Department of Health and Human Services DEPARTMENTAL APPEALS BOARD Civil Remedies Division |
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IN THE CASE OF | |
Carehouse Convalescent Hospital, |
DATE: January 16, 2001 |
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Health Care Financing Administration.
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Docket No. C-00-006 Decision No. CR729 |
DECISION | |
I decide this case as follows: 1. As of November 18, 1999, Petitioner,
Carehouse Convalescent Hospital, complied substantially with federal requirements
which govern the participation of long-term care facilities in the Medicare
program. Consequently, the Health Care Financing Administration (HCFA)
was not authorized to terminate Petitioner's participation in Medicare.
I. Background Petitioner is a long-term care facility that is located in Santa Ana, California. It was surveyed on three occasions in 1999 by surveyors employed by the California Department of Health Services (California survey agency). These surveys were completed on May 20, 1999 (May 1999 survey), July 16, 1999 (July 1999 survey), and November 18, 1999 (November 1999 survey). At each of these surveys the surveyors found that Petitioner was not in substantial compliance with federal participation requirements. At the May 1999 survey the surveyors concluded that, in two respects, Petitioner was deficient to the extent that residents of Petitioner were placed in immediate jeopardy. The surveyors found 13 additional failures by Petitioner to comply substantially with federal participation requirements at the May 1999 survey.At the July 1999 survey the surveyors found 11 failures by Petitioner to comply substantially with federal participation requirements. None of these alleged failures to comply were at the immediate jeopardy level of noncompliance. At the November 1999 survey, the surveyors found three failures by Petitioner to comply substantially with participation requirements, none of which were at the immediate jeopardy level of noncompliance. Based on these findings, the California survey agency recommended to HCFA that it impose remedies against Petitioner. Ultimately, HCFA determined to impose remedies. These included civil money penalties of $5,000 per day for the period which runs between May 20, 1999 through June 6, 1999. HCFA based its determination to impose $5,000 per day civil money penalties during this period on its conclusion that Petitioner manifested immediate jeopardy level deficiencies throughout the period. The remedies also included civil money penalties of $1,000 per day for the period which runs between June 7, 1999 and July 15, 1999, and $100 per day for the period which begins on July 16, 1999. HCFA also terminated Petitioner's participation in Medicare based on the findings that were made at the November 1999 survey. Petitioner requested a hearing. Originally, the case was
assigned to another administrative law judge. It was reassigned to me.
I held a hearing in Santa Ana, California on June 26 - 29, 2000. Each
party called numerous witnesses to testify. I received into evidence exhibits
from each party. From HCFA I received into evidence exhibits which are
identified as HCFA Ex. 1 - HCFA Ex. 89, and HCFA Ex. 91 - HCFA Ex. 106.
I excluded HCFA Ex. 90. From Petitioner I received into evidence exhibits
which are identified as P. Ex. 2, P. Ex. 5, P. Ex. 7, P. Ex. 10, P. Ex.
15 - P. Ex. 18, P. Ex. 23 - P. Ex. 25, P. Ex. 27 - P. Ex. 34, P. Ex. 38
- P. Ex. 43, P. Ex. 47, P. Ex. 49 - P. Ex. 53, P. Ex. 55, P. Ex. 57, P.
Ex. 74 - P. Ex. 79, P. Ex. 81 - P. Ex. 85, P. Ex. 95 - P. Ex. 97, P. Ex.
99, and P. Ex. 102. II. Ruling on Petitioner's arguments concerning
whether federal regulations are ultra vires or unconstitutional In its hearing request in this case Petitioner argued
that regulations the Secretary had published to implement provisions of
the Social Security Act (Act) affecting long-term care facilities were
either ultra vires or unconstitutional. HCFA moved to dismiss these arguments,
arguing that I was without authority to address them. Previously, I issued
rulings which, among other things, deferred my final ruling on the issue
of whether I had authority to address Petitioner's arguments. See Rulings
Denying Motions (May 10, 2000). I now issue a final ruling that I lack
the authority to address them. I addressed the question of my authority in my decision in Life Care Center at Hendersonville, DAB CR542, at 10 (1998). I held there that I lack authority to decide questions involving the lawfulness of regulations. I concluded that I have the authority to interpret regulations and procedures and to decide whether HCFA has acted properly pursuant to those regulations and procedures. But, I am required to assume that the regulations and procedures under which HCFA acts are lawful. I reiterate my holding in Life Care Center at Hendersonville. I do not have authority to hear and decide Petitioner's assertions that regulations are either ultra vires or unconstitutional. Petitioner may raise challenges to regulations elsewhere after it has exhausted its administrative remedies.III. Issues, findings of fact and conclusions of law
1. A basis exists to terminate Petitioner's participation
in Medicare as a consequence of Petitioner's failure to comply substantially
with a Medicare participation requirement or requirements as of the November
1999 survey; 2. A basis exists to impose immediate jeopardy level
civil money penalties against Petitioner as a consequence of Petitioner's
failure to comply substantially with a Medicare participation requirement
or requirements as of the May 1999 survey; 3. A basis exists to impose civil money penalties against
Petitioner as a consequence of Petitioner's failure to comply substantially
with a Medicare participation requirement or requirements at any time
beginning with the May 1999 survey and running through the November 1999
survey; and 4. The civil money penalties that HCFA determined to impose against Petitioner are reasonable.
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.
The remedies that HCFA imposed against Petitioner include
termination of Petitioner's participation in Medicare. Imposition of this
remedy rests on Petitioner's alleged noncompliance with federal participation
requirements as of the November 1999 survey. The Act authorizes HCFA to
terminate a facility's participation in Medicare whenever that facility
is found not to be complying substantially with federal participation
requirements. Act, section 1866(b)(2). Implementing regulations provide
for termination where any failure to comply substantially with participation
requirements is present. 42 C.F.R. � 488.456(a); see �� 488.406(a);
488.412(a). Conversely, HCFA may not terminate a facility's participation
where the facility is complying substantially with federal participation
requirements. Petitioner argues that HCFA may terminate a long-term
care facility's participation in Medicare only in the circumstance where
the facility is deficient in meeting participation requirements at the
immediate jeopardy level. Petitioner asserts that, in effect, section
1866(b)(2) of the Act was amended by section 1819(h)(2) of the Act. Petitioner
argues additionally that the Departmental Appeals Board decision in Beverly
Health & Rehabilitation
- Springhill, DAB No. 1696 (1999), which held that HCFA may terminate
a nursing facility's participation for a less-than immediate jeopardy
level deficiency, is distinguishable and not applicable to this case. I make no finding in this decision
as to how the Act should be interpreted. The Secretary has interpreted
the Act in her regulations and I am bound by this interpretation. The
regulations provide for termination as a remedy in the presence of any
failure to comply substantially regardless whether the noncompliance is
at the immediate jeopardy level. 42 C.F.R. � 488.456(a). Furthermore,
I do not find the decision in Beverly Health & Rehabilitation -
Springhill to be distinguishable as is argued by Petitioner. That
decision is consistent with 42 C.F.R. � 488.456(a). Below, I analyze the allegedly substantial deficiencies
that were identified in the report of the November 1999 survey. My overall
conclusion is that the preponderance of the evidence establishes that
Petitioner was complying with the participation requirements that are
the basis for the deficiency allegations. Therefore, HCFA had no basis
to terminate Petitioner's participation in Medicare.
The report of the November 1999 survey alleges that Petitioner
failed to comply with the requirements of 42 C.F.R. � 483.10(a)(1) and
(2). HCFA Ex. 49 at 1 - 7. This regulation provides that a resident of
a facility has the right to exercise his or her rights as a resident of
the facility and as a citizen of the United States. Additionally, it states
that a resident has the right to be free from interference, coercion,
discrimination, and reprisal from a facility in the exercise of his or
her rights. The survey report alleges that Petitioner failed to comply
with the requirements of the regulation by failing to ensure that a resident
was free from coercion. The report alleges that Petitioner transferred
a resident who is identified in the survey report as Resident # 8 from
one room to another room in Petitioner's facility without consulting with
the resident's family. It alleges also that the resident was induced against
his will to sign a consent form in which he agreed to the transfer. I find no deficiency because the allegations of noncompliance
are based on unverifiable and unreliable hearsay. The "evidence" of Petitioner's
noncompliance consists of hearsay reports of complaints by unnamed members
of the resident's family in which they are alleged to have asserted to
the surveyors that: they were not notified of the transfer of the resident
(HCFA Ex. 49 at 2); an unnamed member of Petitioner's staff told the family
members that the transfer was being made because the facility had a right
to move the resident inasmuch as the resident's care was being paid for
by the State (Id.); and; the resident revealed to the family members
that he felt "forced" to sign a document in which he consented to the
room change (Id. at 3). Additionally, the family members allegedly
witnessed an unnamed social services worker "bending over the resident
and verbally prompting him to sign another document." (Id. at 5).
According to the survey report the family members asserted that the worker's
manner was intimidating. Id. The family members also are alleged
to have related that they had a meeting on November 17, 1999, with Petitioner's
administrator, social services designee, and director of nursing. Id.
at 6. However, the substance of that meeting is not disclosed in the survey
report. I routinely admit hearsay at hearings involving HCFA.
I admit hearsay because, in an administrative proceeding that is conducted
without a jury, there is little danger that a fact-finder will be swayed
by unreliable evidence and because it is more efficient simply to admit
the evidence than to spend time ruling on its admissibility at the hearing.
However, the fact that I may admit hearsay does not mean that I find it
to be reliable. Hearsay evidence is inherently unreliable in most instances.
Most rules of evidence, including the Federal Rules of Evidence, find
hearsay generally to be inadmissable at trial. In this case I admitted the survey reports, including
the report of the November 1999 survey, even though they contain hearsay.
However, I explained to the parties that, in the final analysis, I might
find hearsay to be unreliable. Trial Transcript (Tr.) at #35 - #38. The hearsay that is at issue here is unverified and unreliable. HCFA did not establish even a prima facie case that Petitioner failed to comply with 42 C.F.R. � 483.10(a)(1) and (2). It is not possible to discern whether the surveyors accurately reported the statements that are recited in the survey report, or whether the statements are unbiased and otherwise credible, even if they are accurately reported. HCFA did nothing at the hearing to prove that the assertions in the survey report are reliable. For example, HCFA might have called as witnesses members of the resident's family to attest to the truth of the alleged statements. HCFA did not call any of these individuals.
The report of the November 1999 survey alleges that Petitioner
failed to comply substantially with the requirements of 42 C.F.R. � 483.25(g)(2).
HCFA Ex. 49 at 8 - 17. This regulation states that a resident who is fed
by a naso-gastric or gastrostomy tube receives the appropriate treatment
and services to prevent aspiration, pneumonia, diarrhea, vomiting, dehydration,
metabolic abnormalities, and nasal-pharyngeal ulcers, and to restore,
if possible, normal eating skills. The report alleges that Petitioner
failed to ensure that a resident fed by gastrostomy tube, who is identified
in the survey report as Resident #3, received appropriate treatment and
services to prevent the resident from suffering dehydration and metabolic
abnormalities. The resident in question is a long-term resident of Petitioner's
facility. He was hospitalized between October 11 - 15, 1999, suffering
from pneumonia and other medical problems. He returned to Petitioner's
facility on October 15, 1999. The resident was fed and given water via
a gastrostomy tube from readmission until after the date of the survey
report. The survey report makes numerous allegations concerning
the allegedly deficient care that Petitioner gave to Resident # 3. However,
the overriding assertion that emerges from the survey report is that Petitioner
systematically failed to administer nutrition and water to Resident #
3 in a manner which was consistent with the tube feeding orders that were
given by the resident's physician. The overriding assertion emerges from a number of examples
that the survey report identifies as allegedly deficient conduct by Petitioner's
staff. First, the report seems to say that the resident's treating physician
initially gave the resident an incorrect prescription for tube feeding
and water. Second, the report asserts that on October 19, 1999, Petitioner's
dietary services supervisor made an initial assessment of the resident.
