SUBJECT:

Ebenezer Luther Hall,

Petitioner,

Centers for Medicare & Mediacaid Services

DECISION

I sustain the determinations of the Centers for Medicare & Medicaid Services (CMS) to impose the following remedies against Petitioner, Ebenezer Lutheran Hall:

� Two per-instance civil money penalties in amounts of $2,500 per penalty, for a total penalty amount of $5,000; and

� Denial of payment for new admissions effective March 15, 2000 and running through April 17, 2000.

I. Background

Petitioner is a skilled nursing facility that is located in Minneapolis, Minnesota. It requested a hearing in order to challenge remedy determinations made by CMS based on the outcomes of three compliance surveys conducted of Petitioner during the year 2000 by representatives of the Minnesota Department of Health. These surveys were completed on: February 4, 2000 (February 2000 survey); March 16, 2000 (March 2000 survey); and, April 18, 2000 (April 2000 survey). At the February 2000 and March 2000 surveys it was determined that Petitioner was not complying substantially with federal Medicare participation requirements. Petitioner was found to be in substantial compliance with those requirements at the April 2000 survey.

CMS determined to impose two per-instance civil money penalties of $2,500 each based on the noncompliance findings that were made at the February 2000 survey. It determined to impose denial of payment for new admissions effective March 15, 2000 based on the original findings of noncompliance and on the findings that Petitioner continued not to be complying substantially with participation requirements as of the March 2000 survey.

The parties have entered into stipulations which have narrowed the issues considerably in this case. Petitioner is no longer challenging the deficiency findings that were made at the February 2000 survey. Nor is it challenging the two per-instance civil money penalties that were imposed by CMS as a consequence of the February 2000 survey findings of noncompliance. What Petitioner continues to challenge is CMS' determination that Petitioner did not attain substantial compliance with participation requirements prior to April 18, 2000. Petitioner asserts that it was complying substantially with those requirements as of the March 2000 survey. It argues alternatively that, even if it was deficient with those requirements in some respect as of the March 2000 survey, it attained compliance immediately thereafter and so, was in compliance with participation requirements continuously beginning with March 16, 2000. Thus, Petitioner argues that CMS has no basis to impose the remedy of denial of payment for new admissions against it.

CMS filed two motions for summary disposition and I denied both motions in rulings dated February 12, 2001 and September 9, 2002. I discuss my rulings where relevant, below.

I scheduled an in-person hearing in this case. It was necessary to postpone the hearing due to personal problems experienced by counsel for CMS. The parties then agreed that this case should be tried based on their written submissions. CMS submitted 48 proposed exhibits (CMS Ex. 1 - CMS Ex. 48). Petitioner submitted 72 proposed exhibits (P. Ex. 1 - P. Ex. 72). Neither party objected to the admission into evidence of the other party's proposed exhibits. I am, therefore, admitting into evidence CMS Ex.1- CMS Ex. 48 and P. Ex. 1 - P. Ex. 72. However, I note that some of these exhibits appear to be irrelevant in that they relate to issues that the parties have stipulated are no longer before me.

Both parties filed briefs in connection with CMS' two motions for summary disposition and with a schedule that I established requiring that the parties file pre-hearing briefs. These briefs address all of the issues in this case and neither party requested that it be given the opportunity for additional briefing. On October 16, 2002, I issued a directive to the parties closing the record in the case and advising them that I would proceed to decide the case based on the parties' submissions up to that date. Neither party objected to that directive and I consider the record to be closed.

II. Issues, findings of fact and conclusions of law

A. Issues

The issues in this case are whether:

1. Petitioner was not complying substantially with one or more federal participation requirements as of the March 2000 survey; and,

2. Petitioner attained substantial compliance with all federal participation requirements prior to April 18, 2000.

B. Findings of fact and conclusions of law

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

1. If a facility is not complying substantially with federal participation requirements as of a specific date then it is presumed to remain out of compliance with those requirements until that subsequent date when CMS certifies it to have attained compliance. The facility may overcome the presumption of noncompliance by proving, by the preponderance of the evidence, that it attained compliance at an earlier date than the date when CMS certified that it attained compliance.

I addressed the issues subsumed by this Finding in my February 12, 2001 and September 9, 2002 rulings and I will not revisit my analysis here in detail. However, I summarize my previous rulings and reiterate them as follows:

� CMS contended that it has the exclusive authority to determine the date when a noncompliant facility attains compliance with participation requirements. Consequently, it asserted that the date when a noncompliant facility attains compliance is not an issue which I have the authority to hear and decide. In my February 12, 2001 ruling I rejected this argument. I held that a facility has a right to a hearing to challenge CMS' determination as to the date when the facility attains compliance with participation requirements.

