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Department of Health and Human Services DEPARTMENTAL APPEALS BOARD Civil Remedies Division |
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Ben Hur Home, |
DATE: June 12, 2006 |
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Centers for Medicare & Medicaid Services.
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Docket No.C-04-433
Decision No. CR1456 |
| DECISION | |
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DECISION
I conclude that Ben Hur Home (Petitioner or facility) was not in substantial compliance with Medicare conditions of participation at an immediate jeopardy level from March 30 through April 7, 2004, and from May 18 through June 4, 2004, and at a non-immediate jeopardy level from April 8 through May 17, 2004, and June 5 through September 9, 2004. In so doing, I find that CMS was authorized to impose a denial of payment for new admissions (DPNA) from July 8, 2004 through September 9, 2004, and that CMS was not clearly erroneous in its assessment that Petitioner's deficiencies constituted immediate jeopardy. Finally, I sustain the civil money penalties (CMPs) imposed by CMS. I. FACTUAL AND PROCEDURAL BACKGROUND Petitioner is a nursing facility located in Crawfordsville, Indiana, that participates in the Medicare and Medicaid programs. On April 8, 2004, surveyors from the Indiana State Department of Health (State agency) completed an annual survey and complaint investigation of Petitioner (April survey). CMS Exhibits (Exs.) 1, 6. The surveyors found Petitioner out of compliance with participation requirements, and two of the cited deficiencies were found to constitute immediate jeopardy to residents at the facility (Tags F324 and F490 on the statement of deficiencies). The State agency determined that the immediate jeopardy began on March 30, 2004 and was removed on April 8, 2004. On June 16, 2004, the State agency completed a revisit survey and complaint investigation (June survey). CMS Exs. 69, 70. The surveyors again found Petitioner out of compliance with participation requirements, specifically with three F Tags at the level of immediate jeopardy (Tags F324, F353, and F490 on the statement of deficiencies). The surveyors completed another revisit survey on September 10, 2004, and found Petitioner had returned to substantial compliance as of that date. CMS Ex. 4. CMS concurred with the State agency's findings and, based on the April and June surveys, imposed a denial of payment for new admissions (DPNA) from July 8 through September 9, and a CMP of $145,000 ($4,000 per day beginning on March 30 and continuing through April 7, reduced to $200 per day effective April 8 and continuing through May 17, increased to $4,500 per day effective May 18 and continuing through June 3, and decreased to $250 per day effective June 4 and continuing through September 9). (1) Id. Petitioner timely requested a hearing and the case was assigned to me and docketed as Docket No. C-04-433. Petitioner then submitted an amended hearing request, which was docketed as C-04-534. In the absence of objection, I consolidated the cases for hearing on October 22, 2004, and informed the parties that henceforth we would only refer to Docket No. C-04-433. On April 14, 2005, the parties stipulated to the deficiencies in dispute:
On April 18, 2005, the parties stipulated that the issues for hearing consisted of the following:
I held a hearing from June 7 through 9, 2005, in Indianapolis, Indiana. Testifying at the hearing were State agency surveyors Joanne Edwards, R.N., Bonnie Cole, R.N., Kathy Proctor, R.N., Vanda Phelps, R.N., Ginger McNamee, R.N., Brenda Roush, R.N., Jackie Wolfgang, R.N., and Carol Novotny-Elmer, R.N. Testifying for Petitioner were Caryl Barnes, Petitioner's Administrator, Amy Riggen, R.N., Petitioner's Director of Nursing (DON) during the surveys, Susan Charlesworth, Petitioner's social services consultant, and Janet Mason, a licensed practical nurse (LPN) employed by Petitioner. I admitted CMS Exs. 1-17, 19-28, 30-35, 37-39, 43-95, 97, 98, and 103-134 (Transcript (Tr.) at 5, 6, 10) and P. Exs. 1-17 (Tr. at 11, 12, 727). Following the hearing both parties sought to introduce additional exhibits. CMS sought to admit as CMS Ex. 135 (four pages) purportedly more accurate copies of photographs previously admitted as CMS Ex. 85, at 878-881, and as CMS Ex. 136 maps of the vicinity of Petitioner (four pages). I do not rely on these documents, or admit them into evidence, but retain them in the record in case of appeal. Petitioner sought to introduce three new exhibits, which it identified as P. Exs. 17, 18, and 19. I note that I previously admitted a DVD which I marked as P. Ex. 17 (Tr. at 727), so I am re-marking the new P. Ex. 17 as P. Ex. 20. P. Ex. 20 is a page from a newspaper; P. Ex. 18 is manufacturer's directions for use of a close call (2) alarm; and P. Ex. 19 is an inventory form regarding clothing for Resident 119. I do not rely on these documents in making my decision, but retain them in the record in case of appeal. On July 15, 2005, CMS proposed corrections to the transcript, which I adopt in the absence of objection. II. REGULATORY AND LEGAL BACKGROUND 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, through delegation to CMS and the states, with authority to impose remedies against a long-term care facility for failure to comply substantially with federal participation requirements. Part 488 of 42 C.F.R. 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. Based on survey findings, surveyors prepare a statement of deficiencies, which identifies and describes each failure to meet a participation requirement. 42 C.F.R. � 488.325(a). The state survey agency assesses the seriousness of deficiencies on a scale of "A" through "L" that denominates scope (whether the deficiency is "isolated," "pattern," or "widespread") and severity (how great a harm, or potential for harm, is presented by the deficiency). 42 C.F.R. � 488.404. Under Part 488, a state or CMS may impose remedies against a facility for noncompliance, including a DPNA or a per instance or per day CMP 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 specify that a per day CMP 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 CMPs, 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). "Immediate jeopardy" is defined as "a situation in which the provider's noncompliance with one or more requirements of participation has caused, or is likely to cause, serious injury, harm, impairment, or death to a resident." 42 C.F.R. � 488.301. The lower range of CMPs, 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 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. 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. U.S., No. 98-3789 (GEB) (D.N.J. May 13, 1999); Batavia Nursing and Convelescent Inn, DAB No. 1911 (2004). The Act and regulations make a hearing before an administrative law judge (ALJ) available to a long-term care facility against whom CMS has determined to impose a CMP. 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 F.2d 678 (8th Cir. 1991). III. 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, in italics, as a separate heading. I discuss each Finding in detail. I do not make a Finding on every deficiency the parties stipulated to be in controversy. Specifically, I am discussing only those deficiency citations that have been assessed to be at a level of immediate jeopardy and only those examples I find to be necessary to support the noncompliance and the remedy imposed. Thus, I discuss the immediate jeopardy level noncompliance cited at Tag F324 on the April survey and at Tags F324 and 353 on the June survey. I do not discuss the immediate jeopardy level noncompliance cited at Tag F490 as it is not necessary to my decision and is cumulative. See Community Skilled Nursing Centre, DAB No. 1987 (2005); Batavia Nursing and Convalescent Inn, DAB No. 1911.
Section 483.25(h)(2) is found under the "quality of care" requirements, the objective of which is to ensure that "[e]ach 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." As the Departmental Appeals Board (Board) stated - -
Golden Age Skilled Nursing & Rehabilitation Center, DAB No. 2026, at 10-11 (2006). I find that Petitioner was out of compliance with this participation requirement. I find, as I discuss below, that there was a systemic problem at Petitioner's facility in providing supervision and assistance devices to prevent falls. My review of the evidence and argument shows that Petitioner failed to adequately assess its residents after their falls to determine what measures to prevent falls would be most effective and failed to implement those fall prevention measures it assessed to be necessary. As I discuss in detail in Finding 3, the evidence shows that Petitioner had too few staff members to adequately supervise its residents, which contributed to Petitioner's failure to assess and implement fall prevention measures. Specifically, during the April survey, the surveyors found that based on observation, clinical record review, and interview, Petitioner "failed to thoroughly assess and implement timely and appropriate interventions to prevent multiple falls and injuries" for eight residents with a history of multiple falls. The surveyors found that for four of the residents the failure to protect them from continued falls with risk of injury resulted in immediate jeopardy. CMS Ex. 6, at 54-55. I discuss the four residents the surveyors assessed at a level of immediate jeopardy and find it unnecessary to discuss the others to sustain the deficiency citation.