It notes that the supervisor indicated that the resident's case would
be referred to a registered dietician for a tube feeding assessment. However,
according to the report, there is "no evidence" that a licensed nurse
or a registered dietician was notified "immediately" of the nutritional
concerns regarding Resident # 3. HCFA Ex. 49 at 10. Third, the report notes that, on October 20, 1999, a registered
dietician recommended that the resident's tube feeding be increased to
85 cc per hour for 22 hours per day and that the feeding tube be flushed
with 250 cc of water per shift. It notes also that, on October 21, 1999,
a physician's order was obtained which increased the feeding and water
flushes as per the dietician's recommendations. HCFA Ex. 49 at 11. The
report asserts that on several dates after October 21, 1999 and running
through November 1, 1999, the resident received substantially less formula
and water than had been prescribed. Id. at 12. Fourth, the report notes that, on November 2, 1999, the
registered dietician again assessed Resident # 3. At this time the dietician
recommended that the resident's formula be changed to Nutren 1.5, at 85
cc per hour for 22 hours per day. The dietician also recommended that
the resident receive water flushes at the rate of 300 cc per shift. HCFA
Ex. 49 at 12. However, Petitioner did not receive a physician's order
for a change in the resident's nutrition and fluid intake until November
4, 1999, three days after the dietician recommended a change. Id.
at 13. The report alleges that, between November 8 - 11, 1999, the resident's
intake of formula and water was inconsistent with that which had been
recommended by the dietician and ordered by the resident's physician.
Id. at 13 - 14. Fifth, the report relates the observations of a surveyor.
The surveyor asserts that, at three times on November 17, 1999, observations
were made of the resident. These observations were recorded at 8:10 a.m.,
10:45 a.m., and 11:30 a.m. No formula was being administered during these
observations, although formula was administered at a subsequent observation
that was made at 12:45 p.m. on November 17, 1999. The report contends
that, on that date, the resident could not have received the 650 cc of
formula that the nurse documented as being administered to the resident
during the nursing shift which included the surveyor's observations at
various times that no formula was being administered to the resident. Finally, the report contains some observations about the
state of the resident's health. It notes that, during the late October
- early November 1999 period, the resident lost weight. Additionally,
the resident developed a urinary tract infection and had laboratory test
results indicative of metabolic problems. The report also notes that,
on November 17, 1999, the resident's urine was observed to be "dark caramel
in color and very concentrated." HCFA Ex. 49 at 14. The report does not
specifically assert that any of these problems were the consequence of
the alleged failure by Petitioner to provide nutrition and water to the
resident consistent with the requirements of 42 C.F.R. � 483.25(g)(2).
However, HCFA asserts that Petitioner caused the resident to suffer "actual
harm" and argues that the medical problems that are identified in the
survey report are the consequence of Petitioner's allegedly improper administration
of nutrition and water to the resident. Petitioner established by a preponderance of the evidence
that it complied substantially with the requirements of 42 C.F.R. � 483.25(g)(2).
First, I find no basis to conclude that Petitioner had a duty to challenge
the initial prescription for nutrition and water that was given by the
resident's physician. Moreover, Petitioner not only assessed the resident's
needs but obtained a revised prescription from the resident's physician
which reflected that assessment. The regulation does not require a facility to challenge
the nutrition orders that are given by a resident's physician. Nonetheless,
in this case the record establishes that Petitioner's staff did assess
the resident's dietary and fluid needs shortly after the resident was
readmitted to the facility and it recommended a change in the volume of
nutrition and water that was being administered. As is noted by the survey
report, within four days of the resident's readmission to the facility,
Petitioner's dietary services supervisor had looked at Petitioner's case
and determined to refer the matter to Petitioner's registered dietician.
The survey report's finding that the matter was not referred promptly
to the dietician is incorrect. The registered dietician completed a review
of the resident's nutritional needs and made recommendations for a change
in the physician's orders on October 20, 1999, only one day after the resident was
seen by the dietary services supervisor. HCFA Ex.
49 at 11. A new order for increased tube feedings and water flushes was
obtained from the resident's physician on the next day, October 21, 1999.
Id. Indeed, the initial assessment of the resident by Petitioner's
dietary staff was not the only assessment that the staff made of the resident's
nutrition and water needs. As the survey report notes, the dietician reassessed
the resident on November 2, 1999 and recommended an increase in nutrition
which was subsequently ordered by the resident's physician. The survey
report criticizes Petitioner for not receiving an updated physician's
order for three days after the recommendation was made. But, the report
cites nothing which would suggest that the delay was occasioned by some
error or omission of Petitioner or its staff. Second, I conclude that Petitioner administered formula
and water to the resident in substantial compliance with the resident's
physician's orders. By carrying out these orders Petitioner complied with
the requirements of 42 C.F.R. � 483.25(g)(2). The evidence which HCFA relies on as support for the survey
report's conclusion that Petitioner failed to administer nutrition and
water to Resident # 3 in accord with his physician's orders consists of
the Input and Output record that was maintained for the resident. P. Ex.
55 at 173 - 176. On its face, this document shows that the resident was
not receiving nutrition and water as had been prescribed. Close examination
of the Input and Output record shows that, on nearly all of the dates
at issue, records for the 11 p.m. - 7 a.m. shift show that the resident
received nutrition and water at a less-than-prescribed rate during that
shift. If the Input and Output record is accurate, the discrepancy between
what was prescribed to the resident and what the resident received can
be explained almost completely by an under supply of nutrition and water
to the resident during the 11 p.m. - 7 a.m. shift. Id. However, I do not find that the Input and Output record
accurately records the quantities of nutrition and water that Petitioner's
staff gave to the resident. I find that the nurse who was on duty during
the 11 p.m. - 7 a.m. shift consistently under-recorded information on
the Input and Output record. Petitioner's witness, Ms. Joan Redden, testified
credibly that the pump on a tube feeding machine is preset to deliver
nutrition and water to a patient at a calibrated rate of flow. Tr. at
950. In order for the pump to deliver nutrition and water at less than
a preset rate over any given time the operator has to reset the pump to
deliver at the lower rate. Id. at 950 - 951. It is highly improbable
that a nurse would reset the pump consistently - and contrary to the resident's
physician's orders - during that nurse's shift in order to deliver nutrition
and water to the resident at a lower rate than had been prescribed
and for which the pump was set to deliver on the other two shifts (7 a.m.
- 3 p.m. and 3 p.m. - 11 p.m.). It is far more likely that the nurse who
recorded input and output on the 11 p.m. - 7 a.m. shift misread the pump
calibration and, therefore, misrecorded the pump's output to the resident. Therefore, I find that the record shows that Resident
# 3 actually was receiving nutrition and water as prescribed by the resident's
physician. Thus, the weight of the evidence is that Petitioner's staff
complied with the physician's orders. Ms. Redden's testimony is corroborated by documentary
evidence. The resident's medication administration record and the weekly
nursing summary for the resident both show that the resident received
nutrition and water consistent with his physician's orders. P. Ex. 55
at 94, 118. There were occasions when Petitioner's staff administered
slightly more or slightly less nutrition and water to Resident # 3 than
was prescribed by the resident's physician. For example, I do not doubt
the accuracy of the surveyor's observations on the morning of October
17, 1999. On that occasion the feeding tube was disconnected from the
resident for nearly three hours. But, identifying a few minor deviations
from the regime that was prescribed by the resident's physician does not
support a contention that Petitioner systematically delivered inadequate
quantities of nutrition and water to Resident # 3. I note that the physician
prescribed that the resident be administered tube feeding 22 hours per
day. The interruption which was observed on October 17, 1999 was for approximately
three hours. Thus, the difference between what was prescribed for the
resident and what was observed was minor. I do not find to be relevant HCFA's assertion that the
resident's medical problems were the consequence of failures by Petitioner's
staff to administer nutrition and water consistent with the orders given
by the resident's physician. This allegation was not made explicit in
the report of the November 1999 survey. Petitioner was not given adequate
notice that HCFA intended to assert that the resident's problems were
the result of the way in which Petitioner administered nutrition and water
to the resident. Indeed, the scope and severity rating of "D" that the
State survey agency surveyors ascribed to the alleged deficiency at Tag
322 is based on findings that Petitioner's allegedly deficient conduct
posed a potential for harm to the resident and not on findings
that the conduct actually caused the resident to experience harm. Furthermore,
the evidence shows that Petitioner actually administered nutrition and
water to the resident consistent with what was prescribed for the resident. Moreover, the resident's medical problems can be explained by the resident's overall medical condition. Shortly prior to the time period at issue the resident had been hospitalized for an acute illness. He was convalescing from that illness during the period in question. His condition during that period improved markedly after a change was made in the antibiotic that was being administered to him. Tr. at 952. The resident's dark colored urine can be explained by the fact that he had blood in his urine. P. Ex. 55 at 42, 65.
The report of the November 1999 survey alleges that Petitioner failed to comply substantially with the requirements of 42 C.F.R. � 483.25(i)(1). HCFA Ex. 49 at 17 - 25. This regulation requires that a facility, based on a comprehensive assessment of a resident, ensure that the resident maintains acceptable parameters of nutritional status, such as body weight and protein levels, unless the resident's clinical condition demonstrates that this is not possible. The survey report alleges that Petitioner failed to comply with the requirements of the regulation in providing care to a resident who is identified as Resident # 5. The principal allegations are that Petitioner: (1) allowed the resident to sustain a "significant weight loss" during a period that began on October 5, 1999, the date of the resident's admission to Petitioner's facility and which ran through the date of the survey; (2) failed to monitor the resident's allegedly significant weight loss; (3) failed to undertake interventions to address the resident's allegedly significant weight loss; and (4) failed to refer the resident to its Weight Variance Committee for assessment of the resident's weight loss. HCFA Ex. 49 at 17 - 25; HCFA's posthearing brief at 7 - 9. HCFA's allegations notwithstanding, the preponderance
of the evidence establishes that Petitioner maintained adequate parameters
of nutritional status for Resident # 5. I find that Petitioner complied
substantially with the requirements of 42 C.F.R. � 483.25(i)(1). The survey report and HCFA's assertions concerning Petitioner's
alleged noncompliance with the regulation focus on the weight loss allegedly
sustained by Resident # 5 during the resident's stay at Petitioner's facility.
During the period between October 5, 1999, the date of the resident's
admission, and November 17, 1999, the resident's weight declined from
162 pounds to 146 pounds, for a net loss of 16 pounds. HCFA Ex. 49 at
17 - 25; HCFA Ex. 56. HCFA places great significance on this weight loss
as an indicator that Petitioner failed to supply the resident with adequate
nutrition. Weight loss by a resident does not establish per se a
failure by a facility to comply with the requirements of 42 C.F.R. � 483.25(i)(1).
