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«Pearsall Nursing and Rehabilitation Center – North (Pearsall) requests review of the Administrative Law Judge (ALJ) decision upholding the Centers ...»

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Pearsall Nursing and Rehabilitation Center – North (Pearsall) requests review of the

Administrative Law Judge (ALJ) decision upholding the Centers for Medicare &

Medicaid Services’ (CMS) imposition of an $8,750 per-instance civil money penalty

(CMP) on Pearsall for failure to be in substantial compliance with the requirements for

long-term care facilities participating in the Medicare program. Pearsall Nursing and

Rehabilitation Ctr. – North, DAB CR4197 (September 10, 2015). Based on a complaint survey conducted at Pearsall and concluded on February 27, 2014, CMS found Pearsall not in substantial compliance with the Medicare quality of care requirement at 42 C.F.R.

§ 483.25 that facilities must provide for each resident “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 ALJ granted CMS’s motion for summary judgment after finding no dispute about any fact material to concluding that Pearsall was not in substantial compliance with that regulation. The ALJ also concluded that CMS’s determination that the noncompliance posed immediate jeopardy to resident health and safety was not subject to review in this case and that the amount of the per-instance CMP ($8,750) was reasonable. For reasons explained below, we affirm the ALJ Decision.

Legal Background To participate in the Medicare program, a long-term care facility, including a skilled nursing facility, must be in “substantial compliance” with the requirements in 42 C.F.R.

Part 483. 42 C.

F.R. §§ 483.1, 488.400. Under agreements with the Secretary of Health and Human Services, state survey agencies conduct onsite surveys of facilities to verify compliance with the Medicare participation requirements. Id. §§ 488.10(a), 488.11; see also Social Security Act (Act) §§ 1819(g)(1)(A), 1864(a).

A state survey agency reports any “deficiencies” it finds in a Statement of Deficiencies (SOD), which identifies each deficiency under its regulatory requirement and the corresponding “tag” number. A “deficiency” is any failure to comply with a Medicare participation requirement, and “substantial compliance” means “a level of compliance with the requirements of participation such that any identified deficiencies pose no greater risk to residenthealth or safety than the potential for causing minimal harm.” 42 C.F.R. § 488.301 (also defining “noncompliance” as “any deficiency that causes a facility to not be in substantial compliance”).

CMS may impose one or more remedies on noncompliant facilities, including per-day and/or per-instance CMPs. Id. §§ 488.402(b)-(c), 488.406, 488.408(d)(1)(iii)-(iv), 488.408(e)(1)(iii)-(iv), 488.430(a). When CMS imposes a per-instance CMP, it chooses an amount within the $1,000-$10,000 range designated for per-instance CMPs. Id. §§ 488.408(d)(1)(iv), 488.408(e)(1)(iv), 488.438(a)(2). This range applies to a per-instance CMP regardless of the level of noncompliance found by CMS. Id.; compare 42 C.F.R.

§§ 488.408(d)(1)(iii), 488.

408(e)(1)(iii) and 488.438 (a)(1) (providing for per-day CMPs in an upper range ($3,050-$10,000) for noncompliance that CMS determines constitutes immediate jeopardy and a lower range ($50-$3,000) for levels of noncompliance less than immediate jeopardy).

Case Background 1 Facts regarding Resident 1 2 At issue here is Pearsall’s alleged failure to provide timely care and treatment of a known acute hip fracture sustained by Resident 1, a 47-year-old female resident of Pearsall.

Resident 1 was admitted to Pearsall on May 17, 2013 with diagnoses that included, among others, Alzheimer’s-type dementia, Type 1 (insulin-dependent) diabetes, endstage renal disease, hypertension and hypokalemia (low potassium levels). ALJ Decision at 7, citing CMS Ex. 7, at 12-16. Resident 1 was wheelchair bound and required staff assistance for nearly all activities of daily living. Id., citing CMS Ex. 7, at 48-49.

Pearsall’s plan of care for this resident noted that she was “at risk for misunderstanding” and “usually understands/comprehends most of conversation but may miss part or intent of message.” Id., citing CMS Ex. 7, at 52. Resident 1’s care plan also stated that she was “at risk for unrelieved pain,” and that she should receive acetaminophen as needed for relief of pain or fever. Id., citing CMS Ex. 7, at 63. The care plan also instructed staff to “monitor for [complaints of] pain or increased [signs and symptoms] of pain: increased tearfulness, agitation, facial grimacing/moaning.” Id.