Resident 111 was admitted to Petitioner's facility on May 23, 2003. At the time of the April survey, Resident 111 was a 76-year-old woman with, among other diagnoses, Alzheimer's dementia, generalized anxiety disorder, degenerative joint disorder, and severe psychosis. Tr. at 24; CMS Ex. 43, at 1, 19, 35. She had short and long term memory impairment and moderately impaired decision-making skills. Tr. at 24; CMS Ex. 43, at 3. She required the extensive assistance of two staff members for transfers, limited assistance with dressing, hygiene and bathing, and had an unsteady gait at times. Tr. at 25, 26; CMS Ex. 43, at 3, 126, 127, 129, 131, 136, 141, 144, 145. She needed assistance rising from and sitting down in a chair. Tr. at 652. Petitioner completed a fall risk assessment of Resident 111 on May 28, 2003. Petitioner noted that Resident 111 had an unsteady gait at times, would lose her balance and used a cane, and identified Resident 111 as at risk for falls due to her diagnoses and conditions. Petitioner updated this assessment on August 20, 2003, November 19, 2003, and February 9, 2004. Petitioner noted that her gait remained unsteady at times, noted that she was using a walker instead of a cane, noted that her falls occurred more frequently, and that she continued to be at risk by leaving her walker, showing poor judgment, and depending on her husband for assistance. CMS Ex. 43, at 67-68. I note that Resident 111's husband was also cognitively impaired, in that he was diagnosed with Alzheimer's disease and short and long term memory problems. Tr. at 32, 647. His assistance could result in Resident 111 falling. Tr. at 32. The parties do not dispute that between May 2003 and April 2004, Resident 111 fell 35 times. Tr. at 26. Petitioner did care plan interventions to attempt to eliminate her falls. Interventions instituted during this period and noted in her March 2004 plan of care included: reminding her to use her walker when walking; maintaining a call light within reach and encouraging her to use it for help with transfers, walking, toileting, or if she felt weak or dizzy; maintaining a night light or bathroom light to enable her to see if she got up at night; monitoring her closely for unsteadiness if she was up and pacing and encouraging her to sit down and rest; maintaining a foam mattress off her bed due to her sliding and causing her to fall; observing her for medication side effects of the antidepressant and antianxiety medications she was taking; having the interdisciplinary team review her fall risk during their quarterly care conference and, if a fall occurred, reviewing it at the next weekly meeting; toileting her every two hours while awake and staying nearby while in the bathroom; instructing her to turn on the call light in her bathroom when she was done so that staff could standby while she walked back to her chair or bed; assisting her with all bathing and dressing due to her unsteadiness; making sure her shoes or slippers had nonskid soles while she was up walking around; instructing her husband not to assist her with bathing, dressing, or transfers due to her risk of falls and providing reminders to her husband as needed; maintaining a brief on her at night to manage incontinence, which could make the floor wet and cause her to slip; maintaining a baby monitor in her room so staff would be aware when she was up and could assist her; maintaining dycem under her mattress to prevent sliding; maintaining wind chimes on her walker to alert staff that she was up walking without assistance; placing a sign on her bathroom door to remind her to ask for help before going to the bathroom; maintaining grab bars on the wall by the toilet; maintaining a carpet on the floor in her room; having a restorative nurse instruct and supervise her on range of motion and walking with a rolling walker; and encouraging her to participate in exercise classes. P. Ex. 1, at 258-60. Despite these planned interventions, Petitioner continued to fall. As Surveyor Edwards testified, based on her experience as a nurse and as a surveyor, 35 falls is unusual. Tr. at 26-27. CMS asserts that such a large number of falls occurred because Petitioner was neither implementing interventions required by her care plan or adequately supervising her, not that Petitioner instituted no interventions to prevent falls. CMS Br. at 20, 22. As Petitioner notes and I agree, that Petitioner fell 35 times does not, in and of itself, mean that Petitioner was not providing adequate supervision to this resident. Petitioner's posthearing reply brief (P. Reply Br.) at 2. However, such a large number of falls can be a flag that a facility is not providing adequate supervision to a resident. Moreover, such a large number of falls is prima facie evidence itself that this resident was a fall risk. Below, I discuss the prima facie case CMS has presented, and that Petitioner has not rebutted, showing that, in certain critical instances, Petitioner's provision of supervision to Resident 111 was not adequate given her condition, especially as Petitioner was not following its own care plan for her, and that further falls were foreseeable. Resident 111's care plan required the facility to place wind chimes on her walker to alert staff that she was walking unassisted. P. Ex. 1, at 260. However, Petitioner's staff did not respond to Resident 111's wind chimes when they sounded in order to supervise her ambulation. Surveyor Edwards testified that during the orientation tour she observed Resident 111 walking down the hall with the wind chimes sounding. No one else was with or around her. No staff members came to see if Resident 111 was walking safely. Tr. at 30; CMS Ex. 43, at 5. Surveyor Phelps testified that on April 1, 2004, she observed Resident 111 and her husband seated in the dining room eating lunch. Resident 111's husband pulled her up from her chair (with some difficulty according to Surveyor Phelps, as Resident 111 apparently was a large woman and it was a struggle for the husband to get her out of the chair; Surveyor Phelps testified it took approximately 30 seconds or more for her to stand up), retrieved her walker with the chimes on it, and both residents walked slowly out of the room with the wind chimes sounding. Although it took the residents approximately four or five minutes to walk out of the room, neither the CNA or the QMA (whose backs were to the part of the room where Resident 111 was eating and leaving, and who were feeding residents and talking with each other) looked up to observe Resident 111 walking out of the room. Surveyor Phelps testified that after Resident 111 exited, the CNA looked up and said "Oh, I guess she's done." Tr. at 207-08, 263. Surveyor Phelps testified that this concerned her as Resident 111 was at high risk for falls and the wind chimes were supposed to alert staff to pay attention to her. Tr. at 208. Surveyor Phelps' observation is in direct contravention to Resident 111's care plan in two ways; one, her husband should not have been assisting her with her transfer and, two, staff were not supervising her ambulation. Petitioner asserts that the wind chimes were not supposed to be used to provide stand by assistance while Resident 111 was walking. Moreover, Petitioner asserts that the wind chimes were used by staff so that staff would know when she was moving in order to see if she needed assistance rising or sitting. P. Reply at 4-5. I note first that in the dining room situation the resident had to rise without supervision, in that her husband pulled her up and they walked out of the room with no staff paying attention to her, so staff were not even noticing whether she needed assistance rising or sitting. However, Resident 111's care plan is not, contrary to Petitioner's assertion, limited only to situations where the resident needed assistance rising or sitting. Her care plan says "[m]aintain wind chimes on resident's walker to alert staff that resident is up walking without assistance." P. Ex. 1, at 260. The fall prevention committee review notes (falls committee) of February 26, 2004 (in which the wind chimes and a baby monitor were added as interventions after the facility had tried a close call monitor as a restraint which had not worked due to Resident 111's husband removing it) states "small wind chime on walker also to alert staff of her movements will monitor." P. Ex. 1, at 250. Both the observations of Surveyor Edwards and Surveyor Phelps show that staff was not monitoring this resident's ambulation. The intent behind utilizing the wind chimes as an intervention had to be for someone to watch Resident 111 to see if she was unsteady and likely to fall and to prevent that potential fall. Although Petitioner argues that Surveyor Edwards did not observe the resident when she began walking with her husband and Surveyor Phelps did not observe the resident all the way to her destination (P. Reply, at 5), at the time of the observations, when the resident was walking and the chimes were sounding, the resident was unsupervised. Resident 111's care plan for fall prevention also included the use of a baby monitor. Specifically, staff were required to "[m]aintain baby monitor in resident's room so that staff will be aware . . . resident is up by herself. Staff to assist resident when she is up unattended." P. Ex. 1, at 260. Surveyor Edwards observed that the baby monitor was not being used by the facility as required by Resident 111's care plan. Tr. at 29. Surveyor Edwards looked for it and did not see one in Resident 111's room. Tr. at 56. While falls committee notes show that a monitor was in place on February 29, 2004 ["Fall on 2/29/04 @ 5:40 am on floor next to bed. Staff alerted by resident's monitor in her room. [No] injur. Wall monitor placed [at] bottom of headboard to alert staff of resident's movement to get out of bed"] (CMS Ex. 43, at 63, 78), I accept Surveyor Edwards' observation that it was not in use during her survey observation. Moreover, on April 5, 2004, during the survey, Resident 111 fell. Nurses' notes show that after the fall staff had to be reminded to "use baby monitor [at] all [times]." CMS Ex. 43, at 66. Apparently, they were not doing so, in contravention of her care plan, thus not implementing the plan. Surveyor Edwards testified she did not observe Petitioner's staff toileting Resident 111 every two hours as required by her care plan. Tr. at 27-28. Surveyor Edwards testified that as staff did not do so every two hours this would not be an effective intervention, because Resident 111 did not ask to go to the bathroom and needed someone to take her. Id. Encouraging the resident to ask for assistance was not effective because she would not remember to do so and usually asked her husband for assistance. Id. Petitioner argues that Surveyor Edwards did not establish that she observed the resident for a two-hour period or that she knew what the resident's toileting times were. However, I find Surveyor Edwards' testimony to be credible. Petitioner also asserts that the resident's bowel assessments show that she was being toileted consistently every two hours, citing CMS Ex. 43, at 92. This citation does not support Petitioner's argument. It is a page entitled, "Quarterly review," with the latest notes from November 19, 2003. All that citation shows is "Resident toileted/cued [every] 2-3 hours . . . for Bms." There is no separate documentation that this was actually done. Moreover, it refers to toileting potentially every three hours, not two. Surveyor Edwards also testified that she observed Resident 111 standing in the bathroom with her husband, who was holding a brief while no staff were present. Tr. at 35-36. Petitioner argues that I should not infer that because of this Resident 111 was not being adequately supervised. Petitioner asserts that although the resident was on a toileting schedule she was independent with toileting and required limited assistance at times to help change her brief (and, during this observation, her husband was helping her with the soiled brief). As support for this, Petitioner cites CMS Ex. 43, at 34, a RAP summary from June 2003. I do not find this assists Petitioner's argument. By April 2004, the facility did not want Resident 111's husband to assist her, staff was to be nearby when the resident was in the bathroom, and the resident was supposed to ask for help before going to the bathroom. P. Ex. 1, at 258-60. CMS notes that on several occasions Resident 111 also ambulated without her walker, and that it was not safe for her to do so. Specifically, Surveyor Edwards testified that on March 23, 2004, she observed the resident ambulating to the dining room without her walker (Tr. at 32-33; CMS Ex. 43, at 5); on March 24, she saw Resident 111 ambulating in her room without her walker (CMS Ex. 43, at 5). DON Riggen testified that Resident 111 also sometimes walked without her walker. Tr. at 785. Petitioner notes that staff brought Resident 111's walker to her during the observation on March 23 and that on other occasions during the survey Resident 111 was using a walker. P. Reply Br. at 7. However, this does not detract from the testimony and observation that Resident 111 did ambulate without the walker. CMS also cites surveyor observation that Resident 111 was left sitting unsupervised by staff. Tr. at 33-34; CMS Ex. 43, at 5. Specifically, on March 30, Surveyor Edwards saw Resident 111 sitting outside the activity/dining room leaning on her walker with no staff present (Id.) and, on March 31, Surveyor Edwards observed her sitting in a wheelchair in the "gold" room for 10 to 15 minutes with no staff present. Tr. at 34, 68-71; CMS Ex. 43, at 5. Resident 111 was an accident waiting to happen. It was entirely foreseeable that, absent diligent adherence to her falls prevention care plan, Resident 111 would fall given her cognitive status (and that of her husband) and her unsteady gait. Thus, Petitioner's staff needed to be vigilant in supervising her by, at a minimum, following her care plan for falls. The above evidence convinces me that they were not. Resident 111 hit her head during several of her falls (Tr. at 99; CMS Ex. 43, at 72-74, 76, 77), which I find to constitute actual harm.
