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Department of Health and Human Services DEPARTMENTAL APPEALS BOARD Civil Remedies Division |
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Lake Mary Health Care, |
DATE: December 02, 2005 |
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Centers for Medicare & Medicaid Services
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Docket No.C-04-36
Decision No. CR1373 |
| DECISION | |
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DECISION I sustain the determination of the Centers for Medicare & Medicaid Services (CMS) to impose a Civil Money Penalty (CMP) against Lake Mary Health Care (Petitioner) for failure to comply substantially with federal requirements governing participation of long term care facilities in Medicare and Medicaid. The CMP is based on a finding of immediate jeopardy effective August 10, 2003 through September 4, 2003, at the rate of $3,050 per day of noncompliance, and $100 per day thereafter until substantial compliance was achieved on October 14, 2003. I. Background This case came before me pursuant to a request for hearing filed by Petitioner on October 28, 2003, in accordance with section 1128A(c)(2) of the Social Security Act (Act) and 42 C.F.R. �� 488.408(g), 498.40. I held a hearing in Sanford, Florida on February 22 and 23, 2005. On October 3, 2003, CMS informed Petitioner that it was imposing the following remedies pursuant to a survey completed on August 22, 2003:
At the prehearing conference held on the morning of February 22, 2005, Petitioner acknowledged that for purposes of this litigation only, the level of harm suffered by Resident 1 (R1) as a result of being stung by fire ants on August 20, 2003, is sufficient to meet the regulatory definition of immediate jeopardy. Tr. at 5. CMS proffered 16 exhibits identified as CMS Exs. 1-13 and CMS Exs. 19-21. Petitioner offered 32 exhibits identified as P. Exs. 1-32. Petitioner's exhibits were admitted into evidence without objection. Transcript (Tr.) at 11. Petitioner objected to CMS Exhibits 2 and 7, to the extent that they contained information regarding matters taking place prior to August 10, 2003, and thus, were not relevant to the period of deficiency at issue in this case. Tr. at 10. I overruled that objection and admitted CMS's exhibits into the record. Id. Both parties called expert witnesses: Dr. Michael Merchant, an urban entomologist, testified on behalf of CMS; Dr. Walter Tschinkel, a professor of biological sciences at Florida State University, and Steven Day, a pest control operator, testified on behalf of Petitioner. James Leroy Nipper testified for CMS as a fact witness, and Mark Borel and Maureen Kehoe testified as fact witnesses for Petitioner. Subsequent to the hearing, the parties submitted simultaneous post-hearing briefs (CMS Br. and P. Br.), as well as reply briefs (CMS Reply and P. Reply). Based on the testimony offered at the hearing, the documentary evidence, the arguments of the parties, and the applicable law and regulations, I find that, from August 10, 2003, through September 4, 2003, Petitioner failed to substantially comply with applicable participation requirements at the immediate jeopardy level. I also find that Petitioner was not in substantial compliance at the less than immediate jeopardy level from September 5, 2003 through October 14, 2003. Consequently, I conclude that CMS was authorized to impose a CMP against Petitioner in the amount of $3,050 per day for the immediate jeopardy level violation, and $100 per day for the deficiencies at the less than immediate jeopardy level. II. Applicable Law and Regulations Petitioner is considered a long term care facility under the Act and regulations promulgated by the Secretary of Health and Human Services (Secretary). The statutory requirements for participation by a long term care facility are found at sections 1819 and 1919 of the Act, and the implementing regulations are found at 42 C.F.R. Part 483. Sections 1819 and 1919 of the Act invest the Secretary with authority to impose CMPs and denial of payment for new admissions against a long term care facility for failure to comply substantially with participation requirements. Pursuant to the Act, the Secretary has delegated to CMS and the States the authority to impose remedies against a long term care facility that is not complying substantially with federal participation requirements. Part 483 of 42 C.F.R. provides that facilities that participate in Medicare may be surveyed on behalf of CMS by State survey agencies in order to ascertain whether the facilities are complying with participation requirements. 42 C.F.R. �� 488.10-488.28. The regulations contain special survey conditions for long term care facilities. 42 C.F.R. �� 488.300-488.335. Under Part 488, a State or CMS may impose a CMP against a long term care facility where a State survey agency ascertains that the facility is not complying substantially with participation requirements. 42 C.F.R. �� 488.406, 488.408, 488.430. The penalty may start accruing as early as the date that the facility was first out of compliance and runs until the date substantial compliance is achieved or the provider agreement is terminated. The regulations define the term "substantial compliance" to mean:
