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Department of Health and Human Services DEPARTMENTAL APPEALS BOARD Civil Remedies Division |
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Harmony Court, |
DATE: April 15, 2004 |
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Centers for Medicare & Medicaid Services
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Docket No.C-00-263
Decision No. CR1164 |
| DECISION | |
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DECISION For the reasons stated below, I conclude that Harmony Court (Petitioner) was not in substantial compliance with Medicare conditions of participation governing nursing home facilities from November 5, 1999 through December 9, 1999 and from January 19, 2000 through March 25, 2000. Accordingly, I sustain the Centers for Medicare & Medicaid Services' (CMS) imposition of civil money penalties (CMPs) in the amount of $1,150 per day from November 5, 1999 through December 9, 1999, and $550 per day from January 19, 2000 through March 25, 2000.
Petitioner is a skilled long term nursing facility located in Cincinnati, Ohio. The Ohio Department of Health (State agency) conducted a complaint survey of Petitioner that ended on November 5, 1999 (November survey). The State agency cited Petitioner for numerous alleged deficiencies. A revisit survey was done on December 15, 1999, and the State agency found Petitioner back in compliance on December 10, 1999. The State agency conducted a standard survey of Petitioner on January 19, 2000 (January survey), and again cited Petitioner with numerous deficiencies. A revisit survey was done on March 10, 2000 (March survey), with several deficiencies again cited. The State agency revisited Petitioner again on April 15, 2000, and Petitioner was found to be back in substantial compliance on March 26, 2000. On January 24, 2000, CMS notified Petitioner that it concurred with the State agency's findings from the December survey and would impose a CMP of $1,150 per day from November 5, 1999 until December 9, 1999. Petitioner timely requested a hearing with respect to this determination. After the January and March surveys in 2000, CMS sent additional "notice letters" to Petitioner on February 25, 2000 and March 31, 2000, indicating it was imposing a CMP of $550 per day from January 19, 2000 until substantial compliance was achieved. Petitioner filed a supplement to its prior request for hearing to appeal the alleged deficiencies cited in the later surveys. In response, CMS moved to bifurcate this case into two cases. I denied CMS's motion. Although the periods of alleged noncompliance were technically separate and occurred over two survey cycles, I concluded that CMS had not shown good cause for separating these survey cycles into two cases. I stated that had this matter been initially docketed as two cases, it is likely one or both parties would have moved to consolidate the cases. I considered Petitioner's supplement to be a request for hearing on new issues under 42 C.F.R. � 498.56, and I granted Petitioner's request for a hearing on the later surveys of January 19, 2000 and March 10, 2000. I held a hearing in Cincinnati, Ohio on January 21 and 22, 2003. CMS submitted proposed exhibits (CMS Ex. )1-40. After an objection from Petitioner, CMS withdrew CMS Ex. 39. Petitioner submitted proposed exhibits (P. Ex.) 1-32. I admitted into the record CMS Exs. 1-38, and 40. I also received into evidence P. Exs. 1-32. (1) The following persons testified for CMS: State agency surveyors Debbie Truett, R.N.; Nancy E. Thompson, R.N.; and Patricia Buczkowski, social worker. Petitioner presented the following witnesses: Debbie Fiehrer, R.N., a clinical advisor for Strategic Nursing Systems, a company providing services to Petitioner; Laurie Westermeyer, R.N., Petitioner's administrator; Denise Harmeyer, former registered dietician for Petitioner; Brenda Holbrook, L.P.N., former employee of Petitioner; Barbara Asbach, L.P.N., a clinical advisor for Strategic Nursing Systems; Courtney Sievering, L.P.N., Petitioner's former restorative nurse; Mary Masminster, social worker and activities director for Petitioner; and Deborah Washington, L.P.N., a treatment nurse at Petitioner's facility. Based on the testimony offered at the hearing, the documentary evidence, the arguments of the parties, and the applicable law and regulations, I find that from November 5, 1999 through December 10, 1999, and from January 19, 2000 to March 25, 2000, Petitioner was not in substantial compliance with Medicare participation requirements. I also find the assessed CMPs are reasonable and CMS is authorized to impose a CMP at the rate of $1,150 per day from November 5, 1999 through December 9, 1999 and $550 per day from January 19, 2000 to March 25, 2000, for a total of $77,100.
Petitioner is considered a long-term care facility under the Social Security Act (Act) and regulations promulgated by the Secretary of Health and Human Services (Secretary). The statutory and regulatory requirements for participation by a long-term care facility are found at sections 1819 and 1919 of the Act and at 42 C.F.R. Part 483. Sections 1819 and 1919 of the Act invest the Secretary with authority to impose CMPs against a long-term care facility for failure to comply substantially with federal participation requirements. Pursuant to the Act, the Secretary has delegated to CMS and the states the authority to impose remedies against a long-term care facility that is not complying substantially with federal participation requirements. 42 C.F.R. Part 488 provides that facilities that participate in Medicare may be surveyed on behalf of CMS by state survey agencies in order to determine whether the facilities are complying with federal participation requirements. 42 C.F.R. �� 488.10 - 488.28. The regulations contain special survey conditions for long-term care facilities. 42 C.F.R. �� 488.300 - 488.335. Under Part 488, a state or CMS may impose a per instance or per day CMP against a long-term care facility when a state survey agency concludes that the facility is not complying substantially with federal participation requirements. 42 C.F.R. �� 488.406, 488.408, 488.430. The regulations in 42 C.F.R. � 488 give CMS a number of different remedies that can be imposed if the facility is not in compliance with Medicare requirements. The regulations specify that a CMP that is imposed against a facility will fall into one of two broad ranges of penalties. 42 C.F.R. �� 488.408, 488.438. The upper range of CMPs, of from $3,050 per day to $10,000 per day, is reserved for deficiencies that constitute immediate jeopardy to a facility's residents, and in some circumstances, for repeated deficiencies. 42 C.F.R. �� 488.438(a)(1), (d)(2). The lower range of CMPs, of from $50 per day to $3,000 per day, is reserved for deficiencies that do not constitute immediate jeopardy, but either cause actual harm to residents, or cause no actual harm, but have the potential for causing more than minimal harm. 42 C.F.R. � 488.438(a)(2). The regulations define the term "substantial compliance" to mean "a level of compliance with the requirements of participation such that any identified deficiencies pose no greater risk to resident health or safety than the potential for causing minimal harm." 42 C.F.R. � 488.301. When a penalty is imposed and appealed, CMS must make a prima facie case that the facility has failed to comply substantially with federal participation requirements. To prevail, a long-term care facility must overcome CMS's showing by a preponderance of the evidence. Hillman Rehabilitation Center, DAB No. 1611 (1997), aff'd, Hillman Rehabilitation Center v. HHS, No. 98-3789 (GEB) (D.N.J., slip op. May 13, 1999). Under Hillman, CMS bears the burden of coming forward with evidence sufficient to establish a prima facie case that Petitioner failed to comply with participation requirements. Once CMS has established a prima facie case of noncompliance, Petitioner has the burden of proving, by a preponderance of the evidence, that it complied substantially with participation requirements. Hillman, at 3-8. (2) The Act and regulations make a hearing before an administrative law judge (ALJ) available to a long-term care facility against whom CMS has determined to impose a CMP. Act, sections 1128A(c)(2); 42 C.F.R. �� 488.408(g), 498.3(b)(12), (13). The hearing before an ALJ is a de novo proceeding. Anesthesiologists Affiliated, et al, DAB CR65 (1990), aff'd, 941 F2d. 678 (8th Cir. 1991).
The issues in this case are: whether CMS had a factual basis to impose remedies against Petitioner for failing to comply substantially with federal requirements; and if the CMPs are authorized, whether the amounts imposed are reasonable.
