Department of Health and Human Services DEPARTMENTAL APPEALS BOARD Civil Remedies Division |
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IN THE CASE OF | |
Livingston Care Center, |
DATE: May 22, 2002 |
- v - |
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Centers for Medicare & Medicaid
Services
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Docket No.C-01-824 Decision No. CR906 |
DECISION | |
DECISION I grant the
motion for summary disposition made by the Centers for Medicare &
Medicaid Services (CMS). I find that CMS was authorized to impose civil
money penalties against Petitioner, Livingston Care Center, for each day
of a period that began on April 20, 2001 and which ran through May 11,
2001. I find to be reasonable penalties in the amount of $500 per day.
The total amount of civil money penalties that I sustain in this case
is $10,500. I deny as moot CMS's motion to enter summary disposition concerning
alleged violations by Petitioner of Life Safety Code requirements. I also
deny as moot Petitioner's motion to amend its hearing request to contest
allegations that it failed to comply with Life Safety Code requirements. The undisputed material facts of this case establish that Petitioner failed to comply substantially with a participation requirement that is identified at Tag 314 in the report of a compliance survey that was completed of Petitioner's facility on April 20, 2001 (April 2001 survey). Petitioner did not aver facts to show that it attained compliance with this requirement before May 11, 2001. I sustain the amount of the civil money penalties that CMS determined to impose against Petitioner based on the undisputed material facts and the factors for determining penalty amounts that are set forth at 42 C.F.R. � 488.438(f)(1) - (4), including those factors that are stated at 42 C.F.R. � 488.404 and which are incorporated by reference at 42 C.F.R. � 488.438(f)(3). I.
Background Petitioner
is a skilled nursing facility that is located in Dayton, Ohio. Petitioner
participates in the Medicare program. As a participant it is required
to comply with regulations at 42 C.F.R. Part 483 that govern the participation
in Medicare of skilled nursing facilities and nursing facilities. Petitioner
was surveyed for compliance with Medicare participation requirements at
the April 2001 survey by surveyors who are employed by the Ohio Department
of Health. The surveyors concluded that Petitioner was not complying substantially
in several respects with Medicare participation requirements. Additionally,
the surveyors found that Petitioner was not complying with several provisions
of the Life Safety Code, which governs safety aspects of a long-term care
facility's plant. The Ohio Department
of Health found that Petitioner did not attain compliance with participation
requirements until May 11, 2001. The compliance date was determined based
on the results of a revisit survey that the Ohio Department of Health
conducted on May 11, 2001 (May 2001 resurvey). CMS accepted the Ohio Department
of Health's findings both as to the presence of deficiencies and as to
their duration. In a notice
letter to Petitioner dated May 22, 2001, CMS advised Petitioner that it
had determined to impose civil money penalties of $500 per day against
Petitioner for each day of the April 20 - May 11, 2001 period. CMS also
advised Petitioner that it had determined to deny Petitioner payment for
all new Medicare admissions effective July 20, 2001. CMS never implemented
this second remedy as it subsequently determined that Petitioner attained
compliance with participation requirements effective May 11, 2001. Petitioner
requested a hearing from CMS's determination and the case was assigned
to me for a hearing and a decision. CMS moved for summary disposition.
In its motion it argued that the undisputed material facts of the case
supported its determination that Petitioner had not complied substantially
with participation requirements as stated at Tag 314 of the report of
the April 2001 survey. CMS argued additionally that summary disposition
should be entered in its favor as to the Life Safety Code violations that
were identified at the April 2001 survey because Petitioner had not requested
a hearing to contest these deficiency findings. CMS argued also that its
determination that civil money penalties should be imposed in the amount
of $500 per day was reasonable. Petitioner
answered the motion. In its answer, Petitioner contended that there were
disputed issues of material fact concerning its compliance under Tag 314.
It argued additionally that it had not been given notice by CMS that civil
money penalties were being imposed in part to address any alleged Life
Safety Code violations by Petitioner. It argued that it should be granted
leave to amend its hearing request so that it could contest the findings
of Life Safety Code violations. CMS filed a reply brief. CMS submitted
16 exhibits in connection with its motion (CMS Ex. 1 - CMS Ex. 16). With
its answer to the motion, Petitioner submitted the written declaration
of Kinda E. Walden (Walden declaration). Petitioner also submitted documents
which it designated as Exhibit 1, Exhibit 2A - Exhibit 2F, Exhibit 3,
and Exhibit 4. Neither party has objected to my receiving any of these
exhibits into the record. I receive into the record CMS Ex. 1 - CMS Ex.
16 and Petitioner's Ex.1, 2A - 2F, Exhibit 3, Exhibit 4, and the Walden
declaration. II. Issues, findings of fact and conclusions of law
The issues in this case are whether:
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 find summary
disposition to be appropriate in this case because there are undisputed
material facts which establish that Petitioner did not comply substantially
with a participation requirement. And, the undisputed material facts also
support the civil money penalties that CMS determined to impose when these
facts are considered in conjunction with regulatory factors. I discuss the
undisputed material facts at Finding 2 of this decision. As I make clear
at Finding 2, I do not conclude that every fact averred by CMS is undisputed.
