I decide that the conduct of Petitioner, Glenburney Nursing Center, with respect to its two residents requiring routine tracheostomy care, did not place either resident in immediate jeopardy, nor did such care constitute substantial noncompliance with federal participation requirements for Medicare and Medicaid for the period beginning April 3, through August 26, 1998.� Thus, I overturn CMS�s imposition of a $3050 per day civil money penalty for this period.� I also find that Petitioner has shown by a preponderance of the evidence that it was in substantial compliance with all but one of the Medicare program requirements or deficiencies alleged by the Centers for Medicare & Medicaid Services (CMS, formerly known as the Health Care Financing Administration or HCFA).� Thus, I find that a civil money penalty for the period of August 27, 1998 through November 5, 1998 is reasonable and appropriate, but not at $1000 per day as set by CMS.¹ My reason for this is that CMS made its determination as to the $1000 per day civil money penalty (CMP) based on the recommended findings in the Statement of Deficiencies (SOD) at the scope and severity level of D or above.� As I discuss more fully below, CMS did not discuss in its posthearing brief or reply at least eight such deficiencies or F Tags; it only discussed five F Tags: F324, F157, F225, F272, and F314.� Therefore, I conclude that CMS conceded that Petitioner�s testimony, evidence, and argument, demonstrates that Petitioner was in substantial compliance with respect to those eight deficiencies.� As a result, I considered whether the amount of the CMP imposed is reasonable in light of the fact that I sustain CMS with respect to only one deficiency and applying the factors listed in 42 C.F.R. � 488.438(f).� In so doing, I considered whether the evidence presented on the record concerning the relevant regulatory factors supports a finding that the amount of the CMP is at a level reasonably related to an effort to produce corrective action by a provider with the kind of deficiencies found and in light of the other factors involved (financial condition, facility history, and culpability).�� I conclude that a CMP of $50 per day for the period in question is reasonable and appropriate given the regulatory factors and circumstances here.� Finally, I find that CMS was authorized to impose other remedies against Petitioner, including denial of payment for new Medicare admissions for the period of August 26, 1998� through November 5, 1998.²

I.� Background

Petitioner is a nursing facility located in Natchez, Mississippi, certified to participate in the Medicare and Medicaid programs as a provider of services.� On August 20, 1998, surveyors from the Mississippi Department of Health (State survey Agency) concluded a complaint and annual survey of Petitioner; Petitioner was surveyed for compliance with federal participation requirements.� The State survey agency found that Petitioner was not complying substantially with some 15 participation requirements and that, at least as to two requirements, the level of Petitioner�s noncompliance was so egregious as to constitute immediate jeopardy for residents of Petitioner�s facility.� CMS Ex. 33.� A revisit survey on August 26, 1998 determined that Petitioner had removed the immediate jeopardy.� On August 28, 1998, CMS issued its notice of imposition of remedies indicating its concurrence with the State survey agency�s findings.� CMS imposed a CMP of $3050 a day for the period of April 3, through August 26, 1998, the period it determined the residents were in immediate jeopardy; a $1000-per-day CMP for the period of August 27, 1998 through November 5, 1998, when the facility was determined to be in substantial compliance; a denial of payment for new admissions effective August 26, 1998; and directed in-service training.� Petitioner was also required to submit a Plan of Correction (POC) for the deficiencies.³�

Petitioner requested a hearing to contest the findings of immediate jeopardy and substandard quality of care and the remedies imposed by CMS.� The case was assigned to several other Administrative Law Judges and then ultimately reassigned to me.� I conducted an in-person hearing March 19 through March 21, 2002 in Jackson Mississippi.� I received into evidence exhibits from CMS consisting of CMS Exs. 1 - 37.⁴� CMS Ex. 38 was withdrawn as it was already in the record as CMS Ex. 34.� Transcript (Tr.) at 114.� CMS Ex. 39 was received at hearing without admission.� I told the parties that they were to address the exhibit�s admissibility in their posthearing briefing and that Petitioner would have the opportunity to submit exhibits in response.� Tr. 148 - 149.� CMS Ex. 40 was identified and used to refresh a witness�s recollection.� As such, it was not admitted as part of the evidentiary record on which I base this decision.� Petitioner had objected at the hearing that these exhibits, offered for the first time at the hearing, had not been previously provided to Petitioner and that Petitioner was therefore prejudiced by them.� It reiterated this argument in its posthearing brief.� P. Br. at 30 - 31.� I have determined that I will admit CMS Ex. 39.� Although it is admitted, I have the discretion to decide what weight, if any, I will assign to this exhibit.� I note that CMS never referred to or relied on this exhibit in its posthearing briefing and most, if not all, of the information contained in this report is also contained in CMS Ex. 33, the Statement of Deficiencies.� Given that CMS offered this document so late and given that CMS makes no mention of it in its brief or reply brief in support of its findings (other than a cursory response to Petitioner�s objection to the exhibit in its Reply Brief), I give it no evidentiary weight.� I received into evidence exhibits from Petitioner consisting of� P. Exs. 1 - 35, and P. Exs. 37 and 38.⁵ �Petitioner withdrew P. Ex. 36. Each party submitted a posthearing brief and reply brief.⁶� I refer to them as CMS Br. and P. Br. and CMS Reply and P. Reply.

II.� Applicable Law

The Social Security Act (Act) sets forth requirements for long-term care facilities (Medicare skilled nursing facilities (SNFs) and Medicaid nursing facilities (NFs)) in the Medicare and Medicaid programs, and authorizes the Secretary of Health and Human Services to promulgate regulations implementing the statutory provisions.� Act, sections 1819 and 1919.� The Secretary�s regulations governing nursing facility participation in the Medicare program are found at 42 C.F.R. Parts 483, 488, 489, and 498.

To participate in the Medicare program, a nursing facility must maintain substantial compliance with program requirements.� To be in substantial compliance, a facility�s deficiencies may pose no greater risk to resident health and safety than �the potential for causing minimal harm.�� 42 C.F.R. � 488.301.� A facility�s noncompliance constitutes immediate jeopardy if it has caused or is likely to cause �serious injury, harm, impairment, or death to a resident.�� Id.�� Facilities, such as Petitioner, are surveyed by the State survey agency at least every 15 months to determine compliance with the requirements, or more often if a complaint is registered.� Sections 488.20(a) and 488.308(a).� A facility must be surveyed more often if necessary to ensure that identified deficiencies are corrected.� 42 C.F.R. � 488.308(c).� Based on the survey, the surveyors prepare a report (referred to as a Statement of Deficiencies or the HCFA 2567) that lists the deficiencies found, the regulations to which they relate, the surveyors� findings as to the scope and severity of the deficiencies, and the specific findings that support each deficiency determination.� The severity categories range from deficiencies that cause �no actual harm with a potential for minimal harm� to ones that pose �immediate jeopardy to resident health or safety.�� 42 C.F.R. � 488.404(b)(1).�� The scope can be �isolated,� �pattern,� or �widespread.�� 42 C.F.R. � 488.404(b)(2).��

If a facility is not in substantial compliance with program requirements, CMS has the authority to impose one or more of the enforcement remedies listed in 42 C.F.R.� � 488.406, which include imposing a CMP.� See Act, section 1819(h).� CMS may impose a CMP for the number of days that the facility is not in substantial compliance with one or more program requirements for each instance that a facility is not in substantial compliance.� 42 C.F.R. �� 488.430(a); 488.440.

In situations where the deficiencies do not constitute immediate jeopardy, but have caused actual harm or have the potential for causing more than minimal harm, CMS may impose a CMP in the lower range of $50 to $3,000 per day.� Penalties in the range of $3,050 to $10,000 per day are imposed for deficiencies constituting immediate jeopardy.� When penalties are imposed for an instance of noncompliance, the penalties will be in the range of $1,000 to $10,000 per instance.� CMS increases the per day penalty amount for any repeated deficiencies for which a lower level penalty amount was previously imposed.� 42 C.F.R. � 488.438.