Resident 117's diagnoses included Alzheimer's dementia with behaviors, impaired mental state, depression, arthritis, gait disturbance, bowel/bladder incontinence, and visual impairment. Tr. at 37; CMS Ex. 46, at 9, 23. Resident 117 also had long term memory impairment, moderately impaired cognitive skills for decision making, and rarely understood or was understood by staff. Tr. at 38; CMS Ex. 46, at 4. Resident 117 was totally dependent on two staff members for bed mobility, required extensive assistance from two staff members for transfers, used a wheelchair, and could not ambulate on his own. Tr. at 38; CMS Ex. 46, at 4, 38. Resident 117 was at risk for falls due to his impaired cognition, arthritis, and history of falls. Tr. at 39. From June 2003 to March 2004, it is undisputed that Resident 117 fell 18 times; June 23, June 30, August 1, September 22, November 3, November 7, November 15, and November 23, 2003, and January 1, January 6, January 7, January 15, January 17, 2004, two times on February 11, February 25, March 11, and March 16, 2004. Tr. at 39; CMS Ex. 46, at 19-21, 44-45. Surveyor Edwards testified that Petitioner did not assess Resident 117 after each of these falls to determine the cause of each fall to determine if additional interventions could be implemented to prevent further falls. Tr. at 39-40. Based on Surveyor Edwards' testimony, CMS asserts that Petitioner failed to implement effective interventions in response to the falls because it failed to assess Resident 117 after each fall to determine the cause of the fall and whether additional interventions could be implemented to prevent further falls. CMS Br. at 24-25; Tr. at 39-40. CMS asserts that little was done in response to the first 13 falls to prevent further falls. After the June 23, 2003 fall, staff were directed to monitor the resident. CMS Ex. 46, at 19. After the June 30 and August 1 falls, no new interventions were implemented. Id. at 19, 44, 45. After his fall on September 22, staff were just to continue to monitor. Id. at 19. After the November 3 fall, when the resident fell in a puddle of urine, staff were instructed to toilet him every two hours, and more frequently, if necessary, and briefs were placed on the resident. Id. After the fall on November 7, staff were directed to monitor the resident and review his medications. Id. at 20. No new interventions were implemented in response to falls on November 15 and November 23. Id. In response to the resident's falls on January 1, 6, and 7, 2004, Petitioner reviewed his medications and referred him to physical therapy for an evaluation. Id. Following a fall on January 15, the facility re-arranged his room. Id. After a fall on January 17, another medication review was done and staff were again directed to monitor the resident. Id. Resident 117 fell twice on February 11. The facility placed a close call monitor on him. Id. at 21. After a fall on February 25, the facility did another medication review, noted the resident was receiving physical therapy, and recommended lab work. Id. The resident fell again on March 11 and again on March 16. In response to these two falls the resident was referred to occupational therapy for evaluation for the least restrictive restraint and a lap buddy was implemented. Id. However, according to a restraint use assessment, Resident 117 was able to remove both the close call monitor and the lap buddy (Id. at 24), and DON Riggen testified that the resident attempted to remove his lap buddy. Tr. at 786. Surveyor Edwards testified that the facility should have analyzed these falls to assess why they were occurring. Tr. at 41. She noted that it was only after the facility implemented the combined use of the lap buddy and close call monitor that the falls stopped. Tr. at 41, 80. CMS notes that although DON Riggen testified about the facility's general procedure for responding to resident falls (Tr. at 647-50), she did not testify that specific assessments were done for Resident 117's falls. Moreover, the facility has not submitted any documentation that specific assessments were done, other than cursory falls committee reviews. As CMS noted, Resident 117 suffered actual harm as a result of his falls, including a skin tear and abrasion above his right elbow, two small skin tears and an abrasion on his right knee, and an abrasion to his left upper eye. CMS Ex. 46, at 19-20. Petitioner infers that the falls committee reviews were adequate assessments and that the interventions provided after each of the falls, as outlined in a handwritten and undated document at CMS Ex. 46, at 13-16, show that the interventions provided by the facility to prevent Resident 117 from falling were adequate. P. Reply Br. at 8-9. However, even noting that interventions were attempted, and acknowledging that even with adequate supervision and assistance devices falls may occur, the record before me does not support Petitioner's argument. Given the number of falls by this resident, Petitioner was slow to implement fall prevention measures.
