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Department of Health and Human Services DEPARTMENTAL APPEALS BOARD Civil Remedies Division |
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Britthaven, Inc., d/b/a Britthaven of Smithfield, |
DATE: December 15, 2004 |
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Centers for Medicare & Medicaid Services.
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Docket No.C-02-220
Decision No. CR1259 |
| DECISION | |
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DECISION
I sustain the determination of the Centers for Medicare and Medicaid services (CMS) to impose a Civil Money Penalty (CMP) against Britthaven Inc., d/b/a Britthaven of Smithfield, 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 $5,000 per day from August 24, 2001 through August 29, 2001 is based on a finding of immediate jeopardy. After the immediate jeopardy was removed, a CMP of $100 per day was imposed from August 30, 2001, through November 24, 2001. For the reasons that follow, I uphold the CMP of $5,000 based on a finding of immediate jeopardy, but reduce the CMP for violations at the less than immediate jeopardy level to $50 per day. I. Background This case came before me pursuant to a request for hearing filed by Petitioner on November 21, 2001, in accordance with section 1128A(c)(2) of the Social Security Act (Act) and 42 C.F.R. �� 488.408(g) and 498.40. Subsequently, on February 5, 2002, Petitioner filed an amended request for hearing, to which CMS posed no objection. (1) On September 24, 2001, CMS informed Petitioner that, based on a survey conducted in August 2001, it was imposing selected remedies due to Petitioner's failure to be in substantial compliance with the applicable Federal requirements for nursing homes participants. CMS imposed the following remedies:
At this time, CMS seeks judgment only with respect to the CMP. The parties have agreed to waive their right to an oral hearing and have the case decided on the basis of documentary evidence and written memoranda. CMS proposed 47 Exhibits (CMS Exs. 1-47). By submission dated October 28, 2002, Petitioner filed objections to CMS Exs. 1, 2, 10, 14, 35-42, and 45. By ruling on June 20, 2003, I denied Petitioner's objections to these exhibits except that I ordered CMS to redact the names of residents out of all exhibits, and the handwritten note on CMS's Ex. 2, at 1 was disregarded. (3) CMS Exhibits 1 to 47 were admitted into the record as amended. Petitioner proffered 26 exhibits. These were admitted into the record without objection as P. Exs. 1 to 26. (4) Petitioner submitted an opening brief (P. Br.) and a response brief (Response Br.), and CMS submitted an opening brief only (CMS Br.). Based on the affidavits, the documentary evidence, the written arguments of the parties, and the applicable law and regulations, I find that, from August 24, 2001 through November 24, 2001, Petitioner was not in substantial compliance with Medicare participation requirements. 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. 42 C.F.R. Part 483 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 is clearly erroneous. C. Whether the amount of the penalty imposed by CMS is reasonable, if noncompliance is established. IV. Findings and Discussion regarding the August 29, 2001 survey 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. Surveyor findings for Tag F 223 as reflected in the Statement of Deficiencies (SOD) (CMS Ex. 2, at 1-5). Resident 20 The surveyor findings in the SOD stated, in relevant part:
Discussion Petitioner contends that the statements upon which CMS relied to sustain this deficiency constitute unreliable hearsay. See P. Br. at 5-9. Petitioner argues that, by their own admissions, neither CNA #2 or CNA #3 witnessed the incident, and the written statements were inconsistent. P. Br. at 7. Petitioner maintains that, according to the nurse's notes, it was on July 27, 2001 that the nurse [DON] was advised by a CNA that Resident 20's nails had been clipped too closely. P. Ex. 9, at 12. Based on that information, Petitioner surmises that the resident's nails were cut too closely on or about the 27th of July 2001. However, points out Petitioner, CNA #1 did not work in the unit on July 26 or 27, 2001. CMS Ex. 5, at 5. Also, according to Petitioner, although CNA #1 recalled being advised that she may have trimmed Resident 20's nails too closely, she adamantly denied struggling with the resident to the point of falling to the floor. P. Ex. 9, at 21. It is CMS's position that the statements of CNA #2 and CNA #3 are sufficient to establish a prima facie case of abusive behavior, in the absence of a meaningful investigation on the part of the facility to show that the allegation was inaccurate. CMS Br. at 9. The record reflects that on July 25, 2001 Resident 20 complained that her right index finger was sore. Upon examination, the facility staff determined that her nail had been cut too closely and an area of dried blood was noted on the fingertip. P. Ex. 9, at 8-9. Although Petitioner alleges that CNA #1 was not working when the resident's nail was cut too closely, the documentary evidence of record shows otherwise. According to the resident, the incident occurred on July 23 or 24, 2001, during the 3-11 shift. Id. Petitioner's facility staffing chart shows that CNA #1 was working the 3-11 shift on both of those days. CMS Ex. 5, at 4. From a reading of the Resident Incident Witness Statement, I infer that CNA #1 did not trim Resident 20's finger nails as part of a routine grooming program, but rather as an emotional reaction to being scratched by the resident. P. Ex. 9, at 29. In that statement, CNA Ann Bell stated that (months ago) while she and CNA #1 were attempting to take Resident 20's vital signs, the resident scratched CNA #1 in the face. It was then that CNA #1 determined to cut the resident's nails so that she would not scratch her anymore. Id. However, she trimmed the nails as an emotional response to being scratched in the face, and wound up cutting the resident's finger tip. CNA Bell places the incident in the month of March or April, yet there is no reference in the record to a prior complaint from the resident regarding a close trimming of her nails to the point of bleeding. P. Ex. 9, at 29. In fact, the staffing chart reflects that CNA Bell and CNA #1 were paired for duty on July 24, 2001, that is, the day prior to the resident's complaint. Although I find no reliable evidence in the record that CNA #1 and the resident "went at each other and wound up on the floor," I do conclude that the retaliatory manner in which CNA #1 cut Resident 20's nails constitutes abuse. I further find that Petitioner has not overcome CMS's prima facie showing of noncompliance. Resident 12 The surveyor findings in the SOD stated, in relevant part:
Discussion Petitioner contends that Nurse #1's conduct was not improper. Petitioner argues that Nurse #1 nudged and challenged Resident 12 to slap her as a psychiatric intervention in order to divert the resident's attention. Thus, there was no infliction of emotional injury. P. Br. at 10. Petitioner adds that subsequent to the survey, the facility sent the allegations and investigative materials to the North Carolina Board of Nursing, and that entity found no violation of the code. (5) CMS contends that Nurse #1's behavior was a threatening act toward the resident, and that Petitioner's facility has not provided support for its allegation that the nurse's actions constitute an appropriate psychiatric intervention. I agree. I can draw no other conclusion than that Nurse #1 was challenging and daring Resident 12 to slap her. Her words had a less than veiled threat as to what would happen if the resident dared hit her. Petitioner makes the claim that the nurse was employing a psychiatric intervention, but fails to advance any authoritative opinion in that regard. Furthermore, the fact that Nurse # 1 had displayed such conduct at other times in the past, as alleged by Petitioner, does not make it correct. A vice does not by practice over time become a virtue. P. Br. at 10. Additionally, I find no merit in Petitioner's argument that the North Carolina Department of Health decided not to independently investigate the allegations of abuse, and found no violation of the nursing code. (6) The response from the North Carolina Department of Health simply states that the information provided by the facility failed to reveal sufficient justification for the initiation of a full investigation. I cannot attribute probative value to the above for the following reasons:
I conclude that CMS has established a prima facie case of abuse with respect to Resident 12. Petitioner has not overcome that showing. Resident 8 The surveyor findings in the SOD stated, in relevant part:
Discussion Petitioner contends that Nurse #1 acknowledges that she may have said to other staff members that Resident 8 was getting on her nerves, but that she would never say that within earshot of the Resident. At any rate, says Petitioner, the statement was not made with the intent of causing injury to the Resident. Regarding the threat of being slapped again by a resident, Petitioner denies that it happened, but if did, it was not meant as a threat of violence, but as a warning as to how another resident may react to his behavior. P. Br. at 12. CMS argues that Resident 8 was diagnosed with blindness and dementia. CMS Ex. 2, at 3. Consequently, the nurse's words would be intimidating and frightening to someone who was blind and had no way of knowing whether he was in further immediate and imminent danger. Petitioner's conditioned denial that the incident occurred does not suffice to refute the deficiency as to Resident 8. It is clear that the words uttered by Nurse #1 were calculated to instill fear in Resident 8. This visually impaired Resident had just been the victim of an assault by another resident and was in need of comfort and assurance that he would be in no further danger of physical attack. Instead, not being able to see outside of the dark world in which he lived, the words of Nurse #1 sent a message intended to promote fear. Thus, I find that the actions of Nurse #1 were intentional and constitute abuse. Rather than employ a more professional method of protecting Resident 8 from the aggression of other residents, she took a short cut to try to "shut him up" because the Resident's yelling was getting on her nerves also. Resident 25 The surveyor findings in the SOD stated, in relevant part:
Discussion Petitioner contends that there was never a report of a staff member placing a resident in a headlock. Although the statement of deficiencies states that the Administrator admitted being aware of the headlock incident, the Administrator signed an affidavit on October 1, 2001, denying being questioned during the survey completed on August 29, 2001, with respect to the allegation that CNA #1 placed Resident 25 in a headlock. P. Ex. 10, at 25. CMS argues that the statement of the Administrator lacks probative value inasmuch as it was not made contemporaneous with the survey, and constitutes new evidence that it has not had an opportunity to challenge. CMS's argument regarding the weight to be given to the Administrator's affidavit lacks merit. I agree that the contemporaneousness of the statement adds to the evidentiary weight, but the Administrator's statement, even if not contemporaneous, is appropriate rebuttal in this instance. The Administrator's affidavit was obtained approximately one month after the survey, and CMS did not need to wait for a special opportunity in order to challenge Petitioner's exhibits. Additionally, the statement of Staff #1 (CMS Ex. 17, at 12) lacks sufficient specificity to be of probative value without corroborating evidence. Thus, I find that CMS did not established a prima facie case as to the deficiency with respect to Resident 25. In view of the foregoing discussion regarding the deficiencies under Tag F 223, with the exception of Resident 25, I find that CMS has established a prima facie case that Petitioner was not in substantial compliance with the requirement to provide an environment free from verbal, sexual, physical, and mental abuse, corporal punishment, and involuntary seclusion as provided by 42 C.F.R. section 483.13(b). Petitioner has not overcome that showing by a preponderance of the evidence.
Section 483.13(c)(2) of 42 C.F.R. provides that all alleged violations of mistreatment, neglect, or abuse 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 5 working days of the incident. Surveyor findings for Tag F 225 as reflected in the SOD (CMS Ex. 2, at 14-25) The surveyors reviewed Petitioner's Patient QA (Quality Assurance) Reporting Forms pertaining to Resident 8 for the following dates in 2001: May 21, May 24, June 16, June 22, June 24, July 22, August 6, and August 18. An interview with administrative staff on August 22, 2001 revealed that all patient QA Reporting Forms were given to the surveyor for Resident 8 and that there were no interviews or documentation provided to indicate that Petitioner had investigated staff to resident abuse and injuries, such as bruises of unknown origin. CMS Ex. 2, at 15-16. Further, review of the record for Resident 7 revealed that this Resident experienced injuries of unknown origin and that Petitioner had no evidence that it investigated these injuries. CMS Ex. 2, at 19. A patient QA Reporting Form dated August 20, 2001 was reviewed, and it was determined that Resident 11 exhibited a discolored area in corner of the right eye. The Resident stated that no one had hit her, adding that if someone were to hit her she would report them. Nonetheless, the Resident did not know how the discoloration occurred. Petitioner provided no documentation to indicate that it had investigated the bruise of an unknown cause. CMS Ex. 2, at 20. Discussion On May 24, 2001, Resident 8 was noted to have a lower extremity "area the size of a dime with some scab type formation, redness in surrounding tissue-open with serous drainage." CMS Ex. 2, at 16; CMS Ex. 19, at 49. Facility records describe the origin of the lesion as "unknown." However, there is no evidence that this injury of an unknown source was investigated or reported as required by the regulation cited above. Petitioner alleges that on the reverse side of the Patient QA Reporting Form it is reflected that the reason for the injury was that the Resident was independent in ambulation in spite of being legally blind. I find that such reference falls short of the thorough investigation mandated by regulation. The fact that the resident engaged in independent ambulation in spite of being blind does not explain the source of his injuries nor does it unequivocally exclude other possibilities. Additionally, there is no evidence that the results of an investigation were reported to the pertinent State agencies. On June 22, 2001, CNAs who were making rounds found Resident 8 standing by his roommate's bed, and he had a small skin tear on his left wrist. Petitioner argues that it neither conducted an investigation nor reported the incident as required by the regulation because the roommate was sleeping, it was a secure unit, and no visitors were around. Under those circumstances, argues Petitioner, there was no reason to suspect foul play. At the outset, it must be noted that arguments fashioned by Petitioner in its brief are no substitute for a report of a thorough investigation. See P. Br. at 13. Furthermore, residents are to be protected from neglect as well as foul play. Just because foul play is not suspected, it does not follow that the residents should not be provided protection from other conduct that could be equally injurious. Also, the facility 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. Petitioner's implied argument that the law and regulations allow the facility to police itself is unsupportable. 