Department of Health and Human Services DEPARTMENTAL APPEALS BOARD Civil Remedies Division |
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IN THE CASE OF | |
Britthaven of Raleigh, |
DATE: May 10, 2002 |
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Centers for Medicare & Medicaid Services
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Docket No.C-02-121 Decision No. CR901 |
DECISION | |
DECISION I decide that
Petitioner, Britthaven of Raleigh, did not prove by a preponderance of
the evidence that, on October 30, 2001 and thereafter, it was complying
substantially with federal requirements governing its participation in
the Medicare program. Consequently, I sustain the determination of the
Centers for Medicare & Medicaid Services (CMS) to terminate Petitioner's
participation in Medicare effective November 1, 2001. I.
Background Petitioner
is a long-term care facility that is located in Raleigh, North Carolina.
Prior to November 1, 2001, it participated in the Medicare program. Its
participation in Medicare was governed by federal regulations at 42 C.F.R.
Part 483, which apply to the participation of skilled nursing facilities
and nursing facilities in Medicare and State Medicaid programs.
On October 30, 2001, Petitioner was surveyed by representatives of the North Carolina Department of Health and Human Services Division of Facility Services (North Carolina State survey agency). A purpose of the survey was to determine whether Petitioner was complying substantially with federal participation requirements. The surveyors concluded that Petitioner was not complying substantially with the requirement that is stated at 42 C.F.R. � 483.25(a)(3), which provides that:
CMS accepted
the North Carolina State survey agency's finding of noncompliance and
determined to terminate Petitioner's participation in Medicare effective
November 1, 2001. Petitioner requested a hearing and the case was assigned
to me for a hearing and a decision. I decided to
expedite the hearing in this case in light of CMS's determination to terminate
Petitioner's participation in Medicare. I held a hearing in Raleigh, North
Carolina on January 24, 2002. I heard the testimony of witnesses called
by the parties. I received into evidence exhibits offered by CMS consisting
of CMS Exhibits (CMS Exs.) 1-3; CMS Exs. 29-41; CMS Exs. 43-50; CMS Ex.
53; CMS Ex. 63; and CMS Exs. 65-68. I received into evidence exhibits
offered by Petitioner consisting of Petitioner Exhibits (P. Exs.) 1-32. II. Issue, findings of fact and conclusions of law
The issue in
this case is whether, on October 30, 2001 and thereafter, Petitioner failed
to comply substantially with a federal participation requirement, thereby
giving CMS authority to terminate Petitioner's participation in Medicare.
More specifically, the issue in this case is whether, on October 30, 2001
and thereafter, Petitioner was complying substantially with the participation
requirement that is stated at 42 C.F.R. � 483.25(a)(3). The surveyors
who conducted the October 30, 2001 survey concluded, and CMS now alleges,
that Petitioner was not complying with this requirement in that Petitioner
allegedly did not provide timely incontinence care for five of 11 sampled
residents who were assessed as being dependent on facility staff for incontinence
care. CMS Ex. 29, at 1-11. CMS argues
that 42 C.F.R. � 483.25(a)(3) incorporates a standard of care governing
the frequency with which a facility's staff should check and, if necessary,
provide incontinence care for incontinent residents. It avers that the
standard requires incontinent residents be given the necessary care frequently
or about every two hours. It alleges that Petitioner did not comply with
this standard because its staff allowed each of the residents whose care
is at issue to be unattended for periods of between three and five hours
between incontinence checks. CMS Ex. 29, at 1-11. CMS contends that these
residents suffered at least the potential for more than minimal harm. Petitioner denies these allegations. First, it contends that the surveyor's observations, which are the basis for the allegations, are not credible and are without merit. Second, it asserts affirmatively that it gave its residents care that met any reasonable standard of incontinence care, including the standard asserted by CMS.
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.
