CASE | DECISION | JUDGE

Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD
Civil Remedies Division
IN THE CASE OF  


SUBJECT:

Ross Healthcare Center,

Petitioner,

DATE: April 02, 2003
                                          
             - v -

 

Centers for Medicare & Medicaid

 

Docket No.C-01-714
Decision No. CR1022
DECISION
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DECISION

I decide that Petitioner, Ross Healthcare Center, did not comply substantially with a Medicare participation requirement during a period that began on April 16, 2001, and which ran until May 22, 2001. Consequently, I find that the Centers for Medicare & Medicaid Services (CMS) was authorized to impose remedies - including denial of payments for new Medicare admissions - against Petitioner during this period.

I. Background

Petitioner is a skilled nursing facility that is located in Brentwood, New York. It participates in the Medicare program and its participation is subject to federal laws and regulations at 42 C.F.R. Parts 483 and 488. On March 16, 2001, a surveyor employed by the New York State Department of Health (State survey agency) conducted a survey of Petitioner's facility in order to determine whether Petitioner was complying substantially with federal participation requirements. The surveyor found that Petitioner was not complying substantially with five participation requirements. The surveyor conducted a followup survey on March 28, 2001, and again found that Petitioner was not complying substantially with participation requirements, albeit at a less egregious level of noncompliance than the surveyor had found to be present on March 16, 2001.

Based on the surveyor's findings, the State survey agency recommended to CMS that CMS impose remedies against Petitioner. CMS concurred with the State survey agency's recommendations, and it determined to impose remedies. Ultimately, it imposed the remedy of denial of payments for new Medicare admissions against Petitioner for a period that began on April 16, 2001, and which ran until May 22, 2001, the date when Petitioner was determined to have regained substantial compliance with participation requirements.

Petitioner was dissatisfied with CMS' determination and requested a hearing. The case was assigned to me for a hearing and a decision. On October 29, 2002, I held an in-person hearing in Brooklyn, New York. At the hearing, I received exhibits into evidence from CMS consisting of CMS Ex. 1 - CMS Ex. 70. Additionally, I received exhibits into evidence from Petitioner consisting of P. Ex. 1 - 12; 14 - 25; 31 - 34; 37 - 39; 41 - 45; 47 - 53; 56 - 65; 68 - 70; 72 - 74; and 76 - 79. The exhibits offered by each party included the written declarations of witnesses in lieu of in-person testimony. At the hearing, I permitted each party to cross-examine the other party's witnesses whose written declarations had been submitted and conduct re-direct testimony of its own witnesses who were cross-examined.

II. Issues, findings of fact and conclusions of law

A. Issue

The issue in this case is whether Petitioner failed to comply substantially with a participation requirement during the April 16 - May 22, 2001 period, thereby authorizing CMS to impose remedies against Petitioner.

The allegations of noncompliance contained in the March 16, 2001 survey report are that Petitioner failed to comply substantially with five distinct federal participation requirements. CMS Ex. 2. The State survey agency concluded that Petitioner remained noncompliant with these requirements as of the revisit survey of March 28, 2001, and thereafter until May 22, 2001. A statement of deficiencies from the March 28, 2001 survey is not in evidence and it is unclear whether one actually was written. It is possible that the State survey agency may simply have determined, without writing a report, that the previously determined deficiencies had not been abated by this date.

It is not necessary for me to find that Petitioner failed to comply substantially with all five of these requirements during the April 16 - May 22, 2001 period in order to decide that CMS was authorized to impose remedies, including denial of payments for new admissions, against Petitioner during this period. Under applicable regulations, a failure by Petitioner to comply substantially with even one participation requirement is sufficient to justify the remedy that is at issue here. 42 C.F.R. § 488.402(b); 42 C.F.R. § 488.406(a). By the same token, CMS would not be authorized to impose any remedies against Petitioner if Petitioner had, in fact, complied substantially with each of the participation requirements with which it allegedly had failed to comply.

