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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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CMS found Pearsall out of compliance with section 483.25, a regulation that provides the quality of care requirements for long-term care facilities participating in the Medicare

program. The lead-in language of the regulation provides as follows:

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

42 C.F.R. § 483.25. 4 The Board has explained that section 483.25, as the lead-in language signifies, “imposes on facilities an affirmative duty designed to achieve favorable outcomes to the highest practicable degree.” Windsor Health Care Ctr., DAB No. 1902, at 16-17 (2003), aff’d, Windsor Health Ctr. v. Leavitt, 127 F. App’x 843 (6th Cir. 2005). Facilities “must take ‘reasonable steps’ and ‘practicable measures to achieve that regulatory end.’” Golden Living Ctr. – Foley, DAB No. 2520, at 23 (2013), quoting Clermont Nursing & Convalescent Ctr., DAB No. 1923, at 21 (2004), aff’d, Clermont Nursing & Convalescent Ctr. v. Leavitt, 142 F. App’x 900 (6th Cir. 2005). The regulation “implicitly imposes on a facility the duty to provide care and services that, “at a minimum, meet accepted professional standards of quality ‘since the regulations elsewhere require that the services provided or arranged by the facility must meet such standards.’” Id., quoting Spring Meadows Health Care Ctr., DAB No. 1966, at 17 (2005). Compliance with the regulation also means that a facility must furnish the care and services set forth in its residents’ care plans, implement physician orders, monitor and document residents’ conditions and follow its own policies. See Life Care Ctr. of Bardstown, DAB No. 2479, at 22 (2012), aff’d, Life Care Ctr. of Bardstown v. U.S. Dept.

of Health & Human Servs., 535 F. App’x 468 (6th Cir. 2013).

In its request for review (RR), Pearsall does not dispute the legal requirements of section

483.25 as discussed above and in the ALJ Decision. See ALJ Decision at 9. Pearsall’s argument on appeal is that the ALJ improperly granted summary judgment because, Pearsall claims, it did raise disputes about facts material to concluding whether it was in substantial compliance with the regulation. RR at 7, 9-10. Pearsall cites no specific facts This lead-in language applies to section 483.25 generally and to the multiple requirements addressing specific areas of care identified in subsections of the regulation, such as the requirements, among others, for preserving a resident’s abilities in activities of daily living, preventing accidents, and preventing development of pressure sores. See 42 C.F.R. § 483.25(a)-(n).

that are material and disputed, and we find none based on our de novo review of the record. 5 Pearsall refers broadly to “the evidence presented in Pearsall’s Response [to CMS’s Motion for Summary Judgment].” RR at 7. However, Pearsall identifies no specific evidence relevant to the material facts that Pearsall staff did not timely implement the order from Resident 1’s physician to refer Resident 1 to an orthopedic surgeon, with the result that Resident 1 received no treatment for a known hip fracture for 30 days.

Pearsall points to absolutely no evidence capable of raising any dispute about these material facts. Instead, Pearsall sets forth what it characterizes as the ALJ’s findings that Pearsall violated section 483.25 by “not (1) assessing [Resident 1’s] hip pain (2) not timely making an appointment with an orthopedic surgeon pursuant to physician orders resulting [sic] and (3) assessing and intervening to prevent Resident 1 from having hip

pain.” RR at 9. Pearsall then states:

Pearsall identifies, relying on CMS’s submitted evidence, contested fact disputes on each of the three deficiencies and establishes the need for examination of witnesses, live testimony, exhibits and consideration of other relevant evidence through an evidentiary hearing. The survey findings and alleged deficiencies forming the basis of CMS’s Motion are contradicted by CMS’s own summary judgment evidence namely, the 110 pages of contemporaneously created care plans and physician medical records and the 60 page Provider Investigation Report and its supporting documentation. This evidence contradicts, or at the very least disputes, the survey findings made by CMS and the opinions of CMS declarants [the surveyor and a CMS registered nurse consultant].

RR at 9-10 (footnotes omitted).

Merely referring to the record without identifying any specific evidence in that record to support its assertion is not sufficient to raise a factual dispute precluding summary judgment. Moreover, we have conducted a de novo review of the record and find absolutely no evidence in either CMS’s ten exhibits or Pearsall’s two exhibits that even tends to undercut the material facts discussed above.