However, CMS has averred sufficient facts that are not disputed to establish
a basis to impose summary disposition in its favor. Regulations
at 42 C.F.R. Part 498 governing hearings held in cases involving CMS do
not mention summary disposition. However, administrative law judges routinely
accept and rule on motions for summary disposition. In doing so, they
apply the principles of summary judgment that are stated in Rule 56 of
the Federal Rules of Civil Procedure, which governs summary judgment in
federal civil cases. A motion for
summary disposition is a motion that is based on averred material
facts. A material fact is a fact which, if established, might affect
the outcome of the parties' dispute over a particular issue. The moving
party must aver the material facts that it is relying on and which it
alleges to be undisputed. Fed. R. Civ. P. 56(c). It is appropriate to
grant summary disposition where conclusions favorable to the moving party
may be drawn from undisputed material facts and applicable law.
Summary disposition
is not appropriate if material facts are genuinely disputed. However,
a party opposing a motion for summary disposition does not create a dispute
as to material facts simply by asserting that such facts are disputed.
It is never a sufficient basis for a party opposing a motion
for summary disposition to prevail for that party to
aver
only that it disputes the facts that are offered by the moving party without
articulating facts of its own that dispute the moving party's averred
facts:
Fed. R. Civ.
P. 56(e). Likewise, it is never a sufficient basis for the opposing
party to prevail by asserting, without offering facts that dispute the
moving party's averred facts, that the motion must be denied because that
party intends to present unspecified evidence at an in-person hearing.
See Id. Furthermore,
summary disposition is not precluded if the opposing party simply speculates
that direct testimony or cross-examination might bring out facts that
contradict those asserted by the moving party without averring the specific
facts that are likely to emerge through such testimony. The right to confront
and cross-examine a witness is a fundamental right. But, that does not
mean that a party may impose an absolute bar against imposition of summary
disposition simply by asserting the right. If that were so no motion for
summary disposition ever could be granted. Parties frequently
confuse the concept of material facts with conclusions that are
based on material facts. A conclusion is a finding that may be drawn from
material facts. A dispute between parties as to the correct conclusion
to be drawn from the facts will not be an impediment to the entry of summary
disposition if the material facts are not disputed. For example, it may
be a material fact that a resident's plan of care directed that specified
services be provided to a resident. It may also be a material fact that
the staff at the facility failed to provide the specified services. It
is a conclusion that the failure to provide the services in accordance
with the requirements of the resident's care plan potentially may have
harmed the resident. And, it is a conclusion that such a failure
is a substantial failure of the facility to comply with a participation
requirement that is set forth in a regulation. In such a case, the parties'
disagreement as to the appropriate conclusions would be no impediment
to the entry of summary disposition if the underlying material facts were
not in dispute. Nothing that
I have said here suggests that it should be difficult for a party in possession
of facts that legitimately refute those averred by the moving party to
oppose successfully a motion for summary disposition. The only thing that
the opposing party must do to successfully resist a motion for summary
disposition is aver facts that create a genuine dispute as to material
facts. In this case,
and as I shall discuss in detail at Finding 2, CMS's central fact assertions
concerning Petitioner's deficiencies at Tag 314 of the April 2001 survey
are allegations that Petitioner's residents failed to receive care that
was prescribed to prevent the residents from developing pressure sores
or to treat pressure sores. Petitioner could have responded to these allegations
- assuming it was aware of contradictory facts - simply by averring those
specific facts that would show that the residents received the care that
had been prescribed for them. In that event I would have found disputed
material facts and would have denied CMS's motion. However, with
very few exceptions, Petitioner did not aver any specific facts that responded
to CMS's averred facts. Petitioner's response to CMS's motion consists,
in the main, of making assertions and arguments that simply do not respond
to the facts averred by CMS and which fail to call those averred facts
into dispute. I deal specifically with Petitioner's assertions and arguments
as they pertain to the facts alleged by CMS below, at Finding 2. Here,
I deal with Petitioner's arguments in more general terms. First, Petitioner
broadly challenges the credibility of the surveyor findings that are the
basis for the deficiency statement at Tag 314 and which underlie CMS's
fact allegations. Petitioner claims that the surveyors' notes are incomplete
or illegible and that the surveyors are not credible reporters. It argues
also that the surveyor statements made in the report of the April 2001
survey that support CMS's allegations are hearsay and, therefore, not
reliable. I am not persuaded
by Petitioner's credibility arguments because they do not address the
specific material facts averred by CMS. The allegations that CMS makes
are that Petitioner failed to provide specifically prescribed care to
certain of its residents. For example, CMS avers that several of Petitioner's
residents were prescribed pressure relieving mattresses or wheelchair
pads which they did not receive. Petitioner has, for the most part, not
denied these allegations. Identifying minor discrepancies in the surveyors'
reports, or asserting that the surveyors' notes are in places illegible,
or complaining that the surveyors' findings are hearsay, is not sufficient
to call into question CMS's allegations if Petitioner does not aver specific
facts to refute the findings that the surveyors made that Petitioner failed
to provide pressure relieving devices to its residents. Indeed, with
only a very few exceptions, Petitioner has not offered facts that contradict
the surveyors' observations. Petitioner has not provided the statement
of any witness who avers that he or she saw residents with the pressure
relieving devices that the surveyors found were not supplied to the residents
or who avers that he or she saw the residents receiving care that the
surveyors say was not supplied to the residents. Petitioner has offered
the Walden declaration allegedly to rebut the surveyors' findings. But,
Ms. Walden avers no facts in her declaration that contradict the surveyors'
first-hand observations of the care that Petitioner gave to its residents.
