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Department of Health and Human Services DEPARTMENTAL APPEALS BOARD Civil Remedies Division |
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Georgian Court Nursing Center, |
DATE: July 8, 2002 |
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Centers for Medicare & Medicaid
Services
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Docket No.C-02-148
Decision No. CR928 |
| DECISION | |
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DECISION This case is before me pursuant
to a request for hearing filed by Petitioner, Georgian Court Nursing Center
(Petitioner, or facility), on December 13, 2001, in accordance with section
1128A(c)(2) of the Social Security Act (Act) and 42 C.F.R. �� 488.408(g)
and 498.40. I. Background Petitioner is a skilled nursing facility located in Tulsa, Oklahoma. Prior to December 14, 2001, it participated in the Medicare and Medicaid programs. On June 14, 2001, the Oklahoma State survey agency (State survey agency), conducted a survey at the facility to determine whether it was in compliance with federal requirements for nursing home participants. The survey found that Petitioner was not in substantial compliance, and resulted in various deficiencies being cited. The State survey agency conducted revisits on August 15, 2001, and September 27, 2001. These revisits found that Petitioner was again not in substantial compliance. On November 30, 2001, the State survey agency conducted another revisit. At this time, Petitioner was found again not to be in substantial compliance. The survey cited a deficiency that constituted actual harm that was not immediate jeopardy. By notice dated December 12, 2001, CMS informed Petitioner that termination of its provider agreement would be effective December 14, 2001, and denial of payment for new admissions (DPNA) would commence on September 21, 2001. On December 13, 2001, Petitioner
requested an expedited hearing in view of the termination action, and
the case was assigned to me for a hearing and a decision.
(1) I granted Petitioner's request for an expedited hearing.
I held a hearing in Tulsa, Oklahoma, from January 31 through February
1, 2002. CMS offered 29 exhibits identified as CMS Exhibits (CMS Ex.)
1-29. Petitioner offered 31 exhibits identified as Petitioner Exhibits
(P. Ex.) 1-4, P. Exs. 6-28, and P. Exs. 34-37. I admitted the exhibits
submitted by the parties into the record without any objection. Transcript
(Tr.) I at 7, 8. Based on the testimony offered at the hearing, the documentary
evidence, the arguments of the parties, and the applicable law and regulations,
I find that from June 14, 2001 through December 14, 2001, Petitioner was
not in substantial compliance with Medicare participation requirements.
Consequently, I find that CMS is authorized to terminate the facility's
provider agreement effective December 14, 2001. II. Applicable Law and Regulations Petitioner is considered a long-term care facility under the Act and regulations promulgated by the Secretary of the United States Department of Health and Human Services (Secretary). The statutory requirements for participation in Medicare and Medicaid by a long-term care facility are found at sections 1819 and 1919 of the Act, and at Title 42 C.F.R. Part 483. Sections 1819 and 1919 of
the Act invest the Secretary with authority to impose remedies against
a long-term care facility for failure to comply substantially with participation
requirements. Pursuant to the Act, the
Secretary has delegated to CMS and the States the authority to impose
remedies against a long-term care facility that is not complying substantially
with federal participation requirements. 42 C.F.R. Part 483 provides that
facilities which participate in Medicare may be surveyed on behalf of
CMS by State survey agencies in Section 1866(b)(2) of the
Act authorizes the Secretary to terminate an agreement with a provider
of services after the Secretary:
42 C.F.R. �� 488.414 and
488.417(b) and �� 1819(h)(2)(D) and (E), and 1919(h)(2)(C) and (D) of
the Act authorize CMS to deny payment for all new admissions in any case
where the facility is not in substantial compliance by the third month
after the last day of the survey identifying the deficiency, or when a
provider has been found to have furnished substandard care on the last
three consecutive standard surveys. The regulations define the
term "substantial compliance" to mean:
42 C.F.R. � 488.301. CMS must make a prima facie
case that the facility has failed to comply substantially with participation
requirements. To prevail, a long-term care facility must overcome CMS's
showing by a preponderance of the evidence. Hillman Rehabilitation
Ctr., DAB No. 1611 (1997), aff'd, Hillman Rehabilitation
Ctr. v. United States, Dep't of Health and Human Servs., Health Care Financing
Admin., No. 98-3789 (GEV), slip op. at 25 (D.N.J. May 13, 1999). The hearing before an ALJ
is a de novo proceeding. Anesthesiologists Affiliated, DAB CR65
(1990), aff'd, 941 F2d 678 (8th Cir. 1991).
III. Issues 1. Whether the facility
was complying substantially with federal participation requirements on
the dates CMS determined to impose remedies. 2. Whether there is a basis
for the imposition of remedies against Petitioner. IV.
Findings and Discussion The findings of fact and conclusions of law noted below in italics are followed by a discussion of each finding.
