SUBJECT:

Coyne Healthcare Center,

Petitioner,

Centers for Medicare & Medicaid Services.

DECISION

Coyne Healthcare Center (Petitioner) is a skilled nursing facility certified to participate in the Medicare and Medicaid programs as a provider of services. Petitioner challenges the May 9, 2003 determination of the Centers for Medicare & Medicaid Services (CMS) that it was not in substantial compliance with Medicare and Medicaid participation requirements. Petitioner also challenges CMS's imposition of a per-instance civil money penalty (CMP) of $3,000.

For the reasons set forth below, I conclude that Petitioner was not in substantial compliance with program participation requirements, and the $3,000 per-instance CMP was reasonable.

I. Background

On May 9, 2003, the Massachusetts Department of Public Health (the State agency) completed a complaint survey and determined that Petitioner was not in substantial compliance with the requirement set forth in 42 C.F.R. � 483.25(h)(2). ⁽¹⁾ The State agency concluded that Resident 19 (R19) had not been provided with adequate supervision, appropriate and adequate assistance devices to help prevent accidents and keep him safe. CMS agreed and informed Petitioner that CMS was imposing a per-instance CMP of $3,000 based solely on the deficiency found at 42 C.F.R. � 483.25(h)(2). CMS also proposed other remedies if Petitioner did not achieve substantial compliance by November 9, 2003. Petitioner did achieve substantial compliance prior to that date and, therefore, the other remedies did not go into effect.

Petitioner timely requested a hearing. CMS Ex. 3.

On June 3, 2004, I conducted a hearing on the merits of this appeal in Boston, Massachusetts. At the hearing, CMS submitted four proposed exhibits, CMS Exs. 1 - 4. Petitioner submitted 19 proposed exhibits, P. Exs. 1 - 19. CMS Exs. 1 - 4 and P. Exs. 1 - 19 were admitted into evidence. Petitioner submitted an attachment with its reply brief but did not request that the attachment be admitted into evidence.

II. Statutory and Regulatory Background

The Social Security Act (Act) sets forth requirements for nursing facility participation in the Medicare and Medicaid programs and authorizes the Secretary of Health and Human Services to promulgate regulations implementing the statutory provisions. Act, sections 1819 and 1919. The Secretary's regulations governing nursing facility participation in these programs are found at 42 C.F.R. Part 483.

To participate in Medicare and Medicaid, a nursing facility must maintain substantial compliance with participation requirements. To be in substantial compliance, a facility's deficiencies may pose no greater risk to resident health or safety than "the potential for causing minimal harm." 42 C.F.R. � 488.301. A facility's noncompliance constitutes immediate jeopardy if it "has caused, or is likely to cause, serious injury, harm, impairment, or death to a resident." Id.

Under the Act and the "quality of care" regulation concerning accidents, each resident must receive, and the facility must ensure that each resident receives adequate supervision and assistance devices to prevent accidents, in accordance with the resident's comprehensive assessment and plan of care. Act, section 1819(b); 42 C.F.R. � 483.25(h)(2).

If a facility is not in substantial compliance with participation requirements, CMS has the authority to impose one or more of the enforcement remedies listed in 42 C.F.R. � 488.406, which include imposing a CMP. See Act, section 1819(h). CMS may impose a CMP for the number of days that the facility is not in substantial compliance with one or more participation requirements or for each instance that a facility is not in substantial compliance. 42 C.F.R. � 488.430(a). When penalties are imposed for an instance of noncompliance, the penalties will be in the range of $1,000 to $10,000 per-instance. 42 C.F.R. � 488.438(a)(2).

In setting the amount of the CMP, CMS considers: (1) the facility's history of noncompliance; (2) the facility's financial condition; (3) the factors specified in 42 C.F.R. � 488.404; and (4) the facility's degree of culpability, which includes neglect, indifference, or disregard for resident care, comfort, or safety. The absence of culpability is not a mitigating factor. 42 C.F.R. � 488.438(f). The section 488.404 factors include: (1) the scope and severity of the deficiency; (2) the relationship of the deficiency to other deficiencies resulting in noncompliance; and (3) the facility's prior history of noncompliance in general and specifically with reference to the cited deficiencies.

