|
Department of Health and Human Services DEPARTMENTAL APPEALS BOARD Civil Remedies Division |
|
| IN THE CASE OF | |
|
Hotel Reed Nursing Center, Petitioner, |
DATE: August 29, 2006 |
|
- v - |
|
|
Centers for Medicare & Medicaid Services.
|
Docket No.C-02-585
Decision No. CR1494 |
| DECISION | |
|
DECISION I sustain the determination
of the Centers for Medicare and Medicaid Services (CMS) to impose a Civil
Money Penalty (CMP) against Hotel Reed Nursing Center, Petitioner, for
failure to comply substantially with federal requirements governing participation
of long- term care facilities in Medicare and State Medicaid programs.
The CMP of $4,000 per day from February 11, 2002 through March 12, 2002
is based on a finding of immediate jeopardy. After the immediate jeopardy
was removed, a CMP of $250 per day was imposed from March 13, 2002 through
April 16, 2002. For the reasons that follow, I uphold a CMP of $3,050
based on a finding of immediate jeopardy and a CMP of $200 thereafter.
I. BACKGROUND This case came before me pursuant to a request for hearing filed by Petitioner on May 25, 2002, in accordance with section 1128(c)(2) of the Social Security Act (Act) and 42 C.F.R. �� 488.408(g) and 498.40. By letter dated February 25, 2002, CMS informed Petitioner that, based on a survey conducted between February 12 and February 15, 2002, it was imposing selected remedies due to Petitioner's failure to be in substantial compliance with the applicable federal requirements for skilled nursing facilities. The survey cited numerous deficiencies, three of which were determined to pose immediate jeopardy to resident health and safety. CMS imposed the following remedies:
CMS conducted a revisit survey between March 11, 2002 and March 13, 2002. It determined that Petitioner was still not in substantial compliance but had removed immediate jeopardy as of March 13, 2002. By letter dated March 26, 2002, CMS notified Petitioner of the following revised remedies:
A hearing was held on January 11 and 12, 2006. (3) Five deficiencies were at issue:
At the hearing, CMS offered 29 exhibits, identified as CMS Exs. 1-29. As a result of Petitioner objections and deletion of some deficiency Tags, CMS withdrew certain exhibits. Thus, I received the following CMS exhibits into evidence: CMS Exs. 1-3, 7-12, 14, 19, 21, 23-24, 27, and 29. Petitioner offered 86 exhibits, identified as P. Exs. 1-86. Pursuant to CMS objections and deletion of some of the deficiency Tags, Petitioner also withdrew certain exhibits. Consequently, I received the following Petitioner's exhibits into evidence: 1-15, 17-20, 23-28, 31, 35-36, 38-56, 58-61, 63, 64, 66-68, 70, 73, 75-80, 82-86. I rejected Petitioner's exhibit 37. Subsequent to the hearing, the parties submitted post-hearing briefs (CMS Br. And P. Br.) And response briefs (CMS Response and P. Response). II. APPLICABLE LAW AND REGULATIONS Petitioner is considered a long-term care facility under the Act and regulations promulgated by the Secretary of Health and Human Services (Secretary). The statutory requirements for participation by a long-term care facility are found at sections 1819 and 1919 of the Act, and at Title 42 C.F.R. Part 483. Sections 1819 and 1919 of the Act invest the Secretary with authority to impose CMPs and denial of payment for new admissions against a long-term care facility for failure to comply substantially with 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. Part 483 of 42 C.F.R. of provides that facilities which participate in Medicare may be surveyed on behalf of CMS by State survey agencies in order to ascertain whether the facilities are complying substantially with 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 CMP against a long term care facility where a State survey agency ascertains that the facility is not complying substantially with participation requirements. 42 C.F.R. �� 488.406, 488.408, 488.430. The CMP may start accruing as early as the date that the facility was first out of compliance until the date substantial compliance is achieved or the provider agreement is terminated. The regulations specify that a 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). 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)(1)(ii). The regulations define the term "substantial compliance" to mean:
42 C.F.R. � 488.301. "Immediate jeopardy" is defined to mean:
Id. In determining the amount of the CMP, the following factors, specified at 42 C.F.R.� 488.438(f), must be considered:
In a CMP case, CMS must make a prima facie case that the facility has failed to comply substantially with 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. Dept. of Health and Human Services, No. 98-3789 (D.N.J. May 13, 1999). The Act and regulations make a hearing available before an administrative law judge (ALJ) to a long term 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, CR 65 (1990), aff'd 941 F2d. 678 (8th Cir. 1991). III. ISSUES A. Whether the facility was complying substantially with federal participation requirements on the dates CMS determined to impose a CMP. B. Whether CMS's determination of immediate jeopardy was clearly erroneous. C. Whether the amount of the penalty imposed by CMS is reasonable, if noncompliance is established. IV. FINDINGS AND DISCUSSION The findings of fact and conclusions of law noted below in italics are followed by a discussion of each finding.
