Sunshine Haven Nursing Operations, Llc, v. United States Department Of Health And Human Services

2016 WL 9777239 (2016)

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Nature of the Case

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Facts

A skilled nursing facility (SNF), is eligible to enter into a 'provider agreement' with the Centers for Medicare and Medicaid Services (CMS) to participate in the Medicare program and receive reimbursements for providing covered services. An SNF is required to provide services in compliance with all applicable Federal, State, and local laws and regulations ... and with accepted professional standards and principles which apply to professionals providing services in such a facility. 'Substantial compliance' is '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.' 'Noncompliance means any deficiency that causes a facility to not be in substantial compliance.' A 'deficiency' is a violation of a statutory or regulatory participation requirement. A facility found to be substantially out of compliance on a Medicare participation requirement must submit a plan of correction within ten days for approval by CMS. The provider has the ultimate burden of persuasion by a preponderance of the evidence that it is in substantial compliance with the regulation at issue. 'A decision of the DAB constitutes a final agency action and is subject to judicial review.' P was found not in substantial compliance with Medicare conditions of participation. P got a formal notice of imposition of statutory Denial of Payment for New Admissions (DPNA) and that their provider agreement be terminated on April 5, 2009, if correction has not been achieved prior to that date. Eventually, CMS extended the time it would terminate the provider agreement to May 6, 2009, but P was terminated on May 6, 2009, based on a finding that it was out of substantial compliance for six continuous months. P's bathing policy required that residents receive a shower or bath 'at least two times a week and prn [as needed].' For thirteen days, from October 15, 2008, to October 27, 2008, there was no indication that patient R1 received any baths or showers. During the sixteen days from October 16, 2008, through October 31, 2008, there was no evidence that patient R3 received a bath or shower other than on October 21, 2008. P addressed the deficiencies noted in the November 5, 2008, survey as of December 16, 2008. On November 19, 2008, it was found that P failed to evaluate and monitor the use of physical restraints for patients R1 and R5. Restraint policy required orders from the physician regarding the type, reason, and timeframe for the restraint device, documentation in the medical record of the interdisciplinary team's decision to use a restraint, documentation of the restraint device, reason for the restraint device, and the releasing procedure for the device, maintenance of the restraint device to minimize the risk of decline and to provide optimal strength and mobility of the resident, and consent from the resident or responsible party to use the restraint device. P did not obtain a physician's order for R5's restraint device. P was contacted by letter on March 5, 2009, stating that the facility was found to be in compliance with the Standards of Participation based on the health revisit conducted on January 31, 2009. During a January 21, 2009, survey, it was determined that P violated 42 C.F.R. § 483.25(h), which provides that 'the facility must ensure that-(1) The resident environment remains as free of accident hazards as is possible; and (2) Each resident receives adequate supervision and assistance devices to prevent accidents.' R5 sustained a large bruise on her left arm when the arm became trapped next to the wheelchair side rail while she was sitting. P's plan of correction identified a completion date of February 21, 2009. Nine violations of 42 C.F.R. § 483.70(a), which requires that a facility 'be designed, constructed, equipped, and maintained to protect the health and safety of residents, personnel and the public' were found. P's administrator, Gregory Michael Whitaker, testified at the hearing before the ALJ that David Watson, the LSC surveyor, told him that P would be in substantial compliance as long as it had contracts for corrections that would place the facility in compliance. On March 10, 2009, the P was informed that it was not in substantial compliance with respect to the February 3, 2009, survey and that it recommended imposing a DPNA, effective February 5, 2009, and terminating the provider agreement, effective April 5, 2009. As of November 4, 2009, P still had not corrected two fire-related deficiencies from the February 3, 2009, survey. P requested a ninety-day waiver of these deficiencies for purposes of re-licensure. P expected to have the corrections completed by December 31, 2009. P asserts that the DAB's determination that P was in continuous noncompliance from November 5, 2008, through May 6, 2009, is erroneous and unsupported by substantial evidence.