I have examined closely all of the evidence of record to determine whether Petitioner was complying with participation requirements and to decide whether a CMP may be imposed against Petitioner for each separate survey "cycle." During the November survey, Petitioner was cited for having failed to meet nine requirements for participation in the Medicare program. These deficiencies are identified by CMS as "Tags" and refer to particular regulatory requirements. After CMS waived Tag F281 at the hearing (Tr. 166), the following tags from the November survey are at issue:
Following the January survey, CMS cited Petitioner for failing to meet 23 different Medicare participation requirements. At the hearing, CMS waived Tags F157, F164, F242, F331, F365, and F444. (Tr. 166). (3) The following tags are at issue:
At the March survey, CMS cited Petitioner for six tags and waived one tag, Tag F281, at the hearing (Tr. 166), leaving the following five tags at issue:
I make findings of fact and conclusions of law (Findings) to support my decision in this case. I set forth each of my ultimate Findings below as a separate heading. I discuss each Finding in detail, including the results of the survey, whether the results are supported by the evidence of record, and whether Petitioner has met its burden to overcome the allegations the surveyors made. I have made Findings with respect to a number of alleged Tags. I do not discuss herein every remaining Tag. The Departmental Appeals Board (DAB) has previously approved an ALJ's discretion to exercise judicial economy and not discuss every alleged deficiency. Beechwood Sanitarium, DAB No. 1824 (2002), at 22; Beechwood Sanitarium, DAB No. 1906 (2004). In general, I discuss those Tags for which CMS submitted some testimonial evidence. While in certain circumstances, the allegations contained in the Statement of Deficiencies (SOD) may suffice as evidence of a cited deficiency, if CMS does not provide either a surveyor to attest to the observations in the SOD, or the accuracy of the surveyor's notes, and CMS does not offer other persuasive documentary evidence, I find it difficult to conclude that CMS has presented a prima facie case as to that deficiency. Therefore, except for Finding C.1, below, I do not discuss in this decision those Tags for which CMS produced no testimonial evidence. I do discuss several Tags for which CMS presented testimonial evidence that I found either unpersuasive or outweighed by Petitioner's evidence. (Findings A.5, A.7, B.2, and C.2, below). Nonetheless, the preponderance of the evidence, as discussed below, supports the finding that Petitioner failed to comply substantially with at least one condition of participation at each of the three surveys. Substantial noncompliance with only one participation requirement can support the imposition of a penalty. Beechwood Sanitarium, DAB No. 1824 (2002). The deficiencies I have found herein provide a sufficient basis to affirm the imposition of the remedies and the amounts of the CMPs.
42 C.F.R. � 483.25 requires that the facility provide the necessary care and services so that each resident can attain or maintain the highest practicable physical, mental, and psychosocial well-being, in accordance with the resident's comprehensive assessment and plan of care. I find that, with respect to three residents, Petitioner failed to provide necessary services to ensure the residents' highest practicable physical well-being. The residents discussed below incurred actual harm as a result of Petitioner's deficiencies.
Resident 13's diagnoses included Alzheimer's disease with some anxiety and degenerative osteoarthritis. P. Ex. 6, at 5. CMS alleged that Resident 13's physician had determined she was to have a pelvic restraint on at all times when she was up in a geri-chair. Resident 13 was agitated when she was placed in the chair and she would scoot down in the chair. As a result, her pelvic restraint would tighten. The surveyor alleged that nursing notes on October 5, 1999, documented that Resident 13 had red welts on her buttocks that matched the outline of the pelvic restraint. CMS Ex. 7, at 11. On October 12, 1999, Petitioner's occupational therapy staff indicated that an anti-thrust cushion would be ordered for her. CMS Ex. 3, at 4-5. Surveyor Truett, a registered nurse with the State agency for 10 years, testified about her observations during the survey. Based on her testimony, I find that, on November 4 and 5, 1999, Ms. Truett observed Resident 13 in a geri-chair with the pelvic restraint and a worn pommel cushion on the chair. Ms. Truett stated that the cushion was so worn it was ineffective. Tr. 16-17. On one observation, Ms. Truett saw that Resident 13 had slid her buttocks so far forward on the chair that the pelvic restraint tightened and was wedged into the resident's body folds. Tr. 19-20; CMS Ex. 3, at 5. The next morning, Ms. Truett observed incontinence care being given to Resident 13. She saw that Resident 13's perineal area and upper thighs were reddened. Tr. 21; CMS Ex. 3, at 5. Surveyor Truett concluded that the pelvic restraint had been pulled too tightly across the resident's crotch. Tr. 19-20. The pommel cushion was so worn that it could not keep this resident from sliding forward in her chair and tightening the pelvic restraint. Tr. 16-17. Nurse Holbrook, a former Harmony Court LPN, testified at the hearing that Resident 13 was a small lady who was hard to care for. Tr. 200-21. Nurse Holbrook stated Resident 13 was agitated all the time. The staff would position her in her chair and she would "squirm out of it." Tr. 200. According to Nurse Holbrook, the pommel cushion the staff used to position Resident 13 became worn because the resident crossed her legs continually. Tr. 215. Nurse Holbrook said that eventually (after the November survey), Petitioner ordered a specialized wheelchair and used thigh and leg straps to hold her in. Tr. 200, 212-13. Nurse Holbrook conceded that if the wheelchair had been ordered sooner, a lot of problems could have been avoided with respect to Resident 13. Tr. 214. Petitioner did not explain why there were insufficient pommel cushions in stock that could be used to replace Resident 13's worn device. Nurse Holbrook stated that a new cushion was on order; however, no additional interventions were implemented in the interim that would have prevented Resident 13 from incurring red welts from a pelvic restraint that would tighten whenever she scooted forward. Petitioner should have replaced the worn cushion with a new one or tried some other intervention to relieve Resident 13's painfully tight restraint. Moreover, Petitioner gave no explanation as to why a specialized wheelchair was not ordered for Resident 13 until after the November survey.
Resident 22's diagnoses included arthritis, psychosis, Alzheimer's, dementia, anxiety, and cataracts affecting her vision. P. Ex. 8, at 2, 7. As CMS alleged, Resident 22 was taking a diuretic, Lasix, which can cause dehydration. P. Ex. 8, at 12. CMS alleged that her care plan was silent concerning interventions relating to constipation or fecal impaction, which can be caused by dehydration. P. Ex. 8. Petitioner had apparently intended to chart Resident 22's bowel movements. CMS Ex. 10, at 14, 16. For many shifts in September and October of 1999, the staff on duty did not chart whether Resident 22 had a bowel movement. Id. The SOD alleges that, on October 13, 1999, in the morning, the nurses found that Resident 22 was non-responsive, cold and clammy, and without apical or radial pulse. CMS Ex. 3, at 7. A few moments later, Resident 22 did have a faint irregular pulse and some shallow respirations. Resident 22 was transferred to the hospital on an emergency basis. The resident was released from the hospital in the early afternoon with orders for rectal enemas. The hospital could find nothing wrong with Resident 22 except that she had a fecal impaction. Tr. 23. Thereafter, the nurses' notes continued to suggest that Resident 22 had few bowel movements. (5) CMS Ex. 3, at 7-8. According to Surveyor Truett, fecal impaction occurs when stool accumulates in the bowel and becomes hard and tough, preventing normal evacuation. Impaction presents a danger because the stool can become so enlarged that it can perforate the bowel. Moreover, when a health professional attempts removal of the impaction, the bowel can perforate. Over time, repeated fecal impactions can cause nutritional deficits. Tr. 21-22. Nurse Sievering testified for Petitioner that the staff monitored Resident 22's bowel movements and routinely gave her a stool softener. Tr. 228-29. Petitioner submitted a medication list that included Pericolace, a laxative, which was to be given to Resident 22 every day and a form noting that this resident was triggered for assessment regarding dehydration. P. Ex. 8, at 12, 13. Nurse Sievering testified that with the Pericolace administration, Petitioner had taken every step it needed to make sure Resident 22 was able to have bowel movements on a routine and regular basis. Tr. 229. The facility's records indicate that the staff, at times, monitored this resident's bowel movements. CMS Ex. 10, at 14-16. The charting for this resident, however, contains omissions of charting for many shifts. Id. The charting omissions indicate the required monitoring was not done. Moreover, without regular checking and charting, the staff could not determine that further services were necessary to prevent a fecal impaction from occurring. Petitioner provided no evidence that Resident 22's fecal impaction was unavoidable. And the occurrence, itself, of Resident 22 having a fecal impaction suggests Petitioner was not providing necessary services so that Resident 22 could attain her highest practicable physical well-being.
