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Department of Health and Human Services DEPARTMENTAL APPEALS BOARD Civil Remedies Division |
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| IN THE CASE OF | |
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Morrow Memorial Home, |
DATE: April 04, 2006 |
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Centers for Medicare & Medicaid Services.
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Docket No.C-03-576 Decision No. CR1433 |
| DECISION | |
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DECISION For the reasons stated below, I conclude that Morrow Memorial Home (Petitioner or Facility) was not in substantial compliance with Medicare conditions of participation governing long-term care facilities at an immediate jeopardy level from March 7, 2003 through April 2, 2003. Accordingly, I sustain the determination of the Centers for Medicare & Medicaid Services (CMS) to impose a per instance civil money penalty (CMP) in the amount of $7500. I. Background
Petitioner is a skilled long-term nursing facility located in Sparta, Wisconsin. The Wisconsin Department of Health and Family Services (State agency) conducted a complaint survey of Petitioner that was completed on April 3, 2003. The State agency cited Petitioner for one deficiency at the immediate jeopardy level for failing to comply with 42 C.F.R. � 483.25 (Tag F309). The State agency conducted a revisit survey on June 2, 2003, and found Petitioner to be back in compliance on June 1, 2003. CMS imposed a per instance CMP of $7500. On July 17, 2003, Petitioner timely requested a hearing. On September 23, 2003, Petitioner advised that it had agreed to waive its right to an in-person hearing and the parties agreed to submit the case on cross-motions for summary judgment. Thereafter, a briefing schedule was established and on November 24, 2003, CMS submitted its Motion for Summary Judgment, Memorandum of Law in Support of Respondent's Motion for Summary Affirmance, three affidavits, and 26 proposed exhibits (CMS Exs. 1 - 26). (1) On the same date, Petitioner filed Morrow Memorial Home's Memorandum in Support of its Motion for Summary Judgment. Additionally, Petitioner submitted six affidavits and two proposed exhibits (Pet. A - B). (2) On January 8, 2004, CMS submitted its Reply Brief in Support of Respondent's Motion for Summary Affirmance. Petitioner filed Morrow Memorial Home's Reply Memorandum in Support of its Motion for Summary Judgment and in Opposition to CMS's Motion for Summary Affirmance. Petitioner filed four additional affidavits. (3) On January 16, 2004, CMS filed a Motion for Leave to File Response to Petitioner's Memorandum in Opposition to Motion for Summary Judgment. On January 22, 2004, Petitioner filed a sur-reply. I accepted both parties' sur-replies into the record. All proposed exhibits and affidavits are admitted into the record without objection.
Petitioner is considered a long-term care facility under the Social Security Act (Act) and regulations promulgated by the Secretary of Health and Human Services (Secretary). The statutory and regulatory requirements for participation by a long-term care facility are found at sections 1819 and 1919 of the Act and at 42 C.F.R. Part 483. Sections 1819 and 1919 of the Act invest the Secretary with authority to impose CMPs against a long-term care facility for failure to comply substantially with federal participation requirements. Pursuant to the Act, the Secretary has delegated CMS and the states the authority to impose remedies against a long-term care facility that is not complying substantially with federal participation requirements. 42 C.F.R. Part 488 provides that facilities that participate in Medicare may be surveyed on behalf of CMS by state survey agencies in order to determine whether the facilities are complying with federal participation requirements. 42 C.F.R. �� 488.10 - 488.28. The regulations contain special survey conditions for long-term facilities at 42 C.F.R. �� 488.300 - 488.335. Under Part 488, a state or CMS may impose a per instance or per day CMP against a long-term care facility when a state survey agency concludes that the facility is not complying substantially with federal participation requirements. The regulations define the term "substantial compliance" to mean "a level of compliance with the requirements of participation such that any identified deficiencies pose no greater risk to resident health or safety than the potential for causing minimal harm." 42 C.F.R. � 488.301. The regulations define "immediate jeopardy" to mean "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. The regulation at 42 C.F.R. � 483.25 provides that "[e]ach 