SUBJECT:

Britthaven of Goldsboro,

Petitioner,

DATE: March 14, 2003

Centers for Medicare & Medicaid

DECISION

I sustain the determination of the Centers for Medicare & Medicaid Services (CMS) to impose civil money penalties against Petitioner, Britthaven of Goldsboro, in amounts of $100 per day, for each day of a period that began on June 13, 2001, and which ran through September 10, 2001.

I. Background

Petitioner is a skilled nursing facility in Goldsboro, North Carolina. It participates in the Medicare program and is required to comply with regulations that govern its participation at 42 C.F.R. Part 483. Petitioner was surveyed for compliance with federal participation requirements on June 13, 2001 (June 2001 survey). The surveyor, an employee of the North Carolina Department of Health and Human Services (North Carolina State survey agency) found that Petitioner was not complying substantially with several participation requirements. The surveyor returned to Petitioner's facility on July 31, 2001, and determined that Petitioner remained out of compliance with participation requirements (July 2001 survey). Petitioner was found to have attained compliance with participation requirements effective September 10, 2001.

CMS concurred with these findings and determined to impose civil money penalties against Petitioner in amounts of $100 per day for each day of the June 13 - September 10, 2001 period. Petitioner requested a hearing and the case was assigned to me for a hearing and a decision. I scheduled an in-person hearing. The parties then agreed to have the case heard and decided based on their written submissions.

CMS submitted proposed exhibits consisting of CMS Ex. 1 - CMS Ex. 22. Additionally, CMS submitted with its prehearing brief and designated as "Appendix A" the declaration of Barbara Turner. For the purposes of consistency I am identifying this document as CMS Ex. 23. Petitioner submitted proposed exhibits consisting of P. Ex. 1 - P. Ex. 10. Also, Petitioner submitted two attachments with its reply brief. Attachment 1 is the declaration of Robert Levasseur. I am identifying that as P. Ex. 11. Attachment 2 is a copy of decisions that I issued in two cases involving CMS, Hermina Traeye Memorial Nursing Home, CR 756 (2001). It is unnecessary that I identify Attachment 2 as an exhibit inasmuch as it is a copy of a document that is on the public record.

Petitioner objected to admission into evidence of some of CMS's proposed exhibits on grounds that CMS failed to prove the authenticity of these proposed exhibits. I deny this motion. I receive into evidence CMS Ex. 1 - CMS Ex. 23. I also receive into evidence P. Ex. 1 - P. Ex. 11.

II. Issues, findings of fact and conclusions of law

A. Issues

The issues in this case are whether:

1. Petitioner failed to comply substantially with one or more Medicare participation requirements during the period that began on June 13, 2001, and which ran through September 10, 2001; and

2. Civil money penalties in amounts of $100 per day are reasonable.

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 separate heading. I discuss each Finding in detail.

1. Petitioner failed to comply substantially with a Medicare participation requirement during the period that began on June 13, 2001, and which ran through September 10, 2001.

The report of the June 2001 survey identifies two alleged failures by Petitioner to comply substantially with Medicare participation requirements. CMS Ex. 3. The first of these alleged deficiencies is Petitioner's asserted failure to comply substantially with the requirements of 42 C.F.R. � 483.25(a)(3). This regulation requires that a resident who is unable to carry out activities of daily living receives necessary services to maintain good nutrition, grooming, and personal and oral hygiene. Id. at 1 - 2. Additionally, the survey report alleges that Petitioner failed to comply substantially with the requirements of 42 C.F.R. � 483.70(h)(4). This regulation requires a participating facility to maintain an effective pest control program so that the facility is free of pests and rodents.

The report of the July 2001 survey identifies three alleged failures by Petitioner to comply substantially with Medicare participation requirements. CMS Ex. 4. The report alleges a continuing failure by Petitioner to comply substantially with the requirements of 42 C.F.R. � 483.25(a)(3). Id. at 2 - 4. Additionally, the report alleges that Petitioner failed to comply substantially with the requirements of 42 C.F.R. � 483.10(d)(3). Id. at 1 - 2. This regulation provides, among other things, that a resident has the right to personal privacy and confidentiality of his or her personal and clinical records. Finally, the report alleges that Petitioner failed to comply substantially with the requirements of 42 C.F.R.� 483.25(e)(2). This regulation requires that a facility must, based on a resident's comprehensive assessment, ensure that a resident having a limited range of motion receive appropriate treatment and services to increase range of motion and/or to prevent further decrease in range of motion.

