Golden Living Center—Superior (Golden), a skilled nursing facility (SNF) in Wisconsin, did not adequately protect its residents from the spread of infection when it failed to follow three specific elements of its own protocols. The Departmental Appeals Board (DAB) affirmed an administrative law judge’s (ALJ) finding that Golden’s lack of compliance resulted in immediate jeopardy to the health and safety of residents for a period of two weeks, justifying civil money penalties (CMPs) totaling over $71,000 ( Golden Living Center—Superior v. CMS, Docket No. A-16-44, Decision No. 2768, February 3, 2017).
Survey findings and CMPs. Golden underwent a state compliance survey in February 2015, and was cited for multiple deficiencies. The most serious deficiency was a violation of 42 C.F.R. section 483.65, requiring SNFs to establish and maintain an infection control program. The state survey found that Golden failed to respond appropriately when acute respiratory illness was discovered and when a case of influenza was confirmed in the Alzheimer’s Care Unit (ACU). CMS agreed with the findings of immediate jeopardy-level noncompliance from January 26, 2015, through February 9, 2015, and imposed CMPs of $5,100 per day for this period. The agency also agreed with the finding of continued noncompliance not at an immediate jeopardy level from February 10 through March 11, 2015, and imposed CMPs of $450 per day for this period.
CMS clearly showed breach of protocol. Before the ALJ, Golden challenged the findings, arguing that there was no factual or legal basis for the findings of immediate jeopardy-level noncompliance related to infection control or the associated CMPs (but did not appeal the later deficiencies or $450 per day CMPs) (see Immediate jeopardy from failure to follow influenza outbreak protocol, March 2, 2016). CMS specifically alleged that Golden failed to follow its own policies, in that it (1) did not promptly administer an antiviral medication to non-ill residents of the ACU; (2) allowed staff to move between the unit and other parts of the facility; and (3) allowed ACU residents to continue participating in small group activities following the outbreak of influenza. The ALJ found that CMS plainly established that Golden failed to comply with its own protocols in violation of the relevant regulation, which does not establish specific protocols for influenza outbreaks but requires facilities to develop, maintain, and implement their own protocols.
The DAB agreed with the ALJ, finding that Golden failed to provide evidence of its compliance and that there was no factual dispute. It also found that Golden failed to show that CMS’ finding of immediate jeopardy was clearly erroneous, as required to overturn the determination. The CMPs were upheld.