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." The Act and regulations make a hearing before an administrative law judge (ALJ) available to a long-term care facility against whom CMS has determined to impose a CMP. Act, section 1128A(c)(2); 42 C.F.R. �� 488.408(g), 498.3(b)(13). The hearing before an ALJ is a de novo proceeding. Anesthesiologists Affiliated, et al, DAB CR65 (1990), aff'd, 941 F2d. 678 (8th Cir. 1991). When a penalty is imposed and appealed, CMS must make a prima facie case that the facility has failed to comply substantially with federal participation requirements. To prevail, a long-term care facility must then overcome CMS's showing by a preponderance of the evidence. Hillman Rehabilitation Center, DAB No. 1611 (1997), aff'd, Hillman Rehabilitation Center v. HHS, No. 98-3789 (GEB) (D.N.J., slip op. May 13, 1999); Batavia Nursing and Convelescent Center, DAB No. 1904 (2004). Under Hillman and Batavia, CMS bears the burden of coming forward with evidence sufficient to establish a prima facie case that Petitioner failed to comply with participation requirements. Once CMS has established a prima facie case of noncompliance, Petitioner has the burden of proving, by a preponderance of the evidence, that it complied substantially with participation requirements. Hillman, at 3-8; Batavia, at 8-10. CMS's determination as to the level of noncompliance must be upheld unless it is clearly erroneous. 42 C.F.R. � 498.60(c)(2). II. Issues The issues in this case are: whether CMS had a factual basis to impose a remedy against Petitioner for failing to comply substantially with federal requirements; and, if the CMP is authorized, whether the amount imposed is reasonable; also, whether CMS's determination of immediate jeopardy for the noncompliance was clearly erroneous. III. Findings of fact and conclusions of law I have examined closely all of the evidence of record to determine whether Petitioner was complying with participation requirements and to decide whether a CMP may be imposed against Petitioner. I make findings of fact and conclusions of law (Findings) to support my decision in this case. I set forth each of my ultimate Findings below as a separate heading. I discuss each Finding in detail, including the results of the survey, whether the results are supported by the evidence of record, and whether Petitioner has met its burden to overcome the allegations the surveyors made. 42 C.F.R. � 483.25 requires that the facility provide the necessary care and services so that each resident can attain or maintain the highest practicable physical, mental, and psychosocial well-being, in accordance with the resident's comprehensive assessment and plan of care. I find that, with respect to one resident referred to by CMS for this deficiency, Petitioner failed to provide necessary services to ensure the resident's highest practicable physical well-being. I also find that CMS's determination that Petitioner's failure to provide necessary services resulted in immediate jeopardy to Petitioner's residents is not clearly erroneous.
1. The resident at issue, referred to as R5, was an 83-year-old woman who was admitted to the Facility on July 24, 2002. CMS Ex. 15, at 1. Her diagnoses included coronary artery disease having already had a myocardial infarction with multiple artery blockages, chronic renal failure, and diabetes mellitus. CMS Ex. 15, at 38; Lehner Aff., at � 4. R5 had no memory problems or cognitive impairments. CMS Ex. 15, at 3. 2. Petitioner had a nursing policy regarding "Emergency Procedures/Cardio-Pulmonary Resuscitation, which contained the following paragraph:
CMS Ex. 12. 3. Prior to admission, R5 was given Petitioner's form entitled "Information regarding CPR for Resident and Family." CMS Ex. 13. The form contained the following statements:
CMS Ex. 13 (emphasis in original). After being given this information, R5, on July 24, 2002, signed the form and elected to have CPR after a witnessed arrest. She circled the word "Yes" under the statement, "I do want to have CPR initiated if my heart should stop." Her physician signed the form on July 26, 2002. CMS Ex. 15, at 16. R5's physician also signed a form entitled "Physician Orders for Life-Sustaining Treatment" containing the statement "Treatment options when the patient/resident has no pulse and is not breathing" with an "X" marked in the box for "Resuscitate." Id. 4. R5 was hospitalized in July 2002 for chest pain and twice in December 2002 for chest pain and shortness of breath. Neither R5 nor her physician changed her CPR status after her hospitalizations. CMS Ex. 15, at 20. R5's code status continued to express her desire to have CPR in case of a witnessed arrest. 