Decision No. CR626
Department of Health and Human Services DEPARTMENTAL APPEALS BOARD Civil Remedies Division |
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IN THE CASE OF | ||||||||||
SUBJECT: Greenbriar Convalescent Center, |
DATE: November 9, 1999 | |||||||||
Petitioner, - v - |
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The Health Care Financing Administration. | Docket No.C-97-431
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DECISION | ||||||||||
I decide that
Greenbriar Convalescent Center, Petitioner, was not in substantial compliance(1)
with certain requirements specified in 42 C.F.R. � 483.25(h)(2) and 42 C.F.R.
� 483.70(a).(2) I affirm that the civil money
penalty (CMP) imposed by the Health Care Financing Administration (HCFA)
is authorized.
Background |
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A.
Procedural history and background facts The Ohio Department of Health
conducted a survey of Petitioner from March 11 until March 20 of 1997.(3)
It found that Petitioner was not in substantial compliance with several
Medicare and Medicaid participation requirements for long term care facilities.
The surveying agency also concluded that one aspect of Petitioner's noncompliance
had placed the health and safety of one resident in immediate jeopardy.
After conducting a follow-up survey to ascertain Petitioner's correction
of the cited problems, the Ohio Department of Health found that Petitioner
had attained substantial compliance with program participation requirements
as of May 9, 1997. HCFA adopted the findings made by the Ohio Department of Health and imposed a CMP for the period of noncompliance from March 16, 1997 through May 8, 1997. The penalty imposed was $3,050.00 per day for two days of immediate jeopardy(4) and $50.00 per day for the 52 days after the initial two days. The total penalty amount was $8,700.00. HCFA Br., 1. Petitioner requested a hearing,
and the case was assigned to me for appropriate proceedings. After presenting
their evidence at an in-person hearing held in Columbus, Ohio, the parties
submitted posthearing briefs. I base my decision in this case on the governing
law, the evidence I received at hearing, and on the parties' arguments
as expressed in their briefs. |
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ISSUES | ||||||||||
HCFA has alleged that Petitioner
failed to comply substantially with the relevant regulations requiring
adequate supervision for the prevention of accidents, review of resident
assessments, and proper documentation of medication therapy in clinical
records. See 42 C.F.R. �� 483.25(h)(2), 483.20(b)(5), and 483.75(1)(1).
Additionally, HCFA has alleged that Petitioner failed to comply substantially
with three fire safety requirements: the requirement that doors fit tightly
and have operating latching mechanisms; the requirement relating to the
integrity of fire walls; and the requirement for smoke alarm sensitivity
testing. The three safety requirements are set forth in the Life Safety
Code, incorporated into the Code of Federal Regulations by reference as
explained more fully below. See 42 C.F.R. � 483.70. I do not have before me any
issue concerning the reasonableness of the daily CMP rate that was determined
by HCFA. Petitioner contends that it was in substantial compliance with
the cited regulatory requirements during the relevant period. If proven
true, the entire CMP amount must be set aside. See 42 C.F.R. �
488.430(a). Otherwise, if I uphold HCFA's determination that Petitioner
was out of compliance from March 16 through May 8, 1997, I would not be
able to reduce the $50 imposed by HCFA for each of those 52 days. Similarly,
if I uphold HCFA's finding of noncompliance at the "immediate jeopardy"
level for March 16 and 17, 1997, I would not be able to reduce the $3,050
assessed by HCFA for each of those two days. The rates of $50 per day
and $3,050 per day are the very lowest amounts which may be assessed,
respectively, for noncompliance which is not "immediate jeopardy," and
for noncompliance which is "immediate jeopardy." 42 C.F.R. � 488.438(a).
The regulation sets the CMP rates in $50 increments, and I cannot reduce
the CMP amount to "0" if HCFA had a factual basis for imposing the penalty.
42 C.F.R. � 488.438(a) and (e)(1). As I will discuss in greater detail below, I need not resolve all issues concerning all of the noncompliance citations issued by HCFA against Petitioner. HCFA has the authority to assess the CMP at the $50 per day rate so long as there is one valid citation of noncompliance. 42 C.F.R. �� 483.430(a), 483.438(a). HCFA has the authority to impose a CMP at the $3,050 rate so long as there is one valid citation of noncompliance at the "immediate jeopardy" level. Id. Applicable
law and regulations i. Federal
authority to impose enforcement remedies Under federal law, Petitioner
is classified as a long-term care facility as well as a skilled nursing
facility under section 1819 of the Act and as a nursing facility under
section 1919 of the Act. In order to participate in the Medicare program,
a long-term care facility must comply with federal participation requirements.
The statutory requirements for participation by a long-term care facility
are contained in the Act, at sections 1819 and 1919. Regulations governing
the participation of a long-term care facility are published in 42 C.F.R.
