|
Department of Health and Human Services DEPARTMENTAL APPEALS BOARD Civil Remedies Division |
|
| IN THE CASE OF | |
|
Community Skilled Nursing Centre, |
DATE: September 28,2004 |
| - v - | |
|
Centers for Medicare & Medicaid Services.
|
Docket No.C-03-436
Decision No. CR1221 |
| DECISION | |
|
DECISION I sustain the imposition of civil money penalties of $650 per day against Petitioner, Community Skilled Health Care, for each day of a period that began on February 27, 2003 and which ran through March 13, 2003. (1) The total amount of civil money penalties that I sustain is $9,750. I. Background Petitioner is a skilled nursing facility that is located in Warren, Ohio. Petitioner participates in the Medicare program. Its participation is subject to the statutory requirements of sections 1819 and 1866 of the Social Security Act (Act) and to regulations at 42 C.F.R. Parts 483 and 488. Petitioner was surveyed for compliance with Medicare participation requirements by the Ohio Department of Health in a survey that ended on February 27, 2003 (February survey). The surveyors found that Petitioner was not complying substantially with various federal participation requirements. They subsequently found that Petitioner had re-attained compliance with these requirements effective March 14, 2003. CMS accepted the surveyors' findings and determined to impose remedies, consisting of civil money penalties of $650 per day for each day of a period that began on February 27, 2003 and which ran through March 13, 2003. Petitioner requested a hearing and the case was assigned to me for a hearing and a decision. I conducted an in-person hearing in Cleveland, Ohio, on June 10, 2004, at which I received testimony and exhibits from the parties. I accepted exhibits from CMS consisting of CMS Ex. 1 - CMS Ex. 58. Transcript (Tr.) at 14. I accepted exhibits from Petitioner consisting of P. Ex. 1 - P. Ex. 12, and P. Ex. 14 - P. Ex. 16. Id. at 74. II. Issues, findings of fact and conclusions of law
The issues in this case are whether:
I make findings of fact and conclusions of law (Findings) to support my decision. I set forth each Finding as a separate heading. I discuss each Finding in detail. Preliminarily, I make a few observations about how I have evaluated this case. Each of the deficiencies that are at issue here involves numerous items of evidence and possible issues. The evidence is embedded in the treatment records that the parties offered as exhibits, totaling several hundred pages, and to a much lesser extent, the testimony of witnesses. In deciding this case, I have taken into consideration all of the evidence that the parties brought to my attention and the issues that they have raised. But, I have not attempted to pore over the record of this case in search of evidence and issues that may be relevant but which were not identified by the parties. It is not my responsibility to mine the record for evidence that the parties did not bring to my attention nor is it my duty to make arguments for the parties that they did not make. Indeed, I consider it inappropriate that I do either. CMS bases its case against Petitioner on allegations that, as of February 27, 2003 and thereafter, Petitioner was not complying substantially with 12 Medicare participation requirements. (2) I take notice that CMS uses a letter grading system to rate the scope and severity of a facility's noncompliance with a participation requirement. Two of the 12 alleged deficiencies that were sustained by CMS were rated at scope and severity level "G," meaning that CMS determined that residents of Petitioner's facility suffered actual harm as a consequence of Petitioner's noncompliance with participation requirements. In Finding 1, I discuss the two "G" deficiencies. I find that these deficiencies are sustained by virtually undisputed evidence. I do not discuss the 10 allegedly less egregious deficiencies alleged by CMS because it is unnecessary for me to do so in order to sustain the $650 per day civil money penalties that CMS determined to impose. As I discuss, at Finding 3, the presence of two "G" deficiencies coupled with Petitioner's compliance history and culpability is sufficient to sustain the imposition of civil money penalties of $650 per day for each day of Petitioner's noncompliance. The other less severe deficiencies, while they might provide added support for my remedy finding, are not necessary to substantiate the $650 per day penalties. (3)