The applicable regulation at 42 C.F.R. � 483.20(k), entitled "Comprehensive care plans," provides:
42 C.F.R. � 483.20(k)(3)(i)
requires that the services provided or arranged by the facility must meet
professional standards of quality. State surveyor
findings for Tag F281, as alleged in the Statement of Deficiencies (CMS
Ex. 2 at 6-8). (2) Based on interviews and record reviews during the survey,
the surveyors alleged that "the facility failed to follow the physician['s]
order for a two person transfer, which resulted in an injury to . . .
Resident #2." CMS Ex. 2, at 6. The surveyors noted that R2 "had a physician
order dated 11/07/01 which stated, "Two person assist for all transfers.""
Id. The Statement of Deficiencies further alleged that:
CMS Ex. 2, at 6-7. It was also noted that when R2 was taken to a physician
on November 26, 2001, she reported that "the CMA put his arm under her
arm and lifted her, and he had not lifted her much in the past." CMS Ex.
2, at 7. The surveyors found that an x-ray revealed a "sub capital, displaced
fracture of left humeral head" and that the resident's arm was immobilized.
Id. at 8. Discussion
Ms. Valerie Anthony-Pressley,
a State surveyor, testified that a physician's order for R2 indicated
that she was to be transferred at all times with a two-person assist;
however, the facility did not comply with that directive.
(3) Tr. I at 42, 46. Specifically, on November 30, 2001,
the surveyor entered the resident's room and noticed a very dark bruising
on her left shoulder and arm. Tr. I at 43, 46. The surveyor testified
that she commented on R2's bruising, and, in response, R2 stated, "It
happened here . . . He was trying to get me out of the chair and . . .
he dropped me back in the chair . . . He did not let my arm go . . . it
should not have happened. It was neglect." Tr. I at 47. According to the
surveyor, the incident referred to by R2, which occurred on November 25,
2001, was not documented in the clinical record. Id. The staff member who attempted the unassisted transfer
was Prady Thimmaiah, a certified medicine aide (CMA) and a certified nursing
assistant (CNA). Tr. II at 121, 122. He testified that he attempted an
unassisted transfer but gave up when he realized that R2 was "dead weight."
At that moment, it also hit him, he said, that she was a two-person assist.
Tr. II at 129. Thus, it was Mr. Thimmaiah's testimony that he only attempted
to lift the resident, but never actually lifted her off the chair even
slightly. Id. He then asked a housekeeping employee to watch
the resident while he went for assistance. Tr. II at 132. Mr. Thimmaiah
stated that he attempted the transfer pulling on a gait belt that he had
placed around the resident's waist, while she rested her left hemiplegic
arm on his right arm, and put her right arm around his neck. Tr. II at
128-130, 132-133. Mr. Thimmaiah's testimony is in contrast to the account
of the incident he gave to the Director of Nursing (DON), Jeanne McCandless.
In a document entitled "Employee Warning Notice" and dated November 30,
2001, Ms. McCandless reported that the "CMA attempted to transfer [R2]
to bed holding on to [R2's] waistband." P. Ex. 20 (emphasis
added). (4) The document is signed by Ms.
McCandless and Mr. Thimmaiah. (5) At that
time, Mr. Thimmaiah made no mention of using a gait belt. See
Id. Additionally, Ms. McCandless testified that during a demonstration
of how he attempted to lift the resident, Mr. Thimmaiah stated that he
grabbed hold of the back of her pants and raised her up off the wheelchair
about four to six inches, then put her back down. Tr. II at 234. At the
hearing, however, Mr. Thimmaiah stated that he did not raise the resident
off the chair at all. Tr. II at 129. Furthermore, at no time did Mr. Thimmaiah indicate to
Ms. McCandless that he stopped the unassisted transfer in midstream because
he had a sudden realization that R2 was a two-person assist. In fact,
it was the DON's understanding that the CMA abandoned the idea of carrying
out the transfer because of his unwillingness and his inability to do
so. Ms. McCandless testified that transferring residents is part of a
CMA's duties at the facility (Tr. II at 229), but that Mr. Thimmaiah would
not perform duties outside the scope of his medicine cart. Tr. II at 240-241.
She stated that he did not consider transferring residents to be part
of his duties since he was a CMA, not a CNA, and added later, "I doubt
very much if it [ie. the transfer
attempt] would have been willingly." Tr. II at 240, 251.
(6) Ms. McCandless explained further: "I have suspicion as to
whether he is really capable of transferring anybody and the reason he
stopped in midstream, that, hey, I don't know how to do this or I don't
think I can do it well." Tr. II at 254. Consequently, it is clear that Mr. Thimmaiah had every
intention of transferring R2 without the two-person assist that the physician
had ordered. The fact that he abandoned his intention in midstream to
seek help because of his ineptitude, does nothing to absolve the facility
of the misdeed. (7) Pertinent to this is
the fact that the CMA placed himself and the resident in the very situation
that the order for the two-person assist was intended to avoid. Petitioner contends that CMS seeks to establish a violation
of an unnamed professional standard of quality because its CMA "failed
to follow the physician order for a two person transfer [sic]." P. Br.
at 8, quoting P. Ex. 2, at 6. Petitioner overlooks the fact that the inadequacy
of the care provided to R2 is precisely its undeniable failure to carry
out the physician's order. That is the standard that was violated, and,
as such, runs counter to the requirements of 42 C.F.R. � 483.20(k)(3)(i).
