SUBJECT:

Atlantic Rehabilitation & Nursing Center,

Petitioner,

Centers for Medicare & Medicaid Services.

I conclude that Petitioner, Atlantic Rehabilitation and Nursing Center, complied substantially with federal requirements which govern the participation of long-term care facilities in the Medicare program. Petitioner did not manifest any immediate jeopardy level failures to comply with participation requirements. Consequently, CMS was not authorized to impose a per instance civil money penalty of $3,000 at the immediate jeopardy level.

BACKGROUND

Petitioner is a skilled long term care nursing facility located in Calais, Maine that participates in the Medicare and Medicaid programs. On November 6 - 8, 2000, the Maine Department of Human Services, Division of Licensing and Certification (survey agency) conducted a survey of Petitioner's facility. The survey agency cited Petitioner for failing to comply with Medicare participation requirements, and recommended, among other remedies a per instance civil money penalty of $6,000 at the immediate jeopardy level.

By letter dated January 2, 2001, CMS informed Petitioner that it concurred with the survey agency recommendations, however, CMS imposed a lesser per instance civil money penalty of $3,000 at the immediate jeopardy level.

Petitioner timely requested a hearing and the case was assigned to me for hearing and decision.

On October 1 - 3, 2002, I held a hearing in Bangor, Maine, in which I heard the testimony of witnesses for both parties. CMS called as witnesses, surveyors Erlene Russell, Registered Nurse (RN), Marcia Smith (RN), and Jean Mahoney (RN). Petitioner presented the expert medical testimony of Dr. Henry Payton, Certified Nurses Assistant (CNA) Brenda Sax, CNA instructor Ann Skriletz, Clinical Care Coordinator Janet Lovely, and the deposition testimony of Resident 10's (R10's) primary care physician Dr. David Simmons, M.D. Petitioner also presented the testimony of Ken Bourgoin, Certified Speech Pathologist and the testimony of Wanda Bradford, a former State surveyor. ⁽¹⁾ CMS offered and I received into evidence CMS Exhibits (CMS Exs.) 1-21. Petitioner offered and I received into evidence Petitioner's Exhibits (P. Exs.) 1-11.

At the end of the hearing I asked the parties to submit post hearing briefs. CMS submitted a post hearing brief (CMS Br.) and a post hearing reply brief (CMS R. Br.). Petitioner submitted a post hearing brief (P. Br.). The parties were sent a copy of the hearing transcript (Tr.)

APPLICABLE LAW

Petitioner is considered a long-term care facility under the Social Security Act (Act) and regulations promulgated by the Secretary of Health and Human Services (Secretary). The statutory and regulatory requirements for participation by a long-term care facility are found at sections 1819 and 1919 of the Act and at 42 C.F.R. Part 483.

Sections 1819 and 1919 of the Act invest the Secretary with authority to impose civil money penalties against a long-term care facility for failure to comply substantially with federal participation requirements.

Pursuant to the Act, the Secretary has delegated to CMS and the states the authority to impose remedies against a long-term care facility that is not complying substantially with federal participation requirements. 42 C.F.R. Part 488 provides that facilities that participate in Medicare may be surveyed on behalf of CMS by state survey agencies in order to determine whether the facilities are complying with federal participation requirements. 42 C.F.R. �� 488.10-488.28.

The regulations contain special survey conditions for long-term care facilities. 42 C.F.R. �� 488.300-488.335. Under Part 488, a state or CMS may impose a per instance or per day civil money penalty against a long-term care facility when a state survey agency concludes that the facility is not complying substantially with federal participation requirements. 42 C.F.R. �� 488.406; 488.408; 488.430. The regulations in 42 C.F.R. � 488 give CMS a number of different remedies that can be imposed if the facility is not in compliance with Medicare requirements. Id.

The regulations specify that a civil money penalty that is imposed against a facility will fall into one of two broad ranges of penalties. 42 C.F.R. �� 488.408; 488.438. The upper range of civil money penalties, of from $3,050 per day to $10,000 per day, is reserved for deficiencies that constitute immediate jeopardy to a facility's residents, and in some circumstances, for repeated deficiencies. 42 C.F.R. �� 488.438(a)(1), (d)(2). The lower range of civil money penalties, of from $50 per day to $3,000 per day, is reserved for deficiencies that do not constitute immediate jeopardy, but either cause actual harm to residents, or cause no actual harm, but have the potential for causing more than minimal harm. 42 C.F.R. � 488.438(a)(2).

The regulations specify that CMS may impose a CMP for an instance of noncompliance in the range of from $1,000 to $10,000. 42 C.F.R. � 488.438(a)(2). A per instance CMP may be imposed regardless of whether or not the deficiencies constitute immediate jeopardy. 42 C.F.R. � 488.430(a).

The term "immediate jeopardy" is defined under federal regulations to mean a situation in which a facility's non-compliance with one or more participation requirements has caused actual harm to residents, or actual harm, but have the potential for causing more than minimal harm. 42 C.F.R. � 488.438(a)(2).