Furthermore, it is unnecessary that I consider the level of seriousness of any of the deficiencies that are at issue in this case beyond deciding whether any alleged deficiency is "substantial." Under applicable regulations I generally do not have authority to question the level of a deficiency in a case where CMS does not determine to impose a civil money penalty against a facility. 42 C.F.R. § 498.3(b)(14). A "substantial" deficiency is one that poses the potential for causing more than minimal harm to residents. See 42 C.F.R. § 488.301. Consequently, I would find Petitioner not to be complying substantially with a participation requirement if it manifested any deficiency that posed the potential for causing more than minimal harm to residents. And, I would find that the presence of even one substantial deficiency - without regard to the presence or absence of others and without regard to its actual level of severity - would be sufficient to justify the imposition of remedies against Petitioner, including denial of payments for new admissions.

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. As I discuss below, at Finding 1, Petitioner failed to comply substantially with the participation requirement that is set forth at 42 C.F.R. § 483.13(c)(1)(i). At Finding 2, I conclude that Petitioner did not prove that it attained substantial compliance with the regulation's requirements prior to May 22, 2001. Finally, as I explain at Finding 3, Petitioner's noncompliance during the April 16 - May 22, 2001 period is sufficient to justify imposition against Petitioner of remedies including denial of payments for new admissions. For these reasons, I make no Findings in this decision concerning the other allegations of noncompliance that were made in the report of the March 16, 2001 survey.

1. Petitioner did not prove by the preponderance of the evidence that it complied with the participation requirement that is stated at 42 C.F.R. § 483.13(c)(1)(i).

The report of the March 16, 2001 survey alleges, at Tag 224, that Petitioner failed to comply with the requirements of 42 C.F.R. § 483.13(c)(1)(i). CMS Ex. 2, at 1 - 3. This regulation states that a facility must develop and implement written policies and procedures that prohibit mistreatment, neglect, and abuse of residents and misappropriation of residents' property. The term "neglect" is defined elsewhere in the regulations to mean:

failure to provide goods and services necessary to avoid physical harm, mental anguish, or mental illness.

42 C.F.R. § 488.301.

The survey report alleges that Petitioner failed to comply with the requirements of the regulation in that it failed to insure that its cardiopulmonary resuscitation (CPR) policy and procedures were implemented for residents who did not have a "do not resuscitate" (DNR) request in their records.

CMS offered evidence to show the following. Petitioner's residents included an individual who expired on March 10, 2001. This resident is identified in the report of the March 16, 2001 survey as Resident # 1. CMS Ex. 2, at 1. The resident was 77 years old. She suffered from several illnesses, including chronic obstructive pulmonary disease (COPD) with multiple bouts of respiratory failure, hypertension, anxiety, and depression. The resident had received a tracheostomy. Id.; CMS Ex. 16. The resident lived at Petitioner's facility for several months prior to her death. This stay was interrupted by a hospitalization that ended on March 1, 2001.

The resident had a plan of care that was dated October 19, 2000. CMS Ex. 19. The care prescribed for Resident # 1 included suctioning the resident's airway as needed; ensuring that the resident received adequate amounts of oxygen at all times; monitoring the resident for shortness of breath; and conducting pulse oximetry as needed. Id. at 8. Neither the resident nor her family had made a DNR request in the event of a cardiac or respiratory arrest. Nor were there any instructions in Resident # 1's records concerning if, or when, it would be appropriate to initiate CPR for the resident.

At 6:20 a.m. on March 10, 2001, a licensed practical nurse (LPN) observed Resident # 1 to be showing signs of unresponsiveness. CMS Ex. 17, at 6. Her respiration was recorded as shallow, her pulse was thready. Her blood pressure was recorded at 70/50. Id. The LPN's supervisor, a registered nurse, called the resident's physician. The physician ordered that the resident be transferred to a hospital. The LPN asked a nursing assistant to prepare the resident for transfer. CMS Ex. 14, at 4. Within five minutes, the nursing assistant reported to the LPN that the resident had stopped breathing. Id. The LPN prepared to give CPR to the resident. However, the registered nurse told her it would be of no use as the resident had expired. Id. No CPR was provided and the resident was pronounced dead at 6:30 a.m. on March 10, 2001. CMS Ex. 17, at 7.

Petitioner has a written policy setting forth its CPR procedures. Essentially, that policy is a blanket declaration that Petitioner will provide CPR to any resident who suffers a cardiopulmonary arrest except in the circumstance where the resident, via a DNR request, specifically asks that CPR not be provided. Petitioner's policy, which is dated March 12, 2001, states that:

The following procedure will be followed in the event a resident is found to be without a pulse and/or respirations or suspected by any staff member of having had a cardiopulmonary arrest . . .