See Fairfax Nursing Home, Inc., DAB No. 1794, at 21
(2001). I find Petitioner's defense regarding this charge to be deficient,
because it has offered no evidence to establish that in the instance under
scrutiny here, it complied substantially with the requirement to transfer
R2 with a two-person assist. The argument that a two-person assist does
not require that two people have "hands on" the resident during the actual
transfer is unavailing. CMS has not argued that a two-person assist demands
that two people have "hands on" the resident during a transfer. The requirement
does mandate, however, that two people be present so that one may assist
the other as necessary. Petitioner has fallen short of identifying who
was that other person assisting Mr. Thimmaiah when he began to execute
the transfer of R2. Petitioner also appears to argue that it was justified
in ignoring the treating physician's order for a "two-person assist" because
of the resident's frequent demands to be put to bed immediately after
meals, regardless of whether two facility staff members were available
to execute the transfer. Petitioner points out that it had noted that
R2 "cannot comprehend that it is unsafe for 1 person to put her to bed."
P. Br. at 9, 10. Again, Petitioner loses sight of the fact that the reason
a person's care is entrusted to a nursing home is because of the inability,
generally, of others to provide the needed attention in a home setting.
As experts in geriatric care, nursing homes are expected to know how to
manage difficult situations regarding the conduct of residents who have
experienced physical and cognitive regression. It is a very poor excuse
for a long-term care facility to say that it placed a resident at risk
of suffering harm because the resident would not allow the facility to
do what is right and proper. In view of the foregoing, it is my finding that Petitioner was not in substantial compliance with the requirements of 42 C.F.R. � 483.20(k)(3)(i) due to its failure to follow the physician's order for a two-person assist.
For the reasons that follow, I also find that Petitioner's
failure to comply with the physician's order resulted in actual harm to
R2. On November 30, 2001, the surveyor noted bruising on R2's
left shoulder. Upon inquiry, the resident stated: "[h]e let me fall, he
was trying to transfer me from the w/c [wheelchair] to the bed and would
not let go my arm; I was falling and he had held my arm and put me back
in the wheelchair. It should not have happened. He broke my arm, it was
just neglect." (8) CMS Ex. 10. R2's account of the November 25, 2001 incident was consistent
at all times. In an undated internal QA investigation report conducted
by the facility, she reported that a staff member was going to put her
to bed, and had to put her back in her wheelchair. At that time, R2 complained
of arm and shoulder pain. CMS Ex. 14, at 1. That statement was consistent
with her report to the charge nurse, Licensed Practical Nurse (LPN) L.
Clay, on November 25, 2001, at 4:00 p.m., when she complained of left
shoulder pain. CMS Ex. 14, at 4. On November 26, 2001, at 8 a.m., LPN
Clay reported that R2 had complaints of her shoulder still hurting, and
that Dr. Chorley, R2's treating physician, was notified. Id.
In a statement dated December 3, 2001, Ms. Wanda J. Morgan,
the social services coordinator, indicated that she accompanied R2 to
the orthopedic surgeon, and an x-ray revealed a fracture of the left arm,
just below the ball joint. CMS Ex. 14, at 8. The doctor asked if the resident
had been picked up and slammed down by two people.
(9) To this, R2 answered that it was due to a medication aide
not having lifted her much. (10) Id. The resident's account of the incident in question is
consistent throughout. On the other hand, as has been stated above, Mr.
Thimmaiah gave conflicting accounts on different occasions. Dr. Chorley's opinion that the resident's fracture could
be reasonably attributed to a normal activity of daily living, such as
rolling over in bed, is conclusory, at best. P. Ex. 16, at 1. Dr. Chorley's
suggestion overlooks an explanation that is more clearly evident from
the record as a whole. For example, I note: l. On November 25th, 2001, between 1 and 2
p.m., CMA Prady Thimmaiah made an unassisted attempt at transferring R2
from her wheelchair to bed. 2. Although Mr. Thimmaiah is a certified CNA and CMA,
he was adamant to the DON that his position was that of a CMA and not
a CNA. Thus, he could not be counted on to provide assistance with transferring
residents. As a result, his transferring skills were doubtful. Tr. II
at 240, 241. 3. The DON had a suspicion that the CMA stopped the unassisted
transfer midstream because he was not really capable of transferring anybody.
Tr. II at 254. 4. Mr Thimmaiah testified that he extended R2's left hemiplegic
arm and placed it on his right arm during the attempted transfer. Tr.
