SUBJECT:

Alden-Princeton Rehabilitation and Health Care Center,

Petitioner,

Centers for Medicare & Medicaid Services

DECISION

Alden-Princeton Rehabilitation and Health Care Center (Petitioner) is a nursing facility, located in Chicago, Illinois, that is certified to participate in the Medicare and Medicaid programs as a provider of services. Petitioner challenges the Centers for Medicare & Medicaid Services' (CMS) ⁽¹⁾ determination that on July 17, 1997, it was not in substantial compliance with Medicare requirements, and that the deficiency alleged posed immediate jeopardy to resident health and safety. For the reasons set forth below, I conclude that on July 17, 1997, Petitioner was out of compliance with the program participation requirement for quality of care, specifically tracheal suctioning. The facility's deficiency posed immediate jeopardy to resident health and safety, and the amount of the civil money penalty (CMP) imposed - $3,050 - is the minimum required where immediate jeopardy is found.

I. Background

This case has a long procedural history before both administrative law judges (ALJs) and the Departmental Appeals Board (Board). This history began on December 3, 1997, when Petitioner requested a hearing to contest the remedies imposed by CMS in a letter dated November 14, 1997 (notice letter). The notice letter referred to findings of noncompliance made by the Illinois Department of Public Health (State survey agency) during three surveys (August 26, 1997, September 18, 1997, and October 2, 1997) which resulted in a State survey agency determination to impose a CMP of $3,050 per day for one day that immediate jeopardy existed (July 17, 1997) and a CMP of $100 per day for 98 days of continuing non-compliance from July 18, 1997 through October 24, 1997 (when a revisit survey by the State survey agency found Petitioner to be back in substantial compliance). The case was assigned to ALJ Joseph K. Riotto for hearing and decision.

On September 8, 1998, CMS filed two motions; a motion to dismiss in part and a motion for summary affirmance of the CMP of July 17, 1997. In its motion to dismiss, CMS contended that Petitioner's hearing request was too abbreviated to preserve for challenge any issue other than, at most, an issue relating to whether the CMP for the July 17, 1997 incident should be in the upper range of CMPs (due to CMS's contention that immediate jeopardy existed). Specifically, CMS contended that Petitioner's hearing request was not sufficient under 42 C.F.R. § 498.40(b) to put at issue whether it was in substantial compliance with program requirements.

In a decision dated April 29, 1999, Judge Riotto found that Petitioner's hearing request did not meet the specific requirements of 42 C.F.R. § 498.40(b) on any issue and that Petitioner had thereby failed to file a timely hearing request within the meaning of 42 C.F.R. § 498.70(c). On appeal, the Board found no error in Judge Riotto's determination that Petitioner's hearing request failed to satisfy the requirements of 42 C.F.R. § 498.40(b) or that it was subject to dismissal for that reason. However, the Board found that, given the serious consequences of dismissal, the use of the word "may" in 42 C.F.R. § 498.70 means that an ALJ has the discretion to consider, when presented with extenuating circumstances in a particular case where the requirements of 42 C.F.R. § 498.40(b) have not been met, whether the case should be dismissed in its entirety or as to any particular issue. The Board found Judge Riotto had not recognized that he had such discretion in this case, and remanded the case to him to consider and explain whether, in the exercise of his discretion under 42 C.F.R. § 498.70(c), dismissal would be appropriate based on the particular circumstances presented. Alden-Princeton Rehabilitation and Health Care Center, Inc., DAB No. 1709 (1999).

In a Ruling dated August 22, 2000, Judge Riotto found that Petitioner was entitled to a hearing only on the narrow issue of the July 17, 1997 immediate jeopardy finding, as it was an issue which CMS had, from an early point in the proceeding, conceded that it was prepared to litigate. Regarding the other issues raised by Petitioner, Judge Riotto found that it would be inconsistent with the regulations to allow a hearing, because Petitioner had failed to specify the issues with which it disagreed, or the basis for the disagreement, in a case where CMS's decision to impose CMPs specifically incorporated multiple surveys, dozens of findings, and a series of citations. Alden-Princeton Rehabilitation and Health Care Center, Inc., Docket No. C-00-070, Ruling dated August 22, 2000.

This case was reassigned to me on May 9, 2001. By letter dated June 15, 2001, I informed the parties that I planned to decide only the narrow issue remaining open in the case ⁽²⁾ (CMS's determination that immediate jeopardy existed in the facility on July 17, 1997), and to decide the case based on the parties' written submissions. At the time, it appeared to me from the briefing of record that there were no material facts in dispute. Accordingly, I afforded the parties a final opportunity to supplement the record. The parties submitted supplemental briefing based on the motion for summary affirmance filed by CMS on September 8, 1998. On February 7, 2002, I denied CMS's motion for summary affirmance, finding that an in-person hearing was, in fact, necessary, because Petitioner had made colorable arguments regarding the presence of material factual issues in dispute.