Weight loss may be an important indicator of inadequate nutrition but
weight loss in an individual case does not mean necessarily that a resident
received inadequate nutrition. Weight loss may be explained by factors
other than nutrition. Moreover, 42 C.F.R. � 483.25(i)(1) does not require
a facility to prevent each of its residents from losing weight. All that
the regulation requires is that a facility provide each of its residents
with adequate nutrition. If a facility provides adequate nutrition to
a resident it is complying with the requirements of the regulation even
if the resident loses weight despite the nutrition that is being supplied
to that resident. Here, the evidence shows that Resident # 5 lost weight,
but it does not establish that the weight loss was due to Petitioner's
inadequate supply of nutrition to the resident. Nor does it demonstrate
that Petitioner paid inadequate attention to the resident's nutrition
needs or failed to address the resident's weight loss in its assessments
of the resident or in the care that it prescribed for the resident. Petitioner cannot be held responsible for the nutrition
that the resident received or the weight loss that the resident sustained
while the resident was not residing at Petitioner's facility. Nearly one
half of the weight loss sustained by the resident between October 5, 1999
to November 17, 1999, happened while the resident was not at Petitioner's
facility. The resident was hospitalized between November 3 - 8, 1999,
for assessment of the resident's behavior. During that five-day period
the resident lost seven pounds. HCFA Ex. 49 at 21. The assertion that Petitioner failed to monitor the resident's
weight is incorrect. Petitioner's staff weighed the resident regularly
between October 5, 1999 and November 17, 1999. HCFA Ex. 56 at 13. HCFA
asserts in its posthearing brief that Petitioner failed, in weighing the
resident, to take into account that a cast worn by the resident was changed
during the resident's stay at the facility, potentially changing the resident's
weight. However, the survey report fails to make this allegation. Moreover,
HCFA introduced no evidence to show that the variation in weight caused
by changing casts on the resident was so significant that it was necessary
for the facility to ascertain the weights of the casts that the resident
wore during her stay at the facility. Nor is it correct to say that Petitioner's staff failed
to undertake interventions to address the resident's weight. The resident
was, in fact, assessed regularly by Petitioner's dietician and the dietician
introduced changes in the resident's diet as a consequence of those assessments.
HCFA Ex. 56 at 7 - 8, 11. The resident's treatment records show that the
dietician reviewed the resident's case on the average of about once per
week between the resident's admission and the date of the survey. Id.
On two occasions during that period the dietician adjusted the resident's
diet. Id. HCFA has offered no evidence to show that the diet that
was prescribed for the resident was inadequate or that the dietician's
assessments of the resident were incorrect. Nor has HCFA shown that the
resident demonstrated any metabolic changes to indicate malnutrition.
In fact, the resident's rising serum albumin levels demonstrate that the
resident was adequately nourished. Tr. at 1110. During the resident's
entire stay at Petitioner's facility, the resident's weight remained substantially
above her ideal body weight of 100 pounds. At the hearing, HCFA argued,
for the first time that Petitioner should have tracked the resident's
weight using the resident's usual body weight and not the resident's ideal
body weight as a baseline standard. HCFA's posthearing brief at 8. I find
this assertion to be irrelevant, inasmuch as HCFA failed to give Petitioner
notice that it intended to raise this issue at any time between the November
1999 survey and the hearing. Petitioner was not given reasonable notice
of the assertion. I do not find that Petitioner's failure to refer Resident
# 5 to Petitioner's Weight Variance Committee for evaluation of the resident's
weight loss is a failure by Petitioner to comply with the requirements
of 42 C.F.R. � 483.25(i)(1). The regulation does not require a facility
to undertake specific assessment or treatment regimes for weight loss.
Moreover, the evidence establishes that Petitioner was providing adequate
interventions to address the resident's weight. Finally, the evidence strongly indicates that the resident's weight loss was due to other factors besides inadequate nutrition. Petitioner's expert, Dr. Dennis Stone, who specializes in geriatric medicine, testified credibly that the resident received adequate nutrition. Tr. at 1110. The resident was receiving Lasix, a diuretic. Weight loss is a consequence of the administration of Lasix. HCFA Ex. 56 at 11; see Tr. at 1109. The resident was demented and markedly agitated. Tr. at 1109. Indeed, this resident was so agitated that she was hospitalized for evaluation of her agitation. Agitation may cause an individual to burn calories and may contribute to weight loss despite adequate nutrition. Id.
The report of the May 1999 survey asserts that in two instances Petitioner's alleged noncompliance with participation requirements was so egregious as to place residents of Petitioner in immediate jeopardy. An "immediate jeopardy" level deficiency is one that causes or is likely to cause serious injury, harm, impairment, or death to residents. 42 C.F.R. � 488.301. The two alleged immediate jeopardy deficiencies are cited at Tags 224 and 353 of the report of the May 1999 survey. HCFA Ex. 1 at 2 - 10, 52 - 55. Petitioner complied substantially with the participation
requirements that are cited at Tags 224 and 353. Not only is there no
persuasive evidence of immediate jeopardy but the preponderance of the
evidence shows that Petitioner was in compliance with the requirements
that are the basis for the immediate jeopardy tags. I stress that I do not make findings here whether HCFA's
immediate jeopardy level assessments were clearly erroneous. A finding
as to the level of Petitioner's noncompliance under Tags 224
or 353 would only be appropriate if I were to conclude that Petitioner
had, in fact, not complied substantially with the participation requirement
on which either of the tags is based. In that event, I would conclude
that HCFA's assessment of immediate jeopardy level deficiencies was incorrect
only if I were to find the assessment to be clearly erroneous. See
42 C.F.R. � 498.60(c)(2). But, it is unnecessary for me to address that
issue where, as I find here, I conclude that there is no basis for finding
any deficiency.
This is one of the two immediate jeopardy level deficiencies
that were cited in the report of the May 1999 survey. The report alleges
that Petitioner failed to comply substantially with the requirements of
42 C.F.R. � 483.13(c)(1)(i). HCFA Ex. 1 at 2 - 10. The regulation states
as follows:
The survey report asserts that Petitioner failed to comply
with the requirements of the regulation because Petitioner allegedly failed
to ensure that 15 of its residents were not neglected. The report cites
examples of alleged neglect of residents by Petitioner's staff as evidence
to support the report's conclusion that Petitioner failed to comply with
the regulation. It is unclear why the survey report cites subpart (i)
of the regulation. The report makes no allegations that Petitioner abused,
punished, or secluded any of its residents. Petitioner argues that the allegations of deficiency do
not actually state a finding that Petitioner was not complying with 42
C.F.R. � 483.13(c)(1)(i). According to Petitioner, that is because the
report fails to address whether Petitioner developed or implemented policies
and procedures that prohibited neglect. Petitioner asserts that the report
contains only evidence of isolated examples of neglect which do not address
the issue of whether Petitioner developed and implemented policies to
prevent neglect. I agree with Petitioner's analysis of the regulation
that the regulation focuses on a facility's development and implementation
of an anti-neglect policy. However, I conclude that it is possible to
infer a failure by a facility to implement its policy if sufficient examples
of neglect at a facility establish a systemic failure by the facility
to do so. Therefore, I conclude that the allegation of noncompliance under
Tag 224 is not defective on its face. However, there is no persuasive evidence that Petitioner
failed to protect its residents from neglect. To a large extent HCFA did
not establish even a prima facie case that Petitioner failed to comply
with the requirements of 42 C.F.R. � 483.13(c)(1). Petitioner rebutted
by a preponderance of the evidence those few instances where HCFA offered
prima facie evidence of noncompliance. The survey report cites 11 examples of alleged failure
by Petitioner to prevent its residents from neglect. These consist of
the following:
What is evident on review of these examples of alleged
noncompliance by Petitioner is that nearly all of the examples rest on
hearsay. Not only are most of the allegations hearsay, but a very large
proportion of them are attributed to unidentified individuals. The hearsay that HCFA relies on to support the findings
made under Tag 224 is highly unreliable and of no probative value. For
the most part, there is no way to test either the accuracy of the statements
that the survey report attributes to various residents or family members
of residents nor is there any way to test the credibility of those statements. The probative value problems created by hearsay are worsened
by the fact that most of the hearsay that HCFA relies on is attributed
to anonymous sources. A facility that is the target of anonymous hearsay
complaints cannot reasonably be expected to be able to respond to those
complaints. In this case HCFA waited until the last possible moment to
reveal the sources of the anonymous hearsay complaints that are cited
in the survey report. On June 7, 2000, HCFA, for the first time and more
than a year after completion of the May 1999 survey, provided Petitioner
with information to identify the residents whose alleged statements were
reported as anonymous complaints in survey reports. Previously, I ruled
that such information must be excluded from the record of the hearing.
See Rulings on Parties' Motions, Requests, and Objections (June 9, 2000).
I concluded that Petitioner would be prejudiced if I allowed HCFA to identify
these residents for the first time so close to the scheduled June 26,
2000 start of the hearing. But, even had I allowed the residents to be
identified on the record at the hearing, their identification would not
have changed the fact that all of the allegations that are attributed
to these residents are hearsay, and HCFA failed to corroborate the allegations. The surveyors who conducted the May 1999 survey could
have made efforts to verify the allegations that were attributed to residents
and family members. For example, they could have tested the assertions
that residents were not being assisted in using the bathroom by inspecting
the residents and their bed linens. However, HCFA offered no evidence
to show that the surveyors made such an inspection or that they found
any examples of residents lying in soiled linens. The surveyors could
have looked for other physical evidence that supported the allegations
that were attributed to residents or family members, such as accumulations
of urine or feces at the facility. However, HCFA offered no evidence to
show that the surveyors searched for such evidence or that they found
it. Furthermore, HCFA offered no evidence to demonstrate the
presence of any of the consequences that one might expect if, in fact,
the staff had neglected to attend to the residents' bowel and bladder
needs. It offered no evidence to show, for example, that residents suffered
pressure sores as a consequence of neglect of residents' bowel and bladder
needs by staff, or that there was an elevated rate of urinary tract infections
at Petitioner's facility. Some of the allegations that are made under Tag 224 are
based on personal observations by surveyors or on their review of Petitioner's
records. These consist of the observations that were made concerning Resident
# 6's demands to be assisted to the bathroom and the review of Resident
# 8's records which established that the resident's personal property
inventory form had not been completed. However, while these observations
may have been accurate, they failed to produce evidence that the potential
for even minimal harm existed in the manner in which Petitioner's staff
dealt with Resident # 6 or Resident # 8. In the case of Resident # 6, 15 minutes was the total
amount of time that elapsed between the resident's initial request to
be assisted to the bathroom and the staff's provision of assistance to
the resident. There is no evidence that the resident was incontinent during
that brief period. Moreover, the weight of the evidence proves that Resident
# 6 was a demented individual who chronically cried out for help from
Petitioner's staff as an attention-getting device. P. Ex. 31 at 143 -
144. It is not clear that the resident had a legitimate need that Petitioner's
staff was late in meeting. Indeed, Petitioner's staff would be acting
inappropriately if it rushed to aid this resident every time she cried
out for help in light of her dementia and the fact that the resident cried
out for help as an attention-getting device. With respect to Resident # 8, I do not find that the failure of Petitioner's staff to complete a property inventory form for the resident at the time of the resident's admission to Petitioner's facility posed a potential for more than minimal harm to the resident. The resident had barely resided in the facility for a week. HCFA offered no evidence to show that any items had been taken from the resident or that the resident or the resident's family had complained that items were stolen.