Part 483. Sections 1819
and 1919 of the Act give the Secretary of the United States Department
of Health and Human Services (Secretary) authority to impose CMPs against
a long-term care facility for failure to comply substantially with participation
requirements. The authority is derived from section 1128A of the Act as
elucidated in sections 1819(h)(2)(B)(ii) and 1919(h)(3)(c)(ii). Sections
1819 and 1919 provide that the provisions of section 1128A, other than
subsections (a) and (b), shall apply to a civil money penalty, imposed
under either section 1819 or 1919 in the same manner as such provisions
apply to a penalty proceeding under section 1128A(a). ii. Evidentiary burdens and standards Under the Departmental Appeals
Board (DAB) decision in Hillman Rehabilitation Center, DAB No.
1611 (1997), HCFA bears the burden of coming forward with evidence sufficient
to establish a prima facie case that Petitioner failed to comply with
participation requirements. Once HCFA establishes a prima facie case of
noncompliance, Petitioner assumes the burden of moving forward with evidence
sufficient to establish the elements of any defense or affirmative argument
it offers. To prevail, Petitioner must prove by a preponderance of the
evidence on the record as a whole that it was in substantial compliance
with the statutory and regulatory requirements in controversy. Hillman,
at 3 - 8. The regulations specify that
in CMP cases involving skilled nursing facilities and nursing facilities,
the level of noncompliance determined by HCFA must be upheld unless it
is clearly erroneous. 42 C.F.R. � 498.60(c). When HCFA determines that
the level of noncompliance is that of "immediate jeopardy" to residents,
the CMP imposed by HCFA must be in the upper range of the penalty amounts
($3,050 to $10,000 per day). 42 C.F.R. �� 488.408(d)(3)(ii) and (e)(iii),
488.438(a). |
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FINDINGS OF FACT AND CONCLUSIONS OF LAW | ||||||||||
Several entries in the nursing
notes indicated that Resident 28 had been leaving through Petitioner's
front door. Those notes indicated also that she was able to leave the
facility unnoticed several times on the same day. On March 16, 1997, while
the survey was being conducted, Resident 28 wandered outside of the facility
by herself four separate times before she was escorted back by Petitioner's
staff. HCFA Ex. 1 at 11; P. Ex. 41 at 359 - 60. At the time of the survey,
Resident 28 occupied the first room in Petitioner's "B" wing, which led
directly to Petitioner's front door. Petitioner's front door then opened
onto a circular drive and a parking lot used by cars and ambulances. The
parking lot led into a public street in a residential area. Near Petitioner's
front door were also other public roads and a two lane highway called
Dogwood Ridge. Tr. 37, 39, 215 - 17, 239 - 40. Petitioner did not have
an enclosed outdoor area for its residents' use at the time of the March
1997 survey. Tr. 40. The testimony of witnesses
at the hearing establishes that Resident 28 used to leave through Petitioner's
front door, which was close to her room, and the front door did not have
an alarm on it. Tr. 37, 45. A large number of visitors came in and out
of the front door on a 24-hour basis. Tr. 293. Petitioner provided no
monitoring of its front door on a regular basis even though a business
office and a nursing station were located nearby. Tr. 38, 322 - 23. On March 18, 1997, while the
survey was still being conducted, Petitioner moved Resident 28 away from
the front door and placed her in a different room in another wing which
had alarms on its exits. Tr. 37, 45 - 46, 219. HCFA acknowledges that
Resident 28 has not wandered away from the building since Petitioner moved
her into the different room on March 18, 1997. Tr. 51, 220. HCFA posits that, given Resident
28's cognitive and memory impairments, Petitioner's failure to provide
adequate supervision for her inclination to wander from the facility had
placed her at risk for sustaining serious harm, injury, or death. HCFA
Br. at 17 - 18. HCFA determined that noncompliance at the "immediate jeopardy"
level had resulted due to Petitioner's failure to provide supervision
in accordance with the requirements of 42 C.F.R. � 483.25(h)(2).
42 C.F.R. � 488.301(emphasis
added). Moreover, the regulation codified at 42 C.F.R. � 498.60(c) specifies
that I must affirm a finding of immediate jeopardy unless I find that
HCFA's determination was clearly erroneous. Applying the content of these
regulations to the above incontestable facts HCFA has culled from Petitioner's
own records concerning Resident 28's known mental deficits and her repeated
unnoticed departures from the facility within a period of about three
months during winter, I conclude that HCFA has made a prima facie showing
that Petitioner was out of substantial compliance with 42 C.F.R. � 483.25(h)(2)
for Resident 28 and that the noncompliance was at the immediate jeopardy
level for this resident. The CMP rate for "immediate jeopardy" was imposed by HCFA for only two days: March 16 and March 17, 1997. For March 16, 1997, the evidence shows that, while the survey was being conducted, Resident 28 had left the building unnoticed four times. P. Ex. 41 at 359. Between 5:26 and 5:55 P.M. of that day, Petitioner's staff brought Resident 28 back three times. Id . No unnoticed departure was reported for March 17, 1997. However, as noted previously, Petitioner did not move Resident 28 to a room located away from the front door and in a wing with alarms on the exits until March 18, 1997. Even though the evidence establishing
HCFA's prima facie case does not show that Resident 28 was at greater
risk on March 16, 1997 and March 17, 1997 than on any of the other days
during the preceding three months, I cannot assign clear error to HCFA's
decision to assess a CMP at the "immediate jeopardy" rate ($3,050 per
day) for only those two days. HCFA's notice letter stated that "[t]he
documentation indicates that there were other days of immediate jeopardy."
