Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD

Civil Remedies Division

In the Case of: )
)
Gooding Rehabilitation & Living )

Center, (CCN: 13-5083), ) Date: August 26, 2008
)
Petitioner, )
)

-V.- ) Docket No. C-07-78
) Decision No. CR1834
Centers for Medicare & Medicaid )
Services. )
a )
DECISION

Petitioner, Gooding Rehabilitation & Living Center (Petitioner or Gooding), challenges a
determination by the Centers for Medicare & Medicaid Services (CMS) that it was not in
substantial compliance with requirements for participation in the Medicare and Medicaid
programs from September 14, 2006 through November 6, 2006, and challenges the
remedies imposed on it by CMS as a result: a Civil Money Penalty (CMP) totaling
$164,700; a Denial of Payment for New Admissions (DPNA) from October 19, 2006
through November 6, 2006; and the suspension of Petitioner’s Nurse Aide Training and
Competency Evaluation Program (NATCEP) for two years, effective September 14,
2006. For the reasons set out below, I sustain CMS’s determination and affirm all three
remedies.

I. Procedural Background

Petitioner is a long-term care facility located in Gooding, Idaho. It participates in the
Medicare and Medicaid programs. The Idaho Department of Health and Welfare
(IDHW) completed a complaint investigation survey of Petitioner’s facility on September
14, 2006. The survey findings were based on an incident at Petitioner’s facility that
began several weeks before the survey, and ended when one of the facility’s residents was
admitted to the local hospital through its emergency room. That survey found Petitioner
not to be in substantial compliance with three of the requirements for participation in
those programs, specifically, the requirements set out at 42 C.F.R. §§ 483.13(c) (Tag
2

F224, at a scope and severity level G'), 483.25(c) (Tag F314, at a scope and severity level
J), and 483.25(d) (Tag F315, at a scope and severity level G).? CMS Ex. 1.

As a result of the survey’s findings, and the findings of a revisit survey conducted by
IDHW on December 14, 2006, CMS notified Petitioner that it would impose a CMP of
$3050 per day, beginning September 14, 2006 and continuing through November 6, 2006,
based on a period of substantial noncompliance creating a condition of immediate
jeopardy at a scope and severity level of “J.” CMS also imposed the additional sanctions
noted, the suspension of Petitioner’s NATCEP and the DPNA from October 19, 2006
through November 6, 2006. CMS notified Petitioner of its determinations on October 4,
2006 and December 28, 2006. CMS Exhibits (Exs.) 14, 17.

Petitioner perfected its appeal of CMS’s actions timely, in its November 27, 2006
Request for Hearing, docketed as C-07-78, and its February 22, 2007 Request for

' A “Tag” designation refers to the part of the State Operations Manual (SOM),
Appendix PP, “Survey Protocol for Long-Term Care Facilities,” “Guidance to
Surveyors,” that pertains to the specific regulatory provisions allegedly violated. The
cited deficiencies are set forth in the statement of deficiencies (SOD), also called a Form
2567, prepared by surveyors, such as the SOD in this case found at CMS Ex. 1. Each
deficiency includes a scope and severity level. A scope and severity level is designated
by an alpha character, A through L, selected by CMS or a state agency such as IDHW,
from the scope and severity matrix published in the SOM at section 7400E. A scope and
severity level of A, B, or C indicates a deficiency that presents no actual harm, but has the
potential for minimal harm. Facilities with deficiencies of a level no greater than C
remain in substantial compliance. 42 C.F.R. § 488.301. A scope and severity level of D,
E, or F indicates a deficiency that presents no actual harm, but has the potential for more
than minimal harm that does not amount to immediate jeopardy. A scope and severity
level of G, H, or I indicates a deficiency that involves actual harm that does not amount to
immediate jeopardy. Scope and severity levels J, K, and L are deficiencies that constitute
immediate jeopardy to resident health or safety. Letters A, D, G, and J indicate an
isolated occurrence; letters B, E, H, and K indicate a pattern of occurrences; and letters C,
F, I, and L indicate widespread occurrences. The matrix, which is based on 42 C.F.R.

§ 488.408, specifies which remedies are required and optional at each level based on the
frequency of the deficiency. See SOM, section 7400E.

> In this decision I address only the deficiency asserted at 42 C.F.R.
§ 483.25(c) (Tag F314) because the remedies imposed are amply justified by the presence
of this immediate jeopardy level deficiency. I have the discretion, as an exercise in
judicial economy, not to address findings that are not material to the outcome of a case.
Making findings concerning the two other deficiencies, which were cited at a level G and
involve the same resident, are not material to the outcome of this case. Grace Healthcare
of Benton, DAB No. 2189, at 5 (2008), citing Western Care Management Corp. D/B/A
Rehab Specialties, DAB No. 1921, at 19 (2004).
3

Hearing, docketed as C-07-286. By Order of March 21, 2007, I consolidated the two
cases under C-07-78 and established procedures by which the consolidated case could
proceed to a hearing on the merits.

That hearing on the merits was conducted in Boise, Idaho, from January 14 through
January 17, 2008. At the beginning of the hearing, CMS proffered CMS Exs. 1-31; all
were admitted in the absence of objection. Similarly, Petitioner proffered Petitioner’s
Exhibits (P. Exs.) 1-27 at the beginning of the hearing and, in the absence of objection, all
were admitted. Ata later stage in the hearing, Petitioner proffered P. Exs. 28 and 29, to
which CMS objected. For reasons that appear in the transcript of those proceedings,
neither P. Ex. 28 nor P. Ex. 29 were admitted, but Petitioner is preserving its objection
only to the exclusion of P. Ex. 28. Transcript (Tr.) at 15-16, 428, 608-10, 624, 785-87.

Following the preparation and settling of the hearing transcript, a post-hearing briefing
schedule was established by Order of April 7, 2008. Both parties submitted briefs (CMS
and P. Br.) and replies (CMS and P. Reply). The cycle of briefing has now closed, and
this case stood submitted for decision as of June 16, 2008.

II. Issues
The issues before me in this appeal are:

1. Whether Petitioner was in substantial compliance with requirements for
participation in the Medicare and Medicaid programs, in this case, the
specific requirements set out at 42 C.F.R. § 483.25(c);

2. Whether CMS’s determination that Petitioner’s noncompliance
constituted immediate jeopardy is clearly erroneous; and

3. Whether the CMP, DPNA, and suspension of NATCEP imposed on
Petitioner by CMS as a result of its alleged noncompliance are reasonable.

