Department of Health and Human Services DEPARTMENTAL APPEALS BOARD Civil Remedies Division |
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IN THE CASE OF | |
Beechknoll Caonvalescent Center, |
DATE: September 28, 2001 |
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Centers for Medicare & Medicaid
Services
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Docket No.C-99-690
Decision No. CR813 |
DECISION | |
REVISED DECISION I sustain the determination of the Centers for Medicare & Medicaid Services (CMS) (this agency was formerly known as the Health Care Financing Administration (HCFA)) to impose remedies against Petitioner, Beechknoll Convalescent Center, for failure to comply substantially with federal requirements governing participation of long term care facilities in Medicare and State Medicaid programs. These remedies include: denial of payment for new admissions from June 25, 1999 through July 19, 1999, termination of the facility's provider agreement effective July 19, 1999, and a civil money penalty (CMP) of $3,050 per day for 41 days of immediate jeopardy from April 10, 1999 to May 20, 1999, and $200 per day after May 20, 1999, until termination of Petitioner's participation in the Medicare and Medicaid program effective July 19, 1999. However, as discussed below, I find that the period of noncompliance at the immediate jeopardy level concluded on May 16, 2001. Therefore, I sustain a CMP at the immediate jeopardy level for only 37 days, and a CMP of $200 per day thereafter. I. Background This case came before me pursuant to a request for hearing
filed by Petitioner on July 20, 1999, in accordance with section 1128A(c)(2)
of the Social Security Act ("Act") and 42 C.F.R. �� 488.408(g), 498.40.
Petitioner is a skilled nursing facility participating
in the Medicare and Medicaid programs. On January 19, 1999, an abbreviated
standard (complaint) survey was completed at the facility by the Ohio
Department of Health (ODH) to determine if the facility was in compliance
with federal requirements for nursing home participants. That survey resulted in a finding that Petitioner was
not in substantial compliance. The survey alleged isolated deficiencies
that constituted actual harm that was not immediate jeopardy. ODH informed
Petitioner on January 28, 1999, that it could avoid the imposition of
remedies if substantial compliance was achieved by March 10, 1999. ODH
accepted Petitioner's subsequent allegation of compliance. However, a
revisit as well as standard, extended, and Life Safety Code surveys conducted
on March 19, 1999, revealed lack of substantial compliance. A pattern
of deficiencies that constituted actual harm but not immediate jeopardy
was found. The alleged deficiencies constituted substandard quality of
care. Petitioner was notified of the findings on March 31, 1999. Again,
ODH accepted Petitioner's allegation of compliance and conducted a revisit
survey on May 19, 1999. The conditions at the facility had deteriorated
to the point of immediate jeopardy and other substandard quality of care
deficiencies were alleged. A monitoring visit on May 21, 1999, revealed
that the immediate jeopardy was abated, effective that same day, but that
the facility was still out of compliance with federal requirements based
on the remaining alleged deficiencies. In view of the foregoing, CMS accepted the recommendation
of ODH, and imposed the following remedies by notice letter dated June
8, 1999:
In its request for hearing filed on July 20, 1999, Petitioner disputed "the imposition of remedies by HCFA based on the surveys conducted on January 28,(2) March 19, and May 19, 1999." Petitioner went on to specifically identify the alleged deficiencies with which it was taking issue and the reasons why these should not have been cited. In its itemized challenge of the surveyors' factual conclusions it referenced only the alleged deficiencies from the May survey and omitted any mention of the January and March 1999 surveys. The record reflects that on July 16, 1999, CMS issued
a further notice to Petitioner following a July 9, 1999 survey which concluded
that it was still not in compliance and that termination of its provider
agreement would be effective July 19, 1999. A request for hearing regarding
CMS's actions based on the July 9 revisit was filed by Petitioner on August
19, 1999.(3) By motion and supporting memorandum dated December 1,
1999, CMS sought dismissal of Petitioner's request for hearing insofar
as it related to all alleged deficiencies except the challenge to the
May 19, 1999, survey. Petitioner countered with a motion to strike evidence
regarding the survey findings prior to May 1999, and, in the alternative,
to amend its request for hearing. In a ruling dated February 15, 2000, I ordered dismissal
of that portion of Petitioner's appeal that challenged the validity of
the remedies imposed as a result of the surveys conducted in January and
March 1999. I held a hearing in Cincinnati, Ohio, from July 11 through
July 13, 2000. CMS was represented by Mr. Ted K. Yasuda, and Petitioner
was represented by Mr. Geoffrey E. Webster. Petitioner offered 37 exhibits
and these were admitted into evidence without objection from CMS as Petitioner's
Exhibits 1-37. CMS offered 21 exhibits into evidence and Petitioner objected
to each of them. Therefore, CMS's exhibits were admitted piecemeal as
reflected in the footnote.(4) The parties
filedpost-hearing briefs: CMS's "Health Care Financing Administrations'
Post-Hearing Memorandum" (CMS Br.), on September 18, 2000; "Petitioner's
Post-Hearing Brief" (P. Br.), filed October 20, 2000; and, CMS's "Health
Care Financing Administration's Post-Hearing Reply Memorandum (CMS Reply),
filed on November 14, 2000. In this decision I will only address CMS's imposition
of a CMP of $3,050 per day for 41 days of immediate jeopardy from April
10, 1999, to May 20 1999, and $200 per day after May 20, 1999, until termination
of Petitioner's participation in the Medicare and Medicaid programs, effective
July 19, 1999. 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 at 42 C.F.R. Part 483. Sections 1819 and 1919 of the Act invest the Secretary
with authority to impose CMPs 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. 42 C.F.R. Part 483 provides that facilities which 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 42 C.F.R. Part 488, 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 continues
until the date substantial compliance is achieved or the provider agreement
is terminated. 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, of from $3,050 per day to
$10,000 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,
of 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)(2). The terms "substantial compliance" and "immediate jeopardy" are defined terms in the regulations which govern participation of long-term care facilities in Medicare. "Substantial compliance" is defined to mean:
42 C.F.R. � 488.301. "Immediate jeopardy" is defined to mean:
Id. 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 Civ. No. 98-3789 (D.N.J. 1999). The Act and regulations make a hearing available before
an administrative law judge (ALJ) to a long-term care facility against
whom CMS has determined to impose a CMP. Act, � 1128A(c)(2), 42 C.F.R.
�� 488.408(g), 498.3(b)(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
IV. Ruling, Findings and Discussion The ruling, findings of fact, and conclusions of law noted below in italics are followed by a discussion of each.
During the course of the hearing, Petitioner requested
that I disqualify myself and seek appointment of another ALJ to hear and
decide this case. I denied the request inasmuch as I have no personal
interest in the matter before me, and consider myself capable of being
completely impartial. P. Br. at 2, 3. Petitioner has renewed its motion
in its post-hearing brief. For the reasons that follow, I again deny the
motion. 42 C. F. R. � 498.45(a) provides that an ALJ may not conduct
a hearing in a case in which he or she is prejudiced or partial to the
affected party or has any interest in the matter pending for decision.
42 C.F.R. � 498.45 (c) invests the ALJ with the discretion to withdraw
or continue with the hearing, subject to review by the Departmental Appeals
Board (Board). Petitioner does not directly claim that I am "prejudiced
or partial to the affected party" or that I "have an interest in the matter
pending for decision." Rather, Petitioner appears to advance the argument
that I harbor prejudice in view of an imagined long-standing relationship
I have with counsel for CMS, and because some of my evidentiary rulings
were not in its favor. I had been an ALJ with the Departmental Appeals Board
for less than a year when I presided over the hearing in July 2000. I
had met CMS's counsel, Mr. Ted Yasuda, for the first time approximately
a month earlier, in a hearing over which I presided in Chicago, Illinois.
On that occasion, my only communications with Mr. Yasuda, as far as I
can recall, occurred during the course of the proceedings. My next encounter
with Mr. Yasuda came in the course of the hearing in this case. Petitioner's
notion that "we two have a long association"(Tr. 434, line 25; Tr. 435,
line 1) and "too close relationship"(P. Br. at 2, 3) is absolutely baseless.
Counsel should feel free to conduct fearless, vigorous, and effective
advocacy, "which is the supreme object of a lawyer's calling." Offut
v. United States, 348 U.S. 11 (1954). However, gratuitous innuendos
are contrary to a lawyer's calling or effective advocacy. Petitioner's second point of contention stems from his dislike for some of my rulings. I will discuss the examples he provides.
Petitioner contends that I permitted CMS to grossly violate residents' rights of confidentiality in the presentation of its case. The matter appears at Tr. 432-435. At that point in the proceedings, Petitioner took issue with my ruling to admit unredacted documents into evidence, with the understanding that redacted replacements would later be provided by CMS. Petitioner apparently found this highly objectionable. The thrust of its initial argument lays claim to a violation of Board rules. However, Petitioner did not cite any rule. The second argument propounded by Petitioner is to the effect that "we are not in Spain" and this is not a Star Chamber (emphasis added).(6) The argument is specious, and warrants no response. Tr. 434.
A discussion of the issue relative to this ruling requires
some background to help put matters in perspective. On the morning of
July 11, 2000, when the hearing commenced, counsel for CMS was well disposed
to the admission of all of Petitioner's proposed exhibits without objection.
The offer was made, contingent on being extended the same courtesy. Petitioner
refused the offer and insisted on a piecemeal presentation of each of
CMS's exhibits. Tr. 226, lines 16-24. CMS had marked each proposed exhibit in accordance with
Rule 4 of the Civil Remedies Division Procedures. The total number of
CMS's proposed exhibits was 21. As each of its witnesses testified, CMS
severed pages from previously marked remaining proposed exhibits, and
offered these into evidence. Once CMS laid the proper foundation, I granted
the motion for admission, albeit over Petitioner's objection, each time.
