it out, unable to do.”
She does not say that she checked his airway, nor does she say that he was breathing. She
describes R17 as sweating and writes “placed resident in the chair taken to room. Called
supervisor. Placed resident on the floor.” Oxygen was started “3-L, suctioned and
Heimlich maneuver started by in-service coordinator (Judy).” (Emphasis added). Some
undigested food was removed from his mouth. He was not responding well. 911 was
called and a team arrived at 6:30 p.m. At 6:45 p.m. they pronounced him dead. CMS
Ex. 22, at 73; P. Ex. 80, at 2; Tr. 114-115. I recognize that LPN Jacobs later changed her
version of events, but I accord greater weight to her contemporaneous notes, particularly
since Petitioner did not produce her as a witness to explain her discrepant accounts.

8

Virtually every other contemporaneous account of the incident comports with these
statements.

n nursing notes written on June 9, between 6:25 p.m. and 8:30 p.m. Shift Supervisor RN
Mary Charles records that R17 was in the dining room at supper time “being fed by a
CNA.”* The CNA called out to the nurse that he was pocketing food in his mouth and
ad difficulty swallowing. The nurse went to assess and noted that R17 “looked like he
was choking,” and his color “appeared bluish.” According to the note, he was
“immediately taken to his room” and laid on the floor. Oxygen was started “and Heimlich
maneuver.” The education coordinator [Judi Buckalew] “was present and helping.”
Undigested food was removed from the resident’s mouth. The resident was still not
reathing. Someone called 911 “for choking resident.” The 911 team arrived, but found
no vital signs and at 6:45 p.m., he was declared dead. CMS Ex. 22, at 74; P. Ex. 80, at 3;
Tr. 110-111.

na statement dated June 12, 2005, Judi Buckalew, R.N., writes that she met the
ambulance crew at the front door to direct them to R17's room. She told them that R17
“apparently choked while eating supper but that following intervention resulting in
removal of food from oral cavity there was no breathing and he had no pulse.” CMS Ex.
22, at 67.°

The EMT report confirms that R17 began choking while eating and that staff initially
attempted the Heimlich maneuver, although it suggests that staff gave the EMTs the
impression that they attempted the Heimlich before they moved R17 back to his room
(which would have been the proper procedure). According to the EMT report:

* Since Supervisor Charles was not present in the dining room, and, inasmuch as
the CNA responsible, Pat Brooks, and the LPN present, Sara Jacobs, both said that R17
was feeding himself, and that he regularly fed himself, I conclude that he was feeding
himself dinner on June 9, contrary to the instructions in his care plan. CMS Ex. 22, at 74.

® Although not at issue here, RN Buckalew also writes about the problems staff
had in locating R17’s DNR (do not resuscitate) order. Staff told the EMT that R17 had a
DNR order, but when he insisted on seeing it, the Nurse Supervisor told him that staff had
taken it to photocopy. RN Buckalew showed the EMT the doctor’s order sheet, which the
EMT said was “not adequate.” RN Buckalew was not able to find a document acceptable
to the EMTs, who continued their efforts to resuscitate. When the “needed order” was
finally located, the EMTs stopped their resuscitation efforts. CMS Ex. 22, at 67.
9

RN reports that [patient] was eating dinner when he began to choke and lost
consciousness. RN relates staff performed Heimlich maneuver but [patient]
lost pulses. RN relates staff quickly moved [patient] to his room away from
other residents and began to perform CPR.

CMS Ex. 22, at 13, 19.

Petitioner did not produce as witnesses any employee with first-hand knowledge of the
events of June 9, and, considering the seriousness of the incident, the facility’s
documentation is minimal (see, discussion below). Nevertheless, the nursing notes and the
surveyors’ interviews with staff overwhelmingly establish that R17 began choking while
he was feeding himself a hot dog. His lips were turning blue and he was sweating. CNA
Brooks called to LPN Jacobs, who told him to spit out his food, but he was unable to do
so. CMS Ex. 22, at 73. The documentation does not suggest that LPN Jacobs so much as
checked for an airway, much less performed any life-saving efforts until critical minutes
later, after staff transferred him from chair to wheelchair and returned him to his room.
There, they put him on the floor, and attempted the Heimlich maneuver (also referred to as
abdominal thrusts) with no success.

CMS argues that this response did not meet professionally-recognized standards of care. I
agree.

Gregory Young, M.D., is a physician, Board-certified in emergency medicine and internal
medicine, with twenty-two years experience in emergency medicine. He is a clinical
associate professor of emergency medicine at S.U.N.Y. Buffalo, and is the medical
director of the EMT training program at Erie Community College. CMS Ex. 58, at 1, 2
(Young Decl. ff 2, 3, 4).

Dr. Young sees no medical justification for removing R17 from the dining room rather
than immediately taking emergency measures. CMS Ex. 58, at 14. (Young Decl. § 39).
According to Dr. Young, staff should first have ascertained whether R17's airway was
clear. If his airway were clear, staff could rule out choking; if not, they should have
performed the Heimlich maneuver without delay. CMS Ex. 58, at 3 (Young Decl. ¥ 10);
Tr. 219-220, 222-223. They had about four minutes in which to provide meaningful
assistance. After four minutes of oxygen deprivation, the chances of survival are
“virtually nil.” Tr. 219; CMS Ex. 58, at 13-14 (Young Decl. § 38); CMS Ex. 60, at 1;
CMS Ex. 46, at 10. Moreover, blue lips signify a medical emergency. At that point,
according to Dr. Young, staff no longer had even four minutes in which to act; “you need
to deal with it right then and there.” Tr. 225, 232 (While a public environment is not ideal,
you don’t have much time to respond to a choking event. “It’s a matter of just minutes.” )
10

Dr. Young also reasonably pointed out that it is much easier to perform the Heimlich
maneuver when the resident is still conscious and able to be upright, and the likelihood of
positive outcome is greater if performed when the individual is still conscious. Tr. 229.

R17 was nonverbal and demented, so he was not able to tell staff that he was choking (or
anything else). Nor could he be expected to remember the universal choking sign
(clutching the neck).’ Staff therefore should have looked for signs of an obstructed
airway. Inasmuch as R17 had food in his mouth, and was neither speaking nor coughing,
Dr. Young opined that he most likely had an airway obstruction. CMS Ex. 58, at 13
(Young Decl. 4 37).

And R17 plainly had an airway obstruction, because, after staff returned him to his room,
they performed the Heimlich maneuver, and they swept, suctioned, and removed food
from his mouth. They wrote notes in which they characterized the incident as R1’’s
“choking.” CMS Ex. 22, at 67, 74. They also told the paramedics that R17 had choked
and that they had attempted the Heimlich maneuver. CMS Ex. 22, at 13, 19,67. Based on
this compelling evidence, I conclude that R17's airway was obstructed and that staff
realized it, but delayed providing him the assistance he needed.

In Dr. Young’s view, this was most likely not a cardiac event. CMS Ex. 58, at 14 (Young
Decl. § 41); Tr. 220. However, even if R17 had suffered a heart attack while eating, staff
should have suspected that food was obstructing his airway (sometimes referred to as a
“café coronary”) and immediately cleared the airway, “otherwise you’re going to have a
dead patient.” Lack of oxygen worsens the cardiac event. CMS Ex. 58, at 11 (Young
Decl. § 32); Tr. 228 (“Any time someone is eating and there’s an event associated with it,
you have to assume airway until proven otherwise.”)

In reaching my conclusion, I have also considered the testimony of Petitioner’s expert
witness, Richard A. Hodder, M.D. Dr. Hodder also has impressive credentials, although
not in emergency medicine. He is currently a nursing facility medical director. P. Ex. 91,
at 1 (Hodder Decl.). The main problem with Dr. Hodder’s opinion is that it is based ona
factual scenario for which there is virtually no reliable support. For example, Dr. Hodder
says that if the choking “victim is breathing and coughing, the proper procedure is to
encourage the person to continue to cough to dislodge the partial blockage.” P. Ex. 91, at
11 (Hodder Decl.); accord CMS Ex. 60, at 1. I find no fault with this opinion as a general
proposition, but R17 was probably not breathing, or was barely breathing, and

7 If someone clutches his neck, he is likely choking; however, not everyone who is
choking will make the sign. See, e.g., CMS Ex. 46, at 10. (“The victim may clutch the
neck, demonstrating the universal choking sign.”) Dr. Young described an incident in
which he, himself, experienced an episode of choking, became quite agitated, and
neglected to put his hands to his neck. Tr. 217.
11

unquestionably he was not coughing so he could not possibly have dislodged the blockage
through coughing. Not one note mentions coughing, and not one witness came forward to
suggest that he was coughing.