In setting the amount of the CMP, CMS considers: (1) the facility�s history of noncompliance; (2) the facility�s financial condition; (3) the factors specified in 42 C.F.R. � 488.404; and (4) the facility�s degree of culpability, which includes neglect, indifference, or disregard for resident care, comfort, or safety.� The absence of culpability is not a mitigating factor.� 42 C.F.R. � 488.438(f).� The section 488.404 factors include:� (1) the scope and severity of the deficiency; (2) the relationship of the deficiency to other deficiencies resulting in noncompliance; and (3) the facility�s prior history of noncompliance in general and specifically with reference to the cited deficiencies.�

III.� Burden of Proof

The preponderance of evidence standard is applied to resolve disputed issues of fact, except as provided by 42 C.F.R. � 498.60(c)(2), which states that in CMP cases, CMS�s determination as to the level of noncompliance of a provider must be upheld unless its is clearly erroneous.� However, as the Board has previously stated: 

�Lake Cook Terrace Nursing Center, DAB No. 1745 (2000), at 5.

Thus, as an evidentiary matter, CMS bears the burden of coming forward with evidence sufficient to establish a prima facie case that the facility was not in substantial compliance.� Petitioner then has the burden of coming forward with evidence sufficient to establish the elements of any affirmative argument or defense, and bears the ultimate burden of persuasion.� To prevail, Petitioner must prove, by a preponderance of the evidence, that it was in substantial compliance with relevant statutory and regulatory provisions.� Meadow Wood Nursing Home, DAB No. 1841 (2002); Cross Creek Health Care Center, DAB No. 1611 (1998), applying Hillman Rehabilitation Center, DAB No. 1611 (1997), aff�d Hillman Rehabilitation Center v. HHS, No. 98-3789 (GEB), slip op. at 25 (D.N.J. May 13, 1999); see Coquina Center, DAB No. 1860, n.4 (2002).� I follow this precedent in making my decision here.

IV.� Issues, findings of fact and conclusion of law

V.� Findings of Fact and Conclusions of Law, and Discussion

I make findings of fact and conclusions of law to support my decision in this case.� I set forth each finding below, in bold and italics, as a separate heading.

At the outset, I must comment on the presentation of this case.� CMS failed to address eight deficiencies in its posthearing brief or in its reply.⁷� Petitioner did not discuss certain findings in its posthearing brief, stating it would respond in its reply once CMS made its position on these deficiencies clearer in its brief.� Since CMS did not refer to these deficiencies, Petitioner then did not address them in its reply brief.� I found much of the written posthearing presentations, particularly CMS�s briefing, unhelpful to me.� In many instances, there was no evidentiary support for statements made by CMS in its brief; in other instances, the evidence relied on by CMS failed to support the arguments made.� In some cases, I had significant concern with the accuracy, completeness, and reliability of the CMS exhibits, a problem which I discuss in footnote 4.� Most importantly, it is in the first instance the advocates� responsibility to pull together from pages of exhibits and transcript support for the arguments that they ask me to accept.⁸� It is my expectation and my goal that when I have offered the parties the chance to do so in their posthearing briefs and reply briefs, that the parties will provide for me in those submissions a detailed �road map� of the deficiencies cited, the testimony and evidence presented on those specific deficiencies, and a coherent explanation of why, in the case of CMS, I should affirm the determination that Petitioner was not in substantial compliance with respect to those deficiencies.� CMS has in large measure failed to do so here.� Thus, with respect to those deficiencies which I shall now examine in detail, I cannnot find that CMS has sustained even its initial burden to make a prima facie showing.�

CMS alleges that Petitioner failed to comply substantially with the requirements of 42 C.F.R. � 483.25 (Tag F309) and 42 C.F.R. � 483.25(k) (Tag F328).� CMS Ex. 33, at 14.� This regulation provides in relevant part that �

42 C.F.R. � 483.25, Quality of Care.���������

That regulation further provides, that�

(k) Special needs.� The facility must ensure that residents receive proper treatment and care for the following special services:

(1) Injections;

(2) Parenteral and enteral fluids;

(3) Colostomy, ureterostomy, or ileostomy care;

(4) Tracheostomy care;

(5) Tracheal Suctioning;

(6) Respiratory care;

(7) Foot care; and

(8) Prostheses.

42 C.F.R. � 483.25(k).

The Statement of Deficiencies (SOD) stated that Petitioner did not meet the requirement of 42 C.F.R. � 483.25, as evidenced, in part, by the following stated findings:

* * * *

1.� Resident #17: Record Review and Interview indicated that thorough assessment and intervention was not provided prior to the resident�s death on 04/22/98 . . . The Emergency Room Death Summary . . . also stated that the patient�s metal cannula that was in the resdient�s tracheostomy site was noted to be plugged with hard mucus.� The resident had a relatively new tracheostomy at the time of nursing home admission on 04/08/98.� The resident had voiced numerous complaints of being short of breath and requested suctioning from the date of admission until the resident expired. �There was no indication that the resident was fully assessed or that the resident�s physician was consulted during this time.

The comprehensive care plan contained approaches to assess the resident�s respiratory status.� There was no documented evidence that the facility implemented the care plan to monitor lung sounds and observe for cyanosis during the resident�s stay or at the time that CPR was initiated.

CMS Ex. 33, at 14.

����������� Resident 17

My review here is a de novo review of the evidence.� I must determine whether Petitioner was not in substantial compliance with the program requirement cited.� In this instance, the program requirement cited by CMS for Tag F309 is the quality of care requirement that each resident must receive and the facility must provide the necessary care and services to attain or maintain the highest practicable physical, mental, and psychosocial well-being, in accordance with the comprehensive assessment and plan of care (42 C.F.R� � 483.25).� Thus, at the very least, my examination must start with the facility�s assessment of Resident 17 and her plan of care � namely, what care and services did her physician and the facility determine were necessary to attain or maintain the highest practicable physical well-being for this resident specifically with regard to the treatment and services for her tracheostomy care.

Resident 17 entered the facility on April 8, 1998, on the orders of Dr. Tillman, her attending physician, a pulmonary specialist, after she was discharged from the hospital.� Normally, he would have discharged a patient like her home, but he advised that she go to the Petitioner�s facility since there was no one to look after her at home.� CMS Ex. 27, at 16; Tr. 408 - 409.��� ����������������������������������������������������������������������������������

Among other things, this 71-year old patient suffered from chronic obstructive pulmonary disease and asthma.� She was alert and verbally responsive; she was well able to make her needs known.� CMS Ex. 27, at 27, 43 - 50.� She had had a tracheostomy in hospital on February 23, 1998, as a result of respiratory failure, to help her breathing.� Id. at 16.� The hospital discharge notes of her physician, the pulmonary specialist, noted that she had been on a ventilator at the hospital and, after a �very prolonged effort,� she was weaned from the ventilator.� Id.� Her doctor further noted that she had a �speaking Trach . . . but clearly has fairly end stage lung disease.�� The physician�s orders on admission for her tracheostomy care was for �Trach. care dly [daily] & PRN [as needed]� and �suction PRN.�� Id. at 21.� He testified that at the time he determined that Resident 17 could be discharged from hospital, she was no longer in need of acute suctioning or routine, deep endotracheal suctioning.� Tr. 408.� He also knew at the time he discharged her from the hospital and transferred her to Petitioner�s facility, that this facility did not perform deep endotracheal suctioning.� Tr. 409, 415.� He was well aware that if an episode occurred that required deep suctioning (which he expressly testified was not necessary for this patient on a routine basis), the facility would transfer the resident to the hospital and he was agreeable to that for his patient.� Id.� He pointed out that the hospital was �literally across the road� from the facility, and would take about three minutes to get there.� Tr. 415.� Dr. Tillman testified that� this patient required just superficial suctioning and routine tracheostomy care:

This patient, and I think you made a general question, but let me also be specific about this patient.� This patient was able to cough, eat, talk.� And so she can get secretions up.� The mechanics of a trach makes it necessary to suction shallow the trach.� But she�s able to get it to the tracheal level and sometimes out of the trach.