HCFA Ex. 5. Additionally, since HCFA has the discretion to choose which
(if any) enforcement remedy to impose, HCFA's waiver of its right to impose
a CMP at the "immediate jeopardy" rate for any of the additional days
prior to March 16, 1997 is beyond the scope of my authority to consider.
See 42 C.F.R. �� 498.3, 488.438(e)(2). As a preliminary matter to defending against the noncompliance citation relating to Resident 28, Petitioner has developed a line of argument concerning the communication between the Ohio Department of Health and HCFA. Petitioner posits that I should give weight to the seeming reluctance of HCFA to agree to the immediate jeopardy determination as an indication that HCFA's ultimate adoption of that determination was motivated by something other than an impartial review of the facts and circumstances concerning Resident 28. However, HCFA's motives are not actionable in these proceedings. No matter what factors may have motivated HCFA to adopt the State surveying agency's conclusions for Resident 28, both parties have had the opportunity to place into the record evidence which I have analyzed in accordance with the evidentiary burdens outlined in Hillman, above, and with application of the "clearly erroneous" standard specified by 42 C.F.R. � 498.60(c), where appropriate. Analyzed in such a manner, Petitioner's evidence and arguments concerning Resident 28 are unpersuasive, and Petitioner has not proven that its care of Resident 28 was in substantial compliance with the requirements of 42 C.F.R. � 483.25(h)(2). Petitioner has also failed to show that HCFA's immediate jeopardy determination for Resident 28 was clearly erroneous. Petitioner also disputes HCFA's
noncompliance findings by arguing that it would have been illegal to restrain
Resident 28, and, in any event, the potential for harm to this resident
was only minimal and no more unusual than those which would be present
for any individual who chooses to walk outside alone into areas which
Petitioner considers to be safe. Both lines of arguments rest on the fact
that Resident 28 has not been adjudicated mentally incompetent. In a recent decision involving
like fact patterns, I rejected defenses very similar to those now before
me. Heath Nursing and Convalescent Center, DAB CR610 (1999).(5)
The Heath case also involved a long-term care facility's failure
to provide adequate supervision for a cognitively impaired resident who
had not been adjudicated mentally incompetent, but who had a history of
wandering off unnoticed without having ever sustained any serious injury
while he was away. I explained several legal conclusions which are equally
applicable to my rejection of Petitioner's evidence and arguments herein
concerning Resident 28. In the Heath decision,
I noted that neither 42 C.F.R. � 483.25(h)(2) nor the regulatory definition
of "immediate jeopardy" may be interpreted as meaning that the wandering
resident must necessarily suffer actual or discernable harm. Heath
at 11, 14. A facility participating in the Medicare and Medicaid programs
is required by law to provide adequate supervision for the purpose of
preventing accidents, which are, by definition, occurrences which are
outside of the victim's expectations or ability to control. Id.
at 11. Therefore, the fact that the resident had not suffered any actual
injuries in the past while he was without supervision does not prove that
this resident was immune from the risk of accidents, or that the facility
was without an obligation to help prevent accidents from occurring by
complying with 42 C.F.R. � 483.25(h)(2). Id. I held also that,
even if a resident had the mental capacity to make the choices alleged
by the facility, the facility may not abdicate its responsibility to provide
supervision that is adequate and appropriate to enabling this resident
to exercise and effectuate his choices safely, without placing his health
at risk for more than minimal harm. Heath at 5.