42 C.F.R. � 488.301. The regulations specify that a CMP that is imposed against a facility will fall into one of two broad ranges of penalties. 42 C.F.R. �� 488.408, 488.438. The upper range of CMPs, from $3,050 per day to $10,000.00 per day, is reserved for deficiencies that constitute immediate jeopardy to a facility's residents, and in some circumstances, for repeated deficiencies. 42 C.F.R. �� 488.438(a)(1), (d)(2). The lower range of CMPs, from $50 per day to $3,000 per day, is reserved for deficiencies that do not constitute immediate jeopardy, but either cause actual harm to residents, or cause no actual harm but have the potential for causing more than minimal harm. 42 C.F.R. � 488.438(a)(1)(ii). "Immediate jeopardy" is defined to mean:
See 42 C.F.R. � 488.301. In determining the amount of the CMP, the following factors specified at 42 C.F.R. � 488.438(f) must be considered:
In a CMP case, CMS must make a prima facie case that the facility has failed to comply substantially with participation requirements. To prevail, a long term care facility must overcome CMS's showing by a preponderance of the evidence. Hillman Rehabilitation Center, DAB No. 1611 (1997), aff'd, Hillman Rehabilitation Center v. United States Department of Health and Human Services, Health Care Financing Administration, No. 98-3789 (GEB), slip op. at 25 (D.N.J. May 13, 1999). The Act and regulations make a hearing before an Administrative Law Judge (ALJ) available to a long term facility against whom CMS has determined to impose a CMP. Act � 1128A(c)(2), 42 C.F.R. �� 488.408(g); 498.3(b)(12), (13). The hearing before an ALJ is a de novo proceeding. Anesthesiologists Affiliated, et al, DAB CR65 (1990), aff'd 941 F.2d 678 (8th Cir. 1991). III. Issues A. Whether Petitioner was complying substantially with federal participation requirements on the dates CMS determined to impose a CMP. B. Whether CMS's determination of immediate jeopardy is clearly erroneous. C. Whether the amount of the penalty imposed by CMS is reasonable, if noncompliance is established. IV. Findings The findings of fact and conclusions of law noted below in italics are followed by a discussion of each finding.
The applicable regulation at 42 C.F.R. � 483.13(c) provides that the facility must develop and implement written policies and procedures that, among other things, prohibit neglect and abuse of residents. Section 483.70(h)(4) of the regulations requires that a facility maintain an effective pest control program so that the facility is free of pests. Additionally, the regulation at 42 C.F.R. � 483.25 requires that each resident must receive, and the facility must provide, the necessary care and services to attain or maintain the highest practicable physical, mental, and psychosocial well-being, in accordance with the comprehensive assessment and plan of care. V. Discussion Surveyor findings for Tags F224 and F469 as reflected in the Statement of Deficiencies (SOD). CMS Ex. 1. A record review of Resident 1 (R1) revealed the resident was admitted to the facility on November 11, 2000, with diagnoses of cerebrovascular accident with aphasia, anemia, respiratory abnormalities, congestive heart failure, and a history of aspiration pneumonia. She was bedfast and totally dependent on staff for all activities of daily living. CMS Ex. 1, at 1. The resident had a gastrostomy tube for feeding, and was unable to make her needs known. Id. at 1-2. On August 20, 2003, at 4:30 a.m., the resident was found with a large number of ants on her upper body and face, exhibiting many ant stings. CMS Ex. 1, at 2. The resident was immediately showered to remove the ants from her body, and the treating physician was notified. Id. The physician prescribed Benadryl 25 mg. via a gastrostomy tube every six hours for two days and Solumedrol 60 mg. every eight hours intravenously for two days. Id. Two days after the incident, the resident was sent to the hospital for respiratory distress and was subsequently admitted for treatment. Id.