I held a hearing in this case on April 23, 2002. At the hearing, I admitted CMS exhibits (CMS Ex.) 1 - 23; Petitioner's motion for summary judgment exhibits (P. MSJ Ex.) 1 - 13; and Petitioner's exhibits (P. Ex.) 1 - 12. The parties submitted posthearing briefs (CMS Br. and P. Br.) and responses (CMS R. Br. and P. R. Br.).

II. Issues

1. Whether, on July 17, 1997, Petitioner was out of substantial compliance with the participation requirement set forth at 42 C.F.R. § 483.25; and

2. If Petitioner was not in substantial compliance, did this non-compliance pose immediate jeopardy to resident health and safety; and

3. If Petitioner was not in substantial compliance at the level of immediate jeopardy, is the amount of the CMP imposed, $3,050 for July 17, 1997, required by regulation.

III. Statutory and regulatory background

The Social Security Act (Act) sets forth requirements for nursing facilities participating in the Medicare and Medicaid programs, and authorizes the Secretary of Health and Human Services to promulgate regulations implementing the statutory provisions. Act, sections 1819 and 1919. The Secretary's regulations governing nursing facilities participating in the Medicare program are found at 42 C.F.R. Part 483.

To participate in the Medicare program, a nursing facility must maintain substantial compliance with program requirements. To be in substantial compliance, a facility's deficiencies may pose no greater risk to resident health and safety than "the potential for causing minimal harm." 42 C.F.R. § 488.301. A facility's noncompliance constitutes immediate jeopardy if it has caused or is likely to cause "serious injury, harm, impairment, or death to a resident." Id. Immediate jeopardy can exist regardless of the scope of the deficiency, so long as the deficiency involves a potential for more than minimal harm. Lake City Extended Care Center, DAB No. 1658, at 17 (1998). This is because there are some deficiencies that, even though not widespread or even a pattern, are so egregious that they meet the definition of immediate jeopardy at 42 C.F.R. § 488.301. However, immediate jeopardy does not exist unless the severity of the deficiency encompasses noncompliance that causes, or is likely to cause, serious injury, harm, impairment, or death to a resident. Barn Hill Care Center, DAB No. 1848, at 19, n.20 (2002).

Under the statute and the "quality of care" regulation, each resident must receive, and the facility must provide, the necessary care and services to allow a resident to attain or maintain the highest practicable physical, mental, and psychosocial well-being, in accordance with the resident's comprehensive assessment and plan of care. Act, section 1819(b); 42 C.F.R. § 483.25. Specific to this case, under 42 C.F.R. § 483.25(k)(5), the facility must ensure that residents receive proper treatment and care for the special service of tracheal suctioning.

If a facility is not in substantial compliance with program requirements, CMS has the authority to impose one or more of the enforcement remedies listed in 42 C.F.R. § 488.406, which include imposing a CMP. See Act, section 1819(h). CMS may impose a CMP for the number of days that the facility is not in substantial compliance with one or more program requirements or for each instance that a facility is not in substantial compliance. 42 C.F.R. §§ 488.430(a); 488.440.

In situations where the deficiencies do not constitute immediate jeopardy, but have caused actual harm or have the potential for causing more than minimal harm, CMS may impose a CMP in the lower range of $50 to $3,000 per day. Penalties in the range of $3,050 to $10,000 per day are imposed for deficiencies constituting immediate jeopardy. 42 C.F.R. § 488.438. CMS's determination as to a facility's level of non-compliance must be upheld unless it is clearly erroneous. 42 C.F.R. § 498.60(c)(2).

IV. Burden of proof

Although Petitioner argues that it is improper to require it to prove compliance with participation requirements by a preponderance of the evidence (P. Br. at 8 - 9), case precedent provides that, once CMS has established a prima facie case that a facility is not in substantial compliance with participation requirements, the facility must prove substantial compliance by a preponderance of the evidence. Emerald Oaks, DAB No. 1800, at 4 (2001); Cross Creek Health Care Center, DAB No. 1665 (1998), applying Hillman Rehabilitation Center, DAB No. 1611 (1997), aff'd, Hillman Rehabilitation Center v. HHS, No. 98-3789 (GEV), slip op. at 25 (D.N.J. May 13, 1999). I follow this precedent in making my decision here.

V. Findings of fact, conclusions of law, and discussion

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

1. On July 17, 1997, Petitioner was out of compliance with the participation requirement set forth at 42 C.F.R. § 483.25.

CMS's notice letter asserts that on July 17, 1997, it found an isolated deficiency to have existed at Petitioner's facility which constituted an immediate jeopardy. CMS Ex. 1. CMS based its determination on a deficiency finding made by the State survey agency emanating from a complaint investigation survey completed on August 26, 1997. The State survey agency alleged that Petitioner: failed to provide emergency care to a resident (James M.); failed to have emergency medical equipment available for emergency use; and failed to train direct care staff in the use of emergency medical equipment according to established facility policies and procedures. CMS Ex. 22.

