SUBJECT: Alden-Princeton Rehabilitation & Health
Care Center,

Petitioner,

Centers for Medicare & Medicaid Services

FINAL DECISION ON REVIEW OF
ADMINISTRATIVE LAW JUDGE DECISION

Alden-Princeton Rehabilitation and Health Care Center (Alden) appealed the December 2, 2002 decision of Administrative Law Judge (ALJ) Richard J. Smith upholding a civil monetary penalty (CMP) of $3,050 imposed by the Centers for Medicare and Medicaid Services (CMS) based on its determination that conditions in the Alden facility on July 17, 1997 constituted an immediate jeopardy to resident health and safety. Alden-Princeton Rehabilitation and Health Care Center, DAB CR984 (2002) (ALJ Decision). The immediate jeopardy determination was based on an episode involving one resident for whom the surveyors found that Alden had failed to provide emergency care, failed to have operable emergency equipment available, and failed to train its staff in the use of such equipment. For the reasons explained below, we sustain the ALJ Decision.

Procedural background

This case was previously before the Board on appeal from a dismissal by ALJ Joseph K. Riotto and was remanded because the ALJ had not recognized that dismissal was discretionary under 42 C.F.R. � 498.70(c). Alden-Princeton Rehabilitation and Health Care Center, DAB No. 1709 (1999). On remand, ALJ Riotto ruled that Alden should be afforded a hearing on the narrow issue of the single immediate jeopardy finding on July 17, 1997, but that Alden had not preserved a hearing right as to any other of the many findings from multiple surveys or on any other remedies imposed. After transfer of the case, ALJ Smith reaffirmed this ruling and reiterated it in his decision. ALJ Decision at 3, n.2. As a result, the non-immediate jeopardy findings stood unchallenged. Alden did not appeal this ruling to us, and therefore neither the ruling nor the other findings is at issue here.

Applicable Law

The Social Security Act (Act), sections 1819 and 1919, provides requirements for nursing facilities that participate in the Medicare and Medicaid programs, which the Secretary has implemented in regulations at 42 C.F.R. Part 483. The requirement at issue here is part of the regulation which requires 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." 42 C.F.R. � 483.25. Under that umbrella provision, a facility specifically "must ensure that residents receive proper treatment and care for the following special services . . . (5) tracheal suctioning . . ." 42 C.F.R. � 483.25(k).

Regulations provide a survey and certification process to assess compliance with the participation requirements. 42 C.F.R. Part 488. Where surveyors determine that a facility is not in substantial compliance, CMS may impose enforcement remedies, including CMPs. 42 C.F.R. � 488.430. The amount of per-day CMPs available to CMS depends on the level of noncompliance, ranging from $50 to $3,000 in the absence of immediate jeopardy and $3,050 to $10,000 where the deficiencies rise to the level of immediate jeopardy. 42 C.F.R. � 488.438. "Immediate jeopardy" is defined as "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's determination that the level of noncompliance constituted immediate jeopardy must be upheld unless it is clearly erroneous. 42 C.F.R. � 498.60(c)(2).

Standard of review

The standard of review on a disputed issue of law is whether the ALJ decision is erroneous. The standard of review on a disputed factual issue is whether the ALJ decision is supported by substantial evidence in the record as a whole. Guidelines for Appellate Review of Decisions of Administrative Law Judges Affecting a Provider's Participation in the Medicare and Medicaid Programs; see also South Valley Health Care Center, DAB No. 1691 (1999), aff'd South Valley Health Care Center v. HCFA, 223 F.3d 1221 (10th Cir. 2000); Lake Cook Terrace Center, DAB No. 1745, at 6 (2000) ("[I]t is not our role to substitute our evaluation of the evidence for that of the ALJ, but only to determine whether his factual findings are supported by substantial evidence in the record as a whole").

ALJ Decision

It is undisputed that the only deficiency finding remaining at issue in this case arose from allegations concerning the treatment of a single resident, a 96-year old man with a history of stroke and congestive heart failure. It is also undisputed that an episode occurred to this resident on July 17, 1997 involving some difficulty in breathing and triggering Alden staff to call 911 when calls to the resident's physician were not immediately returned. An incident report was submitted by the paramedic who responded to the scene expressing serious concern about the facility's response to the resident's situation. ALJ Decision at 7-8, citing CMS Ex. 10. A complaint investigation by the State survey agency ensued. ALJ Decision at 10, n.8. Two surveyors paid visits. The first, Aminah Munir, R.N., investigated in August 1997 and did not cite any deficiency. Id. The second, Judith McAuliffe, R.N., conducted further investigation and cited the deficiency at issue here. ALJ Decision at 10-12.

