Department of Health and Human Services DEPARTMENTAL APPEALS BOARD Civil Remedies Division |
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IN THE CASE OF | |
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DATE: February 4, 2002 |
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Centers for Medicare & Medicaid
Services
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Docket No.C-00-438 Decision No. CR866 |
DECISION | |
DECISION I sustain the imposition of remedies against Petitioner, Ridge Terrace, consisting of the following civil money penalties:
The total amount of civil money penalties that I impose
against Petitioner is $81,450. I. Background Petitioner is a skilled nursing facility that is located
in Cincinnati, Ohio. It is certified to participate in the Medicare program
by the Centers for Medicare & Medicaid Services (CMS, formerly known
as the Health Care Financing Administration, or HCFA). It is subject to
the laws and regulations that govern the participation of facilities in
that program. In 2000 Petitioner was surveyed on several occasions by
surveyors employed by the Ohio Department of Health (Ohio State survey
agency), acting on behalf of CMS, in order to determine whether Petitioner
was complying substantially with Medicare participation requirements.
These surveys were completed on January 28, 2000 (January survey), March
13, 2000 (March survey), and April 6, 2000 (April survey). At the January
and March surveys, the surveyors found Petitioner not to be complying
substantially with participation requirements. At the April survey the
surveyors found that Petitioner had attained substantial compliance with
participation requirements effective March 27, 2000. The deficiency findings made by the surveyors included
a finding in the report of the January survey that Petitioner had been
deficient in complying with one participation requirement to the extent
that residents of Petitioner were placed in a state of immediate jeopardy.
The term "immediate jeopardy" is defined by applicable regulations to
mean a situation in which a facility's noncompliance with a participation
requirement or requirements has caused, or is likely to cause, serious
injury, harm, impairment, or death to a resident. 42 C.F.R � 488.301.
The surveyors concluded that this episode of immediate jeopardy began
on January 12, 2000 and ran through January 26, 2000. They also found
at the January survey that Petitioner failed to comply substantially with
additional participation requirements, albeit at a level of severity that
was less than the immediate jeopardy level. At the March survey, the surveyors
concluded that Petitioner manifested additional non-immediate jeopardy
level failures to comply with participation requirements. CMS concurred with the noncompliance findings that were
made by the surveyors and determined to impose remedies against Petitioner.
These remedies consisted of civil money penalties in amounts of $3,950
per day for each day of the period that began on January 12 and which
ran through January 26, 2000, and $700 per day for each day of the period
that began on January 27, 2000 and which ran through March 26, 2000. The
total amount of the civil money penalties that CMS determined to impose
against Petitioner is $101,250. Petitioner requested a hearing and the case was assigned
to me for a hearing and a decision. CMS then moved for partial summary
disposition as to certain issues. Petitioner opposed CMS's motion and
cross-moved for summary disposition. On February 8, 2001, I issued rulings
which granted CMS's motions in part and denied them in part. In that ruling
I also denied Petitioner's cross-motion for summary disposition. I discuss
my rulings in greater detail below. On May 23, 2001, I held a hearing in Cincinnati, Ohio,
as to those issues on which I had not issued summary disposition. The
parties called witnesses. I received into evidence exhibits from CMS.
These exhibits were identified with the descriptive acronym "HCFA" and,
therefore, I refer to them that way. They consist of: HCFA Ex. 1 - HCFA
Ex. 39; HCFA Ex. 40; HCFA Ex. 40A; and HCFA Ex. 41 - HCFA Ex. 116. I also
received into evidence exhibits from CMS consisting of: HCFA Ex. 46A;
HCFA Ex. 52A; HCFA Ex. 53A; HCFA Ex. 62A; HCFA Ex. 63A; and HCFA Ex. 72A.
I received into evidence exhibits from Petitioner consisting of P. Ex.
1 - P. Ex. 4; P. Ex.1H; P. Ex. 2H; P. Ex. 3H; P. Ex. 4H; P. Ex. 5 - P.
Ex. 14; and P. Ex. 18. One of the witnesses that Petitioner called to testify
is Mr. David Lipson. Mr. Lipson is a principal in the corporation that
owns and operates Petitioner. Tr. at 188 - 89. Petitioner called Mr. Lipson
to establish that Petitioner lacked the financial wherewithal to pay civil
money penalties of $3,950 per day for the January 12 - 26, 2000 period.