Resident 75's diagnoses included cancer of the prostate with metastasis to the bones, intractable pain, status post stroke, and depression. Tr. at 198; CMS Ex. 37, at 21. Resident 75's most recent MDS indicated that his memory was intact but his decision-making skills were moderately impaired. Resident 75 needed extensive assistance to turn in bed, to transfer, to ambulate, to dress and bathe. He could propel his wheelchair while he was in it. He could feed himself with setup. He needed assistance to stand and had an unsteady gait. Tr. at 198-199; CMS Ex. 37, at 3, 20. Surveyor Phelps testified that Resident 75 was at risk for falls due to his history of falls, unwillingness to call for assistance despite his intact memory, and his physical condition, in that he couldn't ambulate, stand alone, or transfer. Tr. at 199. From November 11, 2003 through March 2004, Resident 75 fell nine times; on November 11, December 12, December 21, and December 26, 2003, and on January 19, March 5, March 7, March 19, and March 20, 2004. CMS Ex. 37, at 4, 8-9. Surveyor Phelps testified that when she reviewed the falls committee notes, five notes said they were going to encourage Resident 75 to ask for assistance, two didn't make any recommendations, and two falls were not reviewed. Surveyor Phelps testified that encouraging the resident to ask for assistance was an ineffective intervention because he was not doing it and was continuing to fall. Tr. at 201-02. Surveyor Phelps testified that other interventions or assistance devices, such as patient education, a drop seat, or a wedge cushion could have been tried which would have allowed Resident 75 to retain his independence. Tr. at 205-06. As CMS notes, Resident 75 experienced actual harm, including hip pain and abrasions to his back, as a result of the falls, and, as DON Riggen testified, his bone cancer placed him at an increased risk of injury from the falls. Tr. at 662. Petitioner does not dispute that Resident 75 fell nine times between his admission on November 3, 2003 and the date of the survey. Petitioner's brief (P. Br.) at 16. Petitioner also does not dispute that Resident 75 was at risk for falls and that his medical conditions placed him at increased risk of injury from falls. Nor does Petitioner assert that it implemented any intervention other than encouraging the resident to use his call light to ask for assistance after his falls on November 11, December 12, December 21, December 26, and January 19. Petitioner asserts that its intervention in response to these falls was effective because Resident 75 did not fall for a month after the first fall and from January 19 through March 5 when he fell again. P. Br. at 16-17. However, as noted by CMS in its reply brief at page 9, that Resident 75 did not fall does not mean that an effective care plan was in place (see Batavia Nursing and Convalescent Center, DAB No. 1904, at 44 (2004), aff'd Batavia Nursing and Convalescent Center v. Thompson, No. 04-3325, 129 Fed. Appx. 181 (6th Cir. April 15, 2005) (unpublished). Further, it does not explain how the intervention was effective at preventing the resident's other falls in December and January, and no intervention was put in place after his fall on March 5. After his fall on March 7, Petitioner asserts it replaced a vinyl pillow with a pressure-relieving cushion. P. Br. at 17. However, as Surveyor Phelps testified, a pressure relieving cushion is an intervention for skin care, not fall prevention. Tr. at 267. Petitioner also suggests that because the two falls not yet reviewed by the falls committee when the survey started on March 22 occurred over a weekend (March 19 and 20) Petitioner should be excused from having implemented any new interventions. P. Br. at 17. However, Petitioner is not relieved of its responsibility to provide adequate supervision and assistance devices because a fall occurs on a weekend. As CMS notes, Surveyor Phelps' surveyor notes show that she reviewed Resident 75's record on March 29, 2004 (CMS Ex. 37, at 1) and, at that time, nine days after the March 20 fall, Petitioner had not implemented interventions or assistance devices in response to the fall. Petitioner also faults the interventions suggested by Surveyor Phelps in her testimony (Tr. at 205, 206, 260-61). However, since it is not the responsibility of the surveyors to devise interventions, I do not address whether interventions suggested by the surveyors in this case would have been reasonable or adequate. Petitioner also asserted that some of the interventions suggested by Surveyor Phelps constituted a restraint that Petitioner and his family did not want. P. Br. at 17-18. However, Petitioner did not show me documentary evidence that Resident 75 was offered such assistance devices or that Resident 75 refused them. Moreover, a close call monitor was added to the care plan after the falls committee reviewed his care plan on March 30, 2004 (during the survey). P. Ex. 1, at 295. Here Petitioner was slow to implement interventions in response to Resident 75's falls and failed to assess the resident after each fall to determine if additional assistance devices could be implemented to prevent further falls. As Surveyor Cole testified, in reviewing a record surveyors look for an assessment regarding the cause of a resident's fall and whether there is a pattern to the fall. Tr. at 113, 131. Petitioner has not shown that it made such assessments here. Resident 4 Resident 4 had diagnoses including Alzheimer's dementia with behavioral disturbances, depression, hypothyroidism, incontinence, edema, congestive heart failure, and anemia. Tr. at 111; CMS Ex. 19, at 55, 61. Resident 4 had short and long-term memory impairments and her cognitive skills for daily decision making were moderately impaired. Tr. at 111, CMS Ex. 19, at 53, 68. She required limited assistance of one person for bed mobility, transfers, toileting, and personal hygiene, and could not balance herself while standing without staff assistance. Tr. at 111-12; CMS Ex. 19, at 69. Surveyor Cole testified that Resident 4 was at risk for falls due to her diagnoses, including her Alzheimer's, incontinence, edema, and cognitive issues. Tr. at 112. Resident 4 fell 10 times between April 2003 and March 30, 2004; on April 10, April 26, July 3, twice on September 1, twice on September 2, 2003, and on January 29, February 29, and March 30, 2004. CMS Ex. 19, at 9-13, 36. The only interventions added to Resident 4's care plan during the time of Resident 4's falls were to: 1) encourage her to allow staff to take her to the main dining room for supper, as she is usually restless about that time; 2) maintain nonskid socks when she's not wearing shoes; and 3) make sure she uses a small lap robe or small afghan when sitting because, when she uses a larger one, her feet get tangled and she falls. CMS Ex. 19, at 37-38, 42-43. Surveyor Cole testified that there were additional interventions that Petitioner could have tried to prevent falls, such as placing the resident on a more frequent toileting schedule, increasing supervision, providing her with additional activities, and using a self-release belt, a close call monitor, or moving her closer to the nurses' station. Tr. at 115, 118. On March 30, 2004, Resident 4 fell about 8:00 p.m. Nurses' notes indicate that "[s]he stated just lost balance." CMS Ex. 19, at 35. Surveyor Cole testified that she observed Resident 4 on March 30, 2004, in her bathroom with her rolling walker, with no staff present. Surveyor Cole testified that Resident 4 told Surveyor Cole that she goes to the bathroom by herself. Tr. at 118; CMS Ex. 19, at 8. Surveyor Cole testified that this concerned her because Resident 4's care plan stated some of her falls occurred while she was going to the bathroom, and her MDS and care plan indicated she need the limited assistance of one with her toileting and transfers, and assistance every two hours on her toileting schedule. Tr. at 118-119. It was only after the fall on March 30, 2004, during the survey, that a close call monitor was documented to have been placed on Resident 4 and she was moved closer to the nurses' station. Tr. at 118. (3) By this time Resident 4 had suffered actual harm as a result of her falls, including a left rib fracture, skin tears and bruising. She also hit her head during falls. CMS Ex. 19, at 11, 12, 22, 24, 28, 31. Surveyor Cole testified that she did not believe Petitioner was providing adequate supervision and assistance devices to Resident 4. Resident 4 continued to fall, and sustained a fracture because of it. Tr. at 119. Surveyor Cole testified that Petitioner did not assess Resident 4 after each of these falls to determine if any interventions could be used to prevent further falls. She testified that it is important to assess a resident after each fall to look at the overall cause and to prevent further falls - to find out whether there is a pattern to how they are occurring. Tr. at 113. Petitioner asserts that the interventions implemented after each of the falls were reasonable responses to the perceived causes of the falls and the fact that other interventions might have been tried in addition to the ones implemented does not establish that the facility's response was inadequate. P. Br. at 14. I agree with CMS, however, that Petitioner failed to thoroughly assess this resident after each fall to determine the cause of the fall and determine if additional interventions could be implemented to prevent further falls. CMS Br. at 31. I note particularly the fall of March 30. This fall occurred after the facility had been notified that it was in immediate jeopardy (P. Br. at 14) but illustrates the jeopardy the resident was in - she was a fall risk and not following her care plan and carefully assessing her placed her at risk. When Surveyor Cole observed Resident 4 earlier that day, the facility was not following Resident 4's care plan and the resident was at risk of falling - which she did that evening when she "just lost balance."