As I discuss in this Finding, CMS established a prima facie case which Petitioner did not rebut, by the preponderance of the evidence, that Petitioner failed to comply substantially with the requirements of 42 C.F.R. � 483.25(a)(3), both as of the June 2001 survey and as of the July 2001 survey. And, at Finding 2, I conclude that the seriousness of Petitioner's noncompliance with the requirements of this regulation is sufficient, by itself, to justify civil money penalties of $100 per day for each day of Petitioner's noncompliance. For that reason it is unnecessary for me to discuss Petitioner's alleged failure to comply substantially with other participation requirements.

a. Petitioner failed to comply substantially with the requirements of 42 C.F.R. � 483.25(a)(3) as of the June 2001 survey.

The surveyor's and CMS's allegations of Petitioner's noncompliance with the requirements of 42 C.F.R. � 483.25(a)(3) at the June 2001 survey essentially are that Petitioner's staff failed timely to provide incontinence care for one of its residents. CMS Ex. 3, at 1. The surveyor reported that she interviewed the resident, who is identified in the survey report as Resident # 1, at 9:30 a.m. on June 13, 2001. On that occasion the resident allegedly averred that she had not been cleaned up and that she was wet and dirty. Id. Resident # 1 asserted that she had informed the staff of her condition before breakfast. Id. The resident asserted that, normally, breakfast trays came to the residents' floor at about 7:30 a.m. Id. The resident then showed the surveyor her wet incontinent brief. Id. A nursing assistant was advised of the resident's condition at 9:40 a.m. but the resident did not receive incontinence care until 10:00 a.m. Id.

The evidence offered by CMS consisting of the reported allegations of the resident and the corroborating findings of the surveyor is sufficient to establish a prima facie case that Petitioner failed to provide Resident # 1 with the necessary services to maintain good nutrition, grooming, and personal and oral hygiene. If credible, this evidence establishes that Petitioner's staff allowed the resident to sit or lie in a soiled incontinence brief despite having received complaints from the resident about her condition. Moreover, the evidence is, on its face, sufficient to establish a prima facie case that the resident experienced a potential for more than minimal harm from Petitioner's alleged failure to provide timely continence care. The affront to the resident's dignity and personal comfort from lack of incontinence care is obvious.

Petitioner makes several arguments to challenge CMS's prima facie case. I find these arguments, and the evidence that Petitioner relies on to support them, not to be persuasive.

First, Petitioner asserts that, as a matter of law, 42 C.F.R. � 483.25(a)(3) does not apply to incontinence care. According to Petitioner, the term "personal hygiene" in the regulation is defined elsewhere, at 42 C.F.R. � 483.25(a)(1)(i), to mean only dressing and bathing. This argument is without merit. The section cited by Petitioner does not contain a definition of the term "personal hygiene." Rather, it specifically applies to a facility's duty to assure that a resident's ability to engage in "activities of daily living" do not diminish. The section is plainly intended to address a facility's duty to assure that a resident's self-care skills do not diminish avoidably. By contrast, 42 C.F.R. � 483.25(a)(3), the section that is implicated in this case, addresses the duties of a facility to attend to a resident who is unable to carry out the activities of daily living.

Second, Petitioner admits that it cannot prove that Resident # 1 received timely incontinence care. It acknowledges that it does not maintain records showing when its residents are checked. It admits that the staff who were responsible for caring for the resident as of the June 2001 survey are no longer employed by Petitioner. However, it asserts that, if it cannot prove that it provided timely incontinence care to the resident neither can CMS present a prima facie case showing that Petitioner did not provide such care. In this regard, Petitioner dismisses the resident's complaint to the surveyor as hearsay. And, it contends that CMS cannot substantiate whether any complaints that the resident might have made actually were relayed to Petitioner's staff so that the staff could provide incontinence care to the resident.