According to Dr. Hodder, R17 was not choking. In reaching this opinion Dr. Hodder says
that he “reviewed the case” and “obtained pertinent excerpts of the Resident’s medical
record.” Unfortunately, Dr. Hodder does not disclose exactly which documents he
reviewed. P. Ex. 91, at 7 (Hodder Decl.). And his testimony suggests that he did not
review the critical documents describing the circumstances surrounding R17’s death.

First, Dr. Hodder disregards R17’s care plan. He says that CNA Brooks “reported that the
Resident had no history of swallowing problems,” but he seems unaware that R17 had
forgotten how to eat. P. Ex. 91, at 9 (Hodder Decl.).* R17 was not able to move food to
the back of his mouth to swallow. As a result, he needed staff to feed him his meals.

CMS Ex. 22, at 79. But it seems that CNA Brooks — the individual responsible for feeding
im — was not aware of the risk or her responsibility.

Dr. Hodder also claims that, even though in distress, R17 stood and “got into the
wheelchair by his own power.” Dr. Hodder characterizes this finding as “very significant”
and says that it reinforces “in my mind that the Resident did not have a complete tracheal
obstruction.” P. Ex. 91, at9. But R17 did not independently transfer to the wheelchair.
He required assistance. CMS Ex. 48, at 8 (Carpenter Decl. J 30). In fact, even when he
was not undergoing a medical emergency, R17 would not have been able to stand and
transfer himself to a wheelchair. Under the best of circumstances, he required a 2+ person
physical assist. CMS Ex. 22, at 77; P. Ex. 76, at 3.

nasmuch as R17 died, I do not fully understand Dr. Hodder’s claim that performing the
Heimlich maneuver would have caused “even greater injury.” P. Ex. 91, at 11. But Dr.
Hodder seems completely unaware that staff, in fact, performed the Heimlich maneuver;
they just did not perform it soon enough.

The facility’s Director of Nursing (DON), Mary Crosby, also “strongly” disagrees with the
argument that staff should have performed the Heimlich maneuver in the dining room if
they suspected that R17 was choking. According to DON Crosby, “the Heimlich
maneuver should be performed only when the person about to do so is sure that the airway
is completely blocked.” (Emphasis added). P. Ex. 92, at 14. She argues that Nurse

® Petitioner has not produced actual testimony from any of its employees who
witnessed the events of June 9. | find inherently unreliable and accord no weight to
Petitioner’s hearsay evidence as to what transpired. Not only were the employees not
available for cross-examination, but, as discussed below, this record is riddled with
inconsistent and self-serving accounts, generated by staff well after the event occurred.
12

Jacobs’ failure to do the Heimlich maneuver was justified because staff had been
instructed to do the Heimlich “only if they could verify that no air was moving.” Tr. 410-
411. So, according to DON Crosby, unless staff can establish that an airway is completely
blocked, they should not attempt the Heimlich.

If I believed that the facility policy actually put the burden on staff to establish total airway
blockage before intervening, I would find it deeply disturbing. DON Crosby
misunderstands the standard of care. If a foreign body obstruction is mild, and the victim
is coughing forcefully, staff should not interfere with the victim’s spontaneous coughing
and breathing efforts. But, the rescuer should intervene if the choking victim has signs of
“severe” — note, “severe” does not mean “complete” — airway obstruction. These include
“signs of poor air exchange and increased breathing difficulty, such as a silent cough,
cyanosis (which R17 unquestionably demonstrated), or inability to speak or breathe. CMS
Ex. 46, at 10; Tr. 225, 232.

lam therefore satisfied that, because staff did not provide R17 the emergency care he
needed when he needed it, the facility did not provide necessary care to allow him to
maintain the highest practicable physical well-being, as required by the statute and quality
of care regulation. Act, section 1819(b); 42 C.F.R. § 483.25.”

CMS also points out that, in delaying implementation of the Heimlich maneuver, staff
were not following the facility’s own policies. The policy, which is dated June 16, 2004,
provides that “all employees . . . will be trained to initiate abdominal thrusts for a
conscious adult choking victim.” CMS Ex. 15, at 2. When observing that a resident is
choking, staff are directed to call out for assistance, begin choking intervention for
conscious adult, instruct other staff to call 911, and continue the intervention until the
EMS arrives. The policy also requires that an accident/incident report be completed.

° | find disturbing Petitioner’s apparent dismissal of the quality-of-care regulation
as a “catch-all.” P. Posthearing Br. at 55. First, the requirement was specifically
mandated by Congress. Act, section 1819(b). Second, as I pointed out in a recent
decision, providing necessary care and services is central to a facility’s Medicare
participation. Medicare pays for placement in skilled nursing facilities specifically so that
residents can receive the care they need. See The Laurels at Forest Glenn, DAB CR1681,
at 14, n.15 (October 30, 2007).
13

CMS Ex. 15, at 1, 2. CMS has no problem with the written policy itself, but argues
persuasively that, in failing to follow it, staff denied R17 the services he needed to avoid
physical harm. This is neglect (42 C.F.R. § 488.301), and violates the requirement that
the facility implement its policy prohibiting staff neglect.'°

2. The facility neither investigated nor reported the incident, and it
deliberately provided to the State Agency and to this tribunal false and
misleading accounts.

The facility’s actions following R17’s death are deeply troubling.

First, although required to do so, the facility did not report the incident to the State
Agency. The State Agency only learned of it from an anonymous caller. CMS Ex. 48, at
3 (Carpenter Decl. § 11); Tr. 31, 249.

Then, on the first day of the survey, June 17, 2005, when Surveyor Carpenter asked the
facility’s administrator, Mark Walker, and its DON, Mary Crosby, for the incident and
accident report, and the report of the facility’s investigation of the incident, DON Crosby
told her that there were no such documents and that there had been no investigation
“because the resident had died.” CMS Ex. 48, at 5 (Carpenter Decl. ¥ 19); CMS Ex. 22, at
2; Tr. 32-33, 102. In her testimony, DON Crosby confirmed that, when Surveyor
Carpenter asked her for the investigation, she replied that they did not complete one
because “the judgment was he died of natural causes.” Tr. 421, 435.

This raises a question as to how the facility could have made such a determination without
investigating the incident. But more troublesome, DON Crosby admits that on the day
after the incident, she reviewed RN Charles’ note that described R17 as choking; she also
reviewed LPN Jacob’s note that describes R17’s chewing and pocketing food, his blue
lips, inability to swallow or to spit the food out, and the staff’s placing him in his
wheelchair and taking him back to his room before attempting the Heimlich maneuver.
Yet, she told the surveyor that an investigation was not necessary because R17 died
naturally from a heart attack. Tr. 389, 423.

'° T note also that, in failing to complete an accident/incident report, the facility’s
supervisory and administrative staff failed to follow the facility policy. See discussion,
infra.
14

But it gets worse. When the surveyors returned to the facility on June 21, DON Crosby
gave them two typed statements, which she said represented statements from CNA Brooks
and RN Buckalew. CMS Ex. 48, at 5-6 (Carpenter Decl. 4 21); Tr. 33, 103-104.

One of these documents is the June 12, 2005 statement signed by RN Buckalew, which is
described above. CMS Ex. 22, at 67.

