Senior Rehabilitation v. Health & Human Service

Filing

UNPUBLISHED OPINION FILED. [10-60241 Dismissed] Judge: TMR , Judge: JLD , Judge: EBC. Mandate pull date is 02/10/2011 [10-60241]

Senior Rehabilitation v. se: 10-60241 Service Ca Health & Human Document: 00511327285

Page: 1 Date Filed: 12/20/2010

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IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
December 20, 2010 N o . 10-60241 S u m m a r y Calendar Lyle W. Cayce Clerk

S E N I O R REHABILITATION AND SKILLED NURSING CENTER, P e titio n e r v. H E A L T H & HUMAN SERVICES, R espon dent

P e tit io n for Review on the Final Decision o f the HHS Departmental Appeal Board N o . A-09-107

B e fo r e REAVLEY, DENNIS, and CLEMENT, Circuit Judges. P E R CURIAM:* I n this petition for review from the Departmental Appeals Board ("DAB") o f the United States Department of Health and Human Services, the petitioner, S e n io r Rehabilitation and Skilled Nursing Center ("Senior Rehabilitation"), c h a lle n g e s the DAB's final decision that Senior Rehabilitation did not s u b s t a n t ia lly comply with certain Medicare and Medicaid regulations, and the D A B 's imposition of a $ 35,200 civil monetary penalty. For the following reasons,

Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5T H CIR. R. 47.5.4.

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we reject Senior Rehabilitation's challenges and DISMISS the petition for r e v ie w . FACTS AND PROCEEDINGS S e n io r Rehabilitation is a nursing home that participates in the Medicare p r o g r a m . On July 12, 2008, a designated state surveying agency completed an in c id e n t and complaint investigation of Senior Rehabilitation on behalf of the C e n t e r s for Medicare and Medicaid Services (CMS). CMS concluded that Senior R e h a b ilit a t io n was not in substantial compliance with certain Medicaid and M e d ic a r e regulations and imposed a civil monetary penalty of $800 per day for a period of 44 days, totaling $35,200. Senior Rehabilitation requested a hearing before an Administrative Law J u d g e ("ALJ") regarding CMS's determination of substantial noncompliance. C M S moved for summary judgment, which the ALJ granted, upholding the $ 3 5 ,2 0 0 fine. The ALJ found that (1) Senior Rehabilitation had not substantially c o m p lie d with the physician consultation requirement in 42 C.F.R.

§ 483.10(b)(11) because it failed to consult a resident's physician immediately a ft e r she experienced a significant change in health status and (2) with respect t o the same resident, Senior Rehabilitation had not substantially complied with t h e quality of care standard for pressure sores set forth in 42 C.F.R. § 483.25(c)(2). Senior Rehabilitation appealed the ALJ's grant of summary ju d g m e n t to the DAB, and the DAB affirmed. Senior Rehabilitation now seeks r e v ie w in this court. DISCUSSION A . Standard of Review This court has jurisdiction to review the grant of summary judgment and im p o s it io n of a civil monetary penalty against Senior Rehabilitation pursuant t o 42 U.S.C. § 1320a-7a(e). Review is conducted according to the deferential 2

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standards of the Administrative Procedures Act ("APA"), which authorizes the c o u r t to "set aside agency action, findings, and conclusions found to be," in r e le v a n t part, "arbitrary, capricious, an abuse of discretion, or otherwise not in a c c o r d a n c e with the law," or "unsupported by substantial evidence." 1 5 U.S.C. § 706(2)(A),(E); Cedar Lake Nursing Home v. U.S. Dep't of Health & Human S e r v s ., 619 F.3d 453, 457 (5th Cir. 2010). "The findings of the Secretary with r e s p e c t to questions of fact, if supported by substantial evidence in the record, s h a ll be conclusive." 42 U.S.C. § 1320a-7a(e). Substantial evidence is "such r e le v a n t evidence as a responsible mind might accept to support a conclusion. It is more than a mere scintilla and less than a preponderance." Harris v. Apfel, 2 0 9 F.3d 413, 417 (5th Cir. 2000). "A finding of no substantial evidence is a p p r o p r ia te only if no credible evidentiary choices or medical findings support t h e decision." Id. (footnote omitted). B. Summary Judgment i. Physician Consultation, 42 C.F.R. § 483.10(b)(11) T h e ALJ determined that Senior Rehabilitation was not in substantial c o m p lia n c e with the physician consultation requirement in 42 C.F.R. § 483.10(b)(11), which requires a nursing facility to immediately consult with a r e s id e n t 's physician following: [a ] significant change in the resident's physical, mental, or p s y c h o s o c ia l status (i.e., a deterioration in health, mental, or p s y c h o s o c ia l status in either life-threatening conditions or clinical c o m p lic a t io n s ); [or] [a] need to alter treatment significantly (i.e., a n e e d to discontinue an existing form of treatment due to adverse c o n s e q u e n c e s , or to commence a new form of treatment).