Resident A As of the survey date, Resident A was a 92-year-old woman with diagnoses including high blood pressure, stroke, a history of falls, panic attacks, and was status post fractured left femur. Tr. at 556; CMS Ex. 85, at 1, 15. Resident A's fall risk assessment noted she had an unsteady gait, required extensive assistance with ambulation and transfers, and that she was at risk for falls. CMS Ex. 85, at 45-46, 272; see Id. at 18. As a result of deep vein thrombosis, Resident A suffered from stasis ulcers on her lower extremities due to lack of circulation. This condition caused her pain when lying down and caused her to prefer sitting in a wheelchair. Tr. at 635. Because Resident A was at risk for falls, a close call monitor was prescribed to be used at all times and staff were to respond at once if the alarm sounded. CMA Ex. 85, at 79; Tr. at 557. Surveyor Novotny-Elmer testified that she was told by Ben Hur employees Joanne Jones and Bonnie Clemens that on the morning of May 18, 2004, Resident A was placed in a recliner chair with the footrest up. A wastebasket was placed under the recliner's footrest. Tr. at 558-560; CMS Ex. 116, at 60, 64. The recliner had just been moved to a lounge because staff felt Resident A would be more comfortable in the recliner than in her wheelchair. CMS Ex. 116, at 57; P. Br. at 33. At approximately 6:30 a.m., Resident A attempted to get out of the recliner by "scooting" forward to the end of the chair. The recliner tipped over, causing Resident A to fall out of the recliner and strike her head on a coffee table in front of the chair. Tr. at 560-61. The close call monitor did not sound. Tr. at 557, 561. Surveyor Novotny-Elmer testified that Petitioner's staff told her that this was because the cord was too long and did not disengage from the alarm box. Tr. at 557, 561-62; CMS Ex. 70, at 49. Resident A's face was bruised after striking her face on the table. She was on anticoagulant therapy which increased her risk of internal bleeding. See Tr. at 556, 563. Following this incident, Resident A was diagnosed with a cerebral hemorrhage, from which she died on May 19, 2004. (4) CMS Ex. 75, at 13. Petitioner does not dispute that Resident A was placed in a recliner chair with a wastebasket under the footrest. P. Br. at 33. Further, Petitioner admits that Resident A scooted to the end of the seat cushion and on to the footrest and the chair tipped forward with her and landed on top of her. Id. Petitioner states that staff saw the fall occur but could not get to her in time to prevent it. P. Br. at 34; Tr. at 597; CMS Ex. 85, at 54. Petitioner, citing to Surveyor Novotny-Elmer's testimony, asserts that its staff demonstrated for Surveyor Novotny-Elmer that when the close call monitor is applied the alarm will not sound when the chair tips in this manner because the adjustable cord is not stretched far enough (Tr. at 561-62) and that CMS presented no evidence to support an allegation that the alarm was not functioning properly, that the alarm was not applied properly, or that staff did not respond timely. P. Br. at 34. Petitioner argues that this was an unforeseeable accident. P. Br. at 35, 36. This resident was a fall risk. As Petitioner itself notes, on May 7, 2004, the resident tried to transfer herself from a wheelchair to the toilet. CMS Ex. 85, at 5, 47. Surveyor Novotny-Elmer testified that placing the resident in a recliner chair with the foot rest up would be similar to keeping her in bed as far as her lower extremities were concerned, and noted that she had complained of pain due to her ulcers when she was in bed. Tr. at 635. It is thus entirely foreseeable that she might try to get up from the recliner. And, if she tried to get up with a wastebasket under the footrest, where there is no chance that the recliner could properly come down, it is certainly foreseeable that she could fall. Moreover, Petitioner admits that in such a situation the close call monitor will not sound - and the close call monitor would, accordingly, not be an adequate intervention to protect against falls in this situation. Further, this was the first time that the resident was using a recliner in the lounge where the fall occurred. It was incumbent upon Petitioner's staff to be vigilant to ensure that Resident A did not attempt to transfer by herself or otherwise harm herself, and to be close by to help her to transfer. Petitioner did not so supervise her here. Petitioner also infers that even if its care of Resident A was deficient, this does not mean that other residents in its facility were in immediate jeopardy. However, that Petitioner's staff did not understand that a wastebasket under a recliner was a fall risk, or that placing a close call monitor on a resident that would not work as an intervention if she tried to get up from a recliner, suggests to me that other residents at the facility were at risk until staff were properly educated. Residents 13, 52, and 15 (5) Petitioner had a falls problem here because alarm monitors were not working or were not attached correctly. Surveyor McNamee observed Resident 13 in the small assist dining room with seven other residents present and no staff member with them. Surveyor McNamee testified that Resident 13 stood up straddling the left leg of her wheelchair. The close call monitor did not trigger until she fell to the floor. Tr. at 309-313. Surveyor McNamee testified the adjustable cord was too long. On May 5, 2004, Resident 52 was found on the floor between his wheelchair and an easy chair. He had removed his lap buddy and his close call monitor failed to sound because the cord was not attached to the clip fixed to his clothing. Tr. at 313-316. Resident 15 was also at risk for falls. A call light was to be kept within her reach and staff were to maintain a motion detector at the end of her recliner and respond at once if the alarm sounded. Tr. at 520-21, 552. Surveyor Wolfgang observed Resident 15 on May 28. Resident 15 was in her room by herself, the footrest was up, and she had scooted down and on the footrest of her recliner, with a leg on each side of the recliner, leaning back on her elbows and bracing herself in the recliner. No alarm was sounding. The call light was on the floor beside the recliner, as was the control for the recliner. Tr. at 521-22. Resident 15 was not assisted off the recliner until the surveyor found staff to do so. Tr. at 521. Petitioner asserts that: Resident 13's alarm was properly attached and sounded when she fell and that the incident happened so quickly that Surveyor McNamee had no time to alert a staff member standing right in front of her; the motion detector on Resident 15's recliner was properly attached, but did not sound during the observation because the recliner leg rest did not move; and Resident 52's monitor was properly deployed, but the cord detached from the monitor when the cord slipped off the ring attached to the monitor, a design defect that had never happened before with any other monitors. P. Reply Br. at 17. Petitioner's assertions are unpersuasive. With regard to Resident 13, Surveyor McNamee testified that the Resident stood for a minute before falling and that would have given staff time to react had the monitor sounded - unfortunately the monitor did not sound until the resident was on the floor. Tr. at 310. Moreover, the monitor cord was too long. Surveyor McNamee's testimony is based on her observation and was not rebutted by other witness testimony. With regard to Resident 52, I agree with CMS that subsequent remedial measures do not cure the facility's failure to have a properly attached monitor cord, and there is no contemporaneous documentation or plan of correction that offers a reasonable justification for why the monitor was not properly attached. CMS Reply Br. at 41-42. With regard to Resident 15, Petitioner's assertion that the motion detector was only supposed to sound if the footrest was lowered is unsupported speculation contrary to the plan of care and the surveyor's testimony. CMS Ex. 113, at 19; Tr. at 552. CMS notes that because residents such as Residents 15 and A can attempt to transfer with a footrest up, the fact that a motion detector fails to sound supports a conclusion that monitors are not properly deployed or are not performing a useful function. CMS Reply Br. at 42. These three examples are further evidence that Petitioner continued to have a falls problem because alarm monitors either did not work, were incorrectly attached, or were not adequate to protect the resident when a footrest was up. Resident 65 Resident 65 had Alzheimer's dementia and was status post cerebral vascular accident or stroke. She was a fall risk. Tr. at 317. She was to have a light on in her room at night, either a night light or a bathroom light with the door ajar, to help her see if she got up at night. Tr. at 318; CMS Ex. 98, at 16. On May 26, 2004, at 2:30 a.m., Surveyor McNamee observed Resident 65 standing in the middle of her room with one hand on her walker and a soiled pad in the other asking for help. She told Surveyor McNamee that she was confused and could not find her pants. The room was dark and no facility staff were around. Surveyor McNamee had to go the nurses' station to find help, as there was no CNA on the wing. Surveyor McNamee testified that she found Petitioner out of compliance in this situation due to Petitioner's failure to follow the resident's care plan and the lack of staff supervision. Tr. at 319-20. Petitioner asserts that a CNA was at the nurses' desk (as Surveyor McNamee noted) and also notes that Surveyor McNamee's surveyor notes worksheet does not state that the resident was holding a soiled brief and her walker, but merely states she was "walking in room trying to get dressed." Petitioner also asserts that the surveyor notes only reflect that the room was dark, but does not indicate whether a light was on in the bathroom or whether the bathroom door was open or shut. P. Reply Br. at 20; CMS Ex. 110, at 27. I agree with CMS that in this instance Petitioner was out of compliance due to its failure to follow Resident 65's care plan and lack of supervision. I find Surveyor McNamee's testimony to be credible and consistent with the statement of deficiencies, a document prepared soon after her observations. CMS Ex. 70, at 67. Surveyor McNamee has testified that the nurses' desk where she found a CNA did not have visual access to the hallway where Resident 65's room was. Tr. at 356. The CNA was not aware of what was happening to Resident 65. Specifically, I find credible Surveyor McNamee's testimony that she found the resident holding a soiled brief and her walker. I also find credible Surveyor McNamee's testimony that the room was dark and note that Surveyor McNamee also testified that she could not find the light switch or call light. Tr. at 357. This testimony suggests to me that, even if the bathroom light was on, there was not enough light in the room to be consistent with the resident's care plan. I agree with CMS that if the surveyor had not obtained assistance for this resident she would have remained unattended in her darkened room and could easily have suffered a fall. CMS Reply Br. at 43. Resident 119 CMS asserts that by failing to supervise Resident 119's smoking, Petitioner exposed him to the risk of having his clothing catch on fire. Resident 119 had diagnoses including Alzheimer's dementia with delusions and psychosis. CMS Ex. 105, at 1. He had "significant auditory hallucinations and delusions" and periods of altered perceptions of awareness. Id. at 21, 27. Among other delusions, Resident 119 believed he had been kidnaped and brought to the facility and that his