SUBJECT:

Vandalia Park

Petitioner,

Centers for Medicare & Medicaid Services.

DECISION

I sustain the determination of the Centers for Medicare & Medicaid Services (CMS) to impose civil money penalties of $250 against Petitioner, Vandalia Park, for each day of a period that began on September 20, 2002 and which ran through October 17, 2002.

I. Background

Petitioner is a skilled nursing facility in Vandalia, Ohio. It participates in the Medicare program. Its participation in Medicare is governed by sections 1819 and 1866 of the Social Security Act (Act) and by federal regulations at 42 C.F.R. Parts 483 and 488. The Act and regulations authorize CMS to impose remedies, including civil money penalties, against a facility that does not comply substantially with Medicare participation requirements.

This case arises from a survey of Petitioner's facility that was conducted on September 20, 2002 (September survey) by the Ohio Department of Health (ODH). The surveyors found that Petitioner was not complying substantially with four Medicare participation requirements. CMS concurred with these findings and determined that Petitioner's noncompliance spanned a period that began on September 20 and that continued through October 17, 2002. It determined to impose civil money penalties of $250 per day against Petitioner for each day of the period. The total civil money penalties that CMS determined to impose is $7,000.

Petitioner requested a hearing and the case was assigned to me for a hearing and a decision. CMS moved for summary disposition. On January 15, 2004 I issued a decision granting CMS's motion and entering summary disposition in its favor. ⁽¹⁾ Petitioner appealed my decision to the Departmental Appeals Board (Board Appellate panel). On August 29, 2004 a Board Appellate panel sustained my decision in part and reversed and remanded it in part. It sustained my decision as to two of the noncompliance findings made at the September survey. It held, however, that there were disputed issues of fact as to the other two noncompliance findings and it remanded the case to me with instructions that I hold an in-person hearing as to these findings and as to the issue of penalty amount.

I held an in-person hearing in Cincinnati, Ohio on March 3, 2005. Neither party offered in-person testimony. At the hearing I received from CMS exhibits consisting of CMS Ex. 1 - CMS Ex. 11; CMS Ex. 13 - CMS Ex. 18; CMS Ex. 20; and CMS Ex. 22. I received from Petitioner exhibits consisting of P. Ex. 1; P. Ex. 2; and P. Ex. 4. The parties submitted post-hearing briefs.

II. Issues, findings of fact and conclusions of law

A. Issues

In my original decision in this case I found that Petitioner failed to comply substantially with four Medicare participation requirements. These requirements are set forth at 42 C.F.R. �� 483.13(b), 483.13(c), 483.15(g), and 483.25. The Appellate panel sustained my findings as to 42 C.F.R. �� 483.13(c) and 483.25 but reversed and remanded my findings as to the other two participation requirements. It affirmed my finding as to duration of noncompliance. It vacated my finding sustaining the penalty amounts of $250 per day. In light of that, the issues that remain to be heard and decided in this case are whether:

1. Petitioner failed to comply substantially with the participation requirements that are set forth at 42 C.F.R. �� 483.13(b) and/or 483.15(g); and

2. Civil money penalties of $250 are reasonable for each day of the period from September 20 through October 17, 2002.

B. Findings of fact and conclusions of law

I make findings of fact and conclusions of law (Findings) to support my decision in this case. I set forth each Finding below as a separate heading. I discuss each Finding in detail.

1. Petitioner failed to comply substantially with the participation requirements that are set forth at 42 C.F.R. �� 483.13(b) and 483.15(g).

It is unsurprising that the hearing that I held in this case lasted only 32 minutes and that I received no testimony during the hearing. All of the noncompliance findings in this case, including the two that were remanded to me by the Appellate panel, were based on a review of Petitioner's resident records by the ODH surveyors. The surveyors were not eyewitnesses to any of the events that are the basis for the noncompliance findings. CMS had no testimony that was based on personal observation. ⁽²⁾ Petitioner, by contrast, forfeited its chance to offer testimony by failing to comply with my pre-hearing order that it reduce its proposed testimony to written direct made under oath and exchange it with CMS in advance of the hearing and, by not explaining why it did not comply with that order. Ruling on Motion to Dismiss, October 14, 2003.

