Department of Health and Human Services DEPARTMENTAL APPEALS BOARD Civil Remedies Division |
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IN THE CASE OF | |
Palm Beach County Home, |
DATE: October 25, 2001 |
- v - |
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Centers for Medicare & Medicaid
Services
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Docket No.C-99-102 Decision No. CR831 |
DECISION | |
DECISION
I. Background Petitioner is a skilled nursing facility that is operated
by a government entity, the Health Care District of Palm Beach County,
Florida. Its resident population consists of individuals who need long-term
care but who are somewhat atypical of the population of other nursing
facilities. The residents tend to be younger individuals, some of whom
have substance abuse problems, or who are homeless, or who lack health
care insurance. A compliance survey of Petitioner was conducted on June
11, 1998 by representatives of the Florida Agency for Health Care Administration
(Florida State survey agency). The surveyors concluded that Petitioner
was not complying substantially with three federal participation requirements
that are contained in the federal regulations at 42 C.F.R. Part 483. The
Centers for Medicare & Medicaid Services (CMS) accepted these findings
and determined to deny payment to Petitioner for new Medicare admissions
for the period which ran from August 18, 1998 through August 31, 1998. Petitioner requested a hearing. I conducted an in-person hearing in West Palm Beach Florida on June 26, 2001. At that hearing I received the testimony of several witnesses. Additionally, I received into evidence exhibits offered by the parties. From CMS, I received into evidence exhibits that were identified as CMS Ex. 1, CMS Ex. 16, CMS Ex. 17, and CMS Exs. 21 - 26. From Petitioner, I received into evidence exhibits that were identified as P. Exs. 1 - 4, P. Exs. 6 - 10, and P. Exs. 12 - 23. At the hearing CMS identified two additional exhibits,
CMS Ex. 6 and CMS Ex. 7, which it evidently intended to offer into evidence
but which it failed to offer. Petitioner did not object to my receiving
these exhibits into evidence. I now receive them into evidence in order
to complete the record in this case. I also note that both parties have
submitted documents with their posthearing briefs in the nature of attachments
or appendices. Neither party requested that these be identified as exhibits
and I neither identify the documents as exhibits nor do I receive them
into evidence. At the completion of the hearing, I established a briefing
schedule and I imposed page limits on the parties for their posthearing
briefs and reply briefs. I allowed each party a total of 40 pages for
its posthearing brief and reply brief. Petitioner complied with that directive.
However, CMS submitted a posthearing brief of 35 pages and a posthearing
reply brief with nine pages of text. CMS's submission exceeds my page
limitation by a total of four pages. Petitioner objected and moved that
I not consider the arguments CMS made in those pages of its posthearing
reply brief that are beyond the 40-page limit. I deny this motion. I have
decided this case in Petitioner's favor on the merits and I do not find
that the interests of justice would be served further by imposing sanctions
against CMS. II. Issue, findings of fact and conclusions of law
The issue is whether there is a basis to deny payment
to Petitioner for new Medicare admissions for the period which ran from
August 18, 1998 through August 31, 1998.
I make findings of fact and conclusions of law (Findings)
to support my decision in this case. I set forth each Finding below as
a separately numbered heading. I discuss each Finding in detail.
CMS would be authorized to deny Petitioner payment for
new Medicare admissions for the August 18 - 31, 1998 period if Petitioner
failed to comply substantially with one or more federal participation
requirements during that period. 42 C.F.R. � 488.417(a)(1). The term "substantial
compliance" is defined to mean:
42 C.F.R. � 488.301.
CMS based its remedy determination in this case on deficiency
findings that were made at the June 11, 1998 survey of Petitioner. The
deficiency findings were reported by the Florida State survey agency as
alleged failures to comply with the requirements of: 42 C.F.R. �� 483.12(a)(2)
and (3); 483.13(c)(1)(i); and, 483.25(l)(1). HCFA Ex. 23. Below, I discuss
separately each deficiency allegation and Petitioner's response to that
allegation. I conclude that in some respects CMS failed to establish a
prima facie case that Petitioner failed to comply substantially with participation
requirements. In all other respects, Petitioner rebutted the evidence
of noncompliance that CMS offered by a preponderance of the evidence
The report of the June 11, 1998 survey alleges, at Tag
201, that Petitioner failed to comply substantially with the requirements
of 42 C.F.R. � 483.12(a)(2) and (3). HCFA Ex. 23 at 1 - 5. At 42 C.F.R.