Although Senior Rehabilitation argues that this court's review is de novo because it appeals a grant of summary judgment, this court applies the same heightened deference standard to an appeal from an entry of summary judgment. Cedar Lake, 619 F.3d at 457.

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42 C.F.R. § 483.10(b)(11)(i)(B)-(C). A facility substantially complies with a p a r tic ip a t io n requirement where "any identified deficiencies pose no greater risk t o resident health or safety than the potential for causing minimal harm." 42 C .F .R . § 488.301. The undisputed evidence shows that Resident 26 ("R 26") was a 72-yearo ld woman diagnosed with organic brain stroke, dysphagia, hypertension, and a history of stroke. She was unable to speak and was completely dependant on s t a ff for all activities of daily living. Between March and April 2008, R 26 e x p e r ie n c e d a weight loss of nearly ten percent of her body weight--from 93.6 lbs t o 84.6 lbs. In an April 2008 progress note, Senior Rehabilitation's consultant d ie t ic ia n described R 26 as "at risk" because of her significant weight loss and o b s e r v e d that R 26 had a pressure sore on her back and a stage IV coccyx wound. T h e dietician made several recommendations, including an increase in R 26's n u t r it io n a l intake. Senior Rehabilitation waited over three weeks before in fo r m in g R 26's physician of the change in R 26's health status and the d ie t ic ia n 's recommendations. Relying upon the foregoing facts, the DAB concluded that Senior R e h a b ilita t io n was not in substantial compliance because the undisputed facts e s t a b lis h e d that the facility did not immediately consult R 26's attending p h y s ic ia n following a significant change in her condition and that this deficiency p o s e d a greater than minimal risk to R 26's health. O n appeal, Senior Rehabilitation does not assert that R 26 did not e x p e r ie n c e a significant change in her health status or that it consulted her p h y s ic ia n immediately. Instead, Senior Rehabilitation argues that a sworn s t a t e m e n t by William George, M.D. ("Dr. George"), R 26's treating physician, t h a t the "facility in [his] opinion . . . kept [him] reasonably and timely informed a b o u t [R 26's] care needs and changes in health condition" creates an issue of 4

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material fact. Accepting this statement as true, the DAB held that Dr. George's s t a t e m e n t s were "conclusions reflecting the doctor's individual opinion, not e v id e n c e of material facts under the governing regulation," because they were n o t relevant to whether R 26's substantial weight loss amounted to a significant c h a n g e in her health status or to whether Senior Rehabilitation immediately c o n s u lt e d R 26's physician regarding this change. Senior Rehabilitation also contends that statements in affidavits by Dr. G e o r g e and by Dana Banks, R.N., the director of nursing at Senior R e h a b i l i t a t io n , that R 26 was receiving adequate nutrition show that Senior R e h a b ilita t io n 's failure to immediately consult Dr. George did not impact R 26's p h y s ic a l condition. The DAB accepted these assertions as true but held that they w e r e not probative because "the issue of substantial compliance here is not w h e t h e r Senior Rehab[ilitation's] failure to increase R 26's feedings posed more t h a n minimal harm, but whether the facility's failure to immediately consult w it h the physician, as required, had that potential given the resident's medical h is t o r y and identified clinical risks." The findings and conclusions of the DAB with regard to Senior R e h a b ilita t io n 's substantial compliance with the physician consultation r e q u ir e m e n t in 42 C.F.R. § 483.10(b)(11)(i) are not arbitrary, capricious, in v io la t io n of the law, or unsupported by substantial evidence. ii. Pressure Sores, 42 C.F.R. § 483.25(c)(2) S e n io r Rehabilitation also appeals the DAB's determination that it did not s u b s t a n t ia lly comply with the requirement regarding pressure sores. This r e q u ir e m e n t is part of the quality of care standards in 42 C.F.R. § 483.25, which c o m p e ls a facility to "provide the necessary care and services to attain or m a in t a in the highest practicable physical, mental, and psychosocial well-being, in accordance with the comprehensive assessment and plan of care." The 5