CMS contends that pursuant to 42 C.F.R. � 483.70(h)(4) the facility must maintain an effective pest control program so that the facility is free of pests and rodents. Thus, CMS posits that it does not suffice that the facility have a pest control program. It is also imperative that the program be effective. CMS Br. at 8. CMS states that a pest control program is effective if it keeps the facility free of pests and rodents. Id. Thus, according to CMS, if it shows that Petitioner had a pest control program that allowed pests to enter the facility, it has established a prima facie case. Id. CMS adds, however, that Petitioner's argument that it did not violate the pest control regulation because it did everything in its power to prevent fire ants from entering the facility is unavailing. That argument, maintains CMS, overlooks the focus of the regulation which is outcomes, and not procedures. Id. at 9, 10. Petitioner argues that CMS's position that a violation can be established by the mere demonstration that a pest was found in the facility, amounts to a strict liability standard. P. Br. at 11. Although Petitioner concedes that mere appearance of pests in the facility may be a prima facie case of a violation, it contends that a provider may rebut that conclusion if it provides evidence that the appearance of pests occurred in spite of diligent efforts at prevention. Id. at 12. Petitioner asserts that the decisions in Woodbine Healthcare and Rehabilitation, DAB CR1200 (2004), Price Hill Nursing Home, DAB No. 1781(2001), and Western Care Management Corp. d/b/a Rehab Specialties Inn, DAB CR 1020 (2003), stand for the proposition that the mere appearance of pests in the facility is not conclusive proof of a violation of the regulation. P. Br. at 11-12. The presence of pests may be prima facie evidence of a violation, says Petitioner, but the provider may rebut that conclusion if it provides evidence that the appearance of the pests occurred in spite of diligent efforts at prevention. Id. at 12. In the instant case, I find, and Petitioner concedes, that CMS has established a prima facie case that it failed to maintain a pest control program so that the facility was free of pests. P. Br. at 12. This has been demonstrated by the presence of ants in R1's room on August 20, 2003, as well as on other occasions prior to that date. Furthermore, I find that Petitioner did not have in place an effective pest control program. That finding is not based on the application of a strict liability standard. My decision is based on a finding that Petitioner was culpable in having an ineffective pest control program that allowed fire ants to enter its facility to the degree that caused grievous physical injury to R1. In consonance with the Board's decision in Price Hill, I note that the presence of an isolated ant in the facility poses no greater risk to resident health or safety than the potential for causing minimal harm. Moreover, a provider's duty to its residents is not defined by common law principles of torts. The Board has held that the relationship between a facility accepting Medicare payment for its care and services and a resident of that facility is defined by federal law and regulations, and not state tort law. Guardian Health Care Center, DAB No. 1943 (2004). Consequently, the decision in this case does not hinge on whether 42 C.F.R. � 483.70(h)(4) establishes a strict liability standard. My decision is predicated on the fact that ants had been sighted in the facility prior to the attack on R1, and the provider's pest control program was ineffective in maintaining the facility free of pests. Petitioner's records reveal that its pest control program was ineffective in maintaining the the facility free of pests on January 16, 2003 (ants in closet and drawers of Room 413B); May 22, 2003 (ants were sprayed in Room 401B, but kept coming back); June 10, 2003 (ants observed on baseboard in nurse's toilet in Williamsburg wing); July 3, 2003 (ants were observed in Room 412A and 450B); July 20, 2003 (ants were observed by the window in Room 420B) and on August 20, 2003 ants were observed in Room 438. P. Ex. 10, at 2; P. Ex. 14, at 2; P. Ex. 15, at 2; P. Ex. 16, at 2, 3; P. Ex. 17, at 4, 5. There is no indication that the facility took any action when ants were observed in the closet and drawers in Room 413B on January 16, 2003. P. Ex. 10, at 2. The pest control company's (Hollywood East) invoice reflects that one week after that sighting a scheduled service as per the contract was performed. P. Ex. 10, at 3. The invoice does not indicate that the visit was prompted by the presence of ants in Room 413B. After Hollywood East made its regularly scheduled monthly application on May 19, 2003, ants were observed in Room 401B on May 22. P. Ex. 14, at 2. The facility maintenance log shows that the staff sprayed the room, but the ants kept coming back. Id. There is no indication that the pest control company was called back to assess the ant problem in that room. Maureen Kehoe, the facility administrator, testified that the presence of ants in Room 401B was due