CASE | DECISION |JUDGE | FOOTNOTES

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


SUBJECT:

Innbruck Healthcare Center,

Petitioner,

DATE: February 09, 2004
                                          
             - v -

 

Centers for Medicare & Medicaid Services.

 

Docket No.C-03-525
Decision No. CR1141
DECISION
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DECISION GRANTING MOTION FOR SUMMARY DISPOSITION

I enter summary disposition against Petitioner, Innsbruck Healthcare Center and in favor of the Centers for Medicare & Medicaid Services (CMS).

I. Background

Petitioner is a skilled nursing facility that is located in New Brighton, Minnesota. Petitioner participates in the Medicare program. Its participation in that program is governed by sections 1819 and 1866 of the Social Security Act (Act) and by participation requirements that are stated in federal regulations at 42 C.F.R. Parts 483 and 488.

On April 10, 2003, surveyors employed by the Minnesota Department of Health completed a survey of Petitioner in order to determine Petitioner's compliance with federal participation requirements. The surveyors concluded that Petitioner manifested a deficiency at the immediate jeopardy level. (1) CMS concurred with the surveyors' findings and eventually determined that, as a consequence of having an immediate jeopardy level deficiency, Petitioner would lose its authority to conduct a nurse's aide training program (NATCEP) for a period of two years beginning April 10, 2003. Petitioner requested a hearing, and the case was assigned to me for a hearing and a decision. CMS moved for summary disposition and Petitioner opposed the motion. The motion and the opposition to the motion were accompanied by proposed exhibits. CMS offered exhibits which it designated as CMS Exhibits (CMS Exs.) 1 - 24. Petitioner offered exhibits which it designated as Petitioner's Exhibits (P. Exs.) 1 - 11. I am receiving these exhibits into the record and I refer to them in this decision as may be appropriate.

II. Issues, findings of fact and conclusions of law

A. Issues

The issues in this case are whether:

1. Summary disposition is appropriate;

2. Petitioner had an immediate jeopardy level deficiency as of April 10, 2003;

and

3. Petitioner loses its authority to conduct NATCEP for a two-year period, beginning April 10, 2003, as a consequence of having an immediate jeopardy level deficiency on that date.

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. Summary disposition is appropriate.

Summary disposition in administrative cases involving CMS is governed by the principles of summary judgment that are set forth at Rule 56 of the Federal Rules of Civil Procedure. Livingston Care Center, DAB CR906 (2002), aff'd, DAB No. 1871 (2003); Madison Health Care Inc., DAB CR1094 (2003); Lebanon Nursing and Rehabilitation Center, DAB CR1069 (2003). Summary disposition is appropriate where there are no disputed issues of material fact. A material fact is a fact which, if established, might affect the parties' dispute over a particular issue. The moving party has the obligation to aver the material facts that it is relying on and which it alleges to be undisputed. Fed. R. Civ. P. 56(c). It is appropriate to grant summary disposition where conclusions favorable to the moving party may be drawn from undisputed material facts and applicable law.

Facts are not material to the outcome of the case if they are not probative of the issue in dispute. A motion for summary disposition will not be defeated by facts that are not material to the issue that is in dispute. Moreover, the concept of material facts must not be confused with conclusions that are based on material facts. A conclusion is a finding that may be drawn from material facts. A dispute between the parties as to the correct conclusion to draw from the facts will not be an impediment to the entry of summary disposition if the material facts are not disputed.

As I explain in more detail below, at Finding 2, there are no disputed material facts in this case. There are, to be sure, disputes as to what conclusions appropriately may be drawn from the facts and I discuss and resolve these disputes below. But, the central facts which describe the events resulting in the deficiency citation that is at issue here and CMS's immediate jeopardy determination are not in dispute. For that reason, summary disposition is appropriate.

2. Petitioner had an immediate jeopardy level deficiency as of April 10, 2003.

The surveyors who conducted the April 10, 2003 survey concluded that Petitioner did not comply substantially with the requirements of 42 C.F.R. § 483.25(i)(2). The regulation requires that a resident who manifests a nutritional problem - as demonstrated by the resident's comprehensive assessment - receive a therapeutic diet. The surveyors concluded that Petitioner was failing to provide therapeutic diets to several of its residents. And, in two instances, according to the surveyors, Petitioner's failure to comply with the requirements of the regulation was so egregious as to pose immediate jeopardy for the residents.

