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Department of Health and Human Services DEPARTMENTAL APPEALS BOARD Civil Remedies Division |
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Palo Alto Care Center, |
DATE: September 29, 2004 |
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Centers for Medicare & Medicaid Services.
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Docket No.C-00-680
Decision No. CR1222 |
| DECISION | |
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DECISION I uphold the Centers for Medicare & Medicaid Services' (CMS) determination to impose civil remedies including a period of denial of payment for new admissions and civil money penalties against Palo Alto Care Center (Petitioner or facility). Petitioner failed to comply substantially with the requirements for participation in Medicare. CMS assessed civil money penalties in the amount of $300 per day for 65 days from December 14, 1999 through February 16, 2000 and $100 per day for 110 days from February 17, 2000 until June 5, 2000. CMS determined to impose also a period of denial of payment for new admissions beginning on May 19, 2000 and continuing through June 5, 2000. I decide that the amounts of the civil money penalties are reasonable and the duration of all the remedies imposed is appropriate. I. Procedural History Pursuant to CMS's authority to enforce compliance with the participation requirements for Medicare and Medicaid, the California Department of Health Services (state agency or surveyors) conducted three surveys (an initial survey and two follow-up ('revisit') surveys) that concluded December 14, 1999, February 17, 2000, and May 11, 2000, respectively. In a letter to the facility dated May 4, 2000, CMS notified the facility of CMS's determination that the facility failed to substantially comply with program requirements at the December 14, 1999 survey and also at the February 17, 2000 revisit survey. CMS informed the facility that, based on the surveying agency's recommendations, it had determined to impose a denial of payment for new admissions, effective May 19, 2000 and per day civil money penalties of $300 per day effective December 14, 1999 through February 16, 2000, and $100 per day effective February 17, 2000 and thereafter. CMS informed the facility also that the deficiencies documented in the December 14, 1999 survey " . . . standing alone, establishes a foundation for the [$300 per day civil money penalty]." See CMS's notice letter dated May 4, 2000, at 2. CMS's letter informed the facility that the deficiencies found at the February 17, 2000 survey formed a stand alone foundation for the $100 per day civil money penalty. Id. at 3. In a subsequent notice from CMS to the facility dated June 6, 2000, CMS informed the facility that the denial of payment for new admissions was being continued, and the $100 per day civil money penalty was being continued, based on two deficiencies found by the surveyors at the May 11, 2000 survey. By letter dated July 7, 2000, CMS informed the facility that it had achieved substantial compliance as of June 5, 2000, so the remedies ceased accruing on June 5, 2000. The civil remedies that CMS sought to impose were based on 32 findings of deficiencies (F-tags): 26 at the December 14, 1999 survey; four at the February 17, 2000 survey; and two at the May 11, 2000 survey. Petitioner requested review of CMS's findings and remedies by submitting a request for hearing dated June 29, 2000. I convened a hearing at San Francisco, California, on November 26, 2001, and I concluded the hearing on November 30, 2001. At the hearing, I admitted CMS's Exhibits (CMS Exs.) 1-3A, 4-124, and Petitioner's Exhibits (P. Exs.) 1-139 into the record. Hearing Transcript (Tr.) 13, 15. Petitioner also sought to admit P. Exs. 140-144 as rebuttal exhibits. I admit those into the record. Subsequent to the hearing, on April 2, 2002, I received CMS's brief. I received Petitioner's brief on July 8, 2002, and CMS's reply brief on August 23, 2002. II. Issues, Authority, Findings, Conclusions and Analysis
The issues are whether: (1) Petitioner substantially complied with the participation requirements cited at the three surveys; and (2) if Petitioner did not substantially comply with participation requirements, the amount of the civil money penalties are reasonable. As I noted, CMS cited 26 F-tags at the December 14, 1999 survey, four F-tags at the February 17, 2000 survey, and two F-tags at the May 11, 2000 survey. Because I have concluded that considerably fewer of the F-tags support the remedies that CMS seeks to impose, I have made findings of fact and conclusions of law (findings) for only seven of the F-tags cited. It is not necessary for me to address the remaining alleged deficiencies under the remaining F-tags noted in the three Statements of Deficiencies (form 2567 or '2567') because the amount of the civil money penalties would not be affected if I concluded Petitioner substantially complied with any of those F-tags. I exercise my discretion, therefore, to limit my decision to five of the deficiencies alleged as a result of the December 14, 1999 survey, which I find are sufficient to justify the imposition of the $300 per day civil money penalty, and I limit my decision also to two of the deficiencies alleged in the follow-up surveys. My judgment to so limit my decision is consistent with the holding in Beechwood Sanitarium, DAB No. 1824 (2002). In Beechwood, an appellate panel of the Departmental Appeals Board held that the administrative law judge's (ALJ) decision not to make findings on all the deficiencies disputed by the petitioner was an exercise of judicial economy that is within an ALJ's discretion. The ALJ in that case chose to discuss several deficiencies that he determined to be persuasively established. But, he chose to leave unaddressed several other alleged deficiencies that had been appealed, and about which the parties had presented evidence and argument. The ALJ determined that based on section 1866(b)(2) of the Social Security Act (Act), and 42 C.F.R. � 488.456(b)(1)(i), he needed only make findings on enough of the deficiencies to support the remedy because the Act and the regulation authorize a remedy when a provider is out of compliance with even a single requirement. Although, unlike the instant matter, the remedies at issue in Beechwood were solely denial of payment for new admissions and termination of the provider agreement, it is logical to extend the principle of judicial economy espoused in Beechwood to appeals of civil money penalties. The relevant regulation at 42 C.F.R. � 488.430 provides that CMS or the State may impose civil money penalties for days or instances when a participating facility does not comply substantially with "one or more participation requirements." Thus, I need only make findings and conclusions concerning a sufficient number of the F-tags to support the amount of the civil money penalty in this case.