Ii. Controlling Statutes and Regulations

Petitioner is a long-term care facility. Its participation in Medicare and Medicaid is
governed by sections 1819 and 1919 of the Social Security Act (Act), 42 U.S.C. § 301 et
seq., and the regulations at 42 C.F.R. Part 483. Sections 1819 and 1919 of the Act invest
the Secretary with authority to impose remedies, including CMPs, DPNAs, and
suspension of NATCEPs, against long-term care facilities for failure to comply
substantially with participation requirements.
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The regulations define the term “substantial compliance” to mean:

[A] level of compliance with the requirements of participation
such that any identified deficiencies pose no greater risk to
resident health or safety than the potential for causing
minimal harm.

42 C.F.R. § 488.301.

The Secretary has delegated to CMS and the states the authority to impose remedies
against long-term care facilities not complying substantially with federal participation
requirements. The applicable regulations at 42 C.F.R. Part 488 provide that facilities
participating in Medicare and Medicaid may be surveyed on behalf of CMS by state
survey agencies in order to ascertain whether the facilities are complying with
participation requirements. 42 C.F.R. §§ 488.10-488.28. The regulations contain special
survey conditions for long-term care facilities. 42 C.F.R. §§ 488.300-488.335.

Under Part 488, a state or CMS may impose a CMP against a long-term care facility ifa
state survey agency ascertains that the facility is not complying substantially with
participation requirements. 42 C.F.R. §§ 488.406, 488.408, and 488.430. The CMP may
begin to accrue as early as the date that the facility was first substantially out of
compliance, and may continue to accrue until the date the facility achieves substantial
compliance, or until CMS terminates the facility’s provider agreement. 42 C.F.R.

§ 488.440. The regulations specify that if a CMP is imposed against a facility on a per
day basis, it must fall into one of two broad ranges of penalties. 42 C.F.R. §§ 488.408,
488.438. The upper range of CMP, of from $3050 per day to $10,000 per day, is reserved
for deficiencies that constitute 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). The
lower range of CMP, from $50 per day to $3000 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).

“Immediate jeopardy” is defined as:

[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.
5

CMS may also impose a DPNA for each day that a facility is not complying substantially
with participation requirements. Act, § 1819(h)(2)(B)(i) and 1919(h)(2)(A)(i); 42 C.F.R.
§ 488.417(a). In situations where a substandard quality of care is cited, a DPNA is
imposed, or where a CMP of more than $5000 is imposed, a facility’s NATCEP is subject
to suspension for a mandatory period of two years. Act, §§ 1819(f)(2)(B) and
1919(£)(2)(B); 42 C.F.R. §§ 483.151(b)(2)(iv), 483.151(b)(3)(ii) and (iii).

The requirement of participation directly at issue in this litigation is set out at 42 C.F.R.
§ 483.25(c) and is part of a broad regulatory scheme intended to assure that facilities
provide, and that their residents receive, the care and services necessary to attain and
maintain each resident’s highest practicable level of physical, mental, and psychosocial
well-being. The specific terms of the regulatory requirement are set forth below.

A facility may challenge the scope and severity of noncompliance cited by CMS only ifa
successful challenge would affect the range of CMP amounts imposed by CMS or would
affect the facility’s nurse aide training program. 42 C.F.R. §§ 498.3(b)(14) and (d)(10)(i).
CMS’s determination as to the scope and severity of noncompliance “must be upheld
unless it is clearly erroneous.” 42 C.F.R. § 498.60(c)(2). This includes CMS’s finding of
immediate jeopardy. Woodstock Care Center, DAB No. 1726, at 9 (2000), aff'd,
Woodstock Care Center v. U.S. Dept. of Health and Human Services, 363 F.3d 583 (6th
Cir. 2003). Since the scope and severity of Petitioner’s alleged noncompliance with Tag
F314 between September 14, 2006 and November 6, 2006 is cited and sanctioned at “J,”
a level of immediate jeopardy, the scope and severity of that alleged noncompliance is
properly before me.

IV. Burden of Proof

Board precedent has established that a facility must prove by the preponderance of the
evidence that it is in substantial compliance. Woodland Village Nursing Center, DAB
No. 2172 (2008); Batavia Nursing and Convalescent Center, DAB No. 1904 (2004), aff'd
Batavia Nursing and Convalescent Ctr. v. Thompson, 129 Fed. Appx. 181 (6th Cir.
2005); Hillman Rehabilitation Center, DAB No. 1611 (1997), aff'd, Hillman
Rehabilitation Center v. HHS, No. 98-3789 (GEB), slip op. at 25 (D.N.J. May 13, 1999).
In order to put the facility to its proof, CMS must initially present a prima facie case of
noncompliance with Medicare participation requirements. Once CMS has presented such
prima facie evidence as to any material disputed facts, the burden of proof shifts to a
petitioner to show at the hearing that it is more likely than not that the facility was in
substantial compliance. Woodland Village Nursing Center, DAB No. 2172, at 5. Here,
the evidence is not in equipoise. Petitioner has failed to show that it is more likely than
not that its facility was in substantial compliance.
V. Findings and Conclusions

I make findings of fact and conclusions of law to support my decision in this case. I set
forth each finding below, in italics, as a separate heading. I discuss each finding in detail.

A. Petitioner was out of substantial compliance with the participation requirement
at 42 C.F.R. § 483.25(c), Tag F314, and its noncompliance with the requirement
constituted immediate jeopardy.

This section of the regulations is a subsection of the quality of care regulation cited at 42
C.F.R. § 483.25, which section requires:

Each resident must receive and the facility must provide the necessary care and
services to attain or maintain the highest practicable physical, mental, and
psychosocial well-being, in accordance with the comprehensive assessment and
plan of care.

The subsection at 42 C.F.R. § 483.25(c) requires:

Pressure sores. Based on the comprehensive assessment of a resident, the facility
must ensure that —

(1) A resident who enters the facility without pressure sores does not develop
pressure sores unless the individual’s clinical condition demonstrates that they
were unavoidable; and

(2) A resident having pressure sores receives necessary treatment and services
to promote healing, prevent infection and prevent new sores from developing.