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subsection on pressure sores states, in pertinent part, "[b]ased on the c o m p r e h e n s iv e assessment of a resident, the facility must ensure that . . . [a] r e s id e n t having pressure sores receives necessary treatment and services to p r o m o t e healing, prevent infection and prevent new sores from developing." 42 C .F .R . § 483.25(c)(2). T h e undisputed evidence shows that R 26 was at "high risk" for pressure s o r e s . When R 26 was re-admitted to the facility after a hospital stay in January 2 0 0 8 , she had pressure sores on her coccyx and left inner knee. Between January and June 2008, the coccyx pressure sore worsened, and R 26 developed a d d it io n a l pressure sores. After a detailed and painstaking review of the record, t h e DAB concluded that Senior Rehabilitation had not substantially complied w it h the pressure sore requirement. Specifically, the DAB determined that S e n io r Rehabilitation (1) failed to conduct daily assessments of the pressure s o r e s on R 26's coccyx and back as required by her care plan; (2) permitted R 26 t o lie on a "wet incontinent pad with a drying brown ring and a foul urine odor" w h ic h violated R 26's care plan and the facility's own policies; and (3) did not e n s u r e that R 26's catheter was functioning which violated R 26's care plan and t h e facility's policies. Based on this evidence, the DAB determined that Senior R e h a b ilita t io n did not "ensure" that R 26 "receive[d] necessary treatment and s e r v ic e s to promote healing, prevent infection and prevent new sores from d e v e lo p in g " and that this deficiency posed a greater than minimal risk to R 26's h e a lth . R a t h e r than offer argument or cite legal authority with respect the p r e s s u r e sore requirement, Senior Rehabilitation merely copied and pasted p o r t io n s of various affidavits previously submitted to the ALJ and the DAB into its brief to this court. However, the DAB carefully parsed each affidavit, accepted t h e statements as true, and arrived at the conclusion that Senior Rehabilitation 6

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was not in substantial compliance. This decision was not arbitrary, capricious, in violation of the law, or unsupported by substantial evidence. iii. Activities of Daily Living, 42 C.F.R. § 483.25(a)(iii) S e n i o r Rehabilitation contests CMS's determination of substantial n o n c o m p lia n c e with 42 C.F.R. § 483.25(a)(iii) for failure to provide timely i n c o n t in e n t care to several residents, including R 26. Having found that the S e n io r Rehabilitation's substantial noncompliance with 42 C.F.R.

§ 483.10(b)(11)(B) and 42 C.F.R. § 483.25(c)(2) was sufficient to support the im p o s it io n of the civil monetary penalty, the ALJ did not review this deficiency. B e c a u s e Senior Rehabilitation identified no error by the ALJ, the DAB did not a d d r e s s this issue. The DAB's decision not to review this issue was not arbitrary o r capricious. See Claiborne-Hughes Health Ctr v. Sebelius, 609 F.3d 839, 847 (6 t h Cir. 2010). iv . Civil Monetary Penalty According to Senior Rehabilitation, the imposition of a civil monetary p e n a lt y of $800 per day, for a total of $35,200, was unreasonable. "Penalties in t h e range of $50-$3,000 per day are imposed for deficiencies that do not c o n s t it u t e immediate jeopardy, but either caused actual harm, or caused no a c t u a l harm, but have the potential for more than minimal harm." 42 CFR § 4 8 8 .4 3 8 (a )(1 )(ii). In determining a penalty, CMS considers the following factors: (1 ) the facility's history of noncompliance, including repeated deficiencies; (2) the fa c ilit y 's financial condition; (3) the factors specified in [42 U.S.C.] § 488.404; and (4 ) the facility's degree of culpability. Id. at § 488.438(f). The factors in 42 CFR § 488.404 include the seriousness of the deficiency, the relationship among the d e fic ie n c ie s resulting in the noncompliance, and the facility's history of n o n c o m p lia n c e in general and specifically with respect to the cited deficiencies. 4 2 CFR § 488.404. 7

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The ALJ determined that a $800 per day civil monetary penalty was r e a s o n a b le based on the facility's history of noncompliance and culpability. The A L J relied upon undisputed evidence that Senior Rehabilitation was in its "sixth n o n c o m p lia n c e cycle" and had previously failed to comply with the physician c o n s u lt a tio n requirement. The ALJ also assessed the facility's culpability based o n the undisputed facts supporting the findings of noncompliance under § 483.10(b)(11) and § 483.25(c)(2). T h e DAB adopted the ALJ's conclusion that Senior Rehabilitation's history o f noncompliance and culpability justified the $800 per day penalty. It also r e je c t e d Senior Rehabilitation's challenge to the duration of the penalty p eriod -- fro m June 2, 2008 through July 15, 2008--because Senior Rehabilitation h a d "not presented evidence that, prior to July 16, 2008, it implemented all of t h e measures necessary to ensure that similar violations of the participation r e q u ir e m e n t s would not recur." In its brief before this court, Senior R e h a b ilita t io n merely recites the same arguments rejected by the DAB. The D A B 's determination as to the reasonableness of the civil monetary penalty was n o t arbitrary, capricious, in violation of the law, or unsupported by substantial e v id e n c e . For the foregoing reasons, the petition for review is DISMISSED.

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