� Petitioner contended that a plan of correction in which a facility states that it will attain compliance with participation requirements as of a specific date is conclusive proof that the facility has attained compliance by that date, if CMS agrees to accept the plan. In my September 9, 2002 ruling I held that a plan of correction may be evidence of the date when a facility attains compliance. But, the weight that attaches to such evidence depends on factors which include the circumstances of the plan's generation and on what corroborative evidence a facility offers to show that the goals in the plan actually were met by the facility on the date or dates when the facility asserted that they would be met.

� I concluded in my September 9, 2002 ruling that, once a facility is shown not to be complying substantially with participation requirements, it is presumed to remain noncompliant until it establishes that it has attained compliance. The burden is thus on the facility to prove by a preponderance of the evidence that it has attained compliance with federal participation requirements on a date subsequent to the date when it is shown not to be complying substantially with participation requirements.

2. Petitioner was not complying substantially with federal participation requirements as of March 15, 2000.

The Minnesota Department of Health surveyors who performed the March 2000 survey of Petitioner found that Petitioner was not complying substantially with three federal participation requirements. CMS Ex. 21 at 13 - 20. Specifically, they concluded that Petitioner was not complying with the following requirements:

� At Tag 282 of the survey report the surveyors found that Petitioner was not complying substantially with the requirements of 42 C.F.R. � 483.20(d)(3)(ii). The regulation requires that services provided by a facility be provided by qualified persons in accordance with each resident's plan of care. CMS Ex. 21 at 13 - 15.

� At Tag 316 of the survey report the surveyors found that Petitioner was not complying substantially with the requirements of 42 C.F.R. � 483.25(d)(2). The regulation requires that a resident who is incontinent of bladder receives appropriate treatment and services to prevent urinary tract infections and to restore as much normal bladder function as possible. CMS Ex. 21 at 15 - 17.

� At Tag 318 of the survey report the surveyors found that Petitioner was not complying substantially with the requirements of 42 C.F.R. � 483.25(e)(2). CMS Ex. 21 at 17 - 20. The regulation requires that, based on a comprehensive assessment of a resident, a facility must ensure that a resident with a limited range of motion receives appropriate treatment and services to increase range of motion and/or to prevent further decrease in his or her range of motion.

I find that CMS presented a prima facie case which Petitioner did not rebut by the preponderance of the evidence that establishes that, as of March 15, 2002, Petitioner was not complying substantially with the requirements that are stated at Tags 282 and 316 of the March 2000 survey report. I find that Petitioner proved by the preponderance of the evidence that it was complying substantially with the requirement that is stated at Tag 318.

a. Petitioner failed to comply substantially with the participation requirement that is stated at Tag 282 of the March 2000 survey report.

The allegations of noncompliance that are made at Tag 282 relate to the care that Petitioner provided to three residents who are identified in the survey report as Resident #s 21, 20, 6, and 8. Each of these residents had a care plan which identified the resident as incontinent and which required that the resident be checked for incontinence or taken to the bathroom once every two hours while he or she was awake. CMS Ex. 21 at 13 - 15; P. Ex 51 at 11; P. Ex. 43 at 5; P. Ex. 40 at 1. Two of these four residents, Resident #s 21 and 6, had been identified by Petitioner's staff as being at risk for skin breakdown secondary to incontinence problems.

The surveyors observed the care that was being provided to each of these residents and found that none of them was checked for incontinence or taken to the bathroom as per the requirements of that resident's plan of care. CMS Ex. 21 at 13 - 15. On March 15, 2000, the surveyors observed Resident # 21 for a period of four hours, from 3:50 p.m. until 7:50 p.m. During this time the resident was not checked for incontinence nor was the resident taken to the bathroom. Id. at 14. The surveyors observed Resident # 20 for a period of more than three hours on March 15, 2000, from 4:49 p.m. until 8:00 p.m. The resident was not checked for incontinence nor taken to the bathroom during this period. Id. They observed Resident # 6 for a period of three hours and 45 minutes and the resident was not taken to the bathroom nor checked for incontinence during this period. Id. at 14 - 15. And, they observed Resident # 8 for a period of two hours and 55 minutes during which the resident was neither checked for incontinence nor taken to the bathroom. Id. At the end of the observation periods, three of the four residents had been incontinent. Id. at 13 - 15.