Title XVIII (Medicare) and Title XIX (Medicaid) of the Act (42 U.S.C. �� 301-1397jj) set forth requirements for long-term care facilities, both skilled nursing facilities and nursing facilities, participating in the Medicare and Medicaid programs, and authorize the Secretary of Health and Human Services (Secretary) to promulgate regulations implementing the statutory provisions. Act, sections 1819, 1919. The Secretary's regulations governing skilled nursing facility and nursing facility participation in the Medicare program are found at 42 C.F.R. Part 483. If CMS finds a facility is not in substantial compliance with program requirements, CMS has the authority to impose one or more of the enforcement remedies listed in 42 C.F.R. � 488.406, which include imposing civil money penalties. See Act, section 1819(h). CMS is authorized to assess civil money penalties when a facility is not in compliance with one or more participation requirements. 42 C.F.R. � 488.430(a). The civil money penalties range from $50 to $3,000 per day for deficiencies that do not constitute immediate jeopardy, but either cause actual harm, or cause no actual harm, but have the potential for causing more than minimal harm. The civil money penalties range from $3,050 to $10,000 per day for deficiencies which constitute immediate jeopardy. 42 C.F.R. � 488.438(a)(i) and (ii). The purpose of the authorized remedies is to "ensure prompt compliance with program requirements." 42 C.F.R. � 488.402(a). The remedies are applied in light of the scope and severity of the noncompliance found during a survey. In setting the amount of the civil money penalties, CMS considers: (1) the facility's history of noncompliance; (2) the facility's financial condition; (3) the factors specified in 42 C.F.R. � 488.404; and (4) the facility's degree of culpability, which includes neglect, indifference, or disregard for resident care, comfort, or safety. The absence of culpability is not a mitigating factor. 42 C.F.R. � 488.438(f). The factors found at 42 C.F.R. � 488.404 include: (1) the scope and severity of the deficiency; (2) the relationship of the deficiency to other deficiencies resulting in noncompliance; and (3) the facility's prior history of noncompliance in general, specifically with reference to the cited deficiencies. When CMS imposes an enforcement remedy on a skilled nursing facility or nursing facility, the facility has a right to appeal the "certification of noncompliance leading to an enforcement remedy." 42 C.F.R. � 488.408(g)(1); see also 42 C.F.R. �� 488.330(e) and 498.3. However, a facility may not appeal the choice of remedies by CMS or the factors CMS considered when choosing remedies. 42 C.F.R. � 488.408(g)(2). A facility may only challenge the scope and severity level of noncompliance found by CMS if a successful challenge would affect the amount of the civil money penalty CMS could collect or affect the facility's nurse aide training program. 42 C.F.R. � 498.3(b)(14). CMS has the initial burden of coming forward with evidence on any disputed facts showing that the provider was not in substantial compliance with Medicare participation requirements. However, the provider bears the ultimate burden of persuasion that it was in substantial compliance with those requirements. See South Valley Health Care Center, DAB No. 1691 (1999), aff'd, South Valley Health Care Center v. HCFA, 223 F.3d 1221 (10th Cir. 2000); see also, Batavia Nursing and Convalescent Center, DAB No. 1904 (2004).
CMS alleges that Petitioner failed to comply substantially with 42 C.F.R. � 483.20(k)(3)(i), which requires that services provided or arranged in accordance with the comprehensive care plan must "[m]eet professional standards of quality." CMS alleges that Petitioner failed to comply substantially with this requirement as evidenced by its failure to appropriately assess Resident 12 for pain. It is undisputed that Resident 12 had diagnoses including chronic obstructive pulmonary disease, gastroesophageal reflux disease, status post right ankle fracture, peptic ulcer disease, and irritable bowel (these diagnoses were recorded by the surveyor on the 2567, see CMS Ex. 1, at 30). It is undisputed also that Resident 12 had a physician's order, dated October 4, 1998, that required the facility to assess Resident 12 for pain on every shift using a 0-5 scale (0 indicating no pain and 5 indicating the worst pain). CMS based its findings concerning this F-tag on the Resident Review Worksheet putatively completed by surveyor Nancy Estrada at the December 14, 1999 survey. CMS Ex. 74. Ms. Estrada's notes, based on the facility's records, indicate that Resident 12 was being given Tylenol for pain. Id. at 2. Ms. Estrada's notes on the worksheet indicate also that the facility had addressed the physician's order to scale Resident 12's pain during the period August - September, 1999 but the pain assessment did not appear to have been completed for November. Id. CMS argues that these facts demonstrate that Resident 12 was at risk for more than minimal harm, because by failing to assess Resident 12's pain Petitioner could not determine the effectiveness of the pain treatments in place. This, CMS argues, left Resident 12 at risk for ongoing or increasing pain. CMS made additional factual allegations concerning this deficiency on the 2567 (see CMS Ex. 1, at 30-33); however, CMS did not make any argument incorporating these allegations and did not address them in its brief. Accordingly, I consider only the example that CMS presented in its brief to support the F-281 citation. And I note also that, by presenting only one example in support of this deficiency, CMS has only demonstrated an isolated instance of the deficiency, not a "pattern"- the scope at which this alleged deficiency was assessed. Ms. Estrada's Resident Review Worksheet is sufficient evidence to support CMS's prima facie case. The authenticity of the worksheet has not been challenged, and its content is not ambiguous. Absent a basis for me to reject that the worksheet is what it purports to be, I find it credible. The worksheet identifies the surveyor by name: Nancy Estrada- her employer is the state agency. If Petitioner wished to challenge the authenticity of her written report, it could have subpoenaed her. Moreover, the records Ms. Estrada claimed to have examined would have all been in the custody of the facility. The worksheet is consistent with Ms. Estrada having conducted a focused review of Resident 12's status. And the worksheet shows also that Ms. Estrada noted her concern regarding failure to assess the pain regimen for Resident 12. See CMS Ex. 74. Petitioner argues that CMS's finding " . . . is not corroborated by documentary evidence and therefore an [sic] unreliable report by an anonymous surveyor . . . [f]urthermore, there is absolutely no evidence that failure to document creates the potential for more than minimal harm." Petitioner's brief at 23-24. I disagree. As I have explained, because I find the document credible, absent any indication it is inauthentic, I base my finding that CMS presented its prima facie case upon it. (1) The worksheet credibly reports that there was a physician's order in place, but it was not followed. Moreover, Petitioner has failed to offer any evidence to prove that, concerning its provision of services to Resident 12, it substantially complied with the requirement. The physician's order requiring that Resident 12's pain be tracked every shift and the pain medication regimen (that Resident 12 be treated for pain with Tylenol) are persuasive circumstantial evidence that the failure to monitor Resident 12's pain created the potential for more than minimal harm in the form of undetected, or improperly managed pain. Pain, of course, is the very essence of harm to a person.