Counsel for CMS objected to Mr. Lipson being allowed to testify on the
ground that Petitioner did not give CMS timely notice of its intent to
call him as a witness. I allowed Mr. Lipson to testify but I also granted
CMS leave to file supplemental evidence as rebuttal to his testimony.
Tr. at 131. CMS offered such evidence as an additional exhibit which it
filed with its post-hearing brief. It identified the additional exhibit
as CMS Ex. 117 (the exhibit has attachments which CMS identified as attachments
117A - 117H). I am admitting into evidence CMS Ex. 117, including the
attachments to that exhibit. Petitioner then moved to submit additional documentary evidence in response to CMS Ex. 117. CMS opposed Petitioner's motion. I deny Petitioner's request to submit additional evidence. I permitted CMS the opportunity to offer additional evidence only in order to eliminate the prejudice caused by Petitioner's giving CMS late notice of its intent to call Mr. Lipson as a witness. I am not giving Petitioner a last bite at the apple because Petitioner had a full opportunity to present its position through Mr. Lipson's testimony. I note, however, that the dispute over Mr. Lipson's testimony, CMS's rebuttal to that testimony, and Petitioner's request that it be permitted to offer additional evidence, is academic. That is because, as I explain below, I am imposing the minimum civil money penalties against Petitioner that may be imposed for an immediate jeopardy level deficiency. I have no authority to reduce those penalties below $3,050 per day, regardless of Petitioner's financial condition. II. Issues, findings of fact and conclusions of law
The issues in this case are:
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 separate heading. I discuss each Finding in detail.
I incorporate my February 8, 2001 rulings into this decision.
Briefly, I summarize the most significant parts of those rulings. I do
not intend my summary to substitute for the analysis that I made in the
rulings.
Regulations governing civil money penalties provide that,
in the case of an immediate jeopardy level deficiency or deficiencies,
penalties may be imposed in a range of from $3,050 to $10,000 for each
day that the deficiency or deficiencies persist. 42 C.F.R. �
488.408(e). Deciding where penalties should fall within this range depends
on weighing evidence relating to factors that are identified in the regulations.
These include a facility's history of noncompliance including any repeated
deficiencies, its financial condition, and its culpability for the deficiencies.
42 C.F.R. � 488.438(f)(1), (2), and (4). The factors also include the
seriousness of deficiencies and their relationship to each other. 42 C.F.R.
� 488.404 (incorporated by reference into 42 C.F.R. � 488.438(f)(3)). CMS determined to impose civil money penalties of $3,950 per day against Petitioner for each day of the January 12 - 26, 2000 period. It contends that penalties in these amounts are supported by the following factors:
Petitioner responds to CMS's arguments by contending that
its immediate jeopardy level deficiency was only an isolated episode.
It asserts that, as a matter of law, whatever non-immediate jeopardy level
deficiencies it may have manifested as of the January survey should not
be considered in deciding the amount of any immediate jeopardy level penalties
(it also denies that it had other deficiencies). And, it contends that
it lacks the financial wherewithal to pay civil money penalties of $3,950
per day. I conclude that civil money penalties of $3,950 per day
are not reasonable. Civil money penalties of $3,050 per day are reasonable
and I modify CMS's penalty determination to reflect my conclusion. Close examination of the facts which pertain to Petitioner's
immediate jeopardy level deficiency establish that the deficiency constituted
an isolated failure by Petitioner to provide proper supervision to one
of its employees' administration of medication. Rulings at 2 - 9. There
is no evidence that Petitioner had a history of similar deficiencies,
or that other employees of Petitioner manifested the poor nursing skills
and judgment that the nurse in question demonstrated. Nor is there evidence
that the nurse in question mis-administered drugs to any resident other
than to Resident # 2. There is no evidence that any other resident in
Petitioner's facility suffered from mis-administration of medication.
There is no evidence that Petitioner had lax hiring policies. Indeed,
the nurse was licensed and appeared to be appropriately credentialed to
perform her duties. I am not suggesting that the deficiency was not serious.
Petitioner's failure to assure that Resident # 2 received appropriate
dosages of medication caused the resident to experience serious harm.
But, the deficiency, nonetheless, was a consequence of poor care provided
by only one of Petitioner's employees to only one of Petitioner's residents.