� 483.12(a)(2), the regulation defines the circumstances under which a
facility may transfer or discharge a resident from its premises. At 42
C.F.R. � 483.12(a)(3), the regulation prescribes documentation requirements
which a facility must comply with when it transfers a resident. Although the survey report cites to both subsections of
the regulation it does not describe any alleged failure by Petitioner
to comply with the documentation requirements of 42 C.F.R. � 483.12(a)(3).
See HCFA Ex. 23, at 1 - 5. All of the narrative allegations in
the survey report relate to the alleged failure by Petitioner to comply
with the transfer and discharge criteria that are in 42 C.F.R. � 483.12(a)(2).
The report alleges that Petitioner transferred a resident - who is identified
in the survey report as Resident # 2 - from its premises to a Salvation
Army facility without satisfying any of the transfer or discharge criteria
that are described in that section. Resident # 2 was admitted to Petitioner's facility from
a hospital on August 29, 1997. He remained there until his discharge on
May 26, 1998. During his stay at Petitioner's facility the resident was
recovering from injuries which included a closed head injury and a fractured
tibia. HCFA Ex. 23, at 2. Resident # 2's stay at Petitioner's facility was marked
by altercations between the resident and other residents, between the
resident and members of Petitioner's staff and, by the resident's refusal
to comply with facility procedures. Resident # 2's conduct was increasingly
disruptive in the days that immediately predated his discharge from the
facility. On May 22, 1998, two female residents complained that Resident
# 2 attempted to assault them in their rooms. P. Ex. 1, at 342. On May
23, 1998, the resident was visibly intoxicated and smelled of alcohol.
Id. at 343. The resident caused other residents to become agitated
on that date. Id. On May 24, 1998, the resident left his assigned
area in the facility without signing out. When staff confronted him about
this violation of procedure, the resident averred that he would not sign
any papers and asserted that no one could compel him to do it. Id.;
P. Ex. 1, at 7. These episodes climaxed on May 25, 1998, the day before
the resident's discharge. On that date the resident fought with another
resident in the breeze way of Petitioner's facility. P. Ex. 1, at 343.
During this altercation, Resident # 2 struck the other resident with his
belt. Id. at 33. Petitioner's staff told Resident # 2 to return
to his room but he refused this directive. He then threw a piece of wood,
striking and injuring a member of Petitioner's staff. Id. at 343.
The resident remained hostile after being returned to his room and refused
to take his medications. Id. On May 26, 1998 a clinical psychologist
evaluated the resident and reported the following conclusion:
P. Ex. 1 at 33. Petitioner decided to discharge the resident based on
his behavior during the days that immediately predated May 26, 1998 and
on the clinical psychologist's evaluation of May 26, 1998. At the time of his discharge Resident # 2's medical condition
had improved significantly. He was not complaining of pain at the time
of his discharge. See P. Ex. 1, at 468. The resident was capable
of changing the dressing to his leg wound. Tr. at 170. There was no evidence
of infection at the site of the resident's leg wound. Tr. at 187; 202.