Petitioner is correct in characterizing the resident's complaint to the surveyor as hearsay. In other cases I have found statements not unlike that which is attributed to Resident # 1 in the report of the June 2001 survey to be unreliable if not corroborated by credible evidence. Here, however, there is some corroboration. First, and as a matter of logic, the fact that the resident was demonstrably incontinent at 9:30 a.m. on June 13, 2001, suggests strongly that she had been incontinent for some time prior to that time. It would be highly unlikely that the resident would have had an episode of incontinence - both of bowel and of bladder - at the precise moment that she was interviewed by the surveyor. It is, therefore, safe to assume that the resident's incontinence occurred at a time prior to her interview.

Second, the arguable failure of the resident to communicate her need by not complaining to Petitioner's staff about it is not an excuse for failure to provide incontinence care. Resident # 2 was totally dependent on Petitioner's staff for care. CMS Ex. 3, at 1. The staff knew, or should have known, that the resident would need care whether or not the resident complained to staff. The staff should have anticipated the resident's problems and treated them proactively.

Finally, as of 9:40 a.m. on June 13, 2001, Petitioner's staff knew that Resident # 1 had been incontinent and was complaining about her circumstances even if the staff was not aware of the resident's condition prior to that time. And, the staff's failure to provide continence care immediately to the resident once having been notified of the resident's condition is evidence from which I infer a relative indifference by the staff to the resident's needs.

Petitioner argues that a "minimal delay" in providing continence care to Resident # 1 did not have the potential for causing even minimal harm to the resident. I disagree with this assertion. This resident spent at least some substantial period of time lying in her own feces and urine and helpless to do anything about the situation. I can easily envision that a person being forced to endure such a situation could suffer, potentially, severe emotional distress. In that circumstance any delay by Petitioner's staff in providing care was unreasonable and potentially harmful to the resident.

b. Petitioner failed to comply substantially with the requirements of 42 C.F.R. � 483.25(a)(3) as of the July 2001 survey.

The findings of noncompliance that were made at the July 2001 survey also were based on Petitioner's alleged failures to provide timely incontinence care to residents. At this survey the allegations are based on alleged failures by Petitioner to provide incontinence care to residents who are identified in the survey report as Residents #s 1 and 2. CMS Ex. 4, at 2 - 4. Resident # 2 was identified in Petitioner's assessment of the resident as being totally dependent on Petitioner's staff for activities of daily living and incontinent of bowel and bladder. Id. at 3. The surveyor determined at 10:15 on July 31, 2001, that the resident was wet. Id. The surveyor ascertained, through interviews with members of Petitioner's staff, that the nursing assistant who had been assigned to provide care for the resident asserted that she did not know that she had been assigned to the resident and had not checked the resident since coming on duty at 6:45 a.m. on the morning of July 31. Id.

Resident # 1 was assessed as being incontinent of bowel and bladder. CMS Ex. 4, at 3. On July 31, 2001, at 10:05 a.m., the surveyor observed a nurse and a nursing assistant repositioning the resident. Id. at 4. The surveyor asked the nursing assistant if she had checked the resident for incontinence and the assistant admitted that she hadn't. Id. The assistant stated that she hadn't checked the resident since 7:30 that morning, more than two hours previously, and notwithstanding a facility policy that incontinent residents be checked once every two hours. Id. When the resident's incontinence brief was checked it was found to be soiled with urine. Id.

The aforesaid evidence is prima facie evidence of continued noncompliance by Petitioner with the requirements of 42 C.F.R. � 483.25(a)(3). It shows a failure by Petitioner to comply with its own policy for checking the status of incontinent residents. And, it shows that these residents suffered from episodes of incontinence that were not dealt with timely, leaving them to lie in their own urine. I find this evidence of noncompliance to show a potential for more than minimal harm to residents even as I found similar evidence to establish such a potential in the case of the June 2001 survey.

Petitioner's arguments in response to this prima facie evidence are not persuasive. First, with respect to Resident # 2, Petitioner asserts that the survey findings incorrectly "imply that because one . . . [nursing assistant] had not provided incontinent care to the resident, that such care had necessarily not been given." Petitioner's reply brief at 8. But, this is not the implication of CMS's evidence. The evidence offered by CMS is not that some nursing assistant selected at random by the surveyor for an interview acknowledged not providing incontinence care to Resident # 2. The evidence is that the nursing assistant who had been assigned to provide incontinence care to Resident # 2 had not provided such care. It is reasonable to infer that, if the person who is assigned to give incontinence care to a resident fails to provide such care, and the resident is incontinent, then no one provided incontinence care to that resident.