The other is labeled “Conversation with Pat Brooks” and dated 6/13/05. DON Crosby
claimed that she spoke to CNA Brooks on June 10, and typed the document on June 13.
The statement is signed by DON Crosby; it is not signed by CNA Brooks. It says that Pat
was assigned to care for R17 on June 12, 2005.'! Pat was feeding him, and had cut up his
food into bite-size pieces. She turned to assist another resident. When she turned back she
observed R17 “in distress.” She called the nurse and

the Heimlich maneuver was performed. There were no results and, as he
became less responsive, they took him via [wheelchair] to his room where he
was placed on the floor and the Heimlich maneuver for an unconscious
person was performed. At this time he was without pulse respiration. 911
was called. She stated the whole event took maybe 5 minutes.

CMS Ex. 22, at 66.

But when Surveyor Carpenter asked CNA Brooks about the statement, CNA Brooks said
that she had never seen the statement and that it was inaccurate. She said that she was not
feeding the resident. She denied telling DON Crosby that anyone had performed the
Heimlich maneuver while R17 was still in the dining room, and confirmed that no one had
done so until later, after returning him to his room. With respect to how long the event
took, CNA Brooks said that the resident’s daughter had been visiting and left at about 6:00
p.m. Trays were brought into the dining room at about 6:10 p.m. and R17’s tray was on
the first cart. Rather than everything taking “maybe 5 minutes,” CNA Brooks opined that
the whole event took 15 to 20 minutes. CMS Ex. 48, at 10 (Carpenter Decl. 4 37); Tr. 104,
106; See also CMS Ex. 22, at 73 (per LPN Jacobs, the event lasted from 6:20 to 6:45
p-m.).

In her testimony before this tribunal, DON Crosby told a completely different story. She
testified that she was not at the facility when the incident occurred, but that RN Charles
called her shortly thereafter and reported that R17 was eating dinner when CNA Brooks
“saw him become red in the face, sweating, and blue around the lips.”

'' Tn addition to getting the date wrong, DON Crosby also got the resident’s name
wrong, referring instead to another resident with a similar name. Tr. 128, 398-399.
15

According to Nurse Charles’ report, CNA Brooks called a nearby nurse,
Sara Jacobs, who retrieved a nearby wheelchair; the resident stood and
seated himself in the wheelchair; Nurse Jacobs decided to take the Resident
to his room to assess him further; someone called 911; one or more nurses
started CPR when the Resident stopped breathing; but the Resident passed
away quickly. According to Nurse Charles, she believed the Resident had
suffered a heart attack or stroke. She never mentioned choking, and the
matter seemed like a routine death of an elderly, debilitated resident that
required no further inquiry.

P. Ex. 92, at 12; Tr. 387, 388. This statement is obviously inconsistent with RN Charles’
note written on the night of the incident, which DON Crosby admits reading. CMS Ex.
22, at 74; Tr. 389.

DON Crosby further testified that she called RN Buckalew, the facility’s development
coordinator, who

basically confirmed the rest of the story as Nurse Charles had related it and
expressed the opinion that the Resident apparently had suffered a heart
attack or stroke. Again, she said nothing about the Resident appearing to
choke.

P. Ex. 92, at 13. But this testimony is inconsistent with RN Buckalew’s June 12, 2005
statement, which DON Crosby handed to the surveyors on June 21. CMS Ex. 22, at 67."

DON Crosby also testified that on the day following R17’s death, she spoke to CNA
Brooks who “repeated to me the same story I had heard the evening before. At no time
during any of these conversations did anyone say that he or she thought that the Resident
had choked.” P. Ex. 92, at 13. This testimony is obviously inconsistent with the DON
Crosby’s own written account of her June 10 conversation with CNA Brooks. CMS Ex.
22, at 66. When asked to explain the discrepancies between that account and her
testimony, DON Crosby said that she knew to be false CNA Brooks’ claim that staff
performed the Heimlich maneuver while R17 was still in the dining room. She didn’t
“recall specifically” if she told the surveyors about the conflicting information. Tr. 403.

® In a June 24 telephone conversation with Surveyors Francis and Carpenter,
DON Crosby claimed that, on the evening of June 9, RN Charles told her that R17 died
from choking, and that the Heimlich had been performed in the dining room. CMS Ex.
52, at 3 (Francis Decl. 4 7).
16

DON Crosby testified that no one “even mentioned choking, or the Heimlich maneuver”
until several weeks after R17's death, following the anonymous complaint to the State
Agency leveled, according to DON Crosby, “by a staff person who had not even been
present at the incident to the effect that we had killed the Resident.” P. Ex. 92, at 13.
DON Crosby concedes that some of the documentation created immediately following the
incident used the word “choking,” but suggests that a CNA confused the chest
compressions of CPR with the abdominal thrusts of the Heimlich maneuver. P. Ex. 92, at
3. The problem with this claim is that LPN Jacobs, RN Charles, and RN Buckalew all
said that they performed the Heimlich maneuver/abdominal thrusts. And they told the
EMTs that they had done so. CMS Ex. 22, at 13, 19, 67, 73, 74.

Administrator Walker testified that he conducted an investigation of the incident (although
Petitioner has produced no corresponding investigative report). He did not mention
whether that investigation included reading the staff's contemporaneous notes, yet he
claimed that “no one who was present in the dining room thought that the Resident was
choking at the time.” He testified that his senior staff had a “very brief” discussion on the
morning following the event, and “no one even mentioned the possibility that he had
choked to death.” P. Ex. 89, at 11 (Walker Decl.).

DON Crosby complains that facility staff were not trustworthy, honest or truthful. Tr.
428. Their underlying goal “was always to get someone else in trouble.” Tr. 431. Ido
not doubt this, but the dishonesty of her staff does not justify DON Crosby’s own
dissembling, and it hardly furthers Petitioner’s case.'*

Finally, DON Crosby testified that if she had to do it over again, she still would not have
reported the incident to the State Agency. Tr. 434-435.

> Petitioner points out that DON Crosby had filed with the State Agency “literally
hundreds of [incident] reports,” including the report of a recent choking death. Petitioner
asserts that “it is hard to imagine why she would want to cover up this particular event,
especially after she came to the conclusion that the Resident actually had died a natural
death.” P. Reply at 15. First, I find not credible her claim that she thought that R17 died
a natural death. Second, it is not so hard to imagine that she wanted to cover up this
particular incident of neglect. During this time, the facility was under investigation for
criminal neglect. Fourteen of its staff were ultimately indicted, and at least eight or more
of those were convicted. P. Ex. 89, at 3 (Walker Decl.); P. Ex. 92, at 2 (Crosby Decl.);
CMS Exs. 12, 13, 59.
17

Not only did staff neglect R17, failing to provide him the care and services he needed, its
administration then compounded those transgressions by failing to investigate the incident
and failing to report it as required. Then, the facility’s director of nursing made matters
worse by knowingly providing false and misleading information to the State Agency. The
evidence thus establishes the facility’s substantial noncompliance with 42 C.F.R. § 483.75
(administration) as well as 42 C.F.R. §§ 483.25 and 483.13(c).

B. The facility was not in substantial compliance with 42 C.F.R.

§§ 483.13(c), 483.25, and 483.75 because it did not provide it residents
with necessary and appropriate care during a period of high heat and
humidity.

There is no dispute that the elderly are more susceptible to heat-related difficulties because
their bodies are less able to regulate and respond to temperature changes. P. Ex. 91, at 5
(Hodder Decl.); CMS Ex. 58, at 18 (Young Decl. § 52). Extreme heat can cause a variety
of ailments, ranging from what Dr. Hodder characterizes as “relatively minor problems,”
such as muscle cramps, to heat exhaustion (excessive sweating, fatigue, headache, and
nausea) to heat stroke, which is a medical emergency. Heat stroke involves hot, dry, red
skin, rapid increase in temperature, loss of consciousness, and even death. P. Ex. 91, at 5
(Hodder Decl.); CMS Ex. 58, at 18 (Young Decl. § 54).