Inasmuch as Petitioner required testimonial foundation for each document
admitted, it was necessary to sever pages especially when more than one
witness addressed the same numbered exhibit. For example, HCFA Ex. 18
consisted of 43 pages. Some pages of HCFA Ex. 18 were admitted during
the testimony of Ms. Ann Alden (e.g., HCFA Ex. 18, pp. 5-8; Tr. 60), while
the admission of other pages from that same exhibit was supported by the
testimony of Ms. Debbie Truett (e.g., HCFA Ex. 18, pp. 29-32; Tr. 458,
lines 22-25; Tr. 459, lines 1-5). Petitioner took the position, however,
that it was improper to admit CMS Ex. 18 except in its totality, in one
single act. Thus, when CMS offered pages 5-8 of HCFA Ex. 18, Petitioner objected because the document was incomplete. Tr. 160. Again, when CMS offered pages 29-32 of proposed HCFA Ex. 18, Petitioner objected for the same reason. I quote from the transcript at page 459:
The logical unfolding of Petitioner's reasoning would
require CMS to present simultaneous, plural testimony, in order for HCFA
Ex. 18 to gain evidentiary access into the record!(7) The preceding explanation is helpful in understanding
my ruling at Tr. 219-231. However, to get the full scope and flavor of
the issue, I will back up to Tr. 215. At page 215 of the transcript, Petitioner
was cross-examining Ms. Ann Alden. During the cross-examination, Petitioner
offered into evidence, what it referred to as HCFA Ex. 21, pp.10-17. That
move was confusing for two reasons. In the first instance, according to
Petitioner's unique reasoning, it would be an incomplete document. Secondly,
if the document in question was already an exhibit, why would Petitioner
need to enter it again? What became apparent was that Petitioner deemed
CMS's "proposed exhibits" as documents it could freely use (whether admitted
into evidence or not) to present its case-in-chief on cross-examination
as if they had been admitted, because for that purpose they were "HCFA's
exhibits." Tr. 217, 223. On the other hand, Petitioner posed strenuous
objection to CMS's use of those same documents on direct examination of
its witnesses to meet its burden of establishing a prima facie case. In
the particular instance of HCFA proposed Ex. 21, pp. 10-17, these pages
had not been offered into evidence by CMS, and could not be deemed to
be "HCFA exhibits." Furthermore, Petitioner contended that just because
CMS had originally proposed certain documents as exhibits, whether admitted
in to evidence or not (including nurses' notes and other documentation
created by the facility in the due course of business), they became CMS
records. Consequently, Petitioner reasoned that it could establish its
defense theory on cross-examination, through those "HCFA exhibits" (that
had somehow evolved to become CMS's records, although created by the facility).
Moreover, Petitioner asserted it would have a basis for impeachment of
CMS's witness, demonstrated by "HCFA's own records." I found that Petitioner was going beyond the scope of legitimate inquiry on cross-examination, and ruled that to use CMS's witness as it intended, was impermissible. I did afford Petitioner the opportunity to call the witness as its own during the presentation of its case-in-chief. Petitioner agreed to do this. Tr. 221. The other portion of my ruling was also related to the scope of cross-examination. Petitioner was attempting to use CMS's witness to establish, through institutional records of which the witness had no first hand knowledge, that a certain resident refused to cooperate with care. Tr. 215, 231. I ruled that Petitioner was opening a whole new line of inquiry in trying to establish that its institutional records (which, according to Petitioner, had somehow become HCFA records) reflected a pattern and practice existed with respect to a resident's refusal to accept care. In that regard, I ruled it would be more appropriate to have facility personnel, who observed and supervised the residents on a daily basis, address the existence of any pattern and practice. I found that Petitioner's back door approach could put CMS at odds with its own witnesses, while allowing Petitioner to present its case-in-chief without subjecting facility staff to having their credibility tested on cross-examination. Tr. 225.
At page 539 of the transcript, Petitioner sought further clarification of my ruling concerning the use of exhibits during cross-examination. Of course, the issue was whether Petitioner would be allowed to refer to exhibits previously offered by CMS, but not admitted into evidence. I specifically instructed Petitioner that I would not allow the use of such documents to introduce new evidence that would be more properly introduced through its own witnesses. Tr. 540. At the top of page 541 of the transcript, I continued to explain my ruling:
I should also note that the Civil Remedies Division Procedures gives me discretion to bar a party from introducing an exhibit not previously listed. In this instance, Petitioner was precisely attempting to do just that. That is why I limited the use of those documents only for the purpose of testing the witness' credibility, but not to introduce new evidence. See Civil Remedies Division Procedures, Rule number 4. In its closing remarks regarding the above rulings, Petitioner shows its umbrage by saying that both are indicative of the procedural morass. I can only guess who is the creator of that morass inasmuch as the thought is left dangling.
Petitioner complains that CMS was allowed to introduce
witnesses not previously identified to Petitioner. CMS argued that on
February 7, 2000, it mailed its lists of exhibits and witnesses to the
Civil Remedies Division and to Petitioner. The original is date-stamped
as having been received at the Civil Remedies Division on February 17,
2000. CMS further asserts that although the document lacks a certificate
of service, it does indicate that a copy was sent to an attorney in the
law firm representing Petitioner. I understand Petitioner's position to
be that a strict construction of the Civil Remedies Division Procedures
requires that nothing may be considered by me unless there is attached
to it a certificate of service that attests that it was sent to opposing
counsel. Tr. 18. I do not agree with Petitioner's understanding of those
rules. Rule number two of the Civil Remedies Division Procedures provides
that a party must send a copy to the other party, and must "note
or certify, that the submitting party has served the other party."
(Emphasis in the original). Nowhere in the rules does it say that I am
barred from considering anything that does not have an attestation or
certificate of service to the other party. It suffices to show that it
was noted that the other party was served. In the case
before me, CMS noted service to opposing counsel by indicating "cc" to
Mr. Randall Richards, one of Petitioner's attorneys who is apparently
associated with Mr. Webster. Additionally, on June 16, 2000, Petitioner requested the issuance of subpoenas for the appearance of the two surveyors CMS intended to use in the presentation of its case-in-chief. In its response dated June, 26, 2000, CMS informed Petitioner that subpoenas for those witnesses were unnecessary because it was calling both of them to testify on its behalf. At that time, Petitioner did not indicate that it was surprised that the two surveyors would be called by CMS to testify. Furthermore, Petitioner specifically acknowledged receiving CMS's response in opposition to the issuance of subpoenas that contained the names of the witnesses CMS would call to testify. Tr. 22. Since Petitioner intended to call CMS's witnesses and was informed as well by CMS that it would be calling both of them to testify, thus obviating the need for subpoenas, there is no element of surprise. Finally, Petitioner has not shown how it was prejudiced by my ruling to allow CMS to introduce the testimony of its two surveyors.
Petitioner adduced testimony regarding the facility's
improvement after it was taken over by new management. This testimony
transcended the date of the last survey at issue in this case. Tr. 648.
Consequently, CMS was permitted to inquire on cross-examination as to
the professed improvement. Petitioner has failed to show how it was prejudiced
by the inquiry into its performance after the July 1999 survey. There is one other matter that Petitioner raises but does
not support by reference to the record; thus, I am unable to address it.
I refer to its assertion that I engaged in improper conduct by ordering
a witness not to answer a question, when no objection was filed. P. Br.
at 3. It is irresponsible for an attorney to characterize a judge's conduct
as improper and not offer proof. In summary, Petitioner does not point to any extrajudicial
source of bias, except the unfounded accusation of a close relationship
between me and counsel for CMS. The rulings referenced by Petitioner and
discussed above, fail to constitute a showing of bias. See St.
Anthony Hospital, DAB No. 1728 (2000). It is unfortunate that Petitioner's counsel has confused this case with a cause, and vigorous advocacy with misguided zeal. His general demeanor here is not dissimilar to that which he displayed years ago in the case of Ohio Department of Public Works, DAB No. 66 (1979). An appellate panel of the Board had this to say about Counsel's behavior during the course of the hearing:
Id. at 1.
Below, I will discuss examples of failure by Petitioner to comply with the pertinent federal participation requirements.
42 C.F.R. � 483.25(c) requires that the facility must ensure that a resident who is admitted without pressure sores does not develop them, unless the individual's clinical condition demonstrates that they were unavoidable; and a resident having pressure sores receives necessary treatment and services to promote healing, prevent infection and new sores from developing.
Based on observation and record review, CMS found that
R54 developed a facility-acquired open pressure sore on the left buttock
subsequent to admission on September 18, 1998. An assessment performed
on April 7, 1999, revealed no pressure sores and no history of pressure
sores. On May 12, 1999, R54 was observed at various times, lying on her
back with no position changes. During incontinence care, on May 13, 1999,
the resident exhibited a two by one centimeter open pressure sore on the
left buttock and a two by two centimeter persistent area of redness on
the right gluteal fold. The mattress on R54's bed did not provide pressure
relief, as was confirmed by a staff nurse present in the room. On May
15, 1999, the resident was observed positioned in her bed, as well as
in a wheelchair, without pressure relief. Ms. Ann Alden, one of the surveyors, testified that on
May 13, 1999, a charge nurse admitted that a special mattress for pressure
relief was not provided. Ms. Alden stated that the absence of a pressure
relief device puts the resident at risk for development of pressure sores.
Tr. 45, 46. See also HCFA Ex. 14, p. 26. In the specific
case of R54, the plan of care reflected a physician's requirement that
a therapeutic mattress be provided. Notwithstanding this, the facility
did not comply with the physician's order. Tr. 49, 50; HCFA Ex. 13, p.
32. It was Ms. Alden's finding that as a result of the absence of aggressive
preventative measures, the resident developed an avoidable pressure sore.
Tr. 46. Ms. Alden further testified that on May 12, 1999, she
observed R54 lying on her back at 3:45 p.m., 4:00 p.m., and 6:00 p.m.
She added that her observations were made from a vantage point at the
nurses' station where she could detect anyone entering the resident's
room. During the time of her observations, she did not see facility personnel
enter R54's room. Had she observed anyone go in, she would have followed
to take note of the care being provided. Thus, although she did not have
her eyes fixed on the resident 100% of the time, Ms. Alden was in a position
to detect facility intervention. It was also her opinion that whereas
position changes are recommended every two hours, in the case of a resident
such as R54, who was totally dependent, and had skin breakdown, changes
are advisable every hour or half hour. Tr. 286-289.(8) On May 14, 1999, Ms. Alden observed R54 in a wheelchair
from 8:00 a.m. to 11:00 a.m. without a pressure relief device. She was
concerned that the resident was sitting for long periods of time in the
wheelchair as well as in bed on her back with no aggressive preventive
interventions. Tr. 55-56. Counsel for Petitioner cross-examined Ms. Alden as to
whether she observed R54 uninterruptedly during the times noted in the
survey, yet Petitioner offered no evidence regarding the measures taken
to prevent skin breakdown in this resident. Tr. 281-283. The assumption inherent in the regulation is that a resident should not have pressure sores unless they are unavoidable. Petitioner has not denied the existence of a pressure sore in R54 nor that it was facility acquired. Consequently, it was incumbent upon Petitioner to demonstrate that the pressure sore was unavoidable, once the surveyors identified its existence. Cross Creek Health Care Center, DAB No. 1665 (1998). While Petitioner has failed to come forward with evidence in that regard, CMS has affirmatively shown that Petitioner did not employ pressure relief devices nor take other measures such as timely shifting the resident's position.
R74 had a diagnosis of a surgically repaired fracture
of the right hip. He was assessed by the facility on May 12, 1999, at
9:30 a.m. as having a history of a recently healed pressure sore on the
coccyx. The resident was observed on May 12, 1999, at 9:30 a.m. with a
pressure sore that was facility-acquired and avoidable. On May 6, 1999,
the resident was assessed as dependent on staff for mobility and transfer.