I explained that, while 42 C.F.R. � 483.25(h)(2) does not impose strict
liability upon the facility for instances where a resident wanders unsupervised,
the relevant inquiry is whether there was supervision which was adequate
for the resident's situation. Id. At 6. In this case, even Petitioner's records show that Resident 28 needed supervision. She was not like the majority of people walking about outdoors in the same area, as suggested by Petitioner's arguments.(6) Resident 28 was in the care of Petitioner, a Medicare and Medicaid certified long-term care facility. These facts alone would distinguish Resident 28 from the average person walking about unsupervised outside of Petitioner's building. She is also different from others likely to be walking unsupervised in the area because she has mental impairments and was placed into Petitioner's care for reasons that are significantly linked to her wandering tendencies, as shown by Petitioner's own records. Treva Ellison, Petitioner's Director of Nursing, gave testimony showing that Petitioner was aware that Resident 28's family had placed her in Petitioner's care so that she would receive appropriate supervision for her wandering tendencies. According to Ms. Ellison, Resident 28 was transferred from another facility which did not feel it had enough people to properly "keep tabs" on Resident 28, and because Resident 28's incontinence was increasing, and she was--
Tr. 348. I was not persuaded by Petitioner's
arguments about the absence of actual harm to Resident 28 on 22 prior
occasions, nor was I persuaded by Petitioner's complaint that HCFA's witnesses
had relied on speculations to conclude that Resident 28 has been at risk
for sustaining more than minimal injuries.(7)
It was appropriate for HCFA to rely on the provisions of the law which
permitted it to determine the existence of noncompliance and "immediate
jeopardy," respectively, on the basis of whether there is a "potential"
for more than minimal harm to the resident, and whether the noncompliance
is "likely to cause" serious injury to the resident, respectively. 42
C.F.R. � 488.301. Unlike Petitioner, HCFA and the surveyors did not have
the responsibility for providing care to Resident 28. Therefore, unlike
Petitioner, they had no duty to observe or supervise her activities on
a daily basis. HCFA and the surveyors could not have been expected to
know first hand precisely what circumstances were encountered by Resident
28 after Petitioner allowed her to wander outside by herself. Petitioner
itself had no first-hand knowledge of what this resident had encountered
during her previous 22 elopements. In the foregoing context, HCFA's
witnesses properly provided their professional opinions on the issue of
whether there was the potential for more than minimal harm and whether
there was the likelihood of serious injury to the mentally impaired resident,
whom Petitioner had already allowed to leave unnoticed and unaccompanied
on 22 prior occasions, on her walks outdoors during the winter months
in Ohio. Their opinions were logical and consistent with the contemporaneous
records generated by Petitioner. Contrary to the arguments submitted to
justify the dereliction of its supervision responsibilities, notes taken
by Petitioner's nursing staff upon Resident 28's return mention, for example,
her complaints of having become too cold while walking in the falling
snow with a blanket on her during the morning of February 9, 1997, and
of feeling sick and holding her stomach when she was returned from the
outside after two additional unsupervised wandering episodes later that
same day. P. Ex. 41 at 104, 259. It was, of course, Petitioner's good
fortune that this mentally impaired resident committed to Petitioner's
care had been found and was returned on 22 occasions without showing any
visible wounds or injuries, despite Petitioner's willingness to allow
Resident 28 to wander outside its building unnoticed and at will from
December 1996 until March 18, 1997. However, Petitioner's good fortune
did not prove that it was in compliance with the requirements of 42 C.F.R.
� 483.25(h)(2). I reject also Petitioner's
arguments that it should be found in compliance with 42 C.F.R. � 483.25(h)(2)
because it could not lawfully use physical restraints on Resident 28 or
confine her (P. Br., 40 - 41), because physically restraining this resident
"to keep her from walking" would have caused her to "become agitated,
hostile and potentially injurious to herself and others" ( P. Br., 26
), and because Petitioner felt that "the greater risk to Resident #28
would lie with trying to prevent her ambulation rather than allowing her
to walk indoors and/or outdoors" (id.). These arguments seek to
make issues of non-issues. The applicable legal requirement is adequate
supervision for the prevention of accidents to Resident 28, as measured
against her needs and limitations. No one, except Petitioner, by use of
its inapposite arguments, has suggested confining Resident 28 or restraining
her from walking altogether inside or outside of the building. Petitioner has wrongly equated
the supervision requirement of 42 C.F.R. � 483.25(h)(2) with the use of
physical restraints against Resident 28. Petitioner's arguments about
its inability and unwillingness to physically restrain Resident 28 suggest
that there existed no other reasonable means for providing adequate supervision
of her. The equation and suggestions posited by Petitioner are incorrect
as a matter of law, and they are disingenuous on the face of this record. HCFA has never indicated that
Resident 28 should be physically restrained from walking. Nor has HCFA
asked Petitioner to keep Resident 28 indoors at all times. The regulation
cited by HCFA, 42 C.F.R. � 483.25, states very clearly that Petitioner
must provide supervision services which would allow the resident to attain
and maintain her highest practicable level of physical, mental, and psychological
well-being. The record evidence in this case establishes not only Petitioner's
awareness that physical restraint was not necessary, but also Petitioner's
knowledge during the relevant time period that less drastic, reasonable,
and readily available measures were appropriate for bringing itself into
compliance with the supervision requirements of 42 C.F.R. � 483.25. When Petitioner was informed
of the "immediate jeopardy" citation pursuant to the March 1997 survey,
it changed Resident 28's room from one that was near the facility's front
door (which did not have an alarm on it and through which this resident
had wandered repeatedly), to another room in a wing which did have alarms
on its doors and which had constant monitoring from the nursing station.