5. On March 7, 2003, R5 collapsed in her room at about 12:45 p.m. after eating her lunch. A social worker at the Facility, Jessica Schaitel, was just entering the doorway of R5's room at the time of R5's collapse. Ms. Schaitel witnessed R5's collapse. She described R5's face as blue. Ms. Schaitel put on R5's call light and went for help. Schaitel Aff., at �� 3 and 4. Ms. Schaitel neither called emergency services ("911") nor directed anyone else to do so. 6. Ms. Schaitel was on her way to the nearest nurses' station when she met Lois Luther, a CNA. Schaitel, at � 5. Ms. Schaitel told Ms. Luther what she had seen and that R5 needed help immediately. Id. CNA Luther told Ms. Schaitel to find a nurse. CNA Luther went to R5's room. Id. 7. After several minutes, Ms. Schaitel located a nurse, Alyce Johnson, R.N., in another resident's room. Because Ms. Schaitel and Nurse Johnson passed the nurses' station on their way back to R5's room, Nurse Johnson stopped at the nurses' station to take the device called the portable automatic sphygmomanometer (or blood pressure machine) to R5's room. Johnson Aff. II, at � 1. Nurse Johnson did not check R5's CPR status; neither did she call "911"or direct anyone else to do so. Nurse Johnson and Ms. Schaitel then went to R5's room. Ms. Schaitel estimated that four to five minutes elapsed from the time she left R5's room until she and Nurse Johnson returned to R5's room. Schaitel Aff., at �� 7 and 8. 8. Nurse Johnson checked R5's blood pressure, pulse, oxygen saturation, temperature, and eye dilation, and noted that vomit and blood were coming out of R5's mouth. Johnson Aff. I, at � 5. Nurse Johnson found that R5 had no pulse, no blood pressure, her oxygen saturation was zero, and she had no heartbeat. She also determined that R5's eyes were fully dilated with no pupil reaction and R5's facial color was black. Id. at � 7. 9. Ms. Schaitel does not recall telling Nurse Johnson that she had actually witnessed R5 collapse until about one and one-half to two minutes after the two arrived at R5's room. Schaitel Aff., at � 10. Nurse Johnson did not perform a finger sweep of R5's mouth at that time. CMS Ex. 24, at 63. Even though she now knew that Ms. Schaitel had seen R5 collapse, Nurse Johnson did not request R5's CPR status, did not call "911," and did not initiate CPR. Instead, Ms. Schaitel was told to find Nurse Jerome who normally attended the residents in R5's wing of the Facility. Schaitel Aff., at � 11. Nurse Jerome returned with Ms. Schaitel to R5's room about ten minutes after R5's arrest. Id.; CMS Ex. 9, at 4; CMS Ex. 24, at 44. By the time they returned, the vomit had been cleared from R5's mouth. Schaitel Aff., at � 11. Then several people now in R5's room rolled R5 onto her back and put a pillow under her head. CMS Ex. 24, at 67. 10. Nurse Jerome was told that CPR had not been attempted and an ambulance had not been called. The matter of R5's code status was first raised after Nurse Jerome arrived in R5's room. Johnson Aff. I at � 10; Schaitel Aff., at � 11; P. Br. at 4. (4) Nurse Jerome began a finger sweep of R5's mouth in preparation for CPR. Before Nurse Jerome began CPR, Barb Kasmiski, the Facility's Director of Nursing (DON), entered the room and told Nurse Jerome not to perform CPR because too much time had passed. Id. DON Kasmiski had spoken to Dr. Lehner, R5's physician, and he had said that it was too late to do CPR if 15 minutes had passed since R5 had collapsed. CMS Ex. 24, at 34. 11. DON Kasmiski began to investigate the incident after the coroner was notified about R5's death.
CMS's contention is that Petitioner failed to perform CPR after the cardiac arrest of a resident who had requested CPR. CMS Ex. 4, at 1. CMS contends that Petitioner failed to provide a necessary service so that R5 could "attain or maintain the highest practicable physical, mental, and psychosocial well-being . . . ." in that Petitioner followed neither standard CPR procedures nor CPR procedures as set forth in Petitioner's policy. 42 C.F.R. � 483.25. CMS contends that Nurse Johnson did not follow correct CPR and nursing procedures because she did not ask whether R5's collapse was witnessed; she did not check R5's medical chart to determine her CPR status, even after she learned that R5's collapse was witnessed; she did not do a finger sweep of R5's mouth to clear her airway; and, she decided, based on her independent judgment, not to perform CPR because she felt it would be unsuccessful. CMS Br. at 9. CMS argues that immediate jeopardy existed at Petitioner's facility because the staff was confused about whether a nurse should do CPR when an arrest was witnessed by someone other than the nurse. CMS also notes the staff's confusion about where Petitioner's CPR equipment was located. CMS Br. at 9.