CMS bears the initial burden of producing evidence sufficient to establish a prima facie case for each alleged violation of the regulations. CMS must set forth the basis for its determination with sufficient specificity for a petitioner to respond and come forward with evidence related to the disputed findings. The evidence set forth by CMS must be sufficient to establish a prima facie case that CMS had a legally sufficient basis to impose a remedy. In order for a petitioner to prevail, the petitioner must then prove by a preponderance of the evidence on the record as a whole that it was in substantial compliance with the relevant statutory and regulatory provisions or that it had an affirmative defense. 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); Cross Creek Health Care Center, DAB No. 1665 (1998); Emerald Oaks, DAB No. 1800 (2001).

III. Issues, findings of fact and conclusions of law

A. Issues

The first issue presented by this case is whether Petitioner was in substantial compliance with the program participation requirement set forth at 42 C.F.R. � 483.25(h)(2). If I determine that Petitioner was not in substantial compliance, I must also determine whether the $3,000 per-instance CMP was reasonable.

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 italicized bolded heading. I discuss each Finding in detail.

IV. Discussion

This alleged deficiency falls within the area of quality of care. The regulation requires, regarding the prevention of accidents, that a facility ensure that "[e]ach resident receives adequate supervision and assistance devices to prevent accidents," in accordance with the resident's comprehensive assessment and plan of care. 42 C.F.R. � 483.25(h)(2). The specific manner by which facilities are to deliver care and services is not prescribed by the regulations. Rather, a facility is permitted to determine the means to achieve the regulatory ends. In the case of section 483.25(h)(2), the regulatory end is the prevention of accidental injury of nursing facility residents. The issue is whether the quality of the supervision or the use, or lack thereof, of assistive devices at Petitioner's facility was such that residents were subject to the risk of injury from accidental causes in their daily activities. In order to evaluate a facility's compliance with section 483.25(h), it is necessary to examine whether the facility did all it could to "prevent foreseeable accidents" or whether the facility did "everything in its power to prevent accidents." Odd Fellow and Rebekah Health Care Facility, DAB No. 1839, at 6 - 7 (2002), quoting Asbury Care Center at Johnson City, DAB No. 1815, at 12 (2002) and Koester Pavilion, DAB No. 1750, at 25 - 26 (2000). Section 483.25(h)(2) requires that a facility provide both "assistive devices" and "adequate supervision" to prevent accidents. What supervision or assistive devices are adequate depends on what kind of measures would be calculated to prevent potential accidents from occurring given the known or reasonably foreseeable risks. Based on the regulation and the cases in this area, CMS meets its burden to show a prima facie case if: (1) it presents evidence that an accident occurred (with or without harm to a resident); or (2) it shows the facility failed to do what it could to supervise residents or provide assistive devices to minimize risks that could lead to accidents.

The following facts are not in dispute. R19 was a 64 year old male ⁽²⁾ with diagnoses of Huntington's disease, hypercholesterolemia, enlarged prostrate, depression, hypothyroidism, cataracts, and blepharitis. CMS Ex. 2. Huntington's disease is characterized by spasmodic movements and progressive intellectual deterioration, including dementia or psychiatric disturbances. Other Huntington's symptoms include flicking movements of the extremities, a lilting gate, motor impersistence (an inability to sustain a voluntary act requiring simple motor skills, such as sticking the tongue out), facial grimacing, ataxia, and dystonia. As Huntington's progresses, walking becomes impossible, swallowing difficult, and dementia severe. CMS Br. at 3.

Since R19 was not in the facility at the time of the survey, this case involves a closed record review by the surveyor. On November 8, 2002, Petitioner made a care plan that addressed R19's risk of falls that resulted from his having Huntington's disease, and his poor safety awareness. P. Ex. 6. On February 3, 2003 and April 30, 2003, R19's care plan was reviewed. ⁽³⁾ Id. A January 30, 2003 Minimum Data Set (MDS) assessment form indicated that R19 had an intact memory (could recall after five minutes), no behavior problems, cognitive skills for daily decision making, could make himself understood and could understand others. P. Ex. 6, at 18. He needed limited assistance in transferring, walking within his room, in the hallway, and off the unit, and needed total assistance with person hygiene and bathing. Id. at 18 - 19.