Beginning July 10, 2005, the City of Rochester experienced a severe heat wave combined
with unhealthy air quality. CMS Ex. 14, at 10; P. Ex. 89, at 5. Outside temperatures
reached highs of 90° to 93°F, with high levels of humidity. CMS Ex. 48, at 15; CMS Ex.
14, at 11; CMS Ex. 49, at 9; CMS Ex. 51, at 3. The facility was not centrally air
conditioned, and sections of it, including resident rooms, became uncomfortably hot and
humid. P. Ex. 89, at 4-5; CMS Ex. 48, at 15; CMS Ex. 51, at 3. I have already ruled that
housing residents in rooms this hot and humid (up to 96°F) violates the quality-of-life
requirement that the facility provide comfortable and safe temperature levels. 42 C.F.R.
§ 483.15(h).

I now consider whether the facility provided its residents with the necessary and
appropriate care during that period of excessive heat and humidity.

The surveyors described the temperatures in the facility during the July survey.

According to Surveyor Gail Ajavon, “On the 11" it was hot, on the 12" it was hotter, and
on the 13" it was just unbearable.” Tr. 355. Surveyor Cynthia Francis said that when she
entered the facility late in the day on July 13, 2005, “it hit me in the face like I walked into
a sauna... it was hot in the facility. It was oppressive. It was hot.” Tr. 285; CMS

Ex. 52, at 5 (Francis Decl. § 13). Facility Administrator Walker admits that it was hot,
18

but claims that the heat did not become “oppressive” until July 13. P. Ex. 89, at 4 (Walker
Decl.). He does not explain when “hot” becomes “oppressive,” but suggests that, pursuant
to the facility’s “heat emergency policy,” certain measures (providing extra fluids, closing

curtains, moving residents) would be implemented during periods of “persistent” heat and

humidity. P. Ex. 89, at 4 (Walker Decl.).

The facility’s written policies and procedures. Petitioner produces as its policy a
document titled “High Heat/Humidity.” To minimize confusion, I refer to this as
“Standard Policy.” “Standard Policy” says that the facility “will initiate the following
measures to protect residents/patients and staff from periods of extreme heat and humidity
and the associated health risks.” Those measures include:

. closing draperies on the sunny side of the building;
. increasing the quantity of fluids offered to residents;
. using appropriate preventive and treatment measures such as bathing, sponge baths,

and transferring to cooler areas those residents with temperature elevations.”

Staff were also directed to observe residents for: absence of perspiration; decreased
urinary output; high body temperature/hot and dry skin; rapid respirations/elevated pulse;
confusion. If such symptoms appeared, staff were immediately to notify the nurse or
doctor. They were also instructed to notify the nurse immediately of signs/symptoms of
electrolyte imbalance (confusion, nausea, cramps, unusual muscle weakness). CMS Ex.
18, at 1.

A second document is titled “Heat Wave.” I refer to this document as “Emergency
Policy.” “Emergency Policy” says that “an emergency situation is created by a prolonged
period of hot weather that exceeds 85 degrees with high humidity.” (Emphasis added)
CMS Ex. 18, at 6. Under those circumstances, the administration was to inform staff of
the emergency situation, alert hospitals of the potential need to transfer residents, and
notify the State Health Department and its Long Term Care Division of the situation.
Among the listed procedures were the following:

. “utilize air circulating and to attain and maintain air movement and cooling,
especially in resident use areas;”'*

. close drapes and/or blinds in sun exposed areas;

'' T believe this refers to using fans.
19

. provide and encourage resident fluid intake. “Provide glasses of cool water to all in
addition to regular meal fluids and nourishments.” Maintain a supply of fruit
juices, lemonade, and ice tea on each nursing unit, and nursing staff “shall
encourage and [make] available these fluids to their residents.” Encourage sodium
and potassium intake;

. encourage residents to stay out of direct sunlight;
. monitor temperature and other vital signs once each shift on all residents.
CMS Ex. 18, at 6.

Petitioner argues that it should not be held accountable for failing to provide the services
described in this “Emergency Policy” document, because the document does not represent
facility policy; it is simply a page from an inservice training session. P. Posthearing Br. at
17. But both Administrator Walker and DON Crosby refer to the facility’s “heat
emergency policy,” reflecting the language of the “Emergency Policy” document, that is
not found in the “Standard Policy” document. Administrator Walker describes a policy
that requires taking action during periods of “persistent” heat and humidity. P. Ex. 89, at 4
(Walker Decl.). Similarly, DON Crosby says that, under its heat emergency policy, the
facility would intervene when the weather was “persistently hot and humid.” P. Ex. 92, at
3 (Crosby Decl.).'°

The “Standard Policy” says nothing about a “heat emergency” or “persistent” or
“prolonged” periods of heat. Under its provisions, the listed measures should be taken
during “periods of extreme heat and high humidity.” CMS Ex. 18, at 1. Only the
“Emergency Policy” refers to “a prolonged period of hot weather.” CMS Ex. 18, at 6. So,
contrary to Petitioner’s argument, the testimony of its witnesses suggest that the facility
policy was reflected in the “Emergency Policy” as well as the “Standard Policy” (which
requires no waiting period prior to its implementation).

'S In DON Crosby’s view, the policy would be implemented after “four or five

consecutive days of unusual heat.” P. Ex. 92, at 3 (Crosby Decl.). I consider it
dangerously excessive to wait up to five days before monitoring vital signs, or
encouraging residents to stay out of the direct sunlight. Of course, the other interventions
were required by both policies, and should have been implemented during any period of
extreme heat and high humidity. CMS Ex. 18, at 1.
20

Moreover, Petitioner has not explained why the facility would not be accountable for its
instructions to staff and staff’s failure to follow those instructions. In any event, the
“Emergency Policy” on its face, appears to be a policy with designated procedures, which
are specifically labeled “procedure.” No facility witness claimed that this document did
not represent the facility’s policy. In this regard, Petitioner’s references to the record point
to arguments of counsel, not the testimony of witnesses.

Policy Implementation. CMS voices no particular objections to the contents of either the
“Standard Policy” or “Emergency Policy,” but argues that they were not properly
implemented. The evidence supports CMS’s position.

First, the facility had no way of determining when it was time to implement its emergency
measures, because it had no thermometers for measuring room temperatures. So, even
though its written policy said that it would implement its “Emergency Policy” when
temperatures reached 85° or above, staff had no way of determining when that occurred.
CMS Ex. 18, at 6; Tr. 336. Administrator Walker dismisses as insignificant the facility’s
failure to measure temperatures: “We knew it was hot, and that the rooms were hot.” P.
Ex. 89, at 5, 7 (“Again, these data confirmed what we already knew — it was hot and
humid.”) But how was the facility to determine when the hot weather “exceeded 85
degrees with high humidity” if it did not monitor the temperature? When the facility
finally started to measure room temperatures on the evening of July 13, temperatures
above 85° were common, and in some resident rooms, temperatures were in the 90’s.
CMS Ex. 35, at 3-5; CMS Ex. 43, at 28-30; CMS Ex. 51, at 11-12 (Ajavon Decl. {§ 36,
37, 38, 39); CMS Ex. 48, at 16, 17 (Carpenter Decl. J 55, 66); P. Ex. 87; See Ruling and
Order, at 7-8 (February 15, 2007).

Next, facility policy required staff to increase the amount of fluid offered to residents
during periods of heat and humidity. Everyone recognizes the importance of keeping the
facility’s aged and infirm residents well-hydrated. As Dr. Hodder points out, “most heat
ailments result from overexertion and/or dehydration in hot conditions . . . staff ordinarily
is able to keep [nursing facility residents] well hydrated in such conditions.” P. Ex. 91, at
6.