Tag 353 is the other immediate jeopardy level deficiency
citation in the report of the May 1999 survey. The report alleges that
Petitioner failed to comply with the requirements of 42 C.F.R. � 483.30(a)(1)
and (2). The regulatory language in question states as follows:
(2) Except when waived under paragraph © of this
section, the facility must designate a licensed nurse to serve as a charge
nurse on each tour of duty. . . . The survey report alleges that, based on interviews with
residents, family members, and facility staff, "the facility failed to
provide adequate nursing staff to provide services to help the residents
attain or maintain their highest practicable physical, mental and psychosocial
well-being." HCFA Ex. 1 at 52 - 53. The report contains no allegation
that Petitioner failed to designate a licensed nurse to serve as a charge
nurse on each tour of duty. The report cites five examples of the alleged failure
of Petitioner to provide adequate nursing staff. These consist of the
following:
The allegations in the survey report do not make out a
prima facie case that Petitioner failed to comply with the requirements
of 42 C.F.R. � 483.30(a)(1) and (2). The allegations rest almost exclusively
on hearsay that is attributed to anonymous sources. I do not find these
allegations to be credible for reasons that I have discussed in detail
elsewhere in this decision. More important, even if the allegations are
true, they do not describe a failure by Petitioner to comply with the
requirements of the regulation. The regulation which is the basis for the deficiency citation
made at Tag 353 requires that a facility provide services to its residents
"by sufficient numbers" of designated nursing staff. 42 C.F.R.
� 483.30(a)(1) (emphasis added). The regulation is aimed at assuring that
a facility maintain adequate numbers of staff. It does not directly address
quality of care or quality of life in a facility although, obviously,
it assumes that a facility that has inadequate numbers of staff on hand
may not be able to provide a good quality of care or life to its residents.
Life Care Center of Hendersonville, DAB CR542, at 43 (1998). Quality
of care and life issues are addressed by other regulations. Id. In the Life Care Center of Hendersonville case,
I addressed specifically the issue of what evidence is relevant to establishing
whether a facility maintains inadequate numbers of staff. I held that:
DAB CR542, at 43 The allegations in the survey report exclusively address
the quality of care or life at Petitioner's facility. The survey report
alludes to no direct evidence to show that Petitioner maintained inadequate
numbers of nursing staff. For this reason the allegations in the report,
even assuming them to be true, do not make out a prima facie case of noncompliance
by Petitioner with the staffing regulation. HCFA now argues that data supplied by Petitioner to HCFA
shows that Petitioner maintained inadequate staffing levels especially
when staffing levels are evaluated in terms of the needs of Petitioners'
residents. HCFA's posthearing brief at 39 - 40; see HCFA Ex. 28
at 3. HCFA now asserts that Petitioner required a higher than average
rate of staffing to deal with an extremely dependent population of residents
who suffered from incontinence problems. Id. It contends that Petitioner
failed to provide adequate staffing to meet these alleged needs and argues,
moreover, that Petitioner's staffing was low when measured against the
standards that are followed by other nursing facilities in California.
Id. At the hearing, I allowed HCFA some leeway to make its
case. However, I now find HCFA's evidence, and arguments that it makes
in its post hearing brief that Petitioner had inadequate staffing levels
as of the May 1999 survey, to be irrelevant. I do not find HCFA's arguments
to be relevant because to accept them at this late date would irreparably
prejudice Petitioner. HCFA gave Petitioner no notice that it intended
to argue that Petitioner's residents had unique needs which required Petitioner
to maintain higher than average levels of nursing staff. Nor did HCFA
give Petitioner notice of its contention that Petitioner's staffing was
low by California standards. These arguments were raised by HCFA for the
first time on the record of the hearing that commenced on June 26, 2000.
There is nothing in the report of the May 1999 survey which asserts HCFA's
arguments. Nor did HCFA make them at any time between the survey and the
hearing which commenced on June 26, 2000. HCFA did not tell Petitioner
that Dr. John Schnelle, the expert on whose testimony HCFA relied to assert
that Petitioner's staffing was inadequate, would be testifying about that
subject. HCFA's Final List of Proposed Witnesses at 2 - 3. Petitioner
was not given any opportunity to prepare a defense to HCFA's arguments. Although it was not necessary for Petitioner to rebut
HCFA's last-minute arguments concerning the adequacy of Petitioner's staffing,
I conclude that the weight of the evidence establishes that Petitioner,
in fact, had adequate numbers of nursing staff at its facility when measured
by the requirements of California law. First, Petitioner demonstrated
that the analysis that Dr. Schnelle employed to conclude that Petitioner's
staffing was inadequate was flawed in significant respects. In particular,
Dr. Schnelle calculated Petitioner's staffing ratios by assuming, erroneously,
that Petitioner segregated its patients as Medicare patients and other
patients and allocated its staffing accordingly. See Tr. at 613.
This incorrect assumption led him to allocate disproportionate amounts
of Petitioner's staff time to Medicare residents and to conclude that
Petitioner was "understaffed" with respect to its non-Medicare residents. Second, Petitioner demonstrated that its staffing actually
complied with the requirements of California State law. The federal staffing
regulation does not provide any numeric standard by which the adequacy
of the numbers of a nursing facility's staff may be judged. 42 C.F.R.
� 483.30(a)(1) and (2). I find that, in the absence of an explicit standard
in the regulation, it is reasonable to assume that facilities which comply
with applicable State standards are complying with the staffing requirements
of the regulation. See Life Care at Hendersonville, DAB
CR542, at 46. California State law requires a facility to provide 3.2
hours of staff time per patient per day. Cal. Health & Safety Code
� 1276.5 (West's 1999). Petitioner demonstrated that it exceeded the requirements
imposed by California law. Tr. at 761; P. Ex. 74; P. Ex. 75.
I find that, as of the May 1999 survey, Petitioner was not complying substantially with four of the thirteen participation requirements which are cited under non-immediate jeopardy level deficiency tags. These deficiencies are described at Tags 250, 309, 319, and 324 in the report of the May 1999 survey. In all other respects, either HCFA failed to establish a prima facie case of noncompliance or Petitioner proved by the preponderance of the evidence that it was complying with participation requirements.
The report of the May 1999 survey alleges that Petitioner
failed to comply substantially with the requirements of 42 C.F.R. � 483.10(n).
HCFA Ex. 1 at 1 - 2. The regulation provides that an individual resident
of a facility may self-administer drugs if a facility's interdisciplinary
team has determined that it is safe for the resident to do so. The survey
report alleges that, in one instance, a resident of Petitioner's facility
was permitted to self-administer drugs without there being any documentation
that Petitioner's interdisciplinary team had determined that it was safe
for the resident to do so. The specific allegation that is made in the survey report
is that one of Petitioner's residents, identified as Resident # 21, had
a bottle of Robitussin honey cough syrup at her bedside. HCFA Ex. 1 at
2. The resident allegedly stated that she had the medicine for two months,
which she took when she needed it, and that Petitioner's staff was aware
of her use of the medicine. Review of the resident's records allegedly
showed no evidence that Petitioner's interdisciplinary team had determined
that it was safe for the resident to self-administer medication. Id. There is no persuasive evidence that Petitioner failed
to comply substantially with the requirements of 42 C.F.R. � 483.10(n).
The statement that is attributed to Resident # 21, that Petitioner's staff
knew that the resident had a bottle of cough syrup, is hearsay and is
not verified by additional evidence. Petitioner would not have a duty
to have its interdisciplinary team review the resident's use of cough
syrup if its staff was unaware that the resident was using cough syrup.
But, more important, there is no evidence that the resident's use of cough
syrup, assuming that its use was known to Petitioner's staff, posed even
the threat of minimal harm to the resident. HCFA offered no evidence to
make out even a prima facie case that Robitussin contains ingredients
that might be harmful to an individual if misused by that individual.
Petitioner's expert, Dr. Stone, testified credibly that a resident could
have consumed the entire bottle of Robitussin without experiencing harm.
Tr. at 1114.
The report of the May 1999 survey alleges that Petitioner
failed to comply substantially with the requirements of 42 C.F.R. � 483.13(c)(1)(ii).
HCFA Ex. 1 at 10 - 16. In fact, the allegations of noncompliance in the
survey report all address alleged failures by Petitioner to comply with
other subsections of the regulations at 42 C.F.R. � 483.13(c)(2), (3),
and (4). These subsections require that a facility must:
The survey report alleges that, in five specific instances,
Petitioner failed to "ensure all allegations of neglect, injuries of unknown
origin and misappropriation of resident property were reported to the
administrator and were thoroughly investigated." HCFA Ex. 1 at 11 - 12.
The report cites five alleged incidents of noncompliance by Petitioner.
These consist of the following:
The purpose of the governing regulation is to assure that
a facility protects its residents from abuse, neglect, mistreatment, and
theft of property. The regulation does not require a facility to treat
every minor accident or injury that is suffered by a resident as abuse,
neglect, or mistreatment, or to investigate closely the possible causes
of an injury where there is a reasonable basis for identifying the cause
of that injury. Nor does the regulation require that a facility treat
every loss or misplacement of property by a resident as a misappropriation
or theft necessitating a full-fledged investigation. The preponderance of the evidence establishes that Petitioner
complied substantially with the requirements of 42 C.F.R. � 483.13(c)(2),
(3), and (4). The examples cited by the survey report fail to establish
incidents which triggered the investigation and reporting requirements
of the regulation. I do not find that Petitioner failed to discharge a duty
to investigate the allegations concerning refusal to take the unidentified
resident to the bathroom because it is impossible to verify whether the
complaints were ever made or reported at the time of the alleged incident.
The entire account of the asserted incident in the survey report is based
on hearsay statements that are attributed to a resident and to employees
of Petitioner. For that reason alone I find the account not to be probative.
The problem of hearsay is compounded by the fact that the survey report
identifies none of the declarants whose alleged statements are the basis
for the allegation of noncompliance. At the hearing, held more than a
year after completion of the May 1999 survey, a witness for HCFA sought
to identify the resident and the employees of Petitioner who are mentioned
in the survey report. Such belated identification is highly prejudicial
to Petitioner. For that reason I ruled that it was too late to identify
the resident. Tr. at 463. Similarly, it is too late now to identify the
employees who were referred to without identification in the survey report. There was no necessity for Petitioner to investigate the
skin abrasions that Resident # 1 sustained because they were not injuries
of an unknown origin. The record establishes that Petitioner had identified
a reasonably likely cause for the skin abrasions. The resident was a demented
and highly agitated individual who was constantly disrobing. It was reasonable
for Petitioner's staff to conclude that the abrasions were caused by the
resident's disrobing. Tr. at 896. HCFA argues that the cause of the resident's
abrasions is not documented in the resident's treatment record. However,
42 C.F.R. � 483.13(c)(2), (3), and (4) does not require that a facility
document in a resident's treatment record the cause of every injury if
the staff of the facility has determined that cause.
HCFA now argues that Petitioner should have taken affirmative
steps to prevent the resident from abrading himself. HCFA's posthearing
brief at 13. The allegation that Petitioner failed to protect the resident
is a new allegation that was not made in the survey report or at any time
prior to the hearing. For that reason, I find it to be without merit. The survey report does not document any reason for Petitioner's
staff to investigate the loss of dentures by Resident # 13. There is no
evidence that the dentures were misappropriated and Petitioner was not
obligated to assume that they were misappropriated. Nor did the survey report document any reason for Petitioner's
staff to investigate the alleged loss of an eyeglass case or $20 by Resident
# 21. First, the allegations in the survey report are hearsay and are
unverifiable. There is no credible evidence in the record to show that
Resident # 21 reported the loss of her eyeglass case or $20 to anyone.