As a consequence the record of this case now consists of exactly the same documents that were before me on CMS's motion for summary disposition. In effect, nothing has changed, and it is tempting simply to reissue my original decision. However, in remanding the case to me the Appellate panel raised some questions about what it speculated were conflicting facts. I am adopting my previous findings in this decision but I am also addressing the panel's questions.

a. Petitioner failed to comply substantially with the requirements of 42 C.F.R. � 483.13(b).

The regulation at issue provides that a resident of a facility "has the right to be free from verbal, sexual, physical, and mental abuse, corporal punishment, and involuntary seclusion." "Abuse" is defined at 42 C.F.R. � 488.301 to mean "the willful infliction of injury, unreasonable confinement, intimidation, or punishment with resulting physical harm, pain or mental anguish."

In my original decision I found that Petitioner violated the prohibition against abuse by willfully and unreasonably confining a resident against her will. Briefly summarized, my finding was that Petitioner's staff unreasonably restrained a resident while inserting a urinary catheter against the resident's will. The purpose of this act was to obtain a urine specimen from the resident. I found that the restraint was unreasonable because there was nothing in the resident's records to show that it was necessary. The resident's records did not suggest that it was necessary to use force in caring for the resident. Indeed, it was not even clear from the resident's record that there was a need to catheterize her in order to obtain a urine specimen. CMS alleged that the act caused the resident to experience physical harm, consisting of bruises on her wrists. I held that it was unnecessary to decide the question of whether the resident was harmed physically because the resident plainly experienced mental anguish from the staff's act as evidenced by heightened agitation.

The parties' exhibits support the same finding (Finding 2.a.) that I made previously and I reissue it. There is no more in the record at this stage of the case to support a conclusion that the staff's action was reasonable than there was when I granted CMS's motion for summary disposition. The record continues to support a finding that the resident suffered emotional distress as a consequence of the staff's forcible catheterization of her. The resident was awakened and became agitated as she was catheterized and she remained awake and walked for the remainder of the nursing shift, in the early hours of the morning. P. Ex. 2 at 12.

The weight of the evidence supports an additional conclusion, one which I did not make in my original decision, that the resident suffered physical injuries - consisting of bruises on her wrists - as a consequence of the staff's actions. ⁽³⁾ There is no evidence in the resident's treatment records to show that the bruises predated the incident in question. They were discovered by a nurse on the morning of the incident, several hours after the resident was forcibly catheterized and it is reasonable to infer that they occurred as a consequence of the resident being restrained against her will. P. Ex. 2 at 8. Nurses notes made on the days preceding the catheterization make no mention of bruises. See P. Ex. 2 at 9. I find to be unpersuasive statements made by some members of Petitioner's staff that the bruises predated the incident. The statements are hearsay, were made after the fact, and are obviously self-serving. They are not corroborated by any evidence in the resident's treatment records. Moreover, they are inconsistent, with some declarants asserting that the resident manifested bruises prior to her being catheterized and others stating that the bruises appeared after the resident was catheterized. P. Ex. 2 at 10 - 16.

In its decision the Appellate panel concluded that the evidence might be interpreted to support a conclusion that the staff's actions to restrain the resident consisted of mere "tactile stimulation" in the nature of hand holding so as to gently distract the resident while the staff catheterized her. Under this scenario, according to the Appellate panel, a fact finder might find that the staff's actions did not constitute an unreasonable restraint. I find this possibility to be unsupported by the record. The evidence in this case supports the conclusion that the resident was restrained forcibly while she was catheterized. Nothing in the record aside from the self-serving statements of Petitioner's staff, made when the incident was investigated, supports a contrary conclusion.

b. Petitioner failed to comply substantially with the requirements of 42 C.F.R. � 483.15(g).

The relevant regulation requires that a facility must provide medically related social services to each resident in order to assist him or her to attain or maintain the highest practicable physical, mental, and psychosocial well-being. In my original decision I held that the facts established a failure by Petitioner's staff to provide the resident with necessary social services after May 31, 2002. I found that one of Petitioner's residents was diagnosed to be experiencing depression and was observed to be anxious, withdrawn, and sad. The resident returned to Petitioner's facility on May 26, 2002 after an at-home visit, complaining that she had been abused by her husband during that visit. She expressed to Petitioner's staff that she was afraid of her husband. Petitioner's management reported the resident's allegations to the police. However, there were no social services notes in the resident's records after May 31, 2002 to show that Petitioner's social worker responded to the resident's problems nor was the resident's plan of care updated to address the resident's fears of her husband or to address any of the resident's ongoing psychological problems. In my decision I stressed that the issue in the case was not whether Petitioner's staff addressed the resident's problems prior to May 31, 2002 (Petitioner cited to interventions on the resident's behalf that its staff undertook before May 31) but whether Petitioner continued to provide necessary care after May 31, 2002. I based my decision that Petitioner failed after May 31 to do what was necessary on the absence of any facts showing that Petitioner attended to the resident's psychological needs after that date.