I sustain CMS's determination that Petitioner failed to comply substantially with the requirements of 42 C.F.R. � 483.25(h)(2). This regulation requires that a facility ensure that each of its residents receives adequate supervision and assistance devices to prevent accidents. A facility is not liable per se under the regulation for every injury or accident that occurs to a resident. But, a facility is obligated to do everything that is within its power to protect a resident from a known or knowable risk of harm. The burden on a facility to undertake such measures becomes particularly heavy in the circumstance where there is a history of accidents or problems involving a resident that puts the facility and its staff on direct notice that the resident is at risk. Furthermore, once a facility's staff decides to implement a particular protective measure, the staff is under the obligation to make sure that measure is implemented and to evaluate it continuously for efficacy. It is certainly not enough for a facility to claim that it considered a resident's problems and planned that resident's care. Protective measures must be implemented and they must work. If a measure is not successful, the facility is under an obligation to explore, and if at all possible, to implement viable alternatives. The almost entirely undisputed evidence that CMS presented in this case establishes that three of Petitioner's residents presented obvious risks of injury that Petitioner's staff either knew about or should have known about. CMS Ex. 1, at 17 - 20. Yet, in each case, Petitioner's staff failed to take measures to protect the resident from harm. The consequence in each case was that the resident was injured. In one instance, Petitioner failed to implement a protective measure that its staff had determined was necessary to protect a resident from a known accident hazard. The unprotected resident fell and was injured. A similar failure by Petitioner's staff to implement a protective measure for a second resident to protect the resident against a known hazard resulted in a fall and injuries to that resident. In a third instance, Petitioner's staff failed to take protective measures to protect a resident against persisting in behavior that was jeopardizing the resident's health. As a consequence, this resident suffered injury necessitating advanced medical care. The evidence that CMS offered to support its contentions includes the conclusions of the surveyors who conducted the February survey. These conclusions are based on excerpts from Petitioner's resident treatment records and on the surveyors' personal observations of the care that Petitioner's staff provided to residents. Petitioner's case consists essentially of opinions expressed by its staff about the care that Petitioner gave to residents. Chiefly, these opinions are expressed in the written declarations of two individuals, Leslie Perry, R.N., and Bernadette McNeal, L.P.N. P. Exs. 14, 15. At the time of the February survey, Mr. Perry was Petitioner's director of nursing. Ms. McNeal was a nurse on Petitioner's staff as of the February survey. Ids. Below, I discuss specifically the evidence cited by the parties. Generally, however, I find the opinions expressed by CMS's witnesses to be credible. I find neither Mr. Perry's nor Ms. McNeal's opinions to be credible. CMS's witnesses expressed opinions that are solidly grounded in the objective record of care that Petitioner's staff gave to its residents. Petitioner's witnesses, by contrast, expressed opinions that at times appeared to have little or no basis in the record. Nor are the opinions of Mr. Perry and Ms. McNeal fortified by their contentions that they are personally familiar with the residents whose care is at issue in this case. See P. Ex. 14, at 3; P. Ex. 15, at 2 - 3. The assertions by these witnesses that they have personal familiarity with the care that was given to the residents convey at least the possibility that they were involved in the specific items of care that are at issue. But, in fact, that is not the case. As was made clear in the testimony of Mr. Perry and Ms. McNeal, they obtained their knowledge of the care that was given to the residents whose care is at issue here by reviewing the residents' treatment records or via discussions with other members of Petitioner's staff and not by providing direct care. Tr. at 121; 179 - 80. Their opinions are based on the same evidence that is relied on by CMS to the extent that the opinions are based on any evidence. And, where the opinions are not based on evidence they are speculation which is not bolstered by the witnesses' asserted personal familiarity with the residents.