Moreover, there is no evidence to show that the resident's eyeglasses,
the case, or the $20 were misappropriated. Finally, the survey report failed to document any reason for Petitioner's staff to investigate the alleged loss of a sweater by Resident # 30. As with the case of Resident # 21, the alleged complaints by Resident # 30 are unverifiable hearsay. There is no evidence that the resident ever complained to Petitioner's staff about the loss of the sweater. And, there is no evidence to show that the sweater was misappropriated as opposed to being lost.
The report of the May 1999 survey alleges that Petitioner
failed to comply substantially with the requirements of 42 C.F.R. � 483.15(a).
HCFA Ex. 1 at 16 - 19. This regulation requires a facility to promote
care for its 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. The survey report cites several examples of
Petitioner's alleged failure to comply with the requirements of the regulation.
These consist of the following:
I find the allegations fail to establish a prima facie
case of noncompliance by Petitioner with the requirements of 42 C.F.R.
� 483.15(a). Most of these allegations are based on unverified hearsay.
It is not possible to ascertain whether any of the complaints that are
recited in these allegations are reported accurately or whether they are
true. Many of the allegations rest on anonymous hearsay complaints thereby
further eroding their credibility. Furthermore, I am not persuaded that many of the allegations
in the survey report, even assuming that they are true, state a prima
facie case that Petitioner failed to respect the dignity of its residents.
There is evidence in the record, which I discuss below at Finding 3.i.
(Tag 319 in the report of the May 1999 survey), which shows that surveyors
observed Resident # 27 wandering into another resident's room. HCFA Ex.
1 at 46 - 47. To some extent the surveyors' observations corroborate the
allegations of the unidentified residents. However, I am not persuaded
that evidence of Resident # 27's wandering behavior is sufficient to establish
that Petitioner failed to respect the dignity of its residents. There
is no evidence that residents vocalized their complaints to Petitioner's
staff or that Petitioner's staff had been less than attentive in responding
to any complaints that it may have received concerning the behavior of
Resident # 27. I also do not find that the allegations that employees of Petitioner spoke foreign languages to each other while providing care to residents establish any affront to the residents' dignity. The mere fact that employees spoke in a language other than English does not in and of itself establish any disrespect for Petitioner's residents. Arguably, a resident's dignity might be affronted if the resident asked an employee to speak English in the resident's presence while providing care to the resident and the employee refused to do so. But, there is no allegation that any employee of Petitioner ever refused to speak English when a resident requested the employee to do so.
The report of the May 1999 survey alleges that Petitioner
failed to comply substantially with the requirements of 42 C.F.R. � 483.15(e)(1).
HCFA Ex. 1 at 19 - 25. The regulation states that a resident has a right
to reside and receive services in a facility with reasonable accommodation
of the resident's individual needs and preferences except when the health
and safety of the resident or other residents would be endangered. The
survey report alleges that Petitioner failed to accommodate residents'
individual needs and preferences. The survey report cites several incidents as support for
its conclusion that Petitioner failed to accommodate residents' individual
needs and preferences. These consist of the following:
The preponderance of the evidence establishes that Petitioner
complied with the requirements of 42 C.F.R. � 483.15(e)(1). The allegations
that residents received cold food are based on hearsay which I find not
to be credible for reasons which I have explained in detail previously.
The surveyors could easily have ascertained whether these allegations
were credible. All that they had to do was to test the temperature of
the food that was served to Petitioner's residents. Yet, they failed to
do that. Petitioner offered credible evidence to establish that it uses
a plate warming device which keeps food hot for at least 70 minutes. Tr.
at 785, 878 - 879. The allegations that Petitioner's staff failed to train
Resident # 19 to manage her diabetes rest in some measure on a faulty
premise that the resident had "newly diagnosed" diabetes. In fact, the
resident had a history of diabetes that predated her stay at Petitioner's
facility. P. Ex. 39 at 49. More, important, however, is that the allegation
concerning Petitioner's alleged failure to train this resident assumes
that, pursuant to 42 C.F.R. � 483.15(e)(1), Petitioner had an obligation
to assure that the resident was able to manage her diabetes successfully
prior to discharge from Petitioner's facility. I do not find that the
requirement that a facility accommodate a resident's needs may be read
so expansively. Petitioner was under an obligation to make a reasonable
effort to prepare the resident for discharge. That obligation included
giving the resident training so that the resident could learn to manage
her diabetes. That obligation did not include assuring that the resident
would be able to self-manage her diabetes. And, what training was provided
to the resident had to take into account the resident's limitations. As
is evident from the nursing notes that were generated during the course
of the resident's stay at Petitioner's facility, this resident was alert
and able to make her needs known. HCFA Ex. 15 at 7. On the other hand,
this resident also plainly was ill with pneumonia and her illness included
a loss of interest in activities. As late as May 16, 1999, only two days
prior to the resident's discharge from Petitioner's facility, the treating
nurse noted that the resident was encouraged to attend activities but
preferred to remain in bed. HCFA Ex. 15 at 13. The nurses notes show that
the resident's ability to engage in activities was markedly restricted
prior to that date. For example, on May 15, 1999, the treating nurse noted
that the resident's respiration was slightly labored and that the resident
could ambulate only about 10 feet. Id. at 14. I do not find that whatever inability the resident may
have had to completely manage her diabetes at the time of her discharge
was the fault of Petitioner's staff. I am satisfied, given the nature
of Resident # 19's illness, that Petitioner's staff provided adequate
accommodation of the resident's needs. Tr. at 1117 - 1118. The resident's
record establishes that she did receive training, both on the 17th
and 18th of May 1999, in the use of an accucheck for measuring
blood sugar. It would have been unlikely that the staff would have been
able to do much more for the resident given the state of the resident's
illness and her inactivity prior to the 17th of May. The allegations that Petitioner's staff failed to accommodate
the needs of resident # 6 are not supported by the preponderance of the
evidence. This resident suffered from significant cognitive impairment.
P. Ex. 31 at 55. The resident needed extensive assistance to perform activities.
Id. At times the resident could eat without assistance, at other
times the resident had to be physically assisted to eat. Tr. at 894. Therefore,
the fact that the resident was observed to be fed on one occasion without
being cued does not mean that Petitioner's staff failed to accommodate
the resident's needs. Finally, I am not persuaded that the failure of a nursing
assistant to know the name of a resident or the fact that a nurse, on
the nurse's first day of employment at Petitioner's facility, was unfamiliar
with the particulars of a resident's case establishes that Petitioner's
staff was not accommodating the needs of residents. These incidents, assuming
their truth, say nothing about the quality of care provided by the staff
or the attentiveness of staff to residents' needs.
The report of the May 1999 survey finds that Petitioner
failed to comply substantially with the requirements of 42 C.F.R. � 483.15(g).
HCFA Ex. 1 at 25 - 31. The regulation requires that a facility provide
its residents with medically-related social services in order to
enable residents to maintain the highest practicable levels of physical,
mental, and psychosocial well-being. The survey report recites several
examples of Petitioner's alleged failure to comply with the regulation.
These include the following allegations:
I find that the allegations made under Tag 250 state a
prima facie case of noncompliance with participation requirements that
Petitioner failed to rebut by the preponderance of the evidence. The evidence
establishes that Petitioner was remiss in attending to the psychosocial
needs of some of its residents and was deficient in complying with the
requirements of 42 C.F.R. � 483.15(g). I am not persuaded that Petitioner was completely negligent, as is alleged in the survey report. In the case of Resident # 5, the evidence shows that Petitioner's staff - especially Petitioner's nursing staff - was attentive to the resident's emotional and psychological needs. However, the failure of Petitioner's social services staff to follow up on the complaints and problems of some of Petitioner's residents is sufficient to establish a deficiency under Tag 250. The evidence shows that, on more than one occasion, Petitioner's staff identified a problem that a resident was experiencing and failed to follow up on that problem timely. That is evident in the cases of Residents #s 13, 16, and 27. In each case, Petitioner's staff became aware that the resident was experiencing a medically related problem. Yet, in each case, there was a substantial delay in attending to that problem.
The report of the May 1999 survey alleges that Petitioner
failed to comply with the requirements of 42 C.F.R. � 483.20(d)(3)(i).
HCFA Ex. 1 at 31 - 35. The section of the regulations that the survey
report cites to was revised effective October 1998 and is currently codified
as 42 C.F.R. � 483.30(k)(3)(i). Both the former and current versions of
the regulation require that services provided by a facility must meet
professional standards of quality. The survey report contains the following allegations of
Petitioner's alleged failure to provide services that met professionally
recognized standards of quality:
The weight of the evidence establishes that Petitioner
complied with the requirements of 42 C.F.R. � 483.20(d)(3)(i)
(42 C.F.R. � 483.20(k)(3)(i)). There is no persuasive evidence that Petitioner
failed to comply with professional standards of quality in providing care
to the three residents whose cases are cited in the survey report. The premise of the allegations concerning Resident # 19
is that Petitioner's staff should have addressed the resident's "newly
diagnosed" diabetes by assessing the resident's diet and recommending
changes as were determined to be necessary. However, as I discuss above,
at Finding 3.d., Resident # 19 is not a "newly diagnosed" diabetic. Resident
# 19 has a history of diabetes. P. Ex. 39 at 49. Moreover, Resident #
19's diet had been assessed previously. The resident was receiving a 1500
calorie a day diet. HCFA Ex. 1 at 32. HCFA has not made a prima facie
showing why, given the fact that the resident's diabetes was not newly
diagnosed, and given further that the resident's diet had been assessed
and adjusted previously, additional involvement by a dietician was necessary. The allegations that Petitioner's staff failed to clean
or empty a resident's suction machine canister are rebutted by the preponderance
of the evidence. The surveyors who conducted the May 1999 survey did not
make continuous observations of the canister. They observed the canister
at various times. HCFA Ex. 1 at 32 - 33. At each observation the surveyors
noted that the canister contained cloudy whitish liquid. Id. These
observations are not consistent with failure to empty or clean the canister.
To the contrary, they suggest that the canister was emptied and cleaned.
Tr. at 1127. Moreover, the allegations - assuming their truth - fail to
establish a potential for even minimal harm to the resident. HCFA offered
no persuasive evidence to show that failure to empty or clean the canister
could harm the resident. In fact, the suction system is a one-way system
which prevents secretions from flowing backwards. Tr. at 1126 - 1127. The evidence establishes that Resident # 5 more or less regularly refused to accept insulin. His refusal to do so was not an isolated episode which represented a departure from the resident's past behavior. P. Ex. 30 at 350. The resident's treating physician was aware of the resident's behavior. Thus, there was no need to notify the physician of each instance in which the resident refused to accept insulin. Tr. at 1121 - 1122. There was no potential for harm to the resident in failing to notify the resident's physician of each episode in which the resident refused to accept insulin in light of the fact that the resident's refusal to accept insulin was documented and well known.
The report of the May 1999 survey alleges that Petitioner
failed to comply with the requirements of 42 C.F.R. � 483.25. HCFA Ex.
1 at 35 - 42. This regulation provides that a facility must provide the
necessary care and services to each of its residents so that the resident
may attain or maintain the highest practicable physical, mental, and psychosocial
well-being, in accordance with the resident's comprehensive assessment
and plan of care. The survey report alleges that Petitioner failed to provide
care for a resident, identified in the report as Resident # 7, in a manner
that is consistent with the requirements of 42 C.F.R. � 483.25. The report
documents several alleged incidents of noncompliance with the regulation.