This evidence is prima facie proof of failure by Petitioner to comply with the requirements of 42 C.F.R. � 483.20(d)(3)(ii). The regulation explicitly requires a facility to provide services to its residents in accordance with the residents' plans of care. All four of the residents in question had care plans which required that they be checked for incontinence and/or taken to the bathroom at least once every two hours. None of these residents received that service on March 15, 2000. Moreover, the evidence offered by CMS is prima facie proof that the residents suffered from at least the potential for more than minimal harm. Two of these four residents were noted to be at risk for skin breakdowns secondary to incontinence. Given that, it was extremely important that Petitioner's staff be diligent in checking the residents and taking them to the bathroom. However, the staff failed to exercise this obligation to provide care.

Petitioner failed to rebut this prima facie case of noncompliance by the preponderance of the evidence. Petitioner argues that the surveyors' observations of the care given to the four residents are inconsistent and inaccurate and are, therefore, not credible. It notes, for example, that the survey report shows one resident (Resident # 20) as being observed for three hours and 11 minutes when other statements by a surveyor show that the resident was observed for three hours and 50 minutes. It contends that one surveyor was replaced by another surveyor at some point during the evening of March 15, suggesting by this that the surveyors' observations of the residents were not continuous. Petitioner also offers the testimony of its own Assistant Director of Nursing, Mary Ann Cooper, to counter that which was given by the surveyors. She asserts that she personally observed the residents on March 15. P. Ex. 70. According to Ms. Cooper it would have been very difficult to observe all four of the residents simultaneously. Moreover, she contends that she was with one resident when the resident was checked and changed.

I find these assertions not to be persuasive attacks on the credibility of the surveyors. First, I do not find that there was a significant discrepancy or inaccuracy in the surveyors' observations of the residents. Whether a resident was observed continuously for three hours and 50 minutes or three hours and 11 minutes does not undercut the surveyors' findings that the resident was left for substantially more than two hours - the period required by the resident's plan of care - without being checked for incontinence or taken to the bathroom.

Second, I do not find that the testimony of Ms. Cooper undercuts the surveyors' findings. She asserts that "[i]t is more likely than not that the 4 residents were checked, changed an/or toilet[ed] within the 2-3 hour time frame as specified on their care plans." P. Ex. 70 at 1. However, this statement is without foundation. Although Ms. Cooper avers that she observed the staff care that was given to residents on March 15, 2000, she does not assert that she made continuous observations of the actual care given to these residents during the periods when they were being observed by the surveyors. She also states that she went to assist in preparing Resident # 21 for bed. According to her: "We took off his brief and it was not wet or soiled." Id. This statement does not detract from anything the surveyors observed. There is no recitation in the statement of the exact time when Ms.

Cooper made her observation of Resident # 21. If, in fact, she observed the resident after 7:50 p.m., then the resident might well have been dry, in light of the fact that the resident had been checked for incontinence at 7:50 p.m. But, Ms. Cooper does not account for the preceding period of three hours and 11 minutes (or three hours and 50 minutes).

Finally, Ms. Cooper's assertion that "one surveyor could not have observed the care given to these four residents simultaneously" is not persuasive proof that the surveyors failed to observe the care given to the residents. P. Ex. 70 at 1. Ms. Cooper has not provided any explanation as to why simultaneous observation of the residents was impossible (assuming for argument's sake that only one surveyor made the observations that are at issue).

Petitioner argues also that there was no negative outcome for any of the four residents and asserts that the potential for harm to these residents was minimal. I am not persuaded by this assertion. Three of the four residents were found to have been incontinent when they were finally checked for incontinence. Allowing these residents to be incontinent was at a minimum, an affront to their dignity. Two of these four residents were noted to be at risk for skin breakdown due to incontinence. The potential for physical harm was obvious even if none of these residents actually suffered from a skin breakdown due to their incontinence.

Petitioner asserts additionally that dinner for the residents was delayed on the evening of March 15, 2000 and suggests that failure to check the residents on that date was an aberration. It is entirely unclear from Petitioner's argument what relationship checking the residents and/or taking them to the bathroom had with dinner service. I am not persuaded that late dinner service provides any explanation for the failure to check and/or toilet the residents on this date. Moreover, it does not suggest, as Petitioner contends, that the failures were merely an aberration.

The facts of this case are very similar to those in Britthaven of Raleigh, DAB CR901 (2002). There, as with this case, deficiency allegations centered around failures by a facility's staff to check and/or take to the toilet residents who were incontinent. The deficiency allegations in Britthaven of Raleigh involved a different section of the governing regulations than is at issue here. The ultimate issue of fact and law in that case was whether the residents in question were receiving the necessary services to carry out activities of daily living whereas in this case compliance with plans of care is at issue. What links the two cases, and what makes my findings in both cases consistent, is that in both cases failures by Petitioner's staff to provide necessary continence care to incontinent residents posed the threat of more than minimal harm to those residents.

b. Petitioner failed to comply substantially with the participation requirement that is stated at Tag 316 of the March 2000 survey report.