See Walden declaration. Second, Petitioner
cites to various documents, most of which it has not produced, and asserts,
without explaining the documents' contents, that these documents provide
a basis to dispute the material facts relied on by CMS. According to Petitioner,
these documents consist of documents that Petitioner generated as part
of an informal dispute resolution (IDR) proceeding. Petitioner refers
to the IDR documents as support for its contention that it will produce
at some future date, but not now, evidence establishing facts that counter
CMS's assertions. This tactic
is not an effective response to CMS's motion. Petitioner has an obligation
to offer now, and not at some future date, the specific facts that refute
those facts that CMS is relying on. It is simply insufficient for Petitioner
to say that the documents contain unspecified evidence that refutes CMS's
averred material facts. Third, Petitioner
offers conclusions about the medical conditions that its residents manifested
and about the care that it provided to its residents and asserts that
summary disposition should be denied based on these conclusions. For example,
Petitioner asserts that pressure sores developed by some of its residents
were unavoidable. It is fair to consider whether these conclusions should
be drawn from the facts of this case. But, the conclusions offered by
Petitioner are not in and of themselves a reason to find disputed issues
of material fact. As I discuss above, a conclusion is not a fact but is an opinion that is based on fact. What is important in deciding whether there are disputed material facts is whether Petitioner averred facts of its own which contradicted those averred by CMS and which support Petitioner's proffered conclusions. Petitioner failed to assert such facts. The conclusions that Petitioner proffered either are based on those facts that are asserted by CMS or are not based on any asserted facts.
The participation requirements that are stated at 42 C.F.R. � 483.25(c)(1) and (2) state that a facility must ensure that:
The surveyors
who conducted the April 2001 survey of Petitioner found that Petitioner
failed to comply with these requirements. CMS Ex. 6 at 13 - 19. They based
their conclusions on observations they made of the care that Petitioner
gave to five residents - identified in the survey report as Residents
#s 83, 73, 90, 1, and 20 - along with their review of these residents'
treatment records (originally, the surveyors found errors in the care
that Petitioner gave to a sixth resident, but these allegations were deleted
in the course of IDR). Id. CMS offered
undisputed facts from which I conclude that Petitioner did not comply
substantially with the requirements of 42 C.F.R. � 483.25(c)(1) and (2)
in providing care to these residents. The undisputed material facts show
that there was a pattern of failures by Petitioner to provide care that
had been prescribed to its residents to prevent the development of, or
to treat, pressure sores. In the instances that I discuss below, Petitioner's
staff developed plans of care which acknowledged that residents were at
great risk for developing pressure sores and which required that these
residents be supplied with pressure relieving devices. Residents were
not given these devices despite these instructions. The undisputed material
facts establish also that residents were not given other care that should
have been given to them in order to treat, or prevent the development
of, pressure sores. For example, one resident who was at risk for developing
sores and who had developed a pressure sore on her buttock was allowed
by Petitioner's staff to lie for hours with her buttock, and the sore,
in contact with urine soaked bedding. The staff fed a meal to the resident
while she lay in urine soaked bedding but failed to clean the resident
or to replace the bedding. Petitioner's failures to provide care to its residents harmed them. The residents whose cases I discuss below were individuals who were characterized by Petitioner's staff as being at a high risk for developing pressure sores. Yet, the undisputed material facts establish that Petitioner's staff failed to provide to these residents the very services that the staff had determined to be essential to prevent or treat pressure sores. Several of these residents developed additional sores while under Petitioner's care. These sores were avoidable given Petitioner's failures to follow the care plans that it developed for these residents to prevent and treat pressure sores.
The following are the material facts alleged by CMS concerning the care that Petitioner gave to Resident # 83:
The averred
facts support the conclusion that Petitioner failed to provide necessary
treatment and services to Resident # 83 to promote healing, prevent infection,
and prevent new sores from developing in contravention of 42 C.F.R. �
483.25(c). The facts as alleged by CMS also support the conclusion that
Resident # 83 developed avoidable pressure sores that were related to
Petitioner's failure to provide necessary care for the resident. The facts show
that Petitioner's staff knew that the resident was at risk for developing
pressure sores. The staff developed a plan of care for the resident that
included the requirement that the resident be given a pressure-relieving
mattress. However, Petitioner's staff failed to implement the resident's
plan of care. The averred facts also show that Petitioner's staff knew
as early as April 6, 2001 that an immobilizing device was applying pressure
to the resident's leg and causing her to develop a sore. Yet, the staff
developed no plan of care to address this problem - nor did it take specific
steps designed to alleviate the pressure on the resident's leg - until
at least 10 days after the problem
was first identified. Finally, the facts averred by CMS show that the
staff waited at least 13 days after identifying a problem with the resident's
right foot before addressing that problem. During that period of time
and while untreated, the problem worsened until, on April 18, 2001, a
Stage II pressure sore was observed. Petitioner
asserts that it disputes CMS's averred facts and the conclusions which
CMS contends that I should draw from these averred facts. Petitioner's
assertions notwithstanding, I find that there are no disputed issues of
material fact concerning the care that Petitioner gave to Resident # 83.