Between February 3, 2003 and April 14, 2003, R19 fell three times. After the first fall, on February 18, 2003, R19 was found on the floor by the bedside, next to a broken television set, holding a urinal, and unable to recall how he fell. CMS Ex. 3, at 2. After the second fall, on February 26, 2003, R 19 was found on the floor. R19 sustained reddened areas on both knees. Id. at 3. After the third fall, on April 14, 2003, R19 was found on the hallway floor, with a raised bruise on his left forehead. Id. at 10. During this same period, clinicians noted that R19 displayed the following symptoms and patterns of behavior: unreliable compliance with the use of bed and personal alarms, increased gait unsteadiness, upper extremity spasmodic movements, and periodic combativeness and agitation. Id.; Transcript (Tr.) 62 - 67. On or before April 24, 2003, it was concluded that R19 required an updated MDS to reflect the significant deterioration noted in this time period. P. Ex. 2; P. Ex. 7, at 20 and 39.

A second MDS assessment was completed by April 24, 2003. P. Ex. 2, at 10 - 14. The April 24, 2003 MDS indicated that R19 had deteriorated in cognitive status, communication, and in all areas of behavior. Id. The April 24, 2003 MDS indicated that R19 was now unable to recall simple information after five minutes; had short term memory loss; showed poor decision making skills; had episodes of easy distraction, disorganized speech, and restlessness; had lost some ability to make himself understood; showed a loss of ability to understand the messages and intent of others; had become physically abusive; and had grown resistant to care. Id. Tests for balance showed that he needed partial physical support, could not follow testing directions while standing, was somewhat unsteady when seated, and had unsteady gait. Id.

In addition, R19 is described as impulsive and noncompliant. For example, in the nurses notes for R19, on April 15, 2003, it states, "Non-compliant with chair alarm. Removes it to transfer self." (CMS Ex. 3, at 9), and on, April 18, 20034, it states, "combative with care . . . noncompliant with safety measures . . . very impulsive wandering with no regard to safety." Id. Indeed, Petitioner admits that "Resident 19 presented with impulsive behavior documented in his medical record." P. Br. at 22.

R19 had a the fourth fall on April 26, 2003. R19 was found on the floor with a two centimeter abrasion on his right knee. CMS Ex. 3, at 12. R19's knee was found to have a fracture of the superior aspect to the patella (kneecap) after an x-ray. Id. at 12. Petitioner reviewed its care plan for R19 on April 30, 2003, six days after the April 24, 2003 MDS and four days after R19's fourth fall. P. Ex. 6, at 20. On May 2, 2003, R19 fell for a fifth time and sustained a gash approximated three inches long over his left eye that required nine stitches. CMS Ex. 3, at 15 - 16. New safety approaches (a lowered bed and placement of a mattress on the floor next to R19's bed) were added to the care plan on May 23 and 24, 2003, more than 20 days after he was injured in his fifth fall and two weeks after the May 9, 2003 survey. R19 suffered actual harm from both his fourth and fifth falls.

A. Petitioner's failed to ensure that R19 received adequate supervision and assistance devices to prevent accidents which caused R19 actual harm. The facility was therefore not in substantial compliance with the program participation requirement found at 42 C.F.R. � 483.25(h)(2).

I must determine whether Petitioner provided R19 with adequate supervision and assistance devices to prevent accidents. It is evident that Petitioner knew R19 was at risk for falls. It is also evident that at the time of the second MDS dated April 24, 2003, Petitioner was aware that R19 was undergoing a significant deterioration in short term memory, a decline in cognitive and communication skills, displayed increased behavior problems, and showed diminished balance and an unsteady gait.

The question before me is whether all the other interventions that Petitioner asserts it instituted were enough given that R19 continued to have falls and whether the interventions care planned were implemented and evaluated as successful. Although a facility is not liable under the regulations for every accident that occurs, a facility is obligated to do everything it can to prevent accidents from known or knowable risks. When there is a history of accidents involving a resident that puts the facility on notice that a resident is at risk, the burden on a facility is greater to take precautions or intervene in some way. A facility is under a burden to keep trying to find successful interventions until all reasonable options are exhausted. A facility's responsibility does not cease merely by care planning a possible intervention. Any intervention care planned must be implemented and evaluated to see how well the intervention works. If an intervention is not successful, a facility is under an obligation to find other alternative interventions, if at all possible. Below I will discuss whether the interventions care planned were implemented and successful.

CMS maintains a fairly straightforward position that the facility failed to ensure that R19 received adequate supervision and assistance devices to prevent accidents specifically by its reliance on ineffective cuing and alarms, and failure to have a consistent program of 15-minutes checks. CMS also maintains that Petitioner failed to institute any new interventions after it acknowledged that R19 had undergone significant deterioration.

