SUBJECT:

Price Hill Nursing Home,

Petitioner,

Centers for Medicare & Medicaid Services.

DECISION

Petitioner, Price Hill Nursing Home, is a long-term care facility certified to participate in the Medicare and Medicaid programs as a provider of services. Petitioner challenges the Centers for Medicare & Medicaid Services' (CMS) determination that it was not in substantial compliance with program participation requirements. For the reasons discussed below, I affirm CMS's determination to impose a civil money penalty (CMP) against Petitioner based on this noncompliance ($400 per day for 61 days, beginning on July 21, 2004 and continuing through September 19, 2004, for a total CMP of $24,400).

I. Background

On July 21, 2004, in response to a complaint, the Ohio Department of Health (State survey agency) completed a partial extended complaint investigation survey at Petitioner's facility. The State survey agency found the facility to be noncompliant with participation requirements. On August 2, 2004, CMS imposed remedies including a mandatory denial of payment for new Medicare and Medicaid admissions (DPNA), effective October 21, 2004, and a CMP of $400 per day, effective July 21, 2004. On August 25, 2004, the State survey agency completed a second complaint investigation. On September 14, 2004, CMS sent Petitioner a letter notifying it that the remedies previously imposed continued and that CMS was considering terminating Petitioner's provider agreement. Following revisit surveys on September 16, 17, and 29, by letter dated November 2, 2004, CMS rescinded the DPNA imposed on October 21, 2004 (Petitioner having been found in compliance as of September 20, 2004), informed Petitioner that the facility would not be terminated, and imposed the $24,400 CMP based on 61 days of noncompliance. CMS Exhibit (Ex.) 56.

Petitioner timely requested a hearing by letter dated September 30, 2004. The case was assigned to me for the hearing, related proceedings, and decision. I held a hearing in this case on July 11 and 12, 2005. ⁽¹⁾ At the hearing, I admitted CMS Exs. 1-63 and Petitioner's Exhibits (P. Exs.) 1-14. A transcript of the hearing was made (Tr.). The parties also submitted prehearing briefs (CMS or P. Prehearing Br.), posthearing briefs (CMS or P. Br.), posthearing response briefs (CMS or P. R. Br.), and Petitioner submitted a posthearing reply brief (P. Rep. Br.).

II. Issues

1. Whether Petitioner was out of substantial compliance with participation requirements.

2. Whether the CMP imposed by CMS against Petitioner is reasonable.

III. Statutory and Regulatory Background

The Social Security Act (Act) sets forth requirements for long-term care facilities (Medicare skilled nursing facilities (SNFs) and Medicaid nursing facilities (NFs)) participating 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 long-term care facilities participating in the Medicare program are found at 42 C.F.R. Parts 483, 488, 489, and 498.

To participate in the Medicare program, a long-term care facility must maintain substantial compliance with program requirements. To be in substantial compliance, a facility's deficiencies may pose no greater risk to resident health and safety than "the potential for causing minimal harm." 42 C.F.R. � 488.301.

The seriousness of a deficiency depends on its scope and severity. See 42 C.F.R. � 488.404; State Operations Manual (SOM), App. P, sec. V. Severity refers to whether a deficiency has created the "potential for harm," resulted in "actual harm," or placed residents in "immediate jeopardy"; "scope" refers to whether the deficiency is "isolated," constitutes a "pattern," or is "widespread." Id.; see also 42 C.F.R. � 488.404(b)(1). A deficiency's seriousness is designated in the statement of deficiencies by a letter (A-L) that corresponds to a matrix reflecting different combinations of scope and severity. See SOM, section 7400(E). For example, a Level G deficiency refers to an "isolated" deficiency that causes "actual harm" (but not immediate jeopardy) to a resident. A Level E deficiency shows a pattern of deficiency that does not cause actual harm but has the potential for causing more than minimal harm. A Level D deficiency is an isolated deficiency that does not cause actual harm but has the potential for causing more than minimal harm.

If a facility is not in substantial compliance with program 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 program requirements, or for each instance that a facility is not in substantial compliance. 42 C.F.R. �� 488.430(a), 488.440.