The applicable regulation at 42 C.F.R. � 483.13(b) provides that the resident has the right to be free from verbal, sexual, physical, and mental abuse, corporal punishment, and involuntary seclusion. "Abuse" is "the willful infliction of injury, unreasonable confinement, intimidation, or punishment with resulting harm, pain, or mental anguish." 42 C.F.R. � 488.301. Surveyor findings for Tag F-223 as reflected in the Statement of Deficiencies (SOD) (CMS Ex. 7, at 3-5). Resident 10 (4) The surveyor findings in the SOD stated, in relevant part:
The surveyors also reviewed Resident Council Minutes for three of six months between August 2001 and January 2002. The minutes revealed that residents had concerns about Petitioner's nursing staff. For August 2001, the minutes revealed that residents were unable to find aides when needed. For January 2002, the minutes revealed that certified nurse assistants (CNAs) were harsh, rude, and unwilling or reluctant to help residents. Discussion Petitioner contends that the surveyor who observed the medication nurse mischaracterized the nurse's conduct as abuse. P. Br. at 6-7. Petitioner argues that the nurse was trying to ensure Resident 10's safety by redirecting the resident away from the medication cart. P. Br. at 9; P. Response at 16-17. Thus, the nurse did not willfully inflict emotional injury. P. Br. at 8-9. Petitioner adds that the surveyors' notes for the February 12, 2002 group interview revealed that residents had "no problem" with the staff's treatment of them, contrary to the surveyors' findings in the SOD. P. Br. at 7; CMS Ex. 21, at 6. CMS contends that the nurse's conduct was verbal abuse which resulted in actual harm to Resident 10. CMS Br. at 23. CMS argues that Petitioner has not provided evidence that it appropriately addressed residents' concerns about staff treatment and has not provided documentation or testimony to contradict or refute the surveyor's observation of the incident with Resident 10. Id. at 23-24. I agree. Surveyor Joycelyn Pevey testified that the medication nurse spoke harshly and "louder than normal" when she told Resident 10 to go to her room. Transcript (Tr.) at 11, 13, 48. In response, the resident covered her face with her hands and backed up against the wall. Id. at 13. Later that same day, Resident 10 started crying and wringing her hands when the surveyors discussed dignity and respect issues during a group interview with the residents. (5) Id. at 14, 138. Residents have a right to be free from caregivers who inflict physical or mental harm. Dawson Manor, DAB No. CR1224 (2004). A nurse may redirect a resident but must do so in a manner that respects the resident's rights. That did not occur here. I find that the medication nurse's behavior was willful and resulted in mental anguish. The record reflects that the medication nurse was willfully harsh and dismissive of Resident 10's emotions when she told the resident, "Go to your room, I'm busy now." The nurse's behavior was "willful" in that she deliberately tried to modify Resident 10's behavior. See Britthaven, DAB No. 2018 (2006). Petitioner correctly observes that the nurse's remarks contain no profanity or derogatory names. P. Br. at 6. Nonetheless, the content of the nurse's remarks is not decisive. Resident 10 suffered from depression, paranoia, and delusions. CMS Ex. 9. The medication nurse should have foreseen that her demeanor and the manner in which she spoke would have been intimidating to someone with Resident 10's mental history. Resident 10 was so upset that she backed away from the nurse in fright. She was noticeably distressed to the surveyor, and, as I stated above, Petitioner has not addressed this observation. I note that Petitioner's abuse policy includes provisions that individuals accused of abuse will be questioned privately about the incident and that their statements will be documented and signed. CMS Ex. 1, at 119-121. Furthermore, the policy calls for a resident interview, monitoring of the resident's physical and emotional state, and interventions with psychiatric consultants, if appropriate. Id. Although Petitioner conducted in-services with its staff regarding abuse and residents' rights (see, e.g., CMS Ex. 1, at 88; P. Ex. 83, at 10), it has provided no evidence that it addressed Resident 10's emotional needs after it learned of the incident or that it interviewed the medication nurse. I also note that the incident with Resident 10 occurred despite recent resident complaints about staff treatment and training on resident rights. Petitioner, for example, held an in-service on resident rights on November 14, 2001. CMS Ex. 1, at 102. Nonetheless, the January 7, 2002 Resident Council Minutes, a little over a month prior to the survey, indicated that residents complained of some nurses being harsh and rude. CMS Ex. 24, at 8. In Petitioner's "Action Summary" in response to these complaints, it noted that it spoke with each nurse individually about this behavior and that "everyone has become more aware of their own responses to residents/others" and "nurses are more aware of monitoring for this." Id. at 11. These efforts were evidently ineffective, as the incident with Resident 10 illustrates. I conclude that CMS has established a prima facie case of abuse with respect to Resident 10. Petitioner has not overcome that showing.