Resident 12 was diagnosed with vascular dementia with agitation and probable psychotic features. CMS Ex. 5, at 17. She was assessed in September 1999 as incontinent of bowel and bladder, in need of extensive physical assistance with activities of daily living and at risk of skin breakdown. CMS Ex. 3, at 8. Resident 12 had a long history of scratching herself, causing injuries. CMS Ex. 3, at 8; P. Ex. 2, at 6. At the end of October 1999, Resident 12 was given Atarax to help her itching. P. Ex. 2, at 1. On November 1, 1999, new orders were received for Resident 12's care. A spray was to be applied to her buttocks as needed after incontinence care and Atarax was prescribed for itching. Id. at 7. On November 2, Resident 12 was given Atarax with good effect. On November 3, for weekly charting, Petitioner's nurse noted that Resident 12 had an episode of scratching with a new order for Atarax, which had previously been "fair" in effectiveness. Id. at 1. On November 4, 1999, Surveyor Truett observed Resident 12 in bed for over an hour. CMS Ex. 3, at 8; Tr. 25. During that time period, Resident 12 was without pants or an incontinence brief. Resident 12 was sitting up on the side of the bed scratching herself. Resident 12 had a yellow and red open area and long reddened areas on her buttocks caused by her scratching. Tr. 23-25; see CMS Ex. 3, at 8. Moreover, Surveyor Truett stated that Resident 12 had long jagged fingernails. Tr. 24; CMS Ex. 5, at 7, 13. Nurse Sievering testified for Petitioner that the staff gave Resident 12 Atarax, an anti-itching medication, for three days, and afterwards, gave Resident 12 the medication as needed. Tr. 229; P. Ex. 2, at 1. She explained that the staff did not put a diaper on Resident 12 while she was in bed to keep her skin dry and to stop her itching. Tr. 229, 234. Obviously, leaving her in bed, uncovered, for an hour did not help alleviate Resident 12's scratching. While dryness may help heal an area already injured, it is counterintuitive to think that leaving Resident 12 without undergarments for an hour would help her skin, given her inclination to scratch. On November 5th, the last day of the survey, the staff became concerned about a red area on Resident 12's buttocks. The staff then notified Resident 12's physician and an order was issued including directions to leave diapers on Resident 12 when she was in bed. P. Ex. 2, at 2; CMS Ex. 5, at 19-22. Alternative practicable methods were available to protect Resident 12's skin. Petitioner did not use them. Based on the evidence for Residents 13, 22, and 12, I can only conclude that Petitioner failed to provide services necessary for them to attain their highest practicable physical and mental well-being. Petitioner did not show that it would have been impractical to assure that Resident 13 was positioned with a newer pommel cushion to prevent her restraint from tightening so much around her that when she moved she received red welts on her skin. Similarly, Petitioner could have watched more closely Resident 22's evacuation pattern. Resident 22 had a fecal impaction that could have been related to her dehydration and Petitioner was aware she was at a risk for dehydration. With respect to Resident 12, Petitioner had the responsibility to keep the areas she scratched covered and her nails trimmed so she would not endanger her skin. The greater weight of the evidence supports a finding that Petitioner was not in substantial compliance with 42 C.F.R. � 483.25.
Section 483.25(c) of 42 C.F.R. requires that, based on the comprehensive assessment of a resident, the facility must ensure that (1) a resident who enters the facility without pressure sores does not develop pressure sores unless the individual's clinical condition demonstrates that they were unavoidable; and (2) a resident having pressure sores receives necessary treatment and services to promote healing, prevent infection and prevent new sores from developing. CMS alleges that with respect to Residents 16 and 21, Petitioner failed to ensure the residents did not develop preventable pressure sores or ensure the residents received necessary services to promote healing. While the residents at issue had compromised skin, Petitioner failed to show either that new pressure sores were unavoidable or that Petitioner provided necessary services to promote healing and to prevent infection of the pressure sores.
Resident 16 was readmitted to the facility on September 24, 1999, with diagnoses of aspiration pneumonia and cerebral vascular accident. CMS Ex. 3, at 9; CMS Ex. 6, at 15. The resident had a gastrostomy feeding tube for all nutritional and hydration needs. CMS Ex. 3, at 9; see P. Ex. 3, at 1. She had a history of open skin areas. P. Ex. 3, at 14. Resident 16 was dependent on the staff for all care and was at a risk for skin breakdown. P. Ex. 3, at 10-12. This resident's care plan required repositioning and incontinence care every two hours and pressure relieving devices for her bed and chair. Id. at 13. On November 3, 1999, Resident 16 had a Stage IV pressure sore on her coccyx, sized as 1.8 cm x .6 cm, and her doctor was notified. P. Ex. 3, at 6. A debriding agent was prescribed. Id. According to Surveyor Truett, Resident 16 had a Stage II pressure sore on her coccyx that measured .8 cm on October 12, 1999, and that had increased to 3 cm x 1.2 cm by November 5, 1999. CMS Ex. 6, at 13-14; see Tr. 36. During the survey on November 5, 1999, Surveyor Truett observed R 16 sitting in a geri-chair from 7:00 a.m. to 10:35 a.m. See Tr. 30-32. Surveyor Truett testified that Resident 16 received no repositioning or incontinence care during this time. CMS Ex. 3, at 10; Tr. 31, 34, 35-36. Surveyor Truett reported that Resident 16 was seated on a wedge cushion that was identified by the manufacturer as a positioning device, not a pressure relieving device. Tr. 32; CMS Ex. 6, at 4; CMS Ex. 3, at 10. After observing Resident 16 for this three-hour period, Surveyor Truett requested staff to provide incontinence care. CMS Ex. 3, at 10. She noted a "foul-smelling and urine-saturated incontinent brief with the time 5:25 A.M. written on it and with the initials of a staff member from the previous shift." Id.; see Tr. 38-39. At 10:48 a.m., Surveyor Truett observed treatment to Resident 16's pressure sore on her coccyx. CMS Ex. 3, at 11. She observed what she described as a "large open gapping [sic] pressure sore." Id. Surveyor Truett testified that repositioning is necessary to prevent pressure sores. Tr. 36-37. It is also important to provide prompt incontinence care to prevent and heal pressure sores because leaving wet waste products against the skin for a long period of time causes the skin to break down and inhibits healing of the skin. Tr. 38. Deborah Washington, an LPN at Harmony Court for six years, testified that she assessed every resident coming into Harmony Court regarding their skin condition. She described Resident 16 as very emaciated, malnourished, with contractures and dementia. According to Nurse Washington, Resident 16 had no muscle mass and poor skin turgor. She noticed that Resident 16's skin began to deteriorate within hours of Resident 16 being readmitted. Tr. 244-47. Nurse Washington testified that Resident 16 was on a wedge cushion in her chair so that Resident 16 was positioned correctly when she was getting her tube feeding. Tr. 247. Nurse Washington also testified that every bed in the facility has a pressure relief mattress. Tr. 263. With respect to the growth of the pressure sore as noted by Surveyor Truett, Nurse Washington said that Resident 16 was being treated with a debriding agent called Santil. The purpose of a debriding agent is to clear away the dead tissue and thus, the sore is likely to look larger as it is being debrided. Tr. 245-46. While several of Petitioner's witnesses testified it was Petitioner's policy to check for incontinence every two hours, no witness testified that a staff member actually checked Resident 16 for incontinence during the three-hour period she was observed by Surveyor Truett. See, e.g., Tr. 230. I find that Resident 16 was not checked for incontinence for the three hours she was observed by Surveyor Truett. Nurse Washington admitted that Resident 16 had a wedge cushion on her chair for positioning and did not proffer that the wedge served the purpose of pressure relief as well. I find that Resident 16 did not have a pressure relief device on her chair, which is essential for a coccyx pressure sore. Based on Resident 16's assessment noting her need for pressure relieving devices on her chair and bed and her need for incontinence care every two hours, I conclude that, with respect to Resident 16, Petitioner did not ensure that she received the necessary services to promote healing, prevent infection, and prevent new sores from developing. Nurse Washington suggested that Resident 16's pressure sore was unavoidable because of her condition. I note that Nurse Washington is an LPN. Petitioner provided no evidence from an R.N. or a physician that Resident 16's pressure sore was unavoidable. Moreover, by not providing pressure relieving devices on Resident 16's chair, or by leaving her sitting too long in one position, Petitioner clearly was not providing services to promote healing of Resident 16's pressure sore.