42 C.F.R. � 483.25(e)(2) requires that a resident with a limited range of motion (ROM) receive appropriate treatment and services to increase the ROM and/or prevent further decrease in ROM. CMS alleges that the facility failed to substantially comply with this requirement as evidenced by CMS's findings concerning Resident 4 and Resident 1. At the time of the December 14, 1999 survey, CMS asserts that Resident 4's MDS assessment for November 4, 1999 and May 14, 1999 (the two most recent MDS assessments), showed that Resident 4's ROM was partially lost in his right arm, leg, and foot. CMS asserts also that Resident 4 had a physician's order dated September 29, 1999, for restorative nurse aides to assist Resident 4 with ambulation twice daily, five times a week. One goal of assisting Resident 4 with ambulation in this way, CMS maintains, was to "prevent contractures." CMS's brief at 71, citing P. Ex. 135. CMS alleges that the surveyors discovered that Petitioner had failed to document the results of the assistance with ambulation provided, if any, concerning Resident 4's ROM. CMS's brief at 71. CMS does not assert that Petitioner failed to provide the assistance with ambulation. CMS argues that by not recording the progress or lack thereof of Resident 4's ROM, there was no way for the facility to gauge whether the requirement to provide services to increase ROM, or at least prevent further decrease in ROM, was being met. CMS asserts in support if its contention that on December 8, 1999 a restorative nurse aide documented the distance Resident 4 walked and Resident 4's response to walking. However, lacking from this report was any assessment concerning ROM. CMS's brief at 71, citing P. Ex. 137, at 4. Concerning Resident 1, CMS claims that at the time of the December 1999 survey, Resident 1's two recent MDS assessments were dated April 12, 1999 and October 1, 1999. CMS found that those two assessments documented that Resident 1 had ROM limitations in his neck on the left side and in his left arm and hand. CMS asserts that the surveyors determined that Resident 1's clinical record had no indication of Resident 1's toleration for his daily ambulation and no record of the status of his ROM limits. See CMS's brief at 71-72, citing CMS Ex. 1, at 37. CMS argues that proper ROM care requires that a facility determine whether the ROM treatments provided are working. CMS's brief at 72. CMS notes that its guidance to surveyors in assessing a facility's compliance with the ROM requirement includes as a factor to consider whether resident progress is being evaluated. Id. As with Resident 4, CMS does not allege that a ROM assessment was not done, nor does CMS allege that the facility was not providing the services called for in the ROM assessments. CMS alleges that the failure to document the effect of the ROM treatment is a failure to monitor the ROM treatment, which failure, CMS argues, prevents the facility from determining what the appropriate ROM treatment and services are. Id. Petitioner argues that because CMS does not contest that Resident 4 was assessed for ROM limits, and that Resident 4 received ROM care, CMS has failed to present a prima facie case. Petitioner's brief at 26-27. Petitioner asserts that CMS concedes that "the facility provided care in connection with the resident's range of motion limits." And, Petitioner indicates, "[t]he F Tag does not require documentation regarding the response to the care." Petitioner's brief at 27. Petitioner argues, alternatively, that the facility's restorative nurse aide flow sheet, P. Ex. 137, demonstrates that Resident 4 received ambulation assistance in accordance with the physician's order and the care plan. Petitioner's brief at 27. Concerning Resident 1, Petitioner argues that CMS's finding is based on unsubstantiated hearsay. Id. Petitioner asserts that CMS faulted the facility for documenting the distance that Resident 1 ambulated, but CMS did not allege that there was a care plan in place for walking. Id. Petitioner argues also that it is not a requirement to document a resident's tolerance to distance ambulated or whether ROM limits increase or decrease. Id. And, finally, Petitioner argues that CMS has presented no evidence of the potential for more than minimal harm. Id. Petitioner concludes that CMS failed to present a prima facie case. Alternatively, Petitioner argues that the evidence shows restorative nurse aide assistance was discontinued for Resident 1 on March 3, 1999 (Id. at 28, citing P. Exs. 131-132), and that this evidence demonstrates CMS's findings that Resident 1 had ROM limitation are unreliable. Concerning Resident 1, I conclude that Petitioner is correct that CMS failed to present a prima facie case. CMS alleges in the 2567 that Petitioner failed to document "the distance [Resident 1] had ambulated and whether his range of motion limits were increased or decreased." CMS Ex. 1, at 37. The surveyors reported that Resident 1 had been assessed as recently as October 1, 1999, as having ROM limits in the neck and left arm and hand; however, the evidence CMS presents is insufficient to establish a connection between the assessment and Petitioner's alleged failure to document, i.e. monitor, Resident 1's ROM progress or lack thereof. CMS does not allege that there was any ROM care and services planned, which care and services were subsequently not appropriately monitored. Nor does CMS allege that Petitioner failed to plan and provide appropriate ROM services. Thus, even were I to assume that CMS's allegations are true, the facts as pleaded do not provide a sufficient basis for me to conclude that Petitioner failed to comply with 42 C.F.R. � 483.25(e)(2) insofar as Resident 1 is concerned. Concerning Resident 4, however, I conclude that CMS did present sufficient evidence to support its prima facie case, and I conclude also that Petitioner failed to rebut CMS's case by a preponderance of the evidence. CMS's prima facie case is not undermined, as Petitioner argues, because CMS conceded that Petitioner provided ROM care and services to