The evidence that CMS presented as respects this resident establishes that the resident was aged 87 as of February 27, 2003. CMS Ex. 34, at 1. She had organic changes in her brain which produced dementia and depression, also manifested by altered mental status and impaired cognitive abilities. Id.; CMS Ex. 14, at 3. She suffered from additional physical impairments that included degenerative arthritis and glaucoma. CMS Ex. 34, at 1. The resident was admitted to Petitioner's facility on June 29, 2002. Her medical records predating her admission to the facility revealed that Resident # 85 had a history of sustaining falls. See CMS Ex. 34, at 4. As of the resident's admission to Petitioner's facility, the chief concern that was expressed about her was that she had fallen while at home. Id. Recognizing that the resident posed a risk of falling, Petitioner's staff ordered that the resident be supplied with bed and chair alarms so as to alert the staff of any attempt by the resident to engage in unsupervised activity. Id. at 3. I take notice that bed and chair alarms generally are activated by the release of pressure. For example, a person who lies on a functioning bed alarm causes the alarm to go off if he or she breaks contact with the mattress. On July 29, 2002, a month after her admission, Resident # 85 was found to be on the floor of her room, by the doorway, complaining of pain in her left wrist. CMS Ex. 34, at 5; P. Ex. 4, at 2. X-rays confirmed that she had fractured the distal portion of her left arm. CMS Ex. 34, at 6 - 7; P. Ex. 4, at 3 - 4. A few minutes prior to the discovery of the resident on the floor she had been observed lying in her bed. CMS Ex. 34, at 4, 6; P. Ex. 4, at 3. The resident's bed alarm had not sounded when the resident left her bed. CMS Ex. 34, at 6 - 8; P. Ex. 4, at 3 - 4. The alarm was found to be disconnected. It had been folded and placed at the bottom of the resident's bed. CMS Ex. 34, at 6; CMS Ex. 16, at 23; P. Ex. 4, at 3. From this evidence, I infer that Petitioner's staff knew that Resident # 85 was at risk for falling. The decision by the staff to place alarms in the resident's chair and bed clearly reflect that knowledge as the alarms are obvious fall prevention measures. But, it is also apparent, from the disconnection of the resident's bed alarm, that Petitioner's staff failed to implement these protective measures effectively. That conclusion was, in fact, shared by Petitioner's management, who disciplined the employee who was responsible for assuring that the bed alarm worked. CMS Ex. 34, at 8 - 9. Moreover, the disconnection of the alarm was not inadvertent. The fact that the alarm had been folded is a basis for me to infer that someone on Petitioner's staff had disconnected the alarm, probably in connection with housekeeping activities, and had failed to reconnect it. It is not reasonable to infer that Resident # 85, demented as she was, would have been capable of disconnecting, folding, and repositioning the alarm. It is also reasonable to infer that the failure of the alarm to work on July 29, 2002, contributed to the fractured arm that Resident # 85 suffered on that date. The evidence is inconclusive as to whether the resident fell from her bed or fell after she got out of bed. But it is not inconclusive on the question of whether she fell. And, clearly, the failure of the alarm to work contributed to the risk of falling and to the injury that the resident sustained as a consequence of her fall on that date. Petitioner has offered no credible evidence to rebut the evidence offered by CMS as to Resident # 85 or to negate the inferences that I draw. In fact, Petitioner has not cited to any evidence that counters that which CMS offered, and at least one of Petitioner's exhibits reinforces CMS's case as to Resident # 85. P. Ex. 4, at 3 - 4. As argument, Petitioner makes contentions which I find not to be supportable by the preponderance of the evidence. Petitioner contends, via the opinions expressed by Mr. Perry and Ms. McNeal, that there is no way to exclude the possibility that the bed alarm was disconnected by Resident # 85. P. Exs. 14, 15. I am not persuaded by that argument. It strains credulity to argue that the resident would have been capable of disconnecting the alarm, folding it, and placing it at the bottom of her bed, given her demented state and obvious cognitive deficits. Petitioner also asserts, as a bald conclusion, that finding a deficiency with respect to Petitioner's care of Resident # 85 is "not supported by the facts." Petitioner's post-hearing brief at 11. But, the facts - consisting of Petitioner's own records - provide ample support for a conclusion that inadequate protection of Resident # 85 led to her fall and injury. Petitioner also asserts that lack of supervision was not the cause of Resident # 85's fall. Petitioner's post-hearing brief at 11. For this conclusion, Petitioner relies on the opinions of Mr. Perry and Ms. McNeal. P. Exs. 14, 15. Each witness, in his/her declaration, makes identical statements about Resident # 85. Each asserts that he or she is "personally familiar" with the resident and has reviewed the resident's chart and file. In fact, cross-examination of these witnesses established that their personal familiarity with the facts of this case rests entirely on their review of the resident's records or on what other people told them. See Tr. at 116. It establishes also that the statements are identical because Mr. Perry wrote significant parts of Ms. McNeal's testimony. Tr. at 114 - 15. Close examination of these witnesses' testimony establishes that they have no basis for their assertions that the resident's fall did not result from a lack of supervision. That conclusion is a naked assertion made without support. Moreover, it is contradicted by the evidence that I discuss above and which Petitioner did not refute. The facts of Resident # 85's case are obvious. Petitioner chose to substitute an alarm system for personal supervision of Resident # 85. Whatever the merits of that choice, the measure was made ineffective by Petitioner's staff's failure to assure that the alarm was connected and working.