Tr. 416.

The surveyor and CMS, however, determined that this patient needed deep tracheostomy suctioning and that the facility was not providing such care on-site.� Tr. 18 - 19, 76 - 77, 81, 120; CMS Br. xiv -xiv; CMS Reply.� I see no reference in Dr. Tillman�s orders, nor do I find anything in the comprehensive care plan for Resident 17, that suggests that deep, endotracheal suctioning is necessary, care planned for Resident 17 or even considered to be needed.� But Surveyor Hanna said she came to this conclusion by looking at each case individually:

Tr. at 120.� Perhaps if the surveyor had spoken with Dr. Tillman, she might have understood why deep suctioning was not considered necessary for this patient.�

The facility� had a procedure in place as to how deep suctioning should be performed should the facility determine at some point that they could provide such a service (CMS Ex. 32, at 48 - 49;) , but, the facility�s policy at the time was not to perform deep suctioning on-site.� Rather, the facility had determined that considering its close proximity to the hospital, it was better practice and policy to have a respiratory therapist come from the hospital or to transport a resident in need of such care to the hospital for the suctioning.� Tr. 265, 293 - 294; P. Br. at 17 - 20 and P. Reply at 8 - 9, 15.� Moreover, the facility believed that while Mississippi licensing regulations allowed an RN to perform such services, since many registered nurses were �uncomfortable� doing such suctioning, it would not be good practice to require a reluctant RN to perform such a service.� Tr. 279; P. Br. at 3 - 4, 16.� It would seem to be much better practice, considering the closeness of this facility to the hospital, to transport a resident in need of such services to a hospital� more routinely providing such services (deep, endotracheal suctioning) than have such a service be performed by a nurse who only occasionally and, perhaps reluctantly, has performed such care.

Based on my review of Resident 17's medical records and the testimony of the witnesses presented, I do not find the statements in the SOD with regard to this resident to be credible.� For example, the statement in the SOD that �thorough assessment and intervention was not provided prior to the Resident 17�s death,� (CMS Ex. 33, at 15) simply is not supported by the evidence in the record.� Medicare program requirements provide that a comprehensive assessment of a resident be performed within 14 calendar days after admission to the facility.� 42 C.F.R. � 483.20(b)(2)(i).� Petitioner did so.� CMS Ex. 27, at 25 - 34.�� Shortly after Resident 17's admission on April 8, 1998, the facility performed the admission assessment on April 14 using the Minimum Data Set (MDS).� Based on the results of the MDS and consistent with Resident 17's own physician�s orders, a care plan was developed.� CMS Ex. 27, at 35 - 40.� The care plan requirements for Resident 17's trach care were identical to the physician�s orders.� Compare CMS Ex. 27, at 37 with CMS Ex. 27, at 21.� The plan also directed staff to observe the resident�s lung sounds and observe the resident for cyanosis, steps that Resident 17's doctor did not specifically order, but which the facility determined should be done because of Resident 17's diagnosis of COPD and asthma and her impaired gas exchange.⁹� CMS. Ex. 27, at 37.

The SOD further stated that the comprehensive care plan contained approaches to assess the resident�s respiratory status and �[t]here was no documented evidence that the facility implemented the care plan to monitor lung sounds and observe for cyanosis during the resident�s stay or at the time that CPR was initiated.�� Id. at 16.�� I disagree.� There is a preponderance of evidence in the record which shows that the Petitioner implemented the care plan.� The facility�s �Treatment Record� indicates that Resident 17 was provided with tracheostomy care on the 7 a.m. to 3 p.m. shift by the Licensed Pratical Nurse (LPN) on a daily basis with the exception of three days.� CMS Ex. 27, at 41.� This is shown by the initials placed on the treatment record.� On the three days that the LPN on the 7 a.m. to 3 p.m. shift did not provide daily �trach care,� the treatment record clearly shows that Resident 17 was provided with suctioning on those days, sometimes on all three shifts.� CMS. Ex. 27, at 41; Tr. 333, 335 (Testimony showing that Treatment Administration Record has a section to indicate in addition to �trach care daily and PRN,� a separate section for when suction is performed at the Resident�s request or �Suction PRN�).�� Moreover, on the three days (April 10, 11, and 19, 1998) where an initial is not on the Treatment Record for �trach care daily,� the Resident�s medical records contain other evidence such as written Nurse�s Notes for those days documenting that treatment was given to the Resident.� CMS. Ex. 27, at 45, 46, 48; P. Ex. 1, at 2, 5, 8; P. Ex. 37.�� In addition, the Nurse�s Notes provide the resident�s vital signs and the nurse�s observations of the patient, such as that she was �alert and verbally responsive,� �some shortness of breath noted,� �no acute distress observed,� �alert, verbally responsive with clear coherent speech,� and �resp. [respirations] even and unlabored.� No SOB [shortness of breath] noted.� CMS Ex. 27, at 44 - 46; P. Ex. 37; and CMS. Ex. 27, at 47.� It is obvious from these notes that the nursing staff was making the necessary observations and monitoring Resident 17 as required by the care plan.� Mr. Prater, the L.P.N. predominately responsible for the care of Resident 17 during the 7 am to 3 pm shift, stated in his testimony that he looked at Resident 17 and listened to her lung sounds bilaterally on a daily basis.� Tr. 326.� He indicated that this would not be written down specifically in the Nurse�s Notes every day.� He stated:

Id.�

The SOD states that the Resident �voiced numerous complaints of being short of breath and requested suctioning from the date of admission until the resident expired.�� CMS Ex. 33, at 16.� If all the reader considered were the SOD and this particular language, one would believe that Petitioner took no action and that Resident 17's complaints were ignored.� Nothing could be at greater variance with the facts.� The statements of her numerous complaints were taken directly from the Nurse�s Notes, which dutifully recorded when the Resident made complaints about her ability to breathe and which, at the same time, although not indicated in the SOD, dutifully recorded how Petitioner�s staff responded to her complaints and provided the necessary care, consistent with her assessment, her care plan, and her doctor�s orders.� See, CMS. Ex. 27 and P. Ex. 1 and P. Ex. 37.�

I am troubled by the SOD findings; the statements in the SOD appear inconsistent with the evidence patent in the records.� In some significant cases, CMS seems to have adopted these findings without delving into the evidence and determining if the evidence supported the findings.� For example, the SOD states �the resident had a relatively new tracheostomy at the time of admission.�� The Resident had her tracheostomy on February 23, 1998 and there is simply no reason or evidence that would justify its characterization as �new.�� In fact, Dr. Tillman indicated that normally he would have sent such a patient home, but he did not do so with Resident 17 because she had no one at home to assist in her care.¹⁰� Obviously, if he thought the �trach� were new, he would not have considered it appropriate to discharge her to her home.� Tr. 408 - 409.

The SOD statements would lead one to believe that Resident 17 had complained about being short of breath and requested suctioning, and that Petitioner did nothing in response, but that clearly is not the case.� The inferences which are drawn in the SOD are simply not supported by evidence from the treatment record, the Nurse�s Notes, the care plan, and the physician�s notes.�� For example, the Nurse�s Notes from April 13, 1998 state:

CMS Ex. 27, at 46.� The Nurse�s Notes contain at least five to six other pages of such notes where the nursing staff record the resident�s complaints and details how the nursing staff responded to them.� In reviewing these notes and the treatment record, I find that Petitioner provided Resident 17 with the necessary care and services consistent with her doctor�s orders and her care plan; I have not been shown what more they could have done or what they should have done differently.�

This Resident, by all accounts, was not afraid to make her wishes known.� She was anxious, particularly about her ability to breathe, and was not timid about asking to be suctioned.� She was well able to make her needs known.� CMS Ex. 27, at 43, 44, 45, 46 47.� See also P. Ex. 37.� The record shows that from the time she was admitted, she had continuous restlessness, anxiety, and nervousness because of her COPD and because of her tracheostomy.� She often complained of shortness of breath and voiced concern that the machines were� �doin nothing.�� P. Ex. 37; CMS. Ex. 27, at 44, 45, 46.� On the morning of April 22, 1998, the Nurse�s Notes indicate that at 10 am, Resident 17 was up on her bedside requesting �trach care� and suctioning.� CMS. Ex. 27, at 47.�� She also complained of shortness of breath.� She was suctioned and a small amount of mucus was removed; she asked to be hospitalized for I.V. therapy.� Id.� While the SOD findings are written in such a way as to lead a reader to conclude that little or nothing was done in response to this resident�s complaint, that conclusion would be incorrect. The medical records indicate that, at this time, the nursing staff recorded Resident 17's vital signs and recorded that Resident 17's physician was called regarding her status and her request for hospitalization.� Id. at 47.� �Resident 17 was informed that a message was left with the physician�s receptionist as he was with a patient.� It is recorded that Resident 17 understood.� Id. The Nurse�s Notes from 11:45 AM on that date reflect that the resident was served her lunch tray and responded to the CNA, �you all are feeding me too much.�� There is no indication that during this period of less than two hours, the resident was in any kind of distress.� It was within three to five minutes after that the housekeeper summoned help to Resident 17's room and they found resident �in resp [respiratory] distress - Pulse very weak & irreg.- skin cool & dry - full CPR initiated . . . Ambulance also summoned for emergency transfer to NRMC . . . Ambulance here @ 12N. . . .�� Id.� �The housekeeper provided a written statement indicating what occurred:

P. Ex. 4.� At all times up until this event, the resident was talking and eating.� Consequently, there is no indication that she was having any problems breathing; the housekeeper said the resident had been talking and when she looked up just a few minutes later, the resident was about to fall over.� Petitioner called an expert medical witness, a cardiologist, who reviewed the events and the medical records leading up to the resident�s death and determined that her death resulted from a sudden event, very probably cardiac in nature and not related to her tracheostomy.� Testimony of Dr. Malcolm Taylor, Tr. 454 - 455, 461.� There was significant expert testimony that if this resident was having breathing difficulties due to a plugged tracheostomy tube, as CMS and the surveyor seem to suggest, then the patient would exhibit certain symptoms, such as difficulty talking and audible noises from the blockage to the trach, none of which were found to be present.� Tr. at 390, 423, 454 - 455, 461.� CMS never rebutted this evidence or presented any expert testimony that responded to Petitioner�s expert testimony.�

Rather, the Surveyor seized on the fact that Resident 17 arrived at the hospital shortly thereafter and died at 12:15 pm.� Id. at 60 - 61.� The Emergency Room Physician�s Notes indicate that the admitting diagnosis for the patient was �cardio-respiratory arrest.�� Id. at 60; see also P. Ex. 2 at 1.� The Emergency Room Physician�s Report, by Dr. Benson Grigsby, M.D., stated, in relevant part, as follows: 

CMS. Ex. 27, at 15, 59.

CMS then adopted the surveyor�s finding.� While the death of a resident is always difficult, it does not, in and of itself, indicate deficient care by the facility especially when we are dealing, like here, with a patient with end-stage lung disease as well as other serious medical issues.¹¹

Therefore, it is important when performing an after-the-fact record review to make sure that all of the records are reviewed and all relevant caregivers are interviewed before making a determination as to whether a facility was not in substantial compliance with program requirements.� The surveyor determined that the death of Resident 17 indicated that Petitioner was somehow deficient in its care of Resident 17 with regard to her tracheostomy.� In so doing, however, she did not accurately reflect the contents of Resident 17's contemporaneous medical records, her comprehensive care plan, and her doctor�s orders.

CMS also seized on this resident�s death as evidence that her tracheostomy care was deficient.¹²� CMS, in presenting its case before me, both at the hearing and in its posthearing briefs, more than suggests that Resident 17's death was related to or caused by improper tracheostomy care.� First, CMS, in its opening statement at the hearing, made several pointed remarks to that effect.¹³� Most telling, however, is that in CMS�s Posthearing Brief, it places the following heading in bold with regard to Tag F309: 

CMS Br. at xi.� When Petitioner challenged CMS on this in its brief, CMS claimed this was a misrepresentation of its position and the testimony of its witness and changed the heading in its reply brief to:

CMS Reply.� CMS�s recitation of the facts and the evidence, however, is not supported by the bulk of the evidence in the record and fails to cite any specific evidence for its arguments and conclusions.� For example, CMS, in its brief states, �On April 22, 1998, the hard mucous plug obstructed the flow of oxygen to her tracheostomy, depriving her of oxygen and contributing to her eventual death.�� CMS Br. at xv.� However, there is no citation to any evidence indicating the basis for CMS�s statement.� I have reviewed the evidence and the testimony and find no support for this statement in the record.� CMS�s claims that the care of Resident 17 care was deficient also is just not supported by the weight of the evidence in the record before me.�� Resident 17's care plan provided for �routine Trach care and suctioning PRN.�� Resident 17's Treatment Record (HCFA Ex. 27, at 41) and the nurse�s notes (id. at 42 - 48; P. Ex. 37) show that this care was in fact provided to the resident.� Contrary to CMS�s argument, there is no evidence that her care plan ever stated that she be �suctioned frequently� or that she requires �deep suctioning� as CMS contends.� Tr. 18 - 19; CMS Br. at xi - xv; CMS Reply.

Moreover, many of CMS�s statements in its briefs are not supported by any evidence in the record, raising questions as to the general credibility of CMS�s assertions and arguments.� Only after cross-examination did the surveyor admit that, when the LPN did his routine trach care on this resident at 10 a.m. and she requested to go to the hospital for �IV therapy,� there were no signs or symptoms suggesting that this resident was in acute distress. The surveyor also finally admitted that the LPN did contact the resident�s doctor regarding her complaint and her request.� Tr. 103.� Thus, the SOD and CMS implication that there was a significant delay between when the LPN contacted the resident�s doctor and when the resident�s acute distress began is not credible.� While the Surveyor later acknowledged in her testimony that the care plan did not require daily suctioning, she did not admit her mistake.� She instead dismisses her misstatement of the care plan by claiming that the care plan did not identify Resident 17's needs.� Again, I find no support for this in the record. 

Therefore, I conclude that Petitioner has shown, by more than a preponderance of the evidence, that it was in substantial compliance with the program requirements of the Medicare program with respect to Tag F309 for the period of April 3 through August 26, 1998 for Resident 17.� Thus, I conclude there is no basis for CMS�s finding of immediate jeopardy for this resident and I overturn CMS�s findings.

The SOD stated that Petitioner did not meet the requirement of 42 C.F.R. � 483.25, as evidenced, in part, by the following stated findings:

* * * *

2.� Resident #20: The facility failed to provide evidence of consistent assessment relating to this resident�s unique needs and risk factors related to tracheostomy care.� There was no documented evidence of any assessment or update in the plan of treatment and care.

CMS Ex. 27, at 14, 16.� The SOD then describes three occasions from May 3, 1998 through June 19, 1998 that Petitioner transferred this resident to the Emergency Room because of a problem with the tracheostomy apparatus, unrelated to Petitioner�s suctioning of the resident or its daily tracheostomy care.� CMS. Ex. 33, at 17 - 18.� The SOD further found that the �facility failed to provide documented evidence of evaluation and/or assessment of the tracheostomy in the nurse�s notes from 12 noon on 06/01/98 until 1:50 p.m. on 06/06/98, and from 10:00 A.M. on 06/08/98 until 06/19/09 at 9:45 A.M.� Staff interview on 08/20/98 . . . revealed that there was no documented assessments of the ulceration to the base of the neck.�� CMS. Ex. 33, at 18.

