SUBJECT:

Lake Cook Terrace Nursing Center,

Petitioner,

Health Care Financing Administration

Civil Remedies CR660
App. Div. Docket No. A-2000-82
Decision No. 1745

FINAL DECISION ON REVIEW OF

ADMINISTRATIVE LAW JUDGE DECISION

The Health Care Financing Administration (HCFA) appealed an April 7, 2000 decision by Administrative Law Judge (ALJ) Marc R. Hillson. Lake Cook Terrace Nursing Center, DAB CR660 (2000) (ALJ Decision). Before the ALJ, Lake Cook Terrace Nursing Center (Petitioner) appealed HCFA's finding that Petitioner had two deficiencies, rising to the level of immediate jeopardy, involving one resident over a three-day period, and the Civil Monetary Penalty (CMP), totaling $9,150, that HCFA imposed based on those findings. Additionally, Petitioner appealed a CMP of $50 per day for 59 days based on HCFA's findings regarding Petitioner's noncompliance with participation requirements, not rising to the level of immediate jeopardy, relative to four other residents.

The ALJ reversed HCFA's finding that Petitioner's conduct with respect to the first resident was deficient and therefore concluded that HCFA's determination that Petitioner placed this resident in immediate jeopardy was clearly erroneous. ALJ Decision at 2. However, the ALJ sustained HCFA's findings of non-immediate jeopardy level deficiencies and the related CMP.

HCFA filed exceptions to four Findings of Fact and Conclusions of Law (FFCLs) upon which the ALJ relied in reaching his decision on the alleged immediate jeopardy deficiencies. Petitioner did not take exception to the ALJ Decision.

For the reasons discussed below, we sustain the ALJ Decision.

Procedural Background

Petitioner is a long-term care facility located in Northbrook, Illinois. From May 12-15, 1998, the Illinois Department of Public Health (IDPH), on behalf of HCFA, surveyed Petitioner to determine its compliance with federal participation requirements for Medicare and Medicaid. The survey found isolated but serious deficiencies constituting immediate jeopardy and requiring significant corrections. These were identified as F-Tags 281 and 309. F-Tag 281 is based upon 42 C.F.R. � 483.20(d)(3)(i) (1997),⁽¹⁾ which provides that services provided by a facility must meet professional standards of quality. F-Tag 309 is based on 42 C.F.R. � 483.325, which provides generally that each resident must receive, and the facility provide, the necessary care and services to attain the highest practicable physical, mental and psychosocial well-being, in accordance with the comprehensive assessment and plan of care. IDPH found that the circumstances constituting immediate jeopardy were abated on May 12, 1998. IDPH recommended a $3,050 per day CMP for the three-day period (May 9-12) in which it found that these deficiencies were ongoing. HCFA Exs. 1 & 2.

The survey also found a pattern of deficiencies which "constituted no actual harm with the potential for more than minimal harm that was not immediate jeopardy whereby corrections were required" (F-Tags 241 and 253). HCFA Ex. 1 at 1. IDPH recommended a $50 per day CMP beginning May 12, 1998. Id. at 2. IDPH found that Petitioner ultimately achieved substantial compliance on July 10, 1998. HCFA Ex. 2.

On July 8, 1998, HCFA informed Petitioner that it would adopt IDPH's recommendations. HCFA Ex. 1. On August 13, 1998, HCFA informed Petitioner that it was imposing a CMP totaling $12,100 ($9,150 for three days of immediate jeopardy at $3,050 per day and $2,950 for 59 days of lesser deficiencies at $50 per day). HCFA Ex. 2.

On September 2, 1998, Petitioner requested a hearing before an ALJ. The ALJ conducted an in-person hearing on December 21, 1999. As noted above, he reversed HCFA's immediate jeopardy findings and sustained the non-immediate jeopardy findings. Since only HCFA took exception to the ALJ Decision, the immediate jeopardy findings are the focus of this decision. We affirm and adopt the other FFCLs without further discussion.

Factual Background

The following summarizes the facts regarding HCFA's immediate jeopardy as found by the ALJ Decision.

