Legal Issues| Volume 23, ISSUE 2, P16, March 2022
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The Long and Winding Road: Life Care Center – Kirkland’s Journey for Justice

Readers may recall that in March 2020, Life Care Center – Kirkland (LCCK), a skilled nursing facility located in Kirkland, WA, became the epicenter of the COVID-19 outbreak in the United States. By way of brief background, LLCK’s infection control nurse reported an outbreak of an unknown respiratory infection to state officials on February 26, 2020. The County Department of Health did not return her call until the next day, after she called again.
Instead of sending a strike team to help with the increasing numbers of residents and staff succumbing to the as-yet-unknown global pandemic, a team of surveyors were sent on March 6, 2020. (The strike team arrived on March 7, 2020, more than a week after LCCK had notified county health officials.) The surveyors spent approximately 400 hours interviewing staff and reviewing thousands of pages of medical records; they never interviewed any residents.

The Issues

The federal ALJ addressed the following issues:
• 1.
Whether there was a basis for the imposition of enforcement remedies (i.e., were there any deficiencies?);
• 2.
Whether the allegation of immediate jeopardy was clearly erroneous; and
• 3.
Whether the CMP and DPNA were reasonable sanctions.

Analysis

When deciding cases, judges weigh the evidence — both documentary and testimonial — and apply the law to the facts. Among the witnesses LCCK presented were two medical experts, Dr. Morgan Katz and Dr. Peter Hashisaki. Dr. Katz is an assistant professor of infectious diseases at Johns Hopkins University and director of antimicrobial stewardship at Johns Hopkins Bayview Hospital; he has significant experience in long-term care infection prevention and antibiotic stewardship. Dr. Hashisaki is chairman of the Infection Control Committee at Overlake Medical Center in Bellevue, WA, and has been their head of infectious diseases since 1991. The ALJ determined both experts’ testimony was “credible and entitled to greater weight than those of Dr. Schwartzman [the CMS medical expert] or the surveyors.”
When deciding cases, judges weigh the evidence and apply the law to the facts. Based on all the evidence, the ALJ refused to uphold six of the seven alleged deficiencies.
Based on all the evidence, the ALJ refused to uphold six of the seven alleged deficiencies. And he only upheld the infection control deficiency because the staff had permitted a preplanned Mardi Gras party with outside musicians to proceed on February 26, 2020, even though they maintained social distancing. (Interestingly, CMS had not alleged the Mardi Gras party as a basis for the deficiency.)
In his 136-page opinion, the ALJ criticized the survey: “While it is the right of CMS and the state survey agency [to conduct surveys] it would have been a better exercise of discretion to not create any distraction that could have adversely impacted resident care during the period of the survey ... there is no evidence that the survey in this case served to protect any residents at the time it was conducted” (Life Care Center – Kirkland v. CMS, DAB CRD No. 5975 (2021), https://bit.ly/3fIWRll). Further, the ALJ opined in a bolded statement, “However, I make no findings or determinations that the errors of Petitioner’s staff resulted in the spread of COVID-19 or the death or injury of any resident.” On the contrary, the ALJ held that “based on all the evidence presented to me” LCCK’s physicians and other staff “made a heroic effort to care for and save residents.”

Epilogue

If neither the facts nor the law support the deficiencies alleged by CMS or the resultant enforcement action, this case illustrates that an appeal may be the path to correcting that injustice and preserving reputational and other interests, along with vindicating the staff. When heroes are portrayed as villains, perhaps it is time to rethink the survey process.
AMDA – The Society for Post-Acute and Long-Term Care Medicine has taken a lead in promoting survey reform that actually benefits residents. Twenty years ago, the Society published its “White Paper on the Survey Process” (White Paper M02, Mar. 1, 2002, https://bit.ly/3Kw9s9O). More recently the Society has published a position statement on survey reform (J Am Med Dir Assoc 2020;21:1818–1820) as well as an article suggesting ways to make the survey process more helpful to residents (J Am Med Dir Assoc, 2022;23(2):241-246).
The survey process is necessary and mandated by statute and regulations. But the devil is in the details, and CMS owes it to residents to make the survey process as productive as possible. One glaring lesson gleaned from this case is that there is room for improvement, especially when heroes are not recognized for the extraordinary work they perform every day.
Mr. Horowitz is a partner at Arnall Golden Gregory LLP. His practice involves regulatory compliance concerning skilled nursing facilities, hospices, and home health agencies. Prior to joining the firm, he served as Assistant Regional Counsel at the U.S. Department of Health and Human Services and represented the Centers for Medicare & Medicaid Services. Mr. Horowitz also has extensive experience as health care provider.