He had a colostomy and indwelling urinary catheter. The surveyor observed
the resident in his wheelchair and bed for extended periods and noted
he was not repositioned. On May 12, 1999, at 4:15 p.m. the resident was observed
while a staff nurse performed a skin assessment. There was an open, bloody,
one centimeter pressure sore on his right buttock. The mattress was described
by the nurse as a standard ultra foam mattress and was covered with a
blanket-like pad. There was no preventative cushioning device on the wheelchair
or on the mattress of the bed. The care plan for impaired skin integrity
only described that nursing would turn the resident every two hours while
in bed. Ms. Alden, the State surveyor, testified that R74 was
dependent on staff for mobility and transfer due to surgical repair of
a fractured hip. Tr. 57. She opined that R74 was not provided effective
preventative treatment or pressure relief in his wheelchair or in his
bed. She observed him with an open bloody sore on his right buttock, and
despite this, he was allowed to sit in his wheelchair and lie in bed for
prolonged periods without pressure relief. Tr. 57. Ms. Alden further testified that although incontinent
residents are more prone to skin breakdown, R74 did not have such a problem
because, in his case, feces and urine were collected in colostomy bags.
Thus, in her opinion, it was clear that the skin breakdown in R74 was
related to pressure. Tr. 59. Petitioner's argument that in the absence of a physician's
order, the facility had no duty to provide any pressure relief devices
and could not provide treatment for skin breakdown, borders on the absurd.
See P. Br. at 11. The regulation is unequivocal in its requirement that the facility must ensure that a resident who enters the facility without pressure sores does not develop them unless the individual's clinical condition demonstrates that they were unavoidable. Additionally, the regulation establishes that a resident having pressure sores must receive necessary treatment and services to promote healing. 42 C.F.R. � 483.25(c). I do not read the regulation to mean that the facility's duty is contingent upon a physician's prior directive. The duty of care in this regard is an onus that the regulation places upon the facility, and which the facility cannot evade by shielding itself behind the absence of a doctor's prescription. Petitioner has not met its burden of coming forward with evidence to contradict CMS's prima facie case showing that the facility was not in substantial compliance concerning the care and treatment provided to R74. Hillman Rehabilitation Center, DAB No. 1611 (1997), aff'd Civ. No. 98-3789 (D.N.J. 1999). CMS has established that as a result of the survey conducted in May 1999, it was found that R74 had a facility-acquired pressure sore that was avoidable. Petitioner's argument that it was not duty-bound to take appropriate measures to prevent or treat these is wholly unacceptable. This is particularly true in light of its responsibility to contact a physician when it notes that a resident has acquired a skin breakdown such as that exhibited by R74. Tr. 82. Finally, contrary to Petitioner's assertion, there is no evidence that a resident with a diagnosis of renal failure and COPD (Chronic obstructive pulmonary disease) is very likely to develop pressure sores. Tr. 306, 307. See also P. Br. at 11.
R62 had a diagnosis of left cerebral infarct with right
hemiparesis, expressive aphasia, and status post bilateral lower extremity
amputation. On May 14, 1999, the resident was observed with an unidentified,
facility-acquired open pressure sore on the right buttock. Care planning
for skin integrity included the use of a therapeutic mattress. At different
times on the 12th, 13th, and 14th of
May 1999, the resident was observed positioned on her back with more than
two layers of bedding over the therapeutic mattress. It was revealed through
observation and interview with staff, that placing bedding on top of the
therapeutic mattress defeated its purpose. Ms. Alden, the State Surveyor, testified that R62 had
suffered severe strokes and had bilateral amputations of her lower extremities.
R62 needed extensive help with activities of daily living, and developed
serious pressure sores. On May 12, 1999, it was noticed that the resident
had a stage III(9) pressure sore on the
coccyx and left buttock. Tr. 65. At 10:37 a.m. that day, Ms. Alden observed
R62 to be on a Clinitron Flow bed with layers of bedding between the skin
and the mattress. This raised a concern in her mind because the purpose
of the therapeutic mattress is to allow the thin protective coating between
the skin and the mattress to provide the airflow that keeps pressure points
off the mattress. The extra bedding placed between the resident and the
bed created an undesirable surface of flatness or pressure between the
mattress and the resident. Tr. 68, 69. The inference that I draw from
this is that a pre-existing pressure sore was exposed to deterioration
by improper use of a therapeutic mattress. Ms. Alden was concerned because
in addition to observing a serious stage III cratered wound, she also
detected a previously unidentified open sore on the right buttock for
which no new orders were generated nor was there indication of physician
notification. Tr. 76. She described the latter as facility-acquired and
avoidable in her worksheet. HCFA Ex. 14, p. 61. Although a change in the
resident's condition should be documented as soon as it is noted, the
newly acquired open sore did not appear to be noted on May 14, 1999, when
Ms. Alden first observed it, nor was there documentation of it when she
returned on May 18, 1999. Tr. 77, 81. I find that R62 did not receive necessary treatment and services to promote healing of pre-existing pressure sores nor did Petitioner come forward with evidence to show that appropriate actions were taken to prevent new sores from developing. Thus, CMS's prima facie case of non-compliance remains uncontradicted. See 42 C.F.R. � 483.25(c)(2).
R53 was identified by the facility staff on May 12, 1999,
with a stage IV pressure sore on the coccyx. This had been previously
documented in the clinical record in the March 19, 1999, assessment. R53
also developed a stage II pressure sore on her right foot on April 29,
1999. On May 12 and 14, 1999, R53 was observed with multiple layers of
bedding on top of the therapeutic mattress. Through interviews with the
staff nurse on May 13, 1999, It was learned that the facility was aware
that the purpose of the therapeutic mattress would be defeated with the
use of layered bed linen. Additionally, the resident was observed on May
12 and 17, 1999, positioned in a wheelchair with both feet on the floor
and no foot protectors. See HCFA Ex. 14, p. 53. In the case of R53, the record demonstrates that she developed
avoidable, facility-acquired, pressure sores, and was provided with a
therapeutic mattress. HCFA Ex. 14, p. 53. However, Petitioner, by employing
multiple layers of bedding, defeated the effectiveness of the mattress.
Ms. Alden testified that, notwithstanding the facility's awareness of
the improper use of the therapeutic mattress on May 12, 1999, it was not
until May 18 that two of the layers were removed. Tr. 88. CMS established
a prima facie case of non-compliance and Petitioner did not refute CMS's
assertions nor address them in its post-hearing brief. From the examples noted above as to Tag 314, it is undeniable that Petitioner failed to ensure that residents who entered the facility without pressure sores did not develop them. Furthermore, Petitioner did not advance any evidence regarding specific affirmative steps taken to prevent the pressure sores nor did it rebut CMS's assertion that they were avoidable. Additionally, Petitioner did not ensure that a resident with pressure sores received necessary treatment and services to promote healing, prevent infection, and prevent new sores from developing. 42 C.F.R. �� 483.25 (c)(1), (2). Petitioner challenged inconsequential details of the surveyor's findings, but not the findings relevant to the deficiencies at issue. Thus, as concerns the prevention and treatment of pressure sores, Petitioner was out of substantial compliance beginning April 10, 1999, within the context of the May 19, 1999, survey.
42 C.F.R. �483.25 (h)(1) requires that the facility must
ensure that the resident environment remain as free of accident hazards
as possible.
The surveyor noted that on April 10, 1999, R11 was found
by facility staff with her legs out of the bed, on the floor,
and her upper body "wedged" between the mattress and the half
side rail. Facility documentation revealed that the resident's skin was
cool and clammy, the lower extremities were mottled to the knees, and
her color was pale. The clinical record was silent to interventions to
prevent further entrapment and falls from the bed. On May 12 and 13, 1999, the resident was observed in bed
with two unpadded half side rails raised, and no interventions in place
to prevent further entrapment. The nurses documented that the resident
was found on the floor on May 14, l999. She had slid from the bed. The
resident's mattress was changed on May 17th, and wedge pads
were placed under the mattress. On May 18, l999, the resident was observed
lying on the left edge of the bed, directly against the unpadded side
rail. The surveyor detected a gap between the mattress and side rail. R11 had a diagnosis of osteopenia, cerebral vascular accident,
right side hemiparesis, status post unrepaired right hip fracture in February
l999, and aphasia. Ms. Debbie Truett testified that she began the survey
of Petitioner on May 12, l999. Tr. 378. As a result of her record review,
she determined that on April 10, l999, R11 was found by nursing staff
wedged between the side rail and the mattress, and bed frame. When found,
the resident's skin was cool, clammy, and pale. Circulatory difficulty
was evident from mottling or discoloration of the lower extremities. Tr.
373. Ms. Truett noted that when a resident is entrapped there
is danger of chest compression, suffocation, and even death. Tr. 374.
Upon inquiry, the facility staff identified the bedding
being used by the resident at the time of the survey as the same bed she
was in on April 10, l999. Ms. Truett was able to observe a gap of approximately
four or five inches between the mattress and side-rail. Tr. 376.
Entrapment occurs, Mr. Truett explained, when a resident
is caught or trapped between the side-rail and the mattress of the bed,
and they are unable to free themselves either because of their clinical
condition or the tightness of the space. Tr. 377. In the case at hand,
the resident's condition made her very dependent on staff for assistance.
Not only did she have severe limitations of motion, but her condition
was further compromised by her inability to cry out for help due to aphasia.
Tr. 378. I find that R11's overall condition placed her at high risk for
entrapment. Ms. Truett learned from her review of facility records,
as well as from confirmation by the staff, that no intervention was implemented
from the time of R11's entrapment on April 10, l999, to the initial survey
visit on May 12, l999. Tr. 388. Moreover, on May 14, the resident was
found on the floor after having slid from the bed. It was not until after
this second incident occurred, that the facility determined to address
R11's risk of entrapment and fall from her bed. On May 17th,
the staff placed wedged pads underneath a new mattress they had provided
for R11. Tr. 389, HCFA Ex. 15, p. 20. The survey concluded on May 19, l999. On May 20th,
Ms. Truett informed Petitioner that because of the unsafe use of bed rails,
the facility had failed to ensure that the resident's environment was
as free from accident hazards as possible. She called at noon on the 20th
of May to put the facility on notice regarding the immediate jeopardy
finding, and on the 21st of May verified that the deficiency
was corrected with the purchase and deployment of a Roll Guard therapeutic
mattress. This mattress is a "scoop" type mattress, with raised sides
that prevents residents from sliding or rolling out of the bed. Tr. 402. I find that CMS established a prima facie case that Petitioner
was not in substantial compliance with 42 C.F.R. �483.25 (h)(1). CMS presented
uncontradicted evidence that R11 suffered side rail entrapment on April
10, l999, and no interventions were initiated to prevent recurrence until
May 17th. The resident in question was extremely frail, and
lacking in strength and mobility. Additionally, she was unable to cry
out for help due to her aphasia. These special circumstances surrounding
R11 should have created a heightened awareness in Petitioner to take immediate
action to prevent further entrapment situations. Not only did Petitioner
have a duty to protect R11 from hazards of the type here in question,
but it was also bound to assess the situation of others who might have
been similarly situated. In conclusion, I find that Petitioner was not in substantial
compliance with 42. C.F.R. � 483.25 (h)(1), but only through May 16, l999.
Although Petitioner implemented an intervention to correct the situation
involving R11 on that date, CMS contends that such intervention was ineffectual.