These consist of the following:
HCFA established a prima facie case of noncompliance with
the requirements of 42 C.F.R. � 483.25, which Petitioner did not rebut
by the preponderance of the evidence. I find that Petitioner was deficient
under Tag 309. The evidence shows that Resident # 7's wife had assumed
some of the duties of caring for that resident. That is not objectionable
and may even be desirable. But, under the circumstances, Petitioner's
staff had a duty to train the wife to assure that she could provide care
that was consistent with the resident's best interests. Petitioner did
not establish that it provided the requisite training. Petitioner argues
that the wife had been trained sufficiently at an acute care hospital
to provide wound care to the resident. P. Ex. 32 at 95. The record shows
that the resident or his wife received instructions for wound care. However,
it does not show that the wife was competent in providing such care. Petitioner's
staff should have made certain that the wife knew how to care for the
resident's wound so long as she was providing such care. I do not find that Petitioner's staff did anything improper
in manually removing the resident's stool. Contrary to the suggestions
made in the survey report and at the hearing there is no evidence that
a nursing assistant performed a digital rectal examination of the resident.
However, I conclude that the staff should have consulted with the resident's
physician concerning the resident's constipation and, certainly, before
giving the resident Milk of Magnesia. Petitioner asserts that there was no harm in the staff's failure to follow strict input and output measurement requirements inasmuch as the resident's condition had improved and the resident was due shortly to be discharged. That may be so. However, the record shows that the staff had failed for nearly a month prior to the survey to follow strict input and output measurement requirements. HCFA Ex. 6 at 28 - 32. This failure plainly was inconsistent with the physician's orders and posed the potential for more than minimal harm to the resident. Petitioner argues that its staff's failure to follow strictly the physician's order for monitoring pulse oximetry readings was essentially harmless error inasmuch as the resident improved and, ultimately, was discharged. I agree that the resident suffered no harm from failure to follow the physician's order. But, I conclude that the failure to follow the order posed a potential for more than minimal harm to the resident. The physician had ordered that the resident be given oxygen if the resident's oxygen saturation level was at less than 92 percent. HCFA Ex. 1 at 41. Failure to note oxygen saturation levels on several days meant that the resident may not have received a treatment that the physician determined was necessary for the resident's health.
The report of the May 1999 survey alleges that Petitioner
failed to comply with the requirements of 42 C.F.R. � 483.25(d)(2). HCFA
Ex. 1 at 42 - 45. The regulation requires that a facility provide a resident
who is incontinent of bladder with appropriate treatment and services
to prevent the resident from developing a urinary tract infection. Under
this regulation the facility is also required to restore as much of a
resident's normal bladder function as possible. The survey report alleges that Petitioner failed in two
respects to comply with the requirements of the regulation. These alleged
failures consist of the following:
I find no basis to conclude that Petitioner failed to
comply with the requirements of 42 C.F.R. � 483.25(d)(2). The preponderance
of the evidence establishes that bowel and bladder retraining would have
been futile in the cases of both of the residents whose care is discussed
under Tag 316 of the May 1999 survey report. Consequently, there was not
the potential for more than minimal harm to the residents in the manner
in which Petitioner cared for them. In light of resident # 25's medical condition, I find no potential for harm in Petitioner's failure to enroll the resident in a bowel and bladder retraining program. Resident # 25 was terminally ill with pancreatic cancer and was suffering from severe pain. Tr. at 566. The resident was receiving hospice care and was soon to be discharged from the facility to return home. It is true that the resident was assessed initially as a candidate for bowel and bladder retraining. However, it became apparent with the passage of time that retraining was not suitable therapy for the resident given the resident's medical condition. Tr. at 932 - 933. Petitioner's staff assisted the resident with use of the bathroom whenever the resident requested assistance. Id. at 933. Attempting to retrain the resident would have been cruel under the circumstances. Id. Petitioner did not act unreasonably in failing to enroll Resident # 6 in a bowel and bladder retraining program. The resident lacks the cognitive ability to participate in such a program. Tr. at 855. Resident # 6 was a demented individual. The resident's treatment records show that the resident suffered from psychosis and depression. P. Ex. 31 at 92. This resident constantly requested staff to assist her with use of the bathroom regardless whether the resident actually needed to use the bathroom. Tr. at 933 - 934.
The report of the May 1999 survey alleges that Petitioner
failed to comply with the requirements of 42 C.F.R. � 483.25(f)(1). HCFA
Ex. 1 at 45 - 48. This regulation requires that, based on a resident's
comprehensive assessment, a facility must ensure that a resident who displays
mental or psychosocial adjustment difficulty receives appropriate treatment
and services to correct his or her problems. The survey report's allegation that Petitioner did not
comply with the requirements of the regulation centers around the care
that Petitioner provided to Resident # 27. This demented resident was
easily annoyed, could become verbally abusive, and wandered into other
resident's rooms. HCFA Ex. 1 at 47 - 48. On March 30, 1999, a care plan
was prepared for the resident which detailed a variety of approaches that
were designed to address the resident's wandering behavior. Id.
at 48. The survey report alleges that the resident continued to wander
after March 30, 1999, but that Petitioner failed to reassess the resident's
condition or to modify the resident's plan of care to address the resident's
wandering problems. Petitioner did not adequately address the resident's mental
and psychosocial difficulties. Therefore, Petitioner did not comply substantially
with the requirements of 42 C.F.R. � 483.25(f)(1), and was deficient under
Tag 319. Petitioner does not deny that the resident continued to manifest
wandering behavior after March 1999. Petitioner argues that it attempted
various interventions with the resident. Including, moving the resident's
room to a room next to Petitioner's activities room so that the resident
would not have to travel so far to use the bathroom, and other interventions
that were described in the plan of care. Petitioner's posthearing brief
at 42; Tr. at 906 - 907. However, it is obvious that these interventions
were not successful. Petitioner failed to conduct any reassessment of
the resident to determine whether additional or other interventions might
succeed.
The report of the May 1999 survey alleges that Petitioner
failed to comply with the requirements of 42 C.F.R. � 483.25(h)(1). HCFA
Ex. 1 at 48 - 50. The regulation requires a facility to maintain an environment
that is as free as is possible from accident hazards. The survey report
alleges that Petitioner failed to comply with the regulation by "leaving
a razor" at the bedside of a female resident, identified in the survey
report as Resident # 3, who suffered from dementia. HCFA Ex. 1 at 49 -
50. HCFA failed to establish a prima facie case of noncompliance
by Petitioner with the requirements of 42 C.F.R. � 483.25(h)(1). HCFA
offered no evidence to prove that Petitioner left a razor at the bedside
of Resident # 3. The facts cited in the survey report show only that the
resident had a razor which, evidently, she had concealed in a tissue box
by her bedside. HCFA Ex. 1 at 49. Petitioner's director of nursing told
the surveyors that the razor was of a different color than are those which
are supplied by Petitioner. Id. There is no persuasive evidence that Petitioner failed
to prevent accident hazards at its facility. The regulation that is cited
under Tab 323 does not impose a strict liability standard on a facility.
A facility must prevent accidents where it is possible for the facility
to do so. Here, the evidence does not show that the resident's possession
of a razor was an event that the facility either knew about or should
have known about. Moreover, the only way in which Petitioner could have
prevented this resident - or any resident - from having an unauthorized
razor would be by systematically searching each resident's possessions.
Had Petitioner done so other issues of privacy rights and dignity no doubt
would have arisen.
The report of the May 1999 survey alleges that Petitioner
failed to comply with the requirements of 42 C.F.R. � 483.25(h)(2). HCFA
Ex. 1 at 50 - 52. The regulation requires a facility to ensure that each
of its residents receives adequate supervision and assistance devices
to prevent accidents. The survey report alleges that Petitioner failed to comply
with the requirements of the regulation in providing care to a resident
who is identified in the survey report as Resident # 2. This resident
used a wheelchair and had a history of falls. On January 25, 1998, a restraint
assessment was performed and it was concluded that the resident needed
to wear a back release seat belt for safety. HCFA Ex. 1 at 50. On January
24, 1999, the resident sustained a fall from his wheelchair. Petitioner's
staff conducted a reassessment of the resident's need for restraints and
concluded that the staff needed to continue monitoring the resident for
proper use of the seat belt and to place the resident in front of the
facility's nursing station so that the resident could be observed and
monitored closely. However, on March 30, 1999, the resident sustained
another fall from his wheelchair. On that occasion the resident leaned
forward to pick up an object from the floor. The belt came loose and the
resident fell. Id. at 51. The survey report concluded that: "[a]lthough
a recommendation had been made to closely monitor the resident at the
nursing station, the resident was left in his room at the time of the
fall." Id. at 51 - 52. I conclude that the evidence cited in the survey report establishes a prima facie case of noncompliance by Petitioner which Petitioner did not rebut with the preponderance of the evidence. Petitioner failed to comply substantially with the requirements of 42 C.F.R. � 483.25(h)(2) and was deficient under Tag 324. Petitioner argues that there is no evidence that the resident's belt had been applied improperly. Petitioner's posthearing brief at 44. I disagree. The fact that the belt came loose is prima facie evidence that either the belt had been applied improperly, or, it was defective. In either event, close monitoring of the resident consistent with the monitoring plan that had been developed for the resident would have prevented the resident from sustaining a fall.
The report of the May 1999 survey alleges that Petitioner
failed to comply with the requirements of 42 C.F.R. � 483.35(f)(1) - (3).
HCFA Ex. 1 at 55. The regulation provides, at 42 C.F.R. � 483.35(f)(3),
that a facility must offer its residents bedtime snacks. The survey report
alleges that, at a group interview, eight unidentified residents complained
that they were not offered bedtime snacks. I find that HCFA failed to establish a prima facie case
of noncompliance with the regulation. The complaints recited in the survey
report are unverified hearsay. There is no evidence that the surveyors
made observations which might have verified or refuted these complaints.
The report of the May 1999 survey alleges that Petitioner
failed to comply with the requirements of 42 C.F.R. � 483.75(l)(1). HCFA
Ex. 1 at 59 - 61. The regulation requires that a facility maintain clinical
records for each resident in accordance with accepted professional standards
and practices that are: complete; accurately documented; readily accessible;
and systematically organized. The report alleges that Petitioner failed to maintain complete records for each of its residents. The alleged lack of completeness lies in failure by nursing assistants in some instances to write the names of residents on the nursing assistant (CNA) sheets that they prepared. The report asserts that, in other instances, CNA sheets were not prepared to document what occurred on given shifts. I am not persuaded that these allegations establish a prima facie case of noncompliance by Petitioner with the requirements of the regulation. Nor on their face do they establish the potential for more than minimal harm to any resident. The survey report does not allege, nor has HCFA offered any evidence to show, that the failure of nursing assistants to write patients' names on CNA sheets made it impossible or even difficult to identify which residents the nursing assistants were caring for or what the nursing assistants did for the residents. Furthermore, as Petitioner notes, there is no requirement in the regulation that nursing assistants make notes for every resident and every shift. Indeed, there is no specific requirement in the regulations that nursing assistants make notes.
I find that, as of the July 1999 survey, Petitioner was
not complying substantially with four of the eleven participation requirements
which are cited in the survey report. These deficiencies are described
at Tags 155, 167, 281, and 312 in the report of the July 1999 survey.
In all other respects either HCFA failed to establish a prima facie case
of noncompliance or Petitioner proved by the preponderance of the evidence
that it was complying with participation requirements.