Pearsall also asserts that the ALJ based his decision on findings about failures of assessment or intervention, issues which Pearsall claims are in dispute. This is a Pearsall’s reliance on Kingsville Nursing and Rehabilitation Center, DAB No. 2234 (2009) and Madison Health Care, Inc., DAB No. 1927 (2004) is misplaced because in each of those cases, unlike this one, the Board concluded that there were disputes of material fact that precluded summary judgment. We discuss Madison Health Care again later in our decision when we address Pearsall’s arguments about alleged material disputes of fact regarding the reasonableness of the CMP amount.

misstatement of the basis for the ALJ’s decision. The ALJ did discuss the evidence of record regarding Resident 1’s pain and any actions Pearsall took with regard to that pain.

He found undisputed evidence documenting Pearsall’s complaints of hip pain even if she did not make such complaints to the three Pearsall staff members whose statements Pearsall cited as evidence of no complaints, statements the ALJ accepted as true for purposes of summary judgment. ALJ Decision at 6, 11. The ALJ also noted that none of the staff member statements Pearsall relied on stated that these staff members had actually assessed Resident 1 for pain. Id. at 11. The ALJ also found “no documented assessments of Resident 1’s hip or pain levels by Petitioner’s nursing staff,... no changes to [her] 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... no documented occasions where staff determined Resident 1’s comfort level.” Id. However, contrary to Pearsall’s assertion, the ALJ did not base his finding of noncompliance with section 483.25 on a failure to assess Resident 1’s hip pain or to intervene to prevent such pain. The ALJ concluded it was not material whether Resident 1 complained of hip pain to anyone because regardless of whether the resident complained of hip pain she had a known hip

fracture for which Pearsall staff did not seek timely treatment:

It is undisputed that Petitioner’s staff knew that Resident 1 had a fractured hip, and her complaints of pain (or lack thereof) should have made no difference in whether Petitioner sought to obtain further treatment for her fracture. Even if she were not in pain (or could not verbalize her pain), staff could not ignore or unreasonably delay treatment for a known acute fracture and still maintain the resident’s highest overall well-being.


We find no error in the ALJ’s conclusion that Pearsall violated section 483.25 by not timely seeking treatment for Resident 1’s hip fracture regardless of whether Resident 1 complained of pain to anyone or whether Pearsall staff did any assessment of her pain.

Whether the resident complained of pain or not is immaterial to the undisputed facts that she had a hip fracture and that Pearsall staff knew of the hip fracture as of January 11, 2014; yet, Pearsall did not set up an appointment with an orthopedic surgeon, and the resident was not treated by an orthopedic surgeon for 30 days even though her treating physician had ordered such treatment “the sooner the better.” CMS Exs. 3, at 55; CMS Ex. 7, at 86, 87.

Pearsall argued before the ALJ that its staff attempted to set up an appointment with an orthopedic surgeon but the surgeon “‘refused to see Resident 1 because he did not accept her insurance.’” ALJ Decision at 11, citing P. Br. at 13. The ALJ had noted earlier in his decision that the record showed it “ultimately was Resident 1’s nephrologist and the dialysis center nursing staff, not Petitioner, who located an orthopedic surgeon willing to treat Resident 1 and scheduled an appointment for Resident 1 to see that surgeon.” Id. at

10. Nonetheless, for purposes of summary judgment, the ALJ inferred that Pearsall’s staff had attempted to obtain an appointment with an orthopedic surgeon but was stymied by that surgeon’s refusal to accept the resident’s insurance. Id. at 11. The ALJ, however,

concluded that was not enough to establish substantial compliance:

[I]t is unreasonable to claim that Petitioner did not have to follow up or arrange for any further care for Resident 1’s acute hip fracture simply because one surgeon refused to operate based on Resident 1’s insurance.

Petitioner had an obligation to provide the necessary care and services to Resident 1 so that she could maintain her highest practicable well-being, which most certainly included not suffering from a known hip fracture for 30 days without treatment. Indeed, the dialysis facility that treated Resident 1 did not have the same difficulty consulting with and arranging for treatment from an orthopedic surgeon. See CMS Ex. 7, at 93-94. By not ensuring that Resident 1 received the care and services necessary to treat her hip fracture, Petitioner did not substantially comply with 42 C.F.R.