As I explain below, I do not agree with CMS. Ms. Truett testified that the wedges that were placed
under the resident's mattress on May 17th were pressed with
the thin ends facing each other to the point of merely making the mattress
higher but leaving it flat. Tr. 390. Petitioner contends, on the other hand, that the wedges
were an appropriate intervention. Mr. Kent Harrington, Petitioner's CEO,
described the wedges to be approximately 5 feet in length and 13 inches
wide. The thick end of the wedge was about 5 inches, and reduced to a
thin edge on the opposite side. The mattress itself was 35 � inches wide.
Tr. at 390. Ms. Truett stated that the wedges were pressed up against
each other to the point where one was on top of the other. In her view,
the way the wedges were positioned only had the effect of raising the
mattress, but leaving it with a flat surface. Tr. 390. In that case, the
mattress would be expected to have a cantilever effect of close to 12
inches on either side. I find Ms. Truett's statement difficult to reconcile
with her testimony that on May 18, l999, she observed the resident lying
on the left edge of her bed directly against the unpadded half side rail.
I find it illogical to conceive that the mattress was still flat, even
as the resident lay on its left edge. It appears that bed coverings must
have obstructed Ms. Truett's view. Certainly, if the resident was leaning
up against the side rail, and the mattress did not slope down into a gap
causing her to fall or slide off the bed, I am inclined to conclude that
it was the thick end of the wedge that prevented her from falling. Although Ms. Truett opined that the wedges employed by
the facility to prevent R11 from being entrapped were not intended for
that purpose, she was equally of the opinion that other remedial devices
could have been employed. Among these, she included blankets, swimming
noodles, and pillows. I am not persuaded that these "field expedients"
are any more effective than the wedges deployed.
On May 13, 1999, the surveyor observed a pattern of unsafe
water temperatures throughout the facility, and so notified the administrative
staff immediately. The water temperature in the bathroom of resident rooms
203 and 204 was measured at 130F. The water temperature in the bathrooms
of resident rooms 116, 113, 104, 214, 209, 206, and 205 was measured at
128F. In the bathrooms of resident rooms 120, 110, and 213 the temperature
was measured at 126F. In the common shower and tub rooms on the second floor,
the water temperature in the sink was measured at 130F, and the tub water
measured at 128F. On the first floor, the water temperature in the sink
was 128F, and the men's shower measured 128F. According to the Ohio Fire
Academy, it would only take 30 seconds of direct contact with water at
a temperature of 130F to sustain serious burns. The surveyor noted the
facility to have residents with significant skin impairment, as well as
confused and mobile residents who were at risk of hot water burns. Interviews with administrative and maintenance staff on
May 13, 1999, elicited that they were not aware of the problem with the
hot water prior to being notified by the surveyor(10).
After sharing and completing an assessment of the hot water situation,
the facility notified a repair company which visited the facility later
the same day and made corrective repairs. Prior to exiting the facility
on the evening of May 13th, the surveyor measured the water
temperatures and obtained readings at or below 110F. Ms. Truett testified that she noted elevated water temperatures
beyond safe levels in the resident area faucets as well as the common
areas. She indicated that licensure rules identify safe water temperatures
at 110F, and she had found temperatures to be as high as 130F. Water that
hot, said Ms. Truett, is classified as sufficient to cause a blistering
burn requiring treatment. Tr. 443-445. Petitioner contends that it appropriately tested the water
in its facility and maintained testing records. From that, it argues that
the deficiency does not exist inasmuch as testing and record keeping was
being done. Furthermore, Petitioner relies on Ms. Truett's testimony on
cross-examination to establish that the issue regarding elevated water
temperatures stems from a disagreement in the readings obtained by the
facility and the surveyor. P. Br. at 13. Petitioner's argument misses the point. The issue is not
whether it tested the water and maintained a temperature log. Additionally,
a mere showing that a disagreement existed between the surveyor's recorded
temperatures and those logged by the facility fails to rebut the prima
facie case established by CMS. Whereas Petitioner merely brought out on
cross-examination that the facility kept a temperature log, and the recorded
temperatures differed from those reported by the
surveyor, CMS advanced the following uncontradicted evidence:
By way of a question to Ms. Truett on cross-examination,
Petitioner suggested that it was not non-compliant as to this Tag because
no evidence exists of a resident having been burned as a result of hot
water in the facility. Tr. 577. The notion that harm must first come to
a resident before CMS is allowed to take corrective action with respect
to a skilled nursing facility to protect the health, safety, welfare,
and rights of those residents runs counter to the letter as well as the
spirit of the Act. I conclude that the credible evidence shows not only that CMS presented a prima facie case that Petitioner was in violation of 42 C.F.R. �483.25(h)(1), but also that Petitioner failed to overcome CMS's case by a preponderance of the evidence.
42 C.F.R. � 483.25(h) requires that the facility must
ensure that each resident receives adequate supervision and assistance
devices to prevent accidents.
R44 had diagnoses of a fractured right hip and dementia.
On February 18, 1999, he was assessed as requiring staff assistance with
ambulation, transfers, and toileting. He was also known to be forgetful
about the use of the call light, and had a long history of falls. Although
an intervention in February 1999 resulted in the application of a body
alarm, the order was discontinued on March 17, 1999, on the basis that
the resident made no attempts to ambulate unassisted. The clinical record revealed that at 4:40 p.m. on April
3, 1999, the resident was found by the nursing assistant sitting on the
bathroom floor with his head against the wall, and urine on the floor.
On April 6, 1999, at 3:00 p.m., R44 was found by his bed on the floor
with a 1.5 centimeter skin tear on the left elbow. On April 17, 1999,
at 10:30 a.m., a family member found him on the floor next to his wheelchair.
On April 19, 1999, the clinical record revealed a blue area on the resident's
chin. A physician's order was obtained for a body alarm only
while the resident was in bed. On May 13, 1999, at 7:10 a.m., it was observed
that there was no fall intervention per toileting as planned. R44 was
observed on May 18, 1999, in bed with no personal alarm attached. Ms. Alden, the surveyor, testified that R44 had a fractured
right hip and dementia. He required assistance with ambulation, transfers,
and toileting. The facility noted that R44 had a history of falls and
that he was prone to attempt ambulation by himself. Because of his history
of falls, the facility applied a body alarm to R44(11),
but discontinued it beginning March 17, 1999, after concluding that the
resident no longer needed it. Tr. 94. Notwithstanding the facility's conclusion in March 1999
that R44 no longer required the body alarm, he suffered several falls
in the month of April 1999. When he was found in the bathroom on April
3, 1999, there was urine on the floor. When he was found on the floor
on April 6, he exhibited a skin tear on the left elbow. He experienced
other falls, but it was not until April 19, 1999, that Petitioner resumed
use of the body alarm, after the resident showed evidence of a reddish
blue area on the chin. Tr. 97. In defense of the facility, counsel for Petitioner argued
against characterization of the incidents where R44 was found on the floor
as falls. He reasoned that it could not be concluded that the resident
had fallen just because he was found on the floor. Counsel suggested other
possibilities, citing his own experience of sitting on the floor to watch
television. Tr. 98, 99. Petitioner also contends that it was by order
of the attending physician that the body alarm was discontinued, and that
the surveyors overlooked the resident's history of ignoring staff requests
to await for assistance with ambulation. P. Br. at 8. It is my finding that R44's floor experiences were in
fact the result of having fallen. Petitioner argues that the resident
may have decided to sit on the floor rather than suffering falls. That
is mere speculation because no staff member was a witness to such behavior.
However, the very fact that the resident somehow made his way to the floor,
whether it be in the bathroom, by his wheelchair or the bed, and the facility
was unable to explain how the incident occurred, is an indication of failure
to supervise. From the reinstatement of the body alarm on April 19, 1999,
there appears to be a recognition that the resident was in fact experiencing
falls, and not merely expressing a preference for spending time on the
floor. It does not strain the imagination to conclude that the resident
was experiencing falls if he was frequently found on the floor, and exhibited
lesions on his body. Moreover, I consider flippant Petitioner's counsel's
attempt to draw a parallel between his practice of sitting on the floor
to watch TV and the resident being found on the bathroom floor near a
puddle of urine. On cross-examination of Ms. Alden, Petitioner insinuated
that no wrongdoing could be attributed to the facility because R44 had
a history of ignoring staff requests to wait for assistance with ambulation.
Petitioner posed the question in the following fashion:
Tr. 267. From the questioning cited above, Petitioner concludes that the surveyors overlooked, on their direct examination, that R44 had a history of ignoring staff requests that he wait for assistance before ambulating. Ironically, it was Petitioner that overlooked Ms. Alden's testimony on direct examination where she stated that "the resident had a long history of falls and attempted to ambulate by himself." Tr. 94 (emphasis added). See also Tr. 105. On this point Petitioner "doth protest too much" because it was that knowledge of the resident's history of attempting to walk unassisted that should have created a sense of heightened awareness in the facility, and resulted in the appropriate supervision to prevent accidents. The resident's proclivity for unassisted ambulation, coupled with his dementia and fractured hip, was more than sufficient to alert the facility that it was a gross mistake to discontinue the resident's use of the body alarm on March 17, 1999. I am not impressed by Petitioner's suggestion that a body alarm is of no use because it does not prevent falls. Tr. 268. Of course, a body alarm is no more capable of restraining a resident than a fire alarm is capable of preventing a fire from starting. But what are alarms for? Simply put, as Ms. Alden stated, a body alarm is a safety device that would alert staff that a resident is getting up and trying to ambulate. Tr. 269. She added that a body alarm does not necessarily have to be ordered by a physician. The alarm could be applied as a nursing intervention. Tr. at 269. Thus, it was not necessary to wait for a physician to order reinstatement of R44's body alarm. To be sure, there is no evidence that it was discontinued on a physician's order. No showing has been made that a medically reasoned decision was reached on March 17, 1999, that R44's fractured hip and dementia had improved to the point of allowing for unassisted ambulation.
The surveyors found that R53 was assessed on March 18, 1999, as requiring extensive assistance for activities of daily living, and was described as confined to bed or in a wheelchair. On May 12, 1999, the facility staff confirmed that the resident's mattress had a sliding effect, and the side rails on the bed were one-half rails that allowed the bottom half of the bed to be completely open. The clinical record revealed that on May 3, 1999, the resident was found sitting on the floor. On May 6, at 7:00 p.m., she was found with her right leg hanging out of the bed, and later, kneeling on the floor. On May 10, 1999, at 2:00 p.m., the resident was found lying on the floor on her back, next to the left side of her bed, after having slid off. To prevent the resident from sliding off her bed, the physician had ordered a wedge cushion to the left side of the bed on May 10, 1999. A physician's order of May 12, 1999, was written for a body alarm at all times to monitor unassisted transfer. From May 12-14, 1999, it was observed that no wedge had been placed on the left side of the bed, and the call light was placed on the floor, out of the resident's reach.