The regulations define the term "substantial compliance" to mean "a level of compliance with the requirements of participation such that any identified deficiencies pose no greater risk to resident health or safety than the potential for causing minimal harm." 42 C.F.R. � 488.301.

No facility can have an approved Nurse Aid Training and Certificate Program if the facility has been assessed a civil money penalty in excess of $5,000 in the prior two years. 42 C.F.R. � 483.151(b)(2)(iv).

When a penalty is imposed and appealed, CMS must make a prima facie case that the facility has failed to comply substantially with federal participation requirements. To prevail, a long-term care facility must overcome CMS's showing by a preponderance of the evidence. Hillman Rehabilitation Center, DAB No. 1611 (1997); aff'd, Hillman Rehabilitation Center v. HHS, No. 98-3789 (GEB) (D.N.J. May 13, 1999). Under Hillman, CMS bears the burden of coming forward with evidence sufficient to establish a prima facie case that Petitioner failed to comply with participation requirements.

Once CMS has established a prima facie case of noncompliance, Petitioner has the burden of proving, by a preponderance of the evidence, that it complied substantially with participation requirements. Hillman, at 3-8.

The Act and regulations make a hearing before an administrative law judge (ALJ) available to a long-term facility against whom CMS has determined to impose a civil money penalty. Act, section 1128A(c)(2); 42 C.F.R. �� 488.408(g); 498.3(b)(12), (13). The hearing before an ALJ is a de novo proceeding. Anesthesiologists Affiliated, et al, DAB CR65 (1990), aff'd, 941 F2d. 678 (8^th Cir. 1991).

ISSUES

The issues in this case are:

a. whether the facility was in substantial compliance with federal participation requirements on the dates CMS determined to impose a civil money penalty; and

b. whether the amount of the penalty imposed by CMS is reasonable, if non-compliance is established.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

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 separately numbered heading. I discuss each Finding in detail.

1. Petitioner was in substantial compliance with 42 C.F.R. � 483.13(c)(1)(i) (Tag F-224).

The applicable regulation at 42 C.F.R. � 483.13(c)(1)(i) entitled "Resident behavior and facility practices" provides:

(c) Staff treatment of residents. The facility must develop and implement written policies and procedures that prohibit mistreatment, neglect, and abuse of residents and misappropriations of resident property.

(1) The facility must--

(i) Not use verbal, mental, sexual, or physical abuse, corporal punishment, or involuntary seclusion.

Resident 10

At the time of the survey, R10 was a 79 year-old man originally admitted to Atlantic Rehabilitation on June 23, 2000. P. Ex. 2, at 1. He was diagnosed with insulin dependent diabetes, dementia, Parkinson's disease, and atrial fibrillation/cardiac dysrhythmias. P. Ex. 2, at 1, 19. R10 had a history of swallowing difficulties, dyspnea, cyanosis, and possible aspiration pneumonia. P. Ex. 2, at 31.

On November 6-8, 2000 Maine State surveyors, Erlene Russell, R.N., Marcia Smith, R.N., Marvin Garrick, and Jean Mahoney, R.N., conducted a standard survey at Petitioner's facility. Tr. 38. The surveyors alleged that based on record reviews, surveyor observations, and staff interviews, that Petitioner neglected R10 by failing to provide services necessary to prevent the resident from choking, and thus Petitioner was not in substantial compliance with 42 C.F.R. � 483.13(c)(1)(i) at the immediate jeopardy level.

The survey report (HCFA-2567-L) makes numerous allegations concerning the allegedly deficient care that Petitioner provided to R10. CMS Ex. 3. The relevant allegation included:(1) The minimum data sets (MDS) dated June 30, 2000 and September 30, 2000 identified a swallowing problem. Neither the initial or current care plan addressed this identified problem. CMS Ex. 19; (2) The food service supervisors's notes of July 14, 2000 and October 3, 2000 noted that R10 had swallowing difficulties but no interventions were addressed or implemented; (3) The report identifies numerous observations by the surveyors of R10 having meals in Petitioner's cafeteria. Id. at 1-3.

Surveyor observations of R10

The evening meal of November 6, 2000

All three surveyors testified that R10 was not a targeted patient when they first began the survey. Tr. 38, 190. Surveyor Mahoney testified that she and Surveyor Smith first noticed R10 during the supper meal on November 6. Ms. Mahoney testified that R10 was having difficulty eating, chewing, swallowing and trying to get food into his mouth. She testified that "[h]e was trying to shovel a lot in at the same time. . . . He was doing some choking with food and coughing." Tr. 191. She also indicated that she did not see any staff members go to R10 during his difficulties. Tr. 44-45.