The ALJ received exhibits from both parties and held a hearing at which both surveyors testified (Ms. Munir called by Alden), as well as the paramedic, William R. May, and Janet Jaworski, a nurse working in a ventilator unit at another facility who had been asked by Alden to review the events at issue soon after the immediate jeopardy determination was made. Based on this record, the ALJ made the following three Findings of Fact and Conclusions of Law (FFCLs) (one of them with three subparts):

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

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

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

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

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

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

ALJ Decision at 5, 12, 15, 16 (bold in original). Each FFCL was followed by the ALJ's discussion of the relevant evidence and explanation of the inferences which he drew from that evidence. Since Alden disputed many of the ALJ's statements about the appropriate weight given to particular items of evidence, the characterization of some of the testimony, and the proper inferences to be drawn, we discuss the factual underpinnings of the FFCLs in light of the record in our analysis section below.

Issues on appeal

Alden excepted to all of the FFCLs. First, Alden argued as a matter of law that FFCL No. 1 was erroneous in that it cited the entire regulation at 42 C.F.R. � 483.25, rather than naming the specific subsection with which Alden was found to be out of compliance. Alden Br. at 1-3. This omission was allegedly significant because the subsection involved, section 483.25(k), and the deficiency tag based on it, according to Alden, are meant to address only special services assessed as a long-term need of a resident and not services required only on an emergency basis. Id. at 4-8.

In addition, Alden disputed the existence of substantial evidence to support several factual premises accepted by the ALJ in reaching his ultimate conclusion about noncompliance. Alden denied that the evidence showed that the resident involved was in respiratory distress or required emergency suctioning at any point before the paramedics arrived after Alden staff called them. Alden argued that at no time was emergency suctioning equipment in fact needed but not available for use by Alden's nurses. If suctioning was needed by the time the paramedics arrived, Alden asserted, the paramedics should have brought appropriate equipment into the facility with them rather than expecting the nurses to provide it. Alden contended that a nurse who reportedly admitted not being trained to use the emergency "crash cart" as prescribed in facility policies never actually made that statement to a surveyor. In any case, according to Alden, her training was irrelevant because the service was not needed and another nurse was coming on duty whose training was not challenged.

Alden also argued that CMS was clearly erroneous in finding that any immediate jeopardy occurred and that the ALJ's conclusion on this point rested on misreading testimony by the surveyor that was merely hypothetical.

1. The ALJ did not err in citing the applicable regulation, which encompasses a requirement to ensure proper treatment and care in tracheal suctioning in an emergency situation.

The first legal point raised by Alden is that somehow it was error for the ALJ in his FFCL to cite the regulation rather than the specific subsection under which Alden was cited. Alden Br. at 1. Alden acknowledged that the ALJ specified in several places that the specific provision with which he found that Alden was out of compliance was the requirement to provide adequate tracheal suctioning services. Alden Br. at 2-3; ALJ Decision at 4, 17. Alden offered no explanation or authority as to why it would be erroneous for the ALJ to cite in his FFCL the regulation that he found to have been violated merely because he did not also specify in the FFCL itself which portion of which subsection of that regulation was violated. We have found no requirement for such a specific citation. In any case, even were it to be error, the error would be harmless in light of the acknowledged fact that the CMS determination and the ALJ Decision made abundantly clear the basis for the conclusion that Alden was not in substantial compliance with the Medicare participation requirements.

Alden's second legal argument, in essence, was that the requirement of the applicable subsection should be read to apply only to the long-term provision of tracheal suctioning services where "this need has been identified in the comprehensive assessment, and/or the resident has a plan of care for tracheal suctioning." Alden Br. at 8. Therefore, according to Alden, since this resident had no preexisting assessment or plan of care calling for tracheal suctioning, Alden could not have violated the specific requirement under which it was cited.