The facts thus establish an isolated aberration in the care that Petitioner
gave to its residents and do not demonstrate a broad failure by Petitioner's
staff to administer medications appropriately or to supervise their administration. In opposing CMS's motion for summary disposition in this
case, Petitioner argued that there was no basis for finding a deficiency
because the conduct of the nurse in question was only an isolated error
and not evidence of some systemic problem in the way the Petitioner provided
care. I rejected that argument. Rulings at 8. In doing so, I held that
a pattern of errors in administration of medication to multiple patients
is not a necessary prerequisite for finding a deficiency (although there
was a pattern in this case of mis-administration of Dilantin to Resident
# 2). But, while a pattern of errors may not be a prerequisite for finding
a deficiency, the fact that a deficiency is isolated in character may
be a basis for imposing a reduced civil money penalty. I do not agree with CMS's assertion that the immediate jeopardy penalty amount should be determined in part by considering other non-immediate jeopardy level deficiencies that Petitioner may have manifested at the same time as it manifested an immediate jeopardy level deficiency. The regulation which governs immediate jeopardy level civil money penalties provides that:
42 C.F.R. � 488.438(a)(1)(i) (emphasis added). On its
face, this regulation says that only immediate jeopardy level deficiencies
may be considered in deciding the appropriate amounts of civil money penalties
that may be imposed for such deficiencies. Hermina Traeye Memorial
Nursing Home, DAB CR756, CR757 (2001); aff'd DAB No. 1810 (2002).
I do not find Petitioner's financial status to be a relevant consideration in deciding the amount of the immediate jeopardy level penalties. I base my decision to impose penalties of $3,050 per day on the seriousness of the deficiency and its isolated character. Petitioner's financial condition is irrelevant to my analysis because I have no authority to reduce immediate jeopardy level penalties below $3,050 per day regardless of a facility's financial condition.
There is a basis for imposing non-immediate jeopardy level
civil money penalties against Petitioner for each day of the period that
ran from January 27 through March 26, 2000. CMS offered prima facie evidence,
which Petitioner did not overcome, that shows that Petitioner had non-immediate
jeopardy level deficiencies as of the January and March surveys. Petitioner
did not prove that it attained compliance with participation requirements
prior to March 26, 2000, the date on which Ohio State survey agency surveyors
found that Petitioner had attained substantial compliance. The surveyors who conducted the January survey concluded that Petitioner had 10 non-immediate jeopardy level deficiencies. HCFA Ex. 3. They found that three of these alleged deficiencies were so severe as to have caused residents of Petitioner's facility to experience actual harm. These alleged deficiencies are identified at Tags 314, 323, and 324 of the report of the report of the January survey. Id. at 6 - 8; 14 - 15; 15 - 18. The surveyors found that Petitioner had three non-immediate jeopardy level deficiencies as of the March survey. HCFA Ex. 27. One of these alleged deficiencies, which is identified at Tag 314 of the report of the March survey, was found to be so severe as to have caused actual harm. Id. at 1 - 3. After informal dispute resolution, however, the Ohio State survey agency reduced the scope and severity of the alleged noncompliance to one that presented the risk of more than minimal harm. HCFA Ex. 31. CMS focused its evidentiary presentation and its post-hearing arguments on these alleged deficiencies and I likewise focus my analysis on them.
I find that Petitioner did not overcome the prima facie evidence of noncompliance with participation requirements that CMS presented about deficiencies that are alleged at Tags 314, 323, and 324 of the January survey report. Consequently, Petitioner was not complying substantially with participation requirements as of January 27, 2000.
At Tag 314 of the January survey report, the surveyors
alleged that Petitioner was not complying substantially with the requirements
of 42 C.F.R. � 483.25(c). HCFA Ex. 3, at 6 - 8. This regulation requires
that a facility ensure that a resident who enters a facility without pressure
sores does not develop pressure sores unless the resident's clinical condition
makes the development of such sores unavoidable. It also requires that
a facility provide the necessary treatment and services to a resident
with pressure sores to promote healing, prevent infection, and to prevent
the development of new pressure sores. The surveyors alleged that Petitioner's staff failed to
prevent two residents from developing avoidable pressure sores. These
residents are identified in the January survey report as Resident # 26
and Resident # 2. I find that Petitioner failed to comply substantially
with the requirements of 42 C.F.R. � 483.25(c) because these allegations
are supported by prima facie evidence which Petitioner did not overcome. The prima facie case presented by CMS with respect to
Resident # 26 is that she developed a pressure sore on her right heel
because Petitioner's staff failed to take appropriate preventive measures
against development of a sore despite the presence of obvious risk factors.