On cross examination Ms. Mahoney testified that she was not aware of R10's diagnosis. She agreed that in terms of a person who is coughing or choking it is important to know what the cause of the coughing and choking is in terms of determining the appropriate treatment, care and intervention. Tr. at 438. Ms. Mahoney further stated on cross examination that when she indicated that it looked like R10 was choking on food she did not mean that R10 was suffocating nor was he turning blue. Tr. 443, 445.

Surveyor Smith testified that she observed R10 during the evening meal on November 6. She testified that Surveyor Earlene Russell was present for the meal and Surveyor Jean Mahoney was present for part of the evening meal. Tr. 44. R10 was seated on the right hand side of the dining room where resident were able to feed themselves, but needed "a little bit of cuing." Tr. 45. Smith indicated that she observed R10 coughing at times on food and fluid. She described R10 as coughing on food and fluids and he had food on the floor.

Ms. Smith testified on cross examination that she was not aware of R10's diagnosis, and did not become aware of the diagnosis until after immediate jeopardy had been called. Tr. 87.

Breakfast meal on November 7, 2000

Surveyor Smith testified that she observed R10 at the breakfast meal on November 7, in the dining room. She testified that R10 was having juice and corn flakes. "When he was consuming both fluid and cord flakes he was coughing to the point that, "the corn flakes went everywhere. When that happened the staff did not come near him." Tr. 46, 48.

Surveyor Smith's hand written notes made at the time of her observation of R10 at the morning meal indicate, "[f]ood on the floor, coughing at times." CMS Ex. 11 at 11.

She further noted, "[m]ost of foods, cornflake falling lap; doing well with donut, coughing on OJ . . . asked if wanted more milk, given some, taking small sips, coughing at times." CMS Ex 11, at 14.

Noon meal of November 7, 2000

Ms. Mahoney testified that she saw R10 on November 7^th at the beginning of the noon meal. She testified that she was in the dining room for a short time but indicated that R10 was again having some difficulty chewing and swallowing food, "you know, it would go down, and he would get kind of stuck and he would have to cough it up and he was spitting and the food was going everywhere." Tr. 194. Ms. Mahoney indicated that she only saw this for a short time. However, she could not testify as to how long she was in the dining room. Surveyor Mahoney also testified that she did not review R10's medical records.

Surveyor Smith also observed R10 at the noon meal on November 7. Tr. at 50. She testified that Brenda Sax, a CNA, was seated between R10 and another resident. She further testified that Resident had a large amount of food and fluids in his mouth and began to cough. According to Ms. Smith, she and Earlene Russell were seated in a location where they could only see the left side of R10. She testified that while R10 was coughing he became blue around his lips and the, "blueness started up the side of his face." Tr. at 50. The CNA with him encouraged R10 a number of times to cough up the food and spit it out. She indicated that a CNA instructor that was in the dining room came to R10's side. Ms. Smith indicated that R10 eventually "coughed up everything that was in his mouth." Tr. at 51. She further testified that after the resident coughed up the food he returned to his normal color.

Surveyor Erlene Russell also testified for CMS relative to the survey and her observations of R10 during the survey and the record review she performed. CMS points to the fact that Ms. Russell testified in response to a subpoena and did not review any material for the hearing. Ms. Russell's testimony on direct was short, vague, and did little to help to bring out facts to clarify the facts in issue. On cross examination Ms. Russell was argumentative and at times evasive. By the use of leading questions, Petitioner's counsel was able to obtain information about the events in issue.

On cross examination Ms. Russell indicated that during the noon meal R10 was initially coughing to clear his airway, but then began choking, with his airway either occluded or becoming occluded. She testified that he became very red and then become cyanotic or bluish. Tr. 523-524. Ms. Russell indicated that R10s ability to move air was minimalized. CMS points to Ms. Russell's notes which indicate that R10 had been "coughing and choking at three meals without acknowledgment - coached him many times to spit out food - finally did - large amounts food and liquid." "Heimlich-almost needed!" CMS Ex. 9, at 5. Ms. Russell testified that "she remembered one employee seated at the table, and after which seemed like an endless amount of time, that person did intervene somewhat." Tr. at 493.

CMS also notes that Ms. Russell documented an interview with Brenda Sax the CNA who was seated with R10 during the November 7 noon meal and who assisted him during the incident. CMS did not question Ms. Russell about the interview with CNA Sax during direct examination. On redirect Ms. Russell simply indicted that she recalled having a conversation with Ms. Sax. Ms. Russell's notes indicate that the noon meal incident was observed by Ms. Smith, Ms. Russell and by CNA Brenda Sax. CMS Ex. 9, at 6.