Alden argued that special services of the types listed in section 483.25(k), such as care for tracheotomy, colostomy, ventilator, or tube feeding, are "clearly meant" to address ongoing resident needs so that emergency services deficiencies do not "logically" fall under the same "area of resident review." Alden acknowledged, however, that CMS was correct that nothing in the plain language of subsection 483.25(k) restricted its application to "continuous or chronic, as opposed to emergency situations." Alden Reply Br. at 2.

Nevertheless, Alden relied for its interpretation on the introductory language to section 483.25 which states that each resident must receive the care and services needed to maximize well-being, "in accordance with the comprehensive assessment and plan of care." Alden essentially read this last phrase as a limitation on the required care and services each resident must receive to only those identified in the resident's formal comprehensive assessment and plan of care documentation. Under such an interpretation, any failure to provide care and services, no matter how needed, that were not so identified could not fall afoul of the quality of care regulation. Some irony arises from Alden's effort to discredit the ALJ's FFCL for citing the umbrella section on quality of care, only to employ the same umbrella section as a defense by reading it as a restriction on the scope of the services addressed in subsection (k). In any case, the regulation will not bear Alden's construction.

The quality of care regulation sets an overall criteria that a facility provide each resident with the "necessary care and services" to attain or maintain their "highest practicable" well-being. The succeeding subsections delineate elements of the required quality of care in various specific areas of service. Several of those subsections, such as those dealing with nutrition, naso-gastric tubes, and anti-psychotic drugs, specifically state that the requirements are to be carried out based on a comprehensive assessment. 42 C.F.R. � 483.25(g), (i) and (l). Others clearly involve facility responsibilities that do not depend on any individual resident's assessment or care plan, such as providing a resident environment as free of accident hazards as possible and ensuring a medication error rate below five per cent. 42 C.F.R. � 483.25(h)(1) and (m)(1). Considering the regulation as a whole, it is unreasonable to infer from the general requirement that care provided to residents accord with their assessments and care plans that the specific requirement that residents receiving any special needs services get proper care and treatment is limited to those who have an identified long-term need for the service spelled out in their assessment. Nor would so narrow a reading make sense in the context of the purposes, timing, and development of assessments and care plans.

We agree with Alden that comprehensive assessments and care plans are mandatory tools to ensure that the facility evaluates and develops approaches to best meet residents' individual needs. See 42 C.F.R. � 483.20; Alden Br. at 6. Facilities are required to assess residents generally within 14 days of admission, within 14 days after a significant change in condition, and at least once a year, with quarterly reviews. Section 483.20(b)(2) and (c). We disagree, however, that these tools serve as ceilings for the most that is expected of care in a facility or "establish the parameters by which the surveyor evaluates the facility's level of compliance with �483.25." Alden Br. at 6. Some of the special needs services, such as specifying the content and frequency of parenteral and enteral fluids or the provision, use, and care of an appropriate prosthesis, may well be addressed in a long-term assessment and care plan, and the facility must then provide those services properly in accordance with such assessment and planning. See 42 C.F.R. � 483.25(k)(2) and (8). It certainly does not follow that a facility is in compliance with quality of care requirements when it fails to provide special services properly so long as the need for that resident to receive the services is not addressed in the comprehensive resident assessment. For example, we see no reason that the requirement that residents receive proper care and treatment in the provision of injections applies only to residents receiving regularly planned injections and not to an injection given in response to a need that developed after the last formal assessment. Such an exclusion would not only exempt emergency provision of special services but also exempt services for which a need is short-term or arises in the period allowed for updating a comprehensive assessment. In fact, the interpretation set forth by Alden, taken to its logical end, would mean that a facility had no duty to actually provide quality care so long as it failed to put the need for such care in a formal comprehensive assessment. ⁽¹⁾

Nor do we find persuasive Alden's attempt to bolster its interpretation of the quality of care regulation by reference to excerpts from CMS's "Guidance to Surveyors for Long Term Care Facilities," which advises surveyors to:

Determine if the facility is providing the necessary care and services based on the findings of the RAI [resident assessment instrument]. . . assess a facility's compliance with the requirements by determining if the services in the plan of care, based on a comprehensive and accurate functional assessment of the resident's strengths, weaknesses, risk factors for deterioration and potential for improvement [sic] . . . in looking at assessments, use both the MDS [minimum data set] and RAPs [resident assessment protocols] information, any other pertinent assessments, and resulting care plans.