Resident 21 had diagnoses including Alzheimer's dementia, diabetes, and agitation. CMS Ex. 9, at 15; CMS Ex. 3, at 11. Resident 21 required extensive assistance with care. CMS Ex. 3, at 11; P. Ex. 4, at 29. Resident 21 was incontinent of bowel and bladder and at risk for developing pressure sores. CMS Ex. 3, at 11; P. Ex. 4, at 30, 31. Petitioner's care plan for Resident 21 called for repositioning every two hours, pressure relieving devices on the resident's bed and chair, and incontinence care every two hours. CMS Ex. 9, at 16; CMS Ex. 3, at 11. According to the SOD, on November 4, 1999, Surveyor Truett observed Resident 21 from 10:50 a.m. to 11:30 a.m. and from 12:50 p.m. to 1:13 p.m., sitting in a geri-chair that had no pressure relieving device. See Tr. 45; CMS Ex. 3, at 11. At 1:13 p.m., two CNAs transferred Resident 21 to bed. According to Surveyor Truett, Resident 21's bed had no pressure relieving mattress. CMS Ex. 9, at 5. The CNAs removed from Resident 21 a urine saturated brief with the initials of a CNA from a prior shift. CMS Ex. 3, at 12. A stage II pressure sore was noted on Resident 21's coccyx with a light pink area in the center surrounded by red tissue. CMS Ex. 9, at 13. (6) Resident 21 was left lying in his bed, on his back, until 4:10 p.m., without a position change. The next day, Surveyor Truett observed Resident 21 seated in a geri-chair without a pressure relief device from 8:30 a.m. to 11:30 a.m. CMS Ex. 9, at 9; CMS Ex. 3, at 12. Nurse Washington testified that Resident 21 had a pink area on his coccyx because she had previously healed the pressure sore on that area. Tr. 247- 48. In fact, P. Ex. 4 documents that Resident 21's pressure sore was healed on November 4, 1999. P. Ex. 4, at 2, 4, 23, 24. Surveyor Truett apparently felt she had observed a new area of skin breakdown because there was a scar next to the Stage II pressure sore she had observed. Tr. 95-97; CMS Ex. 9, at 13. Both Surveyor Truett and Nurse Washington testified that skin breakdown can occur in a matter of hours. Tr. 97, 246. Whether or not Resident 21 had an old sore that had healed or was developing a new one, Petitioner, by not providing pressure-relieving devices on his bed or chair or frequent position changes and incontinence care as indicated in his care plan, was not ensuring that Resident 21 was receiving necessary treatment and services to promote healing, prevent infection, and prevent new pressure sores from developing. With respect to prevention and treatment of pressure sores, the DAB has concluded that a facility bears a duty to "go beyond merely what seems reasonable to, instead, always furnish what is necessary to prevent new sores unless clinically unavoidable, and to treat existing ones as needed." Koester Pavilion, DAB No. 1750, at 32 (2000). Petitioner was fully aware of the compromised skin conditions of Residents 16 and 21. Their care plans called for interventions for their skin such as frequent position changes, incontinence care, and pressure relieving devices. Yet Petitioner did not provide those interventions. The greater weight of the evidence is that Petitioner was not in substantial compliance with 42 C.F.R. � 483.25(c).
Section 483.25(d)(2) of 42 C.F.R. requires a facility to ensure that any 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. I find that with respect to one resident (Resident 13), Petitioner failed to comply substantially with this requirement.
Resident 13 had diagnoses of Alzheimer's, urosepsis, and degenerative osteoarthritis. CMS Ex. 3, at 14; P. Ex. 6, at 5. The facility assessed Resident 13 on August 26, 1999 as frequently incontinent of bladder and dependent on the staff for toileting. CMS Ex. 3, at 14; P. Ex. 6, at 4, 5. She was to be toileted every two hours and in advance of need and/or provided incontinence care every two hours. CMS Ex. 3, at 14. According to the SOD, Surveyor Truett observed on November 5, 1999, that Resident 13 was physically restrained in a geri-chair in the dining room and the television room. At 9:30 a.m., Resident 13 was pushed by the staff to her bedroom and her incontinence brief, which was dry and marked 6:20 a.m., was changed. Resident 13 was put back in her geri-chair, physically restrained, and pushed back to the television room. Surveyor Truett testified that when Petitioner's staff changed Resident 13's brief, they should have taken her for toileting. She stated that since Resident 13 was still dry at the time of changing her brief, Petitioner's staff should have offered toileting to prevent further decline in Resident 13's continence. Tr. 48-49. I find that CMS presented a prima facie case with respect to Resident 13 in that, even though Resident 13's care plan indicated she was to be toileted in advance of need, Petitioner did not provide the toileting and thus, was not ensuring Resident 13 received appropriate treatment to restore as much normal bladder function as possible. CMS Ex. 3, at 14-15. Surveyor Truett testified that if a resident is on a toileting program and toileting is not offered, residents can become less able to control urination, can have skin breakdown, and urinary tract infections. The resident may try to hold urine, resulting in urine staying in the bladder and the development of urinary tract infections. Tr. 50-51. Petitioner provided no rebuttal to CMS's cited deficiency other than testimony that, in general, Petitioner had very low infection rates and a very low number of urinary tract infections. Tr. 170.
Resident 18 was diagnosed with chronic obstructive pulmonary disease, Alzheimer's, dehydration, and a history of pneumonia. P. Ex. 5, at 2. The facility assessed Resident 18 on October 20, 1999, as incontinent of bladder and dependent on the staff for toileting. Id. at 39-40. Resident 18 had previously had urinary tract infections on August 14, 1999, and October 12, 1999. CMS Ex. 3, at 13. His care plan called for checking and providing incontinence care every two hours. CMS Ex. 7, at 28. Surveyor Truett testified she observed Resident 18 being transferred to his bed at 1:40 p.m. when a urine soaked incontinence brief was removed. The brief had "6:45am" written on it and was initialed by a CNA from the prior shift. CMS Ex. 3, at 13-14; see Tr. 46. Surveyor Truett testified that Resident 18 was in the same incontinence brief from 6:45 a.m until 1:40 p.m. Tr. 46. Surveyor Truett said she watched incontinence care for Resident 18 and the resident had sustained deep red, blister-like excoriations on his buttocks from the soaked brief. Tr. 46-47; CMS Ex. 7, at 13. Surveyor Truett stated that Petitioner's staff failed to check Resident 18 for incontinence and provide incontinence care. Tr. 48. She did not testify, however, that Resident 18 was not checked for incontinence between 6:45 a.m. until 1:40 p.m., only that he had on the same incontinence brief. CMS provided no evidence regarding the significance of the time written on the resident's incontinence brief. The SOD alleges that Petitioner's staff members stated that Resident 18 had not been moved from his wheelchair between 11:30 a.m. and 1:00 p.m. CMS Ex. 3, at 13. I conclude that CMS's evidence fails to present a prima facie case that Resident 18 was not checked for incontinence every two hours as indicated in his care plan, or that he was not repositioned every two hours.
Resident 19 suffered from bladder incontinence. P. Ex. 7, at 6. Her care plan required incontinence care and toileting every two hours and as needed. CMS Ex. 8, at 14; P. Ex. 7, at 1. On November 4, 1999, Surveyor Truett observed Resident 19 sitting in a geri-chair. CMS Ex. 3, at 16. At 2:00 p.m., a CNA transferred Resident 19 to bed but did not offer Resident 19 any toileting. Id. When the CNA removed Resident 19's two incontinence pads, they were saturated with a strong, foul-smelling dark brown urine. CMS Ex. 8, at 8. The CNA stated that the incontinence pads had been applied when Resident 19 was prepared for breakfast. Id.; see Tr. 49-50. CMS alleges that Resident 19 should have been offered toileting sometime between her breakfast and 2:00 p.m. when Resident 19's incontinence pads were changed. Id. Courtney Sievering, an LPN at Harmony Court during the 1999 and 2000 surveys, testified that it was Petitioner's policy to check the residents every two hours and, if the resident was dry, to do nothing. Tr. 230. She further testified that Resident 19 was not a candidate for a toileting program because she had had a below-the-knee amputation and was also totally incontinent of bowel and bladder. Ms. Sievering stated that Resident 19 was fitted with a double diaper because she had heavy incontinence. Tr. 231. Petitioner provided no explanation why Resident 19's care plan required toileting as needed if Nurse Sievering, Petitioner's restorative nurse during the relevant period, thought Resident 19 was not a candidate for toileting. Moreover, I do not find it a necessary conclusion that a person with a below-the-knee amputation cannot sit on a commode. Nonetheless, CMS provided no evidence that Resident 19 was not taken to the toilet at any time between her breakfast and 2:00 p.m. CMS provided no evidence that an incontinence pad that is soaked, or foul-smelling, indicates that the wearer's incontinence episode occurred substantially before the pad was changed. Therefore, I find that with respect to Resident 19 and this tag, CMS did not present a prima facie case. Nonetheless, I find that Petitioner failed to comply substantially with the federal requirements set forth at 42 C.F.R. � 483.25(d)(2) with respect to Resident 13 only. While this particular noncompliance was isolated, it did occur and did present the potential for more than minimal harm to Resident 13.