In situations where it is determined that deficiencies constitute immediate jeopardy, CMS may impose a CMP of between $3,050 and $10,000 per day. 42 C.F.R. � 488.438(a)(1)(i). In situations where deficiencies do not constitute immediate jeopardy, but have caused actual harm or have the potential for causing more than minimal harm, CMS may impose a CMP of $50 to $3,000 per day. 42 C.F.R. � 488.438(a)(1)(ii).

IV. Burden of Proof

As an evidentiary matter, CMS must set forth a prima facie case that a facility is not in substantial compliance. Petitioner then has the burden of coming forward with evidence sufficient to establish the elements of any affirmative argument or defense, and bears the ultimate burden of persuasion. To prevail, Petitioner must prove, by a preponderance of the evidence, that it was in substantial compliance with relevant statutory and regulatory provisions. Batavia Nursing and Convalescent Inn, DAB No. 1911 (2004); Batavia Nursing and Convalescent Center, DAB No. 1904 (2004), applying Hillman Rehabilitation Center, DAB No. 1611 (1997), aff'd, Hillman Rehabilitation Center v. HHS, No. 98-3789 (GEB), slip op. at 25 (D.N.J. May 13, 1999). I follow this precedent in making my decision here.

Petitioner disagrees with this allocation of the burden of proof. Petitioner asserts that the burden of proof or persuasion is upon CMS as the proponent of the applicable regulations and the CMP and also asserts that allocation of the burden of proof under the Hillman standard conflicts with the Administrative Procedure Act (APA). P. Br. ⁽²⁾; P. R. Br. at 3-6. This argument has been addressed in the cases noted above and is preserved for appeal. I note, however, that the allocation of the burden of proof is only meaningful when the evidence stands in "equipoise." Where, as I find below, the evidence is such that CMS would prevail regardless of which party bears the burden of proof, the allocation of the burden is irrelevant. See Ivy Woods Healthcare and Rehabilitation Center v. Tommy Thompson, No. 04-4164, slip op. at 6 (6^th Cir. 2005); Sanctuary at Whispering Meadows v. Tommy Thompson, No. 04-3989, slip op. at 3-4 (6^th Cir. 2005). ⁽³⁾

V. Findings of Facts, Conclusions of Law, and Discussion

I make findings of fact and conclusions of law to support my decision in this case. I set forth each finding below, in italics, as a separate heading. I discuss each finding in detail. I do not, however, make a finding on every deficiency cited in the statements of deficiencies. I discuss only those examples I find to be necessary to support the noncompliance and the remedy imposed. See Community Skilled Nursing Centre, DAB No. 1987 (2005); Batavia Nursing and Convalescent Inn, DAB No. 1911 (2004); Beechwood Sanitarium, DAB No. 1824, at 19-22 (2002). Specifically, CMS cited Petitioner as out of compliance with participation requirements after the survey completed on July 21, 2004, based on the following deficiencies: F Tag 164 (42 C.F.R. � 483.10(d)(3)) at a scope and severity level (Level) of D; F Tag 223 (42 C.F.R. � 483.13(b)) at a Level G; F Tag 226 (42 C.F.R. � 483.13(c)(1)(i)) at a Level D; F Tag 354 (42 C.F.R. � 483.30(b)(1)-(3) at a Level D; and F Tag 463 (42 C.F.R. � 483.70(f)) at a Level F. CMS cited Petitioner as out of compliance with participation requirements after the survey completed on August 25, 2004, based on the following deficiencies: F Tag 250 (42 C.F.R. � 483.15(g)) at a Level D; F Tag 253 (42 C.F.R. � 483.15(h)(2)) at a Level E; F Tag 309 (42 C.F.R. � 483.25) at a Level E; and F Tag 444 (42 C.F.R. � 483.65(b)(3)) at a Level D. Below, I address only F Tags 223 and 354 from the July survey and F Tag 309 from the August survey. ⁽⁴⁾

1. Petitioner was out of compliance with participation requirements as of the survey ending on July 21, 2004.

a. Petitioner was out of compliance with the participation requirement at 42 C.F.R. � 483.13(b) (F Tag 223 on the statement of deficiencies).