During its opening statement, CMS never mentioned Resident 20 or the findings related to this resident.� There is no indication as to why CMS found that Resident 20 was in immediate jeopardy.� CMS�s posthearing brief states its contention that Petitioner failed to provide adequate tracheostomy care to Resident 20 �who developed complications, including a pressure sore, as a result of the facility�s improper care.�� CMS Br. at xv.¹⁴

First of all, I cannot agree that the findings regarding an ulceration, or possible pressure sore, to the back of this patient�s neck, is relevant to tag F309 and provision by Petitioner of tracheostomy care to Resident 20.� The surveyors could have cited this circumstance under the pressure sore tag, but did not do so.� Next, I have reviewed the medical records and I do not find that Petitioner�s actions with regard to Resident 20's tracheostomy care was in any respect deficient.� As I will discuss more fully below, I find by a preponderance of the evidence that Petitioner provided the necessary care and services for Resident 20's tracheostomy to allow her to attain or maintain the highest practicable physical well-being in accordance with her comprehensive assessment and her plan of care.�

CMS presented testimony from the surveyor who reviewed this resident�s records.� It is undisputed that her care plan called for, among other things, �trach care daily and suction PRN.�� The Surveyor indicated that she observed trach care on this resident and determined that the LPN �performed the trach care within his scope of practice� and �there was no problem with the trach care he performed.� He performed superficial suctioning.�� Tr. at 160.� The Surveyor then reviewed Petitioner�s policy and procedures for suctioning and noted the provision for what is considered deep suctioning, which provides for inserting the catheter carefully and slowly about 10 to 12 inches into the inner cannula and into the respiratory passage.� CMS Ex. 32, at 48.� The surveyor posited that deep suctioning is only within the scope of practice of an RN and after interviewing the Director of Nursing at the facility, the surveyor learned that none of the registered nurses on staff felt comfortable doing this procedure.� Therefore, the facility practice was to perform routine superficial suctioning in the facility and the necessary cleaning and trach care and to transfer a patient who required deep suctioning to the nearby hospital or to bring in a respiratory therapist.� Tr. at 161 - 162.� As I stated above, the fact that the facility had a policy in place to perform a certain procedure does not mean that the facility is deficient if it does not perform that procedure.� In this instance, the facility�s practice to transfer a patient to the hospital should the patient require deep tracheal suctioning was a reasonable practice.� Given the very close proximity of the hospital, it is much more prudent to have a hospital perform such a delicate service, especially when a registered nurse would not feel comfortable doing such a service or would not have the requisite routine experience in performing such a service.� Moreover, the SOD finding (see Tag F328 wherein the state found this not only a deficiency but that it put the resident in immediate jeopardy) that somehow this facility was deficient because it did not have registered nurses staffed on a 24-hour basis to provide deep tracheal suctioning as needed is not a requirement and certainly not a deficient practice.� However, and most importantly, Resident 20's physician testified unequivocally that this resident did not require routine deep endotracheal suctioning; he also testified that he knew at the time he admitted this patient that, if she required such suctioning, it would not be performed at the facility but that she would be transferred to the hospital.� Tr. at 408 - 410; Tr. at 414 - 415; see Tr. at 214 wherein CMS�s witness, Nurse Wann, acknowledges that off-site endotracheal suctioning is reasonable depending on the transfer time.� Moreover, the evidence in the record clearly shows that at the time this resident was admitted to the facility in January 1998, the facility made arrangements for a respiratory therapist to come in to provide care and in-service training on daily tracheostomy care and suctioning.� P. Ex. 8, at 14.� The therapist came on a regular basis until such time as Petitioner determined its staff was comfortable providing such care.� Id. at 15.

Essentially, the heart of the deficiency finding for Resident 20 was that the surveyor found a lack of documentation of care and assumed that, if the requisite daily care was being given to this patient pursuant to her care plan, the ulceration to the back of this patient�s neck should have been noticed.¹⁵� Tr. 162 - 163.� First, although one might be left with a different impression from the wording of the SOD findings at Tag F309, it is undisputed that the three instances for which this patient was transferred to the hospital�s ER were not the result of deficient tracheostomy care; rather, the record shows and the testimony fully indicates that Petitioner sought the transfers because it thought there was a problem with the tracheostomy apparatus.� P. Ex. 7, at 1 - 2, 4, 7 - 8, 10 - 11; CMS Ex. 30, at 50 - 54; Tr. at 49.� I agree with Petitioner that its staff was attentive enough to her tracheostomy care that they sent her to the ER on three separate occasions until the hospital physicians finally recognized a defective trach cuff and replaced it.� P. Br. at 21.� One of the ER physicians testified that on one occasion, he replaced the tracheostomy tube.� Although the physician also had some question regarding the cuff, he did not replace the cuff at that time (a couple of weeks later it ruptured and had to be replaced).� Tr. at 49; P. Ex. 7.� The ER physician testified that:

Tr. at 51.

The surveyor contended that Petitioner failed to provide documented evidence that Resident 20 was consistently monitored.� CMS Ex. 33, at 18; Tr. at 163 - 164.� I disagree.� The surveyor completely ignored the totality of Resident 20's records.� There is no dispute that there is a treatment record which indicates that this patient received tracheostomy care daily on the day shift and was suctioned PRN.� There are also treatment records indicating when the trach tube was changed and when the treatment for the ulceration was done.� CMS Ex. 30, at 56, 63, 67, 74.� The surveyor contended that there was no evidence of evaluation or assessment of the tracheostomy in the Nurse�s Notes from 12 noon on 06/01/1998 until 1:50 p.m. on 06/06/98.� CMS Ex. 33, at 18.� The surveyor completely discounted the daily treatment record, failed to mention the weekly nurse�s Progress Notes, one of which is dated June 4, 1998 (CMS Ex. 30, at 28), and concentrated only on the written narrative notes.� A review of these notes shows entries in the Nurse�s Notes every time there is an exception to this Resident�s routine care.� At the time that the nurse determined that there might be a problem with this Resident�s tracheostomy appliance and also found after assessing the trach area, an ulceration on the patient�s posterior neck, the nurse immediately noted this in the notes (see Nurse�s Notes for June 6, 1998 at 1:50 p.m), called the Resident�s physician and informed the physician of the findings and received orders to transfer the resident to the ER.� After that entry, there are four more entries for that same date, detailing the condition of her trach and the condition of the patient.� CMS. Ex. 30, at 13, 14.� The entries continue to follow almost daily until it is determined that there are no further exceptional problems to note.� Then on June 19, 2004, there are again detailed entries in the Nurse�s Notes (CMS Ex. 30, at 16).�� Consequently, there are always detailed Nurse�s Notes when there is a problem or an exception to the routine care and treatment of this resident.� However, the gap in the Nurse�s Notes does not mean that Resident 20 was not continually cared for and assessed.� The daily Treatment Administration Record and the weekly Progress Notes speak otherwise.� CMS�s statement that �the facility had no consistent documentation system in place to show that Resident 20's tracheostomy was checked on a daily basis, other than the Nurses� Notes� is quite unhelpful.� This statement is not an accurate reflection of the evidence in the record:� the testimony at the hearing and CMS�s own documentary exhibits, specifically the Treatment Administration Records, demonstrate the opposite.� CMS Br. at xvi; but see CMS Ex. 30, at 55 - 74.� I see no lack of care, assessment, and treatment of Resident 20's tracheostomy.�

Therefore, I conclude that Petitioner has shown, by more than a preponderance of the evidence, that it was in substantial compliance with the program requirements of the Medicare program with respect to Tag F309 for the period of April 3 through August 26, 1998 for Resident 20.� Thus, I conclude there is no basis for CMS�s finding of immediate jeopardy for this resident and I overturn CMS�s findings.

The SOD stated that Petitioner did not meet the requirement of 42 C.F.R. � 483.25(k), which is to ensure that residents receive proper treatment and care for tracheostomy care and tracheal suctioning.� The survey determined that Petitioner did not meet the requirements as evidenced by the following stated findings:

CMS Ex. 33, at 29 - 30.