to a lily plant that the resident's daughter brought to her room and placed on the window sill. Tr. at 323-24. Those details, however, are not found in the facility records. At any rate, there was no indication as to whether the ants were in the pot prior to being brought to the facility or the ants entered the room from the outside and were attracted to the lilies in the pot. However, as previously noted, on June 10, 2003, ants were noted on the baseboard of the nurses' toilet in the Williamsburg wing; on July 3, 2003, ants were observed in rooms 412A and 450B; and on July 20, ants were sighted by the window of room 420B. P. Ex. 15, at 2; P. Ex. 16, at 2, 3. Regarding the actions taken after the ant sightings in June and July 2003, Ms. Kehoe testified that the affected rooms were sprayed and cleaned, but that the pest control company was not called to address the ant problem. Tr. at 328. The staff also placed food items found in a resident's room in zip-lock bags. Tr. at 330. After the July 20, 2003 sighting, Hollywood East was called only because a wasp nest was observed just outside a window, and not due to the presence of ants in the resident's room. Tr. at 330-31. Although Ms. Kehoe testified that in keeping with the nursing home policy the maintenance department would typically conduct examinations for cracks or other entry points, there is no evidence that on any of the occasions when ants were observed in the facility that such inspections of the premises were conducted. Tr. at 331. The facility placed a call back request with the pest control company when "ant trouble" was noted in room 438A on August 10, 2003. (3) P. Ex. 17, at 6. In response to that request, Mr. Steven Day, the owner of Hollywood East, testified that the pest control company applied Demon EC and used Gourmet Ant Bait Gel on August 12, 2003. Tr. at 129. The Gourmet Ant Bait Gel was specific for pharaoh ants. Id. Consequently, I infer that the pest control company acted on the belief that the ants observed on August 10, 2003 were not fire ants. In spite of having acknowledged that the bait treatment applied on August 12, 2003, specifically targeted pharaoh ants and not fire ants, Mr. Day, further testified that "the insecticides that were used covered a broad spectrum of insects." Tr. at 140. However, that was not the case in the pest control company's approach to the August 10, 2003 ant sighting. In fact, Mr. Day testified that had the facility preserved samples of the ants that were observed on August 10, 2003, and assuming that they were fire ants, the approach taken by the pest control company would have been different. Tr. at 145. Pertinent to this is Mr. Day's testimony that given the nature of the people living in nursing homes, and the variables involved when treating for fire ants, that a thorough investigation to get to the root of the problem was required when dealing with that type of insect. Tr. at 144-45. That investigation would include interviewing the staff to determine where the ants were specifically sighted and then proceed to examine the possibility that they may be coming in through wall sockets, from the hallway, or plumbing pipe. Tr. at 145-46. Additionally, the room would be subjected to an extensive search for cracks and crevices from the inside as well as the outside. Tr. at 146. Inasmuch as the pest control company could not rule out the presence of fire ants in R1's room on August 10, 2003, all of the precautions outlined by Mr. Day should have been implemented. (4) Nonetheless, Hollywood East approached the ant problem in R1's room under the assumption that those insects were pharaoh ants. Yet, no basis exists for that assumption. It is possible that Hollywood East's actions were governed by the fact that its contract with Lake Mary Health Care did not include fire ants. Tr. at 140. It is worthy of note that Dr. Tschinkel's testimony to the effect that the ants observed in R1's room on August 10 were not fire ants is conclusory at best, and without any basis. His opinion was based on the assumption that cleaning and pesticides would have removed any ant trails or other residuals that might have induced ants to consider using that room (Tr. at 199-200). Cleaning alone would not be a deterrent because all of the rooms were cleaned every day, yet that did not prevent ants from entering resident rooms on several occasions during the year 2003. Tr. at 317. Moreover, the assumption that R1's room was treated with a pesticide designed to address the presence of fire ants is contradicted by the testimony of Mr. Day who testified that the pesticide application was specific for pharaoh ants and not fire ants. Furthermore, Ms. Kehoe stated that although she did not see the ants, she was almost 100 percent (99 � percent) certain that those observed in R1's room on August 10, 2003, were not fire ants, based on communications with staff. Tr. at 386-87, 389. However, her testimony was to the effect that staff did not indicate to her that they were fire ants. Tr. at 334. On the other hand, she did not categorically say that someone on her staff