Tr. at 39 - 42. Resident # 26 was admitted to Petitioner's facility in
August 1999. Tr. at 39. At that time the resident did not have any pressure
sores. Id. The resident was not identified by Petitioner's staff
as being at risk for developing pressure sores and the resident's plan
of care did not prescribe any interventions to protect the resident against
developing sores. HCFA Ex. 3, at 7. In fact, the resident was at risk for developing pressure
sores. The resident's right heel was at risk for developing sores because
the heel was under constant pressure. The resident had to wear an abductor
splint at all times as a consequence of a hip fracture. HCFA Ex. 3, at
7; Tr. at 39 - 42. The splint immobilized the resident's leg while she
was in bed so that the resident's fractured hip could heal. Tr. at 42.
That caused the resident's right heel to bear weight for lengthy periods
of time during the several weeks that the resident wore the splint. In
October 1999, a pressure sore developed on the resident's right heel.
HCFA Ex. 3, at 7. This sore remained present as of the January survey.
Id. The sore could have been prevented had Petitioner's staff recognized
that the resident was at risk for developing one and had it taken appropriate
measures to reduce pressure on the resident's heel. Tr. at 43. However,
the staff both failed to perceive the risk and to take appropriate measures.
Tr. at 43 - 45. Petitioner argues that Resident # 26's pressure sore was
not caused by the resident wearing an abductor splint. Petitioner's post-hearing
brief (P. Br.) at 7; see Tr. at 143. Petitioner asserts that its
staff positioned the resident while she was in bed to alleviate pressure
from the abductor splint thereby assuring that pressure from the splint
did not cause the resident to develop a sore. P. Br. at 6; Tr. at 142
- 43. Petitioner argues also that it used an air and water mattress to
protect the resident against developing a pressure sore while the resident
was in bed. Petitioner contends that the sore was caused by the way
in which the resident ambulated. Tr. at 143. Petitioner's witness, Ms.
Linda Jo Combs, L.P.N., R.N., explained that the resident had a habit
of riding her heels down on her shoes as she pushed her wheelchair, apparently
by shuffling her feet against the floor. Id. According to Ms. Combs,
it was the rubbing of the shoe against the resident's right heel as she
shuffled her feet that caused the resident to develop a sore. She averred
that the sore was unavoidable because, allegedly, the resident continued
to ambulate by shuffling her feet notwithstanding staff warnings to the
resident. Id. at 143 - 44. I find this testimony not to be credible because it is
not supported by the records that Petitioner maintained of the care that
it provided to Resident # 26. Indeed, the treatment records are evidence
that Petitioner's staff actually failed to recognize that the resident
was at risk for developing a pressure sore and failed to take measures
designed to protect the resident against developing a sore. The treatment records of Resident # 26 are devoid of evidence
showing that the resident was assessed for possible pressure sores prior
to October 1999, when the resident first developed a sore. See
P. Ex. 7. There is nothing in the resident's records that shows that Petitioner's
staff recognized that pressure from the resident's abductor splint necessitated
repositioning the resident while she was in bed. There is no evidence
that the resident was given an air or water mattress prior to October
1999, when the resident was first observed to have developed a pressure
sore. Nor does the resident's care plan or other clinical records
contain any observation that the resident's foot shuffling put the resident
at risk for developing a pressure sore. There is nothing in the resident's
record that shows that Petitioner's staff undertook any preventive measures
to address the resident's foot shuffling if, in fact, the resident was
shuffling her feet. I therefore conclude that Petitioner failed to overcome
the evidence presented by CMS that Petitioner failed to comply substantially
with the requirements of 42 C.F.R. � 483.25(c) in its care of Resident
# 26. Petitioner similarly failed to overcome the prima facie
case that CMS presented concerning Resident # 2. CMS offered evidence
that Petitioner's staff failed to protect the resident against developing
a pressure sore caused by friction resulting from wearing plastic oxygen
tubing. The resident is a quadriplegic individual in a chronic vegetative
state. Tr. at 47 - 48. The resident receives oxygen via nasal cannula
that is fed by plastic tubing that rests behind the resident's ear. Tr.
at 46. The resident is unable to communicate and is unable to adjust the
tubing. Tr. at 48. The resident developed a pressure sore behind her ear
in late 1999 caused by pressure of the tubing against the resident's skin.