Resident 4. Nor is it insufficient because the regulation does not specify that residents' responses to ROM care be documented. The requirement at section 483.25(e)(2) is not simply that a facility provide ROM care and services; it requires appropriate care and services to increase, or at least maintain, the ROM. CMS plausibly contends that such appropriate care and services must include monitoring because without monitoring there is no way to measure whether ROM is increasing, maintaining, or getting worse; hence, there is no way for a facility to demonstrate it is providing appropriate services. I find no reason in the record to doubt the veracity of the surveyors' report in the 2567 and I therefore find that CMS's prima facie case is sufficiently pleaded and supported. Petitioner's argument that the facility's restorative nurse aide flow sheet (P. Ex. 137) demonstrates that Resident 4 received ambulation assistance in accordance with the physician's order and the care plan does not surmount CMS's prima facie case by a preponderance-it misses the point. The flow sheet purportedly documents ROM care provided to Resident 4 in September of 1999. Petitioner does not assert, however, that there is any indication that the status of Resident 4's ROM (better, worse, or the same) was monitored therein or anywhere else. Thus, CMS's contention that Resident 4 was assessed with ROM limitation in May 1999 and November 1999, but the facility apparently did not monitor the change in ROM in the interim, stands unchallenged. I conclude that Petitioner failed to substantially comply with 42 C.F.R. � 483.25(e)(2) because it made no effort to discover whether the ROM interventions were helping, hurting, or maintaining Resident 4's ROM limits. This caused the potential for more than minimal harm to Resident 4 because his contractures could have gotten worse, or a beneficial effect from the interventions could have been overlooked in the periods between assessments.
42 C.F.R. � 483.35(f)(3) requires that the facility must offer snacks at bedtime daily. CMS asserts that the facility failed to offer snacks at bedtime daily as indicated by four residents who, when interviewed by surveyors, reported that they were not offered snacks at bedtime. CMS's brief at 73, citing CMS Ex. 82 (surveyor's Quality of Life Assessment Group Interview). CMS argues that this failure was shown to be a pattern, and that the potential for harm existed in that the residents could suffer inadequate nutrition, hydration, and related health problems. CMS's brief at 74. Petitioner argues that CMS's finding is based on unsubstantiated hearsay from the resident group which is unreliable and has no probative value. Petitioner counters also that Kyoko Oka, the facility's charge nurse, testified that bedtime snacks were provided. And Petitioner asserts also that there had been no previous complaints at Resident Council meetings about the snacks. Petitioner's brief at 28, citing P. Ex. 82. Finally, Petitioner asserts, Tracie Murray, the facility's Administrator, found no such complaints at Resident Council meetings even after "placing this allegation on the Resident Council's agenda." Petitioner's brief at 28. I conclude that CMS presented a prima facie case. That surveyors reported the residents statements that snacks were not served is hearsay to be sure; hearsay, however, is permissible in these proceedings, and I do not therefore disqualify hearsay evidence solely because it is hearsay. As with several other of the deficiencies in this case, I find no reason to doubt the veracity of the surveyors' observations as indicated in their notes (see CMS Ex. 82; 42 C.F.R. � 498.61), absent some indicia of unreliability. I am not persuaded that if residents did not make this complaint in other Council meetings, it shows the surveyors' fabricated the statement. It does not strain the imagination to believe that residents may speak more freely to surveyors about their complaints than to their care givers. I accept the surveyors' reports of the meeting with residents. I conclude that several residents having indicated they were not offered bedtime snacks, including at least one who indicated he was denied a bedtime snack if he asked for it after 6:30 PM, which suggests it was not a matter of these residents being prohibited from receiving a snack for medical reasons, is sufficient evidence for me to conclude that the facility did not comply with the requirement that it offer residents bedtime snacks daily. Moreover, I conclude that Petitioner has failed to establish its compliance with the requirement. Ms. Oka's testimony does not support Petitioner's contention that it offered snacks to residents at bedtime daily. In fact, when asked by Petitioner's counsel why certain residents would not get a bedtime snack, Ms. Oka testified that "[o]kay, it's based on the initial assessment. Upon admission, we ask the question about you know, do you -prefer the bed-night snack. If they say no, we wouldn't provide any snack." Tr. 685. Ms. Oka testified further that if it were not a danger to a resident's health and if residents asked for a snack, they would get one. Id. This supports the statement by the residents at the Council meeting and it shows also that the facility did not fulfill the requirement. Section 483.25(e)(2) does not provide that a facility may opt out of offering a bedtime snack by recording a resident's general preference at the "initial assessment." The regulation unequivocally requires the facility to offer a bedtime snack daily. I conclude, therefore, that Petitioner failed to comply substantially with the requirement. I conclude also that the failure to follow this requirement, which I note is a subrequirement of the requirement concerning the frequency of meals, presents the potential for more than minimal harm. The potential for harm is that elderly nursing home residents would miss an opportunity to eat, and missing the opportunity on a regular basis could obviously affect their nutritional status and have negative health consequences.