CMS did not respond to this deficiency finding separately in its brief or reply. The survey findings essentially were that since the facility had, as part of its policy for tracheal care, a procedure listed for performing deep suctioning, that meant the facility was required to perform deep suctioning and to have the requisite staffing to be able to perform such procedures on a 24-hour basis.� I have discussed above my determinations with regard to the surveyors� finding that deep suctioning was somehow required for these patients as well as my findings that the facility was not deficient in any respect for not providing such services when (1) such services were not ordered by the patient�s physician and did not appear necessary for the patients in question; and (2) there was a more reasonable means of providing such services should they become necessary.� It is not necessary for me to reiterate my reasoning here in all respects.� After review of the testimony and the documentary evidence, I find that Petitioner was in substantial compliance with the requirements of 42 C.F.R. � 483.25(k).� Moreover, I do not find any requirement that a facility must provide deep endotracheal suctioning or that a facility must have registered nurses staffed on a 24-hour basis to provide such suctioning just because a facility houses a patient with a tracheostomy, especially when that facility has determined that the patient is not in need of such services, and where there are more appropriate alternatives for providing such services should it become necessary to do so.� Tr. 213 - 214.� Moreover, I have reviewed the in-service training provided to the staff and find that it was sufficient for the customary daily tracheostomy care that was provided to the residents.¹⁶ �P. Ex. 8, at 14 - 15; P. Ex. 26.� Surveyor Cox in fact noted that she watched L.P.N. Prater render such services to Resident 20 and found no problem with that care.� Tr. at 160.�

Therefore, I conclude that Petitioner has shown by a preponderance of the evidence that it was in substantial compliance with the program requirement of the Medicare program with respect to Tag F328 for the period of April 3 through August 26, 1998.� Thus, I conclude there is no basis for CMS�s finding of immediate jeopardy and I overturn CMS�s findings.  

CMS alleges that Petitioner failed to comply substantially with the requirements of 42 C.F.R. � 483.25(h)(2) (Tag F324) for two residents, Resident 1 and Resident 9.¹⁷� CMS Br. at xix- xxi; CMS Ex. 33, at 23 - 28.�� This regulation provides:

42 C.F.R. � 483.25(h)(2).�

The SOD stated that Petitioner did not meet the requirements of this regulation because three residents with fall-related injuries received actual harm as a result of poor transferring techniques, lack ot supervision by staff, or both.� The survey team findings with respect to Resident 1 and Resident 9 were as follows:�

1.� Resident #1 insists per resident interview that a fracture to the left ankle occurred when she was dropped on 03/09/98.� The nurses notes indicated that the resident requested medication for pain to the left leg at 4:00 A.M. on 03/10/98.� The resident reported that her leg was broken the previous day when she was dropped.� The facility interviewed nurse aides who were assigned to care for the resident on the 7:00 A.M. to 3:00 P.M. shift on 03/09/98.� Staff interview indicated that the resident was dropped (but did not hit the floor) when two (2) nurse aides transferred the resident from resident�s bed into a wheelchair. . . Follow-up x-rays revealed a fracture to the resident�s left distal tibia.� The incident which occurred on 03/09/98 was not reported by facility staff until questioned on 03/10/98 by licensed staff.� There was no indication that a thorough investigation was conducted to determine the cause of the fracture.� The investigation report indicated that the fracture was spontaneous due to osteoporosis.� Diffuse osteoporosis was noted on the x-ray which identified the fracture.� The comprehensive care plan was not reviewed or changed to prevent further injury.� There was no indication that further assessment was conducted by the staff to determine the cause of the injury.

CMS. Ex. 33, at 24 - 26 (an asterisk is in the original to signify a revision was made, but the parties did not explain the revision).

CMS claims that this Resident was injured because she was �dropped� and �the facility did not follow its own procedure for moving a non-ambulatory resident like Resident 1 to a wheelchair.�� CMS Br. at xx-xxi.� Thus, CMS claims that the facility�s failure to follow its own policy resulted in actual harm to this resident.� CMS�s witness, Surveyor Hanna, testified that, because this patient had osteoporosis, extra care should have been taken with Resident 1 and that if Petitioner�s staff had been moving the patient according to the facility�s own policies and procedures, the staff would not have dropped her.� Tr. at 86.� But Ms. Hanna did not specify why the staff�s transfer of the patient was not in accordance with the facility�s policy.� The SOD did not cite as a finding under this deficiency that the staff did not follow the facility�s policy.

Petitioner argues that all the evidence and testimony indicates that Resident 1 was not �dropped to the floor.� P. Br. at 24; CMS Ex.11, at 76; P. Exs. 13 - 15.� Rather, Petitioner contends that the evidence shows that, while two Certified Nursing Assistants were transferring Resident 1 from her bed to her wheelchair, she slipped from their grasp but was caught by them and did not fall to the floor.� Petitioner states that, due to this resident�s severe osteoporosis, her injury was a �spontaneous fracture� and that there is no evidence that the CNAs were not following proper procedures.� P. Br. at 24; Testimony of Michael Longstreet, M.D., Tr. at 443; P. Exs. 12, 16.� CMS�s witness apparently concedes that Resident 1 did not fall to the floor, but that the CNAs may have lost their grip on the resident and caught her in midair.� Ms. Hanna testified that catching Resident 1 in this fashion may have resulted in jerking on the resident which could have caused a fracture on someone with osteoporosis.� Tr. 86.�

I find that CMS has not demonstrated that Petitioner failed to adequately supervise this resident or even that Resident 1 fell.� The standard here is not one of strict liability.� Instead, the burden Petitioner bears requires that it show that it took all reasonable steps to prevent accidents.� In this case, the comprehensive care plan noted that this resident required one to two CNAs to transfer the patient from her bed to a chair.� In this instance, two CNAs were transferring the patient.� Neither the SOD findings, the surveyor testimony, nor the CMS brief indicates in what way the transfer of this patient was improper or failed to follow facility procedures.� CMS would have me accept the fact that Resident 1 suffered an injury as reason enough to determine that Petitioner was somehow deficient.� However, there is no strict liability standard here; CMS must demonstrate why I should find that the injury to Resident 1 resulted from failure of Petitioner to take all reasonable steps with regard to the transfer of this patient.� Woodstock Care Center, DAB No. 1726 (2000).� CMS has not done so.� Moreover, the record shows that there was no reason to believe initially that Petitioner had suffered an accident.� However, once Petitioner complained of pain to the nurse and complained of the incident, the nurse and the facility immediately took action.� See Nurses Notes at CMS Ex. 11, at 76.� Resident 1's doctor was called, she was sent for x-rays, the CNAs were interviewed and a thorough investigation was made, all with in less than 24 hours of the time the resident first complained of pain.� CMS. Ex. 11; P. Exs.10 - 16.� I also reviewed Resident 1's care plan and found that Petitioner had assessed this patient for her severe osteoporosis and planned appropriately for her care as a result; the plan specifically required that the patient be �transferred smoothly and safely with adequate staff for transfer� as well as requiring CNA assistance with all her transfers.� CMS Ex. 11, at 11, 12.� Also, the record clearly shows that this patient�s osteoporosis was so diffuse that it was highly likely that this resident could suffer a spontaneous fracture.� CMS Ex. 11, at 70.� Petitioner also presented expert testimony from Dr. Longstreet, an orthopaedic surgeon, who reviewed Resident 1's x-ray and did not find that this kind of fracture would come from a fall or from being dropped.� As Petitioner points out, Dr. Longstreet credibly opined that the fracture pattern more closely resembled minimal pressure on the foot, much as if the resident put some weight on her foot and then collapsed when the bone broke because of her severe osteoporosis.� Tr. at 443.

Thus, I conclude that CMS has not shown that Petitioner was deficient with respect to Resident 1.� I find that Petitioner was in substantial compliance with 42 C.F.R. � 483.25(h)(2) and overturn the findings with respect to this Resident and Tag F324.