II at 129. Positioning the resident's arm as described by the CMA, would
require exertion of force. This is evident from Dr. Chorley's testimony
that R2 had no voluntary ability to extend her left arm, which she kept
clenched up against her rib cage. Tr. I at 208. Interestingly, Dr. Chorley
also stated that it was not necessary to place the resident's left arm
on his right arm, as described by Mr. Thimmaiah, in order to execute a
transfer. Tr. I at 208. Although Mr. Thimmaiah's action of placing R2's
left arm over his right arm may not necessarily have been the moment in
which R2 fractured her arm, it is telling of the CMA's transferring skills. 5. At 4 p.m., on November 25, 2001, shortly after the
incident involving the unassisted attempt to transfer R2, she complained
of arm pain to the CNA, Amber Fraser. At 4:50 p.m. that same day, R2 cautioned
the CNA to be careful with her arm when the CNA was helping her get up
for her medication and dinner. P. Ex. 18, at 2. The resident was described
by the DON as a fairly lucid person. Tr. II at 244. 6. The morning following the stated incident, on November
26, 2001, at approximately 7:00 a.m., R2 continued to complain of shoulder
pain. The charge nurse, LPN L. Clay, found that R2's left shoulder was
bruised and swollen. Tr. II at 198. Later, that same day, she was referred
for an orthopedic evaluation and an x-ray revealed a sub-capital displaced
fracture of the left femoral head. P. Ex. 12, at 3. This was a new fracture.
P. Ex. 19, at 1. 7. Petitioner concedes that R2 suffered a fractured arm,
"presumably sometime during the afternoon or evening" of November 25,
2001. P. Br. at 24. I find that an inept and improper transfer attempt of R2 on November 25, 2001, was followed by a complaint of arm and shoulder pain. The resident's complaint of pain was still present the following day, when an x-ray showed a displaced fracture. A surveyor observed bruising on the left shoulder, in an area adjacent to the fracture. This cumulative evidence is contemporaneous with the transfer attempt and is more telling of a fracture arising out of the CMA's improper transfer attempt than from R2's rolling in bed. Of the former, there is ample evidence, but of the latter, the record is totally silent. Consequently, it is my finding that Petitioner's failure to substantially comply with the standards of professional quality caused actual harm to R2.
42 C.F.R. � 483.10(b)(11)
provides, in relevant part, that a facility must immediately consult with
the resident's physician when there is:
State surveyor
findings for Tag F157, as alleged in the Statement of Deficiencies (CMS
Ex. 2 at 2). Based on clinical record
review and facility staff interviews on November 30, 2001, it was determined
that the facility failed to notify the physician and family representative
immediately after a change in the resident's condition. Id. Discussion An undated QA investigation
report prepared by the facility revealed that R2 complained of arm and
shoulder pain after a staff member attempted to transfer her and had to
put her back in her wheelchair. CMS Ex. 14 at 1. The transfer was completed
by Amber Fraser, a CNA. Id. at 5, 6. The incident occurred on
November 25, 2001, between 1 and 2 p.m., but the treating physician and
R2's family member were not notified until the following day. Id.
at 1. (11) At 4:00 p.m. on the day of the incident, when Ms. Fraser went to prepare R2 for dinner, the resident complained of pain in her arm. Ms. Fraser reported the complaint to the charge nurse. When Ms. Fraser returned at 4:50 p.m. to get the resident up for her medication and dinner, she cautioned the CNA to be careful with her arm. CMA Ex. 14 at 6. The charge nurse, LPN L. Clay, testified that she offered
to call the resident's doctor and get an order for x-rays. R2, however,
declined the offer and preferred to be taken to the dining room for her
evening meal. Tr. II at 200, 211, 212. The LPN also spoke with the CMA,
Mr. Thimmaiah, who attempted the unassisted transfer. According to Ms.
Clay's notes, the CMA stated: "That he started to transfer and couldn't
because [of] [sic] the hold he had on her. So
he sit [sic] her down in w/c [wheelchair]. Another CNA assisted in putting
her to bed after lunch." CMS Ex. 14, at 4. (Emphasis added). This is consistent
with the account given to the surveyor by R2 where she reported that the
CMA would not let go of her arm and that she was falling and he had a
hold on her arm. CMS Ex. 10. When Ms. Clay spoke with the resident on the afternoon
of November 25, 2001, she was aware that R2 drew an association between
the injury to her arm and the improper transfer attempt. Tr. II at 223.
Although the charge nurse testified that she did not call the treating
physician to obtain an order for x-rays because the resident presented
no clinical signs that justified calling her doctor (Tr. II at 223), she
did communicate to Ms. Wanda Morgan, the social services coordinator,
that she was going to have x-rays done. The charge nurse informed Ms.