Petitioner argues also that the allegation in the survey report "is based on the surveyor's interview with one . . . [nursing assistant]." Petitioner's reply brief at 9. Petitioner implies that, perhaps, had the surveyor interviewed more than one assistant she would have discovered that someone other than the assistant in question provided the required incontinence care to the resident. Failing that, according to Petitioner, an interview with just one assistant is insufficient to establish a prima facie case of noncompliance.

The problem with this argument, as is the case with Petitioner's previous argument, is that the assistant that the surveyor interviewed was the assistant who was assigned to give care to the resident. I reiterate what I stated above. It is reasonable to infer that, if the assistant who is assigned to provide care does not give that care, then no one else gave the care. And, equally, it is logical to infer that assistants who were not assigned the responsibility of giving care to Resident # 2 did not provide such care.

With respect to Resident # 1, Petitioner asserts again that the surveyor based her findings of noncompliance on an interview with "only" one nursing assistant. Here again, however, the assistant that the surveyor interviewed was the assistant who was providing care to the resident. Again, I infer that this assistant's failure to provide care meant that care was not provided. Petitioner argues also that it is "unlikely" that the resident would not have been checked for incontinence every two hours inasmuch as facility policy requires such checks be performed at two-hour intervals. Petitioner's reply brief at 9. But, the prima facie evidence is that such a check was not performed in this case despite the existence of such a policy. I do not find a failure to provide care to be "unlikely" given the prima facie evidence that care was not provided.

Finally, Petitioner asserts that Resident # 1 understood the facility's call bell system and was able to make use of it. ⁽¹⁾ It suggests that the resident would have called for assistance had the resident been incontinent. But, Petitioner does not cite any evidence to support this assertion. Moreover, evidence of record suggests that Petitioner's assertion may not be true. Resident # 2 was diagnosed to be suffering from Alzheimer's disease and was assessed as being totally dependent on Petitioner's staff for daily care. Resident # 1 was diagnosed to be suffering from an organic delusional disorder. These diagnoses comprise fairly strong evidence that the residents were not competent to exercise judgment appropriately.

c. Petitioner failed to comply substantially with the requirements of 42 C.F.R. � 483.25(a)(3) from June 13, 2001, until September 10, 2001.

The evidence that CMS offered of Petitioner's noncompliance with the requirements of 42 C.F.R. � 483.25(a)(3) is prima facie evidence of continuous noncompliance with the regulation from June 13, 2001 until September 10, 2001. CMS has offered evidence of Petitioner's failure to comply substantially with the regulation's requirements at widely spaced intervals of June 13, 2001 and July 31, 2001. CMS Ex. 3; CMS Ex. 4. Petitioner has not overcome this evidence with the preponderance of the evidence. Nor did Petitioner offer evidence to prove that it attained compliance with the requirement in question at any time prior to September 10, 2001.

2. Civil money penalties of $100 per day are reasonable.

The deficiency which is at issue in this case - as well as the alleged deficiencies that I do not address in this decision - all fall within the lower range of non-immediate jeopardy level deficiencies for which CMS may impose civil money penalties ranging from $50 to $3,000 per day. In this case, CMS determined to impose penalties of $100 per day for each day of the June 13 - September 10, 2001 period. I find these amounts to be reasonable given the seriousness of Petitioner's deficiency.

A civil money penalty amount of $100 per day approaches the bottom of the lower range of penalties for non-immediate jeopardy level deficiencies. Penalties in this amount are reserved for the least serious of deficiencies. The deficiencies that I find to be present in this case, given that they posed a threat of more than minimal harm to residents, are certainly sufficiently serious to justify penalties of $100 per day. 42 C.F.R. � 488.438(f)(3); see 42 C.F.R. � 488.404. Based on considerations of seriousness alone I decide that the penalty amount of $100 per day is reasonable. ⁽²⁾

Steven T. Kessel
Administrative Law Judge

1. In Petitioner's reply brief it refers to "Resident # 2" in making this argument. However, it appears from the context of the argument that Petitioner is referring to Resident # 1. See Petitioner's reply brief at 9.

2. I note that Petitioner did not argue that the penalty amount of $100 per day would be unreasonable if Petitioner were found not to have complied substantially with a participation requirement or requirements.