Department of Health and Human Services DEPARTMENTAL APPEALS BOARD Civil Remedies Division |
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IN THE CASE OF | |
Jaynell's Home Health Care Services, Inc., |
DATE: June 27, 2002 |
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Centers for Medicare & Medicaid
Services
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Docket No.C-02-153 Decision No. CR924 |
DECISION | |
DECISION I decide that
Petitioner, Jaynell Home Health Care Services, Inc., failed to comply
substantially with conditions that are stated at 42 C.F.R. �� 484.18 and
484.44 and which govern a home health agency's participation in the Medicare
program. The Centers for Medicare & Medicaid Services (CMS) was authorized
to terminate Petitioner's participation in Medicare as a home health agency
in light of Petitioner's compliance failures. I.
Background The facts that
I recite in this section are undisputed. Petitioner is a home health agency
with a business address in Clinton, Louisiana. On November 26, 2001, surveyors
employed by the Louisiana Department of Health and Hospitals (Louisiana
State survey agency) conducted a survey of Petitioner in order to determine
whether Petitioner was complying with Medicare conditions of participation.
The surveyors concluded that Petitioner was not complying substantially
with two conditions of participation. Based on these findings CMS determined
to terminate Petitioner's participation in Medicare. Petitioner requested
a hearing and the case was assigned to me for a hearing and a decision. I decided to
expedite a hearing in this case. I scheduled a hearing to take place in
New Orleans, Louisiana on April 24, 2002. However, the parties agreed
that the hearing could be conducted by telephone. Therefore, on April
24, 2002, I conducted a hearing by telephone. At the hearing, CMS offered
the testimony of Maureen King, a surveyor who participated in the November
26, 2001 survey. Tr. at 14 - 21. Petitioner offered the testimony of Elma
Montgomery, Petitioner's director of nurses. Tr. at 22 - 32. Additionally,
CMS offered as evidence exhibits that are identified as CMS Ex. 1 - CMS
Ex. 9. I received these exhibits into evidence. Petitioner produced various
proposed exhibits which it sought to offer into evidence. At the hearing
I advised Petitioner that it had not properly identified or paginated
these proposed exhibits. I gave Petitioner the opportunity to resubmit
its proposed exhibits with its post-hearing brief. It has done so. It
identified its proposed exhibits as Petitioner (P.) Ex. 1 - P. Ex. 22.
I am receiving these exhibits into evidence.
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.
A home health
care agency must comply substantially with conditions of participation
that are set forth in regulations at 42 C.F.R. Part 484 in order to remain
eligible to participate in the Medicare program. These conditions of participation
are set forth in the governing regulations as broadly stated principles
of compliance. Subparts of these conditions,
known as "standards" enunciate the specific compliance requirements with
which
a home health care agency must comply. Failure by a home health care agency
to comply with a standard of participation may be so egregious as to establish
a failure by the agency to comply with the overall condition of which
the standard is a subpart. The Louisiana State survey agency surveyors who conducted the November 26, 2001 survey of Petitioner concluded that Petitioner was not complying substantially with two conditions of participation. CMS Ex. 3. These conditions are set forth at 42 C.F.R. �� 484.18 and 484.55. The condition of participation that is set forth at 42 C.F.R. � 484.18 requires, among other things, that a home health agency must provide care which:
The condition of participation that is set forth at 42 C.F.R. � 484.55 requires that:
The surveyors based their conclusions that Petitioner failed to comply with these two conditions of participation on their review of the treatment records that Petitioner maintained for four patients who were in its care. These patients are identified in the survey report as Patients #s 1, 2, 3, and 4. CMS Ex. 3 at 2 - 4. The surveyors focused specifically on the plans of care that Petitioner created for these residents and on associated items including OASIS assessments. They concluded that Petitioner was remiss in: completing assessments that were required as integral elements of the patients' plans of care; and, performing the tasks required by the patients' plans of care. They found that Petitioner had failed to document the heights and weights of Patients #s 1, 2, 3, and 4 on these patients' OASIS assessments. Id. at 4. They found that, in the case of Patient # 2, there was no physician's order in the patient's plan of care specifying the frequency of visits to the patient by Petitioner's staff. Id. at 2. The surveyors found that there were no documented weights in Patient # 3's progress notes notwithstanding that the patient's plan of care listed weight loss as a goal for the patient. Id. Similarly, they found in the case of Patient # 4 that Petitioner's staff had not documented the patient's weight even though the patients' plan of care listed weight loss as a goal. Id. The report of the November 26, 2001 survey is prima facie evidence to support the surveyors' findings. That evidence was buttressed by the testimony of Maureen King. Tr. at 14 - 22. Ms. King attested to the significance of the omissions of height and weight information from the patients' treatment records. Id. at 19. The patients in question had illnesses that are weight sensitive. Such