Surveyor Clement testified that she was not presented with any evidence that the 15- minute checks were regularly conducted. Tr. 87. Ms. Clements also testified that based on her review of the nurses' notes she found that cuing as a safety strategy and reminders to comply with the use of bed and personal alarms was not successful all of the time. Tr. 86.

According to surveyor Clements, nurses' notes plainly showed that R19 was not compliant because of his standing and attempting to ambulate without calling for assistance and for removing personal alarms. CMS Ex. 1, at 16. Nursing administrative staff acknowledged R19's rapid deterioration and also acknowledged that alarms were not used as a preventive measure but to notify staff that R19 was getting up without assistance. Id. The staff agreed that the alarms were not useful with respect to R19 because he was able to disarm and/or remove them. Id. at 17. The staff also acknowledged that due to R19's decline in mental status, R19 could no longer respond to cuing, directions, and reminders to use a call light or to leave the alarms in place. Id. Staff noted that R19's memory and cognitive status prevented him from retaining this information. Id.; Tr. 43.

During the hearing, Ms. Clements was asked:

Q Do you have a view about a cuing strategy working for Resident 19?

A In terms of how the resident is assessed, I believe, it would be very difficult for the resident to respond and retain cuing-

Q Let me interrupt you for a second. The question I asked actually was a yes or no question.

A Oh.

Q You do have a view?

A Yes, I do.

Q Thank you. And you reviewed nurses notes?

A I did.

Q Okay. And based on your review of nurses notes, were you finding evidence that a cuing strategy was successful for Resident Number 19?

A Not all the time.

Tr. 85 - 86.

At the hearing, Ms. Clements also testified:

Q Did you find evidence of consistent approach to the intervention of 15-minute checks?

A No, I did not.

Tr. 92 - 93.

Petitioner first urges that its interventions were adequate because Dr. Saint-Hillaire, R19's neurologist, testified that the frequency of falls experienced by R19 was significantly below the expected rate of falls for someone with his medical conditions. Additionally, Petitioner argues that it did institute other interventions: R19 was referred for a podiatry consultation in February of 2003; administration of Klonpin was begun on March 12, 2003 to address R19's jerky movements; R19's blood pressure was measured in different positions on March 6, 2003; a physical therapy referral was made on March 27, 2003; medications changes with respect to Haldol and Provental were made at the end of February 2003; Zoloft was increased as of April 24, 2003; on April 22, 2003, R19 was to be provided with one-to-one assistance, as needed; R19 was moved to a room near the nurse's station so the staff could more easily supervise him on April 4, 2003; and that the last three safety approaches listed in footnote 3 were put in place on April 17, 2003. Third, Petitioner disputes whether R19 was really incapable of responding to cuing, taking directions, and understanding what was said to him.

As to Petitioner's first argument, Petitioner misunderstands the issue before me. Whether R19 had fewer falls than otherwise might be expected is not the issue. The issue is whether having assessed R19 at risk for falls, knowing his past history of falls, and realizing that R19's condition had deteriorated, Petitioner did everything it could to "prevent foreseeable accidents" or whether the facility did "everything in its power to prevent accidents." Odd Fellow and Rebekah Health Care Facility, DAB No. 1839, at 6 - 7 (2002).

As to Petitioner's second argument, it is necessary to point out that most of the interventions that Petitioner instituted are irrelevant to the issue before me. The regulation before me only speaks to adequate "supervision" and "assistance devices." Changes in medication, physical therapy, podiatry consultation, and blood pressure checks are not interventions covered under this regulation. Petitioner does not claim to have instituted any intervention concerning supervision or assistance devices after the April 24, 2003 MDS until May 23, 2003, in spite of R19's fourth fall on April 26, 2003 or his fifth fall on May 2, 2003.