Petitioner called Ms. Brenda Sax to testify regarding her action during the noon meal of September 7, 2000. Ms. Sax testified she was aware of R10's swallowing problems and the risk of aspiration while eating. Tr. 825. She also testified that R10 needed to be supervised during meals that at times required cuing R10 with respect to his eating his food. Tr. at 825. Ms. Sax indicated that the dining hall was separated into two sections - one side for residents who required total feeding and the left side, where R10 sat, was for those who required supervised feeding. Tr. 826. During the noon meal of November 7, 2000, Ms. Sax was supervising the dining hall and was assisted by three CNAs. She testified that she was assisting R10 during the noon meal and he began to cough. Tr. at 834. Ms. Sax instructed R10 to spit the food out, and placed a bib underneath his mouth. She testified that he was able to spit out the food without any intervention. Ms. Sax testified that R10 was not choking because there was air exchange and R10 continued to cough. She further testified that R10 did not turn cyanotic nor did he turn blue. Tr. at 837. Ms. Sax flatly denied that she ever spoke to Ms. Russell after the November 7, 2000 noon meal or at any other time. Tr. at 841.

Petitioner argues that Ms. Russell's credibility should be questioned as she failed to mention in her notes that the alleged choking incident during the noon meal was also witnessed by Ann Skrilets, a Registered Nurse and CNA instructor at the Calais Regional Vocational High School. Ms. Skrilets was present in the dining room with a number of her CNA students. Petitioner further argues that Ms. Russell approached Ms. Skrilets and asked her about what she had observed but did not include it in her survey notes or survey report.

Petitioner called Ms. Skrilets to testify on its behalf. She testified that she was five to six feet away from R10 when he began to cough. Tr. at 857. Ms. Skrilets testified that R10 was coughing because of the food in his mouth and she indicated that he was not cyanotic, nor did he ever turn blue. She also testified that R10's airway was not obstructed. Ms. Skrilets, a CNA instructor, indicated that CNA Sax was attentive to R10, and provided R10 with prompt, proper care and supervision. Tr. at 860. Ms. Skrilets testified that she was questioned by a surveyor whom she told that she thought that the coughing incident with R10 had been handled reasonably by Ms. Sax. Tr. At 861. Skrilets testified that Brenda Sax was working with R10 during the entire period of the noon meal and there was no confusion with providing care to R10. Tr. at 867.

In addition Petitioner argues that Ms. Russell's description of the assistance provided by CNA Sax is inconsistent with both the testimony and notes of Marcia Smith. Ms. Russell's testimony describes R10 as coughing an endless amount of time before CNA Sax's intervention and Russell's notes indicate the Heimlich maneuver was almost necessary. Ms. Smith on the other hand testified that R10 was coughing and not choking due to an occlusion of the airway, and that the Heimlich was not required under the circumstances. Tr. at 163. Ms. Smith also testified that CNA Sax did not neglect to provide appropriate care to R10. Tr. at 166.

The evening meal of November 7

Petitioner argues that the statement of deficiencies, makes no mention of the November 7, 2000 meal and therefore, evidence relative to that meal is not relevant to the issues in the case. However, CMS witnesses provided testimony relative to the evening meal of November 7, and Petitioner cross examined the CMS witnesses regarding their observations.

Ms. Smith testified that during the evening meal R10 was able to eat his food independently and did not require CNA intervention. Tr. 170. She further testified there was CNA staff present in the room during that meal for purposes of supervision and assistance as needed. Tr. at 173.

Surveyor Mahoney testified that she saw R10 at the evening meal on the 7^th and again saw him experience "difficulty with swallowing, coughing, choking at times - he was shoveling in a lot of food. Shoveling fluids - big bulges in his cheeks and sloughing them around and having difficulty swallowing. He was eating very fast." Tr. at 196. She further testified that at one point a CNA came over to get something from a cart near R10 and instructed R10 to slow down.

Neither of CMS witnesses indicated that R10 required intervention during the evening meal of September 7. It must also be noted that Ms. Smith testified that R10 was always able to clear his own airway through coughing and did not require assistance to clear his throat at any time during her observations. Tr. at 147.

Medical Expert Testimony Regarding R10

At trial Petitioner presented the expert medical testimony of Dr. Henry Payton, who was qualified as a board certified ear, nose, and throat specialist. CMS stipulated to Dr. Payton's qualification as an expert. Dr. Payton testified that R10 suffered from neurogenic swallowing problems which were the result of multiple strokes which impaired his swallowing function. He further testified that because of R10's underlying neurogenic swallowing problem he had increasing difficulty swallowing and transferring food, liquid, and saliva from his throat into his esophagus. Tr. at 97. Dr. Payton also testified that because of R10's problem, he coughed chronically because food, liquids and saliva would spill into his windpipe. Furthermore, Dr. Payton stated that coughing was simply a way for R10 to keep food and liquids out of his airway and to keep his airway clear. Tr. at 100-101.

Dr. Payton opined that based on his review of the R10 medical record he believed that R10 was coughing to clear his airway and there was no occlusion or choking on November 7. Tr. at 103. Dr. Payton testified that "choking" suggests total occlusion of the airway. Tr. at 102-103. Dr. Payton testified that in his expert medical opinion that there was no way to prevent R10 from coughing unless he was fed through a feeding tube. Tr. 102. Dr. Payton further testified that even if a patient like R10, is spoon fed, the patient would still suffer the same problem with swallowing with food and liquid going into his windpipe. Tr. at 106.