CMS's averred facts have not been rebutted by Petitioner. These unrebutted
facts are, for the reasons I discuss above, ample basis for me to conclude
that Petitioner failed to comply with regulatory requirements in providing
care to the resident. I find that
there is no genuine dispute that Petitioner failed to assure that Resident
# 83 was seated on a pressure relieving pad while up in a wheelchair.
In its answer to CMS's motion, Petitioner both admits and denies that
CMS's averred facts are correct. However, it has not offered any facts
that call into question the surveyors' observations of the resident. On the one
hand, Petitioner seems to admit that the resident did not have a pressure
relieving pad, but attempts to argue that the pad was not supplied to
the resident because supplying the pad would have interfered with treatment
to the resident's leg. Petitioner's answer at 5. I might find this contention
to have some merit if Petitioner offered facts to support it. But, Petitioner
offered no such facts. The assertion that the pad was not supplied because
to do so would have interfered with the resident's care simply hangs in
the air without any meaningful support. On the other hand, Petitioner says that the surveyor's observations of the resident were inaccurate:
Petitioner's
answer at 5. Petitioner did not offer a copy of "IDR Exhibit A, page 3". However, I have been able to find a copy of what appears to be that document as part of CMS Ex. 7. CMS Ex. 7 at 10. It is a chart, headed with the phrase "Plan of Treatment." It contains numerous hand-written notations and entries. In the left hand margin of the chart is a phrase dated March 22, 2001 which reads: "[m]ay be up in Geri-Chair q day (Circle if not up in Geri Chair)". Next to that
phrase is a column labeled "frequency" which contains handwritten entries
marked "7 - 3" and, directly beneath that "3 - 11." Then, spread across
the page horizontally, beginning adjacent to these two entries are a number
of initials, many of which are circled, and a few of which are not circled.
None of the initials are dated. Petitioner
has provided me with no explanation whatsoever as to what these chart
entries mean aside from asserting that they support its contention that
the resident could not have been observed to be in a wheelchair or geri-chair
on the dates and times that the surveyors contended that they saw the
resident in the chair without a pressure relieving pad. I cannot discern
what the entries mean absent some credible explanation of them by someone
who is in a position to testify about them knowledgeably. Possibly, these
entries might have some meaning and Petitioner might have established
their meaning via an affidavit or declaration by the person who made them.
But, I find them to provide no support for Petitioner's contention absent
any credible explanation of what the entries mean. There is no
dispute as to CMS's contention that Resident # 83 did not receive a pressure
relieving mattress as was ordered for the resident in the resident's plan
of care. In response to that assertion Petitioner says only that it "cannot
confirm whether . . . [the mattress that had been supplied to the resident]
was a standard mattress or not." Petitioner's answer at 5. This response
plainly is inadequate to rebut the averred facts that the resident was
not given the prescribed mattress. There is also
no dispute concerning CMS's allegations that Petitioner's staff observed
redness on Resident # 83's right foot on April 5, 2001 but failed to address
the problem for 13 days, until April 18, 2001, when a Stage II pressure
sore was observed on that foot. Petitioner's answer to CMS's motion for
summary disposition is silent as to these fact allegations. Nor does Petitioner
dispute CMS's contention that it failed to provide treatment for more
than 10 days to a pressure sore that had developed on the resident's left
fibula and failed to take actions that would have prevented this sore
from worsening. Petitioner's non-denial of CMS's asserted facts is tantamount
to an admission that they are true. Petitioner
attempts to respond indirectly to CMS's assertions of fact concerning
the sore on the resident's fibula by asserting that the pressure sore
was clinically unavoidable. Petitioner's answer at 5 - 6. It contends
that the resident had a complex medical condition which made her treatment
options and choices difficult. Id. at 5. Petitioner asserts that
it weighed the risk of skin breakdown against the possibility of further
trauma to the resident's leg if the resident's leg was not properly immobilized
and made a difficult medical decision to immobilize the leg regardless
of the possibility of breakdown. These assertions
by Petitioner are conclusions. The point of Petitioner making them, however,
is that CMS's assertions are irrelevant because Petitioner's failure to
treat the sore on the resident's leg would not have prevented the sore
from developing or worsening. If Petitioner had identified facts that
supported its conclusions I would find that there are disputed issues
of material fact concerning whether Petitioner provided necessary care
to deal with the pressure sore on Resident # 83's fibula. But, Petitioner
identifies no facts that support its asserted conclusions. Petitioner
contends only that these facts may be found in documents that it submitted
in connection with IDR and which it has not submitted here. At no point
does Petitioner explain what these alleged facts are. Petitioner's
contention that the sore on Resident # 83's fibula was unavoidable is
part and parcel of Petitioner's broader contention that all of the resident's
sores were unavoidable. Petitioner argues that the resident's pressure
sores were directly related to her medical condition and her diagnosis
rather than to any care that Petitioner gave or withheld from the resident.