42 C.F.R. � 483.60(e) requires, in pertinent part, that a facility must store drugs and biologicals in locked compartments. CMS alleges that at the December 14, 1999 survey, surveyor Beverly Bilge observed on two separate occasions that a medication room was unlocked. Tr. 174-175. Additionally, Ms. Bilge observed a resident open the unlocked door to the medicine room. Id. Ms. Bilge testified that she looked into the room and saw laxatives, vitamins, and boxes of syringes stored therein. Id. Petitioner's brief is silent concerning this allegation. I find, based on Ms. Bilge's undisputed testimony, that Petitioner left the medication room unlocked on two occasions as witnessed by Ms. Bilge, and that on one occasion, a resident was able to open the unlocked door. I conclude that these facts show Petitioner failed to substantially comply with the requirement provided at 42 C.F.R. � 483.60(e). The regulation requires drugs be kept in locked compartments. The medication room was unlocked and contained at least one drug: laxatives. I note that laxative is defined as "[a] food or drug that stimulates evacuation of the bowels." The American Heritage� Dictionary of the English Language, Fourth Edition, (4th ed. 2000) (emphasis added). I infer from Ms. Bilge's observations that the laxatives were drugs, not food, because if they had been food, Ms. Bilge would likely have referred to them by their food name, e.g, oat bran, and would likely not have concluded that the room contained drugs. I conclude also that Petitioner's failure to substantially comply caused the potential for more than minimal harm to residents who entered the unlocked room and gained access to the drugs, because if the residents consumed them, they may have become ill.
42 C.F.R. � 483.75(f) requires that the facility ensure that nurse aides are able to demonstrate competency in skills and techniques necessary to care for residents needs, as identified through resident assessments and described in the plan of care. CMS alleges that Petitioner failed to comply substantially as evidenced by the facility's care of Resident 22. CMS asserts that one of the surveyors observed a nursing aide attempt to transfer Resident 22 from the bed to a wheelchair. CMS's brief at 91-92, citing CMS Ex. 84, at 39. The nurse aide, CMS claims, incorrectly attempted to transfer Resident 22 by grasping Resident 22 under the shoulder area with both arms. Id. The nurse aide, however, lost control of Resident 22, causing both nurse aide and Resident 22 to fall back onto the bed. Id. The nurse aide subsequently called for assistance to transfer Resident 22. CMS's brief at 92, citing CMS Ex. 1, at 51. CMS asserts also that Resident 22 was assessed to require total assistance with transfers. CMS's brief at 92, citing CMS Ex. 84, at 39. Petitioner argues that CMS's allegations are not reliable evidence and do not amount to a prima facie case because an "isolated incident cannot be the basis to demonstrate lack of techniques by CNAs." Petitioner's brief at 33. Petitioner asserts that this is particularly true when there is no corroborating evidence or opportunity for the facility to investigate the matter. Id. Petitioner characterizes the surveyor's report as a finding by an "anonymous surveyor" involving "anonymous staff." Id. Petitioner argues that the facility's CNAs were properly trained in transferring, as evidenced by an inservice training report dated May 19, 1999. Petitioner's brief at 33-34, citing P. Ex. 121. The inservice training report indicates that the subject was Positioning & Transferring; Correct Body Mechanics'-it appears that a number of staff members signed the attendance list. P. Ex. 121. Petitioner asserts that because it has not been provided with the identity of the CNA, the document is the most competent evidence that the CNAs are properly trained in transferring. Petitioner's brief at 33-34. I disagree with Petitioner's characterization of the evidence and I conclude that CMS has presented a prima facie case which Petitioner failed to rebut by a preponderance of the evidence. An isolated instance of improper technique can support a deficiency finding under section 483.75(f). The surveyor's unrebutted observation was that the nurse aide botched a routine transfer, which the nurse aide, if properly trained in the technique should have known not to attempt without assistance. A failing in this crucial and common technique creates the presumption that the nurse aide does not know the correct way to perform the technique, which is what the regulation requires the facility to ensure. Furthermore, Petitioner's assertion that the surveyor and staff were anonymous is unfounded. CMS's allegation is based on the Surveyor Notes Worksheet-CMS Ex. 84, at 39-which bears the surveyor's initials, or perhaps first name "jo," on the surveyor name line at the top of the form. Petitioner has not alleged that it sought to identify this surveyor sufficiently to subpoena him or her, and was rebuffed or otherwise unsuccessful. Nor should it have been difficult for Petitioner to have discovered who the "anonymous" staff member was. The 2567, which is based on the surveyors' notes, indicates that the improper technique was observed on December 6, 1999, in assistance of Resident 22, and that when the nurse aide and Resident 22 fell, another nurse aide was called to assist with the transfer. CMS Ex. 1, at 51. With this information available from a time shortly after the conclusion of the survey, the question is raised why Petitioner, who bears the burden to demonstrate compliance with this requirement, could not interview its nurse aides, and perhaps the resident herself to determine who among the nurse aides provided care during the time the surveyor was present. I suspect from Petitioner's complaint about anonymity, that Petitioner hoped to prevail with an argument concerning the type of evidence I may use for this decision, but did not, however, actually try and fail to develop specific information about which surveyor made the report, or which nurse aide provided the assistance to Resident 22. Accordingly, I disagree with Petitioner that I should rely on the May 19, 1999 inservice report, and infer from it that CNAs were properly trained in the transfer technique. I find that the inference they were not is supported by the observations of the surveyor. I conclude that Petitioner failed to substantially comply with the requirement, and that the potential for more than minimal harm existed in that nurse aides using improper techniques on the residents could injure the residents.