The allegations of noncompliance at Tag 316 of the March 2000 survey report are based on the evidence used to support the allegations made at Tag 282. CMS Ex. 21 at 15 - 17. The Tag 316 allegations center on the care given by Petitioner's staff to two residents, Resident #s 20 and 21. Each of these residents was assessed by Petitioner's staff as being incontinent and requiring assistance in going to the bathroom as a consequence of their physical and mental disabilities. P. Ex. 43 at 5; P. Ex. 51 at 1, 11. Each of these residents had a plan of care which directed Petitioner's staff to provide regular incontinence services to the resident in response to the resident's identified needs. However, on March 15, neither of these residents were checked for incontinence nor were they assisted to the bathroom for extended periods of time.

The evidence cited by CMS establishes a prima facie case of Petitioner's failure to comply with the requirements of 42 C.F.R. � 483.25(d)(2). It shows that the residents in question had a need for services to prevent urinary tract infections and to restore bladder function to the extent possible. It shows that, on March 15, 2000, Petitioner's staff failed to address that need.

Petitioner's response to CMS' prima facie case is the same response as it made to the allegations at Tag 282 of the March 2000 survey report. I find the response not to be persuasive for the same reasons as I find it not to be persuasive rebuttal of the Tag 282 evidence.

c. Petitioner proved by the preponderance of the evidence that it complied substantially with the participation requirement that is stated at Tag 318 of the March 2000 survey report.

The allegations of noncompliance at Tag 318 of the March 2000 survey report relate to the care that Petitioner provided to a resident who is identified as Resident # 3. CMS Ex. 21 at 17 - 19. At the February 2000 survey the surveyors found that the resident was not receiving range of motion physical therapy as had been prescribed for him (Petitioner does not contest this conclusion). At the March 2000 survey the surveyors found that the resident still was not receiving the prescribed therapy.

The resident had been assessed for physical therapy on February 3, 2000 and received nursing orders for such therapy. CMS Ex. 4 at 9 (CMS submitted a revised exhibit in which the citations were redesignated as CMS Ex. 4A at 2). However, Petitioner's March 2000 nursing assignment sheet had not been updated to reflect the order. Nor had the order been added to the resident's plan of care. The surveyors inferred from this absence of documentation that the resident was not actually receiving the prescribed therapy. And, they made their finding of noncompliance based on that inference.

The evidence is weak support for an inference of noncompliance because it rests on a tenuous assumption that failure by Petitioner to follow documentation protocols precisely in the case of Resident # 3 equates necessarily with a failure by Petitioner to provide prescribed care to the resident. I find that the evidence is minimally sufficient to establish a prima facie case of noncompliance by Petitioner with the requirement that it provide necessary treatment and services to Resident # 3 in order to increase the resident's range of motion. However, it is the kind of evidence that can be rebutted by testimony or documentation showing that the resident received the care that was prescribed for him.

Petitioner provided such evidence and rebutted CMS' prima facie case by the preponderance of the evidence. The evidence offered by Petitioner includes the sworn testimony of Resident # 3 in which he avers that he received the care that was prescribed for him or was offered the care and rejected it. The evidence establishes that the resident received range of motion therapy after February 3, 2000. P. Ex. 64 at 7 - 8; P. Ex. 70 at 2. He was also offered therapy in a standing frame although at times he declined treatment. Ids.

3. CMS is authorized to impose the remedy of denial of payment for new admissions against Petitioner effective March 15, 2000.

The remedies that CMS may impose against a facility that is not complying substantially with one or more federal participation requirements include denial of payment for new admissions. 42 C.F.R. �� 488.408; 488.417. Petitioner was not complying substantially with two federal participation requirements on March 15, 2000. Consequently, CMS was authorized to impose denial of payment for new admissions effective that date.

The regulations which provide for imposition of denial of payment for new admissions provide that, generally, the remedy will be imposed where a deficiency or deficiencies of a defined level of scope and severity is present. See 42 C.F.R. � 488.408(d). However, I have no authority to decide whether the two deficiencies that Petitioner manifested on March 15, 2000 were of the scope and severity that would normally justify imposition against Petitioner of denial of payment for new admissions. That is because I do not have authority to consider a challenge to CMS' determination as to the scope and severity of a deficiency where a remedy other than a civil money penalty is at issue.