The evidence presented by CMS establishes that Resident # 93 was aged 93 at the time of the survey. CMS Ex. 35, at 1. The resident's diagnoses included Alzheimer's Disease and depression. Id. In 2001, the resident had a fall which caused her to sustain a subdural hematoma. Id. at 9. On January 28, 2003, Petitioner's staff assessed the resident as being at a high risk for sustaining falls. Id. at 3. The staff directed that protective measures be taken for the resident, which included placing soft mats near the resident's bed, and by providing her with an electronic chair alarm and a seatbelt for her chair, to be in place whenever the resident was left alone in her room. Id. at 3. On February 4, 2003, a nursing assistant placed the resident alone in her room in her chair with the seatbelt attached but without a chair alarm. CMS Ex. 35, at 5, 11. While left alone, the resident unfastened her seatbelt and fell. Id. at 8. The resident subsequently was found on the floor. She had sustained lacerations to both sides of her head. Id. at 6. Petitioner's management determined that the accident involving Resident # 93 was due to staff error. Id. at 8; P. Ex. 5, at 1. The evidence concerning Resident # 93 strongly supports the following inferences. The resident was, and Petitioner's staff knew that the resident was, at significant risk for falling. See P. Ex. 5, at 22 - 23. That was evident from the resident's history which included a relatively recent fall that caused her to sustain an injury. Petitioner's staff adopted protective measures including a chair alarm to be used whenever the resident was left alone in her room. But, on February 4, 2003, Petitioner's staff failed to utilize this protective measure, contributing to a fall by the resident with resulting injuries. Petitioner offered no evidence to contradict the evidence that CMS offered and on which I rely to conclude that Petitioner failed adequately to protect Resident # 93 against the hazard of falling. In its pre-hearing brief, Petitioner asserts that "[t]he surveyors also failed to note that, although all of the measures were in place, R 93 himself/herself unsnapped the seatbelt and disabled the chair alarm." Petitioner's pre-hearing brief at 19 - 20; P. Exs. 14, 15. That assertion is a conclusion that is unsupported by any evidence. It is belied by Petitioner's records which show that Petitioner's management concluded that the injuries sustained by Resident # 93 were caused by "staff error." CMS Ex. 35, at 8 - 9. Indeed, Petitioner's management disciplined the employee whose oversight caused the accident to occur. Id. Petitioner also makes the same assertion concerning Resident # 93 as it makes with Resident # 85 - also based on the testimony of Mr. Perry and Ms. McNeal - that lack of supervision was not the cause of the resident's fall. I find this assertion to be without support for the same reasons that I found it to be unsupported in the case of Resident # 85.
CMS offered evidence to show that Resident # 124 was aged 81 at the time of the survey. CMS Ex. 30, at 1. She suffered from numerous impairments which included mild mental retardation, anxiety, fluid in her lungs, a hiatal hernia, and Gastroesophageal Reflux Disease. CMS Ex. 11, at 3; CMS Ex. 30, at 1. On or about April 17, 2002, a gastrostomy tube (G-tube) was inserted into the resident's stomach. CMS Ex. 11, at 4. The G-tube was inserted from the exterior of the resident's skin into the resident's body cavity and eventually, into her stomach. It was held in place by an inflated balloon that was intended to prevent the G-tube from slipping out of the resident's stomach and body cavity. Id. I take notice that the purpose of the G-tube was to enable the resident to be fed in a manner other than by mouth. Beginning in January 2003, the resident began pulling the tube out of her body. CMS Ex. 11, at 4. The resident removed the tube on three occasions on January 11, 2003. CMS Ex. 30, at 10. Blood was noted at the site of the tube after two of these episodes. Id. The resident pulled the tube out again on January 12, on January 13, and on January 14, 2003. Id. After these episodes - and after Petitioner's staff had attempted on January 14, 2003, without success, to reinsert the tube - the staff notified