The resident's treating physician concluded that the resident did not
need skilled nursing care at the time of his discharge. Id. at
187. CMS argues that Petitioner's decision to transfer Resident
# 2 from its premises to a Salvation Army facility was not justified.
It contends that the resident was not medically suitable for a transfer
or discharge. According to CMS, the resident had a possible infection
in his leg that continued to require care in a residential setting. CMS
argues, additionally, that the resident was receiving medications, Risperdal
and Dilantin, that could only be administered and monitored in a residential
environment. CMS concedes that the resident's behavior shortly prior
to his discharge was disruptive. However, CMS argues that the resident
was not so disruptive as to endanger the safety of other persons. CMS
contends that Petitioner should have found ways to accommodate the resident,
particularly in light of the atypical nature of the population of Petitioner's
facility. It asserts that Petitioner should have been adept at handling
younger and potentially disruptive individuals such as Resident # 2. Finally, CMS asserts that Petitioner was obligated to
retain Resident # 2 because there was no suitable alternative residential
setting available for the resident where the resident's medical needs
could be attended to. CMS contends that, if Petitioner wanted to discharge
the resident, Petitioner had a duty to orient the resident for discharge
and to find a suitable facility for that resident. The permissible grounds for transferring or discharging
a resident from a facility include the following:
42 C.F.R. � 483.12(a)(2)(i), (ii), (iii). The presence
of any of these grounds will justify a transfer or a discharge.
The presence of all or more than one of these grounds
is not necessary. The weight of the evidence establishes - CMS's arguments
notwithstanding - that the criteria of 42 C.F.R. � 483.12(a)(2)(ii) and
(iii) were satisfied in this case. The primary reason for Petitioner's
discharge of Resident # 2 was that he posed a serious threat to the safety
of Petitioner's staff and other residents. 42 C.F.R. � 483.12(a)(2)(iii).
It is also true that the resident's medical condition had improved sufficiently
to justify his discharge. 42 C.F.R. � 483.12(a)(2)(ii). Petitioner justifiably transferred Resident # 2 because
his continued presence at Petitioner's facility endangered the safety
of other residents and Petitioner's staff. The resident perpetrated increasingly
violent assaults against other residents and facility staff in the three
days prior to his discharge. His conduct included: attempted assaults
of female residents; an assault of another resident with a weapon (his
belt); and, an assault of a staff member with a piece of wood. The resident
proclaimed openly that he would not follow facility procedures and he
refused staff direction and medical treatment. A clinical psychologist
concluded that the resident was likely to remain aggressive. P. Ex. 1,
at 33. CMS contends that Petitioner should have found ways to
accommodate Resident # 2 despite his assaultive behavior. It asserts that
the resident was not atypical of the Petitioner's resident population
and "seemed to fit within [Petitioner's] self described care capabilities."
CMS's posthearing brief at 19. It argues that Petitioner made no efforts
to deal with the resident's disruptive behavior "other than to place him
on a behavior altering medication and send him to the facility psychologist
on two occasions for admonishment." Id. CMS contends also that
Petitioner did not prepare a new care plan to deal with the resident's
aggressive behavior. I am not persuaded by these arguments. CMS has offered
no evidence to show that Petitioner's behavior was typical of that of
other residents in Petitioner's facility. But, Petitioner would have been
justified in transferring or discharging the resident even if his behavior
was typical of that displayed by other residents. A facility is not compelled
to keep a dangerous resident because other residents might also be dangerous.
Petitioner was not obligated to make efforts to accommodate
Resident # 2 once it became apparent that the resident threatened other
individuals' personal safety. The regulations do not impose on a facility
the duty to engage in heroic efforts to retain a resident who poses a
clear and present danger to other residents or to the facility's staff.