That sore was considered to be healed as of early January 2000. HCFA Ex.
3, at 8; Tr. at 46. However, at some point between January 4 and January
20, 2000, the resident developed another pressure sore behind her ear.
Id. The evidence that CMS offered shows that Petitioner's
staff knew that the resident was at risk for developing a sore resulting
from plastic tubing pressing against the resident's unprotected skin.
The fact that the resident developed a sore in late 1999 put the staff
on notice that a potential existed for more sores in the future if the
resident was not protected against friction caused by the tubing. Yet,
the staff failed to implement protective measures designed to prevent
sores from developing again. As a consequence, the resident developed
a new sore in January 2000. Tr. at 46 - 49. There is no evidence of record which rebuts CMS's prima facie case concerning Resident # 2. Petitioner has not presented any argument concerning the care that it gave to the resident. Consequently, the prima facie evidence offered by CMS establishes that Petitioner allowed Resident # 2 to develop an avoidable pressure sore.
At Tag 323 of the January survey report, the surveyors
alleged that Petitioner was not complying substantially with the requirements
of 42 C.F.R. � 483.25(h)(1). HCFA Ex. 3, at 14 - 15. This regulation requires
that a facility must ensure that its residents' environment be as free
of accident hazards as is possible. The surveyors who conducted the January survey alleged
that Petitioner had failed to assure that a resident who is identified
in the survey report as Resident # 31 was protected against accident hazards.
Specifically, the surveyors alleged that Petitioner's staff did not take
steps to assure that prescribed bed side rail padding was properly positioned
on the resident's bed rails. CMS offered the following evidence of noncompliance. Resident
# 31 had sustained a left elbow abrasion apparently from striking the
elbow against the side rails on the resident's bed. Tr. at 74. On the
morning of January 24, 2000, Resident # 31's physician issued a written
order that the side rails of the resident's bed be padded in order to
"decrease risk of injury from thrashing and hitting hands and arms on
rails." HCFA Ex. 3, at 14. However, on the evening of January 24, Petitioner's
staff noted that the resident had reopened the elbow abrasion. Id.
at 14 - 15. The surveyors observed Resident # 31's bed both on the
morning and afternoon of January 25, 2000. On both occasions the side
rail padding was observed to be at the lower end of the bed, near the
resident's feet and legs, and not at the upper end of the bed where the
resident's arms and hands lay. HCFA Ex. 3, at 14; see also
Tr. at 70. The surveyors discussed these observations with Petitioner's
administrative staff on January 27 and staff confirmed that padding had
not been positioned correctly. HCFA Ex. 3, at 15. The foregoing evidence establishes a prima facie case
of noncompliance by Petitioner. It shows that Petitioner's staff knew
that unprotected bed side rails posed an accident hazard for Resident
# 31. That knowledge grew out of the fact that the resident had been injured,
evidently from striking the side rails. Furthermore, Petitioner's staff
had been directed by the resident's physician to pad the side rails in
order to protect the resident's hands and arms. But, notwithstanding,
Petitioner's staff failed to position padding on the resident's bed in
a way that would protect the resident against the hazard posed by the
unprotected side rails. Petitioner makes the following contentions and arguments to respond to the prima facie case of noncompliance:
P. Br. at 8 - 9. I find these contentions and arguments
to be unpersuasive. Petitioner's contentions and arguments notwithstanding,
the facts relating to the care that Petitioner gave to Resident # 31 show
that Petitioner failed to protect the resident against an obvious accident
hazard. It is well within the realm of reasonable probability
that Petitioner's staff initially placed padding on the resident's side
rails consistent with the physician's order - that is to say, by the resident's
arms - and that the resident moved the padding down towards the foot of
the bed. But, assuming that to be true, it does not excuse Petitioner
from its obligation to protect the resident against an accident hazard.