But the evidence establishes that the facility was not providing the most vulnerable of its
residents with sufficient hydration. The facility had in place blue carts containing ice and
pitchers of juice and water — one on each floor. Staff were supposed to offer these extra
drinks to the residents, but the surveyors did not observe them doing so. CMS Ex. 49, at 9
(Sulyma-Mauro Decl. § 34); Tr. 92; 292, 345. Residents on the first floor were
ambulatory, so, although staff were not handing out fluids to them as dictated by the
policy, those residents could at least help themselves. Tr. 343-344. But the residents on
the second and third floors were confined to their beds; they were not capable of
purposeful movement, and many were not able to speak. CMS Ex. 48, at 15; CMS Ex.
49, at9. Until the afternoon of July 13 (when the State Agency called immediate

21

jeopardy), no surveyor observed staff providing water or other drinks to residents on the
second floor. Tr. 294, 343-344. Surveyor Stephanie Sulyma-Mauro testified that she and
Surveyor Parrinello-Hall observed the hydration cart parked at the second floor nurses
station on July 11, 12, and 13, but did not see staff handing out drinks to residents until the
afternoon of the 13". She did not personally see any resident take a drink from the
hydration cart during this time. And the surveyors were specifically “keeping an eye” on
the hydration cart. CMS Ex. 49, at 9-10 (Sulyma-Mauro Decl. § 34); Tr. 292-293.
Surveyor Wood testified that she observed hydration carts on the second and third floors
near the nurses station, but did not see them used until late afternoon on the 13". Tr. 309-
310.

DON Crosby states “with certainty that [the cart] was circulated at least every hour, since I
not only saw it, but also did so myself.” P. Ex. 92, at 5. But DON Crosby has
demonstrated a complete lack of credibility in this case (see, discussion, supra). Petitioner
had ample notice of the surveyors’ observations, but produced no other employee who
claims to have taken the cart around, nor evidence of any reliable, systematic means by
which the facility could verify that its (purportedly unreliable) staff circulated the cart and
that they actively encouraged the residents —- many of whom might not have recognized
that they needed water — to drink. I found credible the surveyor testimony that they did
not see the carts circulated. If, in fact, the carts were circulated hourly, at least one of the
surveyors would have seen it go around at least one time.

Other evidence supports the finding that staff were not providing residents with increased
fluids. For example, R24 was an 83-year old man, suffering from dementia, cerebral
vascular accident, hypertension, history of hypernatremia (elevated sodium) and acute
renal failure. CMS Ex. 27, at 10. On July 13, at approximately 5:15 p.m., surveyors
observed him in bed. The temperature of his room was 96°F.'° He complained that he
was hot and thirsty; his lips were dry and cracked. P. Ex. 49, at 21 (Sulyma-Mauro Decl.
4 89). He had no water in his room, and, when Surveyor Sulyma-Mauro asked him if he
wanted water, he said yes. Tr. 306-307.

R5 was tube-fed and thus completely dependent on staff for hydration. Her care plan
identified her as at risk for dehydration. CMS Ex. 49, at 10-11 (Sulyma-Mauro Decl.
4991 37, 39); Tr. 187, 314. She was suffering from a urinary tract infection, elevated
temperature (103°F), and kept in a stiflingly hot room. Tr. 184, 296-298. With a core
temperature of 103°F, a patient should be given more fluids because she is losing more

‘6 Petitioner objects that this temperature exceeded the official high temperature
for Rochester that day. I see nothing unusual about a temperature taken in direct sunlight
registering higher than the official high.
22

“to insensible loss, which could cause dehydration and kidney issues.” Tr. 193. Yet her
physician did not order increased hydration until July 13. CMS Ex. 24, at 27; Tr. 319,
323-324. The results of her subsequent blood tests were consistent with dehydration.
CMS Ex. 24, at 88; CMS Ex. 58, at 26-27 (Young Decl. § 86). See discussion, infra.

Nor were staff monitoring temperatures and vital signs “once each shift on all residents,”
as called for by the “Emergency Policy.” CMS Ex. 18, at 6. Even though Administrator
Walker says that he called a heat emergency on the morning of July 13, staff did not
begin taking temperatures until that evening. CMS Ex. 34; CMS Ex. 51, at 7 (Ajavon
Decl. § 26). As discussed below, no one took R2's temperature until July 14, at which
time they learned that she had a fever.

The facility failed to implement its policies in other respects. Staff were supposed to close
drapes on the sunny side of the building, and to encourage residents to stay out of direct
sunlight. CMS Ex. 18, at 1,6. But the facility apparently did not have actual draperies in
the resident rooms, and the window blinds were ineffective in blocking the sun. Tr. 87,
283-285; CMS Ex. 48, at 19 (Carpenter Decl. § 74); CMS Ex. 49, at 11 (Sully-Mauro
Decl. ¥ 41.

R24 was found lying in his bed in the direct sunlight in a 96°F room. CMS Ex. 49, at 21
(Sulyma-Mauro Decl. § 89). Leaving him in the direct sunlight “would be like leaving a
child in a car.” Tr. 215. Because of his dementia and history of stroke, R24 was
dependent on staff for his care, and was not able to move himself out of the sun. CMS Ex.
49, at 90 (Sulyma-Mauro Decl. 490). DON Crosby’s claim that R24 “was a native of
Georgia and enjoyed hot weather” does not justify leaving him that way. P. Ex. 92, at 9
(Crosby Decl.).

Staff were also supposed to be assessing residents and responding to their heat-related
symptoms. CMS cites examples of residents with high temperatures and other symptoms,
who were left lying in hot rooms:'”

'T The circumstances of the residents discussed here (along with the other
deficiencies cited) more than justify the penalty imposed, so I do not discuss every
resident cited by CMS.
23

Resident 2. R2 was an 85-year-old woman who suffered from chronic obstructive
pulmonary disease (COPD). She had histories of stroke and urinary tract infections. CMS
Ex. 48, at 16 (Carpenter Decl. 4 57); Tr. 89, 147. High temperatures and humidity will
exacerbate the symptoms of COPD. CMS Ex. 58, at 20 (Young Decl. § 59); Tr. 119-120.
Because of residuals from her stroke, she was completely dependent on staff for feeding
and transfer.

R2 spent most of her day in her room. When measured on July 13 and 14, the temperature
in her room was 90°F. CMS Ex. 48; P. Ex. 92, at 10. Surveyors saw her lying in bed with
a fan blowing directly on her face. She said that she could not breathe without the fan.

CMS Ex. 48, at 18 (Carpenter Decl. § 67).

R2 was not capable of getting herself out of bed; she required the assistance of staff and a
mechanical lift. On July 11 and 12, she apparently was left in her bed in her hot room all
day. Staff finally got her out of bed and into a gerichair on July 13, “the first time in a
long time [that] she had been out of bed,” but she was not encouraged to leave her room to
move to a cooler place. CMS Ex. 48, at 17 (Carpenter Decl. {| 60-65); Tr. 121.

According to Petitioner, R2 “typically refused to get out of bed.” P. Posthearing Br. at 30.
But the nursing notes from April through August 2005, cite only two instances of her
refusal to get out of bed, July 12 and July 18. A July 12 nursing note says “refuses to get
out of bed.” P. Ex. 65, at 7. However, that is also the date that R2, who is fully alert and
oriented and understands without difficulty (P. Ex. 64), told Surveyor Carpenter that the
CNA had tried to get her out of bed, but was unable to do so, which does not sound like
she was refusing to get out of bed. CMS Ex. 48, at 17 (Carpenter Decl. 4 63).'*

Petitioner’s “Standard Policy” called for transferring to cooler areas or comparably
assisting residents with temperature elevations. CMS Ex. 18, at 1. Because staff did not
take R2’s temperature on July 11, 12, or 13, we do not know whether she should have
been transferred on those dates. When someone finally took her temperature, at about
noon on July 14, her axillary body temperature was 100° (suggesting a higher core
temperature). CMS Ex. 34, at 27; CMS Ex. 48, at 18 (Carpenter Decl. 68); CMS Ex. 58,
at 20-21 (Young Decl. 63).

'S Ordinarily, I might not afford the resident’s statement too much weight, since it
is contradicted by the nursing notes. However, Petitioner has convinced me that its staff
was capable of putting false information into the patient records. See, e.g. Tr. 428, 431.
See also Tr. 237-238; CMS Exs. 12, 13 (At least eight facility employees criminally
convicted of falsifying medical records and patient neglect during April and May 2005).
24

Petitioner claims, without citation to the record, that R2’s elevated temperature was of no
consequence because her temperature “normally fluctuated between 97.4 and 100.2.” P.
Posthearing Br. at 30. R2’s clinical record does not support this assertion. Nursing notes
show that in April 2005, she was on antibiotic therapy for an infection. Even then, her
temperature reached 100° only once. I see three readings of 99° or above (P. Ex. 65, at 2),

ut, even with an infection, her temperature generally ranged between 96.7 and 98.7. P.
Ex. 65, at 1-3. I see no temperatures recorded between April 23 and July 14, 2005.