CMS alleges that Petitioner failed to comply substantially with 42 C.F.R. � 483.20(k)(3)(i), which requires that services provided or arranged in accordance with the comprehensive care plan must "[m]eet professional standards of quality." CMS asserts that Petitioner failed to follow a physician's order that Resident 1 wear TED hose (i.e., anti-embolic stockings). CMS asserts that Resident 1's physician ordered that Resident 1 wear TED hose for six weeks. CMS's brief at 104, citing P. Ex. 23. CMS asserts that the surveyor, Claire Popke, reported observing Resident 1 walking without the TED hose on February 15, 2000. Ms. Popke reported also that Resident 1 indicated to her that she had not worn the TED hose since hip surgery (Resident 1 was admitted to the facility on February 6, 2000, following hip surgery). CMS alleges that the facility's records indicate the TED hose was not applied February 18 and 19, and was not documented as being applied for the remainder of February. CMS's brief at 104. CMS argues that this failure placed Resident 1 at risk for deep vein thrombosis and pulmonary embolisms. CMS's brief at 105. Petitioner argues that Resident 1's statement to the surveyor is unreliable hearsay that does not support a prima facie case, and the surveyor's observation that Resident 1 was not wearing her TED hose is not evidence of a prima facie case because if Resident 1 was not wearing the TED hose as observed by the surveyor, this is not inconsistent with the physician's order and the facility's policy and procedures. Petitioner's brief at 58, citing P. Exs. 20; 23. Petitioner argues that the physician's order calls for the TED hose to be worn by Resident 1 on both legs for six weeks, but it does not require that Resident 1 wear the hose 24 hours a day. Petitioner cites the testimony of Nancy Lubin, a witness expert in nursing care who testified at the hearing on Petitioner's behalf. Ms. Lubin testified that it is standard nursing practice to remove the hose for bathing and for examining a patient's skin periodically for short periods of time. Tr. 948. Petitioner indicates also that the facility's policy provides "the stockings will be removed at least once daily to assess skin and circulation or as ordered by the physician." P. Ex. 20, at 1, as cited in Petitioner's brief at 58. Concerning CMS's assertion that Resident 1's records show she did not wear the TED hose after February 18, 2000, Petitioner argues that the record in question (P. Ex. 19) suggests, incredibly, that Resident 1 received no treatment at all after February 18, 2000. Petitioner's brief at 58, citing P. Ex. 19. Moreover, Petitioner argues, the documentation omission CMS alleged, was recorded on the 2567 dated February 17, 2000, before the alleged omission on February 18, 2000 and thereafter. Petitioner argues also that Resident 1's statement should be discounted because, as Ms. Lubin testified at the hearing, records indicate that Resident 1 was "somewhat confused." Petitioner's brief at 58, citing Tr. 947; P. Ex. 18. I conclude that CMS presented a prima facie case. It is not disputed that there was a physician's order that Resident 1 wear the TED hose for six weeks. It is not disputed either that Ms. Popke observed Resident 1 walking with a walker without the TED hose on. Consistent with the facility's policy on removing TED hose for certain limited purposes or not, it is undisputed also that Resident 1 told Ms. Popke she had not been wearing the TED hose since the time of her operation. These facts alone are sufficient to sustain the prima facie case that the facility was not following the physician's order for TED hose, and that, therefore, the facility was deficient in complying with 42 C.F.R. � 483.20(k)(3)(i). I conclude also that Petitioner failed to rebut CMS's prima facie case by a preponderance of the evidence. First, Petitioner's argument that Resident 1 being observed without the TED hose is consistent with facility policy to remove hose to assess a resident's skin, affirmed as appropriate by Ms. Lubin, is unavailing. Assuming, arguendo, that it would be appropriate to remove Resident 1's stockings for inspecting Resident 1's skin, or for bathing or another purpose, this would not be sufficient to demonstrate why Resident 1 was hoseless on February 15, 2000. Petitioner has offered no evidence that Resident 1 was walking in the facility without her TED hose on February 15, 2000, because her skin or circulation were being assessed. Nor, obviously, was Resident 1 bathing at the time, as bathing was suggested as an appropriate reason to remove the hose by Ms. Lubin. Furthermore, I find the statement attributed to Resident 1, that she had not worn her TED hose since her surgery (which surgery took place prior to February 2, 2000), should not be, as Petitioner argues, dismissed as unreliable because Ms. Lubin believed she was "somewhat confused." While it is true that Resident 1 was noted to be "somewhat confused" at her initial exam upon entering the facility, the assessment document where this is noted, as a whole, suggests this is an insufficient basis to discount her statement concerning the TED hose. See P. Ex. 18. I note that the initial assessment form was dated February 6, 2000, which is also the undisputed date of Resident 1's admission to the facility. So, because Resident 1 was admitted to recover from her hip replacement surgery, it is likely that on February 6, 2000 she had recently had the surgery. Could this have raised her level of confusion on February 6, 2000?-The record does not reflect whether Ms. Lubin considered this in forming her opinion. Furthermore, the full note on the form's line provided for 'Mental Status' appears to read "somewhat confused but carries on a relevant conversation." Id. (emphasis added). This calls into question whether I should assume Resident 1 was too confused to report accurately concerning her TED hose. Moreover, the assessment form indicates that the "Physician's Statement of Capacity" was "Fair to good," and indicates also that Resident 1 was aware of her medical condition. Id. The form also notes that Resident 1's rehabilitative potential is fair, and under both "Discharge Plan, and Recommended Plans," "Rehab & Discharge" is recorded. Id. In light of this additional information about Resident 1's status, I find Ms. Lubin's opinion concerning Resident 1's reliability, is unsupported. In light of the foregoing, I conclude that Petitioner's failure to follow the physician's order concerning the TED hose constitutes a failure to comply substantially with the requirement in section 483.20(k)(3)(i). This failure presented the possibility of more than minimal harm to Resident 1 from her developing medical problems the TED hose was intended to prevent during the periods the facility did not ensure she was wearing them. I note additionally that because this is the only example under F-281 that CMS presented argument on, it appears also that CMS has abandoned its claim, as indicated in the 2567, that this deficiency constituted a pattern.