See Alden Br. at 7, quoting in part State Operations Manual (SOM), Appendix PP, PP-83. Alden infers from this that any deficiency cited under section 483.25 "must be tied to an element of a specific resident's comprehensive assessment." Alden Br. at 7.

The Board has previously refused to allow CMS to use the unpublished guidance to surveyors to expand the scope of participation requirements beyond those in the regulations. See, e.g., Beverly Health and Rehabilitation Center - Williamsburg, DAB No. 1748, at 8 (2000). Here, Alden likewise lacks justification for its attempt to use ambiguous language in the SOM to impose on a participation requirement a limitation that is not supported under the plain language of the regulation. As CMS argued, if there were any conflict between the manual and the regulation, the published, binding regulation would control. CMS Br. at 17, n.12, citing Parker for Lamon v. Sullivan, 891 F. 2d 185, 190 (7^th Cir. 1989).

In this case, we perceive no real conflict since we do not read the SOM to support Alden's theory. It makes sense that surveyors checking compliance with section 483.25 as a whole would be advised to seek out all the likely sources of assessments of residents' needs and care plans under which services are to be provided, since these are (as noted above) important to evaluating many of the aspects of quality of care in certain subsections. Notably, however, the SOM tells surveyors that the assessments to be considered are those that are both "comprehensive and accurate." Hence, we reject the idea that the SOM would treat a nonexistent or inadequate assessment as somehow constricting the surveyors from evaluating whether the resident actually got the care for which the need was evidenced in other records. In addition, the SOM includes not only the formal mandatory instruments but "any pertinent assessments" to identify what services were necessary. Such pertinent assessments would certainly include those made by nursing staff in responding to sudden changes in resident condition, as the ALJ recognized. ALJ Decision at 14.

Most importantly, we observe that the central thrust of the quality of care provisions is not on what services were needed but on whether needed services were properly provided. In other words, the focus in this area is on the quality of implementation. The assessments and plans tell the surveyors what services to look for as needed by a resident but once it is evident that a resident was in need, the quality of care regulations ask surveyors to evaluate the adequacy of what was provided to meet that need.

Alden contested the finding that the resident was in need of suctioning treatment and that its staff failed to provide it. We address these factual disputes next. Here, we conclude that, if the resident needed emergency tracheal suctioning and did not receive it properly, the ALJ did not err in finding that to constitute a deficiency under section 483.25. ALJ Decision at 7, n.4.

2. The ALJ's finding that Alden failed to provide emergency care is supported by substantial evidence on the record as a whole.

The ALJ's finding rested on the course of events which he found to have occurred on July 17, 1997. He set out this account in a general section under FFCL 2 before setting out and discussing each of the three subsidiary points. Alden challenged the version of the episode accepted by the ALJ, and much of its later argument about FFCLs 2A-2C flows from its competing scenario. We resolve these central and overarching factual disputes in this section and do not repeat our reasoning in discussing FFCLs 2B and 2C below.

The essential premise of Alden's defense on the facts is its contention that the ALJ did not have adequate evidentiary support to determine that the resident "experienced an episode of moderate to severe respiratory distress," at least while the resident was in the care of Alden's nurses prior to the arrival of the paramedics. Alden Br. at 8, quoting ALJ Decision at 6. The ALJ summarized the nurses' notes and facility records on which he relied in evaluating the resident's condition, as follows:

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.

ALJ Decision at 6.

In addition, the ALJ relied on the contemporaneous incident report and the testimony of Commander May about what he found when he responded to Alden's 911 call. ALJ Decision at 7-9. On the question of the resident's condition, the paramedic wrote that he found "A 97 Y/O MALE IN MOD/SEVERE RESP DISTRESS WITH RESPIRATIONS AT LEAST (40)." CMS Ex. 10, at 2. He testified that this was an extremely elevated respiration rate and that the resident obviously had an obstructed airway that required immediate suctioning. ALJ Decision at 8-9, citing Tr. at 44. The ALJ found that Commander May's testimony was consistent with his earlier incident report and concluded that confusion about the crew's exact arrival and treatment times did "not detract from Commander May's testimony regarding the incident and what he experienced in the treatment" of the resident. ALJ Decision at 7-8, n.5.