illnesses include osteoarthritis, hypertension, obesity, and diabetic neuropathy. Increases in weight by any of these patients could lead to exacerbation of these illnesses. Id.The evidence presented by CMS establishes a prima facie case that Petitioner failed to comply substantially with the requirements of 42 C.F.R. �� 484.18 and 484.55. A central requirement of 42 C.F.R. � 484.18 is that a home health agency must conform the care that it gives to its patients to a written plan of care that is established by a physician. The prima facie evidence offered by CMS establishes that Petitioner did not comply with this basic requirement. The prima facie evidence shows that, in the cases of Patients #s 3 and 4, Petitioner failed to comply with the fundamental requirement that it execute the patients' plans of care. The plans established as goals that the patients lose weight but Petitioner failed to record the patients' weight. CMS offered
additional prima facie evidence that Petitioner failed to comply substantially
with the requirements of 42 C.F.R. � 484.18 with respect to the care that
it provided to Patient # 2. The patient's plan of care, signed by a nurse
on October 10, 2001 and by a physician on November 1, 2001, provided that
the patient would be seen by a skilled nurse twice during the first week
of care and then, once per week for eight subsequent weeks. CMS Ex. 6
at 4. However, Petitioner's staff visited the patient three times per
week up until the date of the survey. CMS Ex. 3 at 2. There was no amendment
to the patient's plan of care or approval by a physician for this increased
frequency of visits. It is a fundamental
requirement of 42 C.F.R. � 488.55 that a home health agency provide each
of its patients with a comprehensive assessment that reflects the patient's
health status and needs. The prima facie evidence introduced by CMS shows
that Petitioner failed to satisfy this requirement because it failed to
weigh Patients #s 1, 2, 3, and 4 as a necessary prerequisite of assessing
these patients' weights. The prima facie
evidence offered by CMS shows that Petitioner's failures to comply with
the explicit requirements of 42 C.F.R. �� 484.18 and 484.55 were so substantial
as to comprise a failure on Petitioner's part to comply with the requirements
of these conditions. Potentially, the patients under Petitioner's care
could suffer substantial harm as a consequence of Petitioner's omissions.
The number of episodes of noncompliance identified by the surveyors is
evidence that Petitioner's failures were pervasive and not mere isolated
occurrences. I have examined
the evidence that Petitioner produced and the arguments Petitioner made
to refute CMS's prima facie case of noncompliance with 42 C.F.R. �� 484.18
and 484.55. I find that this evidence and Petitioner's arguments do not
refute that case. Petitioner
argues that it was "not allowed to produce the information, which would
have removed" the surveyor's findings concerning Petitioner's compliance
with the requirements of 42 C.F.R. � 484.18. Petitioner's post-hearing
brief at 2. I am not persuaded that the surveyors denied Petitioner the
opportunity to show them how it was complying with this condition. But,
even had they done so, Petitioner was given the opportunity to prove its
compliance at the hearing that I conducted. In its post-hearing
brief, Petitioner argues that it produced documentation with respect to
Patient # 3 that establishes that it complied with the requirements of
42 C.F.R. � 484.18 when it provided care to the patient. Petitioner's
post-hearing brief at 2. The document on which Petitioner relies, P. Ex.
6, is a plan of care for Patient # 3. I note that it is signed and dated
by a physician on January 4, 2002, more than a month after the
November 26, 2001 survey. P. Ex. 6. The plan specifically states as a
goal that "Client will Lose Weight within 60 days." Id. at 1.
Nothing in the plan or in any other document offered by Petitioner shows
how Petitioner would meet that goal if it did not record the patient's
weight. Nor did Petitioner offer any evidence to show that it did, in
fact, record the patient's weight. Petitioner
did not rebut the additional evidence that CMS offered to show that it
had not complied with the requirements of 42 C.F.R. � 484.18. Petitioner
did not rebut the prima facie evidence that its plan of care for Patient
# 2 did not comport with the actual number of visits to that patient performed
by Petitioner's staff. Petitioner produced an exhibit, P. Ex. 4, which
includes a physician's order that Patient # 2 be seen three times a week
for a period of 60 days. That order has a physician's signature which
is dated November 1, 2001, the same date as the patient's plan
of care which specifies that the patient be seen twice during the first
week and then once per week for the following eight weeks. CMS Ex. 6 at
4. The physician's signature on the plan of care appears to be identical
to the signature
on the order produced by Petitioner. I do not find
the order produced by Petitioner to be credible evidence that Patient
# 2's treating physician ordered that the patient's plan of care be modified
to permit three visits per week. As things stand, there are two different
physicians' orders that contradict each other and that were executed on
the same day. Without additional explanation the plan of care that Petitioner
prepared for Patient # 2 (CMS Ex. 6) might just as easily reflect the
treating physician's final orders for that resident as does the order
contained in P. Ex. 4. Indeed, the document which should reconcile any
differences between physician's orders is the patient's plan of care.