pacemaker was leaking metal into his chest. Id. at 3, 9. Petitioner's records indicate that Petitioner required supervision to ensure his own and others' safety. CMS Ex. 105, at 8, see also Id. at 3, 9. Resident 119 was on Petitioner's list of residents requiring supervision while smoking and Petitioner's policy specifically required that such residents "may not carry a lighter or matches." CMS Ex. 126, at 2-3. On May 27, 2004, Surveyor Proctor testified that she observed Resident 119 in the small courtyard off of Wing 10 (the secured Alzheimer's unit) lighting a cigarette with a lighter and smoking without supervision, in that he was in the courtyard by himself outside of a locked door. Tr. at 177-78; see also Tr. at 549 (Surveyor Wolfgang testified that she saw Resident 119 light his cigarette). Surveyor Proctor testified that she inspected Resident 119's clothing. She testified his clothing showed numerous burn marks. Tr. at 178; CMS Ex. 70, at 52-53; see Tr. at 375-76. Surveyor Proctor testified, without contradiction, that nursing home residents have been known to set themselves on fire by smoking without supervision. Tr. at 179. Petitioner asserts that out of six indicators of delirium/periodic disordered thinking/awareness on the resident's MDS only one was present. CMS Ex. 105, at 21. Petitioner also asserts that a cognitive status summary prepared in connection with the MDS states that supervision was necessary for Resident 119 because he wanted to leave the facility and could smoke only in an area where he was prevented from leaving. CMS Ex. 105, at 9. Additionally, the smoking assessment indicates he had the hand dexterity, grip and steadiness of hand to control his smoking materials without dropping them. CMS Ex. 105, at 8. Petitioner also asserts that Surveyor McNamee's work notes show that QMA Tracey Snider told Surveyor McNamee that they could see him from the window and looked out at him two times. CMS Ex. 110, at 4. Further, Petitioner asserts Surveyor Wolfgang's notes show that Administrator Barnes told the surveyors that Resident 119 was allowed to smoke in the enclosed courtyard because he could not elope from that location. Tr. at 548. Finally, Petitioner asserts that Surveyors Proctor and McNamee did not ask staff about the condition of Resident 119's clothes upon his admission, inferring that he could have been admitted with burn marks on his clothes and that the burn marks may not have occurred at Petitioner's facility. I do not find Petitioner's arguments persuasive. First, I note that the other five indicators do not detract from the seriousness of the assessment that Resident 119 had periods of altered perception or awareness or indicate that it was safe for Resident 119 to smoke unsupervised. Moreover, Resident 119 needed supervision to "ensure safety." CMS Ex. 105, at 8. Petitioner's assertion that Resident 119 was supervised while smoking on the day of Surveyor Proctor's observation is taken from Surveyor McNamee's notation of a statement from QMA Snider (CMS Ex. 110, at 4) which simply states that Resident 119 was let out to smoke from 1:40 to 2:15 and does not state when Petitioner's nurses observed him. Thus, the statement does not contradict Surveyor Proctor's testimony that she did not see anyone supervising Resident 119 when she observed him smoking for 10 minutes. Tr. at 177-78, 187-89. This suggests, as CMS observes (CMS Reply Br. at 46) that Resident 119's supervision by Petitioner was "sporadic at best." That Resident 119's clothes had burn holes in them shows that he was at risk and was inattentive to smoldering ash and that it was foreseeable that he could cause himself serious harm. It was "mere good fortune" that a smoldering ash "did not cause more damage than just burning a hole" in his clothing. Britthaven of Smithfield, DAB CR1286, at 10-11 (2005). Resident 98 Petitioner failed to provide adequate supervision to this resident. On May 26, 2004, at 1:30 a.m., Surveyor Roush heard an alarm sounding in Wing 9 and found that Resident 98, a fall risk, had dislodged his monitor and was hanging on to the side rails of his bed. No staff were in sight and the alarm sounded for a full four minutes before an LPN arrived. The nurse was on Wing 10, the Alzheimer's unit, and could not hear the alarm, nor could the aide who was helping another resident. Tr. at 424-25. Petitioner asserts that Surveyor Roush's observation that four minutes passed before a nurse responded is not supported by substantial evidence. Petitioner asserts the observation refutes CMS's claim that alarms cannot be heard unless staff are on the unit as she heard the alarm when she "approached" the Desk 3 nursing station; CMS offered no support that the response time was inadequate; and no accident occurred or was likely to occur as the resident was in bed with the rails up. P. Reply Br. at 17-18. Where Surveyor Roush was when she heard the alarm is immaterial in this instance, as the relevant question is where Petitioner's staff was. Further, whether or not Resident 98 suffered an accident in this instance is immaterial. The resident was a fall risk and for such a resident four minutes is a long time. Surveyor Roush's testimony supports an inference that four minutes is outside a standard of nursing care. Petitioner has submitted no evidence to support a conclusion that a four minute response in this instance comports with the standard of care. In this instance delayed response to the resident's alarm constituted inadequate supervision to meet his needs. Residents 117 and 120 Surveyor Roush testified that both residents were assessed as suffering from dementia, at risk for falls, and prescribed the use of a merry walker. Both needed to be supervised while in walkers due to their "histories of falls and histories of trying to get out of their Merry Walkers." Tr. at 421. At 12:48 a.m. in the morning of May 26, 2004, Surveyor Roush observed both residents in the dining/activity lounge of Wing 10, in their walkers, with the lights off and the only light in the room provided by the television. Tr. at 420-22; CMS Ex. 108, at 15. Petitioner asserts that these residents were not left unattended. A CNA was on duty on the unit and knew where the residents were. While a CNA was on duty on the unit, Surveyor Roush testified, and I agree, that it was inappropriate to leave them this way, alone in the lounge in the middle of the night, which placed them in a "high risk, unsafe situation" as they could try to get out of their walkers and flip them over while trying to do so (whether or not there were weights on Resident 117's walker). Tr. at 422.
CMS has not made a prima facie case that the deficiency cited here constitutes noncompliance with participation requirements. As Petitioner notes, it is undisputed that on May 10, 2004, between 4:00 and 4:30 p.m., Resident 122 was somehow able to remove screws placed in the frame of the window of his room on the locked Alzheimer's unit and climb out the window. P. Br. at 38. If it was foreseeable that the resident would remove the screws and exit his room, that would constitute noncompliance with this participation requirement. However, if Petitioner's action was not foreseeable, then Petitioner would not be noncompliant with participation requirements in this instance. I do not find that Resident 122's actions were foreseeable given the action taken by Petitioner to secure the window in his room. (6) Resident 122 had a diagnoses of Alzheimer's dementia. CMS Ex. 107, at 14. On April 20, 2004, Resident 122 was found with the window in his room open, with the window screen cut, and with his head and shoulders out the window. CMS Ex. 107, at 8. By April 21, 2004, Resident 122's care plan reflected that Petitioner's maintenance department had fixed the window so that it would not open wide enough for the resident to attempt to climb out. Id. Social Service progress notes dated April 21, 2004 show that the maintenance department ". . . put long screws into window frame [with] power drill. Window will open about 4 [inches] to provide fresh air for him. We verified [with] maint that resident could not open the window any higher. When task was completed, we checked window again. There were no further problems." CMS Ex. 107, at 75-76. There is no record evidence that between April 20, 2004 and May 10, 2004, Resident 122 displayed elopement seeking behaviors or attempted to open the window in his room. CMS provided no evidence that Resident 122 could have eloped through another exit and Surveyor Wolfgang agreed that it would not be likely that the screws could be removed. Tr. at 544. Moreover, the record does contain evidence that Petitioner checked the window on April 21, 2004. CMS Ex. 107, at 76. CMS asserts that one of Petitioner's employees informed Surveyor Wolfgang that Resident 122 had been able to remove screws placed in the window sash once before Resident 122 moved into the room and that they thus had been removed prior to the April 20, 2004 incident, showing, according to CMS, that the resident was able to remove the screws. CMS Ex. 113, at 10; Tr. at 523-24. These statements were not reported in the statement of deficiencies and Surveyor Wolfgang stated that they were not included because she "had no way of proving that the screws were put into the window prior to the first attempt that he made to get them out." Tr. at 534. Petitioner denies that screws were placed in the window prior to the incident on April 20. Tr. at 707, 963. I find that the evidence does not support a finding that there were screws in the window sash before Resident 122 moved in, and that given the placement of screws in the window on April 21 it was not foreseeable that this resident would remove the screws. Resident 32 Resident 32 had a diagnosis of brain aneurysm. He was at risk for falls and required supervision with transfers and walking. CMS Ex. 94, at 1, 32. On May 26, 2004, Resident 32's call light was on for 15 minutes and had not been answered. Surveyor Clegg found him lying on the floor. When she questioned him he stated he had fallen when he lost his balance after using the bedside commode. CMS Ex. 112, at 18; CMS Ex. 70, at 72-74. Petitioner notes that while the claim that the resident's call light had not been answered for 15 minutes was cited in the statement of deficiencies under both Tags F324 and 353, Surveyor Clegg's notes regarding this incident do not support the contention. CMS Ex. 112, at 18. Morevoer, Surveyor Clegg did not testify at the hearing and Petitioner did not have a chance to cross-examine her concerning her survey notes. P. Reply Br. at 18. Given the inconsistency between the survey notes and the statement of deficiencies, I cannot sustain this deficiency citation.
Immediate jeopardy is defined as a "situation in which the provider's noncompliance with one or more requirements of participation has caused, or is likely to cause, serious injury, harm, impairment, or death to a resident." 42 C.F.R. � 488.301. CMS's determination concerning the level or seriousness of a facility's noncompliance must be upheld unless it is "clearly erroneous." 42 C.F.R. � 498.60(c)(2). Clearly erroneous implies a deferential standard that places a heavy burden on the party seeking to overturn a finding or determination of immediate jeopardy. Here, I have noted numerous instances where Petitioner failed to adequately supervise or provide assistance devices to residents and, as a consequence, residents fell or, in the case of Resident 119, could have sustained a serious burn. In one instance a resident, Resident A, died as a result of a fall. Thus, I do not find CMS's determination under this Tag to be clearly erroneous.