Petitioner may be referring to the testimony of DON Crosby. But DON Crosby did not
claim that R2’s temperature “normally fluctuated between 97.4 and 100.2.” She said that
“during the heat wave R2’s temperature fluctuated between 97.4 and 100.2.” (Emphasis
added) P. Ex. 92, at 11. Her testimony is not wholly accurate. We have no idea what
R2’s temperature was during the early days of the heat wave (July 11-13), when she was
confined to her hot room. We only know what it was after staff started taking her to
cooler areas. P. Ex. 65, at 8.

Resident 26 (R26). R26 had multiple risk factors for heat-related injury and dehydration.
He had end-stage Alzheimer’s disease, diabetes, and was described by his physician as
“functionally quadriplegic.” P. Ex. 53, at 1. He was unable to move his arms or legs or to
turn himself. Tr. 118, 176. He had a gastrostomy (feeding) tube. CMS Ex. 48, at 19
(Carpenter Decl. ¥ 73.

Nursing notes show that R26 had an infection (pneumonia), so staff were monitoring his
temperature prior to the survey. On July 11, 2005, they recorded temperatures of 98.4 at
6:25 a.m., 101.6 during the 7 to 3 shift, and 100.4 some unspecified time thereafter. P. Ex.
55, at 22. The following day, staff reported early morning temperatures of 100.8 and
101.4. P. Ex. 55, at 22.

R26’s room was on the eastern side of the building, which was the hotter side because it
had no trees. Although his window blinds were closed, they were “practically transparent”
and his window had no drapes. Surveyor Carpenter described the heat in R26’s room as
“unbearable.” Tr. 87. At 8:25 a.m. on July 13, Surveyor Carpenter observed R26 in his
room. A fan was on, and he had a wet cloth on his forehead, but bright light was
streaming through the blinds, and R26 was not responsive. CMS Ex. 48, at 19 (Carpenter
Decl. § 74). Later that morning, Surveyor Carpenter observed him lying in bed, his skin
warm and dry. Again, he did not respond. CMS Ex. 48, at 20 (Carpenter Decl. § 75). She
asked staff to take his temperature, which was 101.3°F, axillary. Surveyor Carpenter
asked that his temperature be taken rectally. Staff claimed that his rectal temperature was
the same, although both Surveyor Carpenter and Dr. Young deem this highly unlikely;
axillary temperatures are generally lower than rectal temperatures. The room temperature
was 89°F. CMS Ex. 48, at 20 (Carpenter Decl. § 76); Tr. 117; CMS Ex. 58, at 33 (Young
Decl. § 113).

25

In the late afternoon on July 13, Surveyor Francis observed R26 lying in his bed, in the
sun, a plastic pillow up against his body. His room temperature was 90°F. Tr. 283.

When I walked into the room, the resident was lying in bed. His eyes were
closed. He had this long plastic body pillow against his side or back. He
was sort of on his side, but he sort of wasn’t.

The blinds were closed, but you really couldn’t tell that because there was so
much sun coming through them. His wife was present. His eyes were
closed. He — I tried to speak with him to see if I could get any reaction, I
couldn’t. His wife told us that — told me that he hadn’t responded to her that
day... [W]e... suggested that at least put a pillow case on the pillow.

ORK OK

That’s related to the evaporation process that needs to take place if
someone’s sweating. If the air can’t circulate, the evaporation’s not going to
happen. If you’ve got plastic directly against the skin, there’s definitely no
circulation, there’s no evaporation, so there’s no cooling.

Tr. 283-285.

When surveyors observed R26 on July 14, he had finally been moved to an air conditioned
area. He was more alert; his skin was cooler; he was smiling at his wife. CMS Ex. 48, at
21 (Carpenter Decl. § 81); Tr. 87.

While I do not doubt that R26’s elevated temperature was primarily caused by his
underlying infection, his lying in the sun in a 90°F room also likely contributed to his
fever, and to his mental confusion, and certainly caused him significant discomfort. Even
DON Crosby concedes that “a person in a hot room would be expected to have a slightly
elevated temperature as part of the body’s normal response to heat.” P. Ex. 92, at 5, but
see P. Ex. 58, at 35 (Young Decl. § 119). But without regard to the cause of his elevated
temperature, R26 had conditions that made him vulnerable to heat, and was exhibiting
symptoms that the facility heat policy identified as problematic (absence of perspiration,
hot and dry skin). He was completely unresponsive. Yet, he was left lying in an
“unbearably” hot room.

26

Resident 5. R5 was an 82-year old woman who had a history of stroke, and suffered from
diabetes, among other ailments. She had pressure ulcers. She had decreased cognition and
communication deficits related to aphasia, stroke and blindness. She had a history of
urinary tract infections. As noted above, her care plan identified her as at risk for
dehydration due to her gastrostomy. Staff were supposed to assess changes in her fluid
needs during periods of fever, diarrhea, emesis, and hot weather. CMS Ex. 22; CMS Ex.
24, at 1, 63.

Surveyors visited RS every day of the survey and reported that the room was very warm.
Mini-blinds were pulled, but they were very thin, and bright sunlight easily came through.
CMS Ex. 49, at 11 (Sulyma-Mauro Decl. § 41).

Surveyor Sulyma-Mauro testified that she has been going to the facility since 2001, and
R5 was well-known to her. She describes RS as pale and listless. “She did not look like
she normally did.” She simply “did not look right to me.” Tr. 296, 299.

On July 12, at 1:50 p.m., the temperature in R5S’s room was 89°F. Her hair and shoulders
were wet, presumably from perspiration. At approximately 9:00 a.m. on July 13,
Surveyors Sulyma-Mauro and Julie Parrinello-Hall observed RS in bed in her very warm
room, sweating. At 12:45 p.m. on July 13, her room temperature was 92°F. At Surveyor
Sulyma-Mauro’s request, the nurse took her body temperature, which registered 101.1°F
(axillary) and 103.3° (rectal). CMS Ex. 49, at 11-12 (Sulyma-Mauro Decl. § 45); CMS
Ex. 50 at 5. She was no longer sweating. CMS Ex. 49, at 13.'° The nurse administered
Tylenol. CMS Ex. 49, at 12 (Sulyma-Mauro Decl. 51).

At 5:00 p.m. on July 13 the temperature in R5’s room was still 92°F. Notwithstanding two
doses of Tylenol, her temperature was still elevated (103.3°). CMS Ex. 49, at 13; CMS
Ex. 24, at 17. She was breathing heavily, with respirations of 36 a minute, which is not
normal (normal is up to 12 to 20 breaths per minute). Dr. Young characterized this as a
“critical number.” CMS Ex. 49, at 13 (Sulyma-Mauro Decl. § 52); CMS Exs. 58, at 23
(Young Decl. 4 75); Tr. 185. See also CMS Ex. 18, at 1 (facility policy identifying rapid
respiration as a heat-related symptom).

'° For an individual experiencing prolonged exposure to excessive heat, the
absence of perspiration may indicate a serious problem. See P. Exs. 9; 14 at 2; 15 at 4
(absence of perspiration is a symptom of heat stroke); See also CMS Ex. 18, at 1.
27

Later that evening, staff finally moved her to the nurses station and applied ice to vital
areas. CMS Ex. 24, at 17. Her temperature then dropped but crept back up to 101°. The
facility later learned that RS had a urinary tract infection. Based on this, Dr. Young
opined that R5’s exposure to heat caused a temperature elevation of an additional couple
of degrees. CMS Ex. 58, at 25-26 (Young Decl. J 82, 83, 84); Tr. 184, 297-298.

A July 16 test for blood urea nitrogen (BUN) level of 105, and creatine level of 1.2
suggested that she was dehydrated. CMS Ex. 24, at 88; CMS Ex. 58, at 26-27 (Young
Decl. § 86).