The report of the July 1999 survey alleges that Petitioner
failed to comply with the requirements of 42 C.F.R. � 483.10(b)(4). HCFA
Ex. 29 at 1- 4. The regulation provides that a resident of a facility
has a right to refuse treatment. The survey report cites three specific examples of Petitioner's
alleged failure to comply with the requirements of the regulation. In
one instance, a resident who is identified as Resident # 5 signed a Preferred
Intensity of Care (PIC) form in which the resident stated that he did
not wish to have cardiopulmonary resuscitation (CPR). However, as of a
month later, Petitioner had not obtained an order from the resident's
physician in which the physician prescribed no CPR for the resident. HCFA
Ex. 29 at 2. In a second instance, a resident who is identified as Resident
# 7 signed a PIC form in which the resident stated that she did not want
life to be prolonged. However, she also checked a box indicating that
she wanted CPR to be administered to her. The report alleges that Petitioner
failed to clarify the alleged inconsistency in the resident's PIC form.
In the third instance, a resident who is identified as Resident # 6 indicated
in a PIC form that the resident wanted life to be prolonged to the greatest
extent possible. However, a physician signed an order for the resident
which contained the statement, "no CPR." The report alleges that Petitioner
failed to clarify this alleged inconsistency between the PIC form and
the physician's order. Petitioner does not deny these facts. It argues that there
is no evidence that Petitioner ever gave a resident care where the resident
stated in advance that he or she would refuse the care. Petitioner argues
also that there are no real inconsistencies between the
residents' PIC forms and their physicians' orders.
According to Petitioner, a statement concerning life prolonging measures
refers to long-term measures such as tube feeding while a statement
concerning CPR refers to a short-term emergency. Petitioner was deficient under Tag 155. In all three of
the instances cited under Tag 155 there are ambiguities in the residents'
records which cast doubt on whether Petitioner could have acted consistent
with the residents' intent. It may be that Petitioner is correct in saying
that CPR and life-prolonging measures are different, with CPR being a
short-term measure and life-prolonging measures being used for long-term
care. But, it is not clear that Petitioner's residents understood the
distinction. Nor did the residents clearly make their wishes known to
Petitioner. Petitioner had a duty to make sure that the residents did
understand such distinctions and that the residents wishes were reflected
accurately in the residents' records. Implicit in a resident's right to refuse treatment is
a requirement that a facility clearly understand the resident's wishes.
It is not possible to carry out a resident's wishes with confidence if
they are not understood. The consequence of failing to use life-prolonging
measures on the mistaken assumption that a resident did not wish to be
treated with such measures could be disastrous for the resident. Equally
serious would be to employ heroic measures to sustain life where a resident
did not want such measures to be employed.
The report of the July 1999 survey alleges that Petitioner
failed to comply with the requirements of 42 C.F.R. � 483.10(d)(3). HCFA
Ex. 29 at 4 - 5. This appears to be a inaccurate citation to the regulation.
It appears from the context of the allegations made under the tag that
the deficiency allegations are based on 42 C.F.R. � 483.10(e)(1) - (3).
This regulation provides that a resident has a right to personal privacy
and confidentiality of his or her clinical records. The survey report alleges that Petitioner violated the
personal privacy of its residents in the following respects:
I find these allegations to be without merit. The first
allegation lacks merit because HCFA offered no evidence that the employees
who allegedly posted themselves outside of residents' rooms had an improper
purpose nor did it show that the staff even knew that interviews were
in progress. There is no evidence that the residents believed that their
privacy was being disturbed or that they wanted the employees to leave.
The second allegation lacks merit because there is no evidence that the
employee actually disturbed the resident's privacy. The survey report
merely shows that an employee momentarily interrupted an interview so
that the employee could perform his or her duties.
The report of the July 1999 survey alleges that Petitioner
failed to comply with the requirements of 42 C.F.R. � 483.10(g)(1). HCFA
Ex. 29 at 5 - 7. The regulation provides that a resident of a facility
has a right to examine the results of the most recent survey of that facility
and any plan of correction that is in effect. It provides further that
a facility must make survey results available to residents in a place
that is readily accessible and must post a notice of the availability
of survey results. The survey report alleges that Petitioner failed to comply
with the requirements of the regulation as of July 1999, in that it had
yet not posted the report of the May 1999 survey. The survey report asserts
that the report of the May 1999 survey was not on an enclosed bulletin
board in Petitioner's facility. Nor was it in a binder labeled "State
survey" in Petitioner's resident dining room. Petitioner does not deny that, as of July 1999, it had
failed to post the May 1999 survey report on its bulletin board and had
failed to place the report in the "State survey" binder. Petitioner asserts
that the regulation does not set a deadline by which a facility must post
a survey report. It argues that HCFA did not establish any bad faith on
Petitioner's part. It argues, moreover, that HCFA did not show that the
May 1999 report was not available elsewhere in Petitioner's facility. Petitioner was deficient under Tag 167. The regulation
does not establish a hard deadline for posting a survey report. But, a
facility plainly must do so within a reasonable amount of time. As of
July 1999, Petitioner had possession of the May 1999 survey report for
several weeks. It easily could have posted the report and failed to do
so.
The report of the July 1999 survey alleges that Petitioner
failed to comply substantially with the requirements of 42 C.F.R. � 483.10(n).
HCFA Ex. 29 at 7 - 9. I discuss the requirements of this regulation above
at Finding 3.a. The survey report alleges that a resident who is identified
as Resident # 8 had several medications at her bedside. These include:
Vanceril inhaler; two types of eye drops (Refresh and Levobunolol); and
antacid tablets. The survey report alleges that Petitioner's interdisciplinary
team failed to determine whether Resident # 8 could self-administer these
medications safely. The survey report notes that the resident had prescriptions
for both types of eye drops which permitted the resident to keep the medications
at her bedside. HCFA Ex. 29 at 8. It also notes that the resident had
a prescription for a Vanceril inhaler, but that the prescription did not
specifically permit the resident to keep the medication at her bedside.
And, the report notes that the facility's staff had conducted an evaluation
of the resident's capacity for self-administration of medications, but
that the evaluation had not been signed by the resident's physician. The evidence cited by HCFA establishes that Petitioner's staff failed to complete an interdisciplinary assessment of whether Resident # 8 could self-administer medications. However, the evidence does not establish a prima facie case that Petitioner's omission had a potential for more than minimal harm to the resident. There is no evidence to show that the resident could be harmed by improper self-administration of the medications in question. The surveyor who observed Resident # 8 testified that
there was a possibility that the resident might overuse or underuse medications.
Tr. at 702 - 708. This surveyor opined that Petitioner's failure to complete
an interdisciplinary assessment of the resident's ability to self-administer
medications had the potential for causing more than minimal harm to the
resident. Id. However, the surveyor did not offer any opinion as
to whether the particular medications at issue (Vanceril, Refresh, or
Levobulonol), could have harmful effects if overused or underused. Nor
did HCFA offer other evidence to show that overuse or underuse of these
medications might have harmful effects.
The report of the July 1999 survey alleges that Petitioner
did not comply substantially with the requirements of 42 C.F.R. � 483.12(a)(3).
HCFA Ex. 29 at 9 - 11. This regulation provides that, when a facility
transfers or discharges a resident under certain enumerated circumstances,
the transfer must be documented in the resident's clinical record. The
regulation provides further that the resident's physician must document
the transfer where the transfer or discharge is necessary for the resident's
welfare, and the resident's needs cannot be met in the facility, or the
resident's health has improved sufficiently so that the resident no longer
needs the facility's services. The survey report alleges that Petitioner failed to comply
with the requirements of the regulation in the case of a resident who
is identified as Resident # 16. This resident was transferred from Petitioner's
facility to another facility after "numerous interactions with the resident's
family regarding the facility's attempts to transfer this resident out
to another nursing facility." HCFA Ex. 29 at 10 - 11. The report alleges
that Petitioner's staff failed to show that the resident's physician was
involved in making the decision to transfer the resident or that the physician
agreed with that decision. The preponderance of the evidence establishes that Petitioner complied with the requirements of the regulation. There is documentation in the resident's record to show that the resident's physician was consulted about the transfer and agreed with the decision to transfer the resident. P. Ex. 43 at 5. The treating physician executed a discharge summary in which he checked a box indicating that transfer was necessary for the resident's welfare and because the resident's needs could not be met at Petitioner's facility. The physician added a handwritten statement averring that the resident needed a dementia unit. Id. HCFA argues that this statement is undated and is, therefore, unreliable evidence of the physician's involvement. I am not persuaded by this argument. The physician did not date his signature. P. Ex. 43 at 5. However, it is plain that the physician executed his statement after he had an opportunity to review and assess all of the pertinent facts relevant to the resident's transfer. The statement records the dates of the resident's stay in Petitioner's facility, which establishes that the physician made his statement at or after the time of discharge. More important, the statement establishes that the physician agreed with the resident's transfer and documented the reasons for the transfer. That is sufficient to comply with the requirements of 42 C.F.R. � 483.12(a)(3).
The report of the July 1999 survey alleges that Petitioner
failed to comply with the requirements of 42 C.F.R. � 483.12(a)(7). HCFA
Ex. 29 at 11 - 17. This regulation requires a facility to provide a resident
with sufficient preparation and orientation concerning a transfer or discharge
from the facility so as to ensure that the resident
experiences a safe and orderly transfer or discharge.
The survey report alleges that Petitioner failed to comply substantially
with the regulation in its transfer or discharge of two residents who
are identified as Resident # 16 and Resident # 15. HCFA did not establish a prima facie case that Petitioner
failed to comply with the requirements of the regulation either in its
transfer of Resident # 16 or in its discharge of Resident # 15. The survey
report does not even allege specifically that Petitioner failed to prepare
or orient Resident # 16 for a transfer. Resident # 16 was a demented individual
who was transferred to a facility which provides special services for
demented residents. It is unclear what, if any, "orientation" Petitioner
could have provided to the resident under the circumstances. Moreover,
the survey report fails to state specifically any failure by the facility
to provide pre-transfer preparation or to orient Resident # 16 or the
resident's family prior to the resident's transfer. The survey report
documents exchanges between the resident's daughter and Petitioner's staff
concerning the appropriateness of the transfer. Evidently, there was also
concern expressed by the daughter as to whether the resident would qualify
for Medi-Cal (California's Medicaid program) and whether the receiving
facility would accept Medi-Cal reimbursement for the resident's care.
But, there is no evidence that Petitioner's staff failed to discuss the
transfer with the daughter. Nor is there any evidence that the transfer
was not ultimately accepted. With respect to Resident # 15 the survey report asserts
that the facility discharged the resident without documenting that it
informed the resident's family concerning any follow-up with the resident's
physician or any special precautions that the resident needed to take
after discharge. However, the survey report fails to show that any follow-up
with the physician was needed or that there were any special precautions
that the resident needed to take. The resident visited a hospital shortly
prior to his discharge to investigate a tube-like object that appeared
on the resident's skin at the level of his rib cage. HCFA Ex. 29 at 15
- 16. In fact, what was apparent on examination of the resident, were
surgical bypass clips that did not require any follow-up. Tr. at 1057
- 1058.
The report of the July 1999 survey alleges that Petitioner
failed to comply substantially with the requirements of 42 C.F.R. � 483.15(a).
HCFA Ex. 29 at 17 - 19. I discuss the requirements of this regulation
above at Finding 3.c. The report cites four examples in which Petitioner allegedly
failed to promote care for residents in a manner and in an environment
that maintained or enhanced each resident's dignity and respect. These
examples are as follows.
The preponderance of the evidence establishes that Petitioner
complied with the requirements of 42 C.F.R. � 483.15(a). The first two
alleged examples of noncompliance rest on unverified hearsay and are not
credible. Moreover, as I discussed at Finding 3.c. of this decision, there
is no evidence that staff refused to speak with the residents in English
if the residents requested that they do so. And, there is no reason to
conclude that a resident's dignity was affronted because a staff member
misunderstood the resident's request. The resident whose cries for help were allegedly ignored
by Petitioner's staff was an individual who cried out constantly for help.