Morgan of the action she had decided to take after speaking with Mr. Thimmaiah
and the resident. The charge nurse further indicated that R2 had been
complaining of pain. CMS Ex. 14, at 8. Thus, it appears from Ms. Morgan's
statement that the resident's complaint of pain was an ongoing matter.
See Id. It is unclear why the charge nurse did not follow
through with what would have been the proper course of action, given the
incident that gave rise to the resident's complaint of pain as well as
her diagnosis of osteoporosis. See P. Ex. 19, at 3. Petitioner opposes an array of arguments to contend that
it did not incur a failure to immediately notify the resident's physician
of a significant change in her condition. Some of its arguments, such
as the manner in which the surveyors structured the Statement of Deficiencies,
are inconsequential. I will, therefore, address only the more substantive
arguments. Petitioner's main argument regarding this deficiency is
based on the judgment call of charge nurse LPN L. Clay. She testified
that she examined the resident's arm and noted no bruising or swelling,
or other evidence of injury. Tr. II at 195. That examination, according
to Ms. Clay, did not elicit grimacing or crying out in pain. Tr. II at
197, 198. Thus, she saw no need to notify the treating physician. In this
context, Petitioner leans on Dr. Chorley's testimony that he did not want
to be called every time a resident complained of pain. Complaints of pain
were of particular concern in this case because of the facility staff's
belief that the resident tended to crave attention. P. Br. at 25. Petitioner
also suggests that the resident may not have been a reliable reporter
due to her mental state. Id. at 24. In the same breath, however,
Petitioner appears to have placed reliance on her desire not to have her
doctor called. Id. at 25. Simply put, the deficiency under Tag F157 charges that
Petitioner failed to notify the physician and family representative immediately
after a change in R2's condition. CMS Ex. 2, at 2. There is no question
that in this case, the notification given on November 26, 2001, was not
immediate. It is also not an issue whether the facility knew or had reason
to know that the resident had in fact fractured an arm on November 25,
2001. The issue is whether a change occurred in the resident's condition
that was significant enough to require immediate notification to the physician
and family representative. The change may be due to an accident resulting
in injury that has the potential for requiring physician intervention,
or deterioration in the resident's health. In the case at hand, the facility learned that, on the
early afternoon of November 25, 2001, a CMA had to abort the transfer
of R2 because of his inability to complete such a transfer without assistance.
The facility also knew that the unassisted transfer was in violation of
the physician's order that all transfers for that resident be executed
with a two-person assist. Shortly after the improper transfer attempt,
the resident complained of pain in her shoulder and arm, and associated
her pain with the inept manner in which the CMA attempted to transfer
her from the wheelchair to her bed. Ongoing complaints of pain prompted
the charge nurse to consider calling the treating physician for an order
for x-rays. The resident was very frail and had a diagnosis of osteoporosis.
As a result, her bones were very thin and brittle. P. Ex. 19, at 3. On
the afternoon of November 25, 2001, the charge nurse talked with the CMA
that attempted the unassisted transfer and he stated that "he started
to transfer [the resident] and couldn't because [of] [sic] the hold he
had on her." CMS Ex. 14, at 4. It is true that in the past, R2 had complained of body
pain, but the pain she complained of on November 25, 2001, was most likely
due to a specific incident involving an improper transfer that was corroborated
by the facility. Petitioner knew that the complaint was not a delusional
outburst on the part of the resident. In view of this set of circumstances,
the charge nurse concluded that the course of action to take was to call
the physician and get an order for x-rays. Petitioner has not come forth
with a persuasive reason to justify why the charge nurse did not follow
through with her better instincts. The nurse's testimony to the effect
that she yielded to the resident's desire that the physician not be called,
is unacceptable. The facility cannot accede to the wishes of a resident
concerning what constitutes proper care, without a foundation for such
course of action. I find that Petitioner laid no foundation for its action in this case. Additionally, I find unavailing the argument that the physician did not want to be bothered with calls every time a resident complained of pain. The facility had an unequivocal duty to inform the physician as well as the family representative that as a result of an aborted transfer, the resident, who had frail and brittle bones, was complaining of pain in the arm and shoulder. Once the facility discharged that duty, it was up to the physician to decide what diagnostic approach he wished to pursue. It was inappropriate for the facility not to call the persons specified in the regulation and put them on notice that an accident occurred involving R2, resulting in injury and having the potential for requiring physician intervention. It was reasonable to conclude that the pain that ensued after the aborted transfer was the result of an injury suffered by the resident. Consequently, a change in the resident's physical status occurred. I therefore conclude that Petitioner failed to comply with the requirements of 42 C.F.R. � 483.10(b)(11).