Section 483.13(c)(2) of 42 C.F.R. provides that all alleged violations of mistreatment, neglect, or abuse, including injuries of unknown source, must be immediately reported to the facility administrator and to other officials in accordance with State law, including the State survey and certification agency. Section 483.13(c)(3) of 42 C.F.R. provides that the facility must have evidence that all violations are thoroughly investigated, and must prevent further potential abuse while the investigation is in progress. Section 483.13(c)(4) of 42 C.F.R. provides that the results of all investigations must be reported to the administrator or designated representative and to other officials in accordance with State law, including the State survey and certification agency within five working days of the incident. Surveyor findings for Tag F-225 as reflected in the SOD (CMS Ex. 7, at 5-7). Resident 3 The surveyor findings in the SOD stated, in relevant part:
The surveyors also reviewed Petitioner's self-reported incidents at the State agency and determined that the aforementioned incidents with respect to Resident 3 were not reported to the State agency. Discussion
Resident 3 was an 85-year old female admitted to Petitioner's facility on February 8, 2001. CMS Ex. 27, at 11. Social Services progress notes indicate that she was confused at times and had long and short-term memory problems. Id. at 59-61. CMS bases its allegations under this tag on two recorded incidents of injury to Resident 3: one on August 1, 2001 and another on August 10, 2001. On August 1, 2001, Petitioner's staff discovered bruises under Resident 3's left arm. Id. at 9. The resident complained of pain when she breathed. Id. Petitioner sent the resident to the hospital and discovered that she had two broken ribs. Id. at 9 and 63. On August 10, 2001, Petitioner discovered additional bruises on Resident 3: dark purple bruises on her left buttock, two on her right leg, and one on her left leg. CMS Ex. 27, at 10. An incident report dated that same day indicates that Resident 3 denied being hit and that she stated she received her bruises when she fell. Id. at 8. Petitioner argues that Resident 3 obtained these injuries from a fall that occurred on July 30, 2001. P. Br. at 10. Nurses' notes for that day indicate that Resident 3 fell as she was getting up from her wheelchair. CMS Ex. 27, at 6. The notes document three small tears to the resident's left elbow, which she struck as she fell. Id. An accident report for Resident 3 dated July 31, 2001 documents a similar incident. (6) Id. at 5. Like the nurses' notes, the report indicates that the resident received three skin tears when she struck her elbow. Id. Petitioner contends that it reasonably concluded Resident 3's injuries were the result of her July 30 fall and, therefore, the source of the injuries was not "unknown." P. Br. at 10-11. Petitioner argues that it was not required to conduct a more thorough investigation of Resident 3's bruises or broken ribs because it "knew" that the July 30 fall caused those injuries. Id.; Tr. at 236. The Director of Nursing (DON), in fact, testified that the August 10 incident report indicated that some investigation was done and that there was no need to interview other individuals or look at other records. Tr. at 239-40, 253. According to her testimony, it is usual that bruises on the elderly might not appear for some time because their skin is fragile. Tr. at 259-60. She noted that Resident 3's bruises might have taken such a long time to develop because the Resident was a heavy individual who had recently lost weight. Id. Petitioner assumed that the July 30 fall caused Resident 3's bruises and broken ribs. Such conclusory assumptions are an inadequate substitute for the regulation's thorough investigation requirement. A thorough investigation must include more than asking a resident if she knows how she received her injuries. This is especially true when the resident suffers from confusion and memory problems, such as Resident 3. I note that Resident 3's statements about the incident are unclear, particularly regarding the August 10 injuries. The incident report dated August 10, 2001 indicates that the Resident said she received the bruises when she fell; the nurses' notes for the same day, however, indicate that the Resident did not know how she received the bruises. CMS Ex. 27, at 8, 10. Even the DON testified that the facility would not rely solely on Resident 3's inconclusive statements. In particular, she testified that nurses' notes and an accident log should have documented additional information from witnesses and doctors who may have examined the Resident. Tr. at 250. Petitioner could not provide this documentation. Petitioner also fails to provide any clinical evidence to support its assertions that bruises take a substantial amount of time to develop in elderly patients. These assertions, moreover, are inadequate in light of the Departmental Appeals Board's recent statement that "assumptions based solely on a resident's characteristics . . . do not constitute knowledge of the cause of an injury that justifies a failure to investigate." Britthaven, DAB No. 2018 (2006). CMS has established a prima facie case that Petitioner failed to investigate Resident 3's injuries of unknown source. Petitioner has not overcome that showing.
CMS argues that Petitioner should have reported Resident 3's injuries to the Mississippi Department of Health. CMS Br. at 25. Petitioner again contends that it knew the cause of Resident 3's injuries, and therefore, did not need to report them. See Tr. at 253. Petitioner, however, has a duty to submit a report to the proper officials, regardless of its opinion that no facility staff or other persons have engaged in wrongdoing. It has been established by the Board that a facility is subject to sanctions for failure to timely and properly investigate whether or not a charge of abuse is substantiated. Vandalia Park, DAB No. 1940 (2004). A facility has a duty to report the results of investigations of abuse of injuries of unknown origin, regardless of the findings, even if abuse was not suspected. It is beyond question that the regulations require that not some, but that all injuries of unknown source be reported immediately to the State survey agency. 42 C.F.R. 483.13(c)(2). The regulation leaves no room for discretion not to report, even if the facility does not suspect abuse. Petitioner did not report Resident 3's injuries of unknown origin. Even the DON recognized that such injuries are reportable. Tr at 244. I conclude that CMS has established a prima facie case that Petitioner failed to report Resident 3's injuries. Petitioner has not overcome that showing. Resident 13 The surveyor findings in the SOD stated, in relevant part:
The surveyors also reviewed Petitioner's self-reported incidents at the State agency and determined that the aforementioned incident was not reported to the State agency. Discussion Resident 13 was admitted to Petitioner's facility on August 6, 2001. CMS Ex. 11, at 11. The next day, the Resident abruptly left the facility during dinner and eluded nurses' attempts to bring him back inside. Id. at 10. Nurses' notes indicate that the Resident's family members came to the facility within a few minutes of the incident, apparently because the Resident called them. The Resident's brother-in-law agreed to sign the resident out of the facility. Id. at 9. The brother-in-law went in search of the Resident and found him on Highway 90 in front a business. The Resident refused to get inside the brother-in-law's vehicle or to return to the facility. Id. CMS argues that Petitioner's lack of a supervision and monitoring system allowed Resident 13 to leave the facility unsupervised and that this "elopement" should have been reported to the State agency. CMS Br. at 26-27. I disagree. The applicable regulation under this tag requires Petitioner to investigate and report alleged violations of mistreatment, neglect, or abuse, including injuries of unknown source. CMS does not allege any violations of mistreatment, neglect, or abuse with respect to Resident 13. Petitioner responded appropriately to Resident 13's unexpected departure. It cooperated with the family to find Resident 13 and to bring him back to a safe location. It also clearly documented the incident in a discharge plan dated the same day the Resident left. CMS Ex. 11, at 3. The discharge plan indicated that the resident "clearly did not want to be in the facility" and that he would not return long enough for a discharge order. Id. The Resident was discharged to his brother-in-law's home. Id. CMS did not establish a prima facie case with respect to Resident 13.