E.g., HCFA Ex. 1 at 12; P. Ex.1 at 23; Tr. 37 - 38. When a resurvey was
conducted on May 29, 1997, the team found that Resident 28 had not wandered
alone outside of the facility since Petitioner had changed her room location.
Tr. 50 - 51. Psychologists involved in Petitioner's care of Resident 28
also indicated that changing the location of her room seemed sufficient
for dealing with her wandering behavior. P. Ex. 1 at 5 - 6; P. Ex. 41
at 80. Nothing of record shows that
it was impossible or unfeasible for Petitioner to change the location
of Resident 28's room until March 18, 1997. Additionally, in order to
properly supervise her Petitioner was not required to keep Resident 28
inside its building at all times. The testimony introduced by HCFA shows
also that Petitioner would not have been found out of compliance with
the requirements of 42 C.F.R. � 483.25(h)(2) if, for example, Petitioner
had assigned a staff member to accompany Resident 28 on her walks outside
of the facility, instead of having allowed her to wander outside alone
and unsupervised. Tr. 21, 42, 44 - 47, 247, 254. Accordingly, I reject
Petitioner's argument that it had no choice but to allow Resident 28 to
wander away from its building at will because there was no legal or reasonable
means for supervising her movements. For the reasons set forth above,
I find that Petitioner was not in substantial compliance with 42 C.F.R.
� 483.25(h)(2) for Resident 28, who was placed into a situation of "immediate
jeopardy" by Petitioner's noncompliance.
While inspecting Petitioner's physical structure for compliance with the Life Safety Code, the May 1997 survey team found three groups of problems. HCFA agreed with the surveyors' conclusion that each group of deficiencies was at a level which evidenced Petitioner's failure to comply substantially with federal program participation requirements. HCFA Ex. 1 at 20, 21, 24. HCFA determined also that said noncompliance lasted 52 days, from March 18, 1997 until and including May 8, 1997. HCFA then assessed a CMP for that period at the rate of $50 per day. During the May 1997 survey,
the 1973 edition of the Life Safety Code was used. HCFA acknowledges in
its posthearing brief that there exist also a 1985 edition and a 1967
edition of the Code. However, HCFA interpreted the exceptions provided
by 42 C.F.R. � 483.70(a) as authorizing the use of the 1973 edition for
a facility such as Petitioner, which had been in operation since the late
1960's. HCFA Br., 46 - 47. In its posthearing brief, Petitioner
takes exception to HCFA's use of the 1973 Life Safety Code. No such objection
had been raised previously. However, Petitioner argues in its posthearing
brief that no rational explanation has been provided by HCFA as to why
the 1973 edition had been used. P. Br., 42. Petitioner contends that at
page 46 of HCFA's posthearing brief, HCFA noted that either the 1967 or
1973 edition would apply to Petitioner because it had been in operation
since the late 1960's. P. Br., 42. Petitioner's description of HCFA's position is not entirely accurate. In mentioning both the 1967 and 1973 editions of the Code, HCFA was summarizing the regulatory exceptions, which state in pertinent parts:
Given HCFA's knowledge that Petitioner has been in operation since the late 1960's, HCFA appears to have made an assumption that, as of November 26, 1982, Petitioner must have already been found in compliance with either the 1967 or the 1973 edition of the Life Safety Code, or with both editions. To date, Petitioner has not disputed the validity of this assumption, which appears to be a facially reasonable one. Nor has Petitioner disputed HCFA's determination to apply section 483.70(a)(1)(i) as an exception to using the 1985 edition of the Code. Therefore, the only remaining question left under this regulatory exception was whether Petitioner "continues to remain in compliance with those editions of the Code" (42 C.F.R. � 483.70(a)(1)(i)) when the May 1997 survey was conducted. Given the regulation's requirement
for compliance with "those editions of the Code" (emphasis added),
together with Petitioner's failure to object to HCFA's use of the 1973
edition in the request for hearing or when evidence was being received
in this case, I find that HCFA had the right to use only the 1973 edition
to make the prima facie showing of Petitioner's noncompliance. At the
hearing, HCFA had the burden of coming forward with evidence related to
disputed findings that was sufficient (together with any undisputed findings
and relevant legal authority) to establish a prima facie case that HCFA
had a legally sufficient basis for its determination. Hillman at
8. It was not until after the close of the evidence in this case that
the 1973 edition of the Code became a disputed legal authority. I formally
closed the evidentiary record in this case on the last day of the hearing.
Tr. at 462. Petitioner was on notice prior
to and during the hearing that the physical environment citations had
been made only under the provisions of the 1973 edition. I note, for example,
that HCFA's Exhibit 2 is titled "Fire Safety Survey Report - 1973 Code,"
and it was completed for the May 1997 survey. HCFA Ex. 2 at 1. Prior to
the hearing, HCFA had provided a copy of this same document to Petitioner
as a proposed exhibit in accordance with my prehearing directives. If
Petitioner believed that it was in compliance with the requirements of
either the 1967 edition or the 1985 edition, and such compliance was material
to the outcome of this case, Petitioner had the opportunity to raise those
matters as affirmative defenses and submit evidence to prove the affirmative
defenses at the hearing. Petitioner did not make use of these opportunities.