As to the care Petitioner provided to R10, Dr. Payton testified that it was his expert medical opinion R10 was receiving appropriate care for his neurogenic swallowing problem and Petitioner provided R10 with the proper diet and supervision services necessary to prevent him from choking. Tr. 107. The adequacy of the care plan is further established by the fact that R10 was eating 100 percent of his meals, had a charted weight gain of seven pounds, and was getting adequate nutrition. Tr. 900; P. Ex. 8.

Petitioner also provided the testimony of R10's primary care physician, Dr. David Simmons through a sworn deposition. Counsel for CMS was present at the deposition and had an opportunity to cross examine Dr. Simmons. According to Dr. Simmons, R10's primary care physician, the care planning for R10's swallowing problem included modified diet, assistance at mealtimes, and positioning during meals to limit the potential for aspiration. P. Ex. 1, at 380. Dr. Simmons noted that it is not possible to eliminate the risk of coughing or of aspiration pneumonia in a patient with R10's symptoms when that patient is receiving his meals through the mouth. P. Ex. 12, at 36. During the period of time that R10 was a patient at Petitioner's facility from June 2000 to November 2000, Dr. Simmons indicated he never had any concerns that R10 was not receiving appropriate and adequate care for his swallowing problems. P. Ex. 12, at 33.

CMS did not offer any physician expert testimony to establish its prima facie case or rebut the opinions of Doctors Payton and Simmons.

Care Planning for R10

In addition to the observations made by the surveyor of R10 at various meals, CMS also maintains that Petitioner failed to provide proper care planning to address R10's problems. As previously noted, the 2567 includes allegations that:(1) The minimum data sets (MDS) dated June 30, 2000 and September 30, 2000 identified a swallowing problem. Neither the initial or current care plan addressed this identified problem. CMS Ex. 19; (2) The food service supervisors's notes of July 14, 2000 and October 3, 2000 noted that R10 had swallowing difficulties but no interventions were addressed or implemented. It should be noted that CMS did not cite Petitioner for failure to follow the care plan prepared for R10.

In response to questions regarding care planning Ms. Smith testified that minimum data sets (MDS) were prepared on June 30, 2000 and September 29, 2000, which both identified R10's swallowing problems and indicated that the resident required supervision with eating. She further testified on cross examination that Petitioner also prepared the Resident Assessment Protocol (RAPS) which also identified R10's swallowing problem and that he required assistance with eating. Tr. at 174-175. Ms. Smith also testified that she had been informed that the cardex maintained by Petitioner was part of the R10's care plan which included a specified mechanical soft diet which is appropriate for patients with swallowing problems. Tr. 177, CMS Ex. 19. The cardex also included entries which instructed that R10 be allowed to feed himself as able and assist to complete and that he not be allowed to have meals when he is in bed.

Ms. Smith agreed that pages 2, 3, and 4 of CMS Exhibit 19 provided that R10 is to be supervised while eating, is allowed to feed himself as he is able to do so, and is to be assisted to complete meals. She further testified that the MDS specified supervision for eating. Tr. 179.

Surveyor Russell's notes indicate that there was no care planning for what she described as R10's coughing and choking at three meals without acknowledgment. She also testified on cross examination, at one point that, the noon meal on November 7 was the precipitating factor for the immediate jeopardy finding. Tr. at 551. Ms. Russell also testified that she reviewed R10's Resident Review form (CMS Ex. 14) in which she noted that there were no concerns with respect to Section B of the form which indicated that R10 is assisted with dining when necessary. Thus, it appears that Ms. Russell's notation on the resident review form contradicts her testimony and CMS position that R10, was not properly assisted during mealtime.

When I questioned Ms. Russell about that specific entry, she replied that her signature on the form indicated that R10's nutritional needs were probably being met, but she would have mentioned swallowing and choking problems elsewhere. Tr. 571. She maintained that there were was nothing really spelled out regarding R10 needs regarding his swallowing problem. I do not find Ms. Russell's response to be credible.

Petitioner called Janet Lovely, the Clinical Care Coordinator at Petitioner's facility from January to October of 2000, and who was responsible for the preparation of care plans. Ms. Lovely testified as to the preparation of the care plan for R10 and offered her opinion that there was care planning in place to address R10's swallowing problem because the care plan required a mechanical soft diet, required supervision of meals, and required R10 to be sitting up when eating meals. Tr. at 892, 894. Ms. Lovely also testified that the Activities of Daily Living (ADL) worksheet for R10 also documented the adequacy of R10's care plan. She testified that the ADL sheet, which is prepared on a daily basis indicated that R10 was eating independently with occasional assistance from July through November, and he was consuming 100 percent of his meals. Tr. at 898. The records also indicate that R10 gained seven pounds during that period which documents that he was eating well and receiving adequate nutrition. Tr. at 898.