The surveyors found that R77 had a diagnosis of dementia,
unsteady gait, and glaucoma. Although the resident was incontinent and
on anti-anxiety medication, the surveyors noted that no assessment for
falls had been made. On April 24, 1999, the resident was found on the
floor after which she complained of back pain and required six days of
hot packs. HCFA Ex. 3, p. 54. Although CMS contends that no assessment for falls had been made, it concedes that R77 was provided with a wheelchair. Furthermore, the need for assistance with ambulation based on incontinence and the taking of anti-anxiety medication is tenuous. Nonetheless, by making available a wheelchair to R77 the facility implemented an appropriate intervention to prevent accidents and provided an assistance device. CMS provided no evidence that would lead to the conclusion that the circumstances surrounding R77's fall were due a failure on the part of the facility to provide proper care. Ms. Alden's testimony in that regard was speculative. She added that a wheelchair would have been a proper intervention. However, one was provided by the facility. Tr. 126, 127.
R23 was assessed as non-ambulatory due to right side contractures
and increased weakness. It was noted that the resident had a history in
March 1999 of a fall to the floor, when he was left unsupervised. On May
1, 1999, the nurses documented that R23 was found on the floor with a
bleeding gash on the left temporal area, a hematoma on the left cheek
bone, and a skin tear on the left arm. The nurses also documented that
on May 4, the resident complained of left hip pain and exhibited a bruise
with swelling. A care plan written on August 20, 1998, to address the
risk of falls had interventions that included keeping a call light within
reach, and a body alarm at all times. On May 12, 1999, the surveyor noted
that the body alarm had a beep that was inaudible outside the resident's
room. The following day, the surveyor observed the resident in bed without
a call signal within reach. At that time, R23 exhibited a large purple
bruise on the left shin with a raised hematoma. R32 had a history of falls from the bed and chair in December
1998 and January 1999. She was designated as "high fall risk." This meant,
according to nursing, that she was to be supervised in the dining area
during the day. Nonetheless, on April 7, 1999, at 11:15 a.m., the resident
was found on the floor complaining of right wrist pain, and on April 18,
at 2:45 p.m., she was found on the floor yelling for help with a cut on
the bridge of her nose. On April 22 and 26, 1999, the nurses documented several
additional falls. In spite of all these falls and injuries, on May 18,
1999, the resident was observed in bed without a call signal. R37 was assessed as requiring extensive physical assistance
with position changes, and was at risk of falls due to loss of balance,
cerebral vascular accident, and poor decision-making ability. Care-planned
interventions included the use of two half side rails. On May 1, 1999,
the resident slid to the floor from the bed after the aide left him alone
with the side rail down. I find that with respect to R23, R32, and R37, CMS amply
established a prima facie case that Petitioner did not comply with 42
C.F.R. � 483.25(h)(2). The record is unequivocal that R23 as well as R32 suffered
actual harm due to Petitioner's failure to provide adequate supervision
and assistance devices to prevent accidents. To illustrate, R23 suffered
injuries to the left temporal area, cheek bone and left arm on May 1,
1999, requiring medical attention that included sutures. HCFA Ex. 13,
p. 55. Another accident on May 4th resulted in a bruised shin.
Tr. 413. Likewise, R32 suffered repeated falls in April 1999, due
to Petitioner's failure to provide adequate supervision and assistance
devices to prevent accidents. This is evidenced by a fall on April 18,
1999, when she suffered a cut on the bridge of her nose. These are residents whose care plans called for fall prevention
interventions, yet the facility provided no evidence at the hearing regarding
measures taken to protect them from falls. CMS, on the other hand, provided
evidence to show that a care planned intervention, such as use of a body
alarm and call light were not always made available or placed within reach. In regard to R37, the evidence shows that he slid to the
floor from his bed when an aide left him unattended with the side-rail
down. No consideration was given to the fact that the physician had ordered
side rails to prevent that type of incident. Petitioner attempts to blur
the issue by stating that Ms. Truett, the surveyor could not be sure whether
the resident slid or fell from the bed. For purposes of showing that Petitioner
did not properly provide supervision to R37, and did not employ assistance
devices as ordered by the physician, such distinction is irrelevant. See
P. Br. at 9. Other than this inconsequential argument in reference to this portion of Ms. Truett's testimony, Petitioner presented no evidence or persuasive argument in order to satisfy its legal requirement to rebut CMS's prima facie case of failure to comply with 42 C.F.R. � 483.25(h)(2).
42 C.F.R. �483.65 (a)(1)-(13) requires that the facility
establish an infection control program under which it investigates, controls,
and prevents infections. On May 14, 1999, Ms. Alden, observed R62 during a treatment
by the nurse to a stage III pressure sore on the coccyx and left buttock.
At the onset of the treatment, the resident had visible bowel movement
oozing from her rectum. She repeatedly indicated that she needed to be
toileted. Nonetheless, the nurse continued with the treatment. The nurse
opened the container of debriding cream and applied it to the centers
of the yellow, bloody coccyx and left buttock with gloved hands. After
the application, she placed the contaminated tubes directly on the resident's
overhead table. On May 12, 1999, Ms. Alden observed R74 with an open bloody
sore on his right buttock. The nurse applied cream to the area without
covering it with a dressing. The resident had no incontinence brief or
underwear on. The staff removed his outer sweat pants and placed them
on the overhead table of his roommate (R75). At that point, another staff
member entered the room and placed the resident's sweat pants on R75's
bed. She then wiped off a wet area on the table with a paper towel and
placed R75's supper on the table top. This resident had been identified
by the facility as being treated for a parasite skin infection. Subsequent
to this incident, on May 17, R75 was reported, as per the clinical record,
to have complaints of itching to the upper arm and chest. The documentation
attested to the resident having a red, round, raised rash with a few areas
noted to have small pustule centers. The physician prescribed a topical
lotion. R32 was observed by Ms. Truett, on May 13, 1999, during
toileting and incontinence care. The attending nurse aide picked up a
wash cloth from the floor of the bathroom and used the cloth to wash the
resident. On May 13, 1999, Ms. Truett observed R31 during incontinence
care. A nurse aide removed an incontinence brief that was heavily soiled
with urine and feces. While removing the brief, her gloves became visibly
soiled with incontinence material. Without removing her gloves, the nurse
aide opened the resident's dresser, removed a bottle of powder and opened
the privacy curtain. The aide also placed soiled linen on the resident's
dresser, and brought soiled material in contact with the resident's personal
possessions. Ms. Alden testified that R62's medicated cream was applied
to the resident's wound in close proximity to the oozing stool from her
rectum. Furthermore, the tube of medication, which came in contact with
the nurse's gloved hands that had been in contact with the wounds, and
near the stool, was placed on the resident's bed table. Tr. 29. Ms. Alden
pointed out that when using a debriding cream it is ineffective, if the
wound is not cleaned properly, and if there is a chance that the resident's
stool may become involved with the cream. Such action puts the resident
at risk of a wound infection. Tr. 130. In Ms. Alden's opinion, the appropriate
thing to do in a situation such as the one under consideration is to stop
the treatment and continue after the resident has had the bowel movement
- that would be the proper way to handle the situation not only because
of the potential for contamination and infection in the wound, but also
to preserve the resident's dignity. Tr. 132. Ms. Alden stated that it was inappropriate for the staff
to apply cream to R74's wound without applying any dressing. She also
found it potentially harmful to place R74's sweat pants on his roommate's
table and then on his bed. She explained that fluid from the opened sore
could get into the pants and spread to the table and bed. Moreover, the
pants should not have come into contact with any of R75's personal effects
because R75 was being treated for a parasitic infection called scabies,(12)
which is highly infectious and spreads by contact. Tr. 135.
Ms. Alden noted also that the facility's records described
R75 as an 85 year old male diagnosed with scabies and under treatment
with Ibermectin and Kwell. Tr. 136. She added that other residents had
been diagnosed with this condition and that it had been an ongoing problem
at the facility. Tr. 138, 139. Petitioner presented no evidence to contradict CMS's showing
of a prima facie case that the facility was in violation of 42 C.F.R.
� 483.65 (a)(1)-(13). The evidence reflects that the facility's inappropriate
practices promoted the spread of infection rather than ensuring that an
infection control program was implemented in a manner that would prevent
the potential spread of infection. The only argument offered by Petitioner
regarding the deficiency contained in F 441 is to the effect that the
surveyor sensationalized the appearance of a deficiency when none was
present. Petitioner adds that although one resident was diagnosed with
scabies and three others were treated for the condition, the surveyors
did not really know whether there was any spreading of scabies. P. Br.
at 14. Petitioner fails to understand the nature of the charge.
The imposition of a remedy by CMS as to this tag is not grounded on a
claim that there was spread of scabies in the facility. What is at issue
here is the facility's failure to ensure that the infection control program
was implemented in a manner that would prevent the potential spread of
infections. Therefore, the operative word is potential. It is not relevant
whether an actual spread of infection occurred or not. On cross-examination, Petitioner brought out that on May
14, 1999, Dr. Alan Burwinkel noted that R75 was status post scabies and
was to be placed on observation only. Petitioner thus concludes that if
Dr. Burwinkel had a concern that the resident's scabies was still infectious
or there was risk of transmission, he would have ordered treatment to
continue. Tr. 574; HCFA Ex. 10, p. 129. This reasoning overlooks, however,
that the incident involving the commingling of the personal effects of
R74 and R75 with contaminated material took place on May 12. In this regard,
Petitioner produced no evidence to show that R75's scabies condition on
May 14, was identical to his condition on May 12. Additionally, the surveyor
found that on May 17, 1999, at 11:30 p.m., the clinical record revealed
that R75 was complaining of itching to the upper right arm and chest.
Documentation also stated that the resident had a red, round, raised rash
with small pustule centers. The physician gave a new order for a topical
lotion. The resident's symptoms on May 17 were consistent with the surveyor's
description of how scabies manifests itself. It would appear, then, that
on the 14th of May, R75 was not fully out of the woods concerning
his parasitic condition. HCFA Ex. 3 at 58. Besides, the carelessness displayed
by Petitioner on May 12th, cannot be excused based on a chart
entry made on May 14th. The knowledge Petitioner possessed
on May 12th was that the resident was still being actively
treated for scabies, and Petitioner should have acted accordingly. Finally, Ms. Truett testified to gross mishandling of contaminated matter and exposure of residents to the potential spread of infections. This was exemplified by her description of the deficiencies involving R32 and R31. See Tr. 431 and HCFA Ex. 3, pp. 58, 59. Again, Petitioner presented no evidence to refute HCFA's prima facie showing that Petitioner was in violation of the requirement to implement an infection control program. Thus, CMS's offering stands uncontradicted.
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.