I have reviewed the entire record in this case, which includes the parties' admitted exhibits, their posthearing briefs, and the testimony I heard at the hearing on April 23, 2002. Based on this evidence, I find the following with respect to an incident which occurred involving a facility resident, James M., on July 17, 1997. ⁽³⁾

On July 17, 1997, James M. was a 96-year old man (CMS Ex. 3), with diagnoses of a prior history of stroke and congestive heart failure (CHF), among other conditions. He was fed by gastric tube due to difficulty in swallowing, and had a nasal cannula providing continuous oxygen. See Tr. at 122 - 125; P. MSJ Ex. 5; CMS Exs. 2, 3, 4, 12, 22.

On July 17, 1997, James M. experienced an episode of moderate to severe respiratory distress. Nurses' notes of July 17, 1997 provide the outline of this incident from the contemporaneous perspective of the facility. Specifically, nurse's notes prepared by Sherese Thurman, R.N. (Nurse Thurman) indicate that at 3:00 P.M.

[James M.] congested in [both] upper lobes; breathing is labored. B/P 130/60, P 97, R. 22, T. 99.5. Called Dr. Nobleza for [James M.] awaiting his call.

By 3:10 P.M., Nurse Thurman had reached the end of her shift. Another R.N., Delores DeNye (Nurse DeNye), noted at 3:10 P.M.,

Resident expectorating copious amount frothy white mucous. Appears to be having difficulty breathing. 911 Paged.

At 3:15 P.M., Nurse DeNye noted,

Paramedics arrived examined resident in room, suctioned, appears to be breathing better, however mild rales still heard in lower lobes area.

At 3:40 P.M., Nurse DeNye noted,

Resident transported to St. Bernards E.R. for evaluation.

CMS Ex. 6. Other facility records document James M.'s respiratory difficulty, including a nursing discharge summary indicating James M.'s transfer due to "Breathing Labored, expectorating thick white mucous" (CMS Ex. 7) and a transfer form indicating that at 3:30 p.m. "Resident appears to be in respiratory distress, breathing labored, congested both upper lobes T 99.5 P. 97 R 22 B/P 130/60, Paged Dr. Gupta - no response - 911 called." CMS Ex. 8.

These nurses' notes provide the outline of what happened to James M. However, the question here is whether, in filling in what happened between the time the facility noted James M. was in respiratory distress, until his removal to the hospital, I am able to find that Petitioner's care of James M. was out of compliance with regulatory requirements. ⁽⁴⁾

It is undisputed that, when Petitioner could not reach James M's physician, it called 911. It is unclear whether the paramedics responding to the 911 call understood whether they were going out for a call for a potential heart attack (CMS Ex. 10; Tr. 31) or a patient in respiratory distress. The nature of what the paramedics thought the call was, however, is immaterial. What is material is that an ambulance, commanded by William May (Commander May), a paramedic with the Chicago Fire Department, accompanied by another paramedic and a paramedic student, responded. CMS Ex. 10; Tr. 44.

A narrative report (incident report) of the paramedics' call to Petitioner's facility to treat James M. was prepared by the paramedics on July 17, 1997. Paramedics file such incident reports regarding incidents where they determine some unusual circumstance happened that requires more explanation than the spaces allowed on their run report. Tr. 35. The incident report stated,

ON JULY [17] 1997 AT 1540 ⁽⁵⁾ HRS AMB 14 RESPONDED TO ALDEN PRINCETON NURSING HOME AT 255 W. 69^TH ST WITH TRUCK 20 FOR THE HEART ATTACK VICTIM. UPON OUR ARRIVAL WE FOUND [JAMES M.] A 97 Y/O MALE IN MOD/SEVERE RESP DISTRESS. [JAMES M.] WAS FOUND SITTING IN HIS CHAIR SEMI RECLINED WITH RESPIRATIONS OF AT LEAST (40) ON A NASAL CANNULA AT 41. NO OTHER TREATMENT HAD BEEN INITIATED BY THE STAFF PRIOR TO OUR ARRIVAL. LITTLE [PATIENT HISTORY] WAS KNOWN BY THE ATTENDING RN WHO STATED THAT THE NURSE WHO HAD INITIALLY CALLED 911 HAD ALREADY LEFT THE BUILDING WITHOUT SO MUCH AS GIVING HER A VERBAL REPORT. FURTHER [OBSERVATION] REVEALED AN OBVIOUS UPPER AIRWAY COMPROMISE AND THE AMB CREW REQUESTED TO USE THE ROOM'S SUCTION DEVICE. SOME TIME LATER THE NURSE RETURNED TO THE ROOM WITH THE DEVICE BUT WITHOUT ANY CONNECTING TUBING. SHE STATED THAT THE STAFF WAS UNABLE TO FIND ANY TUBING AND THAT NONE WAS AVAILABLE IN HOUSE. EXTRA TUBING WAS RETRIEVED FROM THE AMB BY THE PARAMEDIC STUDENT AND THE PATIENT WAS SUCTIONED RECOVERING APPX 40 - 50 CC OF SECRETIONS FROM THE OPEN AIRWAY. THE PATIENT'S DISTRESS WAS IMMEDIATELY DECREASED AND [ ] ACHIEVED BI-LAT RHONCHI IN THE MID [ ] LOWER LOBES ALS WAS INITIATED PRIOR TO TRANS AND THE PATIENT WAS TRANSPORTED TO SBH W/O INCIDENT. APPROPRIATE NOTIFICATION WAS MADE.