42 C.F.R. � 483.25(c) requires the facility ensure that a resident who enters the facility without pressure sores does not develop pressure sores unless the individual's clinical condition demonstrates that they were unavoidable. And section 483.25(c) requires also that a resident having pressure sores receives necessary treatment and services to promote healing, prevent infection, and prevent new sores from developing. CMS asserts that Resident 5 developed a pressure sore on her right foot on April 28, 2000 that should have been prevented by the facility. CMS's brief at 111. CMS asserts that at the time of the survey, Resident 5's most recent MDS assessment was dated March 15, 2000. The surveyor who reported reviewing the MDS indicated that Resident 5 was assessed as being totally dependent on staff for activities of daily living. CMS's brief at 111, citing CMS Ex. 112, at 6. CMS claims that the facility had assessed Resident 5 as being at high risk for pressure sores, noting an assessment on her pressure sore risk assessment form dated March 21, 2000. CMS's brief at 112, citing CMS Ex. 112, at 14. CMS notes the testimony of professor Nancy Stotts, CMS's expert witness concerning nursing and wound care, who testified that Resident 5's risk factors as assessed were level of consciousness, mobility, incontinence, nutritional status, fluid intake, and medications. See CMS's brief at 112, citing Tr. 80. CMS alleges that the facility assessed Resident 5 as having a Stage II pressure sore as documented in a short term care plan dated April 28, 2000. CMS's brief at 112, citing CMS Ex. 112, at 19. CMS argues that the facility failed to employ sufficient preventative measures to support that Resident 5's pressure sore was unavoidable. CMS's brief at 114. Petitioner does not dispute that Resident 5 developed a pressure sore. See Petitioner's brief at 61-63. Petitioner asserts that the facility used a pillow to relieve pressure on Resident 5's right foot. Id. at at 62. Petitioner noted that Professor Stotts testified that the care plan for Resident 5's sore was appropriate, including the use of the pillow. Id. And, Petitioner noted Ms. Bilge testified to seeing the pillow on Resident 5's bed-and Petitioner asserts, if the pillow was not in place at the time of Ms. Bilge's observations, this was likely due to Resident 5 moving around in bed. Id. Petitioner cites also the testimony of Ms. Lubin that the facility was limited in what it could do for Resident 5, given Resident 5's agitation and uncooperativeness. Id. Petitioner notes that Ms. Lubin testified that the "best intervention was probably to make sure the patient was out of bed for a period of time each day." Tr. 957, as cited at Petitioner's brief at 62-63 (emphasis added). Petitioner cited also Ms. Lubin's opinion that the facility did in fact keep Resident 5 out of bed for a period of time each day. Id. Petitioner asserts that Resident 5's MDS assessment completed on March 15, 2000 shows that the facility provided her ointments, medications, and other preventative or protective skin care. Petitioner's brief at 63, citing P. Ex. 31, at 5. Petitioner asserted that the facility's records show also that Resident 5 had a care plan related to skin integrity in place for one month prior to Resident 5 developing the pressure sore. Id., citing P. Ex. 31, at 7. Finally, Petitioner asserts that " . . . [the facility] implemented a care plan for Resident 5's right foot sore that included interventions, such as regular assessments for effectiveness of the prescribed treatment, keeping her foot elevated with a pillow to prevent pressure from her bed, and use of a maxifloat mattress and bed cradle." Petitioner's brief at 63, citing P. Ex. 39, at 2. Petitioner argues that a preponderance of the evidence demonstrates the facility "addressed all of Resident 5's risk factors to prevent pressure sores from developing." Petitioner's brief at 63. Once CMS established that Resident 5 developed a pressure sore at the facility, CMS's prima facie case was made, and the burden shifted to Petitioner to prove by a preponderance of the evidence that the pressure sore was unavoidable. I find Petitioner has not shown that the facility was taking all possible measures to prevent and treat sores, so I conclude that the deficiency is established. That the facility used a pillow, removed Petitioner from bed for a period, and showed that the facility provided her ointments, medications, and other preventative or protective skin care (leaving aside whether Petitioner can demonstrate that the facility implemented these planned interventions, or implemented them sufficiently) do not address whether the pressure sore Resident 5 developed was unavoidable. Petitioner's assertion that it addressed all risk factors is not the same as offering sufficient proof to show that not only were all risk factors addressed at the planning stage, but they were indeed all risk factors and were vigorously addressed. Moreover, in asserting that the facility implemented a care plan that included use of a maxifloat mattress and bed cradle, Petitioner conveniently omits that, as demonstrated by the document Petitioner cited for this fact (P. Ex. 39, at 2), those interventions were added after Resident 5 developed the pressure sore. This undermines the argument that the facility took all reasonably possible steps to prevent the sore. Thus, I conclude that the pressure sore has not been proved to have been unavoidable. I conclude, therefore, that Petitioner failed to comply substantially with 42 C.F.R. � 483.25(c). This deficiency presented the potential for more than minimal harm from pressure sores.