The applicable regulation at 42 C.F.R. � 483.24(h)(2) entitled "Quality of Care" provides that the facility must ensure that each resident receives adequate supervision and assistance devices to prevent accidents. Surveyor findings for Tag F-324 as reflected in the SOD (CMS Ex. 7, at 13-26). CMS alleges deficiencies with respect to five residents: Resident 3, Resident 9, Resident 10, Resident 12, and Resident 14. For the reasons stated in the discussion below, I find that CMS has established a prima facie case under F-324 with respect to Residents 3, 9, 10, and 14. I find that CMS did not establish a prima facie case with respect to Resident 12. Resident 3 CMS's allegations with respect to Resident 3 under Tag F-324 are based on the same incidents of bruising and injury described under Tag F-225. CMS Ex. 7, at 6, 24-25. I have already elaborated on those findings in my discussion of Tag F-225. See p. 8-9, supra. Discussion Petitioner argues again that it knew the source of Resident 3's injuries and did not need to continue a more thorough investigation. P. Br. at 25. It adds that bruising is common in nursing facilities because of the condition of the residents' skin. Id. As I elaborated under my discussion of Tag F-225, I have rejected Petitioner's argument. Without an adequate investigation into the cause of these injuries, the facility could not make appropriate adjustments in its care of Resident 3 to prevent future incidents. Petitioner has not overcome CMS's prima facie showing with respect to Resident 3. Resident 9 The minimum data set (MDS) dated August 29, 2001 coded Resident 9 as having modified independence cognitive skills for daily decision-making. CMS Ex. 7, at 22. "Modified independence" means the Resident experienced some difficulty in new situations only. Id. A wandering and elopement risk assessment dated January 14, 2002, indicated that Resident 9 had depression and altered mental status secondary to End Stage Renal Disease. Id. The same assessment documented that Resident 9 had a history of wandering and leaving the facility without signing herself out. Id. Nurses' notes dated November 19, 2001, revealed that the Resident was found in the medication room with a pack of cigarettes in her pocket. CMS Ex. 7, at 23. The staff could not determine how the Resident was able to get inside the medication room. Id. On December 14, 2001, a nurse found multiple items in Resident 9's room: three pills of Darvocet-N 100 (one on top of a candy cup and two on top of a night stand wrapped in aluminum foil); dressing scissors; and an entire box of disposable razors. CMS Ex. 7, at 23. The DON and Social Services had a conference with Resident 9 about these items, during which the Resident stated, "I just got to do something, I get bored." Id. The resident "was instructed not to go behind the nurse's station, [to] stay out of medication carts and to please not take anything that does not belong to [her] . . . ." Id. Discussion Petitioner argues that the particular incidents described above do not constitute a failure to supervise because it is more difficult to supervise residents who hoard items, such as Resident 9, and because the items found on December 14, 2001 were not dangerous to the Resident. P. Br. at 23-24. Petitioner's witness, Dr. Roy Barnes, testified that hoarding amongst nursing facilities' residents is common and difficult to treat with a behavioral plan alone. Tr. at 202-03. The DON testified similarly, noting that Petitioner care-planned Resident 9's hoarding behavior to prevent her from bringing anything dangerous into her room. Tr. at 293, 295. The DON also testified that the items found in Resident 9's room (e.g., seizure precaution stickers, rolls of mefix (adhesive), alcohol wipes, and scotch tape dispensers) were not, in fact, dangerous to the Resident. Tr. at 293; CMS Ex. 29, at 20. She explained that some residents receive safety razors if they are independent and able to shave themselves. Tr. at 294. Petitioner's arguments fail to adequately address how Resident 9 obtained a Schedule IV Narcotic controlled substance and stored it in her room. According to Petitioner's own policy for the administration of controlled drugs, these drugs are to be strictly controlled and counted at the end of each shift. CMS Ex. 3, at 7-8. Furthermore, the policy requires the maintenance of individual narcotic records, which the nurse signs after she or he administers the controlled drug. Id. The nurses who administer these medications are responsible for ensuring that the residents take their medication. Tr. at 178. This task is especially important in the nursing facility environment, where residents often do not swallow their medicine. Tr. at 178. Without an explanation to the contrary, I infer that Petitioner did not fulfill its responsibility to ensure that Resident 9 ingested her medication. If it had provided this necessary supervision and oversight, Resident 9 would not have been able to keep the Darvocet-N in her room. Furthermore, I note that the resident had been known to enter the medication room without detection by staff. CMS Ex. 7, at 23. Petitioner, moreover, has provided no evidence that it responded effectively to Resident 9's behavior, even after the December 14, 2001 incident. Progress notes for Resident 9 between January 2002 and February 2002 indicate that Petitioner's intervention on December 14, 2001 (i.e., instructing Resident 9 not to go behind the nurse's station or take items that do not belong to