CMS Ex. 10, at 2. Commander May's testimony at hearing was consistent with this contemporaneous written statement. Commander May testified that when he arrived at Petitioner's facility no one was waiting to direct him to the resident, James M., who required emergency care. The attendant at the front desk did not know the fire department had been called or whom the paramedics were to see. Eventually someone came down from the floor and told the paramedics James M.'s room number but not his name. As a result, they were delayed for about five minutes before being directed to the resident's room and taking the elevator to it. Tr. 31 - 32, 61 - 62. Once in James M.'s room, Commander May found James M alone, in a semi-reclined position in a geri-chair, with a cannula at four liters of oxygen. Tr. 32 - 33, 77. When James M.'s nurse was located, she could tell him essentially nothing about the patient. She stated the nurse that called the ambulance had left the building because it was the end of her shift. Tr. 33.

Commander May examined James M. and found him to be in moderate to severe respiratory distress, with accelerated heart beat, an elevated pulse, and an extremely elevated respiration rate. ⁽⁶⁾ Tr. 37, 77; CMS Ex. 9. Commander May stated that James M. was being (by standard order) given 2 liters of oxygen via nasal cannula, which he did not believe was adequate given the situation. Tr. 90 - 91. Moreover, Commander May stated that it was apparent that James M. was suffering from an upper airway obstruction and that he required immediate suctioning. Tr. 44; CMS Ex. 10, at 2.

Within five minutes of entering James M.'s room, Commander May asked a member of Petitioner's staff to provide him with a suction machine. Tr. 45. Staff brought him a machine, but it was not in working order. Tr. 45 - 46. The staff member then went to find another suction machine. Approximately five minutes later she returned with another unit. The suction tubing and tip were missing. Tr. 46. Commander May was told there was no tubing available in the building at that time. Id. Commander May sent his paramedic student to the ambulance to retrieve tubing. Tr. 48. There was a delay of at least 10 - 12 minutes from the time Commander May determined James M. needed suctioning to the time when the equipment became available and a 15 - 17 minute delay from the time the paramedics entered the facility. Tr. 31 - 32, 48 - 49, 75 - 76. Petitioner never provided Commander May with the tubing he requested. Tr. 52.

Commander May testified that he suctioned 40 - 50 cubic centimeters of secretions from James M.'s upper airway (about the size of two shot glasses). ⁽⁷⁾ Tr. 48 - 49. Commander May stated that this was a "fairly significant amount" that would have taken a significant amount of time to accumulate and would have made it "extremely difficult" to breathe. Commander May also testified that the paramedics documented that after suctioning James M.'s respiratory distress level dramatically decreased. Tr. 88.

Commander May testified that he filed the incident report because he felt Petitioner really did absolutely nothing prior to the paramedics arrival to make James M.'s condition any better. Tr. at 50 - 51.

None of Petitioner's staff who actually cared for Petitioner on July 17, 1997, testified. However, the record does contain the written statements of facility staff provided to Aminah Munir, R.N., ⁽⁸⁾ statements that in essence comport with the testimony provided by Commander May. David Enabulele, L.P.N. stated,

I was assigned to Team II . . . and was passing medications in the M.L.K. wing. I was at nurses station to get something when I was told of [James M.'s] distress. I was instructed to call 911 emergency. I called 911 emergency, paged the Doctor and started preparing transfer papers. The other nurses were with the resident. ⁽⁹⁾

CMS Ex. 17, at 4. Nurse DeNye stated,

While making rounds, I observed [James M.] with small amount of frothy sputum in both corners of his mouth. I informed AM charge nurse and began to take vital signs. AM. charge nurse returned to the room and completed vitals. She paged residents physician x 2 with no response. 911 was called and arrived. Resident was suctioned and transferred to St. Bernards Emergency Room.

CMS Ex. 17, at 3. Nurse Patricia Moore stated,

911 enter the building and stated a code was called and what floor. I proceed upstairs to the 2^nd floor with the paramedics. Resident [James M.] was in respiratory distress. Paramedic stated resident should be place in bed and suction. Paramedics suction resident and relieved respiratory distress and transferred to St. Bernard Hosp.

CMS Ex. 17, at 2.

Judith McAuliffe, a registered nurse and a surveyor with the State survey agency, testified at the hearing. ⁽¹⁰⁾ Unlike Ms. Munir, Ms. McAuliffe interviewed Commander May and reviewed his written reports and facility records, and she interviewed Petitioner's employees.