In the recent case of Woodland Village Nursing Center, DAB No. 2172, an appellate
panel of the Departmental Appeals Board (Board) explained:

[A]s the ALJ recognized . . . the regulatory requirement is that each resident “must
receive ‘necessary treatment and services’ for healing, prevention of infection, and
prevention of yet more pressure sores.” Clermont Nursing and Convalescent
Center, DAB No. 1923, at 9 (2004) (emphasis added in DAB No. 1923). Further,
the Board has explained that regulatory language on pressure sore treatment and
prevention applies a particularly demanding standard, i.e., that the facility must
“ensure” healing and prevention as the outcomes of that treatment and those
services unless the facility can prove with clinical evidence that a negative
outcome was unavoidable despite the facility having furnished all necessary care.
Koester Pavilion, DAB No. 1750, at 30. Further, the Board has repeatedly held
that the regulation imposes a duty on facilities to “go beyond merely what seems
reasonable to, instead, always furnish what is necessary to prevent new sores,
unless clinically unavoidable, and to treat existing ones as needed.” Id. at 32; see
also Josephine Sunset Home, DAB No. 1908, at 7 (2004); Meadow Wood Nursing

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Home, DAB No. 1841, at 21 (2002), aff'd, Meadow Wood Nursing Home v. Dep’t
of Health & Human Services, No. 02-4115 (6th Cir. March 2, 2004)....
[E]vidence showing that a resident developed a pressure sore or that a resident’s
pre-existing pressure sore worsened or grew infected while under a facility’s care
is enough to show a deficiency in the absence of clinical evidence from the facility
proving such negative outcomes to have been clinically unavoidable . . . In order to
avoid a deficiency finding .. . the facility would have to show that the failure to
achieve healing was clinically unavoidable, despite implementing measures to
address the persistent sore, even if the sore had not actually grown even worse or
become infected .. . [and] where the facility is proven to have been providing
improper care or not providing care as ordered by the physician or planned for by
the facility itself as necessary to protect against or treat pressure sores, CMS need
not wait to see if an infection or aggravation of a sore ensues before citing a
deficiency.

Woodland Village Nursing Center, DAB No. 2172, at 13-14.

The SOD* alleges that Petitioner failed to assess, develop and implement appropriate
interventions in a timely manner related to pressure ulcers, which resulted in serious harm
to Resident | (as well as placing all other residents in the facility at risk for pressure
sores).’ Specifically, it asserts the facility failed to prevent, identify, assess, and
appropriately intervene to prevent further deterioration of two Stage II pressure ulcers for
Resident 1, which led to his hospitalization and the surgical debridement of his Stage IV
gangrenous sacral decubitus. CMS Ex. 1.

Resident 1, an 81-year-old man, was originally admitted to Petitioner’s facility on
October 29, 2002. His medical history included such diagnoses as coronary artery
disease, organic brain syndrome with dementia, emphysema, aortic abdominal aneurysm,
atrial fibrillation, benign prostatic hypertrophy, peripheral vascular disease, and peptic
ulcer disease. CMS Ex. 15, at 40; CMS Ex. 29, at 4-5.

The following facts regarding this case were stipulated by the parties (CMS Exs. 30, 31;
P. Br. at 25). I here set them forth verbatim as found in CMS Ex. 30 and adopt them
without editorial alteration:

> Petitioner asserts that because of deficiency findings at surveys in 2004 and 2005
it was placed on an “underperforming list,” and insinuates that this somehow affected the
survey results in this case by causing the surveyors to overstate results and to overlook
Resident 1’s severe medical condition at the time of the survey in question. See P. Br. 2-
3. This argument is simply irrelevant to my finding that a deficiency exists in this case.

* In this decision I refer to the open areas of Petitioner’s skin variously as “sores,”
“wounds,” “ulcers,” or “decubitus(ii).” They are so variously described in the record.
8

1. Gooding Rehabilitation and Living Center (Gooding Rehabilitation) is located
at 1220 Montana Street in Gooding, Idaho. It is less than a tenth of a mile from
Gooding County Memorial Hospital (GCMH) which is located at 1120 Montana
Street.

2. Gooding Rehabilitation and GCMH are separate facilities, that are owned by
separate corporations.

3. St. Lukes Magic Valley Regional Medical Center (St. Lukes) is located in Twin
Falls, Id, approximately 35 miles from Gooding Rehabilitation.

4. The person identified as Resident 1 on the CMS form 2567 dated September
4, 2006, underwent an above-knee amputation to his right leg on July 29, 2007.
Dr. James Retmier performed this surgery at St. Lukes. On July 29, 2007, Dr.
Retmier documented Resident 1’s amputation by dictating the Operative Report
identified as CMS Ex. 15, pp 101-102.°

5. After discharge from St. Lukes on August 1, 2006, Resident 1 was readmitted
to Gooding Rehabilitation. At this time, Gooding Rehabilitation staff prepared an
nitial Data Collection Tool/Nursing Service concerning Resident 1. Among other
things, this documentation describes Resident | as having a right above knee
amputation, occasional incontinence (dribbles), a stage I pressure sore on the left
uttocks and a pain level of 7-8 (on a 1-to-10 scale with 10 the worst pain). CMS
Ex. 16, at 26-28.

6. Between August 1, 2006 and August 28, 2006 Gooding Rehabilitation
documented Resident 1’s skin condition on Skin Impairment forms identified as
CMS Ex. 15, pp 105-115.

7. On August 14, 2006, Gooding Rehabilitation evaluated Resident 1 and
completed a Minimum Data Set (MDS) Basic Tracking form CMS Ex. 15, pp 1-
25.

8. Gooding Rehabilitation documentation of an Interdisciplinary Team Care Plan
Meeting on August 24, 2006, describes Resident 1’s amputation as “healing well .
. .no s/s [signs or symptoms] of infection . . . no new acute problems . . . [but] has
decline in ADL [activities of daily living] functions and mobility and continence.”
CMS Ex. 15, p. 178.

* Although the parties have stipulated that the surgery occurred on July 29, 2007,
the record reflects that the surgery occurred on July 29, 2006.
9

9. On August 29, 2006, Resident 1 was readmitted to St Lukes where Dr. Retmier
performed a revision of the right above-knee amputation stump. CMS Ex. 15, pp

103-104. Dr. Retmier described this procedure in the Operation Report identified

as CMS Ex. 15, p 103. This report describes the surgery as follows:

He had a large central eschar, which I started out by excising, I basically did
a radical debridement, created an entire new wound distally and removed all
of the previous wound. He had deep wound breakdown, deep sepsis, and
mulitple areas of deep necrotic tissue . .. He had another wound in his
medial groin, which was very superficial, I debrided that as well. CMS Ex.
15, p 103-104.

10. Dr. Retmier dictated a discharge summary for Resident 1 on September 1,

2006, and directed that the wound care team will follow wound vac on a “q. 3 day
[three times per day] basis. CMS Ex. 15, p. 46. Under the section entitle
Evaluation and Treatment, the September 1, 2006, physician order also directs
“wound care team and [wound] vac per protocol.” Jd. at p 89.