Petitioner argues that Nurse Johnson exercised sound judgment to not administer CPR to R5 based on an assessment of the resident's condition and other relevant circumstances. According to Petitioner, her judgment represents the quality of care required under 42 C.F.R. � 483.25. P. Br. at 5. Petitioner contends that Nurse Johnson acted within the scope of her license, and her actions were consistent with the American Heart Association (AHA) guidelines for basic life support. According to Petitioner, in the circumstances surrounding R5's death, CPR was not required; that is, CPR is not required when it would be futile. P. R. Br. at 2 - 3. Petitioner argues that the first opportunity for a registered nurse to think about CPR for R5 was about seven minutes after R5's collapse when Ms. Schaitel advised Nurse Johnson that she had witnessed R5's collapse. It would have taken 45 seconds for Nurse Johnson to read R5's chart and learn she wanted CPR. P. R. Br. at 3. Petitioner also posits that a finger sweep of R5's mouth would not have cleared her airway. Petitioner asserts that it did not have the tools to deep suction R5's airway and that vomitus in R5's lower airway was a barrier to effective CPR. Id., at 6. Petitioner also argues that CPR need not be performed when the victim is obviously dead. P. R. Br. at 4. Petitioner also contends that CMS's Statement of Deficiencies (SOD) does not allege any of CMS's current claims that Nurse Johnson failed to follow correct CPR procedures, and that Petitioner's staff was confused about what constituted a witnessed arrest, and therefore these claims are, immaterial. Nonetheless, Petitioner responds that calling "911" under the circumstances would not have resulted in the required suctioning, the time taken for ambulance transport to the hospital would have resulted in too much time to allow R5 to survive, and the application of acute life-saving methods on R5 would have been an inappropriate and unethical gesture. P. Br. at 13; P. R. Br. at 10. Petitioner argues that it has since changed its policy to incorporate a nurse's judgment in any decision to provide CPR. Because that policy has been accepted by state authorities, Nurse Johnson's actions on March 7, 2003, should also be approved by authorities as representative of approved policy on CPR. (5)
Upon DON Kasmiski's investigation of R5's death, at the coroner's request, Nurse Johnson said she did not consider R5's arrest to have been a witnessed arrest. Petitioner argues that because Petitioner had a nursing policy regarding emergency procedures and CPR for those residents who had requested resuscitation following a witnessed arrest, the CPR-certified nurse on the scene would have had to actually witness the arrest to trigger the policy because it was a nursing policy. Edwards Aff., at �� 16, 18. This particular view, apparently shared by several of Petitioner's staff nurses, makes no sense. The nursing policy - stated in slightly different words - was contained in the information given the residents upon admission to the Facility. Moreover, the purpose behind limiting CPR to witnessed arrests is because the likelihood of survival is much better when the arrest has been witnessed. Coll Aff., at � 10. When a cardiac arrest is witnessed, the potential CPR provider knows the elapsed time since the arrest and only a short window of time exists after collapse when CPR can be effective. Id. It should make no difference whether the CPR provider actually saw the cardiac arrest or was told about the arrest within the acceptable time period for performing CPR. Following the incident, Petitioner's Medical Director, Dr. Michael T. Pace, told State agency surveyors his assumption that the referral to a witnessed arrest in Petitioner's policies referred to cardiopulmonary arrests witnessed by anyone, not just the nurse who might perform the CPR. (6) CMS Ex. 4, at 9-10; CMS Ex. 21, at 7.
Nurse Johnson, certified in CPR, arrived at R5's side within four to six minutes after R5's arrest. Although the potential for R5's survival was low, CPR could have been performed within that time frame until more advanced life-saving in the form of emergency personnel and equipment became available. Michael T. Pace, M.D., Petitioner's Medical Director, submitted an affidavit (Pace Aff.). Dr. Pace opined that survival of cardiac arrest requires adequate oxygenation and circulation followed by advanced intervention including defibrillation within eight - ten minutes of arrest. According to Dr. Pace, the local ambulance service would not have arrived until five - seven minutes had passed and the necessary intervention of endotracheal intubation and suction could not have been provided by the local ambulance service, raising the earliest possibility of treatment to the more than ten minutes it would take to transport R5 to the hospital. Dr. Pace also opined that CPR was not appropriate because R5 had aspirated her gastric contents immediately, blocking her upper and lower airway. Thus, the crucial oxygenation phase of CPR intervention was impaired by vomitus. Pace Aff., at � 6. Nonetheless, if 911 had been called early on and CPR initiated early, advanced life-saving procedures could have been initiated within acceptable time frames. One troublesome aspect of Dr. Pace's time-line is that the time-line could have been shortened considerably had Petitioner's staff determined sooner that R5 had a witnessed arrest and that she had requested CPR in case of a witnessed arrest.