Ms. McAuliffe testified that two nurses, Nurse Thurman and Nurse Warfield, told her that 911 was called because James M. was having difficulty breathing and it was feared he could be suffering from congestive heart failure. Tr. 106 - 108, 117 - 118; CMS Ex. 22, at 2 - 3; CMS Ex. 18. Ms. McAuliffe testified also that despite this perceived emergency on Petitioner's part, the nursing notes (CMS Ex. 6) did not document that any assessment, intervention, or treatment was being attempted to address James M.'s respiratory distress (I do note that it appears Petitioner's vital signs were taken at 3:00 P.M., although no vital signs appear to have been taken after 911 was called). Tr. 103; CMS Ex. 5, at 2. Ms. McAuliffe testified that, in answer to her question why no attempt to suction James M. was performed by Petitioner prior to the arrival of the paramedics, Nurse Thurman told her that she didn't suction James M. because James M. did not have an order for suctioning, and that she was new to the facility (although Ms. McAuliffe testified that neither lack of a physician order, general standards of nursing care, nor Petitioner's own policy required a physician order to suction a resident when a need was presented). Tr. 109 - 112; CMS Ex. 19, at 1.

Ms. McAuliffe also testified that Nurse DeNye told her she retrieved the suction machine from the emergency cart (also called a "crash" cart) ⁽¹¹⁾ and asked Nurse Thurman to retrieve tubing from the clean utility room when it was discovered that there was no tubing with the suction machine. Tr. 188, 172; CMS Ex. 22, at 5. Nurse DeNye claims she returned to the emergency cart and found the tubing, but when she returned the paramedics had already suctioned James M. Tr. 119, 168, 172 - 173; P. MSJ Ex. 13, at 8 - 9. Ms. McAuliffe testified that she did not find Nurse DeNye's account of belatedly finding the tubing in the cart to be credible because the suction machine was on the top of the cart and the supplies were in the drawers. Nurse Thurman told Ms. McAuliffe that she broke the lock, indicating she went into the drawers to get the tubing. If the tubing was present, there would have been no need to send the paramedic for the tubing or Ms. Thurman to the clean utility room. Tr. 118, 171.

Ms. McAuliffe was told by Nurse Thurman that she was a new employee, had been oriented by three different nurses, and had not been oriented to the emergency cart, at least as to what was on it. Nurse DeNye also told Ms. McAuliffe that Nurse Thurman had not been oriented. P. MSJ Ex. 13, at 4, 13; CMS Ex. 22, at 5.

Ms. McAuliffe testified that the lack of tubing was serious, because the tubing should be with the suction machine so the machine would be ready for immediate use (Tr. 118 - 119) and if the tubing was not in the emergency cart or utility room the only other place to find it was in the central supply room in the basement where, because the floor nurses and aides did not have keys to the room, such supplies were not easily retrieved. Tr. 121.

The paramedics transported James M. to St. Bernard Hospital, where he was admitted with diagnoses of septicemia, dehydration, Hypanatremia(sic), Old C.V.A., and U.T.I. CMS Ex. 11. A physical examination performed by Dr. Khurana found Petitioner with clear lungs and a regular heart sinus rhythm. CMS Ex. 12. Dr. Khurana later spoke to Ms. McAuliffe and told her that he was familiar with James M. from prior admissions, and that James M. was unable to swallow and adequately cough out secretions because of the stroke he had suffered prior to this incident. Tr. 125; P. MSJ Ex. 13, at 17; CMS Ex. 22.

A. Petitioner failed to provide emergency care to James M.

Petitioner argues that no real emergency condition existed on July 17, 1997. P. Br. at 27 - 29; P. R. Br. at 5 - 8. Moreover, Petitioner asserts that CMS did not meet its burden of proving Petitioner failed to provide emergency care to James M. Petitioner specifically disagrees with CMS's assertion that there was no genuine dispute about whether an emergency condition existed and disagrees with CMS that the fact of an emergency condition was established by nurses' notes and facility records, Commander May's observations, Ms. Jaworski's testimony, and Ms. McAuliffe's interview with Dr. Khurana. Finally, Petitioner asserts that CMS's interpretation of the evidence is incorrect, misleading, and does not prove what CMS claimed. P. R. Br. at 5.

Specifically, Petitioner argues that the nurses' notes and facility records do not state that James M. was in respiratory distress. Petitioner notes that only one of the "other facility records" cited by Petitioner uses the term "respiratory distress" and that the document was completed by a nurse who had not observed or treated James M. P. R. Br. at 5. I find Petitioner's argument to be unpersuasive. At the relevant time, nurses treating James M. noted his "breathing is labored," and he "appears to be having difficulty breathing." CMS Ex. 6. Whether or not the nurses treating James M. prepared his transfer and discharge summary, the nurses preparing these documents were obviously told his symptoms by someone at the facility (they didn't make them up in a vacuum) and the notations "Breathing Labored" (CMS Ex. 7) and "Resident appears to be in respiratory distress, breathing is labored" (CMS Ex. 8) I find to encompass the facility's contemporaneous understanding of James M.'s condition.