I reissue the finding (Finding 2.b.) that I made in my original decision. The resident suffered from an ongoing clinical depression. Petitioner was obligated to provide social services and additional care to the resident in order to treat the resident's condition. There is nothing in the resident's record to show that Petitioner provided social services to address the resident's depression after May 31, 2002.

In remanding this finding the Appellate panel concluded that it was possible to infer from the facts of the case that actions taken by Petitioner's staff prior to May 31, 2002 would have ongoing or future benefit for the resident that would have alleviated her depression after May 31. I have considered that possibility and I find it to be speculative and without evidentiary support. This resident suffered from an ongoing, documented, depression. Nothing in the resident's record establishes that the resident's depression resolved after May 31, 2002. Absent some evidence showing how the resident's case progressed after May 31 one is left to guess at what benefit she might have obtained from care initiated prior to that date. While anything certainly is possible - including the possibility that the resident's depression resolved without the need for additional interventions from Petitioner's staff - it is simply not reasonable to infer that resolution of the resident's condition without additional intervention from Petitioner, or at least, follow up, was the probable consequence of pre-May 31 interventions.

Petitioner's failure to provide social services to the resident includes its failure to document how the resident responded to interventions made on the resident's behalf. At the very least Petitioner's staff should have documented what, if any, benefits its interventions were having for the resident after May 31. One would expect that, minimally, Petitioner's staff, including its social worker, would have made observations of the resident's status after May 31, and would have assessed the impact on that status of previously planned and implemented interventions. How else could Petitioner's staff have known whether its interventions were working? That failure, if nothing else, was a failure by Petitioner's staff to provide necessary social services to the resident.

2. Civil money penalties of $250 are reasonable for each day of the period from September 20 through October 17, 2002.

In my original decision, at Finding 4, I sustained civil money penalties of $250 per day based on the seriousness of Petitioner's deficiencies and its compliance history. I held that the penalty amounts would be justified solely based on the seriousness of Petitioner's failure to prevent a resident from being abused and given that the penalty amount is actually quite low given the permissible range of civil money penalties (from $50 to $3,000 per day) for non-immediate jeopardy level deficiencies such as those that Petitioner manifested.

I reissue that finding. Petitioner failed even to address the issue of penalty amount in its post-hearing brief. There is nothing in the record of this case which I did not consider previously, or which I failed to discuss in my original decision, that would change the outcome on this issue.

The Appellate panel stated that my original decision implied that civil money penalties of less than $250 per day might be appropriate if Petitioner had not contravened the prohibition against resident abuse, given that the other three deficiencies were less serious than the abuse deficiency. That was not what I concluded. I held only that the abuse deficiency, in and of itself, was sufficient to justify penalties of $250 per day. I made no finding as to whether the remaining deficiencies, absent evidence of abuse, were sufficient to support $250 daily penalties. But, in fact, the remaining deficiencies by themselves easily justify penalties of $250 per day in light of their relative seriousness, Petitioner's compliance history and the low penalty amounts that CMS determined to impose. Indeed, penalties so low as those imposed here are justifiable based solely on the two deficiencies that I found in my original decision, at Findings 1.b. and d. and Petitioner's compliance history.

Steven T. Kessel

Administrative Law Judge

1. Vandalia Park, DAB CR1131 (2004).

2. CMS produced written declarations from two surveyors who participated in the September survey although these surveyors were not eyewitnesses to any event that was the basis for a noncompliance finding. At the hearing CMS withdrew the declaration of one of these surveyors. I afforded Petitioner's counsel the opportunity to cross-examine the remaining surveyor but he declined the opportunity.

3. In my original decision I held, at Finding 2.a., that there was a fact dispute concerning whether the resident experienced bruising as a result of being forcibly restrained. I address the issue of the resident's bruises now because I have afforded the parties a hearing.