Alden responded that the words "respiratory distress" appear only in the transfer sheet for the resident which was completed by a nurse who did not directly observe or treat the resident. Alden Br. at 8-9. ⁽²⁾ Collectively, however, the nurses' notes and facility records paint a vivid picture of an individual in distress, with breathing labored and difficult, chest congestion, and spitting out white mucous. We see no special significance to the fact that the words "respiratory distress" were used only in the transfer form. Further, we find no error in the ALJ's determination to give weight to that form as part of the "facility's contemporaneous understanding" of the resident's condition, even if filled out based on reports from other staff rather than by the direct caretakers. ALJ Decision at 12-13. Tellingly, that contemporaneous understanding was sufficiently alarming to trigger a call to 911.

We thus determine that considerable evidence exists in the record to support the ALJ's finding that the resident was suffering moderate to severe respiratory distress and was in need of suctioning. In considering whether a finding is supported by substantial evidence, however, we must look at the record as a whole, including any evidence tending to undercut the finding. In that regard, the ALJ pointed out that Alden failed to produce a single staff person actually involved in caring for the resident on July 17, 1997. ALJ Decision at 10. The direct care staff had given statements to surveyors, however, which generally reinforced the finding that the resident was in respiratory trouble that required emergency assistance. ALJ Decision at 10-12, and record citations therein.

Alden made a series of attacks on the credibility of Commander May. Witness credibility is an area in which special deference is due to the factfinder who actually observes witness demeanor in the course of testimony. See, e.g., Stanley Boykansky, M.D., DAB No. 1756 (2000). The ALJ here made express and detailed findings about credibility and thoughtfully addressed each concern raised by Alden. The ALJ found Commander May's "testimony to be credible, consistent, and within the ambit of his expertise as a paramedic." ALJ Decision at 13, and n.12. We see nothing in a review of the entire record that would lead us to disturb his credibility findings.

In particular, it was reasonable for the ALJ to give considerable weight to Commander May's testimony, as he was the only witness who actually had observed the resident's condition firsthand. The ALJ expressly noted that he was not relying on Commander May for opinions on nursing standards or facility requirements. He rejected Alden's claims that Commander May was biased because he was angry that Alden did not provide suctioning equipment to him which his team should have brought in. Id. On appeal, Alden disputed the ALJ's discussion about whether the paramedics "had good reason" to expect Alden to have such equipment available and whether the paramedics were aware in advance that they were going to have to deal with a respiratory as opposed to a cardiac event. Alden Br. at 12-14. Alden pointed to no affirmative evidence that the paramedics fell short of some standard by not bringing their own emergency suctioning equipment from the vehicle into the facility before they reached the resident and identified the need for emergency suctioning. The facility seems to argue both that its nurses had no reason to think that the resident had airway obstruction needing suctioning before the paramedics arrived and that Commander May was biased by embarrassment for not having realized this need in advance. The ALJ reasonably concluded that any anger Commander May felt based on his perception of the facility's treatment of the resident did not bias his testimony about the events. Id.

Alden indeed placed great importance on the time frame in which the resident's condition should be evaluated. Thus, Alden argued that, even if it were shown that the resident was in moderate to severe respiratory distress requiring emergency action when the paramedics arrived,

that does not account for the period of time prior to the arrival of the paramedics. It is that period of time which falls within the scope of the facility's responsibility. The paramedic evidence . . . does not provide substantial evidence as to what occurred prior to the arrival of the paramedics.

Alden Br. at 9. This argument is without merit for several reasons.

First, Alden cited no authority for the claim that its responsibility for the resident ended when the paramedics arrived at the facility or at the resident's room. The fact that Alden identified that emergency assistance was required does not on its face imply that Alden had no continuing duty to provide necessary services to the resident until he was transferred out of the facility. Second, even had all responsibility transferred to the paramedic crew when they began caring for the resident, the ALJ could still reasonably infer that their observations about what they found when they arrived on the scene were relevant to the situation that existed immediately before they came in the room. Third, Alden did not offer evidence that would negative this inference. For example, Alden did not offer testimony from staff members present with the resident during the period immediately before and after the ambulance came to suggest that some abrupt deterioration or crisis occurred just as the paramedics came in to make their observations entirely discontinuous. Fourth, additional evidence relied on by the ALJ further supports the inference that the resident's condition when the paramedics arrived was relevant to his condition prior to their arrival. Commander May testified that the amount of secretions which he removed by suctioning "would have taken a significant amount of time to accumulate and would have made it 'extremely difficult' to breathe." ALJ Decision at 9. Finally, Commander May's testimony, again credited by the ALJ, provided a damning reason why the facility could not present testimony about the course of the resident's health status while waiting for the 911 responders. See ALJ Decision at 7-9, citing Tr. at 48-48, 88. Commander May reported that no one met the ambulance crew when they arrived; the staff on duty at the front desk was unaware of the resident for whom 911 was called; when the paramedics were finally directed to the resident's room, they found him alone and noted the absence of any evident measures underway to assist him; and when his nurse was located, she was unable to provide them with any adequate medical history on the resident. ALJ Decision at 7-9, and record citations therein. ⁽³⁾