Nor has Petitioner shown good cause for excusing its failure to timely raise any issue as to whether the 1967 or 1985 edition should have been used instead of the 1973 edition. Since Petitioner has never suggested that the problems identified by HCFA under the 1973 edition would not have resulted in noncompliance findings under the 1967 Code, there is no basis for believing that HCFA's use of the 1973 edition constituted prejudicial error. The record is devoid of any indication that I should now review the requirements of the 1967 or 1985 edition in the interest of fairness or to avoid causing injustice to Petitioner. For these reasons, I reject
for being untimely and insubstantial Petitioner's intimations that HCFA
might have used the incorrect edition of the Life Safety Code.(8)
HCFA and the Life Safety Code
surveyor interpreted the foregoing requirements as meaning that each corridor
door must be able to close tightly into its door frame, and each such
tightly fitted door must have a working latch that would keep the door
tightly closed within its frame. As the Life Safety Code surveyor, Louise
Mauch, explained at hearing, each door in the corridor must fit tightly
into the frame to avoid smoke from passing through, and each such door
should also have a working latch in order to prevent the door from swinging
open with air currents to let smoke pass through. Tr. 135 - 37. These
requirements were intended to contain smoke and fire in specific areas,
for the safety of nursing home residents. Id. Ms. Mauch made her inspection
during May 1997 in the company of Petitioner's maintenance and housekeeping
supervisors, and she found several corridor doors which did not meet the
above-cited code requirements. HCFA relies on her findings concerning
six corridor doors located at various sites in Petitioner's building to
support its conclusion that the violations of Section 10-2327 of the 1973
Life Safety Code constituted noncompliance because, even though no resident
had suffered actual harm, the violation had the potential for causing
widespread harm at more than minimal level to Petitioner's residents.
See , e.g., HCFA Br., 47 - 53. HCFA relies on Ms. Mauch's
findings that four corridor doors leading to utility rooms did not have
any latching mechanism on them. These four doors were located at different
wings of the facility (A Wing and C-D Wing). Additionally, she also found
that the one panel of the double paneled door leading from the corridor
to a large dining room would not latch into the doorframe when it was
closed. She testified about the unsuccessful attempts she and Petitioner's
maintenance supervisor had made to have the one panel of the dining room
door go into the latched position. The sixth problem door identified in
this group of citations was the corridor door leading to the D-Wing Central
Supply Room. Ms. Mauch found a gap located at the top of this corridor
door to the supply room, between the door itself and the door frame. She
described the gap as of the size through which one could probably stick
an index finger. Tr. 447. B. HCFA's proof concerning
various smoke walls Section 6 - 611of the Life Safety Code (1973 edition) states in relevant part:
The May 1977 survey report
shows 12 areas wherein holes or gaps were found in Petitioner's fire walls.
HCFA Ex. 1 at 4 - 5. Ms. Mauch, one of HCFA's witnesses
at the hearing, explained why Petitioner was cited for its failure to
maintain its smoke walls in accordance with the above-quoted Life Safety
requirements. She testified that she inspected those walls during the
May 1977 survey in the company of Petitioner's maintenance supervisor.
She inspected those walls from the floor to their highest points, which
is usually above the ceiling tiles suspended from what is called a "drop
ceiling." Tr. 125 - 26, 133. She said she inspected those walls above
the ceiling tiles and in the attic areas with the use of a flashlight
and a ladder, and she had Petitioner's maintenance supervisor verify her
findings at the same time. Id. To prove Petitioner's noncompliance,
HCFA especially relies on the following holes and gaps described by Ms.
Mauch in her testimony. Ms. Mauch discovered three openings on the same wall above the isolation room through which smoke could have penetrated. One was an unsealed hole of approximately six inches by six inches in diameter. Another space was found on the same wall around the perimeter of a two inch "pipe chase," the pipe into which wires are placed to traverse a wall. Neither area had been sealed. Tr. 127 - 28. Additionally,
the center of the pipe chase had not been plugged. In Ms. Mauch's opinion,
smoke could also have penetrated this fire wall through the unplugged
pipe chase. Id . An additional problem especially
relied upon by HCFA was found by Ms. Mauch in the smoke wall above Room
2. This wall also had two problems: a drywall seam three feet in length
which had not been sealed around two metal supports, and a two-inch gap
at the top of the wall between the roof support and the portion of the
drywall that had been cut out to go around that support. Tr. 130 - 31.