My conclusion that
Petitioner failed to comply substantially with F-tags: 281, 318, 368,
432 and 498 as determined at the December 14, 1999 survey; and failed
also to comply substantially with F-281 and F-314 as determined at the
February 17, 2000 and May 11, 2000 surveys, respectively, provides a basis
for the imposition of the denial of payment for new admissions and for
some amount of civil money penalty. My conclusion that the amounts of
the civil money penalties are reasonable as assessed by CMS is based on
my consideration of the regulatory factors:
See 42 C.F.R. � 488.438(f). While I have addressed only a portion of the total deficiencies CMS cited, I conclude that these are sufficient to justify the amount of civil money penalty that CMS imposed. CMS assessed an amount that is very low considering the range of possible penalties. Concerning the five F-tags I uphold from the December 14, 1999 survey, I note that any one of them would justify the imposition of at least the minimum amount: $50 per day. Of course, the regulations do not prevent CMS from assessing an amount that is effectively lower per deficiency as it did in this case ($300 per day for 26 F-tags cited), because the regulations provide that while only a single instance of deficiency supports the imposition of some civil money penalty, the range of possible amounts affords CMS discretion to assess an aggregate amount without attributing it proportionally to the individual F-tags. Thus, the allocation of the aggregate amount to each individual deficiency is opaque. To illustrate, in this case, if CMS's civil money penalty for the 26 F-tags from the December 14, 1999 survey were equally allocated that would effectively attribute to each tag only approximately $11.53 per day. Of course there is no way to know if CMS weighted some deficiencies heavier than others. In assessing the reasonableness of the civil money penalty amount it is not my role to review how CMS applied the regulatory factors, or weighted the individual F-tags. My role is to conduct a de novo review applying the factors listed above. The range of possible civil money penalty amounts CMS could have imposed for the deficiencies is $50 to $3,000. Thus, CMS applied an amount at the lower end of the range to the deficiencies from all three surveys. No evidence was introduced concerning the facility's history of noncompliance or its financial condition. Concerning the other factors, I conclude that the generally low level of scope and severity suggests it was appropriate for CMS to assess the amounts at the lower end of the possible range of penalties; however, the deficiencies concerning failure to follow physicians' orders, failure to provide adequate ROM care, failure to understand what was a serious misapprehension of the regulations concerning the requirement to offer snacks, the failure to safeguard drugs, and the failure to employ proper transfer techniques all had the potential to seriously harm the residents. The evidence concerning the deficiencies demonstrates that the facility's culpability was high. I see nothing in the record to excuse the facility or that otherwise diminishes the facility's responsibility for allowing these lapses. I have applied my analysis and reached the same conclusions regarding the facility's failure to follow physician's orders cited at the February 17, 2000 survey- which I note was a repeat of the same deficiency found at the December 14, 1999 survey. And, my analysis applied also to the facility's failure to prevent avoidable pressure sores. In light of the seriousness of the potential harm and the culpability of the facility, $300 per day is justified by the presence of the five deficiencies I have discussed from the December 14, 1999 survey, and $100 per day is justified by the presence of the serious deficiencies I have discussed that were cited in the two follow-up surveys. Accordingly, these amounts are reasonable to achieve the remedial purpose of the penalties. III. Conclusion In view of the foregoing I uphold CMS's determination to assess a denial of payment for new admissions and civil money penalties against Petitioner for its failure to comply substantially with requirements of participation in Medicare. I conclude also that the amounts of the civil money penalties, $300 per day for 65 days from December 14, 1999 through February 16, 2000, and $100 per day for 110 days from February 17, 2000 until June 5, 2000, is reasonable. |
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| JUDGE | |
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Alfonso J. Montano Administrative Law Judge |
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| FOOTNOTES | |
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1. In its brief, Petitioner renewed a motion for judgment that Petitioner made at the hearing. Petitioner's motion argues that some of the deficiencies cited by CMS should be dismissed because CMS failed to present a prima facie case to support them. The motion is premised on CMS having relied on allegations recorded in the 2567 without presenting at hearing corroborating testimony nor original documents relied on by the surveyors. The essence of Petitioner's argument is that 2567s cannot, as a rule, be evidence of a prima facie case. Petitioner cites the decision of an appellate panel of the Departmental Appeals Board (Board) held in Pacific Regency Arvin, DAB No. 1823 (2002), in support of this view of 2567s. See Petitioner's brief at 3. Petitioner cites also the decisions of other administrative law judges, who declined to attach weight to hearsay allegations attributed to anonymous persons. Id. I do not find those decisions, while enunciating the broad principle that inherently unreliable evidence should be discounted, applicable to the instant matter. I conclude also that the Board did not propound a rule that 2567s cannot be evidence of a prima facie case. In Arvin, the Board addressed the significance of a 2567 in the prehearing phase of proceedings. The Board's discussion focused on the role of the 2567 in defining the issues in a case, and whether, if it did not encompass all the deficiencies CMS wished to allege, CMS was required to formally amend the 2567. Arvin, DAB No. 1823, at 6-7. I view the distinction the Board drew in Arvin as akin to the difference between the 2567 and, for instance, a bill of particulars. The latter is a document intended to rigidly define the scope of the government's case. The former presents the allegations, in the form of a report, sufficiently for a petitioner to frame its appeal and the parties to develop their cases subject to revision prior to hearing. There is nothing in Arvin that indicates, however, that the Board enunciated a rule of evidence that 2567s cannot provide the basis for a prima facie case. The principle that I conclude applies to 2567s as evidence is that which applies to any other evidence: the reliability 2567s probative value must be assessed, and weight attributed accordingly. Thus, I deny Petitioner's motion. I discuss my evaluation of the evidence, including evidence derived from the 2567s in this case, in my discussion of each individual F-tag in this decision. | |