informed her that the ants seen in R1's room on August 10, 2003 were not fire ants. She merely said that based on "communications with staff" she was almost certain that they were not fire ants, but was very vague about the communication to the point that she could not offer a name of someone that provided her with such assurance. Also, her statement that the pest control company that visited the facility on August 12, 2003 saw no fire ants is of no value in considering whether fire ants were present in R1's room on August 10. Tr. at 334. There is no basis to conclude that the staff's ability to recognize fire ants is better than the ability of the administrator. Pertinent to this is the fact that although Ms. Kehoe saw a sample of the ants that stung R1 on August 20, 2003, she informed Mr. Nipper, the resident's son, that they were not fire ants because they were black in color. Tr. at 247, 344. The unfortunate massive fire ant attack suffered by R1 on August 20, 2003, is the natural consequence of the chronology of events outlined above. The record reflects that ants had entered the facility on January 16, May 22, June 10, July 3, July 20, August 10, and August 15, 2003. If ants were entering the facility that frequently, in spite of the insecticides being applied, serious consideration should have been given to the employment of other measures. Instead, the facility continued to routinely spray and clean the rooms without notifying the pest control provider, as required by the nursing home policy. P. Ex. 1. It is also significant that according to the facility administrator, there was a system to address fire ants that included weekly rounds by the maintenance department. Those weekly rounds, however, constituted a departure from a plan that had been in place until 2002 that called for daily rounds. The administrator reasoned that the absence of a sufficient number of ant mounds did not justify daily inspections. Tr. at 305, 306. That change added to the ineffectiveness of the pest control program inasmuch as the presence of fire ants could not be determined by the number of mounds observed. Pertinent to this is Dr. Tschinkel's testimony that when he toured the facility grounds he saw no evidence of mounds, yet he saw many ants in the courtyard. In fact, he saw them everywhere. Tr. at 210-11. Dr. Merchant also noted that in Florida, because of the sandy nature of the soil, fire ant mounds are difficult to detect. Tr. at 53. Thus, it is evident that the facility management made a poor decision to significantly reduce the monitoring of the grounds due to its ignorance of the nature of fire ants architecture in Florida. Petitioner's principal argument is that regardless of the best efforts by the facility, fire ants in Florida cannot be eradicated. Tr. at 181. The argument backfires, because the fact that it has not been possible to eradicate fire ants in Florida places an onus on long term care providers in that State to have a heightened awareness of the possibility of such insects entering the facility and causing harm to residents. Petitioner also offered the testimony of Dr. Tschinkel to the effect that the odds of a resident being stung in a nursing home is astronomical. I find that testimony to be unpersuasive. Tr. at 196-97. His assumption was based on generalizations, and did not take into account that ants were entering the facility under consideration with a high degree of frequency. Moreover, Dr. Tschinkel testified that his opinion regarding the probabilities of a nursing home resident being stung by a fire ant was not based on statistical analysis, but on a simple arithmetic calculation, which he admitted to be a wild guess. Tr. at 224. It need not be established that on all of the occasions prior to August 20, 2003, the ants that entered the facility were fire ants. In fact, because of their prevalence and elusive nature, in the absence of evidence to the contrary, the facility should have assumed that fire ants were entering the building. Thus, it is noteworthy that Dr. Merchant testified that in the past 20 years, he had recorded at least 14 cases of massive fire ant attacks on nursing home residents. Tr. at 51. Dr. Merchant further testified that although eradication of fire ants has not been possible, control methods have been developed that are quite effective. Tr. at 85. Dr. Merchant's testimony in that regard remains unrefuted. Moreover, Petitioner's culpability does not hinge on statistical probabilities, but on whether its facility had an effective pest control program or not. Carried to its ultimate conclusion, Petitioner's statistical argument appears to rely on the theory that the remote possibility that a resident in a nursing home may be the victim of a fire ant attack is sufficient justification for a lax pest control program. (5)
Through the testimony of Steven Day, Petitioner attempted to establish that it is possible for institutions to employ appropriate techniques to prevent fire ant problems and still have them enter the building. Tr. at 134. That argument, however, is not available to Petitioner inasmuch as it has not presented persuasive evidence that it employed all appropriate techniques to maintain the entry of fire ants into its facility under control. It has been established that:
Furthermore, Ms. Maureen Kehoe testified that although the facility had a guardian angel program comprised of 13 department managers that would make daily rounds of the resident rooms to ascertain that everything was in order, there was never a report by that committee regarding problems with fire ants. No reports were ever made in spite of the many incidents of ant sightings in the facility. In fact, Petitioner has not shown that its facility staff was knowledgeable enough to distinguish one ant species from another. Of course, there is no requirement that the staff be trained to make such distinctions, but they should have been trained to notify the pest control company when ants were observed inside the nursing home. Tr. at 318-19. Ms. Kehoe herself cast some doubt on whether she was aware that the ants that attacked R1 were fire ants. This is evident from her "Description of Incident" filed with the Department of Children and Families on August 21, 2003, where she merely stated that R1 was found with ants on her face and torso. That statement shows either a calculated euphemism or ignorance of the nature of the ant attack suffered by the resident. P. Ex. 6, at 5, 6. The root of the ineffectiveness of Petitioner's pest control program is further made evident by Ms. Kehoe's testimony to the effect that the procedure she had put in place on June 2000 for reporting pests in the facility was merely a guideline that staff was not really expected to follow. P. Ex. 1; Tr. at 381-82. That was her unconvincing manner of justifying the facility's failure to notify the pest control company of the need for call back service when ant sightings occurred throughout the preceding months leading up to the massive fire ant attack on R1 on August 20, 2003. This explanation, however, is a gross contradiction to her representation to the State surveyors to the effect that "every time an ant is found in the facility, an immediate call in to the contracted pest control company is done." CMS Ex. 1, at 3. Ms. Kehoe also placed the effectiveness of the facility's pest control program in doubt when she dismissed the contracted pest control company by letter dated August 25, 2003, because there [had] "been significant problems getting an ant problem under control . . . ." CMS Ex. 10, at 1. During the course of her testimony Ms. Kehoe made an unsuccessful attempt to reconstruct, after the fact, the meaning of that communication. Tr. at 375-77.
In view of the foregoing it is my finding that Petitioner has failed to overcome CMS's prima facie showing that its facility failed to develop and implement written policies and procedures that prohibit mistreatment, neglect, and abuse of residents, and also failed to maintain an effective pest control program so that the facility was free of pests.
Immediate jeopardy exists where a provider's noncompliance with one or more requirements of participation has caused, or is likely to cause, serious injury, harm, impairment, or death to a resident." 42 C.F.R. � 488.301. For a finding of immediate jeopardy, it is not necessary to show that the noncompliance caused serious injury, harm, impairment, or death; it is sufficient to show that the noncompliance was likely to cause serious injury, harm, impairment, or death. Fairfax Nursing Home, Inc., DAB No. 1794, at 14 (2001). In this case, not only were vulnerable residents placed in jeopardy, but R1 suffered actual harm. In fact, Petitioner acknowledged that the level of harm suffered by R1 in this case rises to the regulatory definition of immediate jeopardy. The prima facie evidence strongly supports a finding of an immediate jeopardy level deficiency. Petitioner should have foreseen that an ineffective pest control program was likely to result in serious injury, harm, impairment, or death to extremely vulnerable residents who were totally bedfast and unable to engage in movement of their bodies to defend themselves. This is particularly significant in light of Dr. Schinkel's testimony that ants can begin to accumulate on a "bait" within 5 minutes or less. Tr. at 191. This aspect of Dr. Schinkel's testimony is placed in perspective by Dr. Merchant's statement that fire ants tend to prefer oily foods and proteins. Tr. at 48. In a nursing home setting it would also include body fluids, seepage around a gastric tubefeeding or IV, and soiled linen. (7) Id. Interestingly, although Ms. Kehoe represented herself to be a "proactive" person, it was not until R1 was brutally attacked by fire ants that she implemented a plan for resident assessment every 15 minutes. Prior to that, she followed the business as usual standard of assessments every 2 hours. Additionally, I must uphold CMS's determination as to immediate jeopardy unless it is clearly erroneous. 42 C.F.R. � 498.60(c)(2). Petitioner has not met its burden of showing that CMS's determination of immediate jeopardy is clearly erroneous.