One of Petitioner's main arguments in this case is that Nurse Johnson appropriately determined when she first evaluated R5 after her collapse that CPR would have been futile. Petitioner submitted two affidavits from Nurse Johnson. (7) In her first affidavit, Nurse Johnson explained that she has been an R.N. since 1959 and certified to provide CPR since 1968. She stated in her affidavit that:
Johnson Aff. I, at � 6. In his affidavit, Dr. Pace reviewed the records and concluded that Nurse Johnson assessed R5's situation correctly and correctly determined not to initiate CPR in "this profoundly hypoxic patient with an airway obstructed by vomitus." Pace Aff., at � 4. Petitioner also submitted the affidavit of Joseph Lehner, D.O., R5's attending physician. (Lehner Aff.) Dr. Lehner also expressed familiarity with AHA guidelines for CPR. Lehner Aff., at � 2. He opined that artificial ventilation in a patient with marked airway aspirate who is profoundly hypoxic will not only be ineffective, but it will also make the airway obstruction worse by pushing the aspirate farther down the respiratory system. Id., at � 6. CPR on R5, and the addition of advanced life-saving from the ambulance service and/or the hospital would have been harmful with no likelihood of success. Id., at � 7. Had R5 been resuscitated, she would have likely been in a vegetative state. Id., at � 8. I give Dr. Lehner's and Dr. Pace's affidavits less weight, however, because although both expressed their familiarity with AHA Guidelines, my review of the Guidelines, as discussed below, does not entirely support their views. CMS submitted the affidavit of Patrick P. Coll, M.D. Dr. Coll has experience as a Medical Director of long term care facilities and has worked with professional groups on end-of-life issues. Coll Aff., at �� 2-7; CMS Ex. 6. Dr. Coll offered that it is not uncommon for a person in cardiac or pulmonary arrest to vomit. If the person has vomited, there is an increased risk of aspiration. However, the fact that the person has vomited does not preclude CPR. A rescuer must perform a "tongue-jaw lift" and "finger sweep" to clear the airway of obstructions; then the rescuer should proceed immediately with the other standard components of CPR. Coll. Aff., at � 13. When the rescuer knows that the victim stopped breathing only five to six minutes prior to the attempted rescue, it is not possible for the rescuer to determine whether CPR will be successful without attempting CPR. Id., at �� 15, 18. Dr. Coll also commented on the finding that R5's skin facial color was dusky, blue, or black. Dr. Coll said these facial colors indicate that oxygenated blood is not flowing to the victim's skin. It does not necessarily mean that the victim has a profound airway obstruction or that CPR will not be effective or that CPR should not be attempted. Rather, R5's skin color indicated that CPR should have been initiated immediately because R5 would surely die without CPR. Coll Aff., at � 17. Moreover, the administration of CPR assumes signs of clinical death. Petitioner submitted some portions of the AHA's "Guidelines 2000 for Cardiopulmonary Resuscitation and Emergency Cardiovascular Care" (Guidelines). The Guidelines state that one goal unique to CPR is the reversal of clinical death even though it is an outcome achieved in only a minority of patients. P. Ex. A, at I-12. The Guidelines do contain, as relied upon by Petitioner, an explanation of the doctrine of futility in declining to provide CPR. Id., at I-13,14. For in-hospital situations, the Guidelines discuss the question of when a rate of survival to hospital discharge is so low that resuscitation should not be offered to a patient who requests it. It goes on to say that "[i]deally the initial decision about these very difficult questions should not be made during cardiac arrest . . . physicians may be inaccurate in predicting the outcome of resuscitation from cardiac arrest, and individual bias may be of concern." The Guidelines go on to state, and Petitioner relies on the statement, that:
Id. The Guidelines go on to note, however, that scientific evaluation has shown that there are no clear criteria to predict the futility of CPR accurately. Therefore, it is recommended that all patients in cardiac arrest receive resuscitation unless:
Id. The Guidelines further state that, in out-of-hospital situations, such as nursing homes, healthcare providers are to provide basic life support and call for advanced cardiovascular life support as part of their professional duty to respond. The exceptions are:
Id., at I-16, I-18. Interestingly, the Guidelines state that "[n]either citizens nor professionals should make a judgment about the present or future quality of life of a cardiac arrest victim on the basis of current or anticipated neurological status. Such 'snap' judgments are often inaccurate." Id., at I-16.