her) was patently inadequate. Despite this intervention, Resident 9 continued to roam, "pilfer," and hoard items. CMS Ex. 29, at 15, 91, 93-94, 97, 99-100. None of the progress notes indicate any reassessment of Resident 9's care plan or interventions to control her behavior. Id. Petitioner has not overcome CMS's prima facie showing with respect to Resident 9. Resident 10 The January 11, 2002 MDS coded Resident 10 as having long-term memory problems and moderately impaired cognitive skills for daily decision making. CMS Ex. 7, at 14-15. "Moderately impaired cognitive skills" means the Resident's decisions were poor, and she required cues and supervision. Id. The MDS also coded the Resident as a wanderer with socially inappropriate/disruptive behavioral symptoms. Id. at 15, 18. The MDS coded Resident 10 with wandering behavior, meaning that she moved with no rational purpose, seemingly oblivious to needs or safety. Id. at 18. The MDS coded the Resident "1-1" meaning that the behavior occurred one to three days during the last seven days, and that the behavior was not easily altered. Id. The MDS also indicated that there had been no change in her behavior over the past ninety days. Id. Nurses' notes documented multiple incidents of wandering behavior between September 2001 and February 2002. CMS Ex. 7, at 17-18. The notes describe the resident in various ways: "up and about wandering up and down hall . . . ., " "continues to wander around," "resident with increasingly odd behaviors . . .wandering," "up and about all night wandering," "wandering aimlessly about the second floor," and "ambulating aimlessly about the facility." Id. Despite Resident 10's wandering behavior, Petitioner did not implement its "Missing/Wandering Resident" policy. CMS Ex. 7, at 16. The policy included procedures such as developing a monitoring schedule to ensure the Resident's safety, creating a plan for managing her wandering behavior, documenting the Resident's clothing in the nurses' notes, and requiring the Resident to wear a bracelet with the facility's name. Id. at 16-17. Nurses' notes also documented two psychotic episodes in January and February of 2002. CMS Ex. 7, at 18-20. On January 11, 2002, the Resident told Petitioner's staff that she witnessed a murder on the nearby pier. Id. at 19. The Resident told staff that she was at the pier when she saw a man and woman fighting. Id. The Resident said that she saw the woman go over the railing and felt as though a dog ate the woman's remains. Id. at 19-20. The Resident stated that a bloody towel was in a trash can. Id. at 20. She said that she went to the pier because she "felt like something was going to happen." Id. On February 11, 2002, the Resident called 911 and reported that "the people are lying all over the floors and no nurses are here. I am being locked up in my room." CMS Ex. 7, at 18. Petitioner sent the Resident to the Emergency Room for an evaluation in response to this incident. Id. The Resident refused admission and returned to the Petitioner's facility on February 12, 2002. Id. at 19. In the afternoon of that same day, a surveyor observed the Resident on the opposite side of North Beach Boulevard, a street approximately 265 feet from the facility. CMS Ex. 7, at 15. The surveyor observed a car slow down near the Resident and then continue on. Id. The Administrator and an activity assistant left the facility's patio area to retrieve the Resident. Id. Nurses' notes also documented several instances when Resident 10 was non-compliant with Petitioner's smoking policy. CMS Ex. 7, at 20. Petitioner's staff found the Resident outside the facility on three occasions: on November 17, 2001 the Resident hid behind the building to smoke; on November 28, 2001 the Resident hid in the bushes by the parking lot with cigarettes and a lighter; and on January 8, 2002 the Resident was smoking on the back steps of the facility, in violation of the smoking policy. Id. In February 2002, Petitioner revoked Resident 10's privilege of being allowed to sign out and go to the pier because of her continued non-compliance with the smoking rules. Id. Discussion Petitioner urges that Resident 10 was competent to sign herself out and was not a danger to herself, despite her general diagnosis. See, e.g., Tr. at 195, 219, 260, 325. In particular, Petitioner argues that Resident 10 was not a wanderer. Petitioner also argues that it allowed the Resident to smoke near the pier as an appropriate intervention to control her smoking obsession. P. Br. at 17-22. The record does not support Petitioner's arguments. Resident 10 was admitted to Petitioner's facility on May 2, 2000 with a diagnosis that included depression, psychosis, and paranoid schizophrenia. CMS Ex. 9, at 1. The record confirms that Resident 10 exhibited deteriorated cognitive and mental status, periods of altered perception, and worsening behaviors in the months and weeks prior to the February survey. Id. at 6. Doctor's progress notes for May, July, September, and October of 2001 noted the Resident's continued depression, anxiety, and agitation. Id. at 43-46. Nurses' notes dated January 16, 2002 indicated that she exhibited "increasingly odd behaviors," and doctor's notes dated February 7, 2002 noted that she experienced "episodes of euphoria and delusions." Id. at 21, 61. As noted above in the surveyors' findings and the nurses' notes, the Resident's delusions were particularly acute in January and February of 2002, when she experienced two vivid psychotic episodes. CMS