The CMP is based on a finding of immediate jeopardy, effective August 10, 2003 through September 4, 2003, at the rate of $3,050 per day of non compliance, and $100 per day thereafter until substantial compliance was achieved on October 14, 2003. I agree with CMS that Petitioner's staff exhibited neglect, indifference, and disregard to resident care and safety in failing to have in place an effective pest control program so that the facility was free of pests and rodents, and also failed to develop and implement written policies and procedures that prohibit mistreatment, neglect, and abuse of residents. Petitioner contends that CMS failed to specifically provide any basis for a finding of immediate jeopardy that justifies the imposition of a $3,050 penalty. I have already amply discussed the basis for a finding of noncompliance. Indeed, there is not only a prima facie case of noncompliance here, but the preponderance of the evidence is that Petitioner was not complying substantially with the regulatory requirements under 42 C.F.R. � 483.13(c) and 42 C.F.R. � 483.70(h)(4). Furthermore, Petitioner has not met its burden of showing that CMS's determination of immediate jeopardy is "clearly erroneous." Clearly erroneous is a very high standard. (8) Without clear and convincing evidence from Petitioner on this issue, I cannot find CMS's determination of immediate jeopardy to be clearly erroneous. Moreover, there is no issue as to the reasonableness of the CMP imposed, inasmuch as $3,050 is the permissible minimum under the regulations, where it is established that the participating facility has incurred a deficiency that reaches the level of immediate jeopardy. 42 C.F.R. � 488.438(a)(i). Furthermore, the facility administrator acknowledged that it was not until September 5, 2003, that caulking outside of the windows took place as part of the plan of correction submitted to the State agency. Tr. at 372. Thus, the CMP based on immediate jeopardy was properly imposed through September 4, 2003. The Statement of Deficiencies and Plan of Correction (Form 2567) completed by Petitioner indicates that its corrective actions were completed by September 20, 2003; and on October 15, 2003, the State agency conducted a revisit survey and found Petitioner to be in substantial compliance with Medicare program requirements. P. Ex. 27; CMS Ex. 20, at 5. Thus, the continuation of a CMP of $100 per day for violations at the less than immediate jeopardy level was properly imposed from September 5 through October 14, 2003. The $100 CMP is very close to the minimum penalty permitted by the regulations. Furthermore, Petitioner has presented no valid argument pursuant to 42 C.F.R. � 488.438(f) to demonstrate that the CMP imposed here is unreasonable. VI. ConclusionBased on the testimony offered at the hearing, the documentary evidence, the arguments of the parties, and the applicable law and regulations, I find that Petitioner was not in substantial compliance at the immediate jeopardy level on August 20, 2003 through September 4, 2003, and that the imposition of a $3,050 CMP is reasonable. I also find that Petitioner was not in substantial compliance at the less then immediate jeopardy level from September 5, 2003 through October 14, 2003, and that the imposition for this time period of $100 per day CMP is reasonable. |
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José A. Anglada Administrative Law Judge
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1. The facility returned to substantial compliance on October 14, 2003. See CMS Ex. 20, at 5. Thus, the only issue before me is the appropriateness of the CMP. 2. See also Beverly Health & Rehabilitation-Springhill v. Health Care Financing Administration, DAB CR553 (1998). 3. The facility administrator acknowledged the presence of ants in another resident's room on August 15, 2005, yet offered no explanation regarding the facts surrounding that incident. Tr. at 334. 4. I fail to see the logic of conducting a thorough examination in the case of fire ants, yet not doing so if the ants observed are pharaoh ants inasmuch as fire ants could just as easily enter the facility through the same entry points as other ants. 5. The ineffectiveness of Petitioner's pest control program is also evident from the observation of roaches within the facility in August 2003. P. Ex 17, at 2. 6. My analysis is not disturbed because Petitioner labeled its approach to handling the presence of pests inside its facility as a"procedure" as opposed to a "policy." P. Ex. 1. 7. This testimony is relevant here because R1 had a gastric feeding tube. 8. A finding is clearly erroneous when "although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed," (United States v. United States Gypsum Co., 333 U.S. 364, 395 (1948)) or when a finding is "unsupported by substantial evidence, contrary to the clear weight of the evidence, or induced by an erroneous view of the law." Gasifier Mfg. Co. v. General Motors Corp., 138 F.2d 197, 199 (8th Cir. 1943). | |