ANALYSIS

The overriding assertion that emerges from the survey report and the testimony of CMS witnesses is that Petitioner failed to provide services necessary to prevent R10 from choking. Petitioner argues that the evidence presented by CMS does not support the CMS contention that Petitioner neglected to provide services necessary to prevent R10 from choking.

Petitioner points to a lack of objectivity and credibility on the part of the surveyors. Petitioner argues that there are areas of concern relative to the testimony of the surveyors which should affect the weight I assign to their testimony. I agree. Surveyor Erlene Russell could recollect very little during a very limited direct examination, but on cross examination her memory improved, albeit selectively. Her testimony was not entirely consistent with the testimony of surveyor Smith relative to the noon meal on November 7. In addition, Ms. Russell provided no substantive testimony relative to her alleged interview with Ms. Sax. CNA Sax denied ever being interviewed by Ms. Russell. I find Ms. Sax's testimony on this point to be credible and thus I give Ms. Sax's testimony regarding what occurred during the November 7 noon meal the greater weight. As noted earlier, I do not find credible Ms. Russell's response to my question regarding her review of the Resident Review Worksheet for R10.

As to the testimony of surveyor Smith, Petitioner asked Ms. Smith on cross examination about two sets of notes that she had prepared from the survey conducted at Petitioner's facility. Ms. Smith testified that she made hand written notes at the time she made observations of R10 at the facility and then subsequently typed her notes in her office on November 9. She admits that the typewritten notes were prepared subsequent to the determination to call immediate jeopardy. She also testified that the type written notes were prepared in anticipation of litigation relative to the immediate jeopardy tag. Tr. at 131, CMS Ex. 12. Ms. Smith also testified that she added information, allegedly from memory, to the typewritten notes that were not in her original survey notes.

Petitioner's attorney points out that the more damaging statements to Petitioner, which are included in Ms. Smith's notes were typed after the immediate jeopardy was called and she was preparing the notes to support the finding during alternative dispute resolution. Petitioner argues that Ms. Smith original handwritten notes, made contemporaneously, at the November 7 noon meal simply indicate that R10 began to cough and turned bluish. In her typed written notes and in her testimony Ms. Smith indicated that R10's lips began to turn blue as he coughed and the bluish color began going to other parts of his face. In another example Surveyor Smith noted in her type written notes that during R10's coughing episodes at earlier meals, that "staff did not come near him." Tr. At 132-133. That statement was not part of the handwritten original notes. In addition, the statement "choking on OJ" and "cornflakes going everywhere" as it appears in the typewritten notes only appears as "coughing on OJ, cornflakes falling on lap," and "doing well with a doughnut," in the original hand written notes. Tr. at 136.

I find it troubling that Ms. Smith's hand written contemporaneous surveyor notes are not consistent with her typewritten notes. The typewritten notes, which she prepared in preparation for alternative dispute resolution, include descriptions of the events that occurred that are more damaging to Petitioner. Her handwritten notes do not paint as severe a picture. I also note that the typewritten notes were prepared after the immediate jeopardy call had been made. I find that Ms. Smith's handwritten notes are a more reliable description of the events that she witnessed relative to R10. The discrepancy between Ms. Smith's handwritten and typewritten notes also casts doubts upon her testimony at the hearing. I find that the testimony of Ms. Smith does not support a finding that Petitioner neglected R10, in any way nor did Petitioner fail to care plan for R10's swallowing problems. To the contrary her testimony indicated that Petitioner care planned for R10's swallowing problems, provided a soft mechanical diet, and the appropriate supervision during meals.

Surveyor Mahoney testified that she was not involved in the record review of R10. She also testified that she was not in the dining room for the entire noon meal and she did not witness the coughing episode of November 7. Her recollection as to the facts of the case were not clear, and she testified that she relied partially on the survey notes of Ms. Smith and Ms. Russell for her testimony. Her own survey notes raise serious concerns. She testified that she could not say what day or time during the survey she made her notes regarding the F tag cited in the case. Her surveyor notes indicate that R10 was "[n]ot given food one at a time," as required by his care plan. Tr. 427, CMS Ex. 10, at 3. In fact R10's care plan did not require feeding R10 one item at a time before or during the survey. The care plan for R10 was changed on November 8, 2000, at the end of the survey. Petitioner argues that the entry by Ms. Mahoney suggest that she did not prepare the note contemporaneous with her observations but rather made the entries at a later time. Tr. at 426-435. Petitioner also points out that surveyor Mahoney's are inconsistent with the notes of the other surveyors participating in the survey process.

Petitioner was effective in casting doubt upon the veracity of the three CMS witnesses. I do not find that the testimony of CMS's witnesses establish that Petitioner neglected R10 in any way nor did Petitioner fail to care plan for or supervise R10 to address his swallowing problems. Nor for that matter am I convinced that R10 was in immediate jeopardy at any time during the survey.