the resident's treating physician who ordered that the resident be sent to the emergency room for treatment. CMS Ex. 11, at 4; CMS Ex. 30, at 10. The hospital staff also was unable to reinsert the tubing and they implanted a nasogastric tube in the resident. CMS Ex. 13, at 8; CMS Ex. 30, at 11. The nasogastric tubing was inserted through the resident's nose, down her esophagus, and into her stomach. CMS Ex. 11, at 4. I infer from the evidence offered by CMS that Petitioner's staff knew or should have known, beginning no later than January 11, 2003, that Resident # 124 had a propensity for pulling the G-tube from her body with serious consequences. Yet, the staff failed to attempt any measures to prevent the resident from removing the tube. See CMS Ex. 11, at 5; CMS Ex. 13, at 8. The consequence was that, over a period of several days, the resident removed the tube repeatedly, causing bleeding at the site of the tube and eventually necessitating the resident's referral to an emergency room. The end result of all of this was that the resident was forced to endure the placement of a nasogastric tube as an alternative way of feeding her. The staff failed to deal with a known hazard in the case of Resident # 124 consisting of her propensity to harm herself by pulling out her G-tube. I find it evident that close supervision of this resident might have prevented this adverse consequence. Furthermore, Petitioner's staff should have notified the resident's physician of the resident's behavior prior to January 14, 2003. By then, the resident had pulled the tube out at least six times. Had the physician been notified sooner, the staff and the physician might have agreed on temporary or long-term measures to prevent the resident from engaging in self-destructive behavior. Petitioner asserts that there was no need for it to implement protective measures for Resident # 124 because the resident did not have a history of removing her G-tube. Petitioner's pre-hearing brief at 20. I find this assertion to be unpersuasive. It may be true that the resident had not removed her G-tube prior to January 11, 2003. But, beginning with January 11, there were multiple episodes in which the resident removed the G-tube. Petitioner's staff should have known beginning on January 11 that there was a problem that needed to be addressed. The fact that the problem had not occurred in the past provides Petitioner's staff with no excuse. Petitioner also argues that "only twice was it confirmed [that the G-tube was] pulled out by the resident." Petitioner's pre-hearing brief at 20. The suggestion apparently, is that Petitioner was relieved of responsibility for providing supervision or protective measures if the tube was being removed by some unknown force. I find that to be totally without merit. Given that it was confirmed that the resident had pulled out the G-tube twice in a short period, then the only reasonable explanation for the four additional episodes of removal during that same period is that the resident was responsible for them as well. That is particularly obvious in light of the fact that there was no history of the G-tube being displaced until the resident began removing it on January 11, 2003. Moreover, the exact cause of the repeated removals of the G-tube is less important in the overall picture of things than is Petitioner's failure to address the repeated removals. Petitioner was under an obligation to protect the resident from removal of the G-tube whatever the cause. Petitioner contends that the removals of the G-tube were possibly due to defective G-tube balloons. P. Ex. 14, at 2, 4; Petitioner's pre-hearing brief at 20. That assertion is based on Mr. Perry's opinion. I am not persuaded that Mr. Perry had any reasonable basis to conclude that the G-tube removals in the case of Resident # 124 were due to balloon failure. As is clear from his affidavit, he speculated as to what might have been the reason for the G-tube being removed without actually being privy to specific facts that would support that speculation. P. Ex. 14, at 2. Mr. Perry did not personally provide care for Resident # 124 nor did he offer any objective evidence that there were repeated balloon failures that caused the resident's G-tube to be removed.