Petitioner contends that this broad conclusion is supported by facts that
are stated in IDR-related documents. But, Petitioner has not explained
what those facts consist of. Petitioner's
arguments concerning whether the resident's sores were avoidable - including
its arguments about the sore on the resident's fibula - are insufficient
to resist CMS's motion for summary disposition because they are not supported
by any specific facts. See Fed. R. Civ. P. 56(e). As I explain
above, at Finding 1, it is an insufficient basis to oppose CMS's motion
for Petitioner to refer to unspecified documents and to assert, in effect,
that the facts that create a dispute as to material facts are in there,
somewhere, to be disclosed at a later date.
A few of the
IDR-related documents referred to by Petitioner were submitted by CMS
as part of CMS Ex. 7. IDR Ex. A, pages 18 - 19 are nurse's notes that
were submitted by CMS as CMS Ex. 7 at 24 - 25. IDR Ex. A, page 20 is a
diagnosis record that was submitted by CMS as CMS Ex. 7 at 26. Petitioner
cites to them in its answer to the motion but does not explain what is
in these documents that supports its contentions. I have examined these
documents. I cannot find any facts stated in these documents that support
Petitioner's assertion that Resident # 83's pressure sores were unavoidable. Petitioner also asserts that it could not comply with an alleged directive by surveyors to pad the immobilizer on Resident # 83's leg. Petitioner asserts that it "could not 'pad' the metal bars on the immobilizer as this would have placed more pressure on . . . [the resident's] leg, defeating the purpose of the use of the immobilizer." Petitioner's answer at 6. It offers no facts to support this conclusion. Besides, CMS has not alleged that Petitioner failed to provide necessary care to the resident by failing to pad the resident's leg immobilizer. Nor has CMS contended that the Ohio Department of Health surveyors directed that the immobilizer be padded. The report of the April 2001 survey does not describe what Petitioner should have done. Rather, it focuses on Petitioner's failure to do anything to address the problems caused by pressure against the resident's leg despite being aware of these problems for a 13-day period. Petitioner has not responded to this allegation with any facts.
The following are the material facts alleged by CMS concerning the care that Petitioner gave to Resident # 73:
These facts,
if not rebutted, support the conclusion that Petitioner failed to provide
Resident # 73 with necessary care to promote healing of a pressure sore.
The facts relied on by CMS show that Petitioner's staff disregarded the
instructions in Resident # 73's plan of care. Moreover, they show that
Petitioner's staff caused an environment that would interfere with, rather
than promote, the healing process. The resident
was immobile and she was unaware whether she had been incontinent. She
thus was totally dependent on Petitioner's staff to keep her clean and
toileted. Moreover, the resident had developed a pressure sore on her
right buttock and episodes of incontinence jeopardized the healing process.
Despite the presence of these factors, Petitioner's staff not only failed
to prevent episodes of incontinence, but it failed to respond promptly
to address those episodes. On April 17, 2001, the resident was allowed
to lie for more than two hours without being repositioned or checked for
incontinence. On April 18, 2001, Petitioner's staff allowed the resident
to lie for nearly two hours on a urine-soaked bed, with her buttocks wet
from urine. A pressure sore that had developed previously on the resident's
right buttock was exposed to urine during this entire period. During this
period the resident was fed but was not given perineal care nor was her
bedding changed. Although Petitioner
asserts that it disputes the material facts relied on by CMS it has not,
in fact, disputed them. Petitioner has offered no facts to challenge the
accuracy of the surveyor's findings concerning the care that Petitioner
gave to Resident # 73. It does not assert any facts that contradict the
surveyor's observation that the resident was allowed to lie for more than
two hours on April 17, 2001 without being repositioned or being checked
for incontinence. And, it does not offer any facts to refute the surveyor's
assertion that the resident lay for nearly two hours in urine-soaked bedding
on the morning of April 18, 2001. Nor does it deny that these events directly
contravened the instructions for the resident contained in the resident's
plan of care. Petitioner
avers that it provided all of the care and services to Resident # 73 called
for by the resident's plan of care. This assertion is an unsupported conclusion
that does not respond to the observations made by the surveyor. Petitioner
asserts also that it has "serious disputes and concerns about the accuracy
of those notes prepared by the surveyor and relied upon in her Declaration
in support of CMS's Motion that allegedly concern this resident." Petitioner's
answer at 6. However, Petitioner fails to articulate what these disputes
and concerns are, nor does it offer any facts that refute the surveyor's
findings. Finally, Petitioner asserts that the pressure sore on the resident's buttock was a "skin on skin pressure area that developed unavoidably . . . ." Petitioner's answer at 7. Petitioner again fails to offer any facts to support this conclusion. Moreover, the conclusion is irrelevant. Even if the sore was unavoidable, the issue here is: what did Petitioner's staff do to provide care for the sore so that the sore would heal? Petitioner's plan of care for the resident obligated its staff to toilet the resident at regular intervals and to keep the resident clean and dry. The facts offered by CMS show that Petitioner's staff failed to satisfy these basic obligations.
The following are the material facts alleged by CMS concerning the care that Petitioner gave to Resident # 90:
February 23, 2001, the care that Petitioner's staff was to provide Resident # 90 included pressure relief for the resident while the resident was in bed and in a chair. Id.