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). CMS has offered no evidence to substantiate the allegations regarding the injuries of unknown origin suffered by Resident 7. Consequently, I find that CMS did not establish a prima facie case with regard to Resident 7. Resident 11 suffered from left hemiparesis and dementia. On August 20, 2001, she was observed with discoloration over the left eye. She could not explain how it came about. She appeared certain that no one hit her but could not remember how the injury happened. CMS Ex. 2, at 20. Petitioner reasoned that, after a thorough investigation of Resident 11's injury, no reasonable person could have suspected abuse. Thus, no further reporting was necessary. P. Br. at 26. The record reflects that Petitioner's staff asked Resident 11 if she knew what happened to her eye and she responded "no," but that no one had hit her. CMS Ex. 20, at 5-6. Asking the Resident if she knew what happened to her eye does not constitute a "thorough investigation." Furthermore, once the investigation was completed, Petitioner had a duty to report the results, regardless of the findings, even if abuse was not suspected. The regulation requires 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. During an interview on August 28, 2001, the DON stated that she had been informed that Resident 20's nails had been trimmed too closely. The underlying facts surrounding that incident are recited in finding "B", above. Petitioner contends that, following an investigation, the facility concluded that the cut to the resident's finger was merely an accident and likely caused by the resident's combative behavior during nail care. P. Br. at 27. Consequently, according to Petitioner, there was no reason to suspect abuse, and no reason to remove the employee while completing the investigation. Petitioner's arguments do not address the failure to report the results of its investigation to the administrator and to other officials in keeping with State law. 42 C.F.R. � 483.13(c)(4). On the evening of July 12, 2001, Resident 12 slapped CNA #1 and another resident in the unit. Nurse #1 nudged the resident saying: "come on, why don't you slap me around?" In discussing Tag F 223, I have already concluded that Nurse #1 was challenging and daring Resident 12 to slap her, and that her words had a less than veiled threat as to what would happen if the resident dared hit her. I also dismissed Petitioner's claim that the nurse was employing a psychiatric intervention. In discussing Tag F 225, Petitioner argues that reporting of the incident as required by the regulation was not necessary because there was no abuse. Aside from the fact that I have found that there was abuse because, rather than carry out a psychiatric intervention, the nurse sought to instill fear in the resident, Petitioner had a duty to report the results of its investigation. Inasmuch as the facility did not report its findings to the administrator and other officials, including State survey and certification agencies, there is an absence of compliance with 42 C.F.R. � 483.13(c)(4). During an interview on August 29, 2001, Staff #1 stated that CNA #1 was observed and reported for verbally and physically abusing residents on several occasions. Staff #1 signed a statement saying that "about two months ago" CNA #1 was observed putting Resident 25 "in a headlock and calling him names such as dumb a . . . and stupid . . . ." CMS determined that there was no written or verbal evidence to show that Petitioner had taken actions to protect Resident 25 during the investigation. I have found that CMS did not establish a prima facie case of abuse with respect to Resident 25 under Tag F 223. Additionally, Petitioner refuted CMS's assertion that the facility Administrator was made aware of an incident of abuse involving Resident 25 and CNA #1. Thus, there is no basis for CMS's allegation that the facility was under an obligation to put in place protection measures during the pendency of an investigation with respect to the incident involving Resident 25 here under consideration. On May 1, 2001, a patient QA Reporting Form documented that Resident 15 had bruising of unknown causes. The back of the form (where the investigative staff is to document the investigation) stated -
The form indicated that the incident was referred to the appropriate QA committee. However, there was no investigation found in the resident's medical record. Petitioner argues that CMS has offered no evidence in support of its case. In the alternative, Petitioner argues that the facility's practice, when investigating incidents, was to document on the back of the form any statements with pertinent information relating to the incident. As there was no such information, states Petitioner, there was no documentation on the back of the form. P. Br. at 28. The facility reported on the QA Reporting Form that, on May 1, 2001, Resident 15 suffered an injury to her head and right knee. A lump was visible on the right side of the forehead and a scratch was observed on the right knee. It was noted that those injuries were of an unknown origin. Section 483.13(c)(2) of 42 C.F.R. provides, inter alia, that facilities must thoroughly investigate allegations of abuse, neglect, or injuries of unknown origin, and report the results to the administrator and other officials in accordance with State law, including State survey and certification agencies. The regulation does not only require that an investigation must be conducted, but also that the facility have evidence that the investigation was thorough. 42 C.F.R. � 483.13(c)(3). Petitioner contends that a thorough investigation revealed no identifiable cause of the injury. However, it offered no evidence to support that any investigation was in fact undertaken. Petitioner asserts that "a thorough investigation" revealed that the injury was of an unknown origin. But "buzz words" are no substitute for a legitimate and thorough investigation.
Surveyor findings for Tag F 226 as reflected in the SOD (CMS Ex. 2, at 35) A review of the facility's Abuse Policy indicated that it was effective December 1998 and revised April 2000. Discussion In my discussion of Tag F 225, above, I concluded that the facility failed to thoroughly investigate and report all allegations involving resident abuse, including injuries of unknown origin. There was also a failure to provide evidence that the investigation was thorough. At Tag F 226, CMS charges the facility with a failure to develop and implement policies and procedures that prohibit mistreatment, neglect, and abuse of residents. The record reflects that the facility did develop such policies and procedures, but failed to implement such policies for the protection of its residents. The facility's policies and procedures designed to protect the residents' freedom from abuse and neglect encompass the duty to report, investigate, and document all allegations or incidents involving abuse and neglect, including injuries of unknown origin. CMS Ex. 16, at .5-16. The facility's failure to implement its policies, as noted at Tag F 226, is sufficiently addressed in the discussion of Tags F 223, and F 225, however, I will exemplify the noncompliance with the treatment provided to Resident 20. During an interview on August 28, 2001, the DON stated that she had been informed that Resident 20's finger nails had been trimmed too closely, causing a finger to bleed. Further, the DON stated that she investigated the allegation, obtained two written statements alleging abuse, and that she called the corporate office and asked for direction from the Human Resources Department. The only action she took was to obtain a statement from CNA #1. At the bottom of the page of the written statement from CNA # 1, the DON wrote, "Informed CNA to get help before attempting to trim nails . . . Residents are to be treated carefully and gently . . . ." CMS Ex. 2, at 11. When interviewed on August 28, 2001 regarding that incident, CNA #1 stated that Resident 20 had bitten her on one occasion, and scratched her on another. She stated being alone when she trimmed the resident's nails, but indicated she was unaware that she had cut them too short until the DON brought it to her attention. Id. Petitioner's policy requires that employees alleged to have been directly involved in abuse will be suspended immediately from employment pending the outcome of the investigation in order to protect the resident population from further potential acts of abuse. CMS Ex. 16, at 8. Additionally, Petitioner's policy requires Petitioner to initiate an immediate investigation and document all allegations of resident abuse. CMS Ex. 16, at 8-9. In spite of the clear requirements of its written policy, the facility Administrator merely informed the staff member accused of abuse that residents are to be treated carefully and gently, and that CNAs were not to do diabetic nails. CMS Ex. 2, at 11. I thus find that CMS has established a prima facie case that Petitioner was not in substantial compliance with the requirements at 42 C.F.R. � 483.13(c). Petitioner has not overcome that showing by a preponderance of the evidence.