The requirement
of 42 C.F.R. � 483.25(a)(3) that a facility must provide "necessary services"
to residents to maintain personal hygiene subsumes professionally-recognized
standards of care for such services. These standards are not enumerated
specifically in the regulation. However, 42 C.F.R. � 483.25(a)(3) would
be meaningless if it were left entirely to the discretion of a facility
to decide how it would provide services to its residents. Thus, a facility
must adhere to professionally-recognized standards of care in providing
care to its residents. An "incontinent"
resident is an individual who has no control over his or her bowel or
bladder functions and who is incapable of being trained to use bathroom
facilities. The professionally-recognized standard of care for attending
to an incontinent resident is that the resident should be checked for
incontinence frequently, or at about two hour intervals. If a resident
is found to be incontinent, that resident should be given the necessary
incontinence care and his or her garments or bed linens should be changed.
This is not a rigid standard that a facility must follow with mechanical
precision. But, it is a reasonable yardstick by which a facility's performance
in providing incontinence care may be measured. Failure by a facility
to adhere reasonably to the standard is grounds for concluding that the
facility is not providing its residents with adequate incontinence care.
I base my conclusion
in part on the persuasive testimony of Joseph Ouslander, M.D., an expert
physician called to testify by CMS. Transcript (Tr.), at 54-97. Dr. Ouslander
is expert in providing guidance to long term care facilities about incontinence
care. Dr. Ouslander has extensive experience dealing with long term care
facilities and their staffs. Tr., at 64. Dr. Ouslander
averred that residents who are incapable of remaining continent should
be checked and, if necessary, cared for about every two hours. Tr. at
62. This standard is stated in numerous textbooks and articles, including
Dr. Ouslander's own textbook, and is, therefore, a recognized and widely
accepted standard of care. Id.
at 82. Failure to adhere to the standard could have serious adverse effects
for incontinent individuals. Potential adverse consequences of failing
to provide adequate incontinence care include: physical discomfort; agitation
and behavioral disturbance; skin breakdown and pressure ulcers; urinary
tract infection; and, falls related to efforts to use the bathroom. Id.
at 63 - 67. Another way
of expressing the standard is to say that incontinent residents must be
checked and, if necessary, provided incontinence care frequently. Dr.
Ouslander did not contend that a two-hour check standard for incontinence
care was one that had to be adhered to rigidly by a facility. Tr. at 94-95.
Indeed, the standard was deliberately not stated as an explicit guideline
for long term care facilities because the drafters of such guidelines
did not want surveyors to apply the standard rigidly. Id.
Whether the standard is expressed in terms of a quantitative measurement
of frequency of care or not, the point is that incontinent residents of
a long term care facility must be checked and given care often enough
so as to avoid the adverse consequences that result from sitting or lying
in urine or feces. In its post-hearing
brief, Petitioner argued that Dr. Ouslander conceded that neither the
Agency for Health Care Policy Research guidelines on urinary incontinence
in adults nor the National Practice Guideline for nursing home care state
specific time check requirements for incontinence care. Although that
is true, it does not detract from my conclusion that there is a flexible
requirement that incontinent residents be checked and changed frequently
or about every two hours. As Dr. Ouslander averred, the standard is a
flexible standard and not a rigid one, and putting it into guidelines
as a requirement that must be met mechanically by a facility might have
inappropriate consequences. Tr. at 94. Petitioner has not offered expert testimony or other evidence to establish that Dr. Ouslander's opinion is incorrect, or that it is contrary to the weight of professional opinion. Nor did Petitioner aver that some standard other than that which Dr. Ouslander asserted is the governing standard for incontinence care. Indeed, Petitioner's own policy was to adhere to a standard of care that is essentially the same as that which Dr. Ouslander stated to be the recognized standard of care. Petitioner's policy provides that:
CMS Ex. 39, at 7.
The surveyors
who conducted the October 30, 2001 survey of Petitioner found that Petitioner
failed to provide incontinence care to residents identified in the survey
report as Resident Nos. 5, 6, 7, 8, and 9 for periods ranging from about
three hours to about five hours. CMS Ex. 29, at 1-11. Each of these residents
is an individual who is described in treatment records maintained by Petitioner
as being totally dependent on Petitioner's staff for incontinence care.