These facts,
if not disputed, establish that Petitioner failed to comply with the requirements
of 42 C.F.R. � 483.25(c) in providing care to Resident # 90. The resident
was at high risk for developing pressure sores. She was supposed to be
given pressure relief, both while in bed and while in a chair, as a preventive
measure. Yet, on both April 16 and 17, 2001 she was observed by a surveyor
to be in bed or in a geri-chair without being given the prescribed pressure
relief. Petitioner
has not offered facts which dispute the material facts relied on by CMS.
Petitioner does not deny that its staff was supposed to provide the resident
with a pressure relieving mattress but failed to do so. Nor does Petitioner
deny that, on April 16 and 17, 2001, the resident was not given pressure
relief either while in bed or while in a geri-chair. Petitioner
contends that the wound on the Resident # 90's right heel was not a pressure
sore but was, rather, a blister that had burst. Petitioner's answer at
6. For purposes of this decision I am accepting Petitioner's proffered
conclusion as correct, although I note that Petitioner's own staff described
the wound as being a Stage II pressure sore. However, the conclusion begs
the question of whether Petitioner complied with the requirements of 42
C.F.R. � 483.25(c) in providing care to Resident # 90. The central element
of the allegation of noncompliance is Petitioner's failure to provide
necessary care and treatment to the resident. Petitioner's noncompliance
certainly is made more egregious
if Petitioner developed a pressure sore as a result of that noncompliance.
But, the noncompliance lies in the failure by Petitioner to provide care
and not in any resulting development of a pressure sore by the resident. Petitioner
asserts that, on April 17, 2001, the resident's physician ordered that
the resident wear Herbst Cradle Boots in order to protect her feet. Petitioner's
answer at 6. I accept this assertion as true for purposes of deciding
CMS's motion. But, it does not respond to the failure by Petitioner to
provide the resident with pressure relief as required by the resident's
plan of care and it is not material to the allegations of noncompliance
that are made in the survey report and by CMS. Petitioner
also makes the following statement about the care that was prescribed
by the resident's physician:
Petitioner's
answer at 6. I have no idea what this assertion means. On the one hand,
it seems to suggest that the physician first ordered pressure relief for
the resident on April 17, 2001. But then, it possibly suggests that the
physician did not believe that the resident needed a pressure relieving
mattress "at that time." The confusion created by this assertion is compounded
by the fact that the final sentence not only contains a double negative
but by the failure by Petitioner to state what it means by the phrase
"at that time." Petitioner has not cited to anything that would support
the assertions that are contained in the last sentence of the statement
that I have quoted. In any event
the statement does not refute - or even address - the facts that are relied
on by CMS. A central fact allegation made by CMS is that, as early as
February 23, 2001, Petitioner's staff had assessed the resident as requiring
pressure relief both while in and out of bed. Petitioner has not denied
this averred fact. Nor has Petitioner denied the surveyor's observations
that its staff failed to provide the resident with pressure relief, either
while in bed or while in a chair, on either April 16 or 17, 2001. Petitioner does assert, generally, that Resident # 90 "was provided pressure-relieving devices as ordered by the physician and as identified by our staff . . . ." and that there "was no violation of the regulation." Petitioner's answer at 6. These are conclusions that Petitioner does not support with any specific facts.
The following are the material facts that CMS alleged concerning the care that Petitioner gave to Resident # 1:
The facts averred
by CMS support a conclusion that Petitioner failed to provide care to
Resident # 1 that satisfied the requirements of 42 C.F.R. � 483.25(c)(1)
and (2). They show that the resident was not given prescribed care that
was intended to prevent the development of pressure sores. They also show
that the resident developed a sore on his foot that could have been avoided
had Petitioner's staff been attentive to the consequences of strapping
a protective boot to the resident's foot. Finally, they show that Petitioner's
staff incorrectly treated that sore after it had developed by applying
an adhesive bandage to it. There are disputed
material facts on the issue of whether Petitioner gave proper care to
Resident # 1's right foot and whether the resident developed an avoidable
pressure sore on that foot. But, the facts showing that Petitioner failed
to supply Resident # 1 with a prescribed pressure relieving device are
undisputed. The undisputed material facts are sufficient to establish
that Petitioner failed to give Resident # 1 care that was intended to
prevent the development of pressure sores. Petitioner
offered specific facts that are sufficient to create a dispute as to whether
Resident # 1 developed a pressure sore on his right foot as a result of
Petitioner's staff's failure to provide appropriate care to the resident.
The facts offered by Petitioner are that the injury to the resident's
foot were not caused by pressure from the protective boot worn by the
resident but occurred when another resident's wheelchair rolled over Resident
# 1's foot. P. Ex. 2C. However, Petitioner
offered nothing to refute the surveyor's observations that Petitioner
failed to supply Resident # 1 with the pressure relieving cushion required
by the resident's plan of care. Nor did Petitioner offer any explanation
for its failure to do so. Petitioner asserts, without offering any supporting
facts, that "the pressure relieving devices were made available." Petitioner's
answer at 4. The conclusion is an unsupported denial of CMS's averred
facts which is insufficient to establish a dispute. See Fed.