Everyone agrees that the elderly are more susceptible than most to heat-related problems.
Among the facility’s residents were individuals whose compromised conditions made
them even more vulnerable to high temperatures and humidity. Such residents should not
be lying in direct sunlight. It was also critically important that they be kept well-hydrated
and that their conditions be monitored. Because the facility did not do so, it was not
providing necessary care to allow those residents to maintain the highest practicable
physical, mental, and psychosocial well-being. It was therefore not in substantial
compliance with section 1819(b) of the Act and 42 C.F.R. § 483.25.

The facility had written policies in place to meet those residents’ special needs. But they
did not implement the policies, which exposed their most vulnerable residents to physical
harm and mental anguish. This is neglect, violating 42 C.F.R. §483.13(c).

The facility’s administrators are responsible for the inadequate response to the heat
emergency. It was not using its resources effectively to maintain the highest practicable
physical, mental and psychosocial well-being of each resident. So the facility was not in
substantial compliance with 42 C.F.R. § 483.75.

C. CMS’s determination that the facility’s deficiencies posed immediate
jeopardy to its residents was not clearly erroneous.

I next consider whether CMS’s immediate jeopardy finding was “clearly erroneous.”
Immediate jeopardy exists if the 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 its immediate
jeopardy finding — must be upheld unless it is “clearly erroneous.” 42 C.F.R. § 498.60(c).
28

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). Here, the facility has not satisfied
its burden.

The circumstances surrounding the death of R17, and the facility’s response, by
themselves, justify the immediate jeopardy finding. No one knows with certainty whether
staff could have saved R17’s life by immediately administering the Heimlich maneuver,
instead of expending precious time taking him back to his room. However, delay in
initiating a potentially life-saving procedure is unquestionably likely to cause serious
injury or death, and justifies the immediate jeopardy determination.

The facility compounded its deficiencies when it failed to report or investigate the
incident, and — even worse — generated inconsistent, false, and misleading accounts of it.
Unless the facility honestly investigates and identifies the root cause of the deficiency, it
has little hope of meaningful correction. Here, staff had supposedly attended in-service
training, and were able to articulate the appropriate response to a resident’s choking. Yet,
when called upon to apply that training, something went seriously wrong. In its efforts to
hide the deficiency, the facility lost the opportunity to identify and resolve the problem.
This response leaves the residents at risk of serious harm.

Further, the survey and certification process is in place to protect the health and safety of
facility residents. The integrity of that process relies on facilities’ providing to the State
Agency and CMS reliable information. When a facility provides false information, it
undermines the entire process, again putting residents at risk.

The deficiencies cited with respect to the facility’s exposing its residents to excessive heat
and humidity provide a second, independent basis for finding immediate jeopardy.
Petitioner seems to be under the misapprehension that the immediate jeopardy standard
requires findings of actual harm that rises to the level of a medical emergency. Dr.
Hodder, for example, discusses temperature levels that lead to “serious injury to the brain
and organs” (about 105° in an otherwise healthy person — or less than 2 degrees higher
than RS’s temperature). But this is not the level of harm necessary to establish immediate
jeopardy.

People live in nursing facilities because of illness or other debilitating condition, and
excessive heat and humidity necessarily present the potential for negative outcomes, which
is why the facility must increase its vigilance during periods of excessive heat and
umidity. Tr. 211. Exacerbation of those existing conditions can constitute serious harm.
n testimony that was not inconsistent with anything Dr. Hodder said, Dr. Young

29

explained that, by the time temperatures reach around 90°F, the body is no longer able to
offload heat by means of radiation. The only chance it has to dissipate excessive heat is by
evaporation, but if an individual has problems sweating, which can be caused by a myriad
of drugs (e.g. antipsychotics, anticholinergics, antihistamines, some antihypertensives,
diuretics), the risk of heat-related injury increases. Tr. 148. When body temperature
reaches 105°F or so, there is an immediate chance of end organ damage. But temperatures
of 101°F can also present the risk of serious injury depending on its duration and the
individual’s co-morbidities, such as COPD and cardiac disease. Tr. 150.

Here, vulnerable residents, a prolonged period of heat and humidity, combined with the
facility’s failure to monitor vital signs and its failure to ensure that the residents were well-
hydrated, (which both Drs. Hodder and Young cited as absolutely necessary) created a
likelihood of serious harm. I therefore do not find “clearly erroneous” CMS’s
determination that the facility’s deficiencies posed immediate jeopardy to resident health
and safety.

D. I find reasonable the $10,000 per day CMP for the 8 days of
immediate jeopardy.

Having found a basis for imposing a CMP, I now consider whether the amount imposed is
reasonable, applying 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. 42 C.F.R. § 488.438(f). 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.

It is well-settled that, in reaching a decision on the reasonableness of the CMP, I may not
look into CMS’s internal decision-making processes. Instead, I consider whether the
evidence presented on the record concerning the relevant regulatory factors supports a
finding that the amount of the CMP is at a level reasonably related to an effort to produce
corrective action by a provider with the kind of deficiencies found and in light of the other
factors involved (financial condition, facility history, culpability). 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); Community Nursing Home, DAB No. 1807, at 22 et seq. (2002); Emerald
Oaks, DAB No. 1800, at 9 (2001); +CarePlex of Silver Spring, DAB No. 1683, at 8.
30

CMS has imposed a penalty of $10,000 per day, which is the maximum penalty
($3,050 — $10,000). 42 C.F.R. § 488.438(a)(1). I recognize that the maximum penalty
should be reserved for the most egregious cases. This is one such case.

The facility’s history of noncompliance is abysmal. The State Agency designated it a
“special focus facility,” which means that, based on it history of noncompliance, it had to
be monitored more closely. Tr. 123; P. Ex. 6. In 2003, the facility’s deficiencies posed
immediate jeopardy. Residents were being abused, both physically and verbally. The
facility did not investigate and did not respond to the behaviors, so the state found
immediate jeopardy. Tr. 237, CMS Ex. 13. In 2004, the State Agency found substandard
quality of care, citing the facility for inappropriate treatment in not responding to pressure
ulcer issues, and inadequate staffing. The facility was not able to provide care and meet
resident needs. Tr. 237.

In the meantime, the Attorney General for the State of New York was apparently
conducting his own investigation of resident neglect. In December 2005, approximately
eight facility employees (CNAs and LPNs) were criminally convicted of falsifying
medical records and patient neglect. They claimed to have provided care that they had not
provided. Tr. 237; CMS Exs. 12, 13; P. Ex. 89, at 2-4. The charges stemmed from
conduct that occurred April-May 2005, immediately prior to the incidents cited here.
Remarkably, although the State Agency was supposedly closely monitoring the facility
throughout the period of the staff’s wrongdoing, it imposed no remedies based on that
criminal neglect. Tr. 238.

Petitioner has not argued that its financial condition affects its ability to pay the penalty.

With respect to the other factors, the scope and severity of Petitioner’s deficiencies were at
the highest levels and justify the most severe sanctions. The heat-related problems were
cited at scope and severity level L — widespread immediate jeopardy. The circumstances
surrounding R17's death were cited at scope and severity level J — an isolated instance of
immediate jeopardy. And these were not the facilities only deficiencies. The facility was
not in substantial compliance with seven other requirements, which included deficiencies
cited at scope and severity levels E (pattern of noncompliance with potential for more than
minimal harm), F (widespread noncompliance with the potential for more than minimal
harm), and G (isolated instance of actual harm). CMS Ex. 63.

The facility’s culpability also calls for the most severe sanction. Facility staff were guilty
of widespread neglect, disregarding resident care, comfort and safety. I have discussed at
length the safety issues. In addition, staff's conduct and arguments demonstrate disregard
for resident comfort. Indeed, Petitioner continues to trivialize the residents’ real suffering
as “ordinary discomforts of life.” P. Posthearing Br. at 54.
31

The facility is also culpable for failing to investigate the circumstances surrounding R17's
death, for failing to report it to the State Agency, and for its attempts to mislead the State
Agency, CMS, and this tribunal as to those events. To this day, DON Crosby declares
that, if she had it to over again, she still would not report the incident. Tr. 434-435.