Alden also sought to rely on the fact that Aminah Munir, the first surveyor to investigate the incident, found no deficiency because she believed that the need to suction the resident before the paramedics arrived was not established. Alden Br. at 12, citing P. Ex. 2, at 3-4. The ALJ addressed this argument and determined that Ms. Munir did not have access to the incident report and did not interview the paramedics. ALJ Decision at 10, n.8. Thus, when Ms. Munir concluded that she did not find sufficient evidence to support a deficiency, she had only interviewed facility staff and hence did not have the same information that was later available to the second surveyor. Id. In any case, the issue here is what the evidence adduced before the ALJ demonstrated, since the proceeding before him was de novo. ⁽⁴⁾ The ALJ credited factual information collected by Ms. Munir but reached an independent assessment that the deficiency was established by the evidence before him. We find no error in this approach.

We conclude that FFCL 1A is supported by substantial evidence in the record.

3. The ALJ's finding that emergency medical equipment was not available for emergency use is supported by substantial evidence on the record as a whole.

Alden's main argument on this FFCL was that the evidence that the resident needed suctioning at any point prior to the paramedics' arrival was insufficient. We have rejected this claim above. We note here that the evidence of the resident's condition while in Alden's care, discussed above, was sufficient to support the ALJ in finding not merely that the resident was in moderate to severe respiratory distress but also that the need for suctioning was apparent. See ALJ Decision at 9, citing Tr. at 44, CMS Ex. 10, at 2. For example, the ALJ could reasonably have based that inference on the evidence he cited of records of the resident "expectorating thick white mucous," of the resident's history of swallowing difficulty, ⁽⁵⁾ and of the dramatic relief which the resident experienced when Commander May suctioned out two shot glasses worth of material. ALJ Decision at 6, citing CMS Ex. 7, and 9, citing Tr. at 48-49, 88.

Alden expanded on its position, however, to assert that it was not enough to show the resident's need for suctioning. Thus, Alden argued that the --

"only possible basis for using tag F328 as a standard for reviewing the availability of emergency medical [sic] would be if the equipment was needed by the facility's staff. Even if the evidence showed that [the resident] should have been suctioned by the nurses, there was no evidence presented that Alden-Princeton's emergency suctioning equipment was not promptly available for use by Alden-Princeton nurses."

Alden Br. at 14. At heart, this argument implies that a facility has not failed to ensure "proper treatment and care" for a resident in need of a special service like suctioning unless the facility's nurses felt a need to deliver it themselves. The evidence discussed above showed that the resident was in need of immediate suctioning but the nurses did not begin to look for the required equipment until galvanized by the paramedics. That they were late to recognize the need for the equipment hardly excuses the additional delay caused by their inability to promptly find and properly assemble a functional suction device.

We conclude that FFCL 2B is supported by substantial evidence on the record as a whole.

4. The ALJ's finding that Alden failed to train direct care staff in the proper use of emergency medical equipment is supported by substantial evidence on the record as a whole.

The main premise of this finding is that the nurse on duty at the time the episode began, Ms. Thurman, was unable to promptly locate and assemble functional suctioning equipment. Surveyor McAuliffe testified that she interviewed Ms. Thurman who indicated that she was new to the facility and had not been oriented about the location and use of the "crash cart." ⁽⁶⁾ ALJ Decision at 16; Tr. at 109-12. Ms. McAuliffe also reported that Ms. Thurman told her that she did not consider the use of suctioning because this resident did not have a physician's order for suctioning. ALJ Decision at 16. The ALJ concluded that the nurse was inadequately trained both as to the crash cart and about facility policies that permitted suctioning when needed in a respiratory emergency without physician orders. Id.