As stated earlier, 42 C.F.R. � 483.20(k) provides that
the facility must develop a comprehensive care plan for each resident
that includes measurable objectives and timetables to meet a resident's
medical, nursing, and mental and psychosocial needs that are identified
in the comprehensive assessment. State surveyor findings for Tag F279, as alleged
in the Statement of Deficiencies (CMS Ex. 2 at 5). Based on clinical record review, observations and interview
of the resident and the facility staff on November 30, 2001, it was determined
that the facility failed to update the comprehensive plan of care for
R4. The plan of care and clinical record for R4 with diagnoses
which included diabetes, did not indicate the need for monitoring of the
status of the resident's circulation nor the use of TED hose.
(12) Discussion CMS contends that Petitioner
failed to satisfy the requirements of 42 C.F.R. � 483.20(k) for R4 at
the survey ending November 30, 2001. Specifically, it was determined that
the plan of care and clinical record for R4, which included a diagnosis
of diabetes, did not indicate
the need for monitoring of the status of the resident's circulation nor
the use of TED hose. CMS Ex. 2, at 5. In its posthearing brief,
CMS argues that Petitioner's care plan contains no specific instructions
with regard to the resident's lower extremities. CMS Br. at 22. Thus,
in this case, CMS contends that where the resident has diabetes and has
been prescribed the use of TED hose at all times, the care plan should
have addressed this intervention. Furthermore, says CMS, the facility
failed to develop a comprehensive care plan for the use of TED hose. Id.
CMS asserts that a comprehensive care plan for this intervention was necessary
in view of the resident's complicated medical condition and the unusual
TED hose order. Id. In this regard, Dr. Chorley,
R4's treating physician, testified that the resident was diagnosed with
an anemia that he had attributed to gastrointestinal bleeding. However,
the various diagnostic modalities attempted did not reveal the precise
site of the bleeding. Tr. I at 163-164. Consequently, after consulting
with a gastroenterologist, he prescribed a high dose of Premarin.
(13) Dr. Chorley testified that the Premarin was supposed
to make the resident hypercoagulable, which would in turn, help stop the
internal bleeding by making the resident more susceptible to developing
blood clots at the site of the oozing blood. He stated that the end result
would be the formation of a scab that would eventually heal, and the tissue
would be replaced with scar tissue. Tr. I at 164, 165. In view of the resident's bed bound condition, Dr. Chorley
prescribed the use of TED hose during the time that the Premarin was being
administered. He specified that the TED hose was to be used at all times.
Tr. I at 166-167. However, he did not intend that they not be removed
for bathing. Tr. I at 169. Dr. Chorley stated that he did not go into
lengthy details when he issued the order because common sense would dictate
that the hose would be removed for cleansing and care of the lower extremities.
Tr. I at 170. Moreover, Dr. Chorley's visits to the facility confirmed
that the staff had no confusion regarding his order, and the care given
to R4 was consistent with the intent of his instructions. Tr. I at 170-171.
Ms. Barbara Stark, a State surveyor, confirmed this in her testimony when
she stated that during her visit to the facility, no staff member expressed
confusion or belief that the orders given by Dr. Chorley were in any way
unclear. Tr. II at 68, 69. CMS insists, however, that there was no comprehensive
care plan for the use of TED hose. CMS Br. at 22. From this it draws the
conclusion that the facility was not aware of the reason for which R4
had been prescribed TED hose to be worn at all times, nor how to monitor
its use. Id. at 24, 25. An analysis of this contention begins with an examination
of the care plan for R4. At page 4 of P. Ex. 22, the care plan for R4,
dated November 9, 2001, included the use of TED hose "as per Dr. order."
See also Tr. II at 12. Additional clarification appears
on the PRN treatment sheet where it is stated that the TED hose are to
be thigh high, and worn at all times. P. Ex. 23, at 1. Dr. Chorley also
testified that he specified that TED hose should be used at all times,
because an order for just TED hose, without more, would be interpreted
by the facility staff to mean that the hose should be applied in the morning
and taken off at night. Tr. I at 167. Ms. Stark, a surveyor, confirmed
this during her testimony. She stated the following:
Tr. II at 15. Thus, the manner of prescribing the TED hose by Dr. Chorley
was in keeping with a long-standing industry practice. As a result, the
facility staff knew from Dr. Chorley's order that the hose were not to
be removed at night. They knew, however, from their frequent contacts
with Dr. Chorley as well as the practice in the long-term care community
and common sense, that proper hygiene required removal of the TED hose
for bathing. Ms. Stark pointed out in her testimony that "there is documentation
in [the] nurses' notes and throughout the progress notes for the nurses
on [R4] that they did speak with [Dr. Chorley] frequently. Tr. II at 27-28. Those frequent contacts created a vehicle for the facility
staff to be aware of the treating physician's treatment goals and the
manner in which the physician's orders for the application of the prescribed
treatment were to be implemented. That is the reason why, during the November
30, 2001 survey, the charge nurse, Scott Lang, without hesitation, stated
that he would remove R4's TED hose for inspection of his lower extremities
by the surveyor. Tr. II at 10, 28. However, the surveyor would not allow
him to do so. She insisted that Dr. Chorley be called to obtain his clearance.