I sustain CMS's determination that Petitioner failed to comply substantially with the requirements of 42 C.F.R. � 483.25(j). This regulation mandates that a facility provide each of its residents with sufficient fluid intake to maintain proper hydration and health. Dehydration is a serious problem in elderly, debilitated, and demented individuals. See CMS Ex. 58. In its extreme form, it can jeopardize an individual's health or even his or her life. The regulation is intended to assure that a participating facility take all reasonable measures to forestall the development of dehydration in a resident. In order to do that, a facility must, at the least: identify each resident's risk factors; calculate approximately how much fluid each resident must consume; insure that each resident consumes the target amount of fluid; and, if necessary, find alternative means to assure that each resident consumes adequate fluids. CMS Ex. 3, at 21 - 22. Dehydration is a particular risk in individuals suffering from Alzheimer's type dementia because, as their dementia progresses, these individuals can forget to drink or even forget how to drink. Id. at 21. There are objective signs - in addition to gross measurements of fluid intake - that a facility staff may use to determine whether a resident is dehydrated. Clinical signs of possible dehydration include, among other things: (i) dry skin and mucous membranes; (ii) cracked lips; (iii) poor skin turgor; (iv) thirst; and (v) abnormal laboratory values such as elevated hemoglobin and hematocrit, potassium, chloride, sodium, albumin, transferrin, blood urea nitrogen (BUN), or urine specific gravity levels. CMS Ex. 3, at 21. The evidence that CMS presented concerning Petitioner's failure to comply with the requirements of 42 C.F.R.� 483.25(j) focuses on the care that Petitioner's staff gave in November, 2002 to a resident who is identified as Resident # 117. CMS Ex. 1, at 22 - 23. (4) The evidence shows that this resident was an elderly individual suffering from Alzheimer's type dementia (CMS Ex. 25, at 1) who began refusing food in November 2002, putting her at great risk for dehydration. In 38 out of 60 meals in which food intake was documented, the resident was observed to have consumed nothing. CMS Ex. 1, at 22; CMS Ex. 25, at 26. There is no evidence that Petitioner addressed this phenomenon in any meaningful way. No alert was raised by Petitioner's staff as to the possibility that the resident might become dehydrated as a consequence of her failure to eat. There is nothing in the record to show that the staff notified the resident's physician about this problem. By mid-November 2002, Resident # 117 began to manifest observable signs that were consistent with dehydration. On November 13, 2002, the resident was observed by her family to be lethargic. CMS Ex. 25, at 3; P. Ex. 6, at 47. On November 18, 2002, the resident was observed by her son to make gurgling sounds, suggestive of a swallowing problem, when she attempted to consume grape juice that her son offered to her. CMS Ex. 1, at 23; P. Ex. 6, at 49 - 50. The resident's family expressed concern to Petitioner's staff that the resident continued to not eat. CMS Ex. 25, at 3; P. Ex. 6, at 47. Still, Petitioner's staff took no affirmative steps to address the resident's growing problem. It was not until November 20, 2002, that the staff acted. On that date, laboratory tests confirmed what observation should have disclosed. The tests produced results that were consistent with dehydration. CMS Ex. 1, at 23; See P. Ex. 6, at 51. Laboratory tests were repeated on November 21, 2002, and they produced results that were even more suggestive of dehydration. Id. Additional tests that were performed on that date showed that the resident was likely aspirating (inadvertently inhaling) food and fluids. On the basis of these tests, it was recommended that the resident's feeding be changed from oral to non-oral. Id. On November 21, 2002, the resident's physician ordered that the resident be administered fluids intravenously. Id. The evidence presented by CMS is strong proof that Petitioner had ample warning in mid-November that the resident was at risk of becoming dehydrated and yet, failed to take action to protect the resident against dehydration as is required by 42 C.F.R. � 483.25(j). The resident was declining food, became lethargic, and was reported to be manifesting behavior consistent with swallowing difficulties. These signs should have put Petitioner's staff on notice that the resident was a dehydration risk. At the very least, the staff should have instituted close monitoring of actual fluid intake by the resident instead of limiting itself to anecdotal accounts of the resident's fluid consumption. It should have notified the resident's physician well before November 20, 2002, that the resident appeared to be declining to eat. The evidence demonstrates also that Resident # 117 was harmed by the staff's failure to pay proper attention to the resident's needs. By November 20, 2002, laboratory tests confirmed that the resident had become significantly dehydrated. This clinical evidence of the resident's dehydration is proof of harm because the regulations consider dehydration to be a harmful condition as a matter of law. 42 C.F.R. � 483.25(j). Petitioner has not offered evidence or argument that overcomes the evidence presented by CMS. Its affirmative case consists of arguing first, that objective evidence did not reveal prior to the 20th or 21st of November that Resident # 117 was becoming dehydrated. Petitioner bases this contention on nursing notes which, according to Petitioner, show that the resident actually was consuming fluids well in the days prior to November 20 and 21, 2002. P. Ex. 6, at 45 - 50. Moreover, according to Petitioner, the resident's physician