11. Resident 1 was readmitted to Gooding Rehabilitation at 1630 on September 1,
2006; he arrived via facility van. CMS Ex. 9, p 4. Gooding staff prepared a care
plan dated September 1, 2006, which described Resident | as incontinent and
directed that he be checked at least ““q2h” [every two hours]. The Gooding Care
Plan for Resident | is identified as CMS Ex. 15, 179-190.

12. Between September 1, 2006, and September 11, 2006, Gooding Rehabilitation
nursing staff composed the nursing notes identified at CMS Ex. 15, pp 69-72.

13. On September 6, 2006, at 1515 hours (3:15 PM) Gooding Rehabilitation staff
prepared a nursing note that describes Resident | as having an open area to coccyx
which appears necrotic and is larger than prior to hospitalization. CMS Ex. 15, p
71. This note also describes Resident | as having a “healing, scabbed areas to (R)
groin from previous procedure.” CMS Ex. 15, p71.

14. Gooding documented Resident 1’s wound care on Wound Care Sheets dated
September 6, 2006. CMS Ex. 15 pp, 73, 122-123.

14.° At 1500 hours (3:00 PM) on September 8, 2006, Gooding Rehabilitation
nursing notes describe Resident 1’s as “emitting yellow drainage” through his
Foley Catheter. CMS Ex. 15, p. 70.

® The stipulation includes two paragraphs numbered 14.
10

5. On September 9, 2006, at 1545 hours (3:45 PM) Gooding Rehabilitation
nursing notes describe resident 1 as emitting “dk [dark] yellow drainage” through
is Foley Catheter. CMS Ex. 15, p 70. Staff document that Resident 1 yells out
whenever he is touched.

6. On September 10, 2006, at 0215 hours (2:15 AM) Gooding Rehabilitation
nursing notes describe Resident | as emitting “dk [dark] yellow drainage” through
is Foley Catheter. CMS Ex. 15, p 70.

7. At 0200 hours (2:00 PM) on September 11, 2006, Gooding Rehabilitation
nursing notes describe Resident 1’s Foley Catheter as emitting “dark amber
drainage.” CMS Ex. 15, p. 69; CMS Ex. 9, p 1. This same note documents that
Resident 1 was quieter but continues to yell out every once in a while. Jd.

8. At 2150 hours (9:50 pm) on September 11, 2006, Gooding documented a
physician telephone order to transfer Resident | to the hospital. CMS Ex. 15, p
38. Resident | arrived in the emergency room at GCMH at 2208 hours (10:08
PM).

9. On September 14, 2006, Idaho State Surveyors visited Gooding Rehabilitation
to conduct a complaint investigation on behalf of CMS.

20. On October 4, 2006, CMS notified Gooding Rehabilitation that it concurred
with state survey agency findings of substandard quality of care and that it
intended to impose a $3,050 per day civil monetary penalty and a denial of
payment remedy. CMS Ex. 14.

CMS Ex. 30.

Upon Resident 1’s return to Petitioner’s facility from St. Luke’s on September 1, 2006,
his physician’s admissions orders were for “careful skin care.” CMS Ex. 15, at 136. His
September 1, 2006 care plan noted that Resident | was at high risk for skin problems
because of his activity and mobility levels, his diagnoses and health condition, and the
above-knee amputation with the wound vac. Approaches to address Resident 1’s skin
problems included providing him with a special type of air mattress described as “air
loss,” turning him every two hours, providing him dietary supplements and encouraging
him to eat and drink, moisturizing his skin, providing barrier ointment with his
incontinent care, weekly “body audits” by a licensed nurse, a daily bath and shower,
briefs to wick urine away from his skin, and requiring certified nursing assistants (CNAs)
to report all skin issues to the nurses (including red skin, not resolving, excoriations,
rashes, scabs and open or discolored areas, pain management, and care planning for
current ulcers or skin conditions). CMS Ex. 15, at 181-82.
11

Specific to the issues here, on September 1, 2006, the facility care-planned for two open
areas, as nurse’s notes indicate that Resident 1 was admitted on that date with open areas
to his coccyx and right inner thigh. CMS Ex. 10, at 3. One wound, on his coccyx,
received a high risk score on an admission care plan. The facility listed as interventions
for the coccyx wound a daily skin check, a two-hour turning schedule, not to position the
resident on his back, the use of an “air loss mattress,” and catheter care every shift and as
needed.’ CMS Ex. 15, at 183.

A September 1, 2006 facility record entitled “Skin at Risk Actual” noted the coccyx
“pressure ulcer” as a Stage II, and noted as approaches to Resident 1’s care that the
physician gave orders for care and treatment, including to turn the Resident every two
hours, to assess and treat pain prior to each treatment and every shift, to evaluate the
dressing status and surrounding area daily, and to do a weekly assessment with
measurements. CMS Ex. 15, at 186. There were also “Skin at Risk Actual” sheets for the
surgical site. CMS Ex. 15, at 187-89.

A skin impairment sheet dated September 1, 2006, notes the coccyx wound as 5.5 by 3.5
cm., depth of .1 cm. no drainage or odor, pink in color, no tunneling, and does not
describe signs or symptoms of an infection. CMS Ex. 15, at 65, 120. On September 4, a
necrotic area was found measuring 4 x 2 cm. out of a5 x 2 cm. area. CMS Ex. 15, at 120.
The right inner thigh wound was indicated as 6 cm. by 3 cm., with a depth of .8 cm.,
bloody drainage, and pink in color. As noted in stipulation 13, a nurse’s note dated
September 6, 2006, states that Resident | had “an open area to coccyx, which appears
necrotic and is larger than prior to hospitalization. Has healing scabbed area to [right]
groin from previous ... procedure. Will follow and review in one week.” CMS Ex. 9, at
3. On September 10, 2006, it was measured as the same width, .15 cm. in depth, drainage
was still bloody, and no improvement was noted. CMS Ex. 15, at 67.

Physician’s telephone orders note that when Resident | returned to the facility, he had
skin ulcers — one on the area of his coccyx and one on his right inner thigh. Duoderm
was to be applied to coccyx and inner thigh sores every three days. CMS Ex. 15, at 139.
On September 6, 2006, physician’s telephone orders specify a “low air loss mattress
replacement system.” CMS Ex. 15, at 137. On September 6 and 7, 2006, physician’s
telephone orders reflect changes to vitamins and diet. CMS Ex. 15, at 137-38. On

’ The facility was also to measure the coccyx wound every week, but there
appears to be a conflict in the treatment sheets about whether the sheets were completely
or timely filled out. A treatment sheet faxed from Petitioner’s nursing station on
November 12, 2006, shows that the coccyx wound was measured only once, on
September 1, 2006. CMS Ex. 15, at 73. Another copy of the same sheet shows the
coccyx wound was measured on September 4, but that sheet must have been filled out
after Resident 1’s transfer. CMS Ex. 15, at 122. However, a skin impairment sheet does
show measurement of the coccyx on September 4. CMS Ex. 15, at 120.
12

September 11, 2006, physician’s telephone orders at 2150 (9:50 p.m.) reflect Resident 1’s
transport to Gooding County Memorial Hospital.