–  –  –

In early January 2014, Resident 1’s physician ordered an x-ray after Resident 1 complained of hip pain. Id., citing CMS Ex. 7, at 20, 30. A January 11, 2014 x-ray showed an acute intertrochanteric fracture (a type of hip fracture) of her left proximal femur. Id., citing CMS Ex. 7, at 20; CMS Ex. 8, at 3; ALJ Decision at 2 and n.1. A “24­ hour report” done by staff the same day as the x-ray stated Resident 1 needed a medical appointment to address her fractured femur. CMS Ex. 7, at 85. The next day (January 12, 2014), staff wrote that Resident 1 “needs apt [with orthopedic surgeon] the sooner the better.” CMS Ex. 7, at 86; ALJ Decision at 2, citing CMS Ex. 3, at 55. The same notation appeared the following day (January 13, 2014) along with a note that the resident “NEEDS PRIOR.” ALJ Decision at 7, citing CM Ex. 7, at 87 (capitalization in original). “NEEDS PRIOR” means that she needed prior insurance authorization to see the orthopedic surgeon. Id., citing P. Br. at 7; CMS Ex. 7, at 88. The next day (January 14, 2014), staff again wrote that Resident 1 “Needs prior auth[orization]... to be seen by [orthopedic surgeon]....” Id., citing CMS Ex. 7, at 88. The 24-hour reports from January 15 through January 22, 2014 each contained the same or a very similar notation.





Id., citing CMS Ex. 7 at 89-92, 100-103. The record contains no evidence (and Pearsall does not allege) that during the period January 11-January 22, 2014, staff conducted any follow-up on the status of the prior authorization or consulted with Resident 1’s physician about different treatment options to address the fracture. Id. at 7-8.

On January 21, 2014, Resident 1 had a nephrology evaluation at a dialysis center, and a nurse there noted that Resident 1 complained of “pain to [left] groin/hip.” Id. at 8, citing CMS Ex. 7, at 93. The nurse also noted Resident 1 complained of “losing mobility/function/unable to bear [weight].” Id. Resident 1’s nephrologist evaluated Resident 1 on that date, and his evaluation addressed Resident 1’s hip pain and ordered a referral to an orthopedic surgeon. Id. On January 22, 2014, Pearsall staff noted in Resident 1’s records that her physician was “aware” that prior authorization was needed.

Id., citing CMS Ex. 7, at 103. On January 23, 2014, Pearsall staff noted that Resident 1’s physician was expected “to send referral to see [orthopedic surgeon].” Id., citing CMS Ex. 7, at 104. As of January 24 and 25, 2014, that referral had not come; instead, the same notation about expecting the referral appeared for each date. Id., citing CMS Ex. 7, at 105-106.

Resident 1’s nephrologist evaluated Resident 1 again on January 28, 2014 and noted a follow-up with an orthopedic surgeon for her femur fracture was “pending”; a nurse at the dialysis center called an orthopedic surgeon’s office which declined to schedule an appointment because the “office does not accept [Resident 1’s] insurance.” Id., citing CMS Ex. 7, at 93.

On February 7, 2014, Resident 1 again complained of hip pain at the dialysis center. Id., citing CMS Ex. 7, at 10. A nursing note at the dialysis center stated that an appointment had been scheduled – apparently by center staff – for Resident 1 to see a different orthopedic surgeon. Id. That orthopedic surgeon’s office asked for the report from Resident 1’s January 11, 2014 x-ray, and dialysis center staff faxed the report to the surgeon’s office. Id., citing CMS Ex. 7, at 94. The surgeon’s office then requested “STAT” a more recent x-ray. Id. After making Pearsall aware of the appointment with the surgeon and his request for a new x-ray, dialysis center staff ordered the x-ray which was taken on February 7, 2014 and again showed a left femoral neck intertrochanteric fracture. Id. at 8-9, citing CMS Ex. 7, at 94, 21. Pearsall staff did “[n]o follow-up” with regard to this new x-ray until February 10, 2014, when staff faxed the x-ray report to the new orthopedic surgeon’s office. Id. at 9, citing CMS Ex. 7, at 10 (Pearsall incident report). The surgeon immediately ordered that Resident 1 be directly admitted to the hospital for treatment. Id., citing CMS Ex. 7 at 10, 94.