Petitioner had no obligation to prepare an additional care plan or to
attempt alternative treatments. Indeed, the fact that Petitioner attempted
to deal with the resident's behavior with psychological evaluation and
medication suggests that it was doing more than it was required
to do for the resident. It is also evident that, by the date of his discharge,
Resident # 2 had improved sufficiently so that he no longer needed the
skilled nursing care that Petitioner provided. On this issue, I find to
be persuasive the testimony that was offered by Petitioner's medical director,
Jaimy Bensimon, M.D. Tr. at 183 - 187. Dr. Bensimon is board-certified
in internal medicine, cardiology, and geriatric medicine. Id. at
183. He testified, credibly, that at the time of his discharge Resident
# 2 was totally independent, no longer needed custodial care, and was
capable of changing his own bandages. Id. at 187. None of the resident's medical records show that the resident
was suffering from an infected leg wound. P. Ex. 1. The fact that the
leg wound may have continued to emit a discharge is not sufficient, in
and of itself, for me to infer that it was infected or that Resident #
2 continued to require in-patient care to treat that wound. CMS did not
offer any expert medical testimony that established that the resident's
leg wound was infected. And, although the resident may have required monitoring
by a physician to assure that he was responding appropriately to his medications
and was not experiencing adverse side effects from them, there is no evidence
in the record to support a conclusion that the monitoring had to be provided
on an in-patient basis. CMS's arguments about the need to continue to house Resident
# 2 at Petitioner's facility reduce to the contention that the resident
would have received a better quality of medical care at the facility than
he received outside of the facility. That may be true. But it begs the
question of whether the resident's medical condition had improved sufficiently
to justify his discharge. A facility is not required to provide continuing
residential care to an individual because that individual might receive
better care in that facility than he or she would receive in some other
setting. In its reply brief, CMS cites to 42 C.F.R. � 483.12(a)(2)(i)
and asserts that this subsection compelled Petitioner to retain Resident
# 2 on its premises. CMS argues that Petitioner could not lawfully transfer
or discharge Resident # 2 because Petitioner did not establish that it
was unable to meet the resident's needs. CMS interprets the language of
42 C.F.R. � 483.12(a)(2)(i) to mean that a transfer will never
be appropriate unless a resident's needs cannot be met by a facility.
CMS's reply brief at 1 - 2. This is an incorrect reading of the regulation.
Subsection (a)(2)(i) provides one basis for a transfer. It applies to
the circumstance where a facility determines that a resident's needs cannot
be met by that facility. However, it does not suggest that a facility
is obligated to retain a resident if a resident's needs can be
met by the facility. Nor does it override all of the other subsections
of 42 C.F.R. � 483.12(a)(2), which describe other circumstances in which
a transfer or discharge of a resident is appropriate. CMS's proposed interpretation
would read these other subsections out of the regulation. CMS is also incorrect to assert that there is a post-discharge
orientation requirement in 42 C.F.R. � 483.12(a)(2). That section does
not contain such a requirement. Therefore, the possibility that Petitioner
may have failed to provide Resident # 2 with post-discharge orientation
is irrelevant. There is a requirement for post-discharge orientation in
42 C.F.R. � 483.12(a)(7). However, the survey report of June 11, 1998
does not allege that Petitioner failed to comply substantially with the
requirements of 42 C.F.R. � 483.12(a)(7). At no time prior to the hearing
did CMS move to amend its allegations to include an allegation that Petitioner
failed to comply with 42 C.F.R. � 483.12(a)(7). CMS made the allegation
of failure to provide post-discharge orientation for the first time in
its posthearing brief. CMS's posthearing brief at 16. I decline to amend
the issues in this case to include an allegation that Petitioner failed
to comply with the requirements of 42 C.F.R. � 483.12(a)(7) because to
do so at this late date would be unfair to Petitioner.
The report of the June 11, 1998 survey alleges, at Tag
224, that Petitioner failed to comply substantially with the requirements
of 42 C.F.R. � 483.13(c)(1)(i). HCFA Ex. 23, at 5 - 9. The regulation
states that a facility must:
42 C.F.R. � 483.13(c)(1)(i). I find that CMS did not present a prima facie case that
Petitioner failed to comply substantially with the requirements of 42
C.F.R. � 483.13(c)(1)(i). Below, I discuss in detail the specific reasons
for my reaching this conclusion. I address each of CMS's arguments, one
by one, and find them to be without merit or without evidentiary support.
However, it is apparent that CMS's analysis of Petitioner's alleged failure
to comply with the requirements of 42 C.F.R. � 483.13(c)(1)(i) rests,
at bottom, on a misunderstanding of what this regulation is intended to
address. CMS argues in this case that Petitioner is deficient because
it did not deal with the assaultive and obstructive behavior of Resident
# 2 as if it were abuse covered by 42 C.F.R. � 483.13(c)(1)(i). The fundamental
problem with this argument is that the regulation does not apply to the
assaultive and obstructive conduct that resident # 2 engaged in. 42 C.F.R.