Tr. at 846 - 847. Petitioner's staff had care planned this behavior and
was checking the resident at reasonable intervals to assure that the resident's
needs were met. Id. There is no persuasive evidence that Petitioner's staff
affronted the dignity of the resident who was found to be wearing socks
that were labeled with the name of a female resident. It is not alleged
in the survey report that the name of the female resident was visible
while the resident was wearing shoes. Nor is it alleged that the resident
complained about being given the "wrong" pair of socks.
The report of the July 1999 survey alleges that Petitioner
failed to comply substantially with the requirements of 42 C.F.R. � 483.20(d)(3)(i).
HCFA Ex. 29 at 19 - 21. I discussed this regulation, which is now codified
at 42 C.F.R. � 483.20(k)(3)(i), above, at Finding 3.f. The survey report alleges that Petitioner failed to provide
services that met professional standards of quality to a resident who
is identified as Resident # 6. According to the survey report, Petitioner's
staff increased the resident's risk of infection by reconnecting a feeding
tube to the resident after the tube had come into contact with the floor
of the resident's room. According to the survey report, on July 14, 1999,
the feeding tube was observed as having become disconnected. Allegedly,
the tube was on the floor of the resident's room along with a large puddle
of feeding formula. HCFA Ex. 29 at 20. A licensed nurse was observed to
enter the resident's room. On discovering the tube on the floor, the nurse
allegedly picked it up, hung it on an IV pole, and directed a nursing
assistant to clean up the puddle of formula. Subsequently, the nurse did
not replace the feeding tube. Rather, the nurse reconnected the feeding
tube to the resident. Petitioner was deficient under Tag 281. Reinserting a feeding tube that had been in contact with a non-sterile floor deviated from accepted professional standards of care and posed at least the potential of harm to the resident. Tr. at 700 - 701. Petitioner argues that, in fact, the tube had not come into contact with the floor, asserting that the treating nurse had denied to Petitioner's administrator that the tube had come into contact with the floor. This is hearsay and is self-serving. The direct observation of the surveyor is the more credible evidence of what actually occurred. Additionally, Petitioner argues that the resident's stomach acids would have killed any bacteria that might have adhered to the tube. See Tr. at 1134. However, the issue here is whether there was a potential for harm resulting from the tube coming into contact with the floor. I am not persuaded that there was no potential for harm to Resident # 6 given the resident's highly compromised state and the possibility that the floor might have some contaminants on its surface which included but which were not limited to acid-sensitive bacteria..
The report of the July 1999 survey alleges that Petitioner
failed to comply substantially with the requirements of 42 C.F.R. � 483.25(a)(3).
HCFA Ex. 29 at 21 - 24. This regulation requires that a facility provide
necessary services to maintain good nutrition, grooming, and personal
and oral hygiene to a resident who is unable to carry out activities of
daily living. The survey report alleges that Petitioner failed in two
respects to comply with the requirements of the regulation. Both incidents
that are cited in the survey report involve an alleged failure by Petitioner
to maintain good oral hygiene for a resident who was unable to provide
self-care. The alleged failures are as follows:
Petitioner was deficient under Tag 312. I do not find
that Petitioner failed to provide proper oral care for Resident # 6. However,
Petitioner was remiss in the care it gave to Resident # 17. The evidence HCFA offered as to Resident # 6 is unpersuasive.
As is noted in the survey report, the resident suffered from a medical
condition that was likely to produce a dry and crusted mouth. Such was
likely to occur despite the care that Petitioner gave to the resident,
which included regular cleaning of the resident's mouth. Tr. at 984; 1135
- 1136. However, the evidence that HCFA offered as to Resident
# 17 persuades me that Petitioner was remiss in providing oral hygiene
to the resident. Petitioner argues that the resident might have removed
the dentures on her own. But, even assuming that to be true, Petitioner's
staff should have found the dentures and cleaned them for the resident.
The report of the July 1999 survey alleges that Petitioner
failed to comply substantially with the requirements of 42 C.F.R. � 483.25(d)(2).
HCFA Ex. 29 at 24 - 30. I discussed the regulation above, at Finding 3.h. The report cites two examples of alleged failures by Petitioner
to comply with the regulation. Although the examples involve different
residents, they have common features. The two residents who are cited
in the survey report are Resident # 5 and Resident # 10. Petitioner's
staff had assessed each of these residents initially as candidates for
bladder retraining. Allegedly, neither resident actually received bladder
retraining from Petitioner's staff. Petitioner does not deny that it failed to provide bladder
retraining to the residents. It asserts, however, that the initial assessments
of the residents were proven incorrect by subsequent developments. Petitioner
argues that, in each case, bladder retraining would have been futile.
It asserts that Resident # 5 refused bladder retraining when it was offered
to the resident. HCFA Ex. 29 at 25. It asserts that Resident # 10 suffered
from dementia that prevented successful bladder retraining. Tr. at 854
- 855, 986 - 988. I do not find Petitioner to have been deficient under
Tag 316. The preponderance of the evidence is that, in both instances
cited in the survey report, it would have been futile to attempt bladder
retraining of the residents. In the case of Resident # 5, the weight of
the evidence establishes that the resident refused bladder retraining
when it was offered to him. Thus, there was no potential for harm to the
resident in Petitioner's failure to implement bladder retraining. In the
case of Resident # 10, the weight of the evidence is that the resident
was too demented to have benefitted from bladder retraining.
The report of the July 1999 survey alleges that Petitioner
failed to comply substantially with the requirements of 42 C.F.R. � 483.70(f).
HCFA Ex. 29 at 31 - 32. This regulation requires that a facility's nurses's
station be equipped to receive resident calls through a communication
system that operates from residents' rooms, bathrooms, and bathing facilities. The survey report alleges that Petitioner failed to comply
with the requirements of the regulation in providing care to a Resident
who is identified in the survey report as Resident # 2. This resident
allegedly complained to a surveyor that her call light did not work. The
resident demonstrated by pressing the call light button. The light over
the resident's door was not observed to come on nor was a sound triggered
at the nurses' station to indicate that a call light had been activated.
However, when staff was notified of the allegedly inoperable call light
they immediately went to the resident's room and tested the call light
button. It worked then, and again, when retested. Petitioner's maintenance
personnel agreed to modify the call light button to make it more accessible
to the resident. I would find Petitioner to be deficient under Tag 463
were I to conclude that Resident # 2 had put Petitioner on notice that
she was unable to operate the call light and Petitioner had failed to
do anything about the complaint. However, the evidence in this case shows
that the resident was so argumentative and demanding that Petitioner's
staff likely did not understand her assertion that she was unable to operate
the call light to be a genuine complaint. Moreover, I infer from the evidence
that the resident may have contrived to demonstrate that she could not
use the call light when in fact she could. For these reasons I conclude
that Petitioner was not deficient under Tag 463. Resident # 2 had problems interacting with Petitioner's
staff and with other residents. HCFA Ex. 40 at 110 - 114. The resident
at times was hostile and argumentative. Id. For example, on June
14, 1999, the resident asked a nurse to give her coffee, questioned the
medications she was receiving, became argumentative when asked to reduce
the volume of her television, and demanded to be showered ahead of schedule.
Id. at 114. She preferred to yell out for help rather than to use
the call light. On many occasions staff cautioned the resident to use
the call light when she needed assistance. Id. The resident's record shows that on one occasion the resident
asserted that the call light did not work. HCFA Ex. 40 at 114. I conclude
that Petitioner's staff justifiedly did not treat this complaint seriously.
They had counseled the resident on many occasions to use the call light
instead of yelling and on those occasions the resident did not attempt
to excuse her conduct by asserting that she could not operate the call
light. Furthermore, the resident had used the call light successfully
on other occasions. Indeed, on the day prior to the date when the resident
asserted that she could not use the call light, the nurses notes show
that the call light button had been positioned within the resident's reach
and that the resident's calls were being answered promptly. Id.
at 113.
The evidence in this case establishes that Petitioner was not complying substantially with participation requirements as of both the May 1999 and the July 1999 survey of Petitioner. A basis therefore exists to impose civil money penalties against Petitioner for each day of its noncompliance with participation requirements. 42 C.F.R. � 488.406(a)(3). None of the deficiencies that I find to have existed as of May or July 1999 were at the immediate jeopardy level of noncompliance. Therefore, the range of civil money penalties that may be imposed against Petitioner for each day of its noncompliance is from a minimum of $50 per day to a maximum of $3,000 per day. 42 C.F.R. � 488.438(a)(1)(ii).
The evidence in this case establishes that Petitioner
did not comply substantially with participation requirements beginning
with May 20, 1999, the date of completion of the May 1999 survey, and
running through November 17, 1999, the day before the date of the November
1999 survey. Petitioner did not offer persuasive evidence to show that
it corrected any of the deficiencies that were present on May 20, 1999,
which was prior to the date of the July 1999 survey. Nor did Petitioner
offer persuasive evidence to show that it corrected any of the deficiencies
that were present at the July 1999 survey prior to November 17, 1999.
Petitioner was complying with all participation requirements on November
18, 1999. HCFA determined to impose civil money penalties against
Petitioner consisting of: $5,000 per day beginning with May 20, 1999 and
continuing through June 6, 1999; $1,000 per day beginning June 7, 1999
and continuing through July 15, 1999, and; $100 per day for each day beginning
with July 16, 1999. HCFA bases its determinations to impose these penalty
amounts on the following considerations:
I find HCFA's determinations to impose $5,000 and $1,000
per day penalties based on the findings that were made at the May 1999
survey to be unreasonable for three reasons. First, there were no immediate
jeopardy level deficiencies present as of May 1999. Finding 2. Indeed,
the two immediate jeopardy level tags cited in the report of the May 1999
survey (Tags 224 and 353) did not, in fact, demonstrate the presence of
any noncompliance by Petitioner with participation requirements. Second, there were no deficiencies present as of May 1999
which resulted in actual harm being sustained by Petitioner's residents.
I find that Petitioner actually complied substantially with the participation
requirements that were cited in the report of the May 1999 survey as the
basis for deficiencies that caused actual harm to residents. Findings
3.c., 3.d. Third, the four deficiencies that I find that did exist
as of May 1999 were all at scope and severity level "D." That is the lowest
level of noncompliance for which a civil money penalty may be imposed.
It represents only the potential for more than minimal harm to residents
and no actual harm to residents. I have considered what would be reasonable as civil money
penalties for the noncompliance that Petitioner manifested as of May and
July 1999 and I conclude that $100 per day is a reasonable penalty for
each day of Petitioner's noncompliance. I make my decision based on the
factors cited at 42 C.F.R. �� 488.438(f) and 488.404 (incorporated by
reference into 42 C.F.R. � 488.438(f)(3)). I have considered the following:
When these factors are considered together, they establish
that Petitioner manifested only low-level deficiencies that caused no
harm to its residents. In consideration of that, I conclude that $100
per day is reasonable. Finally, I note that the deficiencies that Petitioner
manifested throughout the May 20 - November 17, 1999 time period are at
the same level as HCFA determined the deficiencies to be as of
the July survey. HCFA concluded that as of July, the deficiencies that
Petitioner manifested justified penalties of only $100 per day. My decision
is in accord with that determination, inasmuch as the deficiencies that
I find to be present in May 1999 are at the same level as what HCFA found
to be present in July 1999. |
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JUDGE | |
Steven T. Kessel Administrative Law Judge
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