Petitioner did not have sufficient staff to provide nursing care to all residents in accordance with resident plans of care. Section 483.30(a) (1) and (2) is found under the "Nursing services" section of the regulations and provides that:
To establish a failure to comply with this regulation, the Departmental Appeals Board (Board) has held that CMS need only show that the number of staff were not sufficient to meet residents' needs as shown in their care plan. The Board stated that CMS can accept as sufficient staffing levels that might not prevent every incident, as long as the facility has staff that can reasonably be expected to fulfill residents' needs by, for example, reducing the number and severity of such incidents to the extent practicable. Westgate Healthcare Center, DAB No. 1821, at 15. The Board also stated that meeting a state standard that relies on ratios of residents to staff does not necessarily establish compliance with participation requirements. The relevancy of such objective standards depends on the nature of the standard relative to the federal standard. Evaluating the effect of such standards in a particular case "depends on the nature and basis for the standard and how that relates to the federal standard and the needs of the residents in the facility." Westgate, DAB No. 1821, at 11. Staffing levels should be set based on an evaluation of residents' needs. Surveyor Roush testified that Petitioner was found out of compliance under this condition because Petitioner had very few staff caring for a large number of residents in a facility that is spread out, where units don't interconnect, and where nurses could not see residents from one unit to the other. Surveyor Roush testified that with this layout more staff would be necessary to monitor activity and assist residents. Surveyor Roush testified that in all her years of surveying she had not seen a facility structured this way, as most nursing facilities have the nurses' stations positioned so that staff can see down hallways to assist them in monitoring residents. Tr. at 404, 407-09. Specifically, Petitioner had three nurses' desks and eight wings in which residents resided. Desk 1 covered Wings 1, 2, and 3; Desk 2 covered Wings 6, 7, and 8; and Desk 3 covered Wings 9 and 10 (10 being the locked Alzheimer's unit). Tr. at 405; CMS Ex. 70, at 87; CMS Ex. 84. Surveyor Roush testified that the nurse at Desk 1 could not see down Wing 3 and it would be difficult to see down Wing 2 and, if a nurse was in one wing, the nurse would not be able to observe what is going on in the others (and Wing 2 was a locked unit for the mentally retarded, with residents who needed substantial care and supervision); Desk 2 faced away from Wings 6, 7, and 8, and the nurses could not see down the wings from the nurses' station and, if a nurse was on one wing they would not be aware of what was going on in the others; and Desk 3 is on Wing 9 and the nurse had to get up to see what was going on in Wing 10, the Alzheimer's unit. If a nurse was in either Wing 9 or Wing 10, the nurse would not know what is going on in the other unit. Tr. at 405-08; CMS Ex. 84. Surveyor Roush testified that she toured Petitioner's facility during the night shift on May 26, 2004. Tr. at 409. She started at Desk 1, and interviewed QMA Joanne Jones. She ascertained that QMA Jones was the only aide responsible for all 34 residents on Wings 1, 2, and 3. Of these residents, 27 were cognitively impaired, 26 were at risk for falls, 21 were incontinent, 12 were totally dependent, six needed assistance, 26 were identified at risk for falls, five were to be turned every two hours, two were to receive showers, and QMA Jones was to perform 15 minute visual checks and document checks completed for all residents. QMA Jones also had to fill the humidifier for Resident 6's oxygen tank, apply Xenaderm to Resident 11's coccyx, apply Desitin to Resident 15's bottom, and apply Carafate paste to Resident 32's coccyx. CMS Ex. 70, at 87-88; Tr. at 410. QMA Jones was to perform the 15 minute checks because of the residents who were identified by the facility as at risk for falls. Tr. at 410. Surveyor Roush testified that there is no way QMA Jones could perform all these tasks. QMA Jones told Surveyor Roush that she could not, stating she did the best she could. Tr. at 411. Surveyor Roush testified that Regina Dixie was the only aide covering Desk 2, and she was responsible for three wings and 38 residents. Tr. at 412. 34 of the residents had cognitive impairments, 26 were incontinent, 23 were fall risks, 16 required total nursing care, six needed assistance with care, 20 had to be turned and repositioned every two hours to prevent pressure sores. Tr. at 412-13; CMS Ex. 70, at 88-89. CNA Dixie was also to give showers to two residents who were totally dependent, assist 10 residents on Wing 7 to get up for the day shift, and perform and document 15 minute visual checks for each resident on the three wings. Id. CNA Dixie told Surveyor Roush that she could not perform all her tasks, could not do the 15 minute checks, and did the best she could. Tr. at 413; CMS Ex. 70, at 89; CMS Ex. 108, at 13. Surveyor Roush testified that there was only one licensed practical nurse (LPN) covering Desks 1 and 2, encompassing six wings of the facility. She was responsible for any treatments, injections, medications, breathing treatments, and assisting the aides during bed check. Only the nurse could do diabetic accuchecks and blood sugars and give insulin treatments or breathing treatments, or do assessments. Tr. at 413-14; CMS Ex. 70, at 89-90. LPN Mason told Surveyor Roush that it was very hard to carry out her responsibilities, and that staffing was frequently like that. Tr. at 414; CMS Ex. 70, at 89-90; CMS Ex. 108, at 13. Surveyor Roush also examined staffing on Wings 9 and 10. Only one aide was assigned to Wing 10, where there were 20 residents, all of whom suffered from cognitive impairments, were at risk for falls, and 14 of whom were incontinent. Tr. at 417-19;CMS Ex. 70, at 90; CMS Ex. 108, at 15. It was during this tour that Surveyor Roush observed the episode involving Residents 117 and 120 discussed in Finding 1 above. Tr. at 422-23; CMS Ex. 70, at 60-65. Surveyor Roush testified that at 1:00 a.m. she entered Wing 9 and learned there was only one aide assigned to 30 residents, 18 of whom suffered from cognitive impairments, 14 of whom were incontinent, 16 required turning every two hours, 11 were at risk for falls, and two required showers. Tr. at 422-23; CMS Ex. 70, at 90-91. The aide was required to perform 15 minute visual checks as well. The aide told Surveyor Roush that it was hard, but she did what she could. CMS Ex. 108, at 16. Surveyor Roush testified that Petitioner had only one nurse assigned to cover Wings 9 and 10. This LPN was responsible for supervising both aides, monitoring 50 residents, performing treatments, accuchecks, and assisting with resident care. Tr. at 423; CMS Ex. 70, at 90. It was on this tour that Surveyor Roush testified she observed Resident 98, discussed at Finding 1 above. Tr. at 423-26. Surveyor Roush testified that this incident showed how the facility's physical features required further staffing, because nursing staff in one wing could not be aware of what was happening in another. Tr. at 425-26. I find this observation to be credible. Surveyor McNamee testified that she interviewed CNA Dixie on May 26, 2004. CNA Dixie was the sole aide assigned to Wings 6, 7, and 8. CNA Dixie stated that she was responsible for passing ice water, giving 2 or 3 showers and getting all the Wing 7 residents up by 6:30 a.m. Four of the Wing 7 residents required transfer with a Hoyer lift. CNA Dixie told Surveyor McNamee she couldn't safely give care by herself because she had to tug and pull on residents trying to move them herself and she couldn't. Tr. at 322; CMS Ex. 70, at 92-93; CMS Ex. 110, at 26. CNA Dixie also confirmed to Surveyor McNamee that she couldn't hear alarms when she was on other halls and that they were "about worthless." CMS Ex. 110, at 26. Surveyor McNamee also observed the episode with Resident 65 on this tour, as described in Finding 1 above. Surveyor McNamee interviewed Jane Smith (QMA 12) and Barbara Guinn (LPN 9) about staffing on Wings 6, 7, and 8. Surveyor McNamee testified that QMA Smith said that they are staffed with a nurse, a QMA and two CNAs and, when there are two CNAs the residents have increased behaviors because there's not enough staff to take care of their needs. LPN Guinn agreed that when they have two CNAs they have increased behaviors and indicated that, even when there are three CNAs, staff was still busy and there wasn't enough staff to answer call lights. LPN Guinn stated care was hurried and CNAs did not get to brush residents' teeth. Tr. at 325-26; CMS Ex. 72, at 1-2; CMS Ex. 110, at 24-25. On June 2, 2004, Surveyor Roush testified she interviewed Kathy Howard (LPN 7), Mary Gordon (CNA 14), and Bradan Galvin (CNA 15) (CMS Ex. 72, at 1, 2) about staffing shortages. Tr. at 427-29; CMS Ex. 70, at 93-95; CMS Ex. 108, at 1-4. CNA Gordon indicated that on the second shift two CNAs on Wings 6, 7, and 8 were responsible for getting 21 residents up, assisting with toileting, and getting residents ready for the evening meal. Tr. at 427; CMS Ex. 70, at 94. At the same time one of the CNAs would have to do sensory stimulation and document response to the activity. CNA Gordon stated she had to miss supper breaks to do her work and that CNAs' complaints about staff shortages had been ignored. Tr. at 428; CMS Ex. 70, at 94. Surveyor Roush testified that LPN Howard told her that on weekends she was responsible for Desk 1 and Desk 2, requiring her to cover six wings from 3:00 p.m. to 7:00 p.m. LPN Howard also told Surveyor Roush that during the last month CNAs were required to conduct activities for residents beginning at 4:00 p.m. and that they did not have enough time to do that and their other tasks. LPN Howard was told that if CNAs did not have the time she was told to conduct the activities. LPN Howard asked for more staff, but was told she was fully staffed. Tr. at 428-29; CMS Ex. 108, at 4. Both Surveyors Roush and McNamee concluded that Petitioner had inadequate staffing, placing the residents in immediate jeopardy. Tr. at 326-27; 432-33. Surveyor Roush testified that - -