Section 483.25(e)(1) of 42 C.F.R. requires a facility to ensure that a resident who enters the facility without a limited range of motion does not experience a reduction in range of motion unless the resident's clinical condition demonstrates that a reduction in range of motion is unavoidable. I find that two of Petitioner's residents during the relevant time period experienced reductions in range of motion and that Petitioner did not prove the reductions were unavoidable. Therefore, Petitioner was not in substantial compliance with 42 C.F.R. � 483.25(e)(1).
Resident 18 was admitted to Petitioner's facility on July 8, 1999, with no range of motion limitations. See P. Ex. 5, at 30. At his initial assessment by physical therapy, Resident 18 ambulated 200 feet with moderate assistance and a rolling walker. CMS Ex. 7, at 22. A range of motion assessment on August 1, 1999, identified Resident 18 to be within normal limits. CMS Ex. 7, at 26, 27; see P. Ex. 5, at 30. No physical therapy program was recommended. CMS Ex. 7, at 27; Tr. 53. On October 20, 1999, in his minimum data set (MDS), Resident 18 was assessed and recorded as having a limited range of motion of both legs and feet. CMS Ex. 3, at 18; P. Ex. 5, at 40. Surveyor Truett noted Resident 18 had lower extremity contractures. See CMS Ex. 7, at 4. On October 28, 1999, his physician issued orders for Resident 18 to use bilateral knee splints, and he was to have them on four hours and then off four hours. See CMS Ex. 7, at 2, 4. According to Surveyor Truett, a resident's decline in mobility or independent abilities to move or ambulate, as well as physical restraints and diagnoses such as arthritis, can contribute to range of motion limitations. Tr. 52. Resident 18 had experienced a recent decline in his abilities and was subject to the routine use of a restraint. Tr. 53. Further, she said that bilateral knee splints would serve to improve the range of motion limitations that had developed. Tr. 52. Surveyor Truett observed Resident 18 on November 4, 1999, over a more than four-hour period. CMS Ex. 3, at 18. She observed Resident 18 either physically restrained in a wheelchair or in bed with both side rails raised. Surveyor Truett did not see bilateral knee splints on Resident 18 at any time during her over four-hour observation period. Id. Resident 18's clinical record did not include any plan in place for the application of the splints or any range of motion services to prevent a further decline in Resident 18's range of motion. Id.; Tr. 54; CMS Ex. 7, at 29. Surveyor Truett testified that Petitioner's staff added the interventions regarding the bilateral knee splint application and maintenance ROM on November 5, 1999. Tr. 54; see CMS Ex. 7, at 28-29. Surveyor Truett testified that Resident 18 had no limitation of range of motion on August 1, 1999. She stated that he had a significant decline in his abilities that indicated he was at risk for the development of range of motion limitations. Yet the facility did not implement any preventative measures (such as the bilateral knee splints), to prevent his contractures from developing. Tr. 53-54. Nurse Sievering testified for Petitioner that Resident 18 was very agitated at times and would refuse his pills. Tr. 231. This testimony, even if accurate, does not respond to CMS's allegations. Her testimony does not provide evidence that Resident 18's decreased range of motion between August 1, 1999 and October 20, 1999, was unavoidable. Moreover, she did not dispute the surveyor's observation that Resident 18 had no knee splints applied even though they had been prescribed. If his physician had verified Resident 18's need for knee splints, the facility was obligated to apply them or, at least, to document why it had not done so.
Resident 21 was admitted to Petitioner's facility on July 23, 1999, with diagnoses of Alzheimer's, dementia, diabetes, and depression. CMS Ex. 3, at 18; see P. Ex. 4, at 1, 14. On August 5, 1999, he was assessed with no range of motion limitations. P. Ex. 4, at 18; CMS Ex. 9, at 21. On September 22, 1999, the facility's occupational therapist indicated the need to initiate a maintenance program for Resident 21's upper extremity range of motion. P. Ex. 4, at 10. By October 6, 1999, the resident was discontinued from occupational therapy with documented limited range of motion of the right upper extremity and hypertonicity. See CMS Ex. 3, at 19. He was to be placed on a restorative range of motion program. Tr. 55-58; CMS Ex. 9, at 22. According to Surveyor Truett, no restorative program was initiated for this resident. Tr. 58. Resident 21's clinical record was silent for any planned range of motion interventions. CMS Ex. 3, at 19. Surveyor Truett observed Resident 21 to have flexion contractures of the right upper extremity. Id.; see CMS Ex. 9, at 9. The nursing staff was unable to straighten Resident 21's arm due to his limitations. Id. Nurse Sievering, the restorative nurse for Petitioner during the relevant time period, testified for Petitioner that Resident 21 had the same ROM on October 6, 1999 and November 19, 1999. He had experienced no decline. Tr. 232. She said that Resident 21 would fight range of motion therapy and would flinch when touched. Id. She also said that the staff usually does restorative care with the normal morning care but Resident 21 fought range of motion services. Id. She did not explain why there was no documentation of a restorative program being initiated or implemented. Id. Petitioner's evidence is insufficient to counter CMS's evidence that Resident 21's range of motion declined after admittance to the facility. Moreover, Petitioner provided no evidence that Resident 21's condition made his range of motion limitations unavoidable. The fact that Resident 21 fought care did not obviate Petitioner's responsibility to provide it. With respect to both Resident 18 and Resident 21, I find that Petitioner was not in compliance with 42 C.F.R. � 483.25(e)(1) in that Petitioner failed to ensure that a resident who entered the facility without a limited range of motion did not experience a reduction in range of motion unless it was unavoidable.
Section 483.25(h)(1) of 42 C.F.R. requires a facility to ensure that the resident environment remains as free of accident hazards as is possible. CMS's evidence with respect to this alleged deficiency consisted of one uncorroborated hearsay statement about siderails on a bed.
Petitioner assessed Resident 18, who was vision impaired, as requiring physical assistance with repositioning and bed mobility. CMS Ex. 7, at 23-24; P. Ex. 5 at 29. CMS contended that on August 22, 1999, Resident 18 was found on the floor between the bed and the wall with the left siderail also on the floor. CMS Ex. 3, at 20. CMS also alleged that he sustained a two centimeter cut above the right eye with swelling, a skin tear on the left hand, and red areas on the right upper arm and both of his knees. According to CMS, the side rail had not been secure on the bed. CMS contends that Resident 18 fell as a result and sustained multiple injuries. Id. The only reference to the fall on August 22, 1999, in the record is the surveyor's own notes. CMS Ex. 7, at 3. Neither party submitted a contemporaneous document confirming the alleged fall or details about it. Surveyor Truett testified she had requested additional information from the facility about the bed and the side rails but no information was provided. CMS Ex. 3, at 20; Tr. 60-61. She had asked about the condition of the resident's bed as well as other possible contributing factors about the bed. Tr. 61. Petitioner's former nurse, LPN Holbrook, testified that Resident 18 was debilitated but strong physically and would try to walk. She stated that the facility tried many interventions to keep him safe, including a geri-chair, a wheelchair, trays, alarms, side rails, and pads. Tr. 201-02. I find CMS provided insufficient evidence to make a prima facie case that Resident 18's accident was the result of an environmental hazard. CMS could have submitted brochures about the bed and its use or other information other than a hearsay statement that the siderail had not been secure on Resident 18's bed. Petitioner did not fail to comply substantially with 42 C.F.R. � 483.25(h)(1) as alleged by CMS.
Section 483.25(h)(2) of 42 C.F.R. requires a facility to ensure that each resident receives adequate supervision and assistance devices to prevent accidents. I find that, with respect to two residents, Petitioner did not provide adequate supervision and assistance devices to prevent accidents.