� 483.13(c)(1)(i) plainly and simply prohibits a facility and its
staff from abusing residents. That is obvious from the language of
the subsection, which says that the facility must not use verbal,
mental, sexual or physical abuse, corporal punishment, or involuntary
seclusion. There is no language in the subsection which suggests that
it is intended to deal with resident-against-resident assaults. That is not to suggest that a facility has no duty to
supervise its residents and to take appropriate action to prevent or to
stop resident-against-resident assaults. A facility clearly has such a
duty under another regulation, 42 C.F.R. � 483.25(h)(2). Woodstock
Care Center, DAB No. 1726 (2000). I would have considered whether
CMS offered sufficient evidence to establish a prima facie case of noncompliance
with the requirements of 42 C.F.R. � 483.25(h)(2) if CMS had alleged that
Petitioner failed to discharge its obligation to its residents under this
regulation. But, at no time did CMS make this allegation. I find it to
be inappropriate, on my own motion, to amend CMS's allegations after the
hearing is completed and the evidentiary record is closed to raise the
allegation of a failure by Petitioner to provide adequate supervision
of Resident # 2 in order to prevent accidents. Turning to CMS's specific allegations of noncompliance,
I find them to be without merit. At the hearing
one of the surveyors who conducted the June 11, 1998 survey alleged that
the surveyors had requested Petitioner's staff to produce a copy of its
policy concerning abuse but that the staff had failed to do so. Tr. at
73. This allegation is not made in the survey report and, therefore, I
find it to be irrelevant. Furthermore, the requirement that a facility
create and implement a policy that is designed to prevent abuse is not
contained in 42 C.F.R. � 483.13(c)(1)(i) although the broader language
of 42 C.F.R. � 483.13(c) does state such a requirement. I note that, in
any event, Petitioner produced a copy of its policy and it is evidence.
P. Ex.7; P. Ex. 8. The policy predates the survey and was in effect at
the time of the survey. CMS now asserts, for the first time, that Petitioner failed
to prepare incident reports timely about the assaults that Resident #
2 perpetrated against other residents. I find the allegation to be irrelevant
inasmuch as Petitioner was not given notice of it prior to the hearing.
Moreover, I question whether Petitioner was under any obligation to treat
the assaultive behavior by Resident # 2 as "abuse" for the reasons that
I have discussed above. I note, however, that Petitioner's staff fully
documented the assaultive behavior of Resident # 2. The resident's treatment
record is replete with the staff's documentation of the resident's conduct
including his assaults on other residents and Petitioner's staff. P. Ex.
1. The survey report does aver that Petitioner failed to
report to the police and to a local anti-abuse hotline episodes of assaults
by Resident # 2 against other residents. Petitioner does not deny that
allegation. However, that does not establish any basis for me to find
that Petitioner failed to comply with the requirements of 42 C.F.R. �
483.13(c)(1)(i). There is no abuse investigation and documentation requirement
in this subsection even assuming that resident-against-resident assault
constitutes "abuse." There are reporting and investigation requirements at
other parts of the regulation. 42 C.F.R. � 483.13(c)(2), (3), (4). CMS
did not allege that Petitioner failed to comply with these requirements.
Furthermore, I question whether the investigation and reporting requirements
of 42 C.F.R. � 483.13(c)(2), (3), and (4) apply to resident-against-resident
assaults inasmuch as the prohibitions against abuse in 42 C.F.R. � 483.13(c)(1)(i)
do not apply to such events. But, even if these requirements did apply
to such events, they cannot be read to require reporting of an episode
of resident-against-resident assault to the police or to an anti-abuse
hotline unless such reporting is required by relevant State law. See
42 C.F.R. � 483.13(c)(2),(4). CMS has offered nothing to show that a facility
in Florida is required by Florida State law to report a resident-against-resident
assault to the police or to a local anti-abuse hotline. I note that Petitioner's policy concerning abuse specifically
provides that resident-against-resident incidents will not be reported.