Quality of care (Tag F 324) 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. 2, at 44-56) Resident 8 As previously noted, Resident 8 was admitted to the facility with diagnoses that included multi-infarct dementia and blindness. Resident 8's Minimum Data Set (MDS), dated May 25, 2001, revealed short and long term memory problems and moderate impairment with decision-making. Further, the MDS noted that the resident had wandering behavior daily during the seven days prior to completion of the MDS, and the MDS also noted socially inappropriate and disruptive behavior four to six of the seven days of observation prior to the completion of the MDS. A review of the care plan, dated May 25, 2001, revealed a goal that the resident would exhibit minimal inappropriate behavior. The facility proposed to accomplish its goal by means of the following interventions:
CMS Ex. 2, at 45. From May 30, 2001 through August 2001, the nursing notes revealed multiple entries related to inappropriate behavior, sometimes of a sexual nature. Some of the Resident's conduct involved wandering around the facility without clothes, urinating in inappropriate places including other residents' beds, groping other resident's buttocks, screaming loudly, getting into another resident's bed, and pushing furniture around from one room to another. CMS Ex. 2, at 45-46. The record review of the Patient QA Reporting Forms for Resident 8 revealed multiple falls, skin tears, bruises, and resident to resident altercations during the month of May 2001 through August 2001. CMS Ex. 2, at 47-49. With respect to the multiple instances of inappropriate behavior exhibited by Resident 8, the facility's routine approach was to redirect. CMS Ex. 2, at 49-50. The approaches in the care plan were not re-evaluated for effectiveness nor additional interventions attempted to address the Resident's continuing behavior problems. CMS Ex. 2, at 50. Discussion Petitioner argues that when the facility staff used the term "redirection" as an intervention for dealing with Resident 8's inappropriate behavior, it was meant as a "catchall" word to describe multiple types of appropriate interventions. These include diverting his attention, escorting the Resident from an area, or talking to the Resident. P. Br. at 37. Petitioner's approach to handling Resident 8's behavioral problems was aptly summarized by the DON on August 21, 2001, when she stated that "the CNAs directed the resident. You almost have to do the same thing over again, because it's repetitive behavior." CMS Ex. 2, at 50. Thus, as stated by CMS, Petitioner simply repeated the same limited repertoire of responses that had proven ineffective. CMS Br. at 24. Petitioner's approach is wholly inconsistent with its own abuse policy. That policy clearly states that residents who present a risk to others, whether physical or mental, are to be monitored by all staff. If the planned interventions are not effective, the care plan is revised to offer alternative interventions. In this case, I find that Petitioner was insistent on not deviating from its "panacea remedy" of redirection. CMS Ex. 16, at 3. Moreover, I do not find in the record any effort on the part of the facility to implement any of the following measures set forth in its abuse policy:
Id. The record shows that the facility did not deviate from its failed approach at redirection. I do note that on one occasion, on August 6, 2001, Resident 8 was moved to another room after he was injured when knocked down by another resident for "getting in his face." P. Ex. 4, at 16. However, the room change did not resolve the inappropriate behavior. Resident 8 continued to be confrontational, exposed his genitals, and yelled during the night. Only once, on August 31, 2001, did the facility provide one-on-one care. Resident 30 Resident 30 was admitted to the facility with profound dementia on February 22, 2001. The MDS, dated June 5, 2001, indicated that the Resident was severely impaired in the area of cognition. The only behavior pattern of concern at the time of the MDS assessment was wandering. The care plan, dated June 8, 2001, indicated that the Resident was at risk for injury to self and others. Review of the nurse's notes for July 30, 2001 revealed that the Resident's aggressive behavior included cursing, and threats to "knock other's head off." CMS Ex. 27, at 7-8. On August 6, 2001, the nurse's notes stated that Resident 30 had been very agitated and verbally aggressive towards other residents and staff. Petitioner's redirection of Resident 30 was unsuccessful. On August 20, 2001, there was a verbal altercation between Resident 30 and another resident. Resident 30 was redirected and given Haldol (7) at 7:25 p.m. However, at 7:55 p.m., without provocation, Resident 30 physically assaulted another resident, striking the resident with his fist and causing a skin break on the left inner eyebrow. No new interventions were added to the care plan and, upon interview, facility staff stated that no new interventions had been put in place to prevent further episodes of aggression. CMS Ex. 2, at 50-51. Discussion Petitioner argues that the survey report cites only one incident involving a physical altercation, and the other allegations regarding Resident 30 involve previous verbally aggressive behavior. Thus, Petitioner maintains that it was not put on notice that the Resident's behavior would escalate to the point of violence. Assuming, arguendo, that the facility was operating under the belief that Resident 30 had not physically acted out his verbal aggression until August 20, 2001, Petitioner should have foreseen the likelihood that the Resident could become physically aggressive. In fact, on July 30, 2001, Resident 30 was noted to be agitated and was cursing, pushing, and making threats to "knock your head off." CMS Ex. 27, at 12. Additionally, Petitioner previously documented that Resident 30 could pose injury to staff, self, and peers. In fact, Resident 30 had been given psychotropic therapy, among others, due to physical and verbal abuse. He was also deemed a potential target of abuse from peers. See Resident Assessment Protocol (RAP) summary dated March 6, 2001. CMS Ex. 27, at 52. In spite of Resident 30's history of aggressive tendencies and his eventual physically striking out against another resident on August 20, 2001, the facility's social worker concluded on August 22, 2001 that Resident 30 was a pleasant man, and that no concerns were noted. CMS Ex. 2, at 51. Not surprisingly, the surveyors found no incident reports regarding the Resident's behavior on August 20, 2001. This passive attitude by the facility accounts for the fact that no new interventions regarding assaultive behaviors were added to the care plan as noted by the facility staff. Id. Resident 28 Resident 28 was admitted to the facility with diagnoses of congestive heart failure, high blood pressure, cerebral vascular accident, seizures, and dementia on June 23, 2000. On July 28, 2001, the Resident attempted to get out of the unit by breaking out a window with a chair. She repeated the attempt by breaking another window with a chair on August 8, 2001. CMS Ex. 2, at 52. The SOD alleges that, on the back of a behavior sheet for August 24, 2001, facility staff noted that Resident 28 was returned to the facility 6 times. During an interview on August 29, 2001, a direct care staff member stated:
CMS Ex. 2, at 53. Discussion Petitioner argues that CMS's assertion that Resident 28 eloped on several occasions is based on unreliable statements allegedly made by facility staff. Although Petitioner acknowledges that the Resident wandered outside the facility, it explains that the elopement occurred prior to her move to the SPARK (8) unit. P. Br. at 40-41. Petitioner adds that the Resident's wandering outside the facility occurred in the year 2000 and that proper measures were subsequently taken to prevent further elopements. According to Petitioner, the Resident's elopement problems were addressed by moving her to the SPARK unit during the day from 7:00 a.m. to 9:00 p.m. Petitioner further argues that there was no way for her to wander outside the building except by breaking a window. P. Br. at 41. It is true, as stated by Petitioner, that the facility record reflects that the Resident was returned to her room 6 times, and not returned to the facility 6 times. (CMS Ex. 2, at 53). However, it would make no sense for the Resident to be returned to her room if she happened to be moving about the common areas of her unit. Nowhere in the record does it say that the Resident was to be confined exclusively to her room. It is very telling that the record associates the return of Resident 28 to her room with her statement that, "I am going home." P. Ex. 11, at 22. Resident 28 was admitted to Petitioner's facility on June 23, 2000, and shortly thereafter she was placed in the SPARK day care unit. The record reflects that as early as July 4, 2000, Resident 28 was already attending SPARK during the day. CMS Ex. 26, at 27. Petitioner acknowledges that the Resident wandered outside of the facility in the year 2000, but alleges that those elopement incidents occurred prior to her move to the SPARK unit during the day. The record, however, lends no support to Petitioner's contention inasmuch as the elopements referenced in the record for the year 2000 took place in the last quarter of that year, several months after her assignment to the SPARK unit day care. In this regard, a January 2, 2001, entry in the social progress notes states that in the 4th quarter of the year 2000, Resident 28 had 2 episodes of leaving the facility. CMS Ex. 26, at 33. Petitioner asserts that there was no way out of the SPARK unit, except by breaking a window. P. Br. at 41. However, the record documents that the Resident wandered out of the facility on August 4, 2001 by opening a window and crawling out. CMS Ex. 26, at 50. Thus, contrary to Petitioner's contention, Resident 28 eloped several times even after she was placed in what was allegedly a secure unit. Moreover, the facility generated no incident reports for the eloping incidents of Resident 28, and no behaviors were charted on the behavior sheet. Petitioner does not dispute this point. CMS Ex. 2, at 53. Resident 7 Resident 7 was admitted to Petitioner's facility with a diagnosis of cerebral vascular accident on July 24, 2001. She had problems with long and short term memory and was moderately impaired for decision making. She was totally dependent for transfer and was mobile with wheel chair, only with supervision. Documentation on the Patient QA Reporting Form, dated August 25, 2001, revealed that the Resident eloped from the facility and was found in the wheelchair on the sidewalk by the side of the building. Blood was noted on her wrists, but she refused to allow anyone to examine the bleeding site. CMS Ex. 2, at 54. Additionally, the facility documented that Resident 7 also wandered outside the facility on August 26 and 28, 2001. Id. Discussion Petitioner contends that staff monitored Resident 7 very closely, which accounts for elopements being limited to the sidewalk by the building. According to Petitioner, facility staff checked the Resident's whereabouts and the exit doors every 15 minutes. As a result, concludes Petitioner, Resident 7 would be promptly located if she successfully exited the building. Furthermore, states Petitioner, new interventions were added with each elopement, and the physician and responsible party would be immediately notified. Petitioner also argues that, contrary to CMS's assertions, all doors are locked and fit with alarms, except for the front door. P. Br. at 41-42. Although Petitioner contends that, with every elopement the facility would implement new interventions, I note that, aside from close monitoring and the placement of alarms after the August 25, 2001 elopement, no new interventions addressing elopement are mentioned. CMS Ex. 2, at 54. Furthermore, it is appalling that Petitioner would describe as innocuous the Resident's elopements just because they were limited to the sidewalk around the facility building. As noted earlier, when Resident 7 was found outside, on August 25, 2001, she was bleeding from the wrist, and there is no indication what caused the bleeding. It is plainly obvious that once a resident is out of sight of the facility staff, and outside without supervision, the resident is exposed to serious harm or even death. The effectiveness of the preventive measures taken after the August 25, 2001 elopement fell short inasmuch as the Resident was able to elope twice in the succeeding days. On August 26, 2001, she was found near the roadway, unsupervised. It had been noted that the Resident had memory problems and a moderately impaired ability for decision making. She needed assistance for transfers and was mobile with a wheelchair, only with supervision. Nonetheless, she was found by the side of the road, without supervision. CMS Ex. 18, at 109. The ineptness of the elopement prevention measures allegedly undertaken by Petitioner's facility was made more evident when Resident 7 eloped again on August 28, 2001. CMS Ex. 18, at 111. It is also worthy of mention that although Petitioner placed alarms on its doors, it admits that it placed no alarm on the front door. P. Br. at 42. I find that CMS established a prima facie case that Petitioner's facility did not ensure that each resident receives adequate supervision and assistance devices to prevent accidents. Petitioner did not overcome that showing by a preponderance of the evidence.
Nursing Services (Tag F 353) The applicable regulations require that the facility must 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. 2, at 56-58) Based on staff interview and review of facility records and documentation, it was determined that the facility failed to have sufficient nursing staff to provide services to attain the highest practicable physical, mental, and psychosocial well-being of each resident in accordance with their assessments and plans of care. Discussion CMS substantiates its findings under Tag F 353 by cross referencing the violations under Tags F 223, F 224, F 225, F 226, F 250, and F 324. Petitioner, on the other hand, contends that CMS cannot rely on the mere cross referencing of previously cited Tags, but should be required to offer independent evidence that staffing was insufficient. P. Br. at 42. Petitioner cites Life Care Center of Hendersonville, DAB CR542 (1998) in support of its argument. In that case, ALJ Kessel held that although an inference may be drawn that a facility is inadequately staffed from evidence that it is providing deficient service to its residents, it does not follow that a prima facie case of non compliance with the staffing requirements may be based entirely on evidence that a facility is providing inadequate care. I agree with that reasoning. In the case before me, CMS has not even made the slightest attempt to establish a nexus between the deficiencies in the previously cited Tags and an insufficient number of required staff at Petitioner's facility. I agree that, whereas the presence of deficiencies could be indicative of an insufficient number of nursing staff, it is necessary to show that the occurrence of those deficiencies is, in some way, linked to inadequate staffing. In fact, it is possible for CMS to establish a prima facie case of inadequate staffing in the absence of any other cited deficiency. CMS may do so based on the number of nursing staff available for a given population of residents and the unique needs of each individual resident. Although the regulations do not require a specific ratio of nursing staff to residents, there are reasonable parameters established by industry practice. If a facility falls well below those parameters, CMS need not wait until harm is visited upon the residents before it enforces the requirements of 42 C.F.R. � 483.30(a). Thus, I find that CMS reads too much into the regulations when it reasons that the existence of a deficiency under any Tag is conclusive of inadequate staffing. In view of the foregoing, I conclude that CMS has not established a prima facie case under 42 C.F.R. � 483.30(a).