Ex. 7, at 18-20; CMS Ex. 9, at 59-60, 62-63. Petitioner's documentation reveals that it was concerned about Resident 10's psychological status. The facility was so concerned that it sent Resident 10 to the hospital for a psychiatric evaluation following her February 2002 psychotic episode. CMS Ex. 9, at 62-63. Furthermore, a surveyor testified that she saw Petitioner's staff attempt to coax Resident 10 back into the building when they saw her outside on February 12, 2002. Tr. at 22. The staff's responses to Resident 10's behavior call into question the DON's testimony that Petitioner was not worried about the Resident crossing the street. Tr. at 261. The record establishes that Petitioner did not adequately monitor Resident 10's whereabouts, despite its knowledge of her deteriorating status. She was discovered outside the facility on numerous occasions. See, e.g., CMS Ex. 9, at 57-58.; P. Ex. 31, at 201. She experienced a psychotic episode while on the nearby pier, which did not have railings in certain locations to protect individuals from falling into the water. CMS Ex. 9, at 20. It is fortuitous that Resident 10 was not injured on these occasions. Furthermore, Petitioner's argument regarding Resident 10's status as a wanderer is unpersuasive. The DON testified that the nurse who completed the January MDS was new and in training at the time. Tr. at 270. She testified that she corrected this MDS to indicate that Resident 10 did not exhibit wandering behavior. Tr. at 271; P. Ex. 79, at 17. The allegedly corrected MDS, however, does not indicate the date of the correction. P. Ex. 79, at 16-20. Furthermore, the DON's testimony about the corrected MDS has been inconsistent in various proceedings. In a previous informal dispute resolution proceeding before the Mississippi State Department of Health, she indicated that she corrected the MDS after the survey. P. Ex. 64, at 77-79. Such a correction is too late. Finally, I do not accept Petitioner's contention that its staff misused the term "wandering." See Tr. at 194-95. I must attribute knowledge to the facility regarding this term. Petitioner's nursing staff, in particular, can be expected to know the appropriate definition of "wandering" and to appropriately identify "wandering" behavior. CMS has established a prima facie case with respect to Resident 10. Petitioner has not overcome that showing. Resident 12 The November 5, 2001 MDS coded Resident 12 as having moderately impaired cognitive skills for decision making (moderately impaired meaning decision poor; cues/supervision required). CMS Ex. 7, at 23. On November 11, 2001, the Resident would not respond to a nurse's questioning. Id. The Resident nodded her head when the nurse asked her if she had "taken anything." Id. In response, facility staff contacted the Resident's doctor and reported her symptoms. Id. As staff assisted the Resident to the bathroom, a bottle with two different types of pills fell out of the Resident's dress. Id. The Resident indicated to staff that more substances were on her dresser: a bottle of "Emetrol" and a bottle labeled "Vitamin B6" that was half-filled with Vicodin, a schedule III narcotic drug for pain. Id. at 23-24. The Resident responded, "yes," when nurses asked her if she had taken any medication. Id. at 24. Nurses again contacted the Resident's doctor, who ordered a urine and blood screen test. Id. Petitioner sent the Resident to the emergency room to evaluate her for suspected drug use. CMS Ex. 7, at 24. Petitioner was concerned that she received illicit substances while out on pass, largely because the Resident had similar episodes of lethargy and confusion upon returning from pass in the past. Id. The Resident was admitted to the hospital on November 6, 2001. Id. She tested positive for benzodiazepines. Id. The Resident returned to the facility on November 13, 2001. Id. Discussion CMS argues that Petitioner should have been concerned about what substances Resident 12 may have taken, where she may have received those substances, and the potential harm those substances may have caused. CMS Br. at 18. In particular, the surveyors based this deficiency on their concern about how Resident 12 received the medications. Tr. at 187. CMS's allegations are insufficient to establish a prima facie case with respect to Resident 12. The surveyors testified that Resident 12 could have received the medications while she was out on pass and that they did not know if that was the case. Tr. at 187. They further conceded that Petitioner did not do anything wrong if the Resident received the medications while on pass. Id. The surveyors assumed Petitioner was at fault but can point to nothing in the record to substantiate their assumptions. In fact, the record reflects that Petitioner did everything that CMS argues it should have done: nurses responded immediately to the Resident's needs, contacted the Resident's doctor, and investigated the Resident's condition. CMS Ex. 10, at 5-8. Without more than vague arguments and assumptions, CMS does not fulfill its burden under this tag. Resident 14 The MDS dated November 6, 2001 coded Resident 14 as having modified independence cognitive skills for daily decision making (modified independence meaning some difficulty in new situations only). CMS Ex. 7, at 21. The "MDS Chart Review Summary" for the period October 31, 2001 to November 6, 2001 revealed that the Resident was oriented but had memory lapses at times. Id. On January 5, 2002, an activity aide observed Resident 14 