HCFA also elicited testimony
from Ms. Mauch concerning the holes and gaps she found in the smoke wall
over Room 13, in the smoke wall by the computer room, and in the smoke
wall by the chapel and the computer room. Tr. 132. She acknowledges that
holes must be cut into the walls in order to run pipes, wires, and ducts
through walls. She acknowledged also that such holes must be cut larger
than what is intended to go through them. However, she provided her opinion
that the one inch hole in the block wall by the chapel and computer room
should not have been left unplugged when nothing had been run through
it. Tr. 132 - 33. She testified also that, after wires and ducts have
been placed through the holes made in the smoke wall above Room 13 and
in the computer room, the remaining gaps should have been sealed to avoid
the penetration of smoke. Tr. 132. C. Petitioner's defenses
Petitioner's response to most
of the foregoing evidence is that its building is old, has seen heavy
use, and is large in size.(9) Instead of
denying the existence of apertures in the smoke barrier walls and around
those corridor doors identified by the Life Safety Code surveyor, Petitioner
committed much effort towards explaining the likely causes of those apertures.
Petitioner introduced proof that weather and climate changes, the age
of the building, as well as outside contractors who have worked there,
were all possible causes. Nor did Petitioner contend
that all of its corridor doors had functioning latches which would have
enabled those doors to close tightly against their frames during the 52
days in controversy. Instead, Petitioner attempted to show that Ms. Mauch's
inspection for latches was not sufficiently thorough because she could
not state with certainty at the hearing on which part of the the dining
room door panel the broken latch was located. She knew only that the one
door panel would not latch tightly against the door frame when she and
Petitioner's maintenance supervisor had made their attempts during the
March 1977 survey. Petitioner relies on the fact
that it had a full-time maintenance staff, and the maintenance staff was
supposed to deal with matters like the out-of-code doors and fire walls.
However, Petitioner did not attempt to show whether or when its maintenance
staff had attempted to repair the problems identified by Ms. Mauch during
March 1977. Nor did Petitioner offer any evidence to show that, after
the March survey, the necessary repair work had been completed prior to
the May 9, 1997 date determined by HCFA. Based primarily on the fact
that it employed four full-time maintenance workers during the period
in controversy, Petitioner argues that HCFA's findings of noncompliance
with Life Safety Code requirements should be set aside because HCFA has
offered no evidence that Petitioner's staff had wilfully ignored the maintenance
and upkeep of the building , and because HCFA has failed to establish
that Petitioner's maintenance staff had allowed the conditions identified
during the survey to persist over an unreasonable period of time. P. Br.,
44. I reject Petitioner's arguments.
These arguments are not in accord with its burden of moving forward with
evidence to rebut HCFA's evidence, nor with its burden of persuasion. HCFA has proven a prima facie
case against Petitioner. The relevant Life Safety Code provisions relied
upon by HCFA apply whether or not a nursing home is large and old. They
do not permit holes or gaps in smoke walls. Nor does the Code allow some
corridor doors to have gaps or to swing open freely because a facility
has hundreds of doors throughout the entire building. Smoke will penetrate
through gaps and holes no matter how many doors are in the building, and
no matter the building's size and age. Neither the existence of those
problems identified by HCFA, nor the potential dangers to residents, have
been materially affected by Petitioner's proof of their likely causes.
In the event of fire, smoke could have penetrated certain of Petitioner's
barrier walls and corridor doors whether or not the gaps had been caused
by weather changes, the work done by outside contractors, or the inattention
of Petitioner's own maintenance staff. Similarly, the risks to Petitioner's
residents were not lessened by Petitioner's proof that the surveyor had
failed to note precisely where a non-functioning latch was located on
the dining room door that could not be closed tightly against its frame.
Petitioner's residents were placed at risk for more than minimal harm
by corridor doors which could not be kept closed tightly against their
frames either because they lacked the required latches or because the
latches did not function properly. The surveyor's inability to identify
the location of an improperly functioning door latch has no bearing on
the validity of her testimony that this door, along with other corridor
doors, could not be kept closed tightly against the door frames. Even though Mr. Lawson, Petitioner's
past owner and current president of the company which operates the facility,
gave testimony concerning his opinion that the dining room door's upper
latch was functioning properly, that opinion was apparently based on information
provided to him by others. Mr. Lawson was not present when Ms. Mauch inspected
the double-paneled dining room door and determined that the latching mechanism
on one panel was not functioning. The supervisor of Petitioner's maintenance
department was not called by Petitioner to testify about what he saw on
the inspection tour with Ms. Mauch. Therefore, I gave more weight to Ms.