Petitioner's staff should have taken steps to assure that the pads were
not moved. Petitioner's staff knew that unpadded side rails posed
a hazard for Resident # 31. The staff knew or should have known that the
padding that had been placed on Resident # 31's bed side rails was not
protecting the resident against injury. On January 25, 2000, surveyors
observed the resident's bed during the course of nearly a full day. HCFA
Ex. 3, at 14. During that entire time, the padding was located at the
lower half of the bed, and not by the resident's arms, as was prescribed
by the resident's physician. Id. During this time, Petitioner's
staff did nothing to reposition the pads and to secure them against further
shifting. The fact that the resident may have caused the padding
to move did not excuse Petitioner's staff from its obligation to protect
the resident. The staff had a duty to protect the resident whether
or not the resident initially moved the padding that Petitioner's staff
placed on the rails. If the resident moved the padding, then Petitioner's
staff should have attempted other measures to protect the resident. There were measures that Petitioner's staff might have
attempted to better protect the resident. The staff did not need additional
orders from the resident's physician to pad the entire rails on the resident's
bed. Or, the staff could have attempted to tie the pads on more securely.
Petitioner has offered no evidence that its staff attempted to take any
of these measures. I find there to be no merit in Petitioner's argument that a facility has no duty to protect a resident from an accident hazard where the hazard is created by a resident. A facility has a duty to protect a resident from an accident hazard whether the hazard is created by a force that is beyond the resident's ability to control or whether it is created by the resident's exercise of "free will." That is not to suggest that there may not be circumstances where a facility does everything that is reasonable to protect a resident and the resident thwarts those measures. In that instance, the facility would not be liable. But here, Petitioner did nothing to protect Resident # 31 once it became evident that the resident was possibly moving the pads that Petitioner's staff had placed on the resident's bed side rails. And, additional reasonable protective measures were well within Petitioner's capacity to implement.
At Tag 324 of the January survey report, the surveyors
alleged that Petitioner was not complying substantially with the requirements
of 42 C.F.R. � 483.25(h)(2). HCFA Ex. 3, at 15 - 18. The regulation requires
that a facility provide each of its residents with adequate supervision
and assistive devices to prevent accidents. The report of the January survey alleges that Petitioner
did not comply with the requirements of the regulation in that it failed
to prevent residents from sustaining accidents. HCFA Ex. 3, at 15. The
survey report specifically alleges that Petitioner failed to provide assistive
devices to two of its residents who are identified as Resident # 12 and
Resident # 15. However, in its post-hearing arguments, CMS focuses only
on the care that Petitioner gave to Resident # 12. CMS post-hearing brief
(CMS Br.) at 3 - 5. The evidence offered by CMS shows that Resident # 12 is
an individual who suffers from a range of impairments that make him prone
to falling. These impairments include: cognitive loss, rigidity, a seizure
disorder, an unsteady gait, and blindness. HCFA Ex. 3, at 15. The resident
had numerous falls prior to January 17, 2000, some of which caused injuries.
Id. at 15 - 16. On December 15, 2000, Petitioner ordered that padded
floor mats be installed next to the resident's bed. Id. at 16.
However, on January 17, 2000, the resident again fell. On this occasion,
the resident's injuries were sufficiently severe so as to require that
the resident be treated at a hospital. Id. On January 24, 2000, Resident # 12's physician ordered
that the resident wear elbow pad protectors at all times to protect him
against injury. However, the resident was observed by surveyors on January
25 and 26, 2000, not to be wearing protectors. HCFA Ex. 3, at 16. At the hearing, CMS amplified considerably on the allegations
that the surveyors made in the survey report. Ms. Jacqueline Kardasz,
R.N., one of the surveyors who participated in the January survey, testified
that there were a range of interventions that Petitioner should have attempted
with Resident # 12, but which Petitioner failed to attempt, which might
have prevented the resident from sustaining falls. These interventions
included: having elbow pads in place on January 17, 2000; giving the resident
a low bed next to a wall or a mattress on the floor in lieu of a bed;
utilizing a bed alarm, personal alarm, or motion detector to track the
resident's movements; giving the resident more physical therapy; giving
the resident a psychological assessment; and involving the resident in
diversionary activities. Tr. at 33 - 37. I find much of this evidence to be irrelevant because
Petitioner was not given notice by CMS that it intended to offer it. Ms.
Kardasz' allegations concerning what Petitioner should have done to protect
Resident # 12 were not made in the report of the January survey. Thus,
Petitioner had no notice prior to the hearing that CMS planned to assert
that Petitioner should have attempted to implement, but failed to implement,
a range of specific interventions. CMS did not move to amplify on the
allegations of the survey report prior to the hearing. However, there is a core to CMS's evidence which is stated
in the survey report and which, on its face, shows that Petitioner did
not provide Resident # 12 with adequate assistive devices to prevent accidents.