R39 was assessed on May 14, 1999, to require extensive
physical assistance for all care. Care-planned interventions included
weekly skin assessment, bilateral leg wraps changed every five days, and
a wheelchair "foot buddy" with footrests. Nursing notes document that
on May 16, 1999, there was blood seeping under the left leg wrap. When
the wrap was removed a 3 inch skin tear was exposed. The facility implemented
sleeve dressings at all times on June 17, 1999. On July 8, 1999, the resident was observed at 7:00 a.m.
sitting in a wheelchair without protective sleeve dressings. The resident's
feet were on the floor and there were no foot rests nor foot buddy on
the wheelchair. The protective gauze dressings on both lower legs were
taped and dated June 29, 1999. According to the nursing documentation,
the dressings were to be changed on July 5. Resident 55(13) had diagnoses
of chronic venous insufficiency and deep vein clotting. The treatment
regimen included use of sheepskin protectors for status ulcers and leg
elevation. On July 7, 1999, R55 was observed without lower extremity support
or elevation. According to the record, this type of care was discontinued
on July 9th, due to the resident's refusal and poor
cooperation. However, on July 8th, the resident was observed
in the wheelchair with both feet elevated on the foot rest. The licensed
professional physical therapist was observed on July 9th, instructing
the restorative aide in proper range of motion exercises and positioning
for the resident. R55 cooperated with the therapist and did not refuse
the care provided. Ms. Truett testified that on July 8, 1999, she observed
R39 sitting in a wheelchair without protective sleeve dressings and no
foot rests and no foot buddy. She also noted that the protective gauze
dressings were taped and dated June 29, 1999. Ms. Truett explained that
the purpose of dating the dressings is to monitor the assessment schedule.
Tr. 450-451. R39 was on a five-day schedule, and the record reflected
that she was due for a dressing change on July 5, 1999. However, Ms. Truett
observed on July 8, that no dressing change had taken place since June
29. Tr. 452. On July 8, the dressings were soiled, and rolled up at the
edges. Tr. 453. When the dressings were removed, multiple scabbed and
bruised areas in the lower extremities were evident. In addition, two
raised, blood filled areas, not previously identified in the clinical
record, were evident on the inner left leg. R39 was on a Tuesday and Friday
bathing schedule. Consequently, the only inference I can draw from the
filthy dressings dated June 29th, as observed by Ms. Truett
on July 8th, is that R39 was not even being bathed as scheduled.
Tr. 452; HCFA Ex. 18 p. 42. The very last entry in the nurses' notes,
stated that a skin assessment was performed, and it was initialed. That,
however, is not possible in view of Ms. Truett's uncontradicted testimony
that on July 8, R39's dressings still had a June 29 date marked on them.
If the date of June 29 appearing on the dressings was not sufficient,
surely the rolled up and filthy aspect of the dressings would be telling
enough of the facility's dereliction in providing necessary care to R39. Petitioner's only response to this deficiency is that
the ulcer exhibited by the resident, was the result of the progression
of the vascular disease. P. Br. at 14. In this respect, Petitioner overlooks
Ms. Truett's testimony to the effect that not changing a resident's dressings
according to the physician's schedule could result in a worsening of the
skin condition or skin breakdown. Tr. 453. In the specific case of R39,
lack of proper monitoring failed to discover deterioration
in the resident's skin condition. Multiple scabs, bruised areas, and blood-filled
areas in the lower extremities were not timely treated. I find that any undesired progression in the vascular
condition of R39 is more likely than not attributable to Petitioner's
failure to comply with the requirements of 42 C.F.R. � 483.25. Ms. Alden testified that although the physician had ordered
that R55 maintain leg elevation to assist with her lower extremity blood
flow problem, she observed twice on July 7, 1999, that R55 sat on the
wheelchair with no support and no leg elevation. Tr. 148. Petitioner argues,
and CMS concedes, that the resident was uncooperative and refused treatment.
P. Br. 14. However, CMS contends that the resident was observed on July
9, 1999, cooperating with the licensed physical therapist and accepting
treatment. CMS br. at 16; Tr. 156. All that is shown here is that a licensed physical therapist
managed to deal with an uncooperative resident. CMS did not advance sufficient
evidence to justify a conclusion that the facility failed to maintain
support and leg elevation on July 7 and 9, 1999, for a reason other than
the resident's unwillingness to cooperate. Although mere evidence that
a resident has been uncooperative is insufficient to justify lack of proper
care, the record does show that the facility brought to bear some means
to deal with the resident's unwillingness to accept intervention.
42 C. F. R. � 483.25(c) requires that the facility ensure
that a resident who is admitted without pressure sores does not develop
them, unless the individual's clinical condition demonstrates that they
are unavoidable; and a resident having pressure sores receives necessary
treatment and services to promote healing, prevent infection, and prevent
new sores from developing. R55 had two avoidable pressure sores on her right buttock.
The resident was observed on July 7, 1999, in a wheelchair for prolonged
periods without position changes. At 4:00 p.m. that same day, the resident
was wheeled to the shower and transferred to a hard plastic shower chair.
During transfer two bloody areas were noted on the sheet the resident
sat on. She complained of discomfort while seated on the plastic chair
for more than one hour. Although on July 7, 1999, a topical cream was
applied to the two open sores, no mention of their existence was made
in the clinical record. As a result, on July 8, 1999, the nursing staff
responsible for the resident stated they were unaware the resident had
any sores. R11 had diagnoses of sepsis, dementia, dehydration, depression,
and right hip fracture. She was incontinent and totally dependent on staff
for toileting. This made her a high risk for skin breakdown. Care-planned
interventions included a special pressure relief pad for the wheelchair,
repositioning every two hours, and incontinence care every 2 to 3 hours. On July 8, 1999, an immediate needs care plan identified
an open sore on R11's right buttock due to incontinence. On July 9, 1999, at 6:26 a.m., the resident was not checked
for incontinence before being transferred to a wheelchair that did not
have a pressure relief device. The resident remained in the wheelchair
without repositioning, or incontinence care, until 10:15 p.m. The survey findings in the case of R55 and R11 clearly
reflect that the facility was not taking aggressive action to prevent
pressure sores or provide care planned interventions to promote healing
of pressure sores. This was corroborated by surveyor testimony. Tr. 162-178,
460-467. Thus, CMS has established a prima facie case that Petitioner was in violation of 42 C.F.R. � 483.25. Petitioner failed to rebut CMS's showing by a preponderance of the evidence. In fact, Petitioner did not dispute any of the evidence presented by CMS regarding this deficiency.
42 C.F.R. � 483.25(d)(2) requires that a resident who
is incontinent of bladder receives appropriate treatment and services
to prevent urinary infections and to restore as much normal bladder function
as possible. R59 had a history of treatment for bacterial urinary tract
infections, and was assessed on April 13, 1999, as incontinent of urine.
She was observed on July 8, 1999, from 7:30 a.m. until 10:00 a.m. in her
wheelchair. At 10:00 a.m., she was transferred to her bed where it was
noted that her sweat pants were visibly wet on the crotch. The staff removed
a heavily soaked, foul smelling, incontinence brief from the resident.
The resident's buttocks were observed to have multiple red areas with
blisters covering the entire area where the brief was removed. Two of
the areas on the left buttock had open bloody centers. R4 was assessed on April 20, 1999, to require assistance
with toileting and bladder incontinence. She had a history of bacterial
urinary tract infections. Care-planned interventions included keeping
the resident clean and dry. She was to be checked every 2 to 3 hours. At 6:30 a.m. on July 9, 1999, the resident was observed
in the dining room where she remained until 9:15 a.m. She then propelled
her own wheelchair down the hall, where she remained until 9:55 a.m. without
being checked or provided incontinence care. At that time a nurse aide
transferred the resident to bed and removed a heavily soiled and foul
smelling incontinence brief that had the time of "5:35 a.m." written on
it. R5 was assessed as occasionally incontinent of bladder
and to require extensive assistance with toileting. The resident had a
bacterial urinary tract infection on June 6, 1999. Care planned interventions
included taking the resident to the bathroom before and after meals, every
2 hours, and on request. No perineal care was provided on July 8, 1999
after toileting. On July 9, it was observed that assistance with toileting
before and after meals was not provided as called for in the care plan.
When the resident was belatedly toileted on that day, the nurse did not
cleanse the urine and feces from the resident before applying an incontinence
product and dressing the resident. Thus, care was not provided to prevent
urinary tract infections. R36 was assessed on May 18, 1999, as occasionally incontinent
of bladder and to require extensive assistance with toileting. She had
a history of urinary tract infections. Her care plan included toileting
every 2 to 3 hours, and perineal care after incontinence. On July 8, 1999, the resident remained in the dining room
from 7:20 a.m. until 9:38 a.m. when she was wheeled to the bathroom for
toileting. At that time, the nurse removed a heavily soiled incontinence
product. The urine was observed to be dark and foul smelling. Perineal
care or cleansing was not provided prior to the application of a new incontinence
product and dressing. Based on surveyor observations and record review, and
testimony at the hearing, CMS established a prima facie case that the
facility failed to ensure that each resident with an incontinent bladder
received appropriate treatment and services to prevent urinary tract infections
and to restore as much normal bladder function as possible. HCFA Ex. 4,
pp. 12-15; Tr. 180-184. 470-480. Petitioner has presented no evidence to refute CMS's prima
facie case by a preponderance of the evidence. For the most part, Petitioner's
defense addresses the reference in the record to R59's refusal to be toileted
and showered, and her abusiveness of staff. Additionally, Petitioner contends
that the facility promptly changed the resident when she was noted to
be wet and that the surveyor could not account for the volume of urine
collected in the incontinence pad. I find that a resident's refusal to be cared for is not
an excuse for abandonment of the facility's duty to provide for the well-being
of that resident. In the case at hand, the facility produced no evidence
regarding a plan for dealing with the resident's refusal. No professional
intervention or family involvement was brought to bear in dealing with
the situation. Nonetheless, on July 8, 1999, when the surveyor was present
to observe the type of incontinence care that was being provided, there
was no evidence of the resident's lack of cooperation. The facility's
lack of aggressive approach to incontinence care for R59 was evident in
the surveyor's observation on July 8, 1999, that her buttocks revealed
multiple red areas with blisters entirely covering the part where the
brief was removed. Petitioner also overlooks and fails to address the
two areas on the left buttock that were open with bloody centers. See
HCFA Ex. 4, p.13. These findings are more telling of the cumulative effect
of the facility's failure to provide necessary incontinence care to this
resident, than a report of second by second observations by the surveyor.
Of course, Petitioner's reasoning that virtually no time elapsed from
the time the surveyor observed the resident to be wet until she was changed,
is wide of the mark. Although the time of the previous change is unknown,
it is an established fact that the surveyor observed the resident from
7:30 a.m. until 10:00 a.m. on July 8, 1999. During that time, no one from
the facility's staff went to check on the resident. That is the significant
matter to consider. The logical corollary to Petitioner's reasoning is
that if an incontinent resident is not visited by staff
for 5 hours, and after that lapse of time, they notice the resident to
be in need of incontinence care and provide such care immediately, then
that would be evidence of compliance. The reasoning is certainly flawed.
Petitioner's argument that the surveyor could not testify to the rate
or volume of the resident's urine discharge is not worthy of comment.