Alden argued that Ms. McAuliffe's "interrogation method" involved asking questions about suctioning repeatedly. Alden Br. at 15, citing Tr. 214-15 and P. Ex. 5, at 17-18. Alden noted that Ms. McAuliffe "admitted" she interviewed staff more than once. Alden Br. at 15. We fail to see why asking "repeatedly" is inappropriate in itself, and Ms. McAuliffe offered on cross-examination the reasonable explanation that she may have asked more than once and "may have asked in a different way to make sure I got the correct answer." Tr. at 239-40.

Alden further cited a notarized statement which it submitted from Ms. Thurman to the effect that she consistently responded that she knew "suctioning could be done in an emergency." Alden Br. at 15, citing P. Ex. 5, at 17-18. The statement does not really undercut directly the points made by the surveyor but, to the extent it does conflict, the statement raises a credibility issue. Alden failed to produce Ms. Thurman as a witness. The ALJ expressly found Alden's attempts to impeach Ms. McAuliffe's credibility unpersuasive and found that she was "both credible and competent" and that he relied on "her testimony and the documents she prepared regarding her investigation." ALJ Decision at 11, n.10. Again, Alden has given us no basis to disturb the ALJ's credibility determinations. We therefore conclude that substantial evidence supports the ALJ's determination that Ms. Thurman was not properly trained and oriented to the equipment and policies for emergency tracheal suctioning.

Finally, Alden argued that it was irrelevant whether Nurse Thurman lacked proper training because CMS did not allege any lack of training on the part of the nurse who replaced her when the shift changed. Alden Br. at 15. We find this argument unpersuasive. We do not agree, for the reasons explained above, that no need for suctioning was proven for any time prior to the arrival of the paramedics. It follows that, during some period of time before the next shift arrived, Ms. Thurman was caring for a resident in need of suctioning which she was not aware she could provide without a standing order and which she did not know how to properly provide. Further, Ms. Thurman was the nurse first asked to bring the suctioning equipment for the paramedics and her difficulty in locating the machine and needed tubing contributed to the delays of which Commander May testified. Therefore, Ms. Thurman's lack of training affected the course of the episode regardless of whether other nurses on duty for part of the relevant time period did have adequate training and orientation.

We conclude that FFCL 2C is supported by substantial evidence on the record as a whole.

5. The ALJ's finding that the facility's noncompliance posed immediate jeopardy is supported by substantial evidence on the record as a whole.

The ALJ correctly noted that, once substantial noncompliance is found, CMS's determination that the level of that noncompliance created immediate jeopardy must be upheld unless shown to be clearly erroneous. 42 C.F.R. � 498.60(c)(2); Barn Hill Care Center, DAB No. 1848, at 3-4 (2002). The ALJ concluded that the record showed that the failure of Alden's staff to provide suctioning posed a likelihood for serious harm to the resident, and that the reasons for that failure represented a "systemic failure" threatening the well-being of any resident who might require emergency suctioning for conditions that could be life-threatening. ALJ Decision at 16.

Much of Alden's argument here derived from its claim, rejected above, that no need for suctioning existed prior to the arrival of the paramedics. Alden Br. at 18-19. On that premise, Alden further argued that the unavailability of suctioning equipment was the fault of the paramedic crew for not bringing such equipment in with them and argued that the ALJ's emphasis on the lack of timeliness meant that the jeopardy, if any, arose from the paramedics. Id. Alden simply sought to transfer the blame for its own failure to take virtually any action to assist its resident with his respiratory distress to the paramedics, who had not yet even seen the resident's condition. Alden went so far as to claim that the absence of any immediate jeopardy was established by the fact that the second paramedic took the elevator when he was sent to the ambulance to retrieve tubing to make the facility's machine functional. Alden asked, rhetorically, if the resident "was in such urgent need of suctioning, why didn't the paramedic student use the stairs and avoid any elevator delay?" Id. at 19.