The evidence shows that R19 had a second MDS dated April 24, 2003 done because of a significant change in status. P. Ex. 2, at 10. This MDS indicates that R19 had a short term memory problem when asked to recall something after five minutes. Id. His cognitive skills for daily decision making were assessed as moderately impaired (decisions poor; cues/supervision needed. ⁽⁴⁾) Id. The following indicators of disordered thinking were described as "behavior present, not of recent onset": easily distracted (difficulty paying attention; gets sidetracked); episodes of disordered speech (speech is incoherent, nonsensical, irrelevant, rambling from subject to subject, losses train of thought); and periods of restlessness. Id. R19's change in cognitive status was assessed as deteriorated. Id. He is also described as usually understood but having difficulty finding words and finishing thoughts, having unclear speech (speech slurred with mumbled words), usually understands others but may miss some part or intent of the message of others. Id. (Empasis added.) R19's communication and hearing were assessed as deteriorated. Id. The MDS further describes R19 as physically abusive (occurred one to three days in the last seven days), resistant to care, (occurred four to six days in the past seven days), and requires partial physical support while balancing but does not follow directions, sitting and trunk control is unsteady, and gait unsteady. P. Ex. 2, at 12. Cuing as a reorientation is listed as an intervention. Id. at 14.

Petitioner's third argument is unavailing. Petitioner argued the R19 was capable of responding to cues. Petitioner bases this argument on the fact the R19 made his own medical decisions and consented to his own treatment. However, even Petitioner admits that R19 has had "increasing difficulty providing verbal responses to questions and directives" and that "it was necessary to exercise patience with R19 in this regard" and that "his appropriate response to a comment would be delayed." P. Brief at 12.

Further, Petitioner points to an assessment made by the Cambridge Health Alliance when R19 was admitted to this hospital as a result of a fall in May 2003. The Cambridge Health Alliance stated: "Unfortunately, the patient is much too intact and capable a patient to tolerate restraint at this point, which in its own right, probably would be much more deleterious and much greater cause for agitation." P. Ex. 6, at 58. This assessment does not help Petitioner makes its argument that R19 was capable of responding to cues and directions. In addition, Petitioner also points to a neurological consultation made by Tewksbury Hospital's Huntington's Disease Clinic that concluded that R19's mental status was still very good. P. Ex. 19. However, this conclusion is not further explained nor is the term "very good" indicative of R19's ability to respond to cues. R19 might only have had a very good mental status for some one with Huntington's disease at a certain stage of advancement. Neither of these exhibits has provided me with much assistance in making my determination.

The facility's own evaluation on the April 24, 2003 MDS shows that R19's cognitive status had deteriorated, that he had memory loss, his decisions were poor, he was easily distracted, he was impulsive, and that he could miss some part or the intent of the messages of others. P. Ex. 2, at 10 - 14. In a situation where cues must be promptly responded to in order to avoid a fall, I find the surveyors assessment (that reliance on cues was not consistently effective) to carry more weight. Cuing, directions, and reminders were, therefore, ineffective and not reliable.

In response to Ms. Clements' testimony on the lack of evidence of a consistent approach of 15-minute checks, Petitioner claims that Ms. Clements did not review the flow charts documenting 15-minute checks on R19. However, Petitioner has not provided any such flow charts for my review and without such documentation before me, I find Petitioner's claim to be unreliable because of its self-serving element, and find that Petitioner has not rebutted CMS's position on this matter. Therefore, I conclude that Petitioner did not completely implement the care plan already in place as it relates to 15-minute checks.

The evidence also shows that Petitioner completed two Resident Assessment Protocols (RAPs), one on April 22, 2002 and the other on April 28, 2003. In a notation about R19's deterioration in cognitive status, in the April 22, 2003 RAP, the facility wrote, "The resident has deteriorated in status related to behavior. He hits staff and is non compliant with care due to taking off alarms." P. Ex. 7, at 19; Tr. 88. The basis for generating the April 28, 2003 RAP relating to care planning for falls, mentions that R19's overall status has declined, he is hard of hearing and wears a hearing aid, he gets restless, removes his personal alarms and tries to wander frequently. P. Ex. 7, at 39; Tr. 89. This evidence clearly supports CMS's claim that reliance on alarms was not a successful intervention.

A review of R19's care plan shows no identified changes or additions in the interventions to be used to ensure that R19 will be free from falls from November 8, 2002 through May 23, 2003. Petitioner, however, claims that the last three interventions listed in footnote 3 were instituted on April 17, 2003. For the purposes of this decision, I take as proven that the last three interventions listed in footnote 3 were indeed instituted on April 17, 2003. After April 17, 2003, the care plan shows new interventions added only on May 23 and 24, 2003. P. Ex. 6, at 20; Tr. 90 - 91. The second MDS was dated April 24, 2003 and the later of the two RAPs was dated April 28, 2003. The survey date was May 9, 2003. Therefore, it was not until May 23 and 24, 2003 that new interventions were added, during which time R19 fell twice more on April 26 and May 2, 2003. The new interventions were added approximately one month after the second MDS and the RAPs, and two weeks after the survey.