At the time of the survey, the subject of these findings, who was identified as R3 so as to protect her privacy, had resided with Petitioner for 14 years. Her cognitive skills for daily decision making were severely impaired and she had limited communication skills. Afflicted with dementia, R3 was described generally as a difficult, uncooperative resident who struggled with activities of daily living, was resistant to care, and tended to frequently scream. At approximately 1:00 a.m. on May 9, 1998, R3 was found to have tissue protruding from her body, between her vagina and rectum. The examining nurse determined the problem to be a uterine prolapse.⁽²⁾ At this time, R3's vital signs were normal and she did not express discomfort. At approximately 10:00 a.m. on May 9^th, the nurses reported their findings to R3's physician by telephone including the fact that R3 had a "[s]mall amount of red blood on her pad." The physician indicated that he would see R3 during his next scheduled rounds (he was due in the facility on May 12^th) and instructed that he should be notified if R3 began to experience pain.⁽³⁾ That evening R3 ate her entire dinner, evidenced no pain or discomfort, and had only a small bloody secretion on her pad. The nurse's notes at this time reported that the prolapse had decreased in size and that R3's vital signs continued to be normal. Nurse's notes for 10:00 p.m. on May 9^th reported no bleeding. ALJ Decision at 3-4.

In mid-afternoon on May 10^th, the nurse examining R3 noted that she was easily awakened, still had protruding tissue and a small amount of blood present. Attempts to push the prolapse back in were met with resistance. At 10:30 p.m. on May 10^th, the attending nurse identified the prolapse as rectal. Id. at 3.

At 11:30 a.m. on May 11^th, a nurse noted that R3 had a cherry red mass, approximately the size of a tennis ball, protruding from her rectum and a small amount of blood in her pads. R3 denied she was in pain. The nurses called R3's physician, who directed them to schedule appointments with gastrointestinal consultants. Id.

R3 first complained of pain in mid-afternoon of May 12^th. R3's physician examined her shortly thereafter. He sent R3 to a hospital where she remained for several days⁽⁴⁾ before ultimately undergoing corrective surgery on May 15^th. Id.

Conclusion

For the reasons explained above, we affirm and adopt all the findings of fact and conclusions of law below, and sustain the ALJ Decision.

The ALJ Decision was based upon 13 FFCLs. HCFA took exception to the following four:

8. At all times, Petitioner's physician was kept informed of R3's condition.

9. All of R3's physician's instructions were properly carried out by Petitioner's staff.

10. Petitioner was not out of compliance at any time with Medicare participation requirements with regard to F-Tags 281 and 309.

11. HCFA's determination that Petitioner's conduct with regard to R3 constituted noncompliance with participation requirements such that it constituted immediate jeopardy to R3 is clearly erroneous.

ALJ Decision at 8.

Our standard of review on a disputed conclusion of law is whether the ALJ Decision is erroneous. Our standard of review on a disputed finding of fact is whether the ALJ Decision is supported by substantial evidence on the record as a whole. Guidelines for Appellate Review of Decisions of Administrative Law Judges Affecting a Provider's Participation in the Medicare and Medicaid Programs; see also Hillman Rehabilitation Center, DAB No. 1611 at 6 (1997), aff'd, Hillman Rehabilitation Center v. U.S. Dept. of Health and Human Services, No. 98-3789 at 21-38 (D.N.J. May 13, 1999).

A. The ALJ used the correct standard in evaluating the evidence before him.

Although HCFA characterized its exceptions as going to whether the ALJ Decision was supported by substantial evidence in the record, HCFA also appeared to contend that the ALJ had applied an incorrect standard to the evidence before him. That is, HCFA's request for review also discussed the "clearly erroneous" standard, and contended that the ALJ erred in failing to place the burden of proof on Petitioner to demonstrate that HCFA's finding of immediate jeopardy was "clearly erroneous." HCFA Br. at 4-7. We first discuss HCFA's contention that the ALJ applied the wrong standard for weighing the evidence before we review whether his findings regarding that evidence are supported.

HCFA's confusion about what standard the ALJ applied likely springs from the part of the ALJ Decision which states, "I find that HCFA did not prove that Petitioner's conduct with respect to this resident supported a finding of immediate jeopardy and that Petitioner's conduct was in fact not deficient at all. I find to be clearly erroneous HCFA's determination that Petitioner placed the resident in question in immediate jeopardy." ALJ Decision at 2. However, it is clear from another part of the ALJ Decision that the ALJ knew and applied the correct standard:

In order to prevail, Petitioner must meet the burden of proof described in Hillman Rehabilitation Center, DAB No. 1611 (1997), aff'd, Hillman Rehabilitation Center v. U.S. Dept. of Health and Human Services, No. 98-3789 at 21-38 (D.N.J. May 13, 1999). Thus, HCFA had the burden at the hearing of coming forward with evidence sufficient to establish a prima facie case, while Petitioner would have the burden of coming forward with evidence sufficient to establish the elements of any affirmative arguments or defenses. The preponderance of the evidence standard is applied here, except that any finding as to the level of noncompliance by a nursing facility must be upheld by me unless it is clearly erroneous. 42 C.F.R. � 498.60(c)(2). Since I find that there is no noncompliance by Lake Cook with regards to the immediate jeopardy citation, the clearly erroneous standard does not apply to the facts of this case.

