Health Law Daily Wrap Up, SKILLED NURSING FACILITIES—DAB DECISIONS: CMP against SNF for failing to treat diabetic ulcers justified, (Sep 6, 2024)

By WK Editorial Staff

SNF’s care was deficient under broader quality of care requirements.

The HHS Departmental Appeals Board (DAB) affirmed a CMS decision that imposed a per-instance civil money penalty (CMP) of $10,650 on a skilled nursing facility for its substandard care. Healthcare Center of Orange County, the SNF in question, failed to meet Medicare participation requirements when it did not ensure that a resident with a pressure ulcer receive the necessary treatment and services to promote healing and prevent infection (Healthcare Center of Orange County, DAB No. CR6440, Doc. No. C-22-543 (Mar. 11, 2024)).

CMS’s action stems from an incident involving a resident, identified as Resident 1, who was admitted to the facility on January 16, 2021, with a diabetic ulcer on his right heel. Over the next few months, the ulcer deteriorated significantly, ultimately necessitating a below-the-knee amputation on April 5, 2021, due to an intractable infection. CMS argued that the facility’s care of Resident 1 failed to meet the Medicare standards to promote healing and prevent infection.

The SNF argued that the regulation did not apply to diabetic ulcers, which are caused by poor blood circulation rather than excessive pressure on the skin. The facility argued that the treatment for diabetic ulcers differs from that for pressure ulcers, making the cited regulation inapplicable.

The administrative law judge (ALJ) found it unnecessary to resolve whether the regulation specifically encompassed diabetic ulcers. Instead, the ALJ determined that the facility’s care was deficient under the broader quality of care requirements outlined in 42 C.F.R. § 483.25, which mandates that facilities provide care consistent with professional practice standards. The ALJ also cited noncompliance with 42 C.F.R. § 483.25(b)(2)(i), which requires facilities to provide appropriate foot care, and concluded that the facility’s actions constituted neglect under 42 C.F.R. §§ 483.5 and 483.12.

The ALJ found the CMP of $10,650 reasonable, considering the seriousness of the noncompliance. The ALJ noted that the penalty was not excessive, amounting to about half of the maximum allowable per-instance penalty. The seriousness of the facility’s noncompliance, which had the potential to cause significant harm to Resident 1, justified the penalty amount.

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