I would have accepted Petitioner's representation that the patient's
physician ordered three visits per week had Petitioner modified the patient's
plan of care to reflect a change in orders to that effect. But, the plan
of care was not modified and, failing that, I do not find that Petitioner
proved that it had orders which justified the number of visits that its
staff paid to Patient # 2. Petitioner
offered no evidence to prove that it recorded weights for Patient # 4.
Therefore, the prima facie evidence offered by CMS as to this resident
stands unrebutted. Petitioner also failed to offer any proof that would rebut the prima facie evidence of its noncompliance with the requirements of 42 C.F.R. � 484.55. The allegations of Petitioner's noncompliance with this regulation center on evidence showing that Petitioner failed to record the weights of Patients #s 1, 2, 3, and 4, despite being required to assess these patients' weights. Petitioner offered no evidence to establish that its staff weighed the patients or recorded their weights. Indeed, Petitioner
admits that its staff did not weigh any of the patients whose care is
at issue. Petitioner contends that its staff could not weigh these patients
due to the patients' medical problems. Petitioner argues that it satisfied
the requirements of 42 C.F.R. �� 484.18 and 484.55 by using "other methods"
to measure patients' weight losses or gains. Petitioner's post-hearing
brief at 3. These "other methods", according to Petitioner, consisted
of measuring edema and auscultating lung sounds. Id. I am not persuaded
that charting a patient's edema or auscultating that patient's lung sounds
is an adequate substitute for weighing the patient. Petitioner's witness,
Ms. Montgomery, testified that measuring a patient's fluid was "more important"
than measuring the patient's body fat. Tr. at 28. I find that testimony
to be unpersuasive because she did not explain how measuring fluid would
enable a home health agency to determine whether the patient was gaining,
maintaining, or losing weight. At the hearing
I asked Ms. King to explain how a home health agency would chart a patient's
weight loss if it could not weigh the patient due to the patient's medical
problems. Ms. King testified that an agency could use anthropometric methods,
such as measuring the girth of a patient's limbs, to track the patient's
weight. Tr. at 20. I accept this testimony as a reasonable explanation
for the circumstances under which a home health agency might determine
a patient's body weight using alternatives to simply weighing the patient.
As Ms. King explained, a decrease in limb girth would be consistent with
a loss of weight. By contrast, Petitioner offered no explanation of why
tracking edema or auscultating lung sounds are acceptable ways for determining
weight. I note, furthermore,
that Petitioner presented no evidence to show that it discussed with the
patients' physicians its plan to use alternative methods to measure patients'
weight. Nor did Petitioner offer any evidence to show that it modified
its patients' plans of care to reflect its changed thinking about weighing
the patients. One would expect that, if an agency were unable to use traditional
methods of taking a patient's weight, it would notify the patient's physician,
would obtain his or her permission to use an anthropometric method of
weighing the patient, and would document the consultation and the physician's
order. Tr. at 20 - 21. Finally, Petitioner
offered no evidence to prove that it systematically measured the patients'
fluids. Thus, even if fluid measurement is an acceptable substitute for
weighing a patient, Petitioner offered no evidence to prove that its staff
made such measurements of its patients or that its staff recorded systematically
the results of any measurements. There are some
references to "edema" in some of the patient records offered by Petitioner
as evidence. But, I can identify nothing in those records that shows that
Petitioner was systematically recording the presence or absence of edema
and attempting to correlate that presence or absence with patients' body
weight.
CMS may terminate a provider's participation in the Medicare program where that provider is not complying with one or more conditions of participation. Social Security Act, section 1866(b)(2); 42 C.F.R. � 489.53(a)(1). CMS established a basis to terminate Petitioner's participation in Medicare because it established a prima facie case, which Petitioner did not rebut, that Petitioner failed to comply substantially with conditions of participation for home health agencies that are stated at 42 C.F.R. �� 484.18 and 484.55. |
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JUDGE | |
Steven T. Kessel Administrative Law Judge |
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