Arthur R. Derse, M.D., a Wisconsin physician who is board certified in Emergency Medicine, and a professor of Bioethics and president-elect of the American Society for Bioethics and Humanities, submitted two affidavits for Petitioner. (Derse Affs. I and II). He reviewed the affidavits of Dr. Pace, Nurse Johnson, and Ms. Schaitel, and his review focused on whether Nurse Johnson provided medically and ethically appropriate care by not initiating CPR on R5. Derse Aff. I, at � 3. He states that a nurse can make a judgment as to whether initiation of CPR is medically and ethically appropriate, including the ability to conclude that CPR would be ineffective. Id, at � 5. He noted that even elderly patients without heart disease who experience cardiac arrest in nursing homes and have immediate intervention with CPR have poor outcomes. He adds that any CPR for R5 would have been ineffective and there is no ethical obligation on the part of practitioners to offer treatments that they determine would be ineffective, even if the patient had indicated the desire for the treatment. According to Dr. Derse, nurses routinely make decisions to begin - or not to begin - CPR based on clinical judgment and patient assessment. Dr. Derse also noted the AHA's Guidelines for CPR and said that the guidelines provide an exception to initiating CPR in patients for whom such treatments would be ineffective. Id., at � 5. Dr. Derse's second affidavit adds his opinion that failure to sweep R5's mouth would have made no difference in the outcome in R5's case. Derse Aff. II, at � 5. My obligation is not to determine whether Nurse Johnson's actions were ethical nor is it my duty to determine whether R5 would have survived had she received CPR. Rather, I must determine whether Petitioner was in substantial compliance with 42 C.F.R. � 483.25 (Tag F309). I must determine, based on the evidence presented, whether R5 received from Petitioner the necessary care and services to attain or maintain her highest practicable physical, mental, and psychosocial well-being, in accordance with her comprehensive assessment and plan of care. 42 C.F.R. � 483.25. Whether a necessary service has been provided can be determined by looking at the patient's care plan, or the facility's policies, or the standards of nursing care. An appellate panel of the Departmental Appeals Board has found that not providing necessary care and services can depend on more than a facility's policy. Meeting professional standards of quality defines the minimum services that must be provided. Spring Meadows Health Care Center, DAB No. 1966 (2005).
I find that, in essence, performing CPR on R5 if she had a witnessed cardiopulmonary arrest was part of her care plan. Upon admission to Petitioner's facility, R5 requested to have CPR in case of a cardiopulmonary arrest, after being given notice of the disadvantages of CPR. Her request was signed and her physician signed a statement affirming R5's request. Her physician's statement was included in R5's records, and therefore, became part of her care plan. Moreover, Petitioner's policy was to provide CPR for witnessed arrests if the resident requested it. R5's arrest was witnessed. Petitioner did not follow its own policy. With respect to whether Petitioner's actions were in accord with standards of care, CMS submitted the affidavits of the State agency surveyors: Karen Langland, R.N., and Robin Edwards, R.N. Surveyor Langland stated that standard nursing practice in a nursing facility is that if anyone in a nursing facility witnesses a cardiac or respiratory arrest, the facility should have a system in place whereby all staff would immediately be aware of the victim's elected code status. If the victim has previously requested CPR, CPR should be initiated, "911" should be called, and CPR should continue until a physician tells the staff to stop or the paramedics arrive at the scene. Langland Aff., at �19. Surveyor Langland further opined that it was a violation of standard nursing practice when Nurse Johnson decided not to perform CPR because she felt it would be futile after arriving in R5's room within five - six minutes of R5's collapse. This is because it is not possible for a nurse to determine that CPR would be unsuccessful by examining a person who had collapsed only five - six minutes previously. Further, according to Nurse Langland, it would be a violation of standard nursing practice to withhold CPR because of a risk that the victim would develop pneumonia. Id., at �� 22, 23. Surveyor Edwards opined that Nurse Johnson failed to follow standard nursing practice because she did not check R5's chart to determine her code status, and thus, did not perform CPR within the window of time when it could have been successful. Edwards Aff., at � 23. Further, according to Surveyor Edwards, a nurse is not qualified to make his/her own independent decision as to whether CPR should be performed when encountering a victim whose collapse was witnessed and the victim has no pulse or breath within fifteen minutes of the collapse, regardless of whether or not the nurse believes CPR would likely be unsuccessful. Id., at � 26. On the other hand, Georgina Dennik-Champion, a registered nurse with a master's degree and Executive Director of the Wisconsin Nurses Association, submitted an affidavit for Petitioner (Dennik-Champion Aff.). Ms. Dennik-Champion testified that she was familiar with