ALJ Decision at 7 (emphasis added). Thus, what the ALJ meant when he characterized HCFA's determination as clearly erroneous was that, since he found that Petitioner's actions with respect to this resident did not amount to a deficiency, it was obviously incorrect to conclude that Petitioner's actions placed the resident in immediate jeopardy. The purpose of the clearly erroneous standard at 42 C.F.R. � 498.60(c)(2) is to accord deference to HCFA's evaluation of the seriousness and effect of any deficiency. It presupposes a finding that the deficiency exists and therefore is inapplicable once an ALJ reverses the deficiency finding.

Moreover, the issue was further confounded by HCFA's insistence that the resident's condition was a serious emergency, so that Petitioner's failure to treat it as such placed the resident in immediate jeopardy, defined by the regulations as "a situation in which the provider's noncompliance with one or more requirements of participation has caused, or is likely to cause, serious injury, harm, impairment, or death to a resident." 42 C.F.R. � 488.301. The ALJ's rejection of HCFA's version of the facts did not amount to a determination that a rectal prolapse could never give rise to an immediate jeopardy situation; rather, he found, based on the record before him as to R3's condition, that Petitioner's care of R3 did not amount to a noncompliance with a participation requirement.

The ALJ determined that Petitioner did all that reasonably could be expected of it in its care of R3 and noted that he was hard-pressed to determine what Petitioner should have done differently. ALJ Decision at 5-6. In reaching his decision, the ALJ carefully considered the testimony of the witnesses appearing before him as well as the documentary evidence in the record. As we have noted elsewhere, it is not our role to substitute our evaluation of the evidence for that of the ALJ, but only to determine whether his factual findings are supported by substantial evidence in the record as a whole. See Beverly Health and Rehabilitation - Spring Hill, DAB No. 1696, at 40 (1999). Based on the following analysis of the disputed FFCLs, we conclude that there is indeed substantial evidence in the record to support the ALJ's factual findings.

B. The ALJ's findings of fact are supported by substantial evidence in the record. (FFCLs 8 and 9)

FFCL 8. At all times, Petitioner's physician was kept informed of R3's condition.

FFCL 9. All of R3's physician's instructions were properly carried out by Petitioner's staff.

We discuss HCFA's exceptions to these two FFCLs in tandem because part of R3's physician's instructions involved the changes in R3's condition of which he should be notified.

HCFA excepted to FFCL 8 because HCFA contended that the following were actions outside the nursing standards of care for keeping a physician informed of a patient's condition: (1) the nine-hour delay between Petitioner's discovery of the prolapse and the actual notification to R3's physician; (2) the mistaken initial diagnosis; (3) the ten-hour delay in notifying the physician after the correct diagnosis; (4) the failure of Petitioner's nurses to notify, prior to May 11^th, R3's physician as to the oozing of blood or to notify the physician regarding R3's complaints of pain. HCFA also relied on the latter failure to notify the physician as support for its contention that the ALJ erred in finding in FFCL 9 that R3's physician's instructions were carried out. HCFA asserted that Petitioner had not refuted HCFA's evidence before the ALJ that these actions were outside the nursing standards of care.

In support of FFCLs 8 and 9, the ALJ carefully considered the testimony of both HCFA's and Petitioner's witnesses. See ALJ Decision at 4-5. With respect to item (1), HCFA did not provide evidence that nursing standards required immediate physician notification of a prolapse under all circumstances. Instead, HCFA offered the following testimony, from two different surveyors: "Immediate - relative emergencies or changes in condition are the nurse's responsibility to contact the physician no matter what time . . . if it is a significant change," Tr. at 87; and "Whenever a patient has a significant change in condition in which the medical care should be altered or new medical care initiated or considered, the nurse should notify the physician." Tr. at 101. Based on their view of R3's condition, these witnesses contended that nursing standards required that Petitioner's staff should have telephoned R3's doctor about the prolapse, notwithstanding the hour of day when it was discovered. In response, Petitioner provided physician testimony addressing whether R3's condition was serious when first discovered. The ALJ applied the standard propounded by HCFA's witnesses, but he found "no evidence whatsoever" indicating that the initial appearance of the prolapse was serious enough to warrant notifying the physician in the middle of the night. His evaluation of the seriousness was based on the medical records and the testimony he heard. In evaluating these, he clearly relied on the testimony of the surgeon who repaired the prolapse regarding "significant bleeding," and reasonably read the medical records as referring only to "staining or spotting." ALJ Decision at 6. He also supported his conclusion by referring to the surgeon's testimony that "it is normal treatment to wait a while and see if a prolapse goes away on its own." ALJ Decision at 6. The ALJ's evaluation of this evidence included his conclusion that Petitioner's witnesses were credible, based on his observation of the witnesses. The ALJ indicated that nothing in the record suggested that the delay in contacting R3's physician had any negative impact on her treatment. We therefore reject HCFA's assertion that Petitioner had not refuted HCFA's evidence that Petitioner's failure to notify R3's physician immediately was outside the nursing standards of care. The ALJ considered the competing evidence before him as to the condition of R3 and made a determination that is supported by substantial evidence in the record.