P. Ex. 7, at 1. Petitioner's failure to report Resident # 2's behavior
was, therefore, consistent with Petitioner's own policy. Further, CMS failed to offer any evidence to show that Petitioner or its staff abused residents or used corporal punishment or involuntary seclusion. The allegations in the survey report focus exclusively on the alleged failure by Petitioner to prevent Resident # 2 from assaulting other residents. HCFA Ex. 23, at 5 - 9. However, as I discuss above, neither resident-against-resident assaults nor failure by a facility to prevent such assaults is addressed by 42 C.F.R. � 483.13(c)(1)(i), although such failures are addressed by another regulation, 42 C.F.R. � 483.25(h)(2).
The report of the June 11, 1998 survey alleges, at Tag
329, that Petitioner failed to comply substantially with the drug monitoring
requirements of 42 C.F.R. � 483.25(l)(1). HCFA Ex. 23, at 9 - 11. The
regulation states the following requirements:
42 C.F.R. � 483.25(l)(1). The survey report alleges, specifically, that Petitioner
failed to provide adequate monitoring to two of its residents in their
use of drugs. HCFA Ex. 23, at 10 - 11. These residents are identified
in the survey report as Resident # 10 and Resident # 9. Id. Both
of these residents were receiving psychoactive medications. Resident #
10 was receiving Mellaril and Resident # 9 was receiving Risperdal. Id.
The survey report alleges that Petitioner's staff did not monitor either
of these residents adequately because it did not monitor them daily for
possible side effects from these medications. Id. Additionally,
the survey report alleges that Petitioner's staff did not adequately document
the absence of side effects to medications that were given to Residents
#s 10 and 9. An underlying premise of the survey report's allegations
is that "adequate monitoring" of the administration of Mellaril and Risperdal
necessarily must be daily monitoring of those medications. HCFA
Ex. 23, at 10 - 11. There is no explicit requirement in the regulations
that a facility monitor its residents' use of medications daily. However,
it is possible in a particular instance that daily monitoring might be
in order for a particular resident for the administration of a particular
drug. Thus, even though there is no explicitly stated requirement in the
text of the regulation that monitoring be done daily, there might be a
medical basis for doing so in the appropriate case. And, if there
is a medical requirement for daily monitoring of drug use then daily monitoring
would be "adequate" within the meaning of the regulation. The question
is: was daily monitoring of Mellaril and Risperdal medically required
here and was it, therefore, "adequate?" CMS argues that the "industry standard" in nursing homes
is to conduct daily monitoring and to make daily written observations
of the effect of psychoactive medications, including Mellaril and Risperdal,
on residents. CMS's posthearing brief at 26 - 27. As support for this
argument, CMS relies on the testimony of Mary Jane Battaglia, one of the
surveyors who participated in the June 11, 1998 survey of Petitioner.
Tr. at 80 - 81; 85; 90 - 94. She testified that:
Id. at 85. She testified that the "industry standard"
for monitoring of psychoactive medications was to monitor their use and
make written observations daily. Id. at 93. Ms. Battaglia linked this "industry standard" with the
need to assure that residents who receive psychoactive medications do
not develop adverse side effects, including tardive dyskinesia. Tardive
dyskinesia consists of neurological consequences resulting from use of
psychoactive medications and includes involuntary muscle movements. Petitioner countered the testimony of Ms. Battaglia with
testimony from its experts, Renuka Siddharthan, M.D., C.M.D., and Dr.
Bensimon. Tr. at 133; 152 -154; 183; 192 - 194. These two physicians both
testified that they were unaware of any industry-wide requirement that
psychoactive medication use by nursing home residents be monitored daily.
They observed, moreover, that advice to surveyors published by CMS does
not contain such a requirement. In their opinion, monitoring of psychoactive
medications less frequently than daily would be adequate, depending on
the needs of the individual whose medication use is being monitored. Dr.
Bensimon testified that it was certainly not necessary
to conduct daily monitoring of the residents in question for the possible
side effects of psychoactive medications, including tardive dyskinesia:
Tr. at 192 - 193. I find the testimony of Drs. Siddarthan and Bensimon to
be more persuasive than that of Ms. Battaglia. Ms. Battaglia has a Master's
degree in nursing. She did not testify that she has any specialized training
in psychiatric nursing or in the side effects of psychoactive medications.
