Health Law Daily Nursing home’s failure to schedule tooth extraction bites back as noncompliance
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Tuesday, May 14, 2019

Nursing home’s failure to schedule tooth extraction bites back as noncompliance

By Matt Pavich, J.D.

A Departmental Appeals Board (DAB) ruling that a nursing home’s failure to schedule tooth extraction for a resident rendered it in noncompliance was supported by evidence and was neither arbitrary, nor capricious.

A Departmental Appeals Board (DAB) determination that a nursing home’s failure to schedule tooth extraction for a resident resulted in noncompliance was supported by evidence and was neither arbitrary, nor capricious, the Fourth Circuit Court of Appeals ruled in an unpublished opinion. In denying the facility’s petition for review, the court ruled that the DAB correctly interpreted the quality of care regulation and that its factual findings were supported by substantial evidence (Putnam Center v United States Department of Health and Human Services.), May 8, 2019, Thacker, S.).

Background. The resident was admitted to the facility in April 2013 and suffered recurrent bouts of aspiration pneumonia. A dentist recommended complete tooth extraction due to his rotting and decayed teeth and referred the resident to an oral surgeon, who requested medical clearance. The facility’s Medical Director wrote a note on October 16, 2013 permitting the surgery with minimal sedation, but the note was insufficient because it lacked his name or a legible signature. On February 17 2014, the resident consented to the surgery, but the facility repeatedly failed to submit the proper clearance and the resident continued to suffer from aspiration pneumonia. On June 8 2014, during another hospitalization, the resident’s treating physicians noted that his dental issues were a cause of his pneumonia and recommended complete tooth extraction; the facility again failed to submit the clearance.

During a survey of the facility, the resident informed the surveyor of his situation and the surveyor learned that the facility had known of the problem since his admission. The Medical Director denied having any conversations about the issue after he wrote his note, but said he would have denied the clearance because the resident was too ill. After the investigation began, the facility scheduled the surgery. CMS found the facility had a noncompliance period dating from February 17, 2014 through October 15, 2014 when the surgery occurred, and fined it $1,244,600.

An administrative law judge (ALJ) examined the factual record and affirmed the finding of noncompliance, but found it started in June 2014 when the resident was sufficiently health to have the surgery. The DAB affirmed the ALJ’s finding that the facility had an affirmative duty to schedule the surgery as it fell under its duty to seek to achieve favorable outcomes, but failed to do so until prompted by the investigation. The DAB also found that the noncompliance began on February 17, 2014, when the facility first failed to take any steps to even determine whether surgery was an option. The facility filed for review.

Quality of care interpretation. The appellate court ruled, contrary to the facility’s argument, that the DAB’s interpretation and application of the quality of care regulation—42 C.F.R. § 483.25—was not arbitrary and capricious. The facility argued that the DAB ruling essentially required it to schedule the surgery despite the Medical Director’s prohibition on it the resident’s physical inability to have it. The court, however, found that both of these circumstances were “factual matters masquerading as legal arguments” given that the DAB had examined the factual record and ruled that neither circumstance was present, pointing to inconsistencies in the Director’s testimony.

The court also rejected the notion that the DAB’s interpretation held the facility responsible for care it could not provide. The facility argued that the DAB punished it for failing to perform the surgery, but the appellate court found that the DAB found the facility in violation because it failed to perform tasks required to make the surgery happen, such as obtaining the medical clearance. The facility failed to take any steps to even determine whether the resident was physically able to have the surgery. Thus, the court ruled that the interpretation was neither arbitrary nor capricious.

Factual findings. The court also rejected the argument that the factual findings were unsupported by substantial evidence. The facility argued that the October 2013 note was an order to surgery with minimal sedation. The ALJ, however, found that the Medical Director was not a credible witness, finding his testimony evasive and contradictory. The court agreed with that finding, noting the utter lack of documentation supporting either the Medical Director’s contention that the resident was too ill to have the surgery or any consideration of the resident’s teeth. Moreover, even if the note did constitute an order, the facility continued to fail to schedule the surgery following the February 17, 2014 oral surgery consultation and subsequent requests for medical clearance. Furthermore, there was no indication whatsoever that the oral surgeon ever asked to use general sedation, which undercut the facility’s argument as to why it was in noncompliance. The court therefore found the DAB ruling was supported by substantial evidence and was neither arbitrary, nor capricious, and denied the petition for review.

Dissent. In a dissenting opinion, Judge Richardson found that the court should not have discounted the ALJ’s finding that the resident could not safely have the surgery until July 2014.

The case is No. 18-1256.

Attorneys: Joseph L. Bianculli (Health Care Lawyers PLC) for Putnam Center. Robert Phillip Charrow for U.S. Department of Health & Human Services.

Companies: Putnam Center; U.S. Department of Health & Human Services

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