Id. at 1, 4, 5-6, 7, 9. The surveyor
who is the primary source for these allegations is Joyce Berlin, R.N.
Tr., at 97-162. The allegations in the survey report are based primarily
on Ms. Berlin's recorded observations. CMS Exs. 34-37; CMS Ex. 39. CMS
supported these observations with Ms. Berlin's testimony at the hearing. If Ms. Berlin's
observations and testimony are credible, they are a basis for finding
that Petitioner failed to provide continence care to each of the five
residents that she observed for periods ranging from about three hours
to about five hours. If credible, Ms. Berlin's testimony and recorded
observations are prima facie evidence that Petitioner failed to comply
with the professionally-recognized standards - and Petitioner's own internal
policy - for providing care to incontinent residents. I find Ms.
Berlin's testimony and observations to be credible. For that reason, I
conclude that CMS established a prima facie case that Petitioner failed
to provide incontinence care to its residents in a manner that was consistent
with the professionally-recognized standard. On October
30, 2001, Ms. Berlin arrived at Petitioner's facility before 6:00 a.m.
Tr. at 99, 100. She was assigned the responsibility of observing the incontinence
care that Petitioner's staff gave to the five residents whose care is
at issue here. Id. at
101-102. As of the date of the survey these residents lived in rooms situated
along a hallway of Petitioner's facility known as the "Blue Hall." CMS
Ex. 66. The Blue Hall is an "L" shaped corridor. Id.
Two of the residents that Ms. Berlin observed, Residents Nos. 7 and 9,
resided in Room 105. Tr. at 114-115. Two other residents, Residents Nos.
5 and 8, lived in Room 107, which adjoins room 105. Id.
at 107, 116; CMS Ex. 66. The fifth resident, Resident No. 6, resided in
Room 111. Tr. at 116-117. Rooms 105 and 107 are located along the long
axis of the "L" that comprises the Blue Hall. CMS Ex. 66. Room 111 is
located along the short axis of the "L". Id.
Rooms 105, 107, and 111 all face into the Blue Hall from the same side
of the corridor; that side being the side on which odd-numbered rooms
are located. Id. All three
rooms are situated close to the junction of the two axes of the Blue Hall.
Id. Ms. Berlin
positioned herself near the junction of the two axes of the Blue Hall
in order to be able to observe simultaneously the entrance and departure
of Petitioner's staff from Rooms 105, 107, and 111. Tr. at 103. She spent
the majority of her time during the survey at that location. Id.
at 104. She testified that, from that vantage point, she had a clear view
of the three rooms that she observed. Id. Ms. Berlin's
specific observations are stated in the survey report and in the notes
she made during the survey. CMS Ex. 29; CMS Exs. 34-37; CMS Ex. 39. Ms.
Berlin averred that she observed the comings and goings from Resident
No. 5's room on October 30, 2001 from 6:00 a.m. until after 11:00 a.m.
During this time, she saw no incontinence care being given to the resident.
At 11:00 a.m., she asked the staff to check the resident for incontinence.
The resident's incontinence brief was found to be saturated with urine.
CMS Ex. 29, at 1-3. Ms. Berlin reported that she observed the care being
given to Resident No. 8 starting at 6:05 a.m. on October 30, 2001. She
made continuous observations of the resident beginning at 6:30 a.m. on
that date. She observed no interventions between Petitioner's staff and
the resident from about 7:20 a.m. until after 11:40 a.m. At that time,
Ms. Berlin detected an odor of urine upon approaching the resident's bed.
Petitioner's staff removed the resident's incontinence brief and it was
found to be saturated with urine. Id.,
at 4-5. Ms. Berlin
asserted that she saw Resident No. 7 receive incontinence care at 6:15
a.m. on October 30, 2001. She then observed the resident continuously
beginning at 6:30 a.m. on that date. She saw no incontinence care being
provided to the resident until 9:55 a.m. At that time a person on Petitioner's
staff removed the resident's brief and it was found to be saturated with
urine. CMS Ex. 29, at 5-6. Ms. Berlin averred that she saw Resident No.