On September 11, 2006, at 2208 (10:08 p.m.), Resident 1 was sent to Gooding County
Memorial Hospital because the nurses noted he had tachycardia and hypotension. CMS
Ex. 29, at 4; CMS Ex. 15, at 97.

At Gooding County Memorial Hospital, Resident | was assessed by David White, PA-C.
Mr. White prepared a “Stat Report” on September 12 with regard to Resident 1’s skin
conditions. He wrote:

He does have a very large decubitus ulcer, and deep, on his right inner thigh,
approximately 3” long, 1 2” wide and %” deep. He also has a second decubitus
ulcer over his sacrum, very large. It appears to be necrotic. The first previously
mentioned decubitus ulcer is probably a stage 2 to 3. The sacral decubitus ulcer,
which is large, being somewhere around 6” in diameter, appears necrotic and is
stage 3 to 4.

Mr. White prepared an addendum with regard to the ulcers, which states:

It is important to note that his current state of two very serious decubitus ulcers
appears to be due to extreme neglect and his Power of Attorney will be contacted.
Today being the 11" it appears that his most recent examination was performed
almost a week ago and based on weekly documentation and previous to that of
three days before, in any case, the state of these wounds is very severe and appears
to have been allowed to proceed with very little monitoring.

CMS Ex. 15, at 40-42; see CMS Ex. 15, at 38; CMS Ex. 21 (pictures taken at Gooding
County Memorial Hospital of the wounds on Resident 1’s thigh and coccyx); CMS Ex.
15, at 52, 90-91.

On September 12, 2006, Resident 1 was admitted to St. Luke’s Magic Valley Regional
Medical Center for his large infected sacral decubitus ulcer, his right thigh decubitus
ulcer, and his infected non-healing right above-knee amputation. CMS Ex. 15, at 97.
Stephen Schmid, M.D, Petitioner’s physician at St. Luke’s, noted that Resident 1’s
“[s]acrum shows a large, very foul smelling, obvious stage 4 sacral decubitus ulcer
measuring 10 x 15 centimeters with overlying skin gangrene. I did sharply open up the
dead skin and there was underlying necrotic tissue, but no purulence was drained. On his
right medial thigh is a 4 x 7 centimeter deep non-healing ulcerated wound.” Dr. Schmid
started Resident 1 on antibiotics and stated he needed “aggressive wound debridement of
his sacral and thigh decubitus ulcers.” CMS Ex. 15, at 99-100. However, Resident 1
developed severe hypotension in the operating room and died on September 14, 2006.
Dr. Schmid opined that the cause of death was intraoperative myocardial infarction.
CMS Ex. 29, at 4-5. Resident 1’s death certificate states that the cause of death was
13

perioperative myocardial infarction due to surgery for sacral decubitus ulcer. P. Ex. 6,
at 1.

CMS argues that it has met its duty and shown a prima facie case that Petitioner failed to
provide necessary treatment and services to promote healing, prevent infection, and
prevent new pressure sores from developing and that Petitioner’s failures created a
situation in which the noncompliance caused serious injury, harm, impairment, or death.
Thus, CMS argues that the burden shifts to Petitioner to rebut CMS’s prima facie case
and to demonstrate that it was in substantial compliance with the regulations.

Specifically, CMS asserts that between September | and September 11, 2006, the skin
over Resident 1’s coccyx deteriorated to a very large and deep wound with extensive
central necrosis. Compare CMS Ex. 15, at 116, 120, with CMS Ex. 15, at 41, 98, 99;
CMS Ex. 21, at 4; Tr. at 187; CMS Br. at 4-9. Petitioner knew that Resident 1’s coccyx
area had a significant risk of skin breakdown. But, CMS asserts, Petitioner’s treatment
sheets do not confirm that its staff followed the planned schedule for Resident 1’s
treatment, which included repositioning the resident every two hours, assessing for pain
prior to each treatment, evaluating dressing changes daily, and assessing and measuring
the sore weekly. CMS Br. at 4, citing CMS Ex. 15, at 136, 180, 181, 186; Tr. at 209.
Specifically, CMS asserts that treatment sheets do not establish that weekly
measurements of the wound were made. CMS Ex. 15, at 73. CMS also asserts that
although Resident 1 was care-planned to receive a special mattress to relieve pressure on
his back, Surveyor Kaiser testified that the surveyors could not verify that the mattress
was provided. CMS Ex. 15, at 181; Tr. at 210-11.

CMS notes that on September 4, 2006, Petitioner’s skin impairment sheets showed
development of a necrotic area to Resident 1’s coccyx. CMS Ex. 15, at 120. Surveyor
Kaiser testified that she saw this note and became concerned that the “necrotic area tells
me that the wound’s deteriorated, but I don’t see that that really jelled with anybody else .
. . I don’t see any other documentation about what else occurred after that.” Tr. at 187;
see Tr. at 189-90. CMS also refers to the nurse’s note of September 6, 2006, regarding
the development of necrosis in the wound. CMS Ex. 9, at 3.

CMS asserts that Petitioner should have notified Resident 1’s physician on September 4,
2006, when the necrotic tissue appeared in the wound. CMS states that Petitioner’s
expert witness, Florian John Gies, IV, M.D., in response to a question as to what nurses
should do to take necrosis of a coccyx wound seriously, testified that on September 4,
2006, Petitioner’s staff should have:

alert[ed] the appropriate people, ma[d]e sure the regular wound checks are
accomplished and that whatever orders they receive for dressings, et cetera, are
accomplished...
14

Tr. at 640. Dr. Gies qualified his statement to say that there is a “matter of magnitude”
regarding the size of the necrosis in terms of how many people should be alerted and what
needed to be done, but agreed that “in general, necrosis is always an important thing to
watch.” Tr. at 641. CMS asserts however, that on September 4, 2006, Petitioner did not
alert the appropriate people or get orders for dressings.