CMS asserts that the following facts, which it contends are not in dispute, establish that two of Petitioner's residents, identified as Resident Nos. 5 and 26, were not receiving a therapeutic diet in accord with the residents' plans of care or their physicians' orders:

• Resident Nos. 5 and 26 were diagnosed to be suffering from swallowing difficulties. CMS Ex. 5, at 65 - 67; CMS Ex. 9, at 19, 27.

• Each of these residents had a history of aspirating fluids and was at risk for developing pneumonia related to aspiration. CMS Ex. 5, at 58, 61 - 62; CMS Ex. 9, at 24 - 27.

• Resident No. 5 and Resident No. 26 each was prescribed a diet which included thickened liquids and which excluded liquids that were not thickened. CMS Ex. 5, at 33, 64; CMS Ex. 9, at 1; 20 - 21.

• During the April 2003 survey, each resident was observed to have been served an unthickened liquid consisting of soup that was not thickened. CMS Ex. 13, at 1, 2; CMS Ex. 23, at 2 - 3.

CMS asserts that these facts establish Petitioner's failure to comply with the requirements of 42 C.F.R. § 483.25(i)(2). (2) It argues, furthermore, that Petitioner's noncompliance was so egregious as to constitute immediate jeopardy, as that term is defined at 42 C.F.R. § 488.301:

Immediate jeopardy means a situation in which the provider's noncompliance with one or more requirements of participation has caused, or is likely to cause, serious injury, harm, impairment, or death to a resident.

CMS contends that the failure to provide these two residents with a therapeutic diet was likely to cause serious harm to those residents. It argues that serving unthickened liquid to these two residents created a substantial risk that each resident would aspirate liquid into his or her lungs and thereby cause the resident to suffer a recurrence of pneumonia. CMS relies on the professional judgment and opinion of Elizabeth Swan, R.N., one of the surveyors who conducted the April 10, 2003 survey, and who personally observed the care being given to Resident Nos. 5 and 26, to support this contention. CMS Ex. 23.

The facts adduced by CMS, if unchallenged by Petitioner, are sufficient to support a conclusion that Petitioner was not complying substantially with the requirements of 42 C.F.R. § 483.25(i)(2). Each of the two residents in question had been ordered to be provided with a therapeutic diet that included thickened liquids, and which excluded liquids that were not thickened. The orders were based on Petitioner's assessments of these residents as being at risk for serious harmful consequences if they aspirated liquid. However, the facts offered by CMS, if not refuted, show that these diets were not being supplied consistently to the residents. Each of the residents was observed drinking unthickened soup contrary to that resident's therapeutic diet.

The undisputed facts also support the conclusion that Petitioner's failure to comply with the requirements of the regulation put Resident Nos. 5 and 26 at immediate jeopardy. There were medically supported reasons for providing these two residents with special therapeutic diets. Each of them had a history of aspirating fluids and each of them was at risk for developing pneumonia related to aspiration. The residents' care plans ordering therapeutic diets for the residents specifically were written to address these problems. Providing these residents with thin liquids exposed them to an unnecessary risk and created a potential for serious harm. Moreover, even if these two residents were not personally at a risk for harm, the failure of Petitioner's staff to follow dietary instructions in serving food increased the likelihood that residents in general were at risk. That is because the failure to provide specifically-directed care to the two residents supports the inference that Petitioner's staff was careless in general.

Petitioner contends that it disputes the material facts relied on by CMS. However, nothing that Petitioner offers actually creates a dispute as to these facts. First, Petitioner does not deny any of the facts on which CMS relies and which I cite above. Specifically, it does not deny that the two residents, whose care is at issue, were ordered to be fed only with thickened liquids because Petitioner's staff and/or these residents' physicians found them to be at risk for aspiration-related respiratory illness if they were served unthickened liquids. Nor does Petitioner deny that these two residents were fed unthickened liquids. Second, the arguments which Petitioner offers do not create an actual dispute as to the material facts.

Petitioner argues that there was a system in place at its facility to ensure that care plans and food orders were followed. Petitioner's brief at 7 - 9. But, assuming that to be true, the facts offered by CMS - and not rebutted by Petitioner - show that the system was not working at the time of the April 10, 2003 survey. Nothing offered by Petitioner calls into question the surveyors' findings that residents of Petitioner, who were ordered to receive only thickened liquids for medical reasons, were being fed unthickened liquids.