2) The code status of the resident will be determined. If a red dot is not noted on the resident's wrist band, or if the resident does not have a valid DNR order in his or her chart then CPR will be initiated . . . .

CMS Ex. 25, at 1. On its face, this policy postdates the events of March 10, 2001. However, neither party has suggested that a different policy was in effect prior to that date. Earlier versions of Petitioner's CPR policy state essentially the same blanket CPR policy as that which is stated in the March 12, 2001 CPR policy. In Petitioner's pre-March 12, 2001 CPR policy documents, Petitioner states that: "CPR will be attempted for any resident found to have no palpable pulse and/or no discernable respiration unless there is a current physician order for DNR." CMS Ex. 29; CMS Ex. 30, at 1; P. Ex. 57.

CMS contends that the State of New York mandates that nursing facilities provide CPR to any resident who experiences a cardiopulmonary arrest. It cites a policy directive made by the State of New York Department of Health to New York State nursing homes on August 11, 1999. That directive advises nursing homes that they:

must have staff appropriately skilled and able to perform basic life support including . . . [CPR] . . . . There must be sufficient staff available, able and willing to deliver this care at all times. Additionally, all necessary equipment must be readily accessible to staff at all times. All nursing homes must develop Policies and Procedures to ensure basic life support is available at all times and appropriately delivered when necessary.

CMS Ex. 1. I do not read this statement so broadly as CMS contends that it should be read. It does not define which residents in a nursing facility should receive CPR. Rather, it addresses the need for a nursing facility to be prepared to offer CPR to those residents who need it.

But, whether Petitioner's policy reflects a State mandate is, in the final analysis, irrelevant to establishing how Petitioner has chosen to deal with a resident who suffers from a cardiopulmonary arrest. It is evident from Petitioner's own policy that Petitioner has elected, on a blanket basis, to provide CPR to any resident who experiences cardiopulmonary arrest.

The evidence offered by CMS establishes a prima facie case that Petitioner did not implement its CPR policy when Resident # 1 experienced cardiopulmonary arrest. The resident did not have a DNR order in her records. One may infer from the prima facie evidence, consistent with Petitioner's policy, that Petitioner was obligated to offer CPR to the resident in the event of the resident's respiratory failure or cardiac arrest. But, the evidence offered by CMS shows that Petitioner failed to do so.

CMS also offered prima facie evidence to show that Petitioner's failure to provide CPR to Resident # 1 posed the potential for more than minimal harm to the resident. Such evidence is in the declaration of Nilsa Gutierrez, M.D., M.P.H. CMS Ex. 69. She testified that CPR is a procedure that, by definition, is used to attempt to preserve life when everything else has failed. Id. at par. 13. Failure to utilize CPR as a last resort clearly has the potential to harm a patient because it eliminates a possibility - no matter how slight - that a dying patient may be revived:

The very purpose of CPR as a lifesaving intervention contradicts the notion of futility when there is evidence of clinical decompensation or demise. It is an intervention that is utilized precisely in the event of impending death or absence of vital signs. It is the one clinical intervention that is used when all other interventions are futile.

Id.

Moreover, Petitioner's failure to provide CPR to Resident # 1 is evidence from which I may infer that all of Petitioner's residents potentially were at risk from a failure by Petitioner to implement its policy. That is because Petitioner's policy is supposed to assure that any resident who has not made a DNR request be given CPR in the event of a cardiopulmonary arrest. The failure to apply this policy in the case of Resident # 1 is reason to conclude that any of Petitioner's residents were at risk to experience a similar lapse.

The overall conclusion that I draw from the prima facie evidence offered by CMS, in the absence of proof that rebuts it, is that Petitioner failed to provide a service (CPR) to a resident that was necessary if Petitioner sought to extend the resident's life. This failure by Petitioner constituted a failure to implement a policy to prevent neglect and is prima facie proof that Petitioner failed to comply substantially with the requirements of 42 C.F.R. § 483.13(c)(1)(i).

Petitioner makes several arguments in response to CMS' case. I find these arguments to be unpersuasive both individually and in the aggregate.