However, my decision in this case does not rest entirely upon the testimony of CMS witnesses. After having reviewed and studied all the evidence presented by the parties, I must conclude that Petitioner established by a preponderance of the evidence that it complied substantially with the requirements of 42 C.F.R. � 483.13(c)(1)(i).

First, there is insufficient evidence to conclude that R10 was "choking" or in substantial danger of suffocating at the November 6 - 8, 2000 meals. Indeed, it is clear from the surveyors' notes and testimony that the surveyors used the term "choking" and "coughing" interchangeably. Thus, it is apparent that the surveyors believed that the terms "choking" and "coughing" are synonymous. The terms choking and coughing are also used interchangeably in the medical records as well.

The distinction between "choking" and "coughing" is important. "Choking" is medically defined as a blocked or occluded airway, which prevents a person from breathing. Webster's New World Medical Dictionary (2d ed. 2003).

Dr. Harry Payton, M.D., a board certified ear nose and throat specialist who was qualified as an expert in this area, testified that "coughing," "[is] the way they are keeping food or liquids out of their airway and keeping their airway clear." Tr. 101. Dr. Payton also testified that because of R10's medical problems, he coughed chronically because food liquids and saliva would spill into his windpipe. Dr. Payton stated that coughing was simply a way for R10 to keep food and liquids out of his airway and to keep his airway clear. Tr. at 100-101. Dr. Payton added that because of R10's medical history, there was no way to prevent R10 from coughing unless he was fed through a feeding tube. Id.

Moreover, Dr. Payton also testified that the patient could not be choking if he was coughing and moving air. However, if there were even a partial blockage, there would be what Dr. Payton termed as "strider," which is a noticeable, high-pitched noise as the patient is trying to move air. Tr. 122-23. As Dr. Payton pointed out, "if they didn't have their cough, they would really have problems. Then they would get into problems with pneumonia." Tr. 101. None of the surveyors who witnessed R10 during meals ever testified at any time that R10 could not breath while he was coughing because his airway was occluded. In addition, none of the surveyors who testified described R10 experiencing strider while coughing during his meals.

R10's coughing at meal times on November 6 - 8, 2000 was not unusual in the context of a sick, elderly man, with a history of neurogenic swallowing problems. R10 did not choke in the sense of experiencing an occluded or obstructed airway. Rather, on each of these occasions in which the meals were observed by surveyors, R10 was observed coughing on his food while he was consuming his meals independently. Furthermore, Dr. Simmons noted that it is not possible to eliminate the risk of coughing or of aspiration pneumonia in a patient with R10's medical problems when that patient is receiving his meals through the mouth. P. Ex. 12, at 36. Each of the surveyors in this case testified that they were unaware of R10's underlying medical condition that caused his swallowing problems.

It must be noted that Petitioner also provided the testimony of Wanda Bradford, a former State Surveyor whom joined the survey team at Petitioner's facility on November 8, 2000. Ms. Bradford is a Registered Nurse and had been employed as a Maine Department of Human Services as a surveyor for over nineteen years. She testified that choking involves a total obstruction of the airway so that there is no air flow. The person choking would not be able to cough or clear. Tr. at 700. She further testified that while she was not present during the November 7 noon meal, the events as described to her by Erlene Russell indicated a coughing situation and not an incident where R10 was choking. Tr. 700, 815, 816. She further testified that she did not feel that an immediate jeopardy tag was warranted under the circumstance described to her. Tr. at 701. Petitioner argues that Ms. Bradford's testimony is entitled to the same weight as that of surveyors Russell, Smith, and Mahoney as she was a member of the survey team.

CMS argues that Ms. Bradford testimony should be considered in light of the fact that she admitted leaving employment as a surveyor because of her dissatisfaction and she did not actually witness what occurred at the November 7 noon meal. Tr. at 672. While I am not unmindful that Ms. Bradford did not observe R10 during the November 7 noon meal, her opinion as a Registered Nurse, a former state surveyor, and as a member of the survey team that reviewed Petitioner's facility, is entitled to consideration. Ms. Bradford's testimony is essentially consistent with the medical testimony of Dr. Payton, Dr. Simmons, and Nurse Ann Skrilets relative to the issue as to whether R10 was choking.

Based on the testimony and evidence in the record, Petitioner established by a preponderance of the evidence that R10 did not "choke" or suffer a loss of oxygen, and therefore, there is insufficient evidence to conclude that R10 was in immediate jeopardy.

Second, there is ample evidence in the record that CNAs adequately monitored R10 during meals at the dining room which the testimony establishes was used for residents who required supervision and/or assistance during meals. Tr. at 826. Ms. Sharon Krug, a CNA employed by Petitioner, testified that she provided supervision for R10 and that he took his meals in the supervised dining room because of his swallowing problems. Tr. at 875, 876. She also testified that she made entries on R10's activities of Daily Living (ADL) sheets when she provided supervision and assistance to R10. Tr. at 878. In addition, CMS's own witnesses, surveyors' Smith and Russell, testified that CNA Brenda Sax responded to R10's coughing during the noon time meal on November 7, 2000, by encouraging him to spit his food out. Tr. 858-861; Tr. 159-60; Tr. 526. Ms. Smith testified that Sax did not neglect to provide appropriate care to R10. Tr. 166.