Petitioner asserts also that Commander May's testimony was "riddled with contradictions, assumptions, and "guesstimates" and that he was "angry with the facility." P. R. Br. at 6. Petitioner urges that I should not give weight to his testimony. I find Commander May's testimony to be credible, consistent, and within the ambit of his expertise as a paramedic. ⁽¹²⁾

Petitioner appears to argue that James M. was not really in respiratory distress and did not need suctioning. P. Br. at 24 - 27, 28, 30. Petitioner cites the testimony of its witness, Janet Jaworski, R.N. (who is employed by another nursing facility under the same corporate ownership as Petitioner), that she had extensive experience caring for patients with respiratory distress, to support this conclusion. I recognize Ms. Jaworski's expertise in this area. However, Ms. Jaworski was not in attendance at Petitioner's facility on July 17, 1997, and her testimony does not really support this point. See Tr. at 217 - 218, 232. Moreover, in spite of Petitioner's protestations to the contrary (P. R. Br. at 6), Ms. Jaworski agreed with CMS counsel's assertion that facility documentation on July 17, 1997 showed that James M. was in respiratory distress. Tr. 232. Petitioner also argues that I should not rely on the statement made by James M.'s treating physician, Dr. Khurana, who told Ms. McAuliffe that James M. was unable to swallow and to adequately cough up secretions on his own due to an earlier stroke. Tr. 125; P. MSJ Ex. 13, at 17; CMS Ex. 22, at 6. Petitioner references medical records stating that James M. had a "productive cough" and which do not mention that James M. had an inability to cough out secretions or need mechanical suctioning. P. R. Br. at 7 - 8; CMS Ex. 4; see CMS Exs. 2, 12. However, I do not find Petitioner's argument compelling in light of Commander May's testimony and the documentation from the facility regarding James M.'s respiratory distress.

A significant change for the worse in a resident's condition calls for an assessment to determine what is causing the problem, followed by an attempt to address or relieve the problem. Tr. 131, 223. Petitioner noted that James M.'s condition had changed for the worse, yet it did not attempt to address it (other than calling his physician and 911) or to relieve it. Essentially, facility staff let James M. sit there alone and untreated while they awaited the paramedics.

The contemporaneous record made at the facility, which includes the nurses' notes of Nurse Thurman and Nurse DeNye, and the testimony of CMS's witness, Paramedic William R. May, who actually treated James M. at the relevant time, convinces me that at the time of the incident on July 17, 1997, James M. was in moderate to severe respiratory distress (see CMS Ex. 10) and that there existed an emergency condition. I find Commander May's contemporaneous documentation that James M had an "obvious upper airway compromise" (CMS Ex. 10, at 2) to be compelling in this regard and within his paramedic expertise in the assessment of emergency situations. I find that James M. had an upper airway obstruction that needed to be cleared by suctioning - the proof being that once the obstruction was cleared James M's respiratory distress was relieved. CMS Ex. 6; CMS Ex. 10, at 2. Petitioner noted James M.'s distress, understood there to be an emergency situation, and felt the situation was grave enough to call 911. I find Ms. Jaworski's suggestion that the facility "erred on the side of caution" (Tr. 216) and didn't really need to call 911 to be unpersuasive based on this evidence.

Finally, I find that Petitioner failed to provide emergency care to James M. because: Petitioner knew James M. to be in respiratory distress and yet, when Commander May entered James M.'s room, no nursing personnel were there monitoring his condition (other than once checking his vital signs and observing him to be in respiratory distress) or attempting to relieve his distress even though, in an emergency situation, Petitioner's policies and procedures allowed suctioning without a physician's order; and no one was waiting to immediately direct the paramedics to James M.'s room.

B. Petitioner failed to have emergency medical equipment available for emergency use.

Petitioner did not have a functioning suction machine available for emergency use. Petitioner first produced a suction machine missing parts and not operational. Petitioner next produced a suction machine that did not have the necessary tubing to make it operational. Whether or not the paramedics should have brought their own suction machine into the building is immaterial here. Petitioner's own policies and procedures required an emergency cart with a suction machine on it for emergency use. Such a requirement can only be read to be a requirement for a suction machine which can be used effectively; thus, the machine on the cart must be accompanied by all the necessary parts to make it operational. Tubing to make the suction machine operational was not available to the paramedics in their treatment of James M. and the paramedic student had to get tubing from the ambulance. Although Nurse DeNye later asserted to Ms. McAuliffe that such tubing was in the emergency cart, I agree with Ms. McAuliffe that Nurse DeNye's assertion regarding finding the tubing in the cart after the fact is not credible. Moreover, in an emergency, a functional suction machine would need to be immediately available. It appears that the tubing was not in the cart or even on the floor in the clean utility room where Nurse Thurman was sent to find it. Moreover, the only other place where supplies were kept was in Petitioner's central supply room in the basement, where supplies could not be easily retrieved and only four individuals at the facility had keys. Tr. 120 - 121. Finally, even if there was tubing on the emergency cart, I agree with CMS's observation that "[e]quipment that cannot be found is little better than equipment that is not there." CMS Br. at 19.