First, Petitioner argues that failure by it to perform CPR on a resident in the absence of a DNR order is not neglect per se. It asserts that, however, CMS is attempting to hold it to a per se liability standard in this case. According to Petitioner, CMS has resorted to a formula in which failure to provide CPR always equals "neglect."

I am not persuaded that CMS' case may be reduced to so simple a syllogism. I agree with Petitioner that failure by a nursing facility to provide CPR to a resident who has suffered a cardiopulmonary arrest is not per se a failure to comply substantially with federal regulations. There is nothing in the regulations that mandates that CPR be provided to every resident who suffers from cardiopulmonary arrest. Indeed, evidence presented by Petitioner persuades me that there may be many instances where such an intervention would be futile. The regulations do not compel a facility to take actions that are futile. However, if a facility opts to provide CPR on a blanket basis to all of its residents who experience cardiopulmonary arrest, in lieu of using some system to separate those who might benefit from such service from those who would not, then it is incumbent on the facility to carry out its policy. Otherwise, there would be no guarantee that residents who might benefit from CPR would receive it.

The crux of CMS' case is that Petitioner failed to implement its policy consistently. That is evidenced by the failure to provide CPR to Resident # 1, even though the resident was in cardiac and respiratory arrest and had not executed a DNR request. CMS' case therefore does not depend on finding a per se requirement that Petitioner provide CPR to every resident. To the contrary, CMS' case rests on Petitioner's failure to offer CPR to every resident where it had elected to provide CPR to every resident in distress in order to assure that each resident who truly needed CPR received it. Arguably, Petitioner may have met its residents' needs more selectively. Arguably, it could have adopted a mechanism to assess those residents who experienced cardiac or respiratory arrest and to provide CPR only to those residents who would benefit. But, Petitioner chose to provide CPR across the board. That was its policy and that is what CMS charges Petitioner with failure to enforce.

I do not find that Petitioner rebutted CMS' prima facie case. Petitioner made a convincing showing that Resident # 1, by virtue of her medical condition and associated problems, would not have benefitted from CPR. But, that showing begs the question of whether Petitioner effectively enforced its CPR policy. Petitioner made no showing that it had assessed Resident # 1 prior to her cardiopulmonary arrest and death as not potentially benefitting from CPR or that it had excepted the resident from implementation of its policy to afford CPR to each resident who suffered a cardiopulmonary arrest. And, consequently, Petitioner did not satisfy me that it had adopted a rational policy to assure that other residents would be assessed appropriately for possible benefit from CPR or that its blanket CPR policy would be applied to all of its residents who needed CPR.

Petitioner argues that the New York Department of Health's 1999 directive, which I discuss above, is ultra vires a New York State regulation which, Petitioner contends, does not compel a facility to offer CPR to its residents. Petitioner's post-hearing brief at 5; see 10 N.Y.C.R.R. § 405.43(c)(4). However, and as I discuss above, the issue in this case is not whether Petitioner was mandated by New York State law to provide CPR to residents who are in cardiac or respiratory arrest. Rather, the question is whether Petitioner implemented its own internal policy about CPR to assure that every resident who needed CPR received it.

2. Petitioner did not prove that it attained compliance with the requirements of 42 C.F.R. § 483.13(c)(1)(i) prior to May 22, 2001.

Petitioner does not argue that, if it was not complying with the requirements of 42 C.F.R. § 483.13(c)(1)(i) as of March 16, 2001, it came into substantial compliance with those requirements on a date earlier than May 22, 2001, the date when CMS found that Petitioner had attained compliance. Consequently, CMS' determination that Petitioner was out of compliance until May 22, 2001, stands unchallenged.

3. CMS was authorized to impose against Petitioner the remedy of denial of payments for new Medicare admissions for each day of the April 16 - May 22, 2001 period.

As I discuss above, at Part II.A. of this decision, CMS is authorized to impose remedies, including denial of payments for new Medicare admissions, for each day that a skilled nursing facility fails to comply substantially with Medicare participation requirements. CMS is authorized to deny payments to Petitioner for new Medicare admissions for each day of the April 16 - May 22, 2001 period in that Petitioner failed to comply substantially with a Medicare participation requirement during that period.

JUDGE
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Steven T. Kessel

Administrative Law Judge

CASE | DECISION | JUDGE