9 receive incontinence care at 6:18 a.m. on October 30, 2001. She observed
no incontinence care being given to the resident between 6:18 a.m. and
9:15 a.m. At that time, she observed a nursing aide remove the resident's
incontinence brief. The brief was saturated with urine. Id.
at 7-8. Ms. Berlin
averred that she observed the care being given to Resident No. 6 continuously
from 6:25 a.m. until 10:44 a.m. on October 30, 2001. She saw the resident
being given incontinence care at about 7:25 a.m. although, according to
Ms. Berlin, the resident's buttocks and perineal area were not dried after
being washed and the nurse's aide failed to apply a barrier cream at that
time. CMS Ex. 29, at 10-11. According to Ms. Berlin, at about 8:00 a.m.
an odor of feces was noted to be present in the resident's room. Ms. Berlin
asserted that shortly thereafter, a member of the resident's staff picked
up a meal tray from the resident's room but made no other interventions
at that time. No further incontinence care was given to the resident until
10:44 a.m. At that time, the resident was found to be soiled with both
urine and feces. Petitioner
asserts that Ms. Berlin's testimony is not credible because Ms. Berlin
could not possibly have observed simultaneously the care that Petitioner's
staff gave to all five of the residents whose care is at issue here. Petitioner
argues that Ms. Berlin could not have observed all five of the residents
simultaneously due to their residence in different rooms, and due also
to the location of their rooms on different axes of the Blue Hall. And,
it contends that Ms. Berlin would not have been in any position to know
what care Petitioner's staff was giving residents other than the resident
whose care Ms. Berlin was observing directly at any given moment. Thus,
for example, it is conceivable that Petitioner's staff might have provided
incontinence care to Resident No. 6 while Ms. Berlin was observing the
care that the staff gave to Resident No. 5. Petitioner
is correct in asserting that there would have been moments when Ms. Berlin
would have not been able to see who was entering or leaving a particular
room. If Ms. Berlin turned her head to the left, as she was standing at
the junction of the two axes of the Blue Hall, she would not have had
a clear view of what was going on to her right. And, she would
not have been able to observe activity to her left when she turned her
head to her right. Furthermore, Petitioner certainly is correct in contending
that Ms. Berlin could not have seen activity occurring in a resident's
room other than a room that she was in while she was observing the care
that was being provided in that particular room. But, these
undeniably true contentions do not detract significantly from the overall
credibility of Ms. Berlin's testimony and recorded observations. The fact
that Ms. Berlin's view of one or two residents' rooms might have been
obscured for a few seconds as she turned her head from side to side to
watch other rooms does not detract at all from her testimony and observations.
Conceivably, an aide could have dashed into a room and left while Ms.
Berlin's head was turned for a few seconds or even a minute or two. But,
incontinence care was not performed by aides who dashed into and out of
rooms. The care that was performed on each of the residents in question
- when it was performed - consisted of removing and discarding the soiled
incontinence brief and, perhaps bed linens as well, cleaning the resident,
drying the resident, applying barrier cream to the resident's buttocks
and perineal area, and re-dressing the resident with a fresh incontinence
brief. Such actions did not transpire in an instant. Even a simple check
of a resident which ascertained that the resident was dry would have had
to involve positioning the resident, removing the resident's brief, and
then, replacing the brief on the resident's body. Ms. Berlin would not
have failed to observe the comings and goings of nursing aides which accompanied
such care because her attention may have been diverted momentarily as
she turned her head to view a particular axis of the Blue Hall. Moreover, two
of the three rooms that Ms. Berlin observed were adjacent to each other
on one axis of the Blue Hall and the third room was only a few feet down
the other axis. CMS Ex. 66. Ms. Berlin was in close proximity to all three
rooms as she stood at the junction of the axes of the Blue Hall and I
am unconvinced that she would have missed any significant activity when
she turned her head from side to side to look at particular rooms. See
Id. Nor am I persuaded
that Ms. Berlin would have omitted to observe at least part of an episode
of incontinence care that was transpiring in a room other than a room
that she was observing directly. None of the observations that Ms. Berlin