became involved directly in the resident's care beginning on November 19, 2002, to address problems other than dehydration and, in fact, never diagnosed the resident to be dehydrated. Petitioner's pre-hearing brief at 22. Close examination of these notes does not support Petitioner's assertion. The nursing notes that record the care that Petitioner's nursing staff gave to Resident # 117 in November 2002 recite on several occasions that the resident manifested good fluid consumption at meal times. P. Ex. 6, at 45 - 50. The nurses made these statements in the context of other statements showing that the resident was not eating or eating poorly. Id. On other occasions, they contain statements to the effect that the resident consumed all of the supplements that were offered to her. Id. However, although these notes create a somewhat more mixed picture of the resident's condition than is depicted by CMS's evidence showing that the resident was declining to eat in November 2002, they do not negate signs of dehydration in the resident which should have prompted, but failed to prompt, an affirmative reaction by Petitioner's staff. I am not persuaded that the resident's fluid consumption at meal times in November provided reasonable grounds for Petitioner's staff during that period to conclude that the resident was not at risk for dehydration. Giving Petitioner the benefit of the doubt, the anecdotal statements by Petitioner's nursing staff that the resident manifested good fluid consumption were at the very least at odds with other objective signs that the resident was becoming dehydrated. These included the resident's frequent refusal to eat and her lethargy. P. Ex. 6, at 45 - 52. Other signs of dehydration included the nursing staff's observation that the resident was experiencing delayed swallowing. Id. at 49. The nursing notes concerning the resident's fluid consumption do not vitiate the signs of the resident's dehydration because they are not a systematic or objective measure of what fluids the resident was consuming. Anecdotal comments that the resident was consuming fluids well provide no objective support for an argument that the resident was not in apparent danger of dehydration in November 2002. There is no way of accurately telling from these notes how much fluid the resident actually consumed. Petitioner's staff should have at least become concerned about the state of Resident # 117's hydration in view of the resident's failure to eat, lethargy, and reported swallowing difficulties. But, despite that, Petitioner has pointed to no evidence which shows that Petitioner's staff made any effort to consistently document the actual volume of fluids the resident consumed during her meals or at other times during the day. Petitioner also contends that the gurgling sounds that the resident made when she attempted to swallow were not suggestive of a swallowing problem. Petitioner's pre-hearing brief at 22. Petitioner has offered no evidence to support this contention and I find it to be unpersuasive. Petitioner argues additionally that the resident's physician evidently was unconcerned about possible dehydration. It supports this argument by contending that, on November 19, 2002, the physician ordered tests to address the possibility that the resident was choking or aspirating fluids but not to address the possibility that the resident was dehydrated. Petitioner's pre-hearing brief at 22. The inference that Petitioner apparently would have me draw is that Petitioner should not be brought to account for the resident's dehydration if, in fact, even the resident's physician was unconcerned about the problem. I find this argument to be unpersuasive. The assertion that the resident's physician was concerned only about the problems posed by the resident's possible choking and/or aspiration is purely speculative. Petitioner offered no evidence to show what was the physician's state of mind on becoming apprised of the resident's problems. Indeed, Petitioner offered nothing to show exactly what Petitioner's staff communicated to the physician. Furthermore, the laboratory tests that the physician ordered be performed are entirely consistent with a possible concern by the physician that the resident had become dehydrated. Indeed, it is the results of those tests that provide measurable proof that the resident was dehydrated. The physician reacted to those test results by diagnosing dehydration and by ordering that the resident be treated for dehydration. Tr. at 127.
CMS determined that Petitioner did not attain substantial compliance with the requirements of 42 C.F.R. �� 483.25(h)(2) and 483.25(j) until March 14, 2003. CMS based this determination on Petitioner's allegation that it corrected its deficiencies effective March 14, 2003, and on a follow-up survey by the Ohio Department of Health, conducted on March 27, 2003, which established that Petitioner had attained compliance. Although Petitioner denied the propriety of the amount of the civil money penalty and the length of the period in which CMS found it not to be complying with participation requirements, it offered neither evidence nor arguments to address these issues. Petitioner's post-hearing brief at 13. There is a presumption that a noncompliant facility remains noncompliant until it proves that it has become compliant with participation requirements. Here, noncompliance was established effective February 27, 2003, and CMS had every reason to assume that Petitioner remained noncompliant until it proved that it had corrected its deficiencies. Petitioner asserted that it attained compliance on March 14, 2003, and has not subsequently argued that it attained compliance on an earlier date. Consequently, I find that the duration of Petitioner's noncompliance is from February 27, 2003 through March 13, 2003.