1. Administration (Tag F 490) Surveyor findings as reflected in the SOD (CMS Ex. 2, at 58-59) Based on medical record review, resident and staff interviews, it was determined that the facility:
Discussion Petitioner argues that CMS has failed to link any of the allegations to the facility's administration. Petitioner relies on the decision in Heritage Manor of Columbia, DAB CR995 (2003), in support of its contention that the imposition of Tag F 490 is improper. In that decision, at page 22, the ALJ stated:
I agree with the proposition that evidence of Petitioner's noncompliance is not demonstrative, per se, of failure to comply with administration requirements. It is necessary that there be a nexus between Petitioner's noncompliance and the manner in which the facility is administered. In the case at hand, there is a clear link between the deficiencies cited at Tags F 223, F 225, F 226, and F 324, (9) and Petitioner's noncompliance with administration requirements. The situation here is not analogous to that which I considered at Tag F 353. Whereas, at Tag F 353, CMS did not establish a connection between the number of nursing staff and the cited deficiencies, there is here an unequivocal indication that administrative shortcomings were instrumental in the failure to effectively utilize facility resources to attain or maintain the highest practicable physical, mental, and psychosocial well-being of each resident. I need not strain to infer that there were systemic flaws in the facility administration when it did not utilize its resources to investigate allegations of resident abuse and injuries of unknown origin, and where Petitioner could not furnish evidence of investigations regarding these incidents. Petitioner had in place a written policy concerning resident abuse, but did not deploy resources to ensure that those policies were properly applied. Additionally, the facility's resources were not effectively and efficiently administered in order to provide adequate supervision to prevent elopement of residents. These deficiencies denote the absence of aggressive administration of facility resources directed at providing for the well-being of its residents. I find that CMS established a prima facie case that Petitioner failed to effectively utilize facility resources to attain or maintain the highest practicable physical, mental, and psychosocial well-being of each resident. Petitioner has not overcome that showing by a preponderance of the evidence.
2. Administration (Tag F 520) Surveyor findings as reflected in the SOD (CMS Ex.2, at 60-61) Based on staff/administrative interviews, and record review, it was determined that the facility designated a Quality Assurance/Improvement (QA/QI) Committee. (10) There was no physician appointed to Petitioner's QA/QI Committee that would oversee QA/QI issues. During a telephone interview on August 28, 2001, the Medical Director admitted that she was not on the QA/QI Committee. The Medical Director noted, however, that she was on the Utilization Review (UR) Committee that looks at infection control and pharmacy reports. It was further learned during an interview on August 27, 2001, that the facility did not have a permanent QA Director, and that a Licensed Practical Nurse (LPN) was temporarily overseeing the committee. Discussion Section 483.75(o)(1) of 42 C.F.R. requires that a facility must maintain a QA/QI Committee consisting of the Director of Nursing, a physician designated by the facility, and, at least three other staff members. The QA/QI Committee is required to meet, at least quarterly, to identify issues with respect to which quality assessments and assurance activities are necessary, and develop and implement appropriate plans of action to correct identified quality deficiencies. Although Petitioner established a UR committee for the limited purpose of studying infection control and pharmacy reports, it failed to establish the much broader committee required by regulation; that is, a QA/QI Committee. Petitioner points to meetings of the UR committee (P. Ex. 14) and argues that the meetings of that group also embrace the meeting of the QA/QI Committee. P. Br. at 45-46. I am not persuaded that the minutes of the UR committee reflect that it considered matters in conjunction with a QA/QI Committee designed to develop and implement appropriate plans of action to correct and identify quality deficiencies. I fail to see how that which is limited in scope encompasses that which is broader in scope. Thus, I find that CMS has established a prima facie case that Petitioner was not complying substantially with the requirements at Tag F 520. Petitioner has not overcome that showing by a preponderance of the evidence.
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 nursing homes participating in the Medicare/Medicaid programs. Petitioner, on the other hand, has not overcome CMS's showing by a preponderance of the evidence. Furthermore, I sustain CMS's finding that Petitioner's level of noncompliance constitutes immediate jeopardy under Tags F 223, F 225, F 226, and F 324. Petitioner contends that the immediate jeopardy Tags for which the facility was cited were not warranted at any level, much less at a level alleging immediate jeopardy. Petitioner further alleges that CMS has failed to support the existence of immediate jeopardy with substantive evidence. P. Response Br. at 30. This reasoning is misplaced inasmuch as the burden is not upon CMS to establish that immediate jeopardy is warranted, but rather upon Petitioner to demonstrate that CMS's finding of immediate jeopardy is clearly erroneous. The regulations define immediate jeopardy as a situation in which a 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. It is well settled that a finding of immediate jeopardy does not require "a finding of present harm, but also encompasses a situation that is [likely to cause] harm." Hermina Traeye Memorial Nursing Home, DAB No. 1810 (2002). The regulations further provide that 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 with the provider to prove that CMS's determination of immediate jeopardy is clearly erroneous. As stated earlier, Petitioner has denied the existence of immediate jeopardy, but has failed to come forward with cogent reasons for its contention. The evidence in this case is clear that Petitioner did not provide Residents 20, 12, and 8 with an environment free from verbal, physical, and mental abuse. Moreover, Petitioner failed to investigate and report to appropriate individuals and entities all violations involving mistreatment, neglect or abuse, including injuries of unknown origin (Residents 8, 7, and 11), as well as to develop and implement written policies and procedures that prohibit mistreatment, neglect, and abuse of residents. Furthermore, Petitioner failed to ensure that each resident receives adequate supervision and assistance devices to prevent accidents. The latter infraction is evidenced by the facility's failure to provide adequate supervision to Residents 8 and 7, who exhibited aberrant behavior, in order to protect them and others from injury and abuse, as well as by the elopements of Residents 28 and 30. The record reflects that the residents mentioned above, as well as other residents, were exposed to the likelihood of suffering serious injury, harm, impairment, or death by the facility's passive posture in the face of resident abuse, the presence of injuries of unknown cause that were not investigated, the failure to adequately supervise residents who exhibited aberrant behavior, and the failure to provide proper supervision to residents that were at risk for elopement. In its defense, Petitioner has relied on mere general denials, but has fallen short of articulating persuasive reasons for its contention that CMS's finding of immediate jeopardy is not appropriate. It unquestionable that the facility should have foreseen that if the abusive conduct of its staff was not thoroughly investigated and the aggressive behavior of some of its residents remained unchecked, an unsafe environment would be created that would cause or would be likely to cause its residents serious injury, harm, impairment, or death. In addition, Petitioner should have also foreseen that the failure to bring to bear adequate supervision would place residents that were at risk for elopement in a situation that would cause or would be likely to cause serious injury, harm, impairment, or death. As has been discussed earlier, Petitioner's dereliction not only had the likelihood of causing serious injury or harm to its residents, but in fact did cause harm to some of its residents. Pertinent to this is the fact that some residents were physically injured in altercations with other residents who exhibited aggressive behavior, and a resident who eloped was found bleeding from the wrists (Resident 7).