With respect to item (2), the mistaken assessment of the locus of the prolapse, HCFA maintained that it was outside the nursing standard of care to make such a mistake, and that if Petitioner's staff was unable to assess R3's condition because she was uncooperative, Petitioner should have notified her physician. The ALJ relied on testimony from the surgeon who corrected the prolapse indicating that it was easy to confuse a rectal and uterine prolapse, and that he had known emergency room physicians to make such a mistake. Id. at 6. Consequently, the ALJ's determination that the initial mistake about the locus of the prolapse was not so serious as to constitute deficient nursing care, was supported by substantial evidence in the record. In addition, we note that the specific deficiency in compliance with nursing standards alleged in the statement of deficiencies and identified by the surveyors in their testimony was the initial incorrect assessment. There was not, as HCFA implied here, an allegation by the surveyors or an admission by Petitioner that it completely failed to assess R3, which would have been a separate and different violation of nursing standards. Thus, since the ALJ was not asked by HCFA to find that Petitioner failed to assess R3, his comment that R3 was a difficult, uncooperative patient was simply a statement summarizing evidence in the record about the inherent difficulty in assessing R3. The ALJ did not find that Petitioner failed to assess R3, so he did not need to address any alleged duty to inform the physician that his patient could not be assessed.

With respect to item (3), although the ALJ did note that one HCFA witness mentioned the delay in notifying R3's physician about the corrected assessment as among the factors she relied upon in finding a deficiency, he did not specifically address it. HCFA contended that "[t]here was no evidence that such a delay was within the nursing standard of practice." Request for review at 10. However, although that HCFA witness faulted Petitioner's staff for not immediately telephoning R3's physician to tell him about the corrected assessment, she did not state what nursing standard demanded such action at 11:30 at night. The record shows that the nurse who correctly identified the prolapse as rectal noted no changes in R3's vital signs or bleeding or pain, and included in her charting, "Will refer to MD." HCFA Ex. 18 at 4. The record also shows that the nurse monitored R3's condition throughout the night. Id. We read the ALJ's statement that he could not determine "what, if anything, Petitioner should have done differently with regard to the care of R3 during the time period at issue," and his determination that there was no noncompliance by Petitioner to mean that he necessarily rejected HCFA's unsupported allegation that Petitioner's nurse's decision that the call to R3's physician could wait until the morning was a violation of some unspecified nursing standard. We consider his failure to explicitly state that HCFA had not made a prima facie case as to this single issue to be harmless error. Therefore, we reject HCFA's assertion that the ALJ erred in failing to find that this delay was a violation of nursing standards.

With respect to item (4), HCFA contended that the record showed that R3 was experiencing bleeding and pain that Petitioner's staff should have reported to her physician. However, as discussed above, the ALJ finding that there was no evidence of significant bleeding, only staining or spotting, was supported by substantial evidence in the record. Further, the ALJ found that R3 showed no evidence of pain or discomfort until the day she was seen by her physician and sent to the hospital. Id.⁽⁵⁾ Consequently, since the ALJ determined that none of the circumstances specified by R3's physician as reasons to notify him in fact existed, the ALJ concluded that Petitioner's nurses did not fail to meet nursing standards by not calling R3's physician more often than they did. All these findings are supported by substantial evidence in the record, cited by the ALJ;⁽⁶⁾ HCFA's exceptions therefore amount to a request that the Board substitute its judgment for the ALJ's judgments regarding credibility of witnesses and weight of the evidence.

Since we find that these FFCLs are supported by substantial evidence in the record, we sustain them in their entirety.

C. Since the ALJ's findings of fact are supported by substantial evidence in the record, we sustain the resulting conclusions of law. (FFCLs 10 and 11)

FFCL 10. Petitioner was not out of compliance at any time with Medicare participation requirements with regard to F-Tags 281 and 309.