Section 483.13(b) of 42 C.F.R. requires that a resident of a nursing 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." The SOM defines "involuntary seclusion" to be the separation of a resident from other residents or from his or her room or confinement to his or her room (with or without roommates) against the resident's will or that of the resident's legal representative. Emergency or short-term monitored separation from other residents is permitted if used for a limited period of time as a therapeutic intervention. SOM, Rev. 10, July 1999, PP-49. The State survey agency surveyor found, as a result of record review and staff interview, that Petitioner failed to comply with this requirement in the case of one resident, Resident 26.

The statement of deficiencies recites that on July 10, 2004, a state tested nurse aide (STNA 3) attempted to take a cup of coffee from Resident 26 so he wouldn't bring the cup into his room. Resident 26 slapped her hand. Another STNA, STNA 7, took the coffee cup and escorted Resident 26 into his room. While in the room STNA 7 pushed against Resident 26's forehead, leaving a small blue bruise from a ring on her finger. STNA 7 also placed Resident 26 in a closet. It took Resident 26 a few minutes to get out and the STNAs were laughing at him. CMS Ex. 2, at 3-6. Petitioner's own facility records regarding the investigation of this incident support the facts set out in the statement of deficiencies. P. Ex. 4, at 26-39. There is no indication in any of Petitioner's exhibits or testimony that placing Resident 26 in a closet was for some emergency short-term monitored seclusion consistent with his care plan. CMS Ex. 12, at 1, 8; Tr. 35. ⁽⁵⁾ Ten days prior to this incident Petitioner had provided in-service training on abuse, which STNA 7 attended. P. Ex. 5, at 15.

Petitioner does not disagree that this incident occurred. P. Br; P. R. Br. at 14; see Tr. 237-41. Instead, Petitioner recites that it "followed its policies, followed the State standards and complied fully with the law in addressing this incident." P. Br. Petitioner's argument, however, addresses the deficiency cited at 42 C.F.R. � 483.13(c)(1), which covers the facility's development and implementation of policies and procedures regarding abuse, as well as the reporting of abuse, and not the deficiency under discussion here. In fact, Petitioner's argument appears to suggest that the regulation only requires it to attempt to ensure that its residents are free from abuse and that it cannot guarantee that an employee, such as STNA 7, will not abuse a resident.

Petitioner misapprehends its duty. Petitioner's residents have the right to be free from physical abuse and involuntary seclusion and Petitioner must do more than make an attempt to protect them. An employer cannot disown the consequences of the inadequacy of the care provided by an employee such as STNA 7 because STNA 7 was the agent of her employer and empowered to make and carry out daily care decisions. See Valley Oaks Camden, DAB CR1257 (2004); Emerald Oaks, DAB No. 1800, at 7 n.3 (2001). While there may be occasions where an isolated incident of abuse would not contravene the regulations (the regulations not imposing strict liability on a facility), this situation is not one of them. Here the undisputed evidence is that Resident 26 sustained a physical injury (the bruise on his forehead) and there is credible testimony that the resident sustained emotional harm as well due to the trauma from the incident. Tr. 34-35. Here two employees (at least one of whom had received unspecified training regarding the facility's abuse policy) felt that it was appropriate to laugh at an individual who was forced by one of them into a closet, calling into question both the training these individuals received and their supervision. I sustain the deficiency and the finding of actual harm.

b. Petitioner was out of compliance with the participation requirement at 42 C.F.R. � 483.30(b)(1)-(3) (F Tag 354 on the statement of deficiencies).