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, based on the severity of the deficiencies and the facility's culpability, the imposition of a $5000 per day penalty from August 24, 2001 through August 29, 2001 was not unreasonable. (11) It was also reasonable for CMS to conclude that the circumstances surrounding the deficiencies described above demonstrated a systemic failure to prevent, investigate, and report resident abuse and to prevent residents at risk of eloping from leaving Petitioner's facility undetected. Furthermore, the facility staff displayed a crass disregard for the dignity and respect of its residents through mental and emotional abuse disguised as "redirection interventions" when in reality those actions amounted to an intentional infliction of mental and emotional distress. Petitioner has not come forward with evidence to rebut the reasonableness of the immediate jeopardy CMP. V. Findings and Conclusions regarding the November 1, 2001 survey CMS contends that Petitioner has waived its right to appeal Tags F 226, F 246, F 253, F 278, F 309, F 323, F 324, F 365, F 369, and F 406. I find that Petitioner's Amended Hearing Request filed on February 5, 2002, sufficiently places the previously mentioned Tags at issue.
Section 483.10(f)(2) of 42 C.F.R. provides that a resident has the right to prompt efforts by the facility to resolve grievances the residents may have, including those with respect to the behavior of other residents. Surveyor findings for Tag F 166 as reflected in the SOD (CMS Ex.29, at 1-2) Based on policy review, record review, and staff and resident reviews, CMS concluded that the facility failed to file and inform residents on the status of grievances as stated in their grievance policy and procedure protocol for 5 of 7 sampled residents. In the group interview it was revealed that 5 of 10 residents had grievances regarding lost items. The residents stated that they had reported missing items, and although they were told that there would be investigations, they were never informed of the results of any investigations. A review of the particular case of Resident 27 revealed that there was nothing on file regarding his grievance of missing items on October 28, 2001. The social worker reported that the grievance was never filed because the items were found. Upon further inquiry, on October 31, 2001, a family member stated that she was not given a full account of the items that were found and that there were still missing items of clothing. CMS Ex 29, at 1-2. On November 1, 2001, the social worker informed the surveyors that she was unaware that items were still missing, and asked the surveyor for a list of items claimed by the family member to be still missing. That same day when the items could not be found after a search, the facility went out and purchased new clothing for the resident. Id. Discussion Section 483.10(f)(2) of 42 C.F.R. provides that a resident has the right to prompt efforts by the facility to resolve grievances the resident may have, including those with respect to the behavior of other residents. CMS does not contend that Petitioner did not make prompt efforts to resolve the residents' grievances. However, CMS does allege that the facility did not log in a grievance regarding Resident 27's missing items, and that it failed to notify the family member of the resolution of the grievance. Petitioner contends that from the survey report alone, it is evident that the facility complied with both the plain language and intent of the regulation. That is, it acted promptly to resolve Resident 27's grievance regarding missing clothing. P. Br. at 47. I note that the SOD indicates that Resident 27's grievance was filed on October 28, 2001, and that the following day the resident's family was called and notified that the missing items were found. When the facility learned on November 1, 2001 that the resident's family believed that items were still missing, it replaced those items through a purchase on that same day, after an additional search was unsuccessful. CMS Ex. 29, at 2. I agree with Petitioner that it has complied with requirements of the cited regulation. CMS provides no support for the additional requirements regarding logging in and reporting to family members. (12) Although the SOD indicates that those additional requirements are self-imposed in the facility's grievance policy, CMS has not made that policy language available for my review and analysis. CMS Ex. 29, at 1. In view of the above, I find that CMS has failed to established a prima facie case that Petitioner was not in substantial compliance with 42 C.F.R. � 483.10(f)(2).
Section 483.15(a) of 42 C.F.R. provides that the facility must promote care for residents in a manner and in an environment that maintains or enhances each resident's dignity and respect in full recognition of his or her individuality. Surveyor findings for Tag F 241 as reflected in the SOD (CMS Ex.29, at 4-5) Resident 33 required extensive assistance in personal hygiene with one person assistance. At 12:45 p.m. on October 30, 2001, the resident's hair was observed in a state of dishevelment. She made tearful entreaties to the facility staff to have her hair braided the way she likes it, but the staff was not responsive to her needs. It was not until the following morning, after prodding by the surveyor, that Resident 33's hair was neatly braided, and she was pleased. Discussion Petitioner appears to argue that the facility was sensitive to the resident's needs, and that Resident 33's hair was braided in stages. Furthermore, Petitioner alleges that staff did want to groom the resident's hair, but that her head was tender and she would weep when it was combed. P. Br. at 49. I am not persuaded that the resident's hair had to be done in stages such that the whole process had to be carried over from one day to the next. The resident did admit that it hurt when her hair was braided, and she did cry, but she preferred suffering some discomfort rather than being unkempt. CMS Ex. 29, at 5. CMS has established a prima facie case that Petitioner was not in substantial compliance with 42 C.F.R. � 483.15(a). Petitioner has not overcome that showing by a preponderance of the evidence.
Section 483.15(h)(2) of 42 C.F.R. states that the facility must provide housekeeping and maintenance services to maintain a sanitary, orderly, and comfortable interior. Surveyor findings for Tag F 253 as reflected in the SOD (CMS Ex.29, at 8-10) Based on observations and staff interviews during the course of the three day survey, it was determined that the facility failed to provide effective housekeeping and maintenance services. Resident rooms were noted to have dust accumulated on the window blinds, air conditioner vents, light fixtures, and bed frames. Wallpaper was observed to be torn. An electric wheelchair was observed to be very dirty and dusty all over. Tube feeding equipment was also noted to be soiled with a sticky substance. Finally, trash was found behind the ice machine in the nourishment room. Discussion Petitioner's only defense regarding this deficiency is that CMS has presented no evidence. However, the surveyor's observations as stated in the surveyor record of observations and worksheet, as set forth in the SOD, suffice to establish a prima facie case of lack of substantial compliance. Thus, Petitioner's general denial fails to rebut CMS's showing by a preponderance of the evidence.