The ALJ Decision

The ALJ concluded that summary judgment for CMS was appropriate because the material facts, set forth above, were undisputed and supported a conclusion that Pearsall was not in substantial compliance with section 483.25 because its “staff did not take reasonable steps to provide Resident 1 timely treatment and care after an X-ray showed that she had an acute [hip fracture].” 3 ALJ Decision at 7. The ALJ determined that the documentary evidence, “consist[ing] of, among other things, Petitioner’s facility records, partial medical records for Resident 1, Petitioner’s investigation documents, and survey documents[,]” was sufficient to establish all the material facts. Id. at 6. The ALJ found that Pearsall’s citation to other evidence (medication administration records, facility job descriptions and facility policies) as showing that “Petitioner ‘reasonably assessed the necessary care and services’ for Resident 1” only raised “a legal question” which he was “able to decide based on undisputed facts.” Id., citing P. Br. at 6. The ALJ also concluded that Pearsall cited no evidentiary support for its assertion that it reasonably assessed Resident 1’s care and treatment needs following discovery of her fractured hip

and that the undisputed evidence of record did not support the assertion. The ALJ stated:

There are no documented assessments of Resident 1’s hip or pain levels by Petitioner’s nursing staff, there were no changes to Resident 1’s care plan between the time her hip fracture was first shown on an X-ray and the time she was finally admitted to the hospital, and there are no documented occasions where staff determined Resident 1’s comfort level.

Id. at 11. The ALJ accepted as true statements cited by Pearsall in which three employees who provided care to Resident 1 averred that she did not complain to them about pain. Id. at 6, 11. The ALJ found, however, that this evidence did not contradict the undisputed documented complaints of hip pain on which the surveyor relied. Id. The ALJ also found that whether Resident 1 complained of pain at all was ultimately Hereafter, we use the phrase “hip fracture” as a shorter way to refer to the acute intertrochanteric fracture of Resident 1’s left proximal femur.

immaterial since Pearsall did not dispute either that it knew Resident 1 had a hip fracture or that it failed to obtain the care and treatment needed to address the fracture for 30 days after discovering it. Id. at 9-11.

Standard of Review We review an ALJ’s grant of summary judgment de novo, construing the facts in the light most favorable to the petitioner and giving the petitioner the benefit of all reasonable inferences. See Livingston Care Ctr., DAB No. 1871, at 5 (2003), aff’d, Livingston Care Ctr. v. U.S. Dept. of Health & Human Servs., 388 F.3d 168, 172-73 (6th Cir. 2004).

Summary judgment is appropriate when there is no genuine dispute about a fact or facts material to the outcome of the case and the moving party is entitled to judgment as a matter of law. Id.; Celotex Corp. v Catrett, 477 U.S. 317, 322-25 (1986). The party moving for summary judgment (here, CMS) has the initial burden of demonstrating that there is no genuine issue of material fact for trial and that it is entitled to judgment as a matter of law. Celotex, 477 U.S. at 323. If the moving party carries that burden, the nonmoving party must “come forward with ‘specific facts showing that there is a genuine issue for trial.’” Matsushita Elec. Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting Rule 56(e) of the Federal Rules of Civil Procedure).

“To defeat an adequately supported summary judgment motion, the non-moving party may not rely on the denials in its pleadings or briefs, but must furnish evidence of a dispute concerning a material fact – a fact that, if proven, would affect the outcome of the case under governing law.” Senior Rehab. & Skilled Nursing Ctr., DAB No. 2300, at 3 (2010), aff’d, Senior Rehab. & Skilled Nursing Ctr. v. Health & Human Servs., 405 F.

App’x 820 (5th Cir. 2010). A party “must do more than show that there is ‘some metaphysical doubt as to the material facts.... Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial.’” Mission Hosp. Regional Med. Ctr., DAB No. 2459, at 5 (2012) (quoting Matsushita, 475 U.S. at 587), aff’d, Mission Hosp. Regional Med. Ctr. v. Sebelius, No.

SACV 12-01171 AG (MLGx), 2013 WL 7219511 (C.D. Cal. 2013). In examining the evidence to determine the appropriateness of summary judgment, an ALJ must draw all reasonable inferences in the light most favorable to the non-moving party. See Brightview Care Ctr., DAB No. 2132, at 2, 9 (2007); but see Cedar Lake Nursing Home, DAB No. 2344, at 7 (2010); Brightview at 10 (entry of summary judgment upheld where inferences and views of non-moving party are not reasonable). Drawing factual inferences in the light most favorable to the non-moving party does not require that an ALJ accept the non-moving party’s legal conclusions. Cedar Lake Nursing Home at 7.

Our standard of review on a disputed conclusion of law is whether the ALJ Decision is erroneous. See Guidelines – Appellate Review of Decisions of Administrative Law Judges Affecting a Provider’s Participation in the Medicare and Medicaid Programs at http://www.hhs.gov/dab/divisions/appellate/guidelines/prov.html.

Discussion

–  –  –



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