the facts of the case "including the actions of Nurse Alyce Johnson who concluded, based on a physical assessment of [R5], that she was dead and based on that assessment concluded that cardiopulmonary resuscitation was inappropriate." Dannik-Champion Aff., at � 6. She goes on to state that "it was both appropriate for Alyce Johnson to make the clinical judgment that [R5] was dead and to conclude that under these circumstances it was inappropriate to perform cardiopulmonary resuscitation even though R5 had previously expressed a desire to receive cardiopulmonary resuscitation." Id., at � 7. She concluded by stating that it is common practice for nurses to determine whether an individual is dead and that such determinations are within the scope of nursing practice. Id., at � 8. I find, however, that while it may be common practice for a nurse to determine that a person is irreversibly dead, the nurse must consider other factors besides skin color, absence of respirations and pulse, and dilated pupils, particularly if the person has collapsed only minutes previously. Coll Aff., at �� 17, 18. CMS's witness, Dr. Coll, declared that:
Coll Aff., at � 12. Dr. Coll summarized his view by stating that Petitioner's failure to initiate CPR on R5 did not follow the standard of care because:
Coll. Aff., at � 19. I concede it is unlikely that R5 would have survived in any event, but Dr. Coll's view is the most persuasive. R5 had no chance of survival without CPR. Failure to perform CPR on R5 after her cardiac arrest equates with failure to provide her with a necessary service within the meaning of 42 C.F.R. � 483.25.
In a situation when a per instance, rather than a per day, CMP has been imposed, the ALJ cannot consider CMS's assessment that noncompliance resulted in immediate jeopardy. However, when a finding of substandard quality of care results in the facility's loss of its nurse aide training program, the ALJ will consider the issue of immediate jeopardy. 42 C.F.R. � 498.3(b)(14)(ii). An allegation of immediate jeopardy is an allegation of substandard quality of care as defined in 42 C.F.R. � 488.301, and CMS concedes that the immediate jeopardy will result in the loss of Petitioner's nurse aide training program. CMS Br. at 9. CMS maintains that immediate jeopardy existed at Petitioner's facility due to the staff's confusion about whether nurses should do CPR when an arrest was witnessed by someone who was not a nurse. Id. Petitioner responds that CMS's current claims that Nurse Johnson failed to follow CPR procedures because she did not ask whether R5's collapse was witnessed and failed to look for R5's code status, or do a finger sweep, and that the staff was confused about Petitioner's CPR policy are all claims that do not appear in the SOD and are, therefore, immaterial. Petitioner's argument is unpersuasive because the SOD does contain allegations that Nurse Johnson did not follow Petitioner's policy and did not check R5's code status. CMS Ex. 4, at 2. Furthermore, because Nurse Johnson initially reported to the surveyors that Ms. Schaitel told her early on the way to R5's room that she had seen R5 fall, CMS would not have referred in the SOD to Nurse Johnson's failure to question the circumstances surrounding R5's collapse. CMS Ex. 24, at 64. The SOD also refers to the staff's confusion about the meaning of a witnessed arrest in Petitioner's CPR policy. CMS Ex. 4, at 9-11. I find that R5 suffered from not having had a chance at CPR even though she had requested it and even though the likelihood of her survival was low. Nurse Johnson did not follow a careful step-by-step procedure in determining not to do CPR. In addition to saying she thought R5 was already "gone," Nurse Johnson told DON Kasmiski soon after the event that she did not know R5 had elected to receive CPR in the event of a cardiac arrest. CMS Ex. 24, at 34. She also said that she did not check R5's CPR status because she was told that R5 collapsed, not that she had a cardiac arrest. Id. The relevancy of a collapse versus a cardiac arrest in terms of performing CPR is not explained in the evidence. Petitioner's experts who opined about the appropriateness of Nurse Johnson's "decision" not to perform CPR seem to have assumed from her affidavit that she went through a careful step-by-step analysis. To claim that such a measured response to R5's collapse was made is an after-the-fact rationale. The weight of evidence is that no nurse was available to assist in R5's wing; Ms. Schaitel had to find Nurse Johnson in another wing; Nurse Johnson was confused about Petitioner's CPR policy for witnessed arrests; and she did not ask obvious questions that should precede a decision on the futility of CPR - that is, did Ms. Schaitel see R5 fall, did R5 have a DNR on file, and was 911 called. I find, as argued by CMS, that Petitioner failed to properly train its nursing staff about what to do in the case of a cardiopulmonary arrest that was witnessed by someone other than a nurse. CMS Br. at 11; Edwards Aff., at � 18. The evidence supports a finding that all of Petitioner's residents who had requested resuscitation in the event of cardiac arrest were at risk because of the staff's confusion about Petitioner's policy and in the staff's inappropriate response to R5's emergency. I find CMS's determination that there was a likelihood of serious harm, injury, or impairment to be not clearly erroneous.