Regulations establish that civil money penalties in a range of from $50 to $3,000 per day may be imposed to remedy noncompliance that is substantial but which is not so severe as to immediately jeopardize the health or life of a resident. 42 C.F.R. �� 488.408; 488.438(a)(1)(ii). Regulations also establish the criteria which must be considered in deciding the appropriate penalty amounts. 42 C.F.R. �� 488.438(f)(1) - (4); 488.404 (incorporated by reference into 42 C.F.R. � 488.438(f)(3)). The factors include: the seriousness of deficiencies; the facility's financial condition; the facility's culpability for its deficiencies; and the facility's compliance history. In deciding what penalty amount is reasonable, I must examine the evidence that relates to the regulatory factors. My role is not to review for correctness CMS's determination as to penalty amount. Rather, I must decide de novo whether the evidence justifies a particular amount, and I must do that independently from CMS's determination. Here, CMS urges that I impose against Petitioner penalties in the amount of $650 per day. That proposed amount is relatively modest, amounting to a little more than 20 percent of the maximum allowable civil money penalty amount for a non-immediate jeopardy level deficiency. I conclude, based on all of the evidence that relates to the regulatory factors, that $650 per day is reasonable. I do so for the following reasons.
The evidence that I have just discussed is, in and of itself, sufficient to justify imposition of civil money penalties of $650 per day against Petitioner for a period of 15 days. I reiterate here that it is not necessary that I evaluate Petitioner's 10 alleged non-"G" deficiencies in order for me to decide that the penalty amount is reasonable. The reasonableness of the $650 per day penalties is more than established by the evidence that I have discussed in this Finding. Petitioner has not offered anything to overcome the evidence which shows that $650 per day civil money penalties are reasonable. In its pre-hearing brief, Petitioner failed even to address the issue of whether the proposed penalties are reasonable. In its post-hearing brief, Petitioner contends that it should be assessed penalties of no more than $50 per day if it is found to have not complied with participation requirements. However, it offers nothing to justify this assertion or to show that penalties of $650 per day are unreasonable. Rather, it makes a series of conclusions - unsupported either by analysis or evidence - to the effect that penalties in this amount are unreasonable. Petitioner's post-hearing brief at 13 - 14. I find these bald conclusions to be unpersuasive. (5)
Petitioner makes two additional arguments which I find not to have any bearing on the outcome of this case. First, Petitioner argues that in Hillman Rehabilitation Center, DAB No. 1611 (1997), aff'd, Hillman Rehabilitation Center v. United States, No. 98-3789 (GEB) (D. N.J. 1999), the Departmental Appeals Board improperly shifted the ultimate burden of persuasion to providers in cases involving CMS. Second, it asserts that, in any event, the Hillman standard was a "rule" that should have been published pursuant to the notice and comment rulemaking procedures of the Administrative Procedure Act, 5 U.S.C. � 556(d). Failure by the Secretary of Health and Human Services to publish and seek comment of the Board's Hillman standard invalidates Hillman in Petitioner's eyes. I find it unnecessary that I address either of these arguments. As is evident from my analysis above, the weight of the evidence in this case overwhelmingly supports CMS's contention and arguments. I would find for CMS even had I apportioned the ultimate burden of persuasion to it consistent with Petitioner's contentions about Hillman. |
|
| JUDGE | |
|
Steven T. Kessel Administrative Law Judge |
|
| FOOTNOTES | |
|
1. The caption of this case refers to Petitioner as "Community Skilled Nursing Centre." However, in its pleadings, Petitioner refers to itself as Community Skilled Health Care. 2. Originally, CMS cited 13 deficiencies and some Life Safety Code deficiencies as the basis for its determination. However, at the hearing of this case, counsel for CMS represented that CMS no longer was pursuing one of the deficiencies, cited at Tag F-166 in the report of the February survey, or the Life Safety Code deficiencies. 3. Arguably, CMS could also base remedies on the non-"G" deficiencies even if there had not been any "G" deficiencies. But, it is unnecessary that I address this possibility because I find that the civil money penalties in this case are justified solely by the "G" deficiencies. 4. Initially, CMS made allegations concerning another resident, Resident # 68. It no longer asserts these allegations, however. CMS's post-hearing brief at 7 n.6. 5. I note that, in its April 14, 2003 notice letter to Petitioner, CMS advised Petitioner that it would also lose its authority to conduct nurse aide training for a period of two years by virtue of the aggregate civil money penalties totaling $5,000 or more ($9,750 in this case). Petitioner has not offered evidence or argument to challenge the ancillary effect of the civil money penalties so I do not address it in the body of my decision. | |