4. Petitioner did not prove that it attained substantial compliance with all participation requirements before April 18, 2000.

As I discuss above, at Finding 1, a showing that a facility is not complying substantially with one or more participation requirements as of a specific date creates a presumption that the facility remains out of compliance until the date that CMS certifies that the facility has attained compliance. The presumption of continued noncompliance is not irrebuttable. But, the burden falls entirely on the facility to prove, by the preponderance of the evidence that it has attained compliance at a date earlier than the compliance date certified by CMS.

In this case CMS determined that Petitioner attained substantial compliance with all participation requirements as of April 18, 2000, the completion date of the April 2000 survey. It based its determination on findings that the surveyors made at that survey. Petitioner asserts, however, that it attained substantial compliance immediately after the February survey when it put into place internal audit procedures which it designed to check the care provided by Petitioner's staff. It argues that these audit procedures effectively eliminated significant staff errors in providing care. And, it asserts that it never would have submitted a plan of correction certifying that it had completed implementing these procedures effective March 16, 2000 had that not been the case. CMS Ex. 21; P. Ex. 70.

The principal evidence that Petitioner relies on to support its contention consists of the sworn written testimony of Ms. Cooper along with the plan of correction that it submitted after the March 2000 survey. P. Ex. 70; CMS Ex. 21. I have reviewed this evidence and I find that it does not contain persuasive proof that Petitioner attained substantial compliance prior to April 18, 2000.

Petitioner's assertion that its audit procedures were effective immediately upon implementation is refuted by evidence establishing that Petitioner remained out of substantial compliance with participation requirements as of the March 2000 survey. The fact allegations which are the basis for some of the noncompliance findings that were made at the February 2000 and March 2000 surveys are very similar. Petitioner implemented audit procedures right after the February 2000 survey. It is evident from the continued problems at Petitioner's facility in March 2000 that these audit procedures were not successful in preventing recurring omissions to provide care as of the March 2000 survey.

At the February survey the surveyors observed four residents for extended periods of time and concluded that none of these residents were checked for incontinence or provided incontinence care during those periods. CMS Ex. 9 at 25 - 26. The observations made by the surveyors in February essentially were the same as those that the surveyors made in March. Residents at Petitioner's facility were identified as being incontinent and their care plans specified that they should be checked for incontinence and, if necessary, changed or taken to the bathroom at two hour intervals. However, the observed residents at both the February 2000 and March 2000 surveys were not checked as per the requirements of their care plans nor were they provided with timely incontinence services.

These facts undercut Petitioner's contention that it had introduced effective audit procedures. Essentially the same problems persisted from one survey to the next despite the introduction of audit procedures. The facts also undercut Petitioner's assertion that it had made its audit procedures effective as of March 16, 2000. The evidence suggests, to the contrary, that Petitioner was still having problems as of that date assuring that the quality of care that it delivered to its residents was of an acceptable level.

Moreover, Petitioner has introduced no evidence which satisfies me that it can establish a particular date between March 16, 2000 and April 18, 2000 when its audit procedures effectively eliminated quality of care problems. Ms. Cooper's testimony does not provide such assurance. Ms. Cooper avers that the auditing and monitoring of Petitioner's staff did not change or increase following the March 2000 survey. P. Ex. 70 at 8. According to Ms. Cooper, Petitioner maintained precisely the same quality control measures after March 16 as it had implemented after the February 2000 survey. Id. That does not suggest any reason to conclude that Petitioner's techniques became effective on any date after March 16 and prior to the April 2000 survey. Indeed, Ms. Cooper's testimony is reason to question whether Petitioner's audit procedures were working given their failure to prevent the care omissions that were observed at the March 2000 survey.

Obviously, at some point Petitioner did get a handle on the problems associated with checking and changing incontinent residents because those problems were not noted as of the April 2000 survey. And, it is reasonable to credit Petitioner's audit procedures as a mechanism that ultimately helped Petitioner to attain compliance. But, the evidence offered by Petitioner simply does not show compliance as of any specific date prior to April 18, 2000 given the failure of the audit procedures to assure compliance as of the March 2000 survey.

5. CMS is authorized to deny Petitioner payment for new admissions through April 17, 2000.

Petitioner did not establish that it attained substantial compliance with participation requirements prior to April 18, 2000. Therefore, CMS is authorized to deny Petitioner payments for new admissions from March 15, 2000 through April 17, 2000.

Steven T. Kessel

Administrative Law Judge