Tr. at 433. Petitioner does not directly challenge CMS's findings by arguing that they were wrong about the staffing levels they observed or the types of residents and their needs. Nor did Petitioner produce the employees interviewed by the surveyors who complained that Petitioner was understaffed or who could explain how they could adequately discharge the functions they were required to perform given the staff levels observed by the surveyors. Petitioner does assert that CMS did not accurately cite some of the staff interviews and also asserts that CMS did not offer objective evidence of staffing levels as a standard against which the adequacy of the ratios can be measured. Petitioner also refers to exhibits it offered to show that its level of staffing is higher than the state average and that incidents of falls at the facility are low. P. Br. at 47, citing P. Ex. 2, at 124-25, 126-29. Petitioner asserts that the surveyors discounted the data it provided. CMS Ex. 113, at 17; Tr. at 438-39; P. Reply Br. at 22-23. Petitioner also refers to the ALJ's decision in the case of Life Care Center of Hendersonville, DAB CR542 (1998) for the proposition that CMS cannot establish a prima facie case of inadequate staffing by pointing to examples of inadequate care, but that CMS must offer objective evidence of staffing levels. However, as noted above in the discussion of the Board's decision in Westgate Healthcare Center, DAB No. 1821, the federal standard uses as a measure the needs of the particular residents who are in the facility. Thus, in looking at whether Petitioner is in noncompliance here, I considered the needs of the residents in its facility, not purely objective factors, as to how Petitioner's statistics compare to the statistics of other facilities. Petitioner's argument and exhibits nibble at the edges of CMS's case, but do not overcome CMS's prima facie case that it was not compliant with federal requirements here. CMS has credibly shown that Petitioner's design was unusual, that there were a large number of residents at the facility in need of supervision, and that the number of staff on duty (especially during the night shift) were not sufficient to supervise the residents. The examples cited by CMS above are compelling.
I have noted numerous instances above where Petitioner failed to adequately supervise residents and, as a consequence, residents were at risk for falls or other accidents. I do not find CMS's determination under this Tag to be clearly erroneous.
Petitioner has asserted that imposition of immediate jeopardy level CMPs (of $4,000 from March 30, 2004 through April 7, 2004, and $4,500 from May 18, 2004 through June 4, 2004) are clearly erroneous and thus unreasonable. See P. Br. at 56. While I have not sustained every deficiency citation (and discussed two examples above), CMS has convinced me that immediate jeopardy existed under Tag F324, especially with regard to the incidence of falls at the facility, and that the deficiency is interrelated with the staffing deficiencies noted at Tag F353, which were, in part, a result of Petitioner's facility building design. Further, I have found that CMS's determination is not clearly erroneous. The CMP amounts that CMS has imposed ($4,000 and $4,500 per day) are at the lower end of the range of immediate jeopardy, which can range from $3,050 up to $10,000 per day. Moreover, as Petitioner was out of compliance with participation requirements continuously during this period, it is not unreasonable that the amount of the CMP was increased $500 per day as a result of the June survey. Accordingly, I sustain the CMPs at the immediate jeopardy level. CMS asserts that given Petitioner's stipulation, Petitioner does not dispute CMS's deficiency findings under Tags F164, 248, 250, 251, 281, 309, 311, 323, 329, 441, 456, 458, 463, 465, 466 and 497 from the April survey and Tags F157, 164, 225, and 516 from the June survey. CMS Br. at 8. Petitioner does not contest that with respect to the non-immediate jeopardy level CMP amounts, the $200 CMP commencing April 8 is unreasonable. However, Petitioner objects to imposition of the $250 CMP imposed by CMS after July 7, 2004, asserting that it should have been found in compliance as of the corrective action date of July 7, 2004, and that it was delay by the State agency that caused it not to be found back in compliance until the date determined after the September re-visit. P. Br. at 56. Petitioner asserts that P. Ex. 4, the State agency's September 21, 2004 letter stating that Petitioner was in compliance with participation requirements effective September 10, 2004, actually shows that Petitioner was found in compliance as of what it asserts is the date specified in its plan of correction. P. Reply Br. at 23. However, the State agency plainly found Petitioner's compliance date to be September 10, 2004 (P. Ex. 4), and Petitioner has not presented evidence on all deficiencies to convince me that it was in compliance prior to September 10, 2004. Moreover, I agree with CMS's discussion in CMS Reply Br. at 64-66, that only initial determinations are subject to my review and that whether or not to accept or reject a plan of correction is not an initial determination or subject to my review. Moreover, whether or when CMS is to conduct a revisit survey is not subject to my review. See CMS Reply Br. at 64-66 and cases cited therein (Hermina Traeye Memorial Nursing Home, DAB No. 1810 (2002); Brier Oak Terrace Care Center, DAB No. 1798 (2001)). With regard to the reasonableness of the non-immediate jeopardy level CMP imposed following the June survey, the CMP was raised after the June survey to $250. $250 is still in the very low end of possible non-immediate jeopardy CMPs, which can range up to $3,000 per day. As Petitioner was out of compliance with participation requirements continuously following the April survey, I do not believe it is unreasonable to raise the dollar amount of the CMP where noncompliance is continuing. Accordingly, I sustain the non-immediate jeopardy level CMPs imposed by CMS. With respect to the DPNA, Petitioner asserts that the remedy cannot be imposed because compliance with all requirements was achieved by July 7, 2004. As I stated above, the State agency did not find Petitioner in compliance until September 10, 2004. Thus, I sustain the DPNA imposed by CMS. IV. CONCLUSION I conclude that Petitioner was out of substantial compliance with participation requirements. I conclude that Petitioner's noncompliance from March 30 through April 7, 2004, and from May 18 through June 4, 2004, constituted immediate jeopardy. I sustain the CMPs imposed by CMS for the periods of both immediate jeopardy and non-immediate jeopardy (totaling $145,000) and the DPNA. |
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| JUDGE | |
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Anne E. Blair Administrative Law Judge |
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| FOOTNOTES | |
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1. CMS originally imposed a CMP of $157,750. However, as CMS concedes in its posthearing brief (CMS Br.) at page 2, n.3, the immediate jeopardy found during the June survey was removed as of June 4, rather than June 7, 2004, as stated in the letter imposing the remedies. Tr. at 13; Petitioner's exhibit (P. Ex.) 2, at 122. CMS noted that this reduces the CMP it proposes imposing on Petitioner to $145,000. 2. Surveyor Novotny-Elmer has described a close call monitor (or alarm) as a "little battery operated device and it has a string, one end of the string has a magnet that it connects to the box, the other end of the string you attach to your clothing . . . if [a resident] get[s] up [from a chair or bed] it [will] disengage from the magnet and an alarm will sound and staff [will be] alerted that [the resident is] trying to get up." Tr. at 557. 3. I note that at CMS Ex. 19, at 11, the falls committee review note regarding a fall on January 3, 2003, states that a close call monitor was to be used for Resident 4 at all times. A close call monitor apparently was on during a fall on January 24, 2003, but "did not attach." The committee noted that they would place a motion detector on the resident. Petitioner did not explain why these interventions were not placed on her care plan or apparently used after these dates. 4. Petitioner asserts that the June survey alleges that Petitioner failed to ensure that Resident A's close call monitor functioned properly, that staff failed to apply the monitor correctly, and that staff failed to respond to alarms in time to prevent injury. Petitioner asserts that the survey findings do not address the monitoring of Resident A's neurological signs after the fall, which CMS is now asserting as a deficiency. P. Br. at 33-34. I will not address Petitioner's treatment of Resident A after the fall as it is not necessary for me to do so to sustain the deficiency citation here. 5. Petitioner asserts that these residents were not cited in support of the immediate jeopardy finding. P. Br. at 42, 43, 45. However, the statement of deficiencies reflects that these residents were cited as examples of immediate jeopardy. CMS Ex. 70, at 41. 6. As I do not find the elopement to be foreseeable, I am not discussing what happened while Resident 122 was outside of the facility. | |