Petitioner asserts that, in fact, it adhered to the care plan and feeding requirements for Resident No. 5 because the resident allegedly was receiving feeding supervision consistent with her care plan during the survey that was completed on April 10, 2003. Petitioner's brief at 9 - 10. That may be so, and for purposes of deciding CMS's motion I will assume that it is so, but it begs the question of whether the resident was being fed with unthickened liquids, as is alleged by CMS. Supervised feeding was only one element of the resident's care plan. The element which is at issue here involves what was fed to the resident and not how the resident was supervised when she was fed.

Additionally, Petitioner contends with respect to Resident No. 5 that the resident elected to be fed with unthickened soup, and that Petitioner merely honored the resident's request. Petitioner's brief at 10 - 11. That action, according to Petitioner, is consistent with the resident's care plan, and it relieves Petitioner of any responsibility for feeding thickened liquids to the resident. Id.

However, Petitioner did not offer any facts which support this assertion. Petitioner points to nothing in the resident's care plan that backs up Petitioner's contention that the care plan allowed for the substitution of unthickened liquids for liquids that were thickened. Rather, Petitioner relies on a conclusion made in the declaration of Jenean Erickson, R.N. P. Ex. 6, at 5. Ms. Erickson states only that CMS's allegations "fail to recognize that residents have the right to substitute food choices." Id. But, Ms. Erickson recites nothing in Resident No. 5's care plan, or in Petitioner's own dietary policies, that would support her conclusion. Moreover, I find that Ms. Erickson's conclusion is not only unsupported by any facts, but that it is incorrect as a matter of law. The conclusion advocated by Ms. Erickson - that a facility must honor a resident's request for a change in diet even when the resident's care plan specifically precludes the facility from doing so - would render 42 C.F.R. § 483.25(i)(2) meaningless. While it may be that residents of a facility generally have the right to substitute food choices, that does not address the issue of whether a facility may ignore a resident's dietary requirements as stated in the resident's care plan. Taken to its logical end, Ms. Erickson's conclusion would mean that a facility would be obliged to give high-sugar food to a diabetic resident if he or she asked for it, or an alcoholic beverage to a resident who suffered from alcoholism if he or she asked for a drink.

Petitioner next asserts the conclusion that Resident No. 26 was fed consistent with the resident's care plan. It contends that the resident did not cough after drinking unthickened soup. Petitioner's brief at 12. Moreover, it asserts that the resident was in fact monitored by Petitioner's staff during his meals. Id. at 12 - 13. For purposes of deciding CMS's motion, I will assume these assertions to be true. However, while they rebut some of the statements made by the surveyors in the report of the April 10, 2003 survey, they do not rebut any of the core material facts which I discuss above. These assertions simply beg the question of whether Resident No. 26 was fed unthickened liquid in contravention of the resident's plan of care.

Petitioner then argues that there is a factual dispute as to whether Resident No. 5 was at risk for serious harm as a consequence of her consuming unthickened liquid. Petitioner's brief at 13 - 14. In this regard Petitioner asserts that it disputes that the resident had a history of aspiration pneumonia. Id. at 13. It also asserts that:

Whether there is a significant relationship between . . . [Petitioner] serving . . . [unthickened soup] to Resident No. 5 on April 7, 2003, and her alleged bout of pneumonia in February that constitutes is a material fact which if proven would affect the outcome of the case.

Id.

I find this argument to be without merit. Petitioner has not disputed any material facts that address the risk that was imposed on Resident No. 5 by feeding the resident unthickened liquid. Although I will accept as true for purposes of deciding CMS's motion Petitioner's assertion that the resident may not have suffered from aspiration pneumonia in the past, that does not derogate at all from the conclusion that feeding the resident with unthickened liquid put the resident at risk for respiratory complications in the future. The nutrition plan that Petitioner's staff developed for Resident No. 5 was intended to forestall future problems; not to address problems that arose in the past. CMS Ex. 5, at 33, 64. The risk of serious future harm to Resident No. 5 from feeding her unthickened liquid is apparent from the staff's assessment of the resident as needing thickened liquids as part of her diet in order to prevent the resident from aspirating liquids. CMS Ex. 5, at 64.