§ 483.25.

Id. at 11-12 (footnote omitted). Pearsall does not challenge this conclusion on appeal, and we find no error in the ALJ’s conclusion that merely attempting to arrange an appointment and then, when the surgeon contacted refused to see the resident, doing nothing more for the resident’s acute fracture for a significant period of time did not amount to substantial compliance with section 483.25. Although Pearsall claims that the delay in obtaining prior authorization was due to circumstances beyond its control, RR at 11, it offers no evidence to support that claim and, in particular, no evidence that it made efforts either to obtain the prior authorization or to find a doctor who would not require prior authorization.

B. The ALJ did not err in declining to review CMS’s immediate jeopardy determination or in determining that $8,750 is a reasonable amount for the per-instance CMP.

CMS determined that Pearsall’s noncompliance with section 483.25 was at a level posing immediate jeopardy to Resident 1. Immediate jeopardy is “a situation in which the provider’s noncompliance with one or more requirements of participation has caused, or is likely to cause, serious injury, harm, impairment, or death to a resident.” 42 C.F.R.

§ 488.301. CMS determined that Pearsall’s noncompliance with section 483.25 posed immediate jeopardy for Resident 1 when she received no treatment for an acute hip fracture for 30 days, and the ALJ correctly stated that this determination was not subject to review. ALJ Decision at 3-4. As the ALJ noted, CMS’s immediate jeopardy determination is subject to review only if a successful challenge would affect the range of the CMP amount or CMS has made a finding of substandard quality of care that caused the facility to lose its approval to offer or conduct nurse aide training. 42 C.F.R.

§§ 498.3(b)(14), 498.

3(d)(10). In this case, a successful challenge to the immediate jeopardy could not affect the CMP range because CMS imposed a per-instance CMP which has a single range ($1,000-$10,000) regardless of the level of noncompliance. 42 C.F.R. §488.438(a)(2); compare 42 C.F.R. § 488.438(a)(1) (providing for per-day CMPs in an upper range ($3,050-$10,000 per day) and lower range ($50-$3,000 per day) depending on the level of noncompliance). The Board has long held that because a perinstance CMP has a single range, a successful challenge to a per-instance CMP could not affect the range of the CMP. See, e.g., NMS Healthcare of Hagerstown, DAB No. 2603, at 7 (2014). In addition, although Pearsall’s violation of section 483.25 at the immediate jeopardy level met the definition of substandard quality of care, see 42 C.F.R. § 488.301, the ALJ correctly concluded that he could not review the immediate jeopardy for that reason because even if Pearsall had a nurse aide training program (and the ALJ found no evidence it did), the amount of the CMP ($8,750) here is more than the $5,000 amount that automatically results in loss of a nurse aide training program. ALJ Decision at 3-4, citing 42 U.S.C. § 1395i-3(f)(2)(B); 42 C.F.R. § 483.151(b)(2)(iv); White Sulphur Springs Ctr., DAB No. 2520, at 17 (2013).

On appeal, Pearsall acknowledges that the immediate jeopardy determination made by CMS here is not subject to review. RR at 13 n.40. Pearsall nonetheless presents argument opposing the immediate jeopardy determination “for purposes of addressing the excessive nature of the CMP.” Id. Pearsall is not entitled to challenge the immediate jeopardy determination for that purpose or any other purpose. Since CMS’s immediate jeopardy determination was not subject to review, as a matter of law it was final and the ALJ lawfully factored that determination of scope and severity into his determination that the $8,750 CMP amount was reasonable. White Sulphur Springs Ctr. at 17-18.

Pearsall argues that $8,750 is an unreasonable and excessive amount for the per-instance CMP under the factors the regulations require CMS to evaluate in determining a CMP amount. RR at 14-20. These factors require CMS to consider the facility’s compliance history, financial condition and culpability 6 as well as the seriousness of the deficiencies, that is, the scope and severity of the noncompliance. 42 C.F.R. §§ 488.438(f), 488.404 (incorporated by section 488.438(f)(3)). An ALJ, in turn, must review the reasonableness of the CMP de novo based on the facts and evidence of record. Emerald Oaks, DAB No.

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