The only other argument advanced by Petitioner regarding
the deficiency at tag 316 is that the surveyor was uncertain as to the
amount of time that the resident's diaper was wet or soiled. P. Br. at
13. Again, Petitioner ignores that R59's brief was marked "5:35 a.m."
and was changed at 9:55 a.m. It is absurd to even ask the surveyor how
much time transpired from when the resident became wet or soiled until
she was changed. There is no way for the surveyor to know that. On the
other hand, it is just as plain that the care plan called for incontinence
checks every 2 to 3 hours. The facility was unable to produce evidence
that it made the required checks between 5:35 a.m. and 9:55 a.m.
42 C.F.R. � 483.75(f) requires that the facility must
ensure that the nurse aides are able to demonstrate competence in skills
and techniques necessary to care for residents' needs, as identified through
resident assessments, and described in the plan of care. R4 was 102 years old and assessed with fragile skin. She
had a history in March and June 1999 of bruises of unknown origin to the
extremities. Care-planning for skin integrity included an intervention
for safe transfers using a gait belt. On July 3, 1999, nursing notes documented
that the resident was standing at the handrail in the bedroom while a
nurse provided incontinence care. After care was completed, blood was
noted on the resident's right arm. A nursing assessment revealed a 6 by
3 inch gaping laceration, one inch in depth, in the right forearm. A 2.5
by 1.5 centimeter skin tear was noted on the left elbow, and a 4 by 2
centimeter skin tear was noted on the right elbow. The resident required
transfer to a hospital, and a plastic surgeon closed the laceration with
30 sutures. Subsequent to that incident, on July 8 and 9, 1999, the surveyors
observed improper transfer assistance being provided to R4. R5, R39, R11, and R59 were assessed with fragile skin
and in need of extensive physical assistance. The surveyors observed on
July 8 and 9, 1999, that gait belts were not utilized for transfers as
required. Nurse aides improperly lifted the residents by placing their
arms under the residents' axilla. By utilizing improper transfer techniques, Petitioner
caused actual harm to residents in some cases, and, in others, put them
at risk of injury. In the particular case of R4, she suffered actual harm
when being transferred and handled for incontinence care. HCFA Ex. 17,
pp. 133, 134. Incontinence care was being given while the resident stood
at her bedside at the handrail in her room. At that time, a gaping laceration
was noted in the resident's right arm, from which blood flowed. Surgical
repair required 30 sutures. Tr. 483-487. Ms. Truett testified that the
handrail at which the resident was standing exhibited blood and skin fragment.
Tr. 487. It is reasonable to conclude that since the bleeding wound was
evidently fresh, and presented itself at the time of transfer and handling
for incontinence care, that the injury occurred in that process. Furthermore,
the resident was a very fragile, non-weight bearing 102 years old person.
HCFA Ex. 4, p. 24. She was, thus, totally dependent on the facility for
mobility and care. Consequently, I find that the injury of July 3, 1999,
resulted from the facility's lack of proper assistance and supervision
in the transfer and handling of R4. R5, R39, R11, and R59 were placed at risk of injury due to employment of improper transfer techniques. CMS has established a prima facie case that Petitioner was not in substantial compliance with 42 C.F.R. � 483.75(f). The facility has not come forward with evidence to contradict CMS's showing of lack of substantial compliance. As a result, it has failed to meet its burden of overcoming CMS's prima facie case by a preponderance of the evidence.
I have determined that Petitioner was not in substantial
compliance with 42 C.F.R. �483.25 (h)(1) from April 10, l999, to May 20,
1999. I must now consider whether CMS's determination of immediate jeopardy
is clearly erroneous. 42 C.F.R. � 498.60(c)(2). Koester Pavilion,
DAB No. 1750 (2000). The unrebutted evidence presented by CMS shows that R11
was very dependent due to several severe conditions. In addition, she
suffered from aphasia, and thus lacked the ability to cry out for help.
She was placed in a bed with unpadded half side rails that left a 4 to
5 inch gap between the mattress and rail. All of these factors militated
against the resident and placed her at high risk of entrapment. After
R11 became entrapped on April 10, 1999, the facility failed
to take prompt action to prevent further accidents of that nature. Petitioner
knew or should have known that in an entrapment situation, the resident's
frail condition, combined with her aphasia could result in chest compression,
suffocation, or even death. The potential for entrapment and the inability
of the resident to extricate herself were real concerns ignored by the
facility. Pertinent to this is Ms. Truett's testimony regarding her personal
knowledge of residents dying in side rails in nursing homes. She expressed
it in the following terms:
Tr. 395. After the resident became entrapped on April 10, 1999,
the facility failed to take prompt action to prevent further accidents
of that nature. In fact, it was not until R11 slid down from her bed on
May 14, 1999, that Petitioner implemented any type of intervention. On cross-examination of Ms. Truett, Petitioner impliedly
asserted the defense that the resident was not found to have had any injuries
as a result of the entrapment incident of April 10, 1999. Tr. 543. Although
CMS appeared to concede that R11 suffered no apparent injury, it is also
true that the clammy aspect of her skin and mottled extremities spoke
clearly of the distressful experience she had encountered. Beyond that,
it is well settled that the regulation does not require any finding of
actual harm to justify a determination that immediate jeopardy exists
if the risk is imminent or serious enough. Immediate jeopardy is defined
in the regulations as a situation in which 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. Thus, as in the present case, the existence of a high
risk for entrapment with the potential for chest compression, suffocation,
or death, satisfies the regulatory requirement of imminent danger, and
therefore, supports a finding of immediate jeopardy; however, not for
the entire time period CMS determined. As was stated in Wellington Specialty Care & Rehabilitation
Center, DAB CR 548 (1998):
Id. at 9. In that same decision, the ALJ went on to say that:
Id. Petitioner has advanced no cogent argument to persuade
me that CMS's determination of immediate jeopardy is clearly erroneous.
Its argument that a 10-day delay by the surveyor in advising the facility
of the imposition of immediate jeopardy is unavailing. Ms. Truett testified that she learned of R11's side rail
entrapment on May 12, 1999, and continued the survey until its conclusion
on May 19th. It was not until she concluded the survey, that
she was in a position to assess all of the information that had been gathered.
Ms. Truett explained that upon returning to her office and reviewing the
information, she realized that there was no other alternative but to cite
the facility at the immediate jeopardy level. After obtaining her co-team
member's concurrence, she discussed the matter with the assistant supervisor
responsible for the facility. Tr. 400. Notification was given to the facility at noon on May
20, 1999, that is, within a 24-hour period after conclusion of the survey.
Petitioner claims that there was a delay regarding notification of the
existence of immediate jeopardy. However, it fails to express what legal
consequences, if any flow from that. Moreover, Petitioner does not contend
that it was prejudiced in any way. It is not my interpretation of these
circumstances that if Petitioner had been told on May 12, 1999, that an
immediate jeopardy violation had been found, it would have proceeded with
a greater measure of diligence toward correction. The record shows that
the facility was first alerted to a deficiency regarding entrapment of
R11 on May 12, 1999, and it was not until after the resident slid from
her bed on the 14th of May that the facility began to take
earnest steps to correct the situation. First, the facility ordered a
therapeutic Roll Guard mattress on May 16, 1999, and then instituted temporary
measures by inserting wedged pads under the resident's mattress. HCFA
Ex. 15, p. 20. From the foregoing, it appears that what triggered corrective
measures to prevent entrapment was totally unrelated to the notification
of the existence of immediate jeopardy. Clearly, this is something the
facility could have and should have done, at least contemporaneously with
the April 10, 1999, entrapment incident. In view of the foregoing, it is my conclusion that Petitioner was not in substantial compliance from April 10, 1999, through May 16, 1999, at the immediate jeopardy level. In light of the remedial steps taken by Petitioner beginning on May 17, 1999, I find that CMS's determination that the deficiency was at the immediate jeopardy level was clearly erroneous only insofar as it included May 17-20, 1999. After May 16, 1999, Petitioner continued to be not in substantial compliance with federal requirements of participation in the areas of quality of care (42 C.F.R. � 483.25), infection control (42 C.F.R. � 483.65), and administration (42 C.F.R. � 483.75). Although these deficiencies were at less than the immediate jeopardy level, some caused actual harm to residents.
Petitioner filed a motion in this matter dated June 27, 2000, and styled "Motion of Petitioner Cathedral Rock of North College Hill, Inc., DBA Beechknoll Convalescent Center to Limit the Civil Monetary Penalty." The essence of Petitioner's argument is that as a successor owner it is not liable for CMPs assessed for deficiencies cited before it took control of the facility. In the alternative, Petitioner seeks to have the CMP in this case limited to a "nominal sum." Petitioner incorporated the motion into its post-hearing brief filed October 20, 2000. P. Br. at 1. I address the affirmative issue raised by Petitioner first, and then examine whether the CMPs assessed in this case are reasonable as a matter of law.
The amount of CMP I sustain, as discussed above, is $3,050
per day of immediate jeopardy from April 10, 1999 to May 16, 1999; and,
$200 per day after May 16, 1999, until the termination of Petitioner's
participation in the Medicare and Medicaid programs effective July 19,
1999. Cathedral Rock took control of the facility on May 4,
1999. On May 11, 1999, a follow- up survey was conducted to surveys that
had been conducted in January and March of 1999. Cathedral Rock is not
related to the former operator, and all deficiencies alleged in the initial
surveys stemmed from the management of Cathedral Rock's predecessor. The history of prior compliance should be considered regardless
of the change of ownership in determining the amount of a CMP, because
a facility is purchased "as is" (I noted this in my Ruling issued on February
15, 2000). However, the fact that the history is relevant does not prevent
the new owner from rebutting the presumption of the predictive value of
the history of noncompliance in determining future compliance. That presumption
might be rebutted where the new owner "cleans house". Careplex of Silver
Spring, DAB No. 1683 (1999). In Careplex, the Board indicated
that the ALJ could find that the facility needed no "spur" to correct
its deficiencies (an underlying rationale for having the liability for
CMPs carry over to the new owners). In that case, the Board found the
CMP should be lowered because the presumption of the history's predictive
value had been rebutted. Id. In that case, the new owners apparently
took control days before the initial survey, and by the follow-up survey
the facility was found in substantial compliance. In accordance with the Board's holding regarding "successor
liability" for CMPs, Petitioner in the instant case also took the facility
"as is." The facts in this case show that Petitioner did not overcome
the presumption that the noncompliant history of its predecessor was still
relevant. The Board in Careplex suggested that a facility might
"clean house" to overcome the presumption. In this case, Petitioner assumed
control of the facility on May 4, 1999, and was found to still be out
of compliance at the May 19, 1999, survey. Petitioner did not achieve
compliance by the July 9, 1999, revisit survey. The record indicates that
Petitioner did take steps to improve the facility, including staff changes
and physical improvements, and these were noted by the surveyors. Tr.
64. Despite these efforts, CMS concluded from the survey record as a whole,
and I agree with the conclusion, that the CMP was apparently not sufficient
to spur the facility into substantial compliance, and thus the presumption
of the predictive value of the facility's history of noncompliance had
not been rebutted. I find that the record indicates that Petitioner allowed
deficiencies to persist despite ample notice, and time, to rectify them.