Except when the requirement is waived pursuant to paragraphs (c) or (d) of 42 C.F.R. � 483.30(b), a facility must use the services of a registered nurse for at least eight consecutive hours a day, seven days a week. And, the facility must designate a registered nurse to serve as the director of nursing (DON) on a full time basis. The DON may serve as a charge nurse only when the facility has an average daily occupancy of 60 residents or less. The State agency surveyor found that a review of staffing schedules for two weeks revealed Petitioner did not have a registered nurse on seven of 14 days. Moreover, the statement of deficiencies asserts that interview with the assistant DON (ADON) confirmed that there was no registered nurse on duty on those dates. Although Petitioner had placed an ad in the newspaper on May 31, 2004 for a nurse, there had not been an ad in the paper recruiting a nurse for 18 days. Further, the surveyor's review of staffing schedules revealed the facility did not have a DON from July 1 through 14, 2004. And, the ADON confirmed Petitioner did not have a DON and that there was no ad in the newspaper recruiting one after June 28, 2004. CMS Ex. 2, at 8-9.

Petitioner failed utterly to rebut CMS's case. Instead, Petitioner argued that it was in compliance under the waiver provisions of the regulations. Petitioner's attempt to use the conditions of waiver to establish compliance with the regulation is inappropriate. First, this is not the forum in which to request a waiver. Second, Petitioner never asserted that it asked for a waiver. And, even if this was the proper forum to decide whether the requirements of the regulation should be waived, Petitioner has not submitted evidence that the conditions for waiver have been met. Instead, Petitioner admits that CMS proved that for several days during an examination period there was no registered nurse present. P. Br. Petitioner asserts, however, that there were internet postings seeking a registered nurse and that, on seven of the 14 days cited, a registered nurse was present, just not always on the day shift. Petitioner also asserts that a registered nurse was on-call as needed and that there was a constant and consistent search for registered nurses in newspapers and on the internet. Tr. 241-242; P. Br. Petitioner's protestations merely point out that it was not in compliance with requirements during the time CMS alleges.

2. Petitioner was out of compliance with the participation requirement at 42 C.F.R. � 483.25 (F Tag 309) as of the survey ending on August 25, 2004.

This regulation requires that each resident of a facility must receive, and the facility must provide, the necessary care and services to attain or maintain a resident's highest practicable physical, mental, and psychosocial well-being, in accordance with the resident's comprehensive assessment and plan of care. The State agency surveyor found that this requirement was not met based on observation, record review, and staff interview. Specifically, the surveyor found that Petitioner failed to implement physician ordered treatments to leg wounds and failed to provide care as ordered by a physician for the recent amputation of a limb in a manner that promoted healing. Petitioner also failed to implement a physician order to ensure that a recent amputee received the appropriate level of pain control. Petitioner also failed to implement care planned interventions for Residents 8, 15, and 26. ⁽⁶⁾ CMS Ex. 30, at 8-13. I sustain the deficiency citations with regard to all three residents, as explained below.

The statement of deficiencies reflects that Resident 8 had diagnoses of morbid obesity, venous stasis ulcers and osteomyelitis. On August 22, 2004, Resident 8's physician ordered that Resident 8's legs were to be washed with soap and water, patted dry, Dermagran spray and a medicated ointment were to be applied, and then the resident's legs were to be covered with a gauze wrap and wrapped with an ace bandage. This treatment was to be done twice daily. On August 24, 2004, the surveyor, who was with a nurse, observed Resident 8 in his room, sitting in a wheelchair, without the ordered dressings in place. The alert and oriented resident stated he did not have the dressings on his legs and had not had his treatment done for two days. The nurse stated that the resident was probably correct. Although there were initials on the resident's treatment administration record (TAR) indicating the treatment was done twice the previous day, the initials were not clear, the nurses involved were not able to be reached for interview, and the nurse touring with the surveyor stated the dressing did not appear to have been done as initialed. CMS Ex. 30, at 9.