That is evidence which shows that Petitioner did not provide the resident
with protective elbow pads after January 24, 2000, even though the resident's
physician had ordered that such pads be provided. I find that Petitioner did not respond to this allegation
of noncompliance. Petitioner asserts that it provided Resident # 12 with
all sorts of assistance that was intended to protect the resident against
falling but the resident made "willful efforts" to avoid such assistance.
P. Br. at 10. According to Petitioner, the assistance that it provided
to the resident included: side rails, pelvic restraints, Merry walkers,
call lights, and alarms. Petitioner contends that its staff met weekly
to discuss the resident's problems. Tr. at 147. However, what Petitioner does not address is its staff's
failure to do what was prescribed for Resident # 12 by the resident's
physician. Petitioner offers no explanation for its failure to supply
the resident with elbow pads after January 24, 2000. Petitioner's failure to provide Resident # 12 with protective
elbow pads clearly was a failure by Petitioner to provide assistive devices
to the resident to prevent accidents. The resident was known to be at
high risk for falling. His physician had prescribed elbow pads precisely
because of that risk and the injuries that the resident had sustained
in the past. Petitioner argues that 42 C.F.R. � 483.25(h)(2) mandates that a facility provide assistive devices to prevent accidents and not to prevent injuries resulting from accidents. Petitioner seems to be saying that it was not deficient for its failure to provide Resident # 12 with elbow pads because the pads would not have prevented the resident from falling. I am not persuaded by this argument. The regulation does not define the word "accidents." However, its obvious intent is not just to assure that a facility prevent events that cause injuries but that it also protect its residents against the reasonably foreseeable consequences of such events. Here, the reasonably foreseeable consequence of a fall was that Resident # 12 might injure his arms and elbows. It was for that reason that the resident's physician prescribed elbow pads for the resident and Petitioner was deficient in not providing them.
In its evidentiary presentation and post-hearing arguments,
CMS focused on one of the three deficiencies that were identified at the
March survey. This deficiency is described at Tag 314 of the report of
the March survey. HCFA Ex. 27, at 1 - 3. The tag alleges that Petitioner
did not comply with the requirements of 42 C.F.R. � 483.25(c), which addresses
a facility's obligation to prevent and to treat pressure sores. See
discussion at Finding 1.a.i. The Ohio State survey agency surveyors alleged
that Petitioner had failed, in the case of a resident who is identified
as Resident # 58, to provide the resident with services to prevent infection
and to promote the healing of newly developed pressure sores. HCFA Ex.
27, at 2. The evidence offered by CMS to support this allegation
consists of the observations of Ms. Bernadette Poole, R.N., one of the
surveyors who participated in the March survey. In both the survey report
and as a witness, Ms. Poole averred that, on March 13, 2000, she had observed
Petitioner's staff providing care to Resident # 58. She testified that
she observed two very small pressure sores on the resident's buttocks.
According to Ms. Poole, Petitioner's staff wiped a stool-stained washcloth
directly across these sores. HCFA Ex. 27, at 2; Tr. at 80. Ms. Poole also
testified that she saw staff apply Vaseline Intensive Care lotion to the
resident's buttocks instead of the barrier cream that had been prescribed
by the resident's physician. Id. The evidence presented by CMS establishes a prima facie
case of noncompliance with the requirements of 42 C.F.R. � 483.25(c)(2).
Use of a septic washcloth to clean open sores is not care that is designed
to promote healing or to prevent infection. Petitioner did not overcome this prima facie case of noncompliance. Petitioner argues that, in fact, it applied a barrier cream to Resident # 58 as was prescribed by the resident's physician. P. Br. at 5; see Tr. at 133 - 139. But Petitioner has not offered any evidence to address the more serious allegation that its staff attempted to clean the resident's sores with a stool-stained washcloth.
The Ohio State survey agency surveyors determined at the April survey that Petitioner attained compliance with participation requirements on March 27, 2000. Petitioner has offered no evidence - aside from arguing that it was never, in fact, deficient - to refute this conclusion. Indeed, in responding to the findings that were made at the March survey, Petitioner filed a plan of correction in which it averred that it would attain compliance with participation requirements by March 27, 2000. HCFA Ex. 27.