Tr. II at 10-11, 28. I perceive no uncertainty in the facility's understanding
and implementation of Dr. Chorley's order for applying "TED hose at all
times" to R4. The surveyor's handling of the matter could have easily
induced the charge nurse to error by alarmingly forbidding the charge
nurse from removing R4's TED hose unless consent was first obtained from
the treating physician. Inexplicably, the surveyors assumed that the facility
staff shared their understanding of Dr. Chorley's order without having
made a proper inquiry. Pertinent to this is Ms. Stark's response to the
question as to whether she had a sense that the charge nurse fully understood
the doctor's order for TED hose. Ms. Stark replied, "At the time I did
not know if he did or didn't." Tr. II at 11. That response is inconsistent
with her later testimony where she stated as follows: ". . . in my conversation
with Mr. Lang, I believe he understood the situation. He seemed to be
aware of the fact. He is the one that offered to me that, you know, he
is on Premarin . . . So something told me that he knew. And from his documentation,
it appeared that he was watching the resident . . . ." Tr. II at 17. Additionally, Ms. Starks also gained an understanding of the use of the TED hose from a review of the record. As to this, she testified as follows: "Well, at the time that we made initial rounds, I had idea [sic] why he had on TED hose and in review of the record - " Tr. II at 22. Based on her testimony, Ms. Stark should have had no doubt as to the charge nurse's understanding of the use of the TED hose. After all, the charge nurse not only had access to the same records that she reviewed, but was also in frequent contact with the resident's treating physician. Admittedly then, the charge nurse knew the situation, and that the TED hose was to be on at all times. However, the charge nurse did not understand that order to mean that the hose could not be removed for bathing or assessments. Such an understanding was only held by the surveyor, who attempted to impose her view on the facility by insisting on the physician's clearance before the TED hose could be removed for examination of the resident's lower extremities. Although the resident stated that the TED hose had not been removed for bathing (Tr. II at 8), the surveyor did not believe that in view of her finding upon close observation of the hose and lower extremities. Tr. II at 11, 12. Moreover, the surveyor, Ms. Stark, admitted that the TED hose were clean, and the resident's legs were not red. She found them to be dry and intact. Id.
A review of the totality of the record leads me to find
that the facility careplanned for the use of TED hose as an intervention.
The physician's order for TED hose to be used thigh high at all times,
was understood and properly implemented by the facility staff. There was
no confusion on the part of the staff as to how they were to carry out
the treating physician's order. I find that the TED hose was removed for
purposes of hygiene, skin care, and skin assessments. I also conclude
that the surveyor's failure to understand the way the treating physician's
order was to be implemented, in the absence of lengthy instructions, cannot
be held against the facility. In spite of the above, CMS is persistent in its position
that the physician's order and the facility records did not specify how
the TED hose could be on at all times without endangering the resident.
However, CMS advances no legal authority that justifies exacting such
minute details from the facility. There is also no evidence that the TED
hose was removed for hygiene, skin care, and assessments for a period
of time not consistent with the treating physician's treatment goals.
Tr. I at 170-171. CMS seems to press the risks to the lower extremities
brought on by R4's diabetes, but fails to show how Petitioner fell short
of not providing for R4's diabetic condition. During Dr. Chorley's testimony,
CMS inquired as to the healing difficulties encountered by diabetics when
faced with lower extremity lesions. However, Dr. Chorley clarified that
diabetic circulatory problems are related to arterial circulation issues,
while the TED hose therapy addressed venous circulation issues.
(14) Tr. I at 181; see
Tr. I at 180. It is possible that the
use of the TED hose, without proper monitoring, may promote lesions and
create health complications in diabetics. However, Petitioner has shown
that R4 was careplanned for diabetes, and diabetic precautions
were in place. The facility careplanned for R4's diabetes, and provided
adequately for the prevention of skin lesions. P. Ex. 22, at 20-22. Examples
of skin assessments are found in the record at P. Exs. 24, 26, and 27.
In this regard, Ms. Kathy Lindeman testified that the TED hose were removed
from R4 for purposes of bathing and hygiene, and would be reapplied promptly
afterwards. Additionally, Ms. Lindeman removed the hose to apply skin
lotion to R4's lower extremities. (15)
Tr. II at 179-180. CMS contends that Petitioner was required to specify and
detail the skin assessments made of the lower extremities. However, no
authority is offered to show that such assessments always need to be broken
down in that fashion. Unless an existing condition in a particular part
of the body requires special attention, it would not appear necessary
to report a skin assessment in minute detail that mentions each portion
of the resident's body separately. V. A Basis Exists for the Imposition of Remedies Against Petitioner.
The statute mandates termination
of Petitioner's participation agreement for failure to achieve substantial
compliance within six months after the survey conducted in June 2001.