The surveyor also observed treatment to Resident 8's legs on August 24, 2004. The nurse filled a water basin and placed brown paper towels in the basin and stated that he found paper towels held up well during treatment. The nurse then put on gloves and removed the resident's shoe and sock from his left leg. Without changing gloves and washing his hands, the nurse scrubbed Resident 8's leg with a soapy paper towel. Both of the resident's lower legs were covered in multiple warty looking lesions and scabs, some of which fell off onto a paper towel. After scrubbing the resident's leg, the nurse used the paper towel with dried skin and scabs to pat the resident's leg dry. The nurse did not apply the Dermagran spray as ordered. The nurse also rubbed the medicated ointment onto the resident's leg without changing gloves or washing hands. The resident's leg was then wrapped in gauze and ace wrap. The nurse placed Resident 8's sock and shoe on his foot. The nurse completed the resident's right leg wound care with the same gloves and without washing his hands and he did not use the Dermagran spray on the resident's right leg. CMS Ex. 30, at 9-10. Surveyor Thompson credibly testified that this treatment was not consistent with nursing standards of care, as the nurse used paper towels to do the wound treatment instead of gauze, scrubbed the wound when he should have irrigated it, and did not change his gloves (potentially contaminating the wound with bacteria). Tr. 152-54.

On August 25, 2004, the treatment nurse, who was not on duty on August 24, 2004, told the surveyor that she had just observed Resident 8's legs and was upset with their condition. According to the nurse, the scabs were not present the week before, and the skin looked worse. The surveyor could not confirm this because there were no measurements or descriptive entries in the resident's record. The surveyor stated that in an interview with the administrative assistant (who was the nurse that the surveyor toured with on August 24, 2004), the administrative assistant stated that the facility had a new skin charting policy of making a baseline entry, describing a wound when it was first noted, and then charting the wound weekly. This was to monitor the progress of wound healing and to determine the appropriate wound treatment or need for treatment change. She confirmed facility policy was not followed. She also stated that the hand washing and glove changing policies of the facility were not followed in the course of this treatment. CMS Ex. 30, at 10-11.

Petitioner admits that the leg treatment cited by the surveyor was inappropriate. P. Br. Petitioner asserts in its defense that Resident 8 often refused treatment. Petitioner also asserts that the treatment method employed by the nurse to treat Resident 8's leg did not compromise Resident 8's physical and clinical well-being. P. Br.; Tr. 266-67. Petitioner does not provide any support for this argument and it is, moreover, unavailing.

CMS need not prove that a resident's well-being was compromised for me to sustain a deficiency here. CMS need only make a prima facie case that the facility failed to provide the necessary care and services to allow a resident to attain or maintain their highest practicable physical, mental, and psychosocial well-being, in accordance with the comprehensive assessment and plan of care. Here, where Petitioner failed to provide the treatment ordered by Resident 8's physician, and provided treatment in a manner that was outside the standard of care, Petitioner was clearly out of compliance with the regulations. Further, the possibility of infection alone from the use of contaminated gloves in the dressing treatment exposed Resident 8 to the risk of more than minimal harm.

The statement of deficiencies dated August 25, 2004, reflects that Resident 26 had diagnoses of morbid obesity, chronic bilateral lower extremity edema, chronic renal failure, and cellulitis of the lower legs. He had a physician's order to clean his lower legs with normal saline, cover the open areas with Adaptic gauze, and wrap the area with a gauze dressing twice daily. On August 24, 2004, the surveyor observed Resident 26 sitting on the side of his bed with his head on the over bed table. His legs were without dressings and a blanket was under his feet and legs to catch drainage from open wounds. His lower legs were observed almost completely covered with yellow moist scaly scabs. The resident stated it had been some time since the facility had done the ordered treatment and he didn't know why. A nurse confirmed that, although Resident 26's physician had ordered dressings, there were no dressings on his legs. Resident 26 was asked in the presence of a staff nurse how often his dressings were changed. He said once a day, but sometimes he didn't let the nurse change his dressings because the treatments were painful. The TAR for the evening dressing change on August 23, 2004, had been circled, indicating the treatment was not done. The back of the TAR and the nursing notes were both silent regarding the reason the treatment was not completed as ordered. The treatment was not initialed, but left blank on the evening shift of August 22, 2004, without explanation. All day shift treatments were charted as completed except for August 18, 2004, which was refused without explanation, and August 9, 2004, which was circled without explanation of refusal or why the dressing change did not occur. CMS Ex. 30, at 11-12.