CMS determined to impose against Petitioner civil money
penalties of $700 per day as remedies for the non-immediate jeopardy level
deficiencies that were identified at the January survey. I find these
amounts to be reasonable. Penalties of $700 per day are justified based on both
the seriousness of Petitioner's deficiencies and by their relationship
to each other. Petitioner had three deficiencies as of January 27, 2000
which caused residents to experience actual harm. HCFA Ex. 3, at 6
- 8; 14 - 15; 15 - 18. These deficiencies had elements in common. The
deficiencies that were established at Tags 314, 323, and 324 of the January
survey report demonstrate a failure by Petitioner's staff to devote adequate
attention to the needs of Petitioner's residents. The repetitive character
of these deficiencies is evidence from which I infer an overall inattentiveness
of Petitioner's staff to the residents' needs. CMS argues that an additional consideration mitigates
in favor of $700 per day civil money penalties for the non-immediate jeopardy
level deficiencies that were found at the January survey. This allegedly
consists of Petitioner's alleged poor compliance history. According to
CMS, Petitioner was found to have a "G" level deficiency at a compliance
survey that was completed in 1998. CMS Br. at 39. CMS has not offered evidence which describes the alleged
additional deficiency nor has it explained how that deficiency relates
to the deficiencies that were identified in January 2000. I conclude that
the relationship between any deficiency that may have been identified
in 1998 and those that were found in January 2000 is too tenuous to establish
an additional basis for imposing the $700 per day civil money penalties
for deficiencies that were identified at the January 2000 survey. However,
the deficiencies that were identified in January 2000 are, in and of themselves,
sufficiently serious to justify civil money penalties of $700 per day. Finally, I note that Petitioner did not argue that its financial condition was such that it was unable to pay the $700 per day non-immediate jeopardy level civil money penalties that CMS imposed although it did make such an argument concerning the $3,950 per day civil money penalties that CMS imposed for the immediate jeopardy level deficiency that was identified at the January survey. See Finding 2; see also P. Br. at 14 - 16. For this reason, I make no findings concerning whether Petitioner's financial condition would make the $700 per day civil money penalties unreasonable.
CMS determined to continue to impose civil money penalties
of $700 per day against Petitioner for the period which ran from March
13 - March 26, 2000, based on the surveyors' findings at the March survey
that Petitioner continued to manifest some non-immediate jeopardy level
deficiencies at that survey. However, it is not reasonable to impose civil
money penalties during the March 13 - 26, 2000 period in the same amounts
as were imposed for the January 27 - March 12, 2000 period. The deficiencies
that Petitioner had in March were fewer in number and of a lower scope
and severity than were the deficiencies that were identified in January.
The results of the March survey establish that, by the time of the survey,
Petitioner had made considerable progress in correcting its deficiencies.
Therefore, I reduce the civil money penalties for the March 13 - March
26, 2000 period to $250 per day to reflect this progress. At the January survey the surveyors identified 10 non-immediate
jeopardy level deficiencies. However, in March they only identified three
non-immediate jeopardy level deficiencies. HCFA Ex. 3; HCFA Ex. 27. Furthermore,
the deficiencies that were identified at the March survey were substantially
less serious than those that were identified at the January survey. Three
of the 10 deficiencies (Tags 314, 323, and 324) that were identified at
the January survey were assigned scope and severity levels of "G" meaning
that the surveyors found that the deficiencies caused residents to experience
actual harm. One of the three deficiencies that were identified at the
March survey (Tag 314) was initially assigned a scope and severity level
of "G." HCFA Ex. 27, at 1. However, the Ohio State survey agency subsequently
determined to reduce the scope and severity of this deficiency to level
"D". CMS Br. at 2. Thus, none of the deficiencies that were identified
in March caused Petitioner's residents to experience actual harm. III. Conclusion For the reasons stated, I sustain CMS's determination that Petitioner was out of compliance with Medicare participation requirements for the period January 12, 2000 through March 26, 2000. Accordingly, CMS was authorized to impose civil money penalties. I find reasonable civil money penalties in the following amounts: $3,050 per day for each day of a period that began on January 12, 2000 and which ran through January 26, 2000; $700 per day for each day of a period that began on January 27, 2000 and which ran through March 12, 2000; and $250 per day for each day of a period that began on March 13, 2000 and which ran through March 26, 2000. The total amount of civil money penalties that I find reasonable is $81,450. |
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JUDGE | |
Steven T. Kessel Administrative Law Judge |
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