CMS also asserts that after September 9, 2006, Petitioner’s documentation of the coccyx
wound is even more sparse, and refers to nurse’s notes at CMS Ex. 15, at 69-71.
Specifically, it asserts the only relevant nurse’s note on September 10, 2006, was written
at 1340 (1:40) p.m., and states only “[dressing] intact to coccyx.” The note does not
describe the wound. And, CMS asserts that September 9, 2006, was the last time
Petitioner’s DON saw the wound. CMS Ex. 6, at 4; CMS Ex. 7, at 1. Surveyor Kaiser
testified that the facility did not provide documentation of the DON’s assessment of the
wound on September 9, 2006. Tr. at214. CMS asserts Petitioner has not offered any
evidence of staff who saw the wound between September 9 and 11, 2006.*

CMS argues that it is irrelevant here whether Petitioner provided care according to its
policy and care plan. Surveyor Bouse testified that she was told by the facility’s DON
that it was not Petitioner’s policy to assess the wound every day. Tr. at 50; CMS Ex. 6, at
4; CMS Ex. 7. LPN Joyce Heath testified that it was Petitioner’s policy to document by
exception, a protocol whereby a nurse makes notes in a resident’s chart only if something
changes or appears different. Tr. at 661. CMS asserts that meeting its own care plan and
policies does not establish Petitioner’s compliance, as Petitioner’s obligation to provide
necessary care is not — and cannot be — circumscribed or limited by the plan of care if it
is inadequate. See Western Care Management Corp, DAB No. 1921, at 57 (2004).
Surveyor Bouse testified that:

I found that we couldn’t determine that [the facility did everything it could to
prevent deterioration in the wound], based on documentation and interviews. We
felt that they had not because monitoring was not present in the form of
documentation or if there was an indication that the resident had gotten worse that
a physician had been called to change the treatment. There wasn’t a care plan that

* CMS notes Petitioner’s argument that IDHW surveyors were remiss for not
talking to nurses at Petitioner’s facility who cared for Resident | in an effort to discover,
outside the documentation, what care Petitioner was actually providing between
September 9 and 11. CMS Br. at 6; see P. Br. at 21. I agree with CMS that it is
Petitioner who has the burden to demonstrate the condition of Resident 1’s wound and its
treatment at the relevant times. The failure to document care raises at least an inference
that the undocumented care was not provided, and it is Petitioner’s burden to show that it
was provided.
15

addressed everything . . . for instance .. . indicating that he would flip over on his
back keeping him from relieving pressure off that area.

Tr. at 104-05.

CMS points out that nurse’s notes during the time period September 1 through 11, 2006,
repeat the phrase “dressing intact to coccyx” at least four times, but do not include
qualitative descriptions of the wound’s condition. CMS also asserts that it was not until
Mr. White, the physician assistant at Gooding County Memorial Hospital, assessed the
condition of the coccyx that Resident 1’s wound was thoroughly and accurately
documented. CMS Br. at 7. Significantly, medical records at Gooding County Memorial
Hospital corroborate the photographs taken of the wound and highlight the severity of
Resident 1’s condition. CMS Ex. 15, at 38-41.°

CMS also asserts that Petitioner’s staff knew of the odor in the wound as early as 8:30
p.m. on September 11, 2006, but did not report that important information to Gooding
County Memorial Hospital upon Resident 1’s transfer, reporting only that Resident 1 was
hypotensive and tachycardic. Tr. at 138. Moreover, CMS argues that the 18-hour gap in
nurse’s notes on September 11, 2006 (from 2:00 a.m. through 10:30 p.m.) demonstrates
neglect during a critical time in Resident 1’s care. CMS. Br. at 9. Specifically, the final
facility nursing note before Resident 1’s transfer was written at 2:00 a.m. on the morning
of September 11. CMS Ex. 9, at 1. It notes that Resident 1 would “not stay positioned
off (his) back,” but does not mention the condition of the skin over his coccyx or the
smell of the wound. CMS Ex. 9, at 1. Petitioner updated its nurse’s notes at 2250 (10:50
p.m.) on September 11, 2006, after Resident 1’s transfer to Gooding County Memorial
Hospital. It observes that at 2030 (8:30 p.m.) the coccyx wound is described as “very
foul smelling.” CMS Ex. 9, at 1. Surveyor Kaiser’s surveyor notes document an
interview with a CNA who confirmed the pronounced odor: the surveyor quoted the
CNA as insisting that a window be opened “because it was making me sick.” CMS Ex. 6,
at 9. And, when Resident | arrived at Gooding County Memorial Hospital, Mr. White
testified that it was the coccyx wound’s smell that caught the emergency room staff’s
attention in a dramatic fashion. Tr. at 118. Within minutes of Resident 1’s arrival at
Gooding County Memorial Hospital, Mr. White was called to take a look at the wound,
and, during the hearing, he described the wound as “purulent,” “rotting,” and “very foul.”
Tr. at 118, 121.

° CMS points out that the photograph of the coccyx wound and the three
photographs of the thigh wound taken in the Gooding County Memorial Hospital
emergency room were taken between 10:00 p.m. on September 11, 2006 and 1:00 a.m. on
September 12, 2006. P. Br. at 8, citing CMS Ex. 21; Tr. at 128; CMS Ex. 15, at 38, 43.
16

CMS also asserts that Petitioner failed to use a coordinated approach to track the
progression of the wound on Resident 1’s right thigh. On September 1, 2006, the wound
was described as 6 cm. by 3 cm., bloody, with no signs or symptoms of infection. CMS
Ex. 15, at 119. On September 11, 2006, the size of the wound had not changed, but
emergency room staff noted the presence of “mild exudate” and a “strong sweet odor.”
CMS Ex. 15, at 39. Pictures of the wound show two darkened areas which indicate
possible development of necrosis. CMS Ex. 21, at 1, 2; Tr. at 228. Staff initials on
treatment sheets confirm only that Petitioner applied duoderm to the thigh wound every
three to five days and measured it weekly. CMS Ex. 15, at 122. No evidence of daily
checks have been found in nurse’s notes. CMS Ex. 9. Nurse’s notes document only one
dressing change, on September 1. CMS Ex. 9, at 4.