Mauch's testimony on this point than to Mr. Lawson's. Moreover, even if
this door panel had latched when Mr. Lawson or Petitioner's employees
tested it, that fact would still not invalidate Ms. Mauch's finding that
it had not latched when she made her inspection. The relevant Life Safety
Code requirement does not permit a corridor door to have a latch that
works occasionally or unpredictably. Contrary to what has been implied
by Petitioner's defenses, there was no allegation by HCFA that the above
described Life Safety Code violations were committed intentionally by
Petitioner. Nor does the definition of noncompliance mention intent. Petitioner
was also without legal basis for suggesting that HCFA was under a duty
to prove that Petitioner's maintenance staff had been dilatory in performing
the work relevant to the matters in controversy. Petitioner had the burden
of moving forward with evidence sufficient to establish the elements of
any affirmative argument or defense it offered. Petitioner, bearing also
the ultimate burden of persuasion, needed to prove by a preponderance
of the evidence on the record as a whole, that it was in compliance with
the relevant Life Safety Code provisions. It is Petitioner that has failed
in these burdens. To the extent Petitioner was
attempting to show that it should have been found in substantial compliance
because the cited problems with smoke walls and corridor doors were of
very short duration, I find Petitioner's proof inadequate. Petitioner's
showing that it employed a maintenance staff full-time to take care of
its building did not prove that the problems noted by the surveyor had
developed only shortly before the surveyor observed them. Petitioner has
introduced no evidence showing, for example, that any outside contractor
had been drilling holes in its smoke walls shortly before the survey team's
arrival, or that certain unplugged openings occurred due to work that
was being done on the walls while the survey was being conducted. Petitioner
has also introduced no evidence about when, prior to the May 1997 survey,
Petitioner's maintenance workers had last inspected the problem areas
observed by Ms. Mauch. The record contains some testimony that the maintenance supervisor who accompanied Ms. Mauch expressed surprise when the dining room door failed to latch because he thought the problem had recently been repaired. However, there was no evidence presented by Petitioner showing when this repair work was done, or whether it had been performed in fact prior to the May 1997 survey. Petitioner also did not prove that any of the problems identified by HCFA had been eliminated immediately after they were identified by the surveyor. At best, Petitioner's employment of a maintenance staff showed its willingness and capability for coming into compliance with the Code's requirements. It did not prove that Petitioner was in compliance during the May 1997 survey, or that compliance was attained sooner than the date determined by HCFA For the foregoing reasons,
I uphold HCFA's conclusion that Petitioner was out of substantial compliance
with the 1973 Life Safety Code's requirements regarding smoke barrier
walls and corridor doors for the 52 days from March 18, 1997 until May
8, 1997.
In imposing the CMP of $50
per day for the period from March 18 until May 8, 1997, HCFA has alleged
also that Petitioner was out of compliance with additional program participation
requirements, and that other residents' health or safety have been placed
at more than minimal risk as well. I do not find it necessary to determine the merits of those additional determinations. The $50 per day rate is at the very bottom of the CMP scale. 42 C.F.R. � 488.438(a). For the reasons explained in Finding 2 and Finding 3, I have already found that HCFA was authorized to impose the CMP of $50 per day for the 52 days in controversy. HCFA seeks no more than $50 per day for those 52 days. Therefore, my rendering a decision on the remaining citations of noncompliance would serve no useful purpose in this case. |
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CONCLUSION | ||||||||||
I affirm HCFA's determinations of noncompliance for the reasons discussed in my Findings and I authorize HCFA to collect the $8,700 in CMP assessed against Petitioner. |
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JUDGE | ||||||||||
Mimi Hwang Leahy, Administrative Law Judge |
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FOOTNOTES | ||||||||||
(1) The terms compliance and noncompliance are used interchangeably with substantial compliance and substantial noncompliance to convey the meanings indicated in 42 C.F.R. � 488.301. (2) . Citations to the C.F.R. are to 42 C.F.R. Part 430, revised as of October 1, 1996. This is the version of the C.F.R. in effect at the time of the survey. (3) HCFA contracts with state health agencies to conduct surveys of nursing homes' compliance with Medicare and Medicaid participation requirements. Sections 1864 and 1819(a) of the Social Security Act (Act); 42 U.S.C. �1395aa; 42 U.S.C. �1395i-3(g); and 42 C.F.R. � 488.20. (4) HCFA assessed the CMP at the "immediate jeopardy" level for March 16 and 17, 1997. However, its notice letter to Petitioner stated that "documentation indicates that there were other days of immediate jeopardy." (5) Counsel for Petitioner herein also represented Health Nursing and Convalescent Center. Greenbriar is in a rural farm community where people are accustomed to walking and being out of doors. The population here is not accustomed to being confined in any manner. Most of the activities that people in the community participate in are outdoors. (7) Petitioner argued, for example: Mr. Wolf [one of HCFA's witnesses]
did fall short of speculating that a meteorite could impact upon or near
Resident #28, but in the 22 prior occasions that Resident #28 left the
facility unsupervised, there is simply no evidence of any such danger.
In fact, for Resident #28, the record establishes more what is not known
than known. (9) Petitioner emphasized in its brief that its building is 60,000 feet in size, with 150 skilled nursing facility beds and 250 doors; each day numerous visitors, hundreds of volunteers and staff people work throughout the building. P. Br., 43 - 44.
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