Finally, I find no merit to Petitioner’s complaint as to the duration of the immediate
jeopardy. The burden is on Petitioner to establish that it implemented an effective plan of
correction. See, Hermina Traeye Memorial Nursing Home, DAB No. 1810 (2002).
Petitioner has not established that its actions removed the immediate jeopardy any earlier
than July 21, 2001. The facility’s immediate jeopardy deficiencies were systemic, serious,
and wide-spread, not amenable to a quick and easy fix. It’s failure to report, investigate,
and follow-up on the choking incident alone would justify the period of immediate
jeopardy. In that regard, training alone did not ensure that the immediate jeopardy was
removed. The facility should then follow-up with staff to verify that they understand and
have implemented the practices taught.

Similarly, with respect to the neglect, quality of care, and administrative deficiencies
surrounding the heat emergency, the problems were wide-spread. That the specific
individuals were eventually removed to cooler locations resolved part of the problem, but
ensuring that staff consistently monitored vital signs and attended to the hydration needs
of all residents required more than the facility’s declaration that it intended to do so.
Particularly in light of staff’s history of neglect, the facility should have been instituting
safeguards guaranteeing that staff fulfilled their responsibilities.

IV. Conclusion

Facility staff delayed in providing critical assistance to a choking resident, and then neither
investigated nor reported the incident. It provided false and misleading accounts of the
incident to the State Agency. During a period of high heat and humidity, it did not provide
its residents necessary and appropriate care. Its deficiencies put facility residents at
significant risk of potentially serious injury, harm, impairment, or even death. I therefore
conclude that, from July 13 through 20, 2005, the facility was not in substantial
compliance with 42 C.F.R. §§ 483.13(c), 483.25, and 483.75. Its deficiencies posed
immediate jeopardy to resident health and safety. I find reasonable the $10,000 per day
CMP.

/s/
Carolyn Cozad Hughes
Administrative Law Judge


Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD

Civil Remedies Division

In the Case of: )
)
Eno Essien, ) Date: December 18, 2007
)
Petitioner, )
)
-Vv.- ) Docket No. C-07-699
) Decision No. CR1714
The Inspector General. )
)
DECISION

I sustain the determination of the Inspector General (I.G.) to exclude Petitioner, Eno
Essien, from participating in Medicare and other federally funded health care programs
until Petitioner’s certification as a nursing assistant is restored in the State of California.

I. Background

On July 31, 2007, the I.G. notified Petitioner, who had been working as a certified
nursing assistant, that she was being excluded from participating in Medicare and other
federally funded health care programs pursuant to section 1128(b)(4) of the Social
Security Act (Act). Section 1128(b)(4) provides for the exclusion of any individual
whose license to provide health care is revoked, suspended, or otherwise lost for reasons
earing on that individual’s professional competence, professional performance, or
financial integrity.

Petitioner requested a hearing and the case was assigned to me for a hearing. I held a pre-
earing conference at which I established a schedule for the parties to file written
submissions including briefs and proposed exhibits. During the pre-hearing conference, I
afforded each party the opportunity to request an in-person hearing conditioned on the
party satisfying me that the party had relevant testimony that did not duplicate a
document that is in evidence. October 12, 2007 Order and Schedule for Filing Briefs and
Documentary Evidence (memorializing prehearing telephone conference). Neither party

2

requested that an in-person hearing be convened. The I.G. submitted a brief (I.G. Br.)
and five exhibits (I.G. Ex. 1 —-1.G. Ex. 5). Petitioner did not offer any exhibits, but she
submitted a letter with testimony and, for that reason, I designate it as P. Ex. 1 and admit
it along with the L.G.’s exhibits.

If. Issued, findings of fact and conclusions of law
A. Issue

The issue in this case is whether a basis exists for the I.G. to exclude Petitioner pursuant
to the provisions of section 1128(b)(4) of the Act for a period that is coterminous with
that of Petitioner’s loss of her certification as a nursing assistant in the State of California.

B. Findings of fact and conclusions of law

I make findings of fact and conclusions of law (Findings) to support my decision in this
case. I set forth each Finding below as a separate heading. I discuss each Finding in
detail.

1. The 1G. is authorized to exclude Petitioner pursuant to section
1128(b)(4) of the Act.

Section 1128(b)(4) of the Act states in relevant part that the Secretary of the United States
Department of Health and Human Services (or his delegate, the I.G.) may exclude from
participating in Medicare or a State health care program any individual:

whose license to provide health care has been revoked or suspended by any State
licensing authority, or who otherwise lost such a license or the right to apply for or
renew such a license, for reasons bearing on the individual’s . . . professional
competence, professional performance, or financial integrity ...

Act, § 1128(b)(4)(A).

The evidence offered by the I.G., which Petitioner did not rebut, establishes that on
August 22, 2006, the California Department of Health Services revoked Petitioner’s nurse
assistant certification. I.G. Ex. 4. In doing so the agency found that in the course of
providing care to a nursing home resident Petitioner pulled the resident’s hair, slapped her
face, and covered her mouth with her hand in order to hold the resident down. /d. at 1.
The State licensing authority concluded that:
3

You subjected your resident to physical abuse; you did not treat her with
respect and dignity when you physically abused her....

Id.

This evidence proves that Petitioner’s certification was revoked by a state agency based
on findings that she abused a patient (a nursing home resident) in the course of
performing her duties. That is a finding that relates to her professional competence
and/or performance.

I have considered whether revocation of Petitioner’s nurse assistant certification is a
revocation of a license to provide health care within the meaning of section 1128(b)(4)
and I find that it is. The Act does not define the term “license to provide health care.” I
conclude that the section is intended to apply to any circumstance in which State
certification or approval is a prerequisite to being permitted to perform work in the health
care field. A certification of professional competence and training is necessary to work as
a nursing assistant in California. Cal. Health & Safety Code, § 1337.2(e) (2006). The
certification operates as a license in that it serves to limit the class of individuals who are
permitted to provide nursing assistant services to only those who meet the minimum
competence and training standards established by law. Thus, Petitioner’s certification
was the equivalent of a “license” because it had the same legal function as a license to
provide health care. See Owen C. Gore, DAB CR1070 (2003).

The evidence offered by the I.G. therefore meets all of the criteria for exclusion pursuant
to section 1128(b)(4) of the Act. Petitioner’s license (her nurse assistant certification)
was revoked by a California State licensing authority for reasons bearing on her
professional performance.

Petitioner argues that she did not abuse the resident whose care was the basis for the
revocation of her certification. She argues, apparently, that if the resident was abused, the
abuse was perpetrated by some other individual. She asserts affirmatively that the care
she provided to the resident was non-abusive and consistent with her duties. I find this
argument to be, essentially, irrelevant. The authority to exclude under section 1128(b)(4)
derives from the State ’s determination and not from the underlying facts. I have no
choice but to sustain the determination to exclude in a case such as this, where a State

has made findings sustaining a license revocation relating to the excluded person’s
professional competence or performance.
4

Petitioner also asks that I restore her nurse assistant certification. P. Ex. 1. I have no
authority to do so. The appropriate forum to challenge the basis for Petitioner’s license
revocation would be before the State agency that revoked her license in whatever
appellate process that ensues from that.

2. The I.G. is authorized to exclude Petitioner for a period that is
coterminous with the revocation of her certification as a nursing assistant
in California.

The exclusion in this case is coterminous with Petitioner’s certification revocation. In
other words, she remains excluded at least until she regains her certification. That is
consistent with the regulatory requirement that an exclusion under section 1128(b)(4) be
at least coterminous with the loss of a license and, therefore, it is reasonable as a matter of
law. Act, § 1128(c)(3)(E); 42 C.F.R. § 1001.501(b)(1).

Ill. Conclusion

For the foregoing reasons, I sustain the I.G.’s determination to exclude Petitioner.

/s/
Steven T. Kessel
Administrative Law Judge