In its reply, CMS presses the following specific lapses as evidence that Petitioner’s
wounds were avoidable: Petitioner did not notify Resident 1’s physician on September 4,
2006, when necrotic tissue developed on the coccyx wound; Petitioner did not report the
development of necrotic tissue on Resident 1’s thigh; and, Petitioner did not alert the
emergency room about Resident 1’s coccyx wound during the transfer. CMS Reply at 2-
3. CMS refers to the testimony of its expert witness, Dan Robert Berlowitz, M.D., that if
Petitioner had been checking Resident 1 every day for signs and symptoms of infection he
would have “expected you would have seen it earlier than 11:00 at night.” Tr. at 335.
CMS asserts that instead of having current knowledge of Resident 1’s condition on
September 11, 2006, many staff were surprised by its condition (Tr. at 468, 594-95) and
the DON had not even seen the wound since September 9.

n its brief and reply, Petitioner asserts that Resident | had severe vascular problems, and
that each time he went to the hospital, he returned to Petitioner’s care facility with
worsening wound symptoms. Petitioner asserts Resident 1 did not have any wounds or
dead tissue prior to the amputation of his right leg. Resident 1 came back to Petitioner’s
facility after the August amputation surgery with some type of ulcer in the region of his
uttocks. Petitioner argues that all sores on Resident | at the time of the survey were
stasis ulcers and unavoidable and occurred as a result of Resident 1’s diagnosed
peripheral vascular disease and the “melt down” that Resident 1 was experiencing during
the first two weeks in September 2006. And, although there was a decubitus ulcer on
Resident 1’s sacrum or coccyx area (a weight-bearing area of Resident 1’s body, since he
was bed-ridden), Resident | also had ulcers that were not over weight-bearing body
areas."

'° At hearing, Petitioner offered a theory to explain Resident 1’s coccyx wound. It

asserted that it was a theoretical phenomenon known as a “Kennedy Terminal Ulcer” or
“death wound.” Tr. at 315-18. The theoretical phenomenon is named for its early
proponent, K. L. Kennedy-Evans, R.N., C.S., F.N.P., and posits that as a chronically-ill
terminal patient approaches the point of death, many long-compromised body-systems
and organs — including the skin — simply shut down and the patient’s recuperative
(continued...)

17

Petitioner asserts that it recognizes that in this case the question is not really whether
Resident 1’s wounds were avoidable (although asserting they were unavoidable due to his
poor circulation as a result of peripheral vascular disease) but whether or not the facility
did what it could to heal and reduce the spread or size of the ulcers. Petitioner believes it
did everything in its power to help and care for Resident | during his stay at Petitioner’s
facility. P. Br. 20.

As evidence of its compliance, Petitioner argues that its nurses knew the difference
between a stasis ulcer and a pressure ulcer and that its DON saw the ulcer on Resident 1’s
back “two or three days prior to his admission to the Gooding Hospital . . . but was not
concerned about it as its condition had not changed from his admission date on September
1, 2006.” P. Br. at 20, citing Tr. at 66. Petitioner asserts that its nurses were reporting
what they saw on Resident | in facility records, changing Resident 1’s dressing every
three to five days, checking for signs and symptoms of infection, noted necrotic skin
problems as early as September 4, 2006, and were treating Resident 1’s wounds by
applying Duoderm. P. Br. at 31; P. Reply at 24. Petitioner asserts it used a coordinated
approach to deal with Resident 1’s wounds, but it does not specify exactly what that
approach was. P. Reply at 33-34.

Petitioner also asserts that Resident 1’s wounds were so severe they most likely caused a
septic infection of the blood from the coccyx wound (or one of the other wounds) and
that, as a result, Resident became tachycardic, hypotensive, and febrile. P. Br. at 32,
citing Tr. at 294, 312, 344-45. Petitioner cites Dr. Berlowitz’s testimony that “if the deep
tissue insult occurred in the hospital, it may not appear until later on when the person was
in the nursing home. So, it would have been unavoidable for the nursing home.” Tr. at
348. And, Petitioner states that in the case of peripheral vascular disease, when a

'°(_.continued)
powers diminish to the point of vanishing, thus making the patient’s development of
ulcerating lesions virtually inevitable. This theory was adopted by the facility after the
death of Resident 1. Tr. at 515-17. Dr. Gies also did not formulate his opinion that the
coccyx wound was a “Kennedy Terminal Ulcer” until after Resident 1 died. Tr. at 591,
615. Dr. Berlowitz, CMS’s expert witness, testified with regard to whether the theoretical
“Kennedy Terminal Ulcer” exists in reality, that he did not believe that there was
“anything special about the terminal stages independent of other factors such as low
blood pressure and things like that or patients not being turned. So I don’t think that the
fact that you’re necessarily at end stages from cancer means that you develop a pressure
ulcer.” Tr. at 316. Dr. Berlowitz preferred using the terms “avoidable” and
“unavoidable.” Tr. at 316-17. In this case it is irrelevant what the cause of the ulcers
were as it is the facility's response to the ulcers that is in question. I decide neither the
validity of the “Kennedy Terminal Ulcer” concept in general, nor its presence in this case
in particular. However, below, I note that the preponderance of the evidence is that the
coccyx wound was in fact a pressure sore, in that pressure more likely than not played a
role in its development.
18

procedure is done there is always the possibility of a poor outcome. P. Br. at 32.
Petitioner refers to the opinion of Dr. Gies that:

This patient did, obviously, have decubitus ulcers . . . how [did] his ulcers [go]
from 5 or 6 cm of ertythema with 2 cm of central necrosis to 15 or 20 cm full
thickness within just one or two days. The answer is that this wound did not
develop in just one or two days. In point of fact this patient likely experienced
deep hematogenous spread of infection from his gangrenous stump weeks earlier.
His sacral decubitus ulcer simply provided an exit wound for this extensive area of
gangrenous and devitalized tissue (i.e. skin infections that “work from the inside-
out.”) Thus, the “exploded appearance” of the patients buttocks and sacrum as well
as the copious foul smelling discharge.

P. Ex. 5, at 3. Petitioner notes that “wounds can develop and deep wounds in the case of
Resident |... within 24-48 hours. Any pressure ulcer in the right circumstances can be
healed. In the case of a terminal patient, the underlying factors need to be corrected that
are making the person terminal for the wound to heal.” Tr. at 335-36; P. Reply at 24.

Although hotly contested by the parties, for purposes of my decision it is irrelevant
whether the wounds in question are termed pressure sores or some other type of ulcer or
wound, because the preponderance of the evidence would indicate that the coccyx wound
at least was a pressure sore. Contemporaneous facility records refer to the coccyx wound
as a pressure ulcer. CMS Ex. 15, at 186, see 120. Mr. White, who actually saw the
coccyx wound, describes the wound as a pressure sore, and notes that it is common for
pressure ulcers to develop over the sacrum. Tr. at 135. Mr. White, who testified that he
as seen pressure sores through the emergency room, described Resident 1’s coccyx
wound as the “worst I’ve ever seen . . . I’ve never seen a pressure sore that had necrosis
efore. I mean blackened, dead tissue . . . I could see his sacrum as well... you could
see the bone.” Tr. at 123. He also described the coccyx wound as the “worst pressure
ulcer he had ever seen.” Tr. at 123. Facility records indicate that they had trouble
eeping Resident 1 off his back, and Resident | had been assessed as at moderate or high
risk for friction and shear. CMS Ex. 15, at 36-37. Thus, the sore may have been caused
yy a combination of Resident 1’s disease process and his multiple diagnosed conditions
as well as pressure on his back.