made of the care that was provided to the residents in question required
her to be in any resident's room for more than a few minutes. Obviously,
Ms. Berlin might have missed some aspects of care given to a resident
in another room - assuming that such care was provided - while she was
observing the care that was being given in a particular room. But, it
is highly unlikely, in my judgment, that she would have missed seeing
all of that care. Thus, Ms. Berlin could have missed the beginning
or end of incontinence care that Petitioner's staff gave to a resident
while she was observing care being given to another resident. I find it
unlikely, however, that her involvement with one resident would have precluded
her entirely from seeing or being aware of any aspect of the care being
provided to another resident, assuming that the care actually was provided. Petitioner
asserts that Ms. Berlin's recorded observations contain discrepancies
and inaccuracies that undermine her testimony and render her findings
not credible. I have looked at Ms. Berlin's observations and I find that
any inaccuracies or discrepancies alleged by Petitioner are trivial and
do not detract from the overall credibility of Ms. Berlin's findings. There is much
dispute between the parties as to the significance of Ms. Berlin's observations
that all five of the residents in question were found to have been incontinent
when incontinence care finally was provided to them. CMS asserts that
these episodes of incontinence provide evidence - in addition to Ms. Berlin's
direct observations of the lengths of time that the residents were allowed
to go without receiving incontinence care - that Petitioner failed to
provide incontinence care timely to its residents. Petitioner argues that
the fact that all five of the residents had been incontinent is essentially
meaningless because there is no evidence to establish when the incontinence
episodes occurred. I do not find
evidence, that all of the five residents in question had been incontinent,
to be significant proof that Petitioner failed to provide them with timely
incontinence care. Rather, I base my finding that CMS established a prima
facie case that Petitioner did not comply with professionally-recognized
standards of incontinence care on Ms. Berlin's observations of the length
of time that transpired between incontinence checks and care for each
of the five residents. By definition, an incontinent resident will be
incontinent, probably several times a day. For that reason, the fact that
a resident was incontinent at some point between incontinence checks is
not meaningful. On the other hand, the whole point of requiring frequent
incontinence checks of incontinent residents is to minimize the amount
of time that these residents are exposed to their urine and feces. So,
what is meaningful here is that there is prima facie evidence that residents
were allowed to wait for long periods of time between incontinence checks
and not necessarily that they were found to have been incontinent when
they were finally checked. CMS also attempted
to argue at the hearing that Petitioner had been cited on previous occasions
for failure to provide timely incontinence care to its residents. From
this, CMS wanted me to infer that Ms. Berlin's observations on October
30, 2001 were added proof of a long-standing failure by Petitioner and
its staff to provide timely incontinence care to its residents. I am not basing
my finding that CMS established a prima facie case against Petitioner
of noncompliance with applicable standards of incontinence care on Petitioner's
past compliance history. The issue before me in this case relates solely
to Petitioner's compliance status as of October 30, 2001. Petitioner's
past compliance history would be no basis for finding Petitioner to be
noncompliant as of October 30, 2001 had Petitioner been following professionally-recognized
standards of care on that date. And, if Petitioner was not following professionally-recognized
standards of care on October 30, 2001 - as is indicated by CMS's prima
facie evidence of Petitioner's noncompliance - then Petitioner was noncompliant
with those standards regardless of its previous compliance history.
As I discuss
at Finding 2, CMS offered prima facie proof that Petitioner failed to
comply with a professionally-recognized standard of care that is implicit
in 42 C.F.R. � 483.25(a)(3). That evidence, coupled with evidence that
Petitioner's compliance failure posed a potential for more than minimal
harm to residents of Petitioner, is sufficient to establish a prima facie
case that Petitioner failed to comply substantially with the requirements
of the regulation. The evidence
of a potential for more than minimal harm was supplied by Dr. Ouslander.