Act, section 1819(h)(2)(C). The facility was not, admittedly, in substantial
compliance at the time of the June survey, and did not demonstrate that
it had achieved substantial compliance before the December 14, 2001 termination
date. CMS, therefore, appropriately terminated Petitioner's provider agreement.
Under the statute, CMS may not allow a deficient facility to continue
program participation for more than six months. VI. Conclusion I conclude that CMS correctly terminated Petitioner's participation in the Medicare program beginning December 14, 2001. |
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| JUDGE | |
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José A. Anglada Administrative Law Judge |
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| FOOTNOTES | |
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1. In its request for hearing, Petitioner stated that it was not challenging the DPNA remedy. Petitioner stated further that its appeal was only challenging the alleged deficiencies cited at the time of the November 30, 2001 survey. 2. CMS Ex. 2 is the same document submitted by Petitioner as P. Ex. 2. 3. The physician's order for R2 stated "Two person assist for all transfers." CMS Ex. 7, at 1. The order had been in effect since September 15, 1997. Id. A two-person assist means that two staff members are required to be present at the time the transfer is to take place. Tr. I at 56-57. 4. P. Ex. 20 is the same document submitted by CMS as CMS Ex. 15. 5. Ms. McCandless testified at the hearing that although she had written her report of her conversation with Mr. Thimmaiah on a disciplinary form, she did not intend that any disciplinary action should be taken against him. Ms. McCandless stated that "it was one of the forms I had on my desk, it had a lot of lines there, and I just pulled it." Tr. II at 235. She stated that she did not impose any disciplinary action against Mr. Thimmaiah with respect to the incident involving R2. Id. Ms. McCandless stated further that the report was meant as an investigative tool. P. Ex. 3, at 3; Tr. II at 236-237. She conceded, however, that it would have been better if Mr. Thimmaiah had stayed with R2 and sent the housekeeper to get Ms. Fraser or if he had used the call light in R2's room. Ms. McCandless stated that she "did not condone the manner in the way he did this." Tr. II at 248. 6. Although Mr. Thimmaiah testified on direct examination that his role at the facility was to perform the duties of both the CMA and CNA positions (Tr. II at 122), apparently, based on Ms. McCandless' testimony, he considered himself a CMA and would only carry out the duties of a CMA. 7. Mr. Thimmaiah's lack of ability is further exemplified by the ease with which Ms. Amber Fraser, a CNA, lifted R2 from her wheelchair and transferred her to the bed. Tr. II at 161, 168, 171, 173. Ms. Fraser described herself as a much smaller person weighing 130 pounds, compared to Mr. Thimmaiah, a heavyset male (Tr. II at 170-171). 8. This account by the resident is similar to other accounts of the incident except for the additional information regarding the breaking of her arm. I find that detail to be reliable since it appears in the surveyor's notes and was also contemporaneous with the investigation conducted by the facility. 9. It is interesting to note that the orthopedist might explore the possibility of the fracture being due to the slamming of the resident by two people, while at the same time, Dr. Chorley surmised that the fracture could have occurred while simply rolling in bed. P. Ex. 19, at 1, 3. 10. In this regard, the perception of the resident does not greatly differ from that of the DON, who suspected that the CMA's lack of practice contributed to his lack of proficiency. 11. The facility report states November 24, 2001, as the date of the incident, through an apparent oversight. 12. TED hose are elastic stockings used to increase blood circulation to the upper body; they are also known as anti-embolic stockings. Tr. I at 31. 13. Premarin is a female hormone. 14. CMS argues that when the surveyor, Ms. Pressley, examined R4's skin, she noticed that the TED hose was rolled down below his knees, creating redness and grooves. CMS Br. at 21, Tr. I at 31. There was no inquiry as to whether the hose had rolled down spontaneously or the resident had done it himself. Although Ms. Pressley testified that she observed redness and deep grooves, that was not apparent in any of the skin assessments at P. Exs. 24, 26, and 27. Additionally, Ms. Pressley's observations were not evident to Ms. Stark. It was Ms. Stark's testimony that when the hose were removed, the resident's legs were not red. Tr. II at 12. She added that they were dry and intact. As a matter of fact, she went on to say that "[a]ll surfaces were intact." Id. (Emphasis added). The distinction between Ms. Stark's observation and those of Ms. Pressley's is of the essence, inasmuch as Ms. Stark specifically stated that she examined the resident's legs with the TED hose removed. That is not the case with Ms. Pressley, who testified that she saw redness and deep grooves "along the area where the TED hose were rolled down below the resident's knee." Tr. I at 31. Such language leads me to infer that Ms. Pressley's observation may have been hindered by the fact that the resident's hose were on at that moment. Moreover, CMS established no clear nexus between this incident, and the alleged deficiency that the facility failed to care plan for the use of TED hose. 15. Ms. Lindeman's credible and uncontradicted testimony is further evidence that R4 may have been confused when he stated that the TED hose were never removed.
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