R. Civ. P. 56(e). Petitioner argues that CMS's allegations concerning Petitioner's failure to give Resident # 1 a wheelchair cushion were not made in the report of the April 2001 survey but were made in a declaration that CMS offered to support its motion for summary disposition. Petitioner's answer at 4; see CMS Ex. 6; CMS Ex. 14. Petitioner seems to be asserting that CMS should not be permitted to rely on its allegations inasmuch as they were not made in the survey report. But, Petitioner has not shown how it was prejudiced by these new allegations. Petitioner had ample opportunity to respond to them and it failed to do so.
The following
are the material facts alleged by CMS concerning the care that Petitioner
gave to Resident # 20:
These facts,
if not disputed by Petitioner, establish a failure by it to comply substantially
with the requirements of 42 C.F.R. � 483.25(c). The facts establish that
Resident # 20 had been prescribed pressure relieving devices including
a pressure relieving cushion for his wheelchair. Yet, on five consecutive
days the resident was observed to be sitting in a wheelchair without a
pressure relieving cushion. Petitioner
disputes that the injury to Petitioner's right buttock was a pressure
sore. Petitioner's response at 4. According to Petitioner the injury was
a tear that was unrelated to pressure. Id. I accept this assertion
as true for purposes of deciding CMS's motion, despite the fact that Petitioner's
own staff described the injury to be a pressure sore. However, the assertion
is insufficient to refute the allegations of noncompliance made in the
survey report or by CMS. The core allegations of noncompliance are the
failure by Petitioner to provide the care called for in its own plan of
care for Resident # 20. Petitioner
has offered no facts to rebut these core allegations and, in fact, it
has not averred that it disputes them. Petitioner's noncompliance would be more egregious if its failure to provide care to Resident # 20 caused the resident to develop a pressure sore. But Petitioner's staff's omissions are a failure to comply with the requirements of 42 C.F.R. � 483.25(c) whether or not these omissions caused the resident to develop a sore. What is unrebutted here is that Petitioner's staff failed to give the resident required treatment to prevent, or to promote the healing of, pressure sores.
At the May
2001 resurvey the Ohio Department of Health surveyors concluded that Petitioner
had attained substantial compliance with participation requirements by
May 11, 2001. Based on these findings CMS determined that the period of
time during which Petitioner failed to comply substantially with participation
requirements ran from April 20, 2001 through May 11, 2001. CMS Ex. 10
at l. Petitioner offered no facts to dispute CMS's contention that Petitioner was not complying substantially prior to May 11, 2001 with the pressure sore prevention and treatment requirements that are stated at 42 C.F.R. � 483.25(c) and which are the basis for the allegations of noncompliance made at Tag 314 of the April 2001 survey report. Indeed, Petitioner did not allege that it attained substantial compliance at any time prior to May 11, 2001.
The undisputed
facts of this case provide a basis for CMS to impose civil money penalties
against Petitioner for each day of the April 20 - May 11, 2001 period.
The deficiency that was present under Tag 314 is not one in which residents
were placed in a state of immediate jeopardy. See 42 C.F.R. �
488.301. Therefore, civil money penalties that fall within a range of
from $50 to $3,000 per day are applicable. 42 C.F.R. � 488.438(a)(1)(ii). CMS contends
that I must affirm the $500 per day civil money penalties that it determined
to impose once I find that Petitioner manifested a non-immediate jeopardy
range deficiency. According to CMS, "the scope of this tribunal's review
on that issue [the issue of penalty amount] is extremely narrow." CMS's
brief at 29. CMS asserts that my only authority is to decide whether a
penalty is within an applicable range (immediate jeopardy vs. non-immediate
jeopardy) for civil money penalties. Id. According to CMS, if
I find that its penalty amount determination falls within the appropriate
range, then I must sustain the penalty without addressing the question
of whether the actual amount of the penalty is reasonable.
This argument
is without support in the regulations. Similar arguments from CMS have
been considered in the past and have been found to be without merit by
appellate panels of the Departmental Appeals Board. Careplex of Silver
Spring, DAB No. 1683 (1999). The regulations contemplate that the
administrative law judge will make an independent decision as to what
is a reasonable penalty using the same factors that CMS uses to make its
initial determination. In making such a decision the administrative law
judge must consider all of the regulatory factors. 42 C.F.R. �� 488.438(e)
and (f), and 488.404 (incorporated by reference into 42 C.F.R. � 488.438(f)(3)). The following factors must be considered in deciding whether a penalty is reasonable:
The factors
that are stated at 42 C.F.R. � 488.404 include the seriousness of a deficiency.
42 C.F.R. � 488.404(b). They also include the relationship of one deficiency
to another and a facility's prior compliance history. 42 C.F.R. � 488.404(c)(1)
and (2). CMS's allegations
of seriousness are that Petitioner's noncompliance constituted a pattern
of noncompliance which caused residents to experience actual harm. This
allegation incorporates the Ohio Department of Health's scope and severity
findings that Petitioner manifested a level "H" deficiency at Tag 314.
CMS Ex. 6 at 13. I take notice that a deficiency scope and severity of
level "H" is a deficiency which manifests a pattern of noncompliance which
caused residents to experience actual harm.