Finally, Petitioner makes essentially the same argument, as to the risk of harm to Resident No. 26 from allowing the resident to consume unthickened liquid, as it makes with respect to Resident No. 5. Petitioner's brief at 15 - 16. I find the argument to be without merit, for the same reasons as I find Petitioner's argument about the risk of harm to Resident No. 5 to be without merit. As is the case with Resident No. 5, Petitioner argues that Resident No. 26 may not have had aspiration pneumonia in the past and asserts that whether or not the resident had such illness is a fact that is in dispute and must be decided. For purposes of my decision I accept as true the assertion that the resident may not have had aspiration pneumonia. But, even if that is the case it does not detract at all from the facts relied on by CMS to support its motion. CMS's motion is predicated on the undisputed fact that Petitioner's staff and Resident No. 26's treating physician determined Resident No. 26 to be at risk for future respiratory problems related to consuming unthickened liquids. Petitioner developed the resident's care plan with these potential future problems in mind and tailored it precisely to deal with the resident's potential respiratory problems. The undisputed facts show that Petitioner's staff failed to feed the resident in accordance with the requirements of the plan of care. Based on Petitioner's own undisputed assessment of the risk to the resident by not complying with the care plan, it is reasonable to conclude that failure to follow that plan placed the resident at serious risk of harm.

Thus, the undisputed material facts of this case are sufficient for me to find that Petitioner's failure to follow its nutritional plans for Resident Nos. 5 and 26 put the residents at risk for serious harm. That, in turn, is sufficient for me to conclude that Petitioner manifested an immediate jeopardy level deficiency. (3)

3. Petitioner loses its authority to conduct NATCEP for a two-year period, beginning April 10, 2003, as a consequence of having an immediate jeopardy level deficiency on that date.

I find that Petitioner must lose its authority to conduct NATCEP for a two-year period, beginning April 10, 2003, because Petitioner manifested a substandard quality of care on that date. Under applicable regulations, a finding of substandard quality of care at a facility will trigger consequences which include loss of authority by the facility to conduct NATCEP. See 42 C.F.R. § 483.151(b)(2). (4) A "substandard quality of care" deficiency includes a failure by a facility to comply substantially with any of the requirements of 42 C.F.R. § 483.25 that is so egregious as to constitute immediate jeopardy. 42 C.F.R. § 488.301. Petitioner manifested a substandard quality of care, because of its failure to comply with 42 C.F.R. § 483.25(i)(2), at the immediate jeopardy level.

JUDGE
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Steven T. Kessel

Administrative Law Judge

FOOTNOTES
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1. I discuss what is meant by the term "immediate jeopardy" below, at Finding 2.

2. The report of the April 10, 2003 survey discusses Petitioner's alleged failure to provide therapeutic diets to residents in addition to Resident Nos. 5 and 26. These additional residents are Resident Nos. 2, 9, 25, 27, 28, and 29. CMS Ex. 3, at 40 - 47. However, only the allegedly deficient care that Petitioner gave to Resident Nos. 5 and 26 is the basis for the immediate jeopardy level deficiency citation and, for that reason, it is unnecessary that I discuss the care that Petitioner allegedly gave to the other residents.

3. Petitioner argues that the standard of proof that is applied to decide whether CMS's immediate jeopardy determination is correct in cases where civil money penalties is the remedy - whether CMS's determination is clearly erroneous - does not apply here because CMS did not determine to impose civil money penalties against Petitioner. See 42 C.F.R. § 498.60(c); Petitioner's brief at 4 - 7. That is an argument that I do not need to decide because the correct standard of proof is not at issue here. I would rule in Petitioner's favor if it showed any material facts to be in dispute regardless whether I would ultimately decide that those facts are sufficient to overcome the facts offered by CMS. I decide in favor of CMS in this case only because Petitioner has not disputed any of the core material facts which are the basis for finding that Petitioner placed its residents at risk for serious harm.

4. To be precise, a finding of a substandard quality of care at a facility during a survey will trigger a followup survey known as an "extended survey" or a "partial extended survey." 42 C.F.R. §§ 488.301; 488.310. A State may not authorize a facility to conduct NATCEP if that facility has been subjected to an extended or partial extended survey at any time within the previous two years. 42 C.F.R. § 483.151(b)(2)(iii).

CASE | DECISION | JUDGE | FOOTNOTES