Section 483.25(h)(1) of 42 C.F.R. provides that the facility must ensure that the resident environment remains as free of accident hazards as is possible. Surveyor findings for Tag F 323 as reflected in the SOD (CMS Ex.29, at 16-18) Based on observation, record review, and family interview, CMS determined that the facility failed to provide an environment free from hazards by leaving a medication room unlocked, failing to secure hazardous cleaning chemicals, and by leaving unthickened liquids within reach of residents identified to be at risk of aspiration. On October 31, 2001, Resident 16, who had been identified with a need for honey thickened liquids, was found to have a styrofoam pitcher within her reach containing unthickened ice water. Resident 1 was admitted to the facility with a history of aspiration and multi infarct dementia. Because of "silent penetration/aspiration on thin liquids" his fluid intake was limited to nectar thickened liquids. Also on October 31, 2001, a partially filled bottle of Hawiian punch was noted sitting within reach of the Resident on the bedside table. The Resident's wife also reported that on a prior occasion she had observed a bottle of Pepsi in the room, when the Resident was unattended. Finally, the surveyor noted that a storage closet on the main hall was found unlocked. A plastic bottle, identified as a deodorizing liquid, and a plastic bottle, identified as cleaner/floor stripping agent, were found on the floor of the closet. At the end of another hall, a storage room, which contained bottles of floor stripping agent and glass cleaner with ammonia, was found with the door propped open. Clearly, these storage spaces contained harmful items. Discussion Petitioner contends that CMS has not established a prima facie case with respect to Residents 1 and 16 because there is no evidence that the liquids in questions were within reach of the Residents. P. Response Br. at 29. With respect to the Hawiian Punch sitting on the resident's bedside table, Petitioner also argues that such is a situation over which the facility has no control, as the bottle appears to have been left behind by a visitor. Finally, Petitioner contends that these hazards are not the type contemplated by the regulation. With respect to the storage spaces that were found either unlocked or propped open, Petitioner argues that the deficiencies charged by CMS lack specificity. I find that the regulation does include situations such as those noted under Tag F 323 inasmuch they refer to incidents that could be reasonably considered possible accident hazards. In the case of Resident 16, there is nothing in the record that would allow me to infer that she would not be able to reach the pitcher of water and drink the unthickened fluid. Additionally, I must infer that the water had been placed in the room by staff for the Resident to drink, and that the staff made the water available to the Resident without thickening as ordered by the physician. CMS Ex. 29, at 16. With respect to Resident 1, I am not persuaded by Petitioner's argument that it is not responsible for acts of neglect by third parties entering the facility. I find that there is no room in the law or regulations for such a narrow interpretation of the facility's duty of care towards its residents. Thus, even assuming as true that the drink was left behind in the Resident's room by a visitor, which I deem to be mere speculation, I conclude that the onus is on the facility to ensure that its residents are not placed at risk, whether it be due to neglect by the facility staff or by a visitor. In the particular case of Resident 1, it was noted that he was not to be left unattended, yet the wife had found him alone in the room on numerous occasions. If the facility had been providing the required care, it should have been aware that a drink unfit for Resident 1 had been left on his bedside table. The fact that the wife and other family members had expressed a concern that the Resident may try to drink anything that was left "sitting around" that was not of the proper consistency, is an indication that the unthickened drink posed a real hazard for Resident 1. CMS. Ex. 29, at 17. As concerns the portion of the deficiency charging the facility with leaving the storage space doors unlocked or propped open, I agree that the allegations as stated by CMS are too vague and imprecise to establish a prima facie case under 42 C.F.R. � 483.25(h)(1). Nonetheless, CMS has established a prima facie case that Petitioner was not in substantial compliance with regard to Residents 16 and 1. Petitioner has not overcome that showing by a preponderance of the evidence.
Although Petitioner removed the conditions for the existence of immediate jeopardy as of August 29, 2001, deficiencies continued to be present at the less than immediate jeopardy level. Petitioner did submit a plan of correction in the latter part of September 2001, but the plan was deemed inadequate. CMS Exs. 2 and 10. In view of the foregoing, I conclude that CMS satisfied the criteria for imposing remedies at the less than immediate jeopardy level. First, CMS established a prima facie case, which Petitioner did not rebut, that, as of August 30, 2001, it was not complying substantially with the participation requirements. Second, Petitioner did not show it had eliminated the noncompliance on any date prior to November 25, 2001. Thus, I find that CMS may impose a CMP in the range of from $50 to $3,000 per day, beginning on August 30, 2001 and ending on November 25, 2001. CMS imposed a $100 per day CMP for the period beginning on August 30, 2001 and ending on November 25, 2001. In view of the severity of the deficiencies and culpability of the facility, I sustain CMS's imposition of a penalty, but reduce the amount to $50 per day. A penalty of $50 is the lowest penalty which may be imposed for deficiencies that are at the less than the immediate jeopardy level of noncompliance. 42 C.F.R. � 488.438(a)(1)(ii). The beginning date of the penalty is the date that CMS first determined Petitioner not to be complying substantially with participation requirements at the less than immediate jeopardy level. 42 C.F.R. � 488.440(a). CMS had established a CMP of $100 per day based on deficiencies included in more than a dozen different Tags. As discussed earlier, however, CMS did not establish a prima facie case regarding some of the cited Tags, while others were not addressed in its brief. In view of the fact that I have reduced the CMP to the lowest per day amount possible under the regulations, there is no issue as to the reasonableness of the amount of the CMP. IV. 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 on August 24, 2001 through August 29, 2001, and that the imposition of a CMP of $5000 per day is reasonable. Additionally, I conclude that a CMP of $50 per day is reasonable for deficiencies at the less than immediate jeopardy level based on Petitioner's noncompliance beginning August 30, 2001 and ending November 25, 2001. |
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José A. Anglada Administrative Law Judge |
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1. In its brief, CMS now contends that Petitioner waived its right to contest some of the deficiencies covered in the survey ending November 1, 2001. CMS Brief (Br.) at 35. 2. The period of noncompliance ended on November 24, 2001, for a total CMP amount of $38,700. 3. As a result of my June 20, 2003 ruling, CMS filed redacted exhibits, but inadvertently failed to include all the redacted exhibits. By motion dated March 15, 2004, CMS filed a motion to supplement its exhibits, only to include the missing redacted exhibits, and to extend the briefing deadlines. Petitioner requested that CMS's motion to supplement be denied. On March 25, 2004, I issued an Order granting CMS's motion limited to previously filed exhibits that had been redacted and extended the briefing schedule. 4. Petitioner's initial exhibit list contained 24 exhibits. By motion dated March 15, 2004, Petitioner filed a motion to supplement exhibits and submitted P. Exs. 12A, 25, and 26. 5. The materials were in reality sent to the North Carolina Department of Health and Human Services, Division of Facility Services, Health Care Personnel Registry Section. 6. In fact, the response from the North Carolina Department of Health does not say that the reported behavior did not constitute a violation of the nursing code. 7. Haldol is an antipsychotic medication. 8. Locked unit. 9. I will not consider Tag F 224 or Tag F 250 which CMS did not address in its brief. 10. The regulation refers to this Committee as a Quality Assessment and Assurance Committee. 42 C.F.R. � 483.75(o)(1) . For purposes of this decision, this Committee will be referred to as the QA/QI Committee. 11. I note that the scope and severity assigned by the State agency in this case is a level "L". Under the State survey rating system immediate jeopardy deficiencies are identified by degrees of seriousness by the letters "J", "K" and "L", with "J" representing the lowest degree of severity and "L" the highest. 12. In the case of Resident 27, the family was notified on October 29, 2001 of the results of the grievance. When the family made known their belief that items were still missing, and these were purchased by the facility, it is reasonable to infer that the family became aware of the facility's purchase to replace the missing items. CMS has not argued otherwise. | |