Petitioner did not claim to have instituted any further interventions after April 24, 2003, even though R19 had a significant change MDS on April 24, 2003, had a fourth fall on April 26, 2003 (R19 was found on the floor with a fractured right kneecap) and had a fifth fall on May 2, 2003 (R19 sustained a gash approximated three inches long over his left eye that required nine stitches).

I find and conclude that Petitioner knew R19 was at risk for falls, knew that R19 had a history of falls, and knew that R19's cognitive status had deteriorated enough to prompt a second MDS due to significant changes. I find and conclude that the facility had not introduced any additional safety measures through the assessment and care planning process until approximately one month after the second MDS dated April 24, 2003 and the April 28, 2003 RAPs, and two weeks after the survey. Additionally, there is a prima facie case made out by CMS, and not successful rebutted by Petitioner by a preponderance of the evidence, that the strategy of cuing was not working reliably, that the strategy of 15-minutes checks were not consistently done, and that R19 was removing alarms. Therefore, I find and conclude that Petitioner was not in substantial compliance with the regulation found at 42 C.F.R. � 483.25(h)(2).

B. The amount of the CMP imposed against Petitioner, $3,000, is reasonable.

Having found a basis for imposing a CMP, I now consider whether that amount is reasonable, applying the factors listed in 42 C.F.R. �� 488.438(f) and 488.404. Emerald Oaks, DAB No. 1800, at 10 (2001); CarePlex of Silver Spring, DAB No. 1683, at 16 - 17 (1999); Capitol Hill Community Rehabilitation and Specialty Care Center, DAB No. 1629 (1997). CMS is not required to offer evidence as to the � 488.438(f) factors as part of its prima facie case. The facility must timely raise its claim that a particular factor makes a CMP unreasonable before any question arises as to CMS's responsibility for producing evidence as to that factor. Community Nursing Home, DAB No. 1807, at 22 (2002). Petitioner has not done so. When penalties are imposed for an instance of noncompliance, the penalties may range between $1,000 to $10,000 per-instance. 42 C.F.R. � 488.438.

I find the penalty amount of $3,000 to be reasonable based on evidence which relates to factors that are relevant to deciding the penalty amount. Those factors include the seriousness of the deficiencies.

Petitioner's staff did not institute any additional interventions that could have prevented additional falls for R19. R19 suffered actual harm from both his fourth and fifth fall. Because this deficiency caused actual harm and the penalty is close to the lower end of the per-instance penalty range, I am unable to find the imposition of a $3,000 unreasonable.

V. Conclusion

For the reasons discussed above, I uphold CMS's determination that the facility was not in substantial compliance with the quality of care requirement set forth at 42 C.F.R. � 483.25(h)(2), and that the $3,000 per instance CMP is reasonable.

Richard J. Smith

Administrative Law Judge

1. The State agency found nine deficiencies in the May 9, 2003 survey. The other eight deficiencies were not used as grounds for the CMP and are thus are not subject to my review in this proceeding. 42 C.F.R. � 498.3(b)(13).

2. CMS erroneously referred to R19 as a 79 year old male. CMS Br. at 3.

3. The safety approaches on the care plan included the following:

1. Keep room well lit and clutter free;

2. Sit on edge of bed a few minutes before rising;

3. Ambulate by pushing wheelchair;

4. Urinal at bedside;

5. Personal alarm on bed chair;

6. Call light within reach and encourage resident to ring for assistance;

7. Monitor for side effects of ant-anxiety and anti-depressant medications;

8. Remind resident to leave personal alarm and posey sitter in place;

9. Checks every 15 minutes;

10. Posey sitter in bed;

11. Bed alarm in chair;

12. Hook personal alarm to bed down out of reach;

13. Scoop mattress in bed.

P. Ex. 6, at 20.

The first ten approaches were put in place on November 8, 2002. Petitioner claims that the last three approaches were put in place on April 17, 2003, even though it was not so noted on the front of R19's care plan. Petitioner bases this claim on a notation found on the back side of R19's care plan. See P. Ex. 18.

4. The survey report incorrectly identified R19 as being severely impaired when he was moderately impaired. The surveyor claimed that this error had no impact on the decision to cite this deficiency and that her survey notes contained the correct notation on the level of R19's impairment as described on the April 24, 2003 MDS. Tr. 152.