drinking from a liquor bottle while returning from out on pass. CMS Ex. 7, at 21-22. The Resident became verbally abusive when the activity aide questioned him. CMS Ex. 7, at 22. Staff reported the incident to the Administrator and searched the grounds outside the facility for a liquor bottle. Id. The resident stated, "I hid my bottle across the road; you ain't gonna find it." Id. As staff went to search for the liquor bottle, Resident 14 again left the facility. CMS Ex. 7, at 22. Nurses' notes documented that he was observed walking down the sidewalk with a "staggering gait." Id. At this point, the Resident was "away without leave" (AWOL). Id. One of Petitioner's staff returned the Resident to the facility by car. Id. Review of Petitioner's "Release of Responsibility for Leave of Absence" forms revealed that Resident 14 signed out 35 of 44 days from January 1, 2002 to February 13, 2002. CMS Ex. 7, at 22. The forms did not document the date and time of departure, the date and time of return, or the date and time of the nurse's signature upon the Resident's return to the facility. Id. Discussion Resident 14 was admitted to Petitioner's facility on February 27, 2001, with a diagnosis of alcohol abuse. CMS Ex. 12, at 1, 14. Petitioner urges that Resident 14 was competent to sign himself out and had the right to go where he wanted and to do as he pleased. P. Br. at 22. Petitioner also argues that this one occurrence does not establish a failure to supervise. Id. at 22-23. I disagree with Petitioner's contentions. The record reflects that Petitioner's sign-in/sign-out sheet was haphazardly completed for most residents. CMS Ex. 2. With respect to Resident 14, 35 out of 44 entries were incomplete. Id.; Tr. at 143-44. The sign-in/sign-out sheets reveal that Petitioner did not know when its residents left the facility or even if they returned. Id. Such a loosely enforced supervision system is inadequate, especially with respect to a resident with a known history of alcohol abuse, such as Resident 14. Furthermore, Petitioner's staff did not supervise Resident 14 when it searched the area for the Resident's liquor bottle. CMS Ex. 12, at 9. The visibly intoxicated Resident was able to leave the facility unsupervised during a time when he needed additional monitoring. Id. CMS has established a prima facie case with respect to Resident 14. Petitioner has not overcome that showing.
The applicable regulations require that Petitioner provide services by sufficient numbers of certain types of personnel on a 24-hour basis to provide nursing care to all residents in accordance with resident care plans as specified in the regulations. 42 C.F.R. � 483.30(a)(1) and (2). Surveyor findings as reflected in the SOD (CMS Ex. 7, at 26-27). Based on observations, staff interviews, and record reviews, the surveyors determined that Petitioner failed to provide and utilize nursing personnel effectively to provide adequate monitoring to prevent accidents and injuries to residents. Discussion CMS substantiates its findings under Tag F-353 by cross-referencing the violations under Tag F-324. CMS Br. at 21; CMS Ex. 7, at 27. Petitioner argues that CMS cannot rely solely on the mere cross-referencing of previously cited tags to establish its prima facie case. P. Br. at 27-30. I agree. As I stated in Britthaven, DAB No. CR1259 (2004), the presence of deficiencies may be indicative of an insufficient number of nursing staff, but it is necessary to show that the occurrence of those deficiencies is, in some way, linked to inadequate staffing. See also Life Care Center of Hendersonville, DAB No. CR542 (1998). CMS may, in fact, establish a prima facie case of inadequate staffing even in the absence of any other cited deficiency. Britthaven, DAB No. CR1259. In this case, CMS has made no attempt to establish a nexus between the deficiencies in Tag F-324 and an insufficient number of staff in Petitioner's facility. Therefore, I conclude that CMS has not established a prima facie case under 42 C.F.R. � 483.30(a).
Surveyor findings as reflected in the SOD (CMS Ex. 7, at 31-32). Based on observations, interviews, and record reviews, it was determined that Petitioner:
The surveyor findings cross-reference violations under Tag F-324 and Tag F-353. Discussion Petitioner argues that CMS has not established a nexus between the facility's alleged non-compliance and the manner in which the facility was administered. P. Br. at 31. Petitioner is correct that evidence of non-compliance is not demonstrative, per se, of failure to comply with administration requirements. Britthaven, DAB No. CR1259. Nonetheless, I find that CMS has established the necessary nexus between the deficiencies under Tags F-223, 225, and 324 and Petitioner's non-compliance with administration requirements. (7) Petitioner failed to investigate injuries of unknown origin. It could not produce evidence of its investigations, even though the DON testified that such documentation should have occurred. Nor did Petitioner effectively and efficiently administer its resources to provide adequate supervision to its residents. It did not monitor the whereabouts of residents who suffered from emotional instability or chemical dependency. And, it did not appropriately administer controlled substances. These deficiencies denote the absence of aggressive administration of facility resources to provide for the well-being of residents. I find that CMS established a prima facie case under Tag F-490. Petitioner has not overcome that showing.