Petitioner asserts that Resident 26 was not clinically compromised, and he was often uncooperative as he did not like the treatment and would persistently refuse to have it. Petitioner asserts that if a resident such as Resident 26 refuses treatment, a second effort is made to convince the resident to receive treatment. If refused a second time, the refusal is documented. Petitioner also asserts that a resident has the right to refuse treatment and to continue to persist would infringe upon the resident's right to refuse treatment. P. Br.; Tr. 268-70.

Petitioner's assertions are unavailing. Whether or not Resident 26 was clinically compromised is not the point. The point is whether Petitioner provided the necessary care and services for Resident 26 to attain or maintain his highest practicable physical, mental and psychosocial well-being in accordance with his comprehensive assessment and plan of care. In this instance Petitioner did not do so. Petitioner asserts that Resident 26 did not receive his treatments because he refused them. However, while his records do show documented instances of refusals, at other times CMS has shown there are instances of missed treatment without explanation. Tr. 163-64. I agree with CMS that the fact Petitioner documented certain instances where Resident 26 refused treatment, and did not document others, raises an inference that the missed treatments were not a refusal of care. More importantly, I agree with CMS that there is no basis for Petitioner's assertion that asking to perform a treatment on a resident more than twice constitutes an unauthorized infringement on the resident's right to refuse treatment. While the regulations support a resident's right to refuse care (42 C.F.R. � 483.10(b)(4)), such right is not absolute and should be consistent with the resident's interests, assessments, and plans of care. See Innsbruck HealthCare Center, DAB No. 1948, at 7-8 (2004). And, a resident's right to refuse treatment does not absolve a facility from a continuous effort to comply with the regulations via other means, as to do so would allow facilities to allow residents to refuse treatments to the point of injury or death. See Koester Pavilion, DAB No. 1750, at 28 (2000). Here, Resident 26's refusal to have his leg treatments could have resulted in infection. Tr. 165-66. At the least, Petitioner could have contacted the resident's physician, apprised the physician of the situation, and afforded the physician the opportunity to decide if new orders for leg treatments should be written.

The statement of deficiencies cites that Resident 15 was admitted to the facility on August 20, 2004, following a right above the knee surgical amputation. Resident 15 had an admission order for Adaptic to be applied to the amputation site for three days, after which the site was to be dressed with dry padding and ace wrap for two weeks. On August 22, 2004, Resident 15's physician ordered the treatment continued until the stump shrinker arrived, at which time the ace wrap would be replaced by the stump shrinker. On August 24, 2004, the surveyor observed Resident 15 transferring himself to bed for the nurse to check and change his dressing. After removing his pants, the surveyor observed that the resident had a dry dressing that was off the stump and stuck in his pant leg. The ace wrap ordered by the physician was not on the wound, but was instead on a shelf at the side of the resident's bed. When the nurse went to check the dressing, the resident grimaced and stated he was having significant pain at the site of the amputation. He stated he rarely got his pain pill, was in pain most of the time, and the pain disturbed his sleep at night. The administrative nurse reported this to the charge nurse and the resident received pain medication 30 minutes later. Record review by the surveyor revealed that when the resident was transferred from the hospital to Petitioner's facility, his physician had ordered a narcotic analgesic every four hours for pain. The order was transcribed onto the medication administration record (MAR) as Percocet one or two tablets every four hours as needed for pain, instead of routinely as actually ordered. As the medication order was erroneously transcribed, the resident did not receive the pain control ordered by the physician. Further, the resident's need for pain management was not met because staff did not routinely assess for and administer pain medication as ordered by the physician for pain management. CMS Ex. 30, at 12-13.

Petitioner asserts that the resident removed the wraps himself and was given Percocet whenever he expressed pain. Although Petitioner admits there was a transcription error on the MAR, it asserts medication was administered to Resident 15. Petitioner also asserts no harm was "ideated" by CMS's witnesses nor would there be any possible harm in this situation. P. Br.; Tr. 270-71. ⁽⁷⁾