As I discuss at Finding 1, the failure by a facility to provide timely
incontinence care to its residents poses a potential of both psychological
and physical harm to residents. Such potential harm includes agitation
and discomfort, skin breakdown and pressure ulcers, infections, and falls.
Petitioner
relies on two lines of proof to contend that the preponderance of the
evidence shows that it complied substantially with the requirements of
42 C.F.R. � 483.25(a)(3). First, Petitioner offers the statements of several
nursing assistants for the purpose of proving that the five residents
whose care is at issue received timely incontinence care on October 30,
2001. Second, Petitioner offers proof to show that these residents did
not suffer from pressure sores or other skin problems. It asks that I
infer from the absence of pressure sores or skin problems involving the
residents that these residents received timely incontinence care.
I find that
Petitioner did not prove, by a preponderance of the evidence, that Petitioner
was complying with the regulation. At best, the evidence that Petitioner
relies on establishes a case for compliance that is equally as strong
as CMS's prima facie case for noncompliance. Even giving the maximum weight
to Petitioner's evidence, it does not establish by a preponderance of
the evidence that Petitioner was providing incontinence care to its residents
that comported with professionally-recognized standards. But in addition,
there are some problems with Petitioner's evidence which renders it less
than compelling and less persuasive overall than the evidence that was
offered by CMS.
I received
into evidence from Petitioner signed and witnessed, but unsworn, statements
from five of its former employees. P. Exs. 26-30. These statements contradict
in some respects Ms. Berlin's testimony and recorded observations. In
her statement, Ms. Lorraine Boyd avers that she provided incontinence
care to Resident No. 6 between 8:30 a.m. and 8:35 a.m. on October 30,
2001, contradicting Ms. Berlin's assertion that the resident did not receive
such care on that date between about 7:25 a.m. and 10:44 a.m. P. Ex. 26;
see CMS Ex. 29, at 10-11.
Ms. Dana Edgerton avers in her statement that, at some points in time
after 7:20 a.m. on October 30, 2001, she provided incontinence care to
the residents in Room 105 of Petitioner's facility (Residents Nos. 7 and
9) and to the residents in Room 107 (Residents Nos. 5 and 8). P. Ex. 27.
Arguably, her contentions contradict Ms. Berlin's testimony and observations
that, on October 30, 2001: Resident No. 5 did not receive any incontinence
care between 6:00 a.m. and 11:00 a.m.; Resident No. 8 did not receive
any incontinence care between 7:20 a.m. and 11:40 a.m.; Resident No. 7
did not receive any incontinence care between 6:30 a.m. and 9:55 a.m.;
and, Resident No. 9 did not receive any incontinence care between 6:15
a.m. and 9:15 a.m. See
CMS Ex. 29, at 1-3, 4-5, 5-6, 7-8. In his statement,
Mr. Nurdean James avers that, on October 30, 2001, he provided incontinence
care to Residents Nos. 5 and 8 at about 9:15 a.m. P. Ex. 30. This statement
contradicts Ms. Berlin's observation that these two residents did not
receive such care before 11:00 a.m. and 11:40 a.m., respectively. In one of two
statements submitted by her, Ms. Michelle Dismuke avers that she saw Ms.
Berlin enter Room 110 of Petitioner's facility at about 7:25 a.m. on October
30, 2001 in order to observe the care that a resident was receiving at
that time. Ms. Dismuke avers that she did not see Ms. Berlin "back onto
the unit for approximately 10 minutes", thereby suggesting
that there was a 10 minute interruption in Ms. Berlin's observations of
the residents' rooms beginning at about 7:25 a.m. on October 30, 2001.
P. Ex. 29. This statement might contradict Ms. Berlin's assertion that
she observed the residents' rooms for incontinence care continuously beginning
about 6:30 a.m. on October 30, 2001. Even if I were
to accept these statements as fully credible, they would not overcome
the prima facie evidence presented through Ms. Berlin's testimony and
recorded observations. Petitioner has the burden of proof here. There
is nothing about these statements that would give them greater
probative value than the evidence elicited from Ms. Berlin. These statements
also have some significant credibility problems. None of them were made
under oath. They consist of unsworn hearsay. Inherently, they have less
probative value than Ms. Berlin's sworn testimony. CMS argues
that the statements should be afforded little or no probative value because
Petitioner did not produce their authors at the hearing so that counsel
for CMS could cross-examine these individuals. Although I find that the
statements have less probative value than does Ms. Berlin's testimony,
I emphasize that I do not find the statements' probative value to be reduced
because the authors of the statements were not present at the hearing.