C. Petitioner failed to train direct care staff in the use of emergency medical equipment according to established facility policies and procedures.

The statements made by Nurse Thurman (who was caring for and charting James M. until 3:00 P.M. on the day of the incident) and Nurse DeNye (who was caring for and charting James M. after that) to Ms. McAuliffe confirm that Nurse Thurman was unable to find the tubing necessary to suction James M. because she was new and not sufficiently oriented about the location of supplies on the emergency cart. Moreover, Ms. McAuliffe's testimony that Nurse Thurman informed her that she did not consider suctioning James M. because there was no physician order to do so, shows that Nurse Thurman was unaware of the facility policy (that a physician's order is not required to suction a resident in an emergency where there is a respiratory problem or other need to do so). Nurse Thurman's inadequate training, both as to the facility's policies and procedures, regarding both the emergency cart (whether or not the cart actually contained the tubing) and when to suction a resident in respiratory distress, support CMS's conclusion regarding Petitioner's failure to train direct care staff in the use of emergency medical equipment.

2. Petitioner's noncompliance with the participation requirement at 42 C.F.R. § 483.25 posed immediate jeopardy to resident health and safety.

Once an ALJ has found a petitioner out of substantial compliance, the ALJ must affirm a finding of immediate jeopardy unless the ALJ can find that CMS's determination was clearly erroneous. See Woodstock Care Center, DAB No. 1726, at 39 (2000). CMS's determination is not clearly erroneous here. I agree with Ms. McAuliffe that Petitioner's failure to properly care for James M. and furnish a fully functional suction machine posed a likelihood that James M. could have suffered serious harm, including respiratory arrest, cardiac arrest, a stroke, a heart attack or any combination of the above. Tr. at 126, 131. Moreover, I also agree with Ms. McAuliffe that Petitioner's inability to timely furnish the required emergency equipment showed a "system failure" that could have impacted on any resident requiring emergency suctioning, including a resident who might be choking on food (which could conceivably lead to death). Tr. 132.

3. The amount of the CMP imposed, $3,050 for one day of noncompliance, is the minimum CMP required by regulation.

Once an ALJ has found a petitioner out of substantial compliance at the level of immediate jeopardy, the ALJ must uphold a CMP of from $3,050 to $10,000. 42 C.F.R. § 488.438(a)(i). Here CMS has imposed the minimum amount of CMP, $3,050 for one day that immediate jeopardy existed. I must conclude that this amount is reasonable because CMS imposed the lowest daily CMP amount possible in an immediate jeopardy situation. See Woodstock, DAB No. 1726, at 43.

VI. Conclusion

I have found that Petitioner was out of compliance with the program participation requirement for quality of care, specifically tracheal suctioning, at a level of immediate jeopardy. Thus, the CMP imposed - $3,050 - is the minimum required and, therefore, is per se reasonable.

Richard J. Smith

Administrative Law Judge

1. CMS was formerly known as the Health Care Financing Administration or HCFA. In this decision, any reference in the record to either the Health Care Financing Administration or HCFA has been changed to the Centers for Medicare & Medicaid Services or CMS.

2. In its posthearing brief, Petitioner reasserts its argument that I should not limit the hearing in this case to the immediate jeopardy finding of July 17, 1997, and that I should hear the issues Judge Riotto declined to hear in his August 22, 2000 Ruling. P. Br. at 5 - 8. Petitioner has evinced no argument which would cause me to revisit that Ruling and I believe the reasons Judge Riotto enunciated for limiting the issues here are sound. I do not conclude lightly, in adopting Judge Riotto's Ruling of August 22, 2000, that Petitioner has no right to a hearing with regard to the issues he declined to hear. However, in this case I do not consider to be an example of "gamesmanship" CMS's objections to those issues or Judge Riotto's decision not to hear them. See Alden Nursing Center Morrow, DAB No. 1825 (2002) and The Carlton at the Lake, DAB No. 1829 (2002).

3. Where the parties exhibits duplicate each other, I refer to CMS's exhibits only.

4. Petitioner argues that the quality of care requirement cited by CMS as a deficiency in this case (F-Tag 328 regarding the quality of care requirement in the regulations at section 483.25, specifically sub-section (k) regarding tracheal suctioning) does not contemplate the situation here where CMS is citing Petitioner with a deficiency regarding the use of tracheal suctioning on an emergency basis. P. R. Br. at 1 - 4. I disagree and find that if tracheal suctioning is needed by a resident on an emergency basis, and the facility does not ensure that the resident is properly treated, that is a deficiency under the regulations. The regulations do not differentiate here between emergency treatment and treatment for a chronic condition regarding a facility's responsibilities with regard to tracheal suctioning.

5. The times indicated by the paramedics and by Petitioner's staff are not consistent. Paramedic May testified that at the time his run report (CMS Ex. 9) was prepared there was no computer technology to give him the exact time of their arrival and departure; instead Commander May utilized his watch and a "guesstimate" regarding when they received the run, arrived, and went back. Tr. 60. While it is not clear from either the facility's or the paramedics' records exactly what time the paramedics reached the facility and began treating James M., this does not detract from Commander May's testimony regarding the incident and what he experienced in the treatment of James M.