While the facility did take remedial steps, I find that they were insufficient
to overcome its burden on this point. Accordingly, Petitioner has not
persuaded me that reason exists to find the amount of the CMP unreasonable.
As discussed above, I uphold CMS's determination that
Petitioner was deficient at the immediate jeopardy level, although only
from April 10, 1999 to May 16, 1999; therefore, the CMP of $3050 per day
for each day of that period is per se reasonable as a matter of law because
it is the lowest amount possible under the regulations. 42 C.F.R. � 488.438
(a)(1). The reasonableness of the remaining CMP of $200 per day
imposed for noncompliance from May 17, 1999 until July 18, 1999, turns
on what factors CMS weighed in making its determination, and any proof
that Petitioner offered in asserting that the CMP is unreasonable. The
required factors are: (1) the facility's history of noncompliance (as
discussed above, CMS appropriately considered this factor), (2) the scope
and severity of the deficiencies, (3) the facility's culpability, and
(4) the facility's financial condition. 42 C.F.R. � 488.438 (f). Regarding the second and third factors to be considered,
the scope and severity of the deficiencies and the facility's culpability,
the record indicates that the surveyors discovered a pattern of deficiencies
affecting more than one resident, and causing actual harm. The failure
to adequately prevent and treat pressure sores, discussed above, was cited
at the actual harm level in all four surveys, including two instances
after Petitioner took control of the facility. See HCFA Exs. 3,
4. The record supports weighing the second and third factors against Petitioner;
and Petitioner has not suggested what might mitigate or contradict those
facts. With respect to the fourth factor, it became
evident during the hearing that the facility is a subsidiary of a corporation,
which, according to the testimony of Kent Harrington, has a line of credit
with its lender. Mr. Harrington also testified that there was a contractual
arrangement for indemnification made with the former owners. Tr. 760-762,
767. CMS calculated that, based on Mr. Harrington's testimony, the CMP
would constitute a small percentage of the facility's daily revenues.
CMS Br. at 41. No evidence was introduced to confute these points; thus,
the record does not indicate that payment of the CMP would threaten to
close the facility. I find the amount of the CMP reasonable as imposed.
As discussed above (at FFCL B.1 - FFCL B.8), I have found that the facility was not in substantial compliance with federal requirements from April 10, 1999 through July 19, 1999. CMS in its notice of imposition of remedies dated June 8, 1999, notified the facility that it was imposing a denial of payment for new admissions effective June 25, 1999. Because the facility did not demonstrate that it was in substantial compliance at any time prior to the date that the denial of payment went into effect, and similarly did not demonstrate substantial compliance at any time prior to the effective date of its termination, I uphold CMS's imposition of a denial of payment for new admissions from June 25, 1999 through July 19, 1999.
For the same reason, I uphold CMS's termination of the facility's provider agreement effective July 19, 1999. The facility failed to demonstrate substantial compliance at any time prior to the effective date of the termination of its provider agreement as set forth in CMS's notice of imposition of remedies issued on June 8, 1999, and the CMS surveys I have discussed which were completed on May 19, 1999 and July 9, 1999, amply demonstrated that the facility was not in substantial compliance. CMS was therefore authorized to terminate the facility's provider agreement. Beverly Health & Rehabilitation-Springhill v. HCFA, DAB No. 1696 (1999); Libbie Convalescent Center v. HCFA, DAB CR589 (1999). |
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JUDGE | |
Jose A. Anglada Administrative Law Judge
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FOOTNOTES | |
1. The history of the surveys and notice of deficiencies are found in the notice letter sent by CMS to Mr. Larry Steele, Petitioner's administrator, on June 8, 1999. 2. The initial survey was in fact conducted on January 19, 1999. HCFA Exhibit (Ex.) 1. 3. Prior to the hearing, CMS had claimed that no request for hearing had been filed concerning the July 9, 1999, revisit survey; however, the record does reflect that such a request was received by the Civil Remedies Division on August 23, 1999. 4. HCFA Ex. 3 - Form 2567 (Transcript (Tr). 30). HCFA Ex. 4 - Form 2567 (Tr. 160). HCFA Ex. 8 - Chart of Beechknoll Community Second Floor Census (Tr. 33). HCFA Ex. 10, p. 129 - Care Plan with notes (Tr. 137). HCFA Ex. 10, p. 116 - Immediate Care Plan with notes (Tr. 404). HCFA Ex. 11 - Report of Complaint Investigation (Tr. 439). HCFA Ex. 13, pp. 5-8 - Resident Review Worksheet (Tr. 447). HCFA Ex. 13, pp. 21-24 - Resident Review Worksheet (Tr. 72). HCFA Ex. 13, pp. 25-28 - Resident Review Worksheet (Tr. 103). HCFA Ex. 13, pp. 29-32 - Resident Review Worksheet (Tr. 51). HCFA Ex. 13, pp. 41-44 - Resident Review Worksheet (Tr. 116). HCFA Ex. 13, pp. 52-55 - Resident Review Worksheet (Tr. 408). HCFA Ex. 13, pp. 56-59 - Resident Review Worksheet (Tr. 427). HCFA Ex. 13, pp. 60-63 - Resident Review Worksheet (Tr. 119). HCFA Ex. 14, p. 24- Surveyor Notes Worksheet (Tr. 36). HCFA Ex. 14, p. 26- Surveyor Notes Worksheet (Tr. 43). HCFA Ex. 14, p. 27-52 - Surveyor Notes Worksheet (Tr. 368). HCFA Ex. 14, p. 29- Surveyor Notes Worksheet (Tr. 351). HCFA Ex. 14, p. 31- Surveyor Notes Worksheet (Tr. 366). HCFA Ex. 14, p. 52- Surveyor Notes Worksheet (Tr. 354). HCFA Ex. 14, p. 53, 54 - Surveyor Notes Worksheet (Tr. 85). HCFA Ex. 14, p. 56- Surveyor Notes Worksheet (Tr. 63). HCFA Ex. 14, p. 61, 62 - Surveyor Notes Worksheet (Tr. 68). HCFA Ex. 15, pp. 19-22 - Immediate Care Plan and Nurses' Notes (Tr. 384). HCFA Ex. 15, pp. 32- Immediate Care Plan and Nurses' Notes (Tr. 342). HCFA Ex. 16, pp. 1, 2 - Chart of Beechknoll Community Census (Tr. 435). HCFA Ex. 17, pp. 72, 73 - Immediate Need Care Plan: Skin Breakdown and Skin Protocol (Tr. 178). HCFA Ex. 17, p. 74- Nurses' Notes (Tr. 213). HCFA Ex. 17, pp. 81-86 - Immediate Care Plan: wound culture lab results; Nurse's Notes; Pressure Ulcer Condition Report (Tr. 206). HCFA Ex. 17, p. 102- Nurse's Notes (Tr. 197). HCFA Ex. 17, pp. 133, 134- Immediate Need Care Plan and Nurse's notes (Tr. 492). HCFA Ex. 18, pp. 1-4 - Resident Review Worksheet (Tr. 185). HCFA Ex. 18, pp. 17-20 - Resident Review Worksheet (Tr. 473). HCFA Ex. 18, pp. 25-28 - Resident Review Worksheet (Tr. 500). HCFA Ex. 18, pp. 29-32 - Resident Review Worksheet (Tr. 460). HCFA Ex. 18, pp. 40-43 - Resident Review Worksheet (Tr. 456). HCFA Ex. 19, pp. 1-6 - Surveyor Notes Worksheet (Tr. 369). HCFA Ex. 19, pp. 8-12 - Surveyor Notes Worksheet (Tr. 370). HCFA Ex. 19, p. 18- Surveyor Notes Worksheet (Tr. 166). HCFA Ex. 19, p. 23- Surveyor Notes Worksheet (Tr. 170). HCFA Ex. 19, pp. 27-31 - Surveyor Notes Worksheet (Tr. 370). HCFA Ex. 19, pp. 32, 33- Surveyor Notes Worksheet (Tr. 186). HCFA Ex. 19, p. 34 - Surveyor Notes Worksheet (Tr. 175). HCFA Ex. 19, pp. 36-43 - Surveyor Notes Worksheet (Tr. 371). HCFA Ex. 20, pp. 1, 2- Nurses' Notes (Tr. 497). HCFA Ex. 21, pp. 18-20 - Plan of Care - ADL Direct (Tr. 519). 5. See Beverly Health & Rehabilitation-Springhill, DAB CR553 (1998). 6. The Star Chamber, so called because it originally sat in the royal palace of Westminster in a room that had stars painted on the ceiling, was a court created in 1487 by King Henry VII of England. At first, although the court functioned without a jury, it did not abuse its powers, and its proceedings were public. In later years, other monarchs corrupted the court, and it met in secret and dealt out excessive and cruel punishment. I am puzzled at Petitioner's reference to Spain. I fail to see the connection between Spain and the Star Chamber or with anything else having to do with this hearing. 7. In the end not all 43 pages of HCFA Ex. 18 were admitted into evidence. 8. At the hearing, I pointed out to Ms. Alden that it would be unfair for me to conclude that R54's position had not been changed if she were unable to observe and detect staff going into the resident's room. In its brief, Petitioner misconstrued the import of my statement. See P. Br. at 11. In the preceding portions of the witness' testimony, I had asked her some very specific questions regarding her ability to detect the entry of facility personnel into the resident's room. My questions were directed at assessing her credibility, and having her gain an appreciation of the seriousness of my role as the adjudicator. At that point in Ms. Alden's testimony where I made the observation to her, she had already testified credibly regarding her ability to observe the traffic of people in and out of the resident's room. Of course, in the case of R54, the surveyor's ability or inability to observe position changes is not wholly dispositive of the issue as to this deficiency. 9. Ms. Alden defined the stages of
pressure sores as follows: 1. A stage I pressure sore is an area of redness on the
skin. 2. A stage II pressure sore is an area that is either
in the form of a blister, a skin breakdown, or skin abrasion, with damage
to the top layer. 3. A stage III pressure sore has full thickness into the
dermis, the epidermis, and the subcutaneous tissue, described sometimes
as a crater. 4. A stage IV pressure sore is thicker than a stage III, presenting a wound which is necrotic, with damage to the skin, and deeper craters into the actual fascia of the skin. Tr. 65, 66. 10. There was an evident absence of communication between staff and administration as is noted below by the acknowledgment of nurse aides that they were aware of the dangerous temperature levels of the water in the facility. 11. A body alarm is a safety device that will make a loud beeping sound when the resident attempts unassisted ambulation. It is connected either to the resident or the bed, and will sound when the resident attempts to get up. Tr. 94. 12. Ms. Alden identified scabies being caused by the human itch mite. The mite is a parasite that bores into the skin and can cause rash and itch. 13. HCFA Ex. 3, p. 5, refers to R59, instead of R55. This was clarified at the hearing. See Tr. 145. | |