Resident 21 had Alzheimer's dementia among other diagnoses. P. Ex. 4, at 1. Petitioner assessed Resident 21 as requiring assistance with all care. CMS Ex. 9, at 18; P. Ex. 4, at 29, 36. He had of history of falls on July 23, July 25, and July 26, and again on September 18, 1999. P. Ex. 4, at 7; CMS Ex. 9, at 15. On July 23, 1999, in the early afternoon, Resident 21 was found on the floor next to his bed. Again, on July 25, 1999, Resident 21 got out of bed and fell. On September 18, 1999, Resident 21 had been in bed but he was found on the floor with a large laceration on his forehead near his right eye that required stitches. Resident 21 was assessed as at risk for falls with care plan interventions that included keeping a nurse alert within reach, mats on the floor beside his bed, and the use of side rails on the bed. (7) CMS Ex. 3, at 22; see P. Ex. 4, at 7; see CMS Ex. 9, at 3, 15. Resident 21 had physician's orders dated October 5, 1999 and October 6, 1999, for only one side rail to be used. P. Ex. 4, at 38. A physical therapy evaluation of Resident 21 was completed on August 5, 1999. The evaluator concluded that although Resident 21 was currently in physical therapy in an attempt to improve his mobility, his severe cognitive deficits limited his ability to re-learn. P. Ex. 4, at 18. Surveyor Truett observed Petitioner's nursing staff push Resident 21 to his bedroom in a geri-chair about 11:00 a.m. CMS Ex. 3, at 22; see CMS Ex. 9, at 5. Resident 21 was left sitting in the chair without a call signal within reach. She again saw Resident 21 at 1:00 p.m. sitting in the geri-chair, alone, in his bedroom without a call signal within reach. A few minutes later, Resident 21 was assisted to bed. Both of his side rails were raised, there were no mats placed beside the bed, and the resident was left without a call signal within reach. Tr. 61-62, 64; CMS Ex. 3, at 22. She concluded that Petitioner had failed to implement its planned interventions and physician's orders. Tr. 62; CMS Ex. 3, at 22. She said that mats on the floor are important because if a resident has been shown likely to attempt to get out of bed and fall, the mat will give him or her something soft to land on. Tr. 62. Surveyor Truett explained that for a patient who is able to crawl over side rails, having two rails raised may be more dangerous than one rail because the person cannot find an easy or normal exit from the bed. The risk of injury increases when a patient climbs over a side rail. Tr. 62-63. She testified that Resident 21 had a history of falls from the bed with the use of two side rails; therefore, using two side rails put him at greater risk for injury. Id. Petitioner's former nurse, LPN Holbrook, testified that Resident 21 was a "young" man who was demented but very strong. The facility tried many things to keep him safe. Nurse Holbrook recommended to the resident's family that he be in a low bed. The family was adamant that Resident 21 be placed in a regular height bed with side rails. Tr. 202-03. She claimed he did not have the cognition to use a call light. Tr. 203. A reading of this resident's records confirms he likely could not use a call light. See P. Ex. 4, at 17, 28. Petitioner provided no documentary confirmation that use of a low bed was discussed with Resident 21's family. More importantly, I find that Petitioner's failure to install bedside mats and use of two side rails rather than only one side rail, given Resident 21's fall history, is a failure to provide the necessary assistive devices to prevent accidents and injuries for Resident 21.
From September 15, 1999 to October 20, 1999, Resident 18 had a significant decline in functional abilities. CMS Ex. 3, at 23. He had severely impaired vision. CMS Ex. 7, at 24. He was to use a physical restraint at all times. CMS Ex. 3, at 23. On September 13, 1999, Resident 18 was being changed for incontinence care when he slid out of the chair to the floor, landing on his left hip. Id. Apparently, Resident 18 was holding onto the sink when he attempted to sit in the chair and he fell to the floor instead. See CMS Ex. 7, at 16; P. Ex. 5, at 55. On September 16, 1999, Resident 18 was found on the floor between the wall and his bed. CMS Ex. 3, at 23; see CMS Ex. 7, at 16; P. Ex. 5, at 55. CMS alleged that prior to this fall, Resident 18 had a history of falls from bed and interventions were not implemented to prevent further falls. CMS Ex. 3, at 23. Petitioner's exhibits do show that, on October 9, 1999, Resident 18 was found lying face down on the floor with a 1 centimeter laceration on his forehead. P. Ex. 5, at 52; see CMS Ex. 3, at 23. Resident 18's clinical record said nothing about why Resident 18 did not have a tray restraint on his wheelchair or why it was ineffective in preventing this fall. Id. Surveyor Truett requested further information from the facility but none was provided. Tr. 64-65. Petitioner had tried to reduce the restraints used with this resident. P. Ex. 5, at 56-57. Further, Petitioner's former nurse, LPN Holbrook, testified that the facility used a tray to position Resident 18 but that Resident 18 removed the tray restraint himself in the wheelchair. Tr. 203-04. She said the staff reinstated Resident 18's bed side rails and he had no more falls. Tr. 204; see CMS Ex. 7, at 17-19. I find that Petitioner was fully aware by September 17, 1999, that Resident 18 had decreased safety awareness. P. Ex. 5, at 57. Petitioner provided no evidence that Resident 18's prior falls resulted because he had himself removed a tray restraint from his chair. I find the greater weight of the evidence is that Petitioner failed to provide the supervision or side rails or a tray restraint necessary to prevent Resident 18 from falling.
Section 483.75(f) of 42 C.F.R. requires a facility to ensure that its nurse aides are able to demonstrate competency in skills and techniques necessary to care for residents' needs, as identified through assessments, and described in the plan of care. CMS alleged that Petitioner's nurses aides were unable to demonstrate proficiency in the skills necessary for resident transfers. CMS Ex. 3, at 27. I find that CMS provided insufficient evidence to prove that Petitioner's nursing staff could not demonstrate competency in transferring residents. Petitioner successfully rebutted CMS's claims that Petitioner had not substantially complied with 42 C.F.R. � 483.75 with respect to two incidents.
Resident 18 was assessed as totally dependent upon two or more staff members for transfers due to the limited range of motion of his lower extremities. CMS Ex. 3, at 28; P. Ex. 5, at 58. Surveyor Truett observed the staff transfer Resident 18 from a chair to his bed. Resident 18 had an intravenous catheter in his right forearm. Two nurse aides placed a gait belt on Resident 18 but it was loose around his waist. Both of the nurse aides then placed their arms under the resident's armpits and lifted him without supporting or controlling the resident's lower extremities. Resident 18 did not bear weight, resulting in all of his weight being supported under his axillary region. CMS Ex. 3, at 28; see CMS Ex. 7, at 7. According to Surveyor Truett, this put Resident 18 at risk for bone and soft tissue injuries. See Tr. 69.
Resident 19's diagnoses included a left below the knee amputation, degenerative joint disease, and compression fractures of the spine. CMS Ex. 3, at 28; P. Ex. 7. Surveyor Truett observed Resident 19 being transferred from a geri-chair to her bed. The nurse aides had not locked the geri-chair wheels prior to the transfer. The nurse aides placed their arms under Resident 19's armpits and lifted her without supporting or controlling her body or lower extremities. Resident 19 did not bear weight and was supported by her armpits, a method of transfer, as alleged by CMS, that was likely to put the resident at risk for bone and tissue injuries. CMS Ex. 3, at 28-29; see CMS Ex. 8, at 8; see Tr. 69. Neither of the residents who were transferred as described by CMS was injured. Tr. 178. Nurse Westermeyer testified about Petitioner's intensive training program for nurse aides on the use of gait belts. She said that gait belts can be positioned correctly and snugly and, nonetheless, the belts will move in the middle of the transfer. Tr. 178-79. According to Nurse Westermeyer, while supporting a resident during transfer under the arms has the potential for some injury, letting a resident fall due to a loose gait belt could also cause injury to the resident. Tr. 179. CMS provided no rebuttal to Nurse Westermeyer's credible testimony that gait belts often slip during transfer. With respect to the November survey as a whole, I find that Petitioner was not in substantial compliance with a number of federal requirements (Tags F309, F314, F316, F317, and F324). Several residents incurred actual harm from Petitioner's noncompliance. CMS determined Petitioner was back in compliance on December 9, 1999. CMS is authorized to impose a per day CMP for Petitioner's noncompliance from November 5, 1999, through December 9, 1999. As explained more fully in Section IV., below, I also find the amount of the CMP of $1,150 per day is reasonable.
The State agency performed an annual recertification survey of Petitioner that ended on January 19, 2000. Based on the January survey results, CMS determined that Petitioner was again substantially noncompliant with federal long-term care requirements.
Section 483.15(g) of 42 C.F.R. requires a facility to provide medically-related social services to attain or maintain the highest practicable physical, mental, and psychosocial well-being of each resident. CMS alleges that Petitioner failed to provide appropriate social services to three residents. I find that Petitioner did fail to provide medically-related social services as required, but only with respect to Resident 105.