Here Petitioner has conceded that it made a transcription error in Resident 15's medication records. P. Br. CMS's unrebutted testimony also shows that this error resulted in Resident 15 missing pain medication. Tr. 174. Resident 15 experienced pain as a result of this medication transcription error, as noted in the statement of deficiencies, at hearing, and in the facility's employee corrective counseling form, which noted that the resident experienced "sustained unrelieved pain." CMS Ex. 30, at 13; Tr. 170, 172; P. Ex. 2, at 40. Petitioner patently failed here to provide the necessary care and services to maintain Resident 15's highest practicable physical well-being in accordance with his plan of care. Moreover Petitioner's argument that the resident removed his dressing and that this somehow absolved the facility of responsibility for following the physician's orders is unavailing. There is one reference that the resident removed his dressing (Tr. 195; CMS Ex. 38, at 10). This reference does not lead me to infer that this resident was uncooperative with treatments. In fact, the nurse's notes suggest the opposite, stating that the resident was alert, verbal, pleasant, and adjusting. CMS Ex. 38, at 9-10.

3. The CMP imposed is reasonable.

CMS has imposed a CMP of $400 a day for a 61-day period totaling $24,400. Petitioner argues that the CMP is inappropriate. Petitioner's administrator asserted that the facility is entirely dependent upon Medicaid reimbursement which has been frozen. Petitioner asserts, referring to its 2004 income statement, that it had a $79,500 loss for the period ending December 31, 2004, and that it did not have the funds to pay the CMP without detrimentally affecting its residents. P. Br.; Tr. 383-84; P. Ex. 14. Petitioner also argues that, even if noncompliance is determined, the criteria as set forth at 42 C.F.R. �� 488.438(f) and 488.404 do not support in this case a CMP of more than $50 per day. I disagree.

The regulations at 42 C.F.R. � 488.438(f) state the factors to be considered in determining the amount of a CMP. They include: (1) the facility's history of noncompliance, including repeated deficiencies; (2) the facility's financial condition; (3) the factors specified in section 488.404 (which include a determination of the seriousness of the deficiency (the scope and severity of the deficiencies) and whether the relationship of one deficiency to other deficiencies results in noncompliance, and the facility's prior history of noncompliance in general and with reference to the cited deficiencies); and (4) The facility's degree of culpability, which includes, but is not limited to, neglect, indifference, or disregard for resident care, comfort or safety. The absence of culpability is not a mitigating circumstance in reducing the amount of the CMP. When I evaluate the CMP imposed against the regulations, I review "whether the evidence presented on the record concerning the relevant regulatory factors supports a finding that the amount of the CMP is at a level reasonably related to an effort to produce corrective action by a provider with the kind of deficiencies found and in light of the other factors involved (financial condition, facility history, and culpability)." Windsor Health Care Center, DAB No. 1902, at 17 (2003), quoting CarePlex of Silver Spring, DAB No. 1683, at 8 (1999).

Here CMS has shown that Petitioner had a prior history of noncompliance, including a Level J violation in 2001, a Level E in 2002, and a Level F in 2003. CMS Ex. 62. CMS has also shown that the deficiencies are serious. Actual harm resulted to Resident 26 (from the July survey) and Petitioner's violation of Tag F 309 constituted a pattern of conduct with the potential for more than minimal harm. And, CMS has shown that Petitioner was also culpable, in that, at a minimum, Petitioner was neglectful in ensuring that its nursing staff properly cared for residents with amputation and leg lesions. Based on the evidence CMS presented, I would have no problem sustaining a CMP at a higher level than that imposed, as $400 per day is still at the lower end of the range of CMP that CMS could have imposed for non-immediate jeopardy level deficiencies (which can range up to $3,000 per day). The only question remaining is whether the evidence that Petitioner presented with regard to its financial condition mitigates against imposing the $400 per day CMP.

In assessing Petitioner's financial condition, the key factor is whether it has adequate assets to pay the CMP without going out of business or compromising resident safety. Windsor Health Care Center, DAB No. 1902, at 18. CMS submitted an Ohio Department of Health Income Report for Calendar Year 2002 indicating Petitioner showed a net operating profit of $351,192. CMS Ex. 63. Petitioner did not refute the accuracy of this report. Instead, it offered a report for the calendar year ending December 31, 2004 (after the survey) which showed that the year-end retained earnings for Petitioner's parent company were negative $432,424, and that the net income for the period ending December 31, 2004, was a loss of $79,500. Tr. 382-83; P. Ex. 14. Petitioner also asserted that it could not pay the CMP without adversely affecting resident care. Tr. 384.