The SOD findings for Resident 9 were that the resident�s nose was �fractured at the time of an avoidable fall.�� CMS. Ex. 33, at 25.� From the Nurses Notes, the surveyors determined that the resident was found lying face down in blood at 4:10 P.M. on July 17, 1997; a large laceration to the resident�s forehead was noted to be bleeding.� The safety release seat belt on the resident�s wheelchair was noted to be open.� Prior to this date, the resident had been restrained with a �lap buddy� device.� The SOD findings noted a physical restraint elimination assessment signed by one nurse and dated July 10 1997.� Essentially, the findings were that there was no indication in the resident�s records to show that the� decision to reduce the restraint (the �lap buddy�) was based on an assessment.� The surveyor found that there was no documentation regarding when the �lap buddy� was removed, whether the plan to decrease the use of �lap buddy� restraint was discussed with the interdisciplinary team and caregivers, or that a plan was considered regarding the resident�s safety when the restraint was removed.

CMS�s posthearing brief devotes one paragraph and less than one page to discussing this resident, and in so doing makes several misstatements with regard to Resident 9.� CMS Br. at xxi.� As Petitioner points out, CMS mistakenly refers to this female resident as male at least five times, and states that, after the incident in question, �the resident�s lap buddy was loose� when at the time, Resident 9 was not using a �lap buddy� at all, but a safety seat belt.� Id.� Such misstatements give me cause to question whether CMS has thoroughly reviewed the records for this resident and has made an accurate determination regarding Resident 9's care.� Moreover, my review of the documentation provided by Petitioner through testimony (Tr. at 352 - 358) and exhibits agrees with Petitioner�s contention that CMS has simply ignored the documentation provided by Petitioner which establishes that the facility had performed physical restraint elimination assessments on this resident in May and July 1997 and determined after the July 1997 assessment that the resident was a good candidate for restraint reduction.� CMS failed to respond to Petitioner�s exhibit containing the minutes and notes of the July 7, 1997 Interdisciplinary Restraint Committee Meeting which specifically discuss this resident, or the nurses� Progress Notes documenting the decision to attempt restraint reduction, the consent by both the physician and the resident�s son, the care plan which outlines the restraint reduction and the follow up performed by the Assistant Director of Nursing regarding the restraint reduction for this resident.� P. Ex. 33, at 4 - 5; P. Ex. 17, at ,5, 7, 8; and P. Ex. 33, at 8.� CMS also ignores that the physical therapist recommendation on July 14, 1997 was for the use of either a lap buddy or a seat belt.� Compare P. Ex. 17, at 2, with CMS Ex. 33, at 26. �Moreover, CMS did not even respond in its reply brief to Petitioner�s arguments and exhibits, nor to the evidence of care planning for this resident.

Thus, I agree with Petitioner that Resident 9 fell during restraint reduction, apparently after releasing herself from the seat belt, as she had the right to do.� I agree that Petitioner should not be penalized and cited as not being in substantial compliance for attempting to reduce Resident 9's restraint.�� There is no basis for finding, as the surveyor did here, that Petitioner �simply reduced this resident�s restraint, without any plan of action, . . compromising his (sic) physical safety and exposing him(sic) to the actual harm suffered here.�� CMS Br. at xxi.� I find instead that Petitioner at all times was in compliance with 42 C.F.R. � 483.25(h)(2).� Thus, I overturn CMS�s determination with respect to Resident 9 and Tag F324.

3.� Petitioner has shown by preponderance of the evidence that it was in substantial compliance with the program requirements pertaining to 42 C.F.R. � 483.10(b)(11) (Notification of Rights and Services, Tag F157), 42 C.F.R. � 483.13(c)(1)(ii) (Staff Treatment of Residents-Notification of State Agency of Incidents Resulting in Resident Injury, Tag F225 ), and 42 C,F,R, � 483.20(b) (Resident Assessment, Tag F272).

The SOD alleged three examples of instances where the facility failed to notify the residents� physicians when there was an accident involving the resident resulting in an injury or when there was a significant change in the resident�s condition.� The surveyors also assessed this deficiency at a scope and severity level of G.�� In its posthearing brief, CMS only cited Resident 17 as an example and stated that the facility was deficient because Resident 17 complained to staff on numerous occasions of shortness of breath and requested suctioning on numerous occasions �from her admission date until her transfer to the emergency room and subsequent death on April 22, 1998.�� CMS Br. at xxi - xxii.� CMS then states that only once during this period was the resident�s physician notified of the resident�s complaints and that was only two hours before she was discovered not breathing on April 22, 1998.� Id.�� The only mention of the other two examples cited in the SOD by CMS in its posthearing brief is as follows:

In the subject example [Resident 17], as well as in the two examples cited in the 2567 [SOD]. [sic] The facility failed to timely notify the residents� physicians when a significant change was noted in the residents� conditions, thus exposing these residents to possible harm of serious injury or death.

�Id.� In my discussion with respect to Finding 1 above, I previously determined that the SOD findings which CMS adopts and relies on are misleading and misrepresent the evidence in the record, especially with respect to Resident 17.� There is no evidence to suggest that Resident 17's complaints about her shortness of breath were not immediately acted upon.� As I pointed out above, those complaints come from Petitioner�s Nurse�s Notes which dutifully recorded the resident�s concerns and complaints and how the staff responded to them.� I found no deficiency in Petitioner�s provision of necessary care and services to this resident.� Moreover, I do not find that this resident�s complaints of shortness of breath represent a change in her condition that required Petitioner to notify her physician.� The fact that this resident could voice her complaint was a factor in her medical status and was anticipated in her care plans; she was to receive suctioning daily and �PRN,� which is whenever she requested or complained.� Thus, a complaint of shortness of breath is not a change in her condition.� Second, as I also noted above, on the morning of April 22, 1998, as soon as Resident 17 requested hospitalization for I.V. therapy, the LPN immediately called Resident 17's attending physician regarding her request, even though Resident 17's vital signs did not suggest that this resident was in any kind of distress during this period of less than two hours.� Her doctor testified that he would not have sent her to the hospital.� Tr. 411, 417.� I agree with Petitioner that there was no significant change in Resident 17's condition on the morning of April 22, 1998 that would have warranted, much less required, any action on the part of the Petitioner other than notifying her physician, which Petitioner did. Yet, CMS has obdurately continued to insist that this resident�s complaints were ignored, that an unsuccessful attempt was made to contact her physician and no further attempts were made, and that she died as a result.� That is not an accurate analysis of what the records show.� Thus, I find first that there was no significant change in Resident 17's condition warranting her physician to be notified.� But the evidence does show, nevertheless, that Petitioner did contact her physician in a timely manner when Resident 17 asked for hospitalization, even though she did not appear to be in� medical distress at the time.� Since CMS did not put forth any argument with regard to the other two examples cited in the SOD except for the one sentence quoted above, I find no basis for sustaining the SOD findings with respect to Resident 8 or Resident 16.� Thus, I find that Petitioner was in substantial compliance with respect to Tag F157.

I quote, in its entirety, CMS�s posthearing argument in its brief pertaining to this tag.� It is:

Amongst other regulatory requirements, 42 C.F.R. � 483.13(c)(1)(ii) requires a facility to properly investigate incidents resulting in injuries and to report those injuries to the state survey agency within five (5) days of the subject incident.� 42 C.F.R. � 483.13(c)(1)(ii).� In three examples, including the death of Resident 17, and Resident 9's fall from his [sic] wheelchair and subsequent broken nose, the facility failed to notify the state survey agency of the incidents.

CMS Br. at xxii.� There is no indication as to how the regulatory requirements apply to the situation here.� The regulatory provision provides:�

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42 C.F.R. � 483.13(c)(1)(ii).� I am at a loss to appreciate the application of this provision, with which CMS claims Petitioner was not in compliance, to the circumstances here.� And CMS certainly did not explain that application or tell me how I might discover it.� It appears more likely that CMS intended and the SOD should have cited 42 C.F.R. � 483.13(c)(2)-(4).� However, those sections are not specifically cited.� The SOD does paraphrase the more appropriate sections, but does not provide the requisite and correct citation.� Section 483.13(c)(2) requires a facility to ensure that all alleged violations involving mistreatment, neglect, or abuse, including injuries of unknown source, are reported immediately to the administrator of the facility and to other officials in accordance with State law; section (c)(3) requires that the facility have evidence to show that all alleged violations are throughly investigated; and (c)(4) requires that the results of all investigations must be reported to the appropriate officials within five working days of the incident.