I found the testimony of Ms. Brenda Sax to be credible. She was closest in proximity to R10 during the noon meal on November 7, 2000, and I do not doubt her description of the events that occurred and the assistance she provided R10.

Ann Skriletz, R.N., who, as noted, was not an employee of Petitioner, testified that she believed that the coughing incident during the noon time meal on November 7, 2000 was handled well by Petitioner's employee. Tr. 861. Moreover, Skriletz, had observed the care and attention that R10 received in the dining hall based on prior visits to the facility, and indicated she had no concerns about R10's care. Tr. 858- 867. I found Ms. Skriletz objective testimony as an RN and a CNA instructor to be completely credible.

Based on the evidence and testimony in the record, I find that Petitioner has proven by a preponderance of the evidence that R10's meals were adequately supervised and R10 was not neglected by Petitioner.

Third, CMS failed to establish a violation of the requirements of 42 C.F.R. � 483.13(c)(1)(i). This regulation requires a facility to adopt and implement effective anti-neglect policies. CMS must demonstrate a systemic failure to implement an anti-neglect policy in order to meet its burden of proof. See, Emerald Oaks, DAB No. 1800 (2001). Here, R10's coughing incidents, even if considered in a light most favorable to CMS, are isolated incidents of alleged neglect and are insufficient to establish a pattern of neglect by Petitioner. What is generally described by the surveyor testimony is an elderly gentleman with neurogenic swallowing problems who coughed while he consumed his meals. Only the coughing incident during the noon meal of November 7 involved a situation which required verbal intervention from the CNA assisting R10. This one incident does not establish a pattern or systemic failure by Petitioner to care for R10.

Fourth, Petitioner has established that the care planning for R10 was appropriate for his condition and did not require any additional planning to further address his swallowing problems. I found credible the testimony of Janet Lovely, the Clinical Care Coordinator at Petitioner's facility during the time from January to October of 2000 who was responsible for the preparation of care plans. Ms. Lovely testified as to the preparation of the care plan for R10 and offered her opinion that there was care planning in place to address R10's swallowing problem because the care plan required a mechanical soft diet, required supervision of meals, and required R10 to be sitting up when eating meals. Tr. at 892, 894.

In addition both Dr. Payton and Dr. Simmons indicated that the care planning that Petitioner had in place for R10 to address his swallowing problems was adequate in that it provided for mechanically softened food and supervised eating. Tr. 101-03; CMS Ex. 19; P. Ex. 12.

According to Dr. Simmons, the care planning for R10's swallowing problem included modified diet, assistance at meal times, and positioning during meals to limit the potential for aspiration. P. Ex. 1, at 380. Dr. Simmons noted that it is not possible to eliminate the risk of coughing or of aspiration pneumonia in a patient with R10's symptoms when that patient is receiving his meals through the mouth. P. Ex. 12, at 36. Dr. Simmons testified that he never had any concerns that R10 was not receiving appropriate and adequate care for his swallowing problems during the period of time that R10 was a patient at Petitioner's facility from June 2000 to November 2000. P. Ex. 12, at 33.

Dr. Payton testified that based on his review of the charts, R10 was receiving appropriate care for his neurogenic swallowing problem, and that the Petitioner provided R10 with the services necessary to prevent him from choking. Tr. 107. The adequacy of the care plan is further established by the fact that R10 was eating 100 percent of his meals, had a charted weight gain of seven pounds, and was getting adequate nutrition. Tr. 900; P. Ex. 8.

Doctors Payton and Simmons have substantial experience treating patients with swallowing problems, and their opinions based on their knowledge of the patient and review of the medical records are entitled to substantial weight in this matter. The medical testimony establishes that Petitioner's care planning and supervision of R10 was adequate. The medical testimony also establishes that nothing more could be done by Petitioner to prevent R10 from coughing to clear his airway during meals, because of R10's medical condition. CMS did not offer any physician expert testimony to rebut the opinions of the expert testimony of Dr. Payton, or the informed medical opinion of Dr. Simmons, R10's treating physician.

CONCLUSION

Based on a thorough review of the entire record in this case and the testimony presented at trial, I must conclude that Petitioner established by a preponderance of the evidence that it complied substantially with 42 C.F.R. � 483.13(c)(1)(i). Further, Petitioner did not manifest any immediate jeopardy level failures to comply with participation requirements. Consequently, CMS was not authorized to impose a per instance civil money penalty of $3,000 at the immediate jeopardy level.

Alfonso J. Montano

Administrative Law Judge

1. I do not discuss the testimony of Petitioner's witnesses, Ken Bourgoin in my decision as his testimony is not critical to the final decision in this case.