Petitioner's argument regarding its financial condition is not compelling. Petitioner's operator/administrator never testified that paying the CMP would put Petitioner out of business. In fact, he indicated that, despite the losses the facility had suffered, the facility is still operating and has not filed for bankruptcy. Tr. 389. Petitioner did not proffer other evidence that paying the CMP would cause it to go out of business. While Petitioner's operator/administrator asserted that Petitioner could not pay a CMP without affecting resident care (Tr. 384), Petitioner did not otherwise support this self-serving argument. Given the weight of the other factors shown by CMS, and the fact that the CMP is on the lower end of the range of CMPs that could have been imposed, I find the amount of the CMP in this case to be reasonable.

VI. Conclusion

I conclude that Petitioner was out of compliance with participation requirements from July 21 through September 19, 2004. Accordingly, CMS was authorized to impose a CMP. I find the CMP imposed, $400 per day for 61 days, for a total CMP of $24,400, to be reasonable.

Richard J. Smith

Administrative Law Judge

1. CMS presented the testimony of State survey agency surveyors Susan Best, R.N. (the surveyor who surveyed Petitioner in July and prepared the statement of deficiencies dated July 21, 2004 (CMS Ex. 2)), and Nancy Thompson, R.N. (the surveyor who surveyed Petitioner in August and prepared the statement of deficiencies dated August 25, 2004 (CMS Ex. 30)). Petitioner attacked the credibility of the surveyors (P. R. Br. at 12-15; P. Rep. Br. at 6). I find Petitioner's arguments to be without substance and I find further that the testimony of these surveyors was credible. Below, I rely on the testimony of these professionally credentialed individuals and their survey findings where such testimony and survey findings are consistent with the regulations, their professional expertise as surveyors, and the documentary evidence of record.

2. Petitioner did not paginate its posthearing brief. Thus, I do not use citation to specific pages of the brief when I refer to it.

3. Petitioner does not agree and asserts "[e]quipoise speaks to the weight of the evidence. The evidence is in equipoise when, after all the evidence has been presented, the evidence is in a state of equilibrium and is thus, counterbalanced. To assert that the manner in which evidence is presented is only relevant when the evidence presented is in a state of equilibrium is tantamount to putting the cart before the horse. There cannot be consideration of the weight of the evidence until after that evidence has been presented. And the evidence must be presented in proper manner or one can never tell if the evidence is evidence of any probative fact, or becomes so distorted its use [is] unfair to both parties. It only stands to reason that the determination as to how the evidence will be presented must necessarily be resolved before any evidence can be considered, either in equipoise or otherwise." P. Rep. Br. at 2. I do not find Petitioner's argument persuasive. Petitioner was given the opportunity to put in any evidence it chose to rebut CMS's prima facie case. Based on all the evidence presented, the overwhelming weight of the evidence favored CMS.

4. However, were I to find it necessary to discuss the other deficiency citations, I would uphold the deficiencies.

5. And, even if Resident 26's care plan called for such seclusion or separation, placing the resident in a small freestanding closet measuring 100 inches high and 24.5 inches deep, where the resident was unable to exit for several minutes, would not, under any circumstances, be reasonable. See Tr. 39-40.

6. Resident 26 was erroneously identified in the statement of deficiencies as Resident 27 (CMS Ex. 30, at 11-12). Petitioner recognized this error in its plan of correction (P. Ex. 2, at 11) and I see no prejudice to Petitioner inuring from this error. I note also that the Resident 26 in the August survey is not the same Resident 26 referenced in the July survey.

7. Petitioner also asserts that although the surveyor describes a conversation with the resident, she was unable to explain how she could translate, since she does not speak Spanish and the resident spoke little English. P. Br. I find the surveyor credible, however, when she testified that Resident 15 made his needs known and she clearly understood him. She testified that he spoke enough English to say he was in pain. Tr. 196.