CMS's counsel could have subpoenaed these individuals if she wanted to
cross-examine them. It is the fact that the statements were not made under
oath that makes them inherently less reliable than those statements that
are made under oath. Had these statements been made under oath I would
have afforded them the same probative value that I normally assign to
direct testimony that is made under oath whether or not Petitioner produced
the statements' authors at the hearing. Moreover, the
statements are not nearly so precise as is Ms. Berlin's chronology of
the events of October 30, 2001. Their imprecision further reduces their
credibility, especially when they are contrasted with Ms. Berlin's testimony
and recorded observations. For example, in her statement, Ms. Edgerton
contends that, on October 30, 2001, she gave incontinence care to four
of the residents whose care is at issue (Residents Nos. 5, 7, 8, and 9)
after 7:20 a.m. But, she does not identify the precise times when she
allegedly gave such care. That omission renders her statement vague and
diminishes its probative value. Moreover, Ms. Edgerton's failure to pinpoint
the times when she provided incontinence care raises the possibility that
the statement is not, in reality, inconsistent with anything that Ms.
Berlin said. Similarly, Ms. Dismuke's statement that she "did not see" Ms. Berlin return to the unit (by "unit" I presume that Ms. Dismuke means the Blue Hall) for about 10 minutes after seeing her enter Room 110 at about 7:25 a.m. on October 30, 2001 in order to observe care in that room, is ambiguous and of little probative value. See P. Ex. 27. Ms. Dismuke does not explain where she was during that 10 minute period. For that reason, it is impossible to tell from her statement whether Ms. Dismuke was in any position to know how long Ms. Berlin remained in Room 110.
Petitioner
avers that, with one exception, none of the residents whose care is at
issue manifested any skin problems on October 30, 2001. There were no
pressure ulcers on the residents' buttocks or perineal areas and only
one case of redness or skin irritation. Petitioner avers also that none
of these residents showed any history of skin irritation or sores resulting
from poor incontinence care. From these assertions Petitioner argues that
it must not have been providing poor incontinence care to the residents. Although I
do not take issue with Petitioner's assertions concerning the condition
of the residents' skin, I do not find that the evidence offered by Petitioner
proves that it was providing adequate incontinence care to its residents.
The fact that the residents whose care is at issue did not, for the most
part, manifest skin problems does not prove that they were receiving acceptable
incontinence care. Pressure ulcers and skin irritation are possible
consequences of inadequate incontinence care. However, there is no evidence
to show that they are inevitable consequences of inadequate incontinence
care. Both the North Carolina State survey agency and CMS recognized this distinction in making assessments of the scope and severity of Petitioner's failure to comply with the requirements of 42 C.F.R. � 483.25(a)(3). It is not alleged in this case that Petitioner's noncompliance caused the residents to experience actual harm. The assertion is that the noncompliance created a potential for more than minimal harm to the residents. As I discuss above, at Findings 1 and 3, the prima facie evidence in this case is that Petitioner's failure to provide timely incontinence care to its residents created a potential for more than minimal harm to these individuals. Petitioner's evidence does not rebut that prima facie evidence.
CMS is authorized to terminate the participation in Medicare of a health care provider, including a long term care facility, that fails to comply substantially with one or more federal participation requirements. Social Security Act (Act), section 1866(b)(2)(A). CMS is authorized to terminate Petitioner's participation in Medicare effective November 1, 2001 based on its failure as of October 30, 2001 to comply with the requirements of 42 C.F.R. � 498.25(a)(3). |
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JUDGE | |
Steven T. Kessel Administrative Law Judge
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