More importantly, I do not find that Petitioner was deficient here with respect to Resident 17 or Resident 9.� First, I do not believe that this section requires a facility to report every death.� There is no indication from the record that Resident 17's demise should be considered an injury of an unknown source.� This was an elderly resident with end-stage COPD and other serious illnesses.� There is no indication from any records to suggest her death was from anything other than natural causes.� Thus, I am unconvinced that Petitioner was required to report this death to the State Agency.� As for Resident 9, Petitioner repeatedly has argued that the State Agency was in fact notified of this incident and within the requisite five-day period and even provided documentary evidence of this fact, but CMS never responded to this contention.� My review of Petitioner�s record finds a letter from the Director of Nursing at Petitioner�s facility to the Mississippi State Department of Health and to the Office of the Attorney General dated July 24, 1997.� Petitioner�s Ex. 19.� That letter on its face shows unmistakably that it is a follow-up to a telephone conversation reporting the fall of this resident on the evening of Friday, July 18.� I am unable to perceive how this letter is not consistent with the requirements of 42 C.F.R. � 483.13(c)(2)-(4).� Thus, I conclude that Petitioner was in substantial compliance with Tag F225.¹⁸

The SOD findings were that Petitioner failed to document a comprehensive assessment of each resident�s needs based on an evaluation of the triggered resident�s problems.� The surveyors determined that the minimum data set plus (MDS+) assessments for six residents (Residents 1, 4, 8, 10, and 12) revealed incomplete documentation for reviewing the guidelines of residents that triggered at risk for falls.� The SOD further found that the documentation did not address residents� individual risk factors, such as if there was any pattern to the resident�s falls or if any environmental factors should have been evaluated further.� CMS Ex. 33, at 12 - 13.� CMS in its brief focused on the testimony of Surveyor Cox, who reviewed the records of Resident 14, as an example.� CMS stated that Resident 14's MDS �had shown him [sic] to be at risk for falls.�� CMS Br. at xxii - xxiii.�� Although the facility had done a resident assessment protocol for this patient identifying the resident at risk for falls and had also completed a MDS+ assessment also finding the resident at risk for falls, all of which is also documented in the Interdisciplinary Progress Notes and is provided for in the resident�s care plan, the surveyor claimed the facility assessment was insufficient because certain question were not answered in the RAP assessment and Petitioner did not track the falls and any patterns or trends.� Id. at xxiii.

I can only speak to whether Petitioner was in substantial compliance with respect to Tag F272 by reviewing Resident 4, for she is the only resident about whom CMS presented argument in its brief.� I have reviewed CMS�s arguments in its posthearing brief as well as CMS Exhibit 15, and the testimony of Surveyor Cox (Tr. 154 - 158). I do not find that they demonstrate that Petitioner was not in substantial compliance with the requirement for resident assessment at 42 C.F.R. � 483.20(b).� An assessment was done on January 8, 1998 for Resident 4 because it was determined that her cognitive status had deteriorated.� In the Interdisciplinary Progress Notes for January 9, 1998, it is reported that although the RAP and trigger portions of the MDS+ were worked, nothing �triggered out.�� CMS Ex. 15, at 10.� Thus, the facility determined that they needed to continue to monitor this patient and to redo the assessments.� The notes further provide that, on January 14, 1998, another significant change assessment was done because of this resident�s further deterioration in status.� At this time, in addition to her other problems, Petitioner determined that the change in this resident�s status meant she had a potential for falls and injury.� This was due to several factors, all well noted and discussed in the notes.� As a result, there was a change in her care plan to indicate that Resident 4 was at risk for falls and how to appropriately approach this problem.� CMS Ex. 15, at 25.� Besides performing the RAP and the MDS+, the facility also kept a fall log indicating who fell, where, and at what time.� P. Ex. 27, at 5 - 11.� The facility also kept an incident/accident summary report providing even more information.� Id. at 1 - 3.

Thus, after reviewing the briefs and the evidence cited by the parties, I find that Petitioner has shown by a preponderance of the evidence that with respect to Resident 4, it had performed the requisite resident assessments and was in substantial compliance with 42 C.F.R. � 483.20(b).� Thus, I overturn CMS�s finding of noncompliance with respect to this tag.

The SOD determined that Petitioner failed to provide appropriate treatment to prevent the development of and/or provide the appropriate services to prevent the occurrence of pressure sores for three residents, Residents 11, 12, and 15.� CMS. Ex. 33, at 19.� CMS�s brief was lacking with respect to this deficiency, as it cites to testimony of Surveyor Hanna with regard to Resident 12 being observed without heel protectors for her feet as ordered by her physician.� My review of Resident 12's records fails to show any such order.� Also, the SOD makes no such finding.� Compare CMS Ex. 33, at 22 with Tr. at 84.� It appears that CMS meant to question Ms. Hanna on her observations with respect to Resident 15 and the lack of heel protectors.� Apparently, Resident 15 was at risk for pressure sores and his doctor had ordered heel protectors on at all times.� CMS Ex. 25, at 4.� However, when the surveyor observed the patient, no heel protectors were being used for this patient despite these orders.� CMS Ex. 33, at 21.� In the situation of Resident 11, the surveyor observed that the air mattress ordered for this patient to prevent the development of pressure sores was disconnected and not functional for two days of the survey.� CMS Ex. 33, at 19 - 20; CMS Ex. 21, at 4.� Petitioner did not refute either fact.� Thus, I find that with respect to this one deficiency, which has the potential for causing more than minimal harm, Petitioner did not prove by a preponderance of the evidence that it was in substantial compliance with the regulatory requirement.� Thus, I affirm CMS�s determination with respect to Tag F314.

5.� A CMP of $50 a day for the period of August 27, through November 5, 1998 is reasonable and appropriate and I find that CMS was authorized to impose other remedies against Petitioner, including denial of payment for new Medicare admissions for the period of August 26, 1998� through November 5, 1998. 

I cannot review the choice of remedies by CMS (42 C.F.R. � 498.3(d)), but I must consider whether the amount of the CMP imposed is reasonable.� Reasonableness of the amount of a CMP is determined by applying the factors listed in 42 C.F.R. � 488.438(f) and 488.404.� Emerald Oaks, DAB No. 1800, at 10 (2001); CarePlex of Silver Spring, DAB No. 1683, at 16 - 17 (1997).

CMS originally assessed a CMP of $1000 a day for the period of August 27 through November 5, 1998.� The amount of that CMP is considered in the lower range and is imposed for deficiencies that do not constitute immediate jeopardy, but either caused actual harm or caused no actual harm, but had the potential for more than minimal harm.� 42 C.F.R. � 488.438(a)(2).� CMS assessed the amount of the CMP on the basis of 15 alleged deficiencies.� I have eliminated most of the truly serious deficiencies.� Thus, I have no choice but to re-evaluate what amount of CMP is reasonable and appropriate considering the one deficiency I sustain.� If I find a basis for imposing a CMP, I cannot set a CMP below $50.� 42 C.F.R. � 488.438(e).

In evaluating the appropriate amount of the CMP, I consider the factors of the facility�s history of noncompliance, its financial condition, its degree of culpability, and the factors specified in section 488.404, which are considered in the selection of a remedy.� CMS presented no evidence with respect to the facility�s history of noncompliance or its financial condition.� Petitioner asserted that it had no previous significant deficiencies.� P. Br. at 34.� It presented no argument or evidence with respect to its financial condition.� I do find with respect to Tag F314, that the facility was not in substantial compliance and that this deficiency had the potential for causing more than minimal harm.� Therefore, I conclude that a CMP of $50 per day for the period in question is reasonable and appropriate, given the regulatory factors and circumstances here; the amount of the CMP is at a level reasonably related to an effort to produce corrective action by a provider with the kind of deficiency found and in light of the other factors involved (financial condition, facility history, and culpability). Finally, I find that CMS was authorized to impose other remedies against Petitioner, including denial of payment for new Medicare admissions for the period of August 26, 1998� through November 5, 1998.