In addition to HCFA's exceptions about the ALJ's determination that Petitioner's staff kept R3's physician informed and properly carried out his instructions, which we have rejected above, HCFA excepted to the ALJ's statements that he could not determine "what, if anything, Petitioner should have done differently" and that "the only deficiencies that may have contributed to R3's condition were the result of her treating physician's action or lack thereof" (ALJ Decision at 5-6). HCFA argued that if a physician does not come to see a resident who should be seen by a physician, the facility should contact its medical director. Consequently, according to HCFA, the nurses were required by regulation, 42 C.F.R. �� 483.40(a)(2) and 483.40(d), to go over R3's physician's head, to Petitioner's medical director, for guidance and appropriate medical services. HCFA Br. at 13-15; HCFA Reply Br. at 4-6.

Again, we conclude that the ALJ's factual findings about Petitioner's actions were supported by substantial evidence on the record as a whole. See generally evidence cited in the ALJ Decision at 6. The ALJ relied particularly on testimony by the surgeon who ultimately repaired R3's prolapse in concluding that the initial and subsequent instructions given Petitioner's staff by R3's physician were reasonable for her condition as initially and subsequently assessed. R3's physician decided when informed about the prolapse on May 9 to wait until his already scheduled visit for May 12, with the proviso that he be called if R3 exhibited any pain or bleeding. The surgeon testified that there was no significant bleeding, that the prolapse was neither necrotic or gangrenous, and that R3's situation was clearly not life threatening. ALJ Decision at 6.

We have noted that a facility has no regulatory obligation to dispute a doctor's medical judgment in resolving an ambiguous set of medical indicators to arrive at a diagnosis or to challenge a treatment order that was not on its face inappropriate for the diagnosis. Spring Hill at 44. The ALJ assessed the evidence before him and concluded that R3's physician's orders were consistent with the circumstances presented to him and did not change significantly even after the initial diagnosis was corrected. The ALJ therefore found no evidence of circumstances requiring a different course of action by the nursing staff. There is substantial evidence in the record supporting the ALJ's findings that R3's condition was frequently assessed by Petitioner's staff and her physician's instructions as to her care were properly carried out. We therefore reject HCFA's exception to this FFCL.

FFCL 11. HCFA's determination that Petitioner's conduct with regard to R3 constituted noncompliance with participation requirements such that it constituted immediate jeopardy to R3 is clearly erroneous.

HCFA contended that this FFCL is contrary to substantial evidence and clearly erroneous as a matter of law. Generally, HCFA contended that if we reversed the other three FFCLs, there would be no basis to sustain this one. Relying on Woodstock Care Center, DAB No. 1726 (2000), HCFA asserted that the determination of the likelihood of serious injury or harm is measured from the time of the event that triggered the facility's duty of care. Here, HCFA suggested, the initial discovery of the prolapse and subsequent chain of events mandated that the ALJ uphold the cited deficiencies. HCFA Br. at 15-16; HCFA Reply Br. 6-7.

Having found that FFCLs 8, 9 and 10 are neither erroneous nor unsupported by substantial evidence in the record as a whole, we conclude that it follows that FFCL 11 is correct.

Judith A. Ballard

Cecilia Sparks Ford

M. Terry Johnson
Presiding Board Member

1. This regulation was redesignated as 42 C.F.R.
� 483.20(k)(3)(i) on March 23, 1998. See ALJ Decision at 2, n.1.

2. A prolapse is a protrusion of tissue through a muscle which normally contains the tissue.

3. In its appeal from the ALJ Decision, HCFA erroneously indicated that R3's doctor was first contacted on May 10^th. HCFA Br. at 7; but see HCFA Ex. 18 at 4.

4. The delay between admission and surgery resulted from the surgeon's desire to have R3 on a liquid diet for several days prior to surgery to reduce the chances of surgical and post-operative complications. ALJ Decision at 3.

5. There were three reports of pain in the nurses' notes, but those were in reaction to the nurses' attempts to push the prolapse back into place, rather than from the prolapse itself. Tr. at 37, 44-45. A HCFA witness conceded as much. Tr. at 74, 85-86.

6. For example, while a surveyor testified that she had spoken with R3's physician and that he had denied knowledge of R3's bleeding or pain, Tr. at 59, the ALJ gave little weight to this testimony, observing that what HCFA characterized as bleeding was no more than staining, that even upon admission to the hospital there was no significant bleeding, and that R3's complaints of pain surfaced only hours before examination by her physician. ALJ Decision at 6.