Petitioner
argues that the Ohio Department of Health's scope and severity findings
are incorrect. Petitioner's answer at 7. But, as I discuss above, at Finding
2, the undisputed material facts of this case sustain findings that there
was a pattern of noncompliance by Petitioner and that Petitioner's noncompliance
harmed its residents. The undisputed material
facts show that Petitioner failed to provide care to several of its residents
that was called for by the residents' plans of care. The frequency and
persistence of Petitioner's failures clearly establishes a pattern of
noncompliance. There are also
undisputed material facts that show that this noncompliance caused residents
to experience actual harm. At least one resident developed pressure sores
that were otherwise avoidable. As I discuss above, at Finding 2.a., Resident
# 83 developed avoidable sores as a consequence of Petitioner's failure
to provide necessary care. Other residents were harmed by Petitioner's
failure to provide care that was necessary to promote the healing of sores. Neither side
has offered facts that relate to any of the other regulatory factors besides
seriousness that might be used to decide penalty amounts in this case.
CMS has not presented any facts that show that Petitioner has a history
of noncompliance with participation requirements. Nor have any deficiencies
been established at this stage of the case besides the deficiency that
is described at Tag 314 of the report of the April 2001 survey. Therefore,
there is no basis for me to evaluate the civil money penalties that CMS
determined to impose in the context of the relationship of the Tag 314
deficiency to other possible deficiencies. CMS has not contended, nor
has it offered facts to show, that Petitioner's culpability is a basis
for the penalties that it determined to impose. Finally, Petitioner has
offered no facts to show that its financial condition would make unreasonable
payment by it of penalties of $500 per day for each day of the April 20
- May 11, 2001 period. I find that civil money penalties of $500 per day - only 1/6 of the maximum penalty amount that may be imposed for non-immediate jeopardy deficiencies - are reasonable given the seriousness of the deficiency that was present here. Indeed, the penalties are quite reasonable given the egregiousness of Petitioner's noncompliance. The picture that emerges from the undisputed facts of this case is of a facility whose staff was woefully lacking in attentiveness to residents' needs and prescribed care. Petitioner failed on multiple occasions to provide care that its own staff had determined to be necessary to prevent the development of, or to treat, pressure sores. Petitioner's staff allowed one of its at-risk residents who was a high risk for developing pressure sores to lie for approximately two hours in urine soaked bedding with a pressure sore exposed to urine - even while the staff fed that resident a meal - before cleaning the resident and changing the bedding. In another instance Petitioner's staff failed to develop a plan to prevent the development of a pressure sore for a period of 13 days after the staff noted skin irritation. Ultimately, the Resident developed a Stage II pressure sore in the absence of any preventive measures by Petitioner's staff.
At page 1 of
its answer, Petitioner asserts that there remains an issue in this case
as to whether it provided care of a substandard quality. However, it would
not have a right to raise that issue if, in fact, it is not challenging
its loss of authority to conduct nurse aide training. Regulations give
a facility the right to challenge a finding by CMS that the facility provided
a substandard quality of care, but only in the circumstance where the
facility is appealing its loss of nurse aide training. 42 C.F.R. � 498.3(b)(14)(ii). Petitioner has not contested its loss of nurse aide training. Therefore, it has no basis for challenging CMS's determination that Petitioner provided care of a substandard quality. It did not specifically contest the loss of nurse aide training in its hearing request. Furthermore, in its answer to CMS's motion, Petitioner makes the statement that:
Petitioner's
answer at 2. None of the "following issues" include loss of authority
to conduct nurse aide training. Id. The statement is cryptic.
But, the reasonable conclusion that I draw from it and Petitioner's failure
to address loss of authority to conduct nurse aide training in its hearing
request is that Petitioner is not contesting a loss of authority to conduct
nurse aide training because it did not conduct nurse aide training. However, the undisputed material facts of this case establish that Petitioner provided care of a substandard quality even though Petitioner has alleged nothing that would give it a right to litigate that issue. At Findings 2 and 4 I find that the undisputed material facts establish that Petitioner's noncompliance constituted a pattern of noncompliance that caused its residents to experience actual harm. Such noncompliance fits the regulations' definition of care of a substandard quality. 42 C.F.R. � 488.301.
CMS moved for
summary disposition as to its allegations that Petitioner failed to comply
with various sections of the Life Safety Code. See CMS Ex. 6
at 27 - 37. The gravamen of CMS's motion is that Petitioner failed to
contest any of the alleged Life Safety Code violations in its May 1, 2001
hearing request. Petitioner responded by moving that it be given leave
to amend its hearing request so as to contest the alleged Life Safety
Code violations. Petitioner asserts that it was unaware that the alleged
Life Safety Code violations were a basis for CMS's remedy determination. I deny both CMS's motion for summary disposition as to alleged Life Safety Code violations and Petitioner's motion to amend its hearing request as to these alleged violations because they are moot. I have entered summary disposition in CMS's favor as to Tag 314 of the April 2001 survey report and I have sustained the $500 per day civil money penalty that CMS imposed based on the undisputed material facts relating to Tag 314. Ruling in CMS's favor on the Life Safety Code issue might create an additional ground for sustaining the civil money penalties but it would not serve to increase them. It is, therefore, unnecessary that I decide that motion. Similarly, it is unnecessary that I grant Petitioner's request to amend its hearing request inasmuch as granting that request would not alter the outcome of this case. |
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JUDGE | |
Steven T. Kessel Administrative Law Judge
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