Resident 9's diagnoses included atrial fibrillation, diabetes, and depression. CMS Ex. 12, at 8. He was at Petitioner's facility primarily because his wife, who was substantially more debilitated than he, was living there. Resident 9 had a car at the facility and would, at times, use his car for errands or to take his wife to an appointment. See CMS Ex.15, at 15, 19; see Tr. 236. Resident 9's physician, without any direct knowledge of Resident 9's driving ability, advised the facility of her opinion that Resident 9 should not be driving. See P. Ex. 9, at 19-20; see Tr. 238. Resident 9 did not wish to give up his car or driving. See P. Ex. 9, at 11, 33, and 38. The facility counseled Resident 9 about driving and offered alternatives to him. CMS Ex. 15, at 18. The facility met with Resident 9, his family, a social worker, and a seniors' ombudsman group. They determined that, based on Resident 9's equation of self-esteem with his driving, there was no reason to take his driver's license or car away. See P. Ex. 9, at 10-11, 33-34, 39; Tr. 237-39. The facility asked Resident 9 to sign a release and relinquish the facility from liability resulting from his driving. CMS Ex. 15, at 27, 32; P. Ex. 9, at 12, 18-21. Although the facility had not done a formal assessment of Resident 9's driving, the social service designee and activities director, Mary Masminster, rode with Resident 9 in his car on several occasions. She described Resident 9 in her testimony as a capable driver who observed traffic laws. Tr. 235-36. Nursing notes document that Resident 9 drove to the hospital to see his wife on July 30, 1999. CMS Ex. 15, at 15. On September 3, 1999 and September 6, 1999, he again drove to the hospital to see his wife. Id. at 16. On October 7, 1999, he drove his wife to the hospital. Id. at 17. After he was there for several hours, Resident 9 could not find his car in the hospital parking lot and the hospital notified Petitioner that Resident 9 was not sure he could find his way back to the facility. Id. Ms. Masminster went to the hospital and picked up the resident. Tr. 238-39. On October 15, 1999, Resident 9 returned from a hospital visit with his wife and had some difficulty being reoriented by the staff. CMS Ex. 15, at 14. According to Ms. Masminster, Resident 9 did not have the diagnoses that the State agency listed in the SOD. He was not demented. Tr. 238. Ms. Masminster stated that when he could not find his car in the hospital parking lot, he had the presence of mind to have the hospital call the facility and indicate his inability to return. Tr. 239. She testified that, moreover, Resident 9's wife's health was rapidly deteriorating. He was extremely stressed by his wife's medical condition. Tr. 238-39. CMS determined that the facility should have done a mini-assessment of Resident 9 every time Resident 9 indicated he wanted to leave in his car. I disagree. It is an anomaly that the facility had a resident who was capable of driving. Petitioner's social services personnel did counsel the resident and the resident's family about the resident's ability to drive. See P. Ex. 9, at 18-21, 33-34. The facility, however, must balance its requirement to provide social services so that the resident attains the highest practicable physical well-being (the avoidance of accidents and physical injury) against the resident's mental well-being. Of course, the facility may be responsible to not allow other residents to ride with a resident with questionable driving skills. There is no evidence Resident 9 drove with any other resident besides his wife. The social services designee was willing to ride with Resident 9 herself. The preponderance of the evidence is that Resident 9's mental well-being required some freedoms. Petitioner's social services personnel was directly involved in working with Resident 9 regarding his driving and need for safety. I find that with respect to Resident 9, CMS failed to prove that the facility did not substantially comply with 42 C.F.R. � 483.15(g).
Resident 105 had diagnoses of schizophrenia, cirrhosis with hepatic encephalopathy, diabetes and a history of alcoholism. See P. Ex. 12, at 1; see CMS Ex. 26, at 36. (8) The resident had a history of signing himself out of the facility against medical advice. CMS Ex. 12, at 9. On October 26, 1999, Resident 105's physician's progress note indicated Resident 105 was leaving the facility over the weekend, getting drunk, and fighting. CMS Ex. 26, at 29. His physician stated Resident 105 should not be permitted to leave against medical advice and should either be on a secured unit or live in the community and be more responsible for his actions. Id. Petitioner's social services entered into a contract with Resident 105 which allowed Resident 105 to provide his own transportation and leave the facility, but prohibited him from returning to the facility if he was intoxicated, and provided that the facility would proceed with a discharge if his whereabouts were unknown for 24 hours. CMS Ex. 26, at 31. The resident left the facility on November 16, 1999, and returned on November 17, 1999. CMS Ex. 26, at 22. CMS's cited deficiency is based on the absence of social service records of a determination of Resident 105's blood alcohol level upon returning to the facility, the physician's recommendations, conversations in the prior three months with the resident concerning his behaviors, and the safety of the resident when he was out on a pass. CMS Ex. 12, at 10. Mary Masminster, the facility's social services designee, testified that Resident 105 was his own legal guardian. Tr. 240. Although his physician did not feel that Resident 105 should come and go at will, the facility involved a seniors' ombudsman group. Ms. Masminster stated that because Resident 105 was not incompetent, Petitioner did not feel the facility could stop him from leaving. Tr. 240-41. Ms. Masminster did search for a less restrictive setting for Resident 105. She also put Harmony Court's phone number and address and her name as the contact person on Resident 105's identification so that the facility could be contacted if necessary. Tr. 241. Further, this resident was counseled about the risks of alcohol consumption while out of the facility. CMS Ex. 26, at 5-6. He already had a diagnosis of liver disease. P. Ex. 12. I find this Resident 105's situation distinctly different than Resident 9's as discussed above. First, Resident 105 was far more likely to injure himself physically by leaving the facility, by drinking, and/or fighting. Moreover, Resident 105's leaving the facility to obtain alcoholic beverages does not present the same need as Resident 9's for wholesome independence. The facility would not allow a wandering Alzheimer's resident to leave the facility because of the inherent probability of physical danger to the resident. Similarly, Resident 105 put himself in harm's way by leaving the facility, and drinking and fighting. Putting an address and phone number on his person were insufficient to protect him. Social services should have been more actively involved in keeping him from leaving the facility or in finding him alternative living arrangements, as suggested by his physician. Residents who are unable to care for themselves should not be signed out of the facility without adequate oversight.
Resident 72 was a 24-year-old man who had been admitted to the facility from a rehabilitation hospital after a drug overdose and had progressed from being comatose, on tube feeding, to being an ambulatory resident who fed himself and could communicate with the staff. CMS Ex. 24. Physician progress notes from the day of admission stated the goal was to discharge this resident to his home. CMS Ex. 12, at 12; see CMS Ex. 24, at 29. A physician's assessment dated December 30, 1999, describes Resident 72 as having achieved fairly good motor recovery. P. Ex. 26, at 3; CMS Ex. 24, at 6. CMS alleges that Petitioner's social service records contained no information about goals for this resident to meet for discharge. CMS Ex. 12, at 12. (9) Nor did the records, according to CMS, contain information about meetings with Resident 72's family concerning this goal, or "an exploration of community resources, or a progression or assessment of the young resident's psychosocial issues." Id. On the contrary, I find the records indicate the facility was involved with Resident 72's family in planning his care and discharge. CMS Ex. 24, at 5, 8, and 24. Petitioner also provided the testimony of Ms. Masminster to the effect that discharge of Resident 72 was discussed and was part of his care plan. She said that Resident 72 could not be discharged because he needed 24-hour care and was a high elopement risk. Tr. 236-37. In sum, CMS proved, with respect to Resident 105 only, that Petitioner failed to provide medically-related social services to ensure he maintained the highest practicable physical, mental, and psychosocial well-being. The deficiency with respect to this one resident, however, is sufficient to find that Petitioner was not in compliance with this federal requirement.