The evidence in this case shows that Resident 1’s wounds grew worse while at
Petitioner’s facility, culminating in his hospitalization and the final surgery to debride the
wounds. The first question I must address and resolve is: while Resident | was at the
facility between September | and 11, 2006, did Petitioner implement measures to address
Resident 1’s wounds and, given that the condition of the wounds worsened, was that
wound-deterioration clinically unavoidable? And, I must address and resolve this second
question: in implementing measures to address Resident 1’s wounds, did Petitioner “go
yond merely what seems reasonable to, instead, always furnish what is necessary to
prevent new sores . . . and to treat existing ones as needed.” Woodland Village Nursing

19

Center, DAB No. 2172, at 13-14, citing Meadow Wood Nursing Home, DAB No. 1841, at
21 (2002), aff'd, Meadow Wood Nursing Home v. Dep’t of Health & Human Services,
No. 02-4115 (6th Cir. March 2, 2004). I find Petitioner did not.

As noted by CMS during the period September | through 11, 2006, Resident 1’s coccyx
skin deteriorated into a very large and deep wound with extensive central necrosis. As
early as September 4, 2006, it was apparent that necrotic tissue was developing on the
coccyx wound. On September 6, 2006, staff noted the open necrotic area to the coccyx.
According to Surveyor Kaiser, the identification of necrotic tissue warranted a phone call
to Resident 1’s physician for further instructions and, perhaps, a change in Resident 1’s
plan of care. Tr. at 211-12. Even Dr. Gies agreed that such necrosis was important to
watch. Tr. at 640-41. Equally as important, there is little documentation after September
9, 2006, with regard to the coccyx wound, despite the development of necrosis noted in
the wound on September 4 and 6, and the only relevant nurse’s note being that the
dressing was intact to the coccyx, this despite the fact that Resident 1 had an order for
“careful skin care.” The DON checked the wound on September 9, 2006, but there is no
documentation of the DON’s assessment of that wound. Tr. at 214. And, there is no
evidence that other staff actually saw the wound between September 9 and 11, 2006 (and
notations that Resident 1’s dressing was intact to coccyx do not describe the wound’s
condition in any meaningful way). There was also a very noticeable, noisome odor from
the wound as early as 8:30 p.m. on September 11, 2006, but Petitioner’s staff did not
investigate it nor did they tell the emergency room about the smell or the sores —
instead, they transferred Resident | for other stated reasons. Petitioner’s failure to more
carefully assess the development of the wound and contact Resident 1’s physician when
necrotic tissue developed, or to give an accurate assessment of Resident 1’s condition to
the emergency room given the state of Resident 1’s skin issues, persuades me that
Petitioner failed to furnish what was necessary to treat Resident 1’s existing sores.
Petitioner certainly did not go beyond what “seems reasonable” in this case, and utterly
failed “always to furnish what was necessary” to treat Resident 1’s wounds, and is thus
deficient under this regulatory requirement.

I find also that Petitioner’s noncompliance constituted immediate jeopardy. Immediate
jeopardy is defined under the regulations as a situation where a provider’s noncompliance
with a participation requirement 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 regarding
the level of noncompliance must be upheld unless it is clearly erroneous. 42 C.F.R.

§ 498.60(c)(2). There is no requirement that there need be more than one resident
involved in a deficiency citation in order for CMS to cite immediate jeopardy. In fact,
only a single resident need be involved. Windsor House, DAB No. 1942, at 63 (2004);
Alden-Poplar Rehabilitation Creek and Health Care Center, DAB No. 1873, at 1 (2003).
CMS’s finding of immediate jeopardy here is not clearly erroneous. I have found
Petitioner noncompliant in its care of Resident 1, the resident’s wounds became worse
under Petitioner’s care, becoming necrotic and necessitating transfer to a hospital and
then to another hospital where he died during an operation to debride the wounds. I agree
20

with CMS (CMS Reply at 5) that Petitioner’s staff failed to monitor Resident 1
adequately by documenting his care and reporting changes in his wounds to his physician.
T also agree that, although there were no other residents in the facility whose wounds were
as severe as Resident 1’s (and I note Petitioner’s argument that there were no other
residents with problem ulcers at the facility (P. Br. at 25, 37)), the potential existed for
neglect of those other residents until Petitioner demonstrated substantial compliance.

B. The remedies imposed are reasonable.

CMS has imposed a per day CMP of $3050. The amount of the CMP is at the lowest
amount possible for deficiencies that constitute immediate jeopardy and is thus inherently
reasonable as a matter of law. 42 C.F.R. § 488.438(a)(1)(i). CMS also found that
Petitioner was out of substantial compliance from September 14, 2006 through November
6, 2006. Petitioner has the burden to prove the date it returned to substantial compliance.
Lake City Extended Care Center, DAB No. 1658, at 12-13 (1998). Petitioner has not
proved that it returned to substantial compliance at an earlier date.

Specifically, IDHW conducted an onsite revisit to the facility on December 14, 2006, and
determined that Petitioner came into compliance as of November 7, 2006, the date
Petitioner annotated “11/7/06” in the completion date column of the SOD as the date it
would return to substantial compliance. CMS Ex. 1, at 1,7; CMS Ex. 17. Although
Petitioner signed the plan of correction on October 12, 2006, and Petitioner estimated at
hearing that it returned to compliance on October 12, 2006 (Tr. at 567), I accept the
evidence set forth in the completion date column that Petitioner did not, in fact, intend to
come back into substantial compliance until November 7, 2006. Based on the
noncompliance found, I also uphold the DPNA, and the suspension of Petitioner’s
NATCEP for two years (as CMS cited substandard quality of care (CMS Ex. 14, at 2), the
CMP is greater than $5000, and a DPNA has been imposed).

VI. Conclusion

Petitioner was out of substantial compliance with the participation requirement at 42
C.F.R. § 483.25(c), at a level of immediate jeopardy, from September 14, 2006 through
November 6, 2006. The remedies imposed based on that noncompliance, a CMP totaling
$164,700, a DPNA from October 19, 2006 through November 6, 2006, and the loss of
NATCEP for two years, effective September 14, 2006, are reasonable.

/s/
Richard J. Smith
Administrative Law Judge