Alden's rhetorical flourish represents yet another attempt to evade its own responsibility for the resident's care. Alden asked no question at the hearing about what instructions Commander May gave the student on what route to take, presented no evidence that the stairs would have been a faster route, nor offered any basis to think that, even if they were faster, the student would have known that having just entered the facility. Certainly, no one from Alden testified that any staff member suggested a faster route to the paramedic student. Finally, even if the student had been shown to have used poor judgment in selecting the elevator, or even if the student actually did not judge the situation in as urgent terms as Commander May did, that would hardly override the multiple evidentiary sources of support, discussed above, for the finding that the resident was in moderate to severe respiratory distress which caused an urgent need for suctioning. The very fact that the facility called 911 demonstrates that its staff recognized that the resident's situation constituted an emergency.

Alden did not contest the finding that $3,050 is the minimum CMP for one day of immediate jeopardy. Alden Br. at 19. Alden's exception to FFCL 4 was simply that no CMP should be imposed because no noncompliance, much less any immediate jeopardy, should have been found. Id. Given our conclusion on the first three FFCLs, it follows that FFCL 4 must be affirmed.

We conclude that FFCLs 3 and 4 are supported by substantial evidence on the record as a whole.

Conclusion

For the reasons explained above, we sustain the ALJ Decision in its entirety and affirm all the FFCLs.

Cecilia Sparks Ford

Donald F. Garrett

Marc R. Hillson
Presiding Board Member

1. Given our conclusion, Alden's reliance on another ALJ decision for the proposition that CMS cannot establish its case by showing noncompliance with a participation requirement other than the one cited is ill-founded. Alden Br. at 4-5, citing Rose Care Center - Trumann, DAB CR664 (2000). This is not a situation in which CMS cited the "wrong" regulation, as Alden sought to portray it. Rather, Alden seeks to twist the plain language of the regulation in order to evade its proper application.

2. In point of fact, this phrase was also reported by Surveyor Munir as having been used by Nurse Patricia Moore in her statement about events, referenced by the ALJ later in his Decision. ALJ Decision at 10, citing CMS Ex. 17, at 2.

3. In addition, the ALJ found that the nursing notes did not document any interventions undertaken to help the resident and showed vital signs last taken about ten minutes before the note that 911 was paged. ALJ Decision at 11, and record citations therein.

4. The Board articulated this concept in Emerald Oaks, DAB No. 1800, at 16 (2001), as follows:

The ALJ's review is indeed de novo . . . in that the evidence to be weighed is that developed before the ALJ, not merely that on which CMS based its action. Each piece of evidence is to be given such weight as it deserves, depending on such factors as its relevance, reliability, credibility of the source, relevant expertise and factual underpinnings of opinion testimony, and so on.

5. Alden challenged the ALJ's reliance on Surveyor McAuliffe's report of her interview with Dr. Khurana, a physician who treated the resident after he was transferred to the hospital and who had treated the resident in prior hospitalizations, in which he stated that the resident was unable to swallow and cough out secretions adequately. Alden Br. at 10. Alden argued that this information did not prove that the resident needed suctioning before the paramedics arrived. Id. Further, Alden argued that neither Dr. Khurana nor any other physician ordered mechanical suctioning for the resident and that Dr. Khurana's records do not mention an inability to cough out secretions. Id. Alden concluded that the nurses could reasonably have concluded that the resident's "expectorating" the thick mucous meant he was able to cough it up adequately and hence did not need suctioning. Id. It is clear from multiple sources that the resident could not swallow properly and was therefore fed by a gastric tube and also was receiving continuous oxygen by nasal cannula since his admission on June 18, 1997, for pneumonia. ALJ Decision at 6, and record citations therein. The ALJ clearly credited Ms. McAuliffe's report of the doctor's assessment of the likelihood that this resident suffered an episode in which his airway was compromised by inadequate coughing. ALJ Decision at 12. Alden did not show that such a propensity would necessarily have triggered a standing order for suctioning prior to the episode occurring nor did it show that spitting out amounts of mucous implied an adequate ability to clear the airways by coughing. Finally, Alden did not show that Dr. Khurana's observation that an earlier stroke affected the resident's ability to swallow and cough would be inconsistent with not having recorded difficulty coughing at the time Dr. Khurana examined him in the hospital, since by then the resident had been suctioned and was noted to have clear lungs. CMS Ex. 12.

6. In addition, the nurse who took over from Ms. Thurman as the shift changed during the episode confirmed to Ms. McAuliffe that Ms. Thurman had not been oriented. ALJ Decision at 12, and record citations therein.