6. James M had a pulse rate of 114 and a respiratory rate of 40 (a normal respiratory rate is 16 - 20 and a normal pulse is 80 - 100). Tr. 37; CMS Ex. 9. Commander May testified that there were signs of cyanosis present, although he noted James M.'s skin color to be normal on his run report (CMS Ex. 9) because James M. did not appear "generally cyanotic." Tr. 80 - 81, 86 - 87. This may have been because James M. is African-American. Tr. 226 - 227. Commander May testified that cyanosis is a late sign of inadequate oxygenation. Tr. 81

7. Petitioner disputes the amount of secretions removed from James M. P. Br. at 19 - 20. I agree with CMS that the precise amount of secretions removed from James M. is irrelevant. The only real issue is whether the secretions were significant enough to cause James M. respiratory distress and require suctioning. CMS R. Br. at 10.

8. In August 1997, Ms. Munir was employed as a surveyor with the State survey agency. She completed a complaint investigation survey of this incident during that month (CMS Ex. 15) and determined that there was no regulatory violation. Tr. 182. At the time Ms. Munir completed her investigation she had only interviewed facility employees and had not interviewed Commander May, the other paramedics, or reviewed the reports prepared by the paramedics. Tr. 184. Petitioner urges me to rely on the fact that Ms. Munir did not find a deficiency to conclude that no deficiency exists in this case. However, as Ms. Munir did not have the information available from the paramedics, I do not rely on the conclusion she reached in August 1997 that no regulatory violation occurred, although I do rely on information she gathered during her investigation.

9. Petitioner did not provide any support for Mr. Enabulele's statement that "other nurses" were with James M. or explain how Mr. Enabulele would have known that staff were with James M.

10. I note Petitioner's attempt to impeach Ms. McAuliffe's credibility by asserting that, unlike Ms. Munir, Ms. McAuliffe had no college degree or experience in a long-term care setting. P. Br. at 11. However, I find that Ms. McAuliffe, a health facilities surveillance nurse for the State survey agency inspecting long-term care facilities for 18 years (Tr. 93), is both credible and competent and I rely on her testimony and the documents she prepared regarding her investigation.

11. The emergency cart has as a lock a thin strip of metal that operates more as a seal which is intended to be broken to signal that supplies have been removed and it needs to be replenished. Tr. 119 - 120, 143, 169. CMS Ex. 20 reflects Petitioner's emergency cart standard operating policy and procedures.

12. Petitioner seeks to impeach Commander May's testimony as a series of "guesses, speculation, and his unsupported beliefs." P. Br. at 12, see also P. Br. at 13 - 20; P. R. Br. at 6. I do not view Commander May's testimony that way. However, I rely on his testimony not with regard to nursing standards of care or to his opinion regarding Petitioner's compliance with Medicare requirements (as suggested by Petitioner at P. Br. at 12) but only as it relates to what he saw and experienced as a fact witness that day and as to matters within the sphere of his paramedic expertise. I find that his testimony regarding these matters is both credible and persuasive and comports with the contemporaneous documentation of record. I also find Petitioner's suggestion that Commander May's testimony should be impeached as biased because he was angry at the facility for not having emergency suctioning equipment available for his use and because he was embarrassed because he should have brought such equipment into the facility in the first place (P. R. Br. at 9) to be without foundation. Whether or not Commander May was angry at the facility for what he may have perceived as a failure of care does not mean that the testimony he provided is biased. Commander May testified that he asked the staff to use their suctioning machine because the paramedics don't normally bring one when they respond to a call and, in this instance, they asked the staff to use a facility suction machine in an attempt to save time. Tr. 45. I note that Petitioner's own emergency cart standard operating policy and procedures requires a suction machine be on the emergency cart. CMS Ex. 20. Thus, it appears from Petitioner's own procedures that Commander May had good reason to believe a skilled nursing facility would have such a machine available for emergency use. Moreover, it is not clear that the paramedics knew the nature of James M.'s emergency when they arrived at the facility. While it is true that the paramedics run sheet lists the complaint as "possible aspiration-(SOB)" (CMS Ex. 9, at 2), the run sheet appears to have been prepared after the incident (Tr. 34 - 35). Thus, it is possible that the paramedics might have understood the call to be for a heart attack patient. Finally, Petitioner's argument that Commander May's testimony regarding his interactions with facility staff should have no weight because he was unable to identify individual staff members who were present and involved with him is unpersuasive. P. Br. at 13. The thrust of Commander May's testimony regards his experience at the facility in general and his interaction with individuals at the facility. There is no evidence to suggest that Commander May was necessarily introduced to specific individuals by name, nor is it surprising that, given the short time period that Commander May was in the facility, Commander May did not become acquainted with the specific names or titles of the individuals he came across.