However, both Dr. Siddarthan and Dr. Bensimon are physicians and Dr. Bensimon
is board-certified in gerontology. Furthermore, Dr. Bensimon had a treating
relationship with both Resident # 10 and Resident # 9 and is the medical
professional who is best qualified to know what level of monitoring of
medications would be appropriate for these residents. My conclusion is that, while Residents #s 10 and 9 certainly
needed be monitored for their use of psychoactive medications, there was
no medical reason to monitor these residents daily. Periodic
monitoring in the case of these residents meant monitoring on a less frequent
than daily basis. Thus, CMS's argument that Petitioner was required to
monitor Residents #s 10 and 9 daily is not supported by the preponderance
of the evidence. A second underlying premise of the June 11, 1998 survey
report is that "adequate monitoring" of a resident's drug therapy requires
documentation, not only of the presence of any side effects, but of the
absence of side effects. CMS argues that the records that Petitioner generated
concerning the drug regimes of Residents #s 10 and 9 were deficient because
they failed to specifically record that side effects were absent on particular
occasions. I find this argument to be unsupported, both by the language
of the regulation, and by evidence establishing acceptable medical practice.
There is no requirement in the regulation that a facility record the absence
of side effects of a medication on a particular form. The regulation contains
no documentation requirements. It requires that there be "adequate monitoring"
of drug use without specifying how monitoring is to be conducted or documented. The physicians who treated the residents were not looking
for specific forms or marks on forms to advise them of the presence or
absence of side effects. They depended on their own observations as well
as the information that Petitioner's staff communicated to them through
face-to-face communications and in the residents' treatment records. As
was made clear from the testimony of Dr. Bensimon, he received adequate
information from Petitioner's staff about the effects of medications on
the residents. Dr. Bensimon did not need to see a form which documented
the absence of side effects in order to know whether the residents were
experiencing side effects. He received information about side effects
directly from Petitioner's staff. Tr. at 190 - 191. The Florida State survey agency's report does not allege
that Petitioner failed in general to monitor Residents #s 10 and 9 for
the effects of the medications that these residents were taking. As I
have discussed above, the survey report focuses on Petitioner's staff's
alleged failure to: monitor residents daily and to record the absence
of side effects of medications. But, in any event, the record plainly establishes that
Residents #s 10 and 9 were monitored for the effects of the drugs that
they were taking. Petitioner's staff monitored Resident # 10 daily for
the effects of Mellaril. Tr. at 105 - 106, 111. The resident's care plan
directed Petitioner's staff to monitor the resident. P. Ex. 3 at 92. Resident
# 10 was examined by physicians, including Dr. Bensimon, on seven different
occasions between April 23, and June 15, 1998 and no side effects of Mellaril
were observed by these physicians on any of these occasions. Id.
at 7 - 14. Petitioner monitored Resident # 9 adequately for the effects of Risperdal. Tr. at 116 - 117; 157. The resident's care plan, which was completed on April 23, 1998, sets forth as an objective the minimization of signs of tardive dyskinesia. P. Ex. 2, at 40. Petitioner's staff recorded the resident's response to Risperdal monthly between January and May, 1998. Id. at 55; Tr. at 155. The resident's treating physician, Dr. Bensimon, was aware that the resident had manifested some signs of tardive dyskinesia. Tr. at 156. He managed the resident's care by altering the dosage of Risperdal that the resident was receiving and by prescribing additional medication to control tardive dyskinesia. Id. at 156 - 157.
As I discuss above, at Finding 1, a basis would exist
to deny payment to Petitioner for new Medicare admissions during the period
which ran from August 18, 1998 through August 31, 1998 if Petitioner failed
to comply substantially with even one Medicare participation requirement
during that period. But, the converse also is true. There is no basis
to impose the remedy if Petitioner was complying substantially with participation
requirements during the August 18 - 31, 1998 period. III. Conclusion There is no basis to deny payment for new Medicare admissions to Petitioner during the August 18 - 31, 1998 period. The record fails to demonstrate that Petitioner was not complying substantially with any participation requirement during the August 18 - 31, 1998 period. |
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JUDGE | |
Steven T. Kessel Administrative Law Judge
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