When an ALJ finds that the basis for imposing a CMP exists, the ALJ may not: (1) set a penalty of zero or reduce the penalty to zero; (2) review the exercise of discretion by CMS to impose a CMP; and (3) consider any factors in reviewing the amount of the penalty other than those specified in 42 C.F.R. � 488.438(f). I have found that a basis exists for CMS to impose a CMP because I have found that Petitioner was not in compliance with 42 C.F.R. � 483.25. I must, therefore, review de novo whether the amount of the CMP is reasonable by considering the four factors specified in 42 C.F.R. � 488.438(f). These four factors are: (1) the facility's history of noncompliance, including repeated deficiencies; (2) the facility's financial condition; (3) the scope and severity of the deficiencies, the relationship of one deficiency to other deficiencies, a facilities prior history of noncompliance with reference to the deficiency at issue (factors specified in 42 C.F.R. � 488.404); and (4) the facility's degree of culpability. Petitioner referred to no evidence that would suggest the imposed per instance CMP of $7500 is unreasonable. There is no evidence that Petitioner has a bad compliance history. CMS Ex. 14. On the other hand, Petitioner provided no evidence suggesting its financial condition prevented it from paying the assessed CMP. Importantly, the severity of the noncompliance was very high, with immediate jeopardy for residents who had requested CPR in the case of an arrest. I find Petitioner somewhat culpable because it disregarded R5's even slight chance of survival by at least trying CPR. Based on these factors, I find that the per instance CMP of $7500 is reasonable. IV. Conclusion For the reasons stated above, I find that Petitioner was not in substantial compliance with federal conditions of participation governing long-term care facilities at an immediate jeopardy level from March 7, 2003 to April 2, 2003, and that a per instance CMP in the amount of $7500 is reasonable. |
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Anne E. Blair Administrative Law Judge |
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1. CMS's affidavits were from: Dr. Patrick P. Coll, Karen Langland, R.N., State agency surveyor, and Robin Edwards, R.N., State agency surveyor. 2. Petitioner's affidavits were from: Jessica A. Schaitel, Alyce M. Johnson, R.N., Raymond A. Roder (regarding the authenticity of proposed exhibits), Dr. Michael Pace, Dr. Arthur Derse, and Joseph Lehner, D.O. 3. The additional affidavits were from: Dr. Arthur Derse, Georgina Dennik-Champion, M.S.N., M.S.H.A., R.N., Alyce Johnson, R.N., and Barb Kasmiski. 4. DON Kasmiski stated in her affidavit that Petitioner kept the residents' records regarding election of CPR at the nurses' station, not in the resident's room. It would have taken Nurse Johnson at least 45 seconds to return to the nurses' station to check R5's records and CPR status. Kasmiski Aff., at � 4. 5. I find this argument completely unpersuasive and only note that it is Petitioner's policy at the time of R5's demise that is relevant because it is the policy that was explained to R5 at the time of her admission into the Facility. 6. Dr. Pace expressed a different view in materials sent to the State agency after Petitioner heard the surveyors' concerns. CMS Ex. 9, at 9. I find Dr. Pace's "initial reflex reaction" to be more credible. 7. I find Nurse Johnson's affidavits less reliable. It appears to me that her affidavits were tailored to fit Petitioner's arguments but her spontaneous comments closer in time to the incident and her statements made to the State agency surveyors depict other reasons for her not doing CPR in addition to her view that R5 was "gone." In her affidavit, Surveyor Edwards reported her interview of Nurse Johnson on April 2, 2003. According to Surveyor Edwards, Nurse Johnson told her she did not believe that CPR should be done if more than 3 minutes had elapsed since a victim's arrest. Nurse Johnson also explained to Surveyor Edwards that she did not do CPR on R5 because she had not personally witnessed R5's arrest. Later in the interview, Nurse Johnson told Surveyor Edwards that she had not done CPR because, based on her nursing experience, R5 was already "gone." Edwards Aff., at � 16. Surveyor Edwards stated that Nurse Johnson, during another interview on April 3, repeated her interpretation of Petitioner's policy regarding CPR as that the nurse who was going to perform the CPR would have to witness the arrest. Id., at � 18.
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