In view of the foregoing discussion, it is my finding that CMS has established a prima facie case that Petitioner was not in substantial compliance with federal requirements for skilled nursing facilities participating in the Medicare/Medicaid programs. Petitioner has not overcome CMS's showing by a preponderance of the evidence. Furthermore, I sustain CMS's finding that Petitioner's level of non-compliance constitutes immediate jeopardy under Tag F-324 (8) and under Tag F-490. The regulations define immediate jeopardy as a situation in which a provider's non-compliance 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. A finding of immediate jeopardy does not require "a finding of present harm, but also encompasses a situation that is [likely to cause] harm." Britthaven, DAB No. CR1259 (quoting Hermina Traeye Memorial Nursing Home, DAB No. 1810 (2002)). CMS's determination of immediate jeopardy must be upheld unless it is clearly erroneous. 42 C.F.R. � 498.60(c)(2). The burden rests on the provider to prove that CMS's determination of immediate jeopardy is clearly erroneous. Petitioner has not met that burden here. Petitioner contends that the immediate jeopardy Tags were not warranted because it adequately supervised its residents, and none of the residents were in situations that could cause serious injury, harm, or death. P. Response at 21. As I stated above, however, I have rejected Petitioner's argument that it provided adequate supervision to its residents. I also reject Petitioner's argument that its non-compliance did not place residents in dangerous situations. The record reflects that Petitioner's non-compliance exposed Residents 3, 9, 10, and 14 to the likelihood of suffering serious injury, harm, impairment, or death. Petitioner failed to investigate and report Resident 3's multiple injuries and did nothing to determine how it could prevent similar injuries from occurring again. Petitioner's failure to administer its controlled drugs responsibly enabled Resident 9 to keep a Schedule IV Narcotic in her room without supervision. At any time, the Resident could have misused this controlled substance to her harm. Petitioner allowed Resident 10 to leave the facility unsupervised even though it knew she suffered from severe psychosis and periods of altered perception. As I stated above in my discussion of Tag F-324, it is fortuitous that the Resident was not injured during her time on the nearby pier. Finally, Petitioner did not adequately monitor Resident 14's whereabouts and even allowed him to leave the facility while he was intoxicated. Thus, contrary to Petitioner's assertions, these residents were in situations that could cause serious injury, harm, or death. Petitioner should have foreseen that a failure to provide adequate supervision to residents affected by such factors as diminished cognition, chemical dependency, and mental distortions of reality was likely to cause serious injury, harm, impairment, or death.
In view of the foregoing, I conclude that Petitioner has not shown that a finding of immediate jeopardy was clearly erroneous. I further conclude that, in view of CMS's failure to substantiate all the of the cited immediate jeopardy deficiencies, a reduction of the penalty to $3,050 per day from February 11, 2002 through March 12, 2002 is reasonable. Furthermore, I infer that CMS considered all of the cited violations in arriving at the imposition of a $4,000 per day CMP. CMS, however, has not advanced evidence to show that the remaining proven deficiencies are sufficient to justify the penalty originally imposed. There is no issue as to the reasonableness of the immediate jeopardy CMP inasmuch as $3,050 per day is the minimum monetary penalty permitted by the regulations. 42 C.F.R. � 488.438(a)(i). I also conclude that CMS satisfied the criteria for imposing remedies at the less than immediate jeopardy level from March 13, 2002 through April 16, 2002. CMS established a prima facie case that Petitioner was not complying substantially with the participation requirements as of March 13, 2002, and Petitioner did not rebut that case. Petitioner, moreover, did not show it had eliminated the non-compliance on any date prior to April 16, 2002. However, I also find that CMS's failure to substantiate all of the less than immediate jeopardy Tags justifies a reduction in the CMP imposed from $250 to $200 per day. Moreover, CMS has not shown that the penalty originally imposed is reasonable for the remaining established deficiencies. V. CONCLUSION I conclude that CMS correctly determined that Petitioner was not complying with federal requirements governing participation of long-term care facilities in Medicare and State Medicaid programs at the immediate jeopardy level, beginning February 11, 2002 through March 12, 2002, and that the imposition of a CMP of a $3,050 per day is reasonable. Additionally, I conclude that a CMP of $200 per day is reasonable for deficiencies at less than the immediate jeopardy level based on Petitioner's non-compliance beginning March 13, 2002 and ending April 16, 2002. |
|
| JUDGE | |
|
Jos� A. Anglada Administrative Law Judge |
|
| FOOTNOTES | |
|
1. In April 2002, CMS conducted an additional revisit survey, which determined that Petitioner achieved substantial compliance with applicable federal requirements effective April 17, 2002. 2. The DPNA effective February 27, 2002 remained in effect. 3. Petitioner elected to proceed with its appeal of the cited deficiencies even though it ceased operations at the Hotel Reed facility several years prior to the hearing. P. Br. at 2. It has not used Hotel Reed's provider number since that time. Id. 4.In its briefs, CMS contends that its allegations under Tag F-223 focus on actual harm to two residents: Resident 10 and an unidentified resident, who allegedly spoke during the February 12, 2002 group interview. CMS Br. at 23-24; CMS Response at 23- 24. CMS, however, provided no additional argument or documentation to support a finding of abuse with respect to the latter, unidentified resident. Therefore, I limit my findings under this tag to Resident 10. 5. Although the surveyors' notes from the group interview do not document Resident 10's behavior during the interview, both surveyors testified that Resident 10 was visibly distressed at the time. Tr. at 14, 138. I do not find any alleged inconsistency between the surveyors' notes and testimony to be sufficient to refute the surveyors' findings under this tag. Furthermore, regardless of the circumstances of the group interview, Petitioner still fails to address Surveyor Pevey 's observation that Resident 10 was distressed when the medication nurse spoke harshly to her. 6.It is not clear whether the July 31 accident report documents the July 30 fall, but the parties do not dispute that the report and the nurses' notes refer to the same incident. See P. Br. at 10; CMS Br. at 25. 7. I do not include Tag F-353, because I have found that CMS did not establish a prima facie case under that tag. 8. Petitioner again cross-references Tag F-353, but I do not include that tag because of CMS's failure to establish a prima facie case. | |