Section 483.15(h)(1) of 42 C.F.R. requires a facility to provide a safe, clean, comfortable and homelike environment, allowing the resident to use his or her personal belongings to the extent possible. CMS alleges that Petitioner failed to provide a homelike environment for its residents. As explained below with respect to Tag F 253, I do not find that Petitioner necessarily provided a safe, clean, or comfortable environment. I find only that with respect to the examples cited by CMS as supporting this cited deficiency, Petitioner did not prevent its residents from personalizing their rooms and, thus, was in substantial compliance with this aspect of the federal requirements. CMS alleged that 12 rooms in the facility did not have any personalization. CMS Ex. 12, at 13. CMS also alleged that Petitioner's behavioral unit did not have mirrors or clothes hangers in the resident rooms. Only the bathroom off of the unit's quiet room had a mirror. CMS also alleged that interviews with facility staff determined the facility was aware the mirrors were absent and that a few residents expressed a wish for mirrors but the problem had not yet been addressed or fixed. Id. According to CMS, residents in the unit complained they did not have any bar in their closets or hangers to hang clothes. CMS Ex. 12, at 13; see Tr. 103-04. Surveyor Thompson observed that one resident room had a large triangular shaped hook in the closet that held several dozen plastic hangers. CMS Ex. 12, at 13. Staff told the surveyors the resident's family must have placed the hangers and holder in the resident's closet. Id. Petitioner responded with testimony that the mirrors had been taken out of the behavioral unit because the mirrors were large mirrored closet doors and the facility was concerned about the residents' safety. By the time of the survey, Petitioner was in the process of installing stainless steel mirrors in the unit. Tr. 179 and 191-93. Moreover, two of the residents who were observed to have no personalization in their rooms were blind. Tr. 179-80. CMS provided no evidence that Petitioner denied residents the right to bring personal items into their rooms. Based on a review of the evidence as a whole, and the need for safety outweighing the need for a homelike environment, I find that Petitioner rebutted CMS's allegations by a preponderance of the evidence.
Pursuant to 42 C.F.R. � 483.15(h)(2), a facility must provide housekeeping and maintenance services necessary to maintain a sanitary, orderly, and comfortable interior. The surveyors made over 60 separate observations about Petitioner's failure to maintain the facility. CMS Ex. 12, at 14-25. Surveyor Thompson confirmed that she made observations under this tag and described her methods of inspecting residents' rooms. Tr. 104-07. She also explained at the hearing the accident hazards inherent in maintenance problems, such as the potential for residents to suffer skin tears from broken furniture. Id.; Tr. 106. The facility was found to be in compliance with federal regulations in December 1999. Many of the January survey observations for this tag relate to the facility's worn furniture and general environmental deterioration. One wonders how the facility could have been in compliance in December 1999 with a deteriorated environment, yet be out of compliance one month later at the time of the January survey. Nonetheless, I must consider the evidence related to the January survey. Moreover, the January survey was an annual recertification survey and it is likely the surveyors were concentrating on different issues than had been present in December 1999. I find the evidence clearly shows that Petitioner was not in substantial compliance with the requirements of 42 C.F.R. � 483.15(h)(2) at the time of the January survey. As examples of the poor condition of the facility during the January survey, CMS alleges that five chairs in the behavior unit had spots and dried substances on them and one chair had a broken arm; the heating unit in room #140 was not secured to the wall; burn holes were noted on a yellow chair in the shower room and sections of tile were missing in the room; the wall by the sliding glass door in room 302 was crumbling; room 315 had four holes in the wall; a wheelchair had torn vinyl on the arm and the foam padding underneath was exposed; more burned and damaged chairs were noted; room 115 had a large crack in the bathroom wall; rooms were breezy because of openings in sliding glass doors that were not closing properly; over-bed tables and dressers were worn and rough and could not be easily cleaned; other rooms had holes in the walls; the wallpaper in one dining room was peeling in three places; curtains were falling off rods in a resident room and the television room; floor tiles were missing in four rooms; closet door finish was worn in eight rooms; the medicine cabinet doors did not work in nine bathrooms; windows in two rooms would not shut completely, leaving an 1/8th inch crack; dresser drawers and handles were broken; a six-inch section of wall near the ceiling was peeling in one room; a large rip in one room's chair exposed padding and foam. CMS Ex. 12, at 15-24. Petitioner did not deny that the facility had the interior problems noted by the surveyors. Instead, Nurse Westermeyer, Petitioner's administrator, testified for Petitioner that the facility was in the process of being substantially renovated. She suggested the company that hired her had only recently purchased the facility. She was, however, unaware of the details. The facility's current owner was redoing a number of rooms each month. According to Ms. Westermeyer, by the time of the January survey, carpeting had been pulled up and replaced in 50 rooms, as well as the tile floors. Tr. 181-82. Petitioner, however, provided little evidence as to when the renovation had started or when it was scheduled to be completed. Petitioner submitted a March 14, 2000 facsimile transmittal to Ms. Westermeyer related to refurbishment. It was submitted without explanation and suggests the refurbishment was to be done in March 2000. P. Ex. 28. Petitioner also submitted a two-page schedule that corroborates Ms. Westermeyer's testimony that some of the renovation work was being done in late January, and some was scheduled for February and March of 2000. See P. Ex. 28, at 12-13. Of course, facilities in the midst of renovation should be given some leeway for painting or carpeting in progress. The picture of Petitioner's facility painted by the surveyors and unrebutted by Petitioner, however, suggests a facility that has failed to maintain its building and equipment for a long period of time. Occupied facilities should not have deteriorated to the point of doors and windows not closing, crumbling walls, sections of tile missing in rooms, and damaged furniture. These are maintenance problems that should be addressed on an ongoing basis. Moreover, CMS also alleges egregious lapses in appropriate housekeeping as cited by the surveyors. As examples, the surveyors made the following observations: an accumulation of dirt in the corners and edges of the floors in the behavior unit; the floor in room 134 was sticky; the bathroom in room 138 had a strong urine odor; in room 144, trash was on the floor and a cigarette butt was also on the floor; in room 146, a shower curtain had numerous brown spots and the curtain was dragging on the floor; in room 143, a pillowcase had a yellowish-brown 3-inch spot; four rooms needed the commodes cleaned and urine odors were present; the common shower room had a plastic bag with a soiled incontinence brief on the floor; general dust, dirt and stains were on the floors; the privacy curtains in several rooms were soiled, stained, or had holes; general dust and cobwebs were seen on fans, sliding glass doors, and vents; window curtains in room 328 were stained with mold; a foot board was missing from one bed in room 330 leaving two poles sticking up and the room smelled of urine and had furniture soiled with dried smears. CMS Ex. 12, at 16-23. Of course, housekeeping must be done in a facility regardless of ongoing renovations. Petitioner provided no testimony to rebut CMS's allegations. Petitioner did submit its job description for housekeeping and its room cleaning procedures. P. Ex. 15. No one for Petitioner rebutted, however, the alleged housekeeping omissions. Therefore, I find that Petitioner failed to comply with 42 C.F.R. � 483.15(h)(2) in that the facility failed to provide housekeeping and maintenance services necessary to maintain a sanitary, orderly, and comfortable interior.
Just as in the November survey, CMS alleged that Petitioner failed to meet the requirements of 42 C.F.R � 483.25(c) in that the facility failed to ensure that residents did not acquire avoidable pressure sores and that those who had pressure sores received the necessary treatment and services to promote healing, prevent infection, and prevent new sores from forming. I find that CMS proved by a preponderance of the evidence that Petitioner failed to comply with this requirement.
In particular, CMS alleged that Resident 13 had fractured her hip in April 1999 and was readmitted to the facility. See CMS Ex. 16, at 3. Resident 13 was also diagnosed with aortic stenosis, cardiomegaly, schizophrenia, and post traumatic stress disorder. P. Ex. 16, at 4. The facility's initial assessment of Resident 13 failed to identify this resident as a high risk for pressure sores. CMS Ex. 12, at 33; Tr. 112. Upon readmission, Resident 13 was not identified to have any left buttock or heel skin problems. CMS Ex. 12, at 34. By January 4, 2000, the resident had on her mid-back what had previously been identified as a blister-like area but had opened and appeared to be a Stage II pressure sore. It measured 7 cm x 3.5 cm. CMS Ex. 16, at 8. In addition, she had a bruised open area on her upper left buttock that was identified on January 4, 2000. The open bruise measured 4 cm x 5.5 cm. CMS Ex. 16, at 9. Moreover, she had fluid-filled blisters on both of her heels. CMS Ex. 16, at 14-15. According to Surveyor Thompson, the sore on Resident 13's left buttock was a deep open Stage II pressure sore on January 11, 2000. Tr. 113; see CMS Ex. 16, at 9. On January 5, 2000, the facility had obtained a physician's order that the resident was to be up in her chair only one hour for meals. CMS Ex. 12, at 34. During the survey, Surveyor Thompson observed Resident 13 in her chair approximately two hours during the breakfast meal and for an hour and one-half during the noon meal. See CMS Ex. 12, at 34. Additionally, the surveyor observed the staff provide incontinence care to Resident 13 and saw the nurse aide wipe stool toward the pressure sore dressing. The nurse aide wiped with enough force to lift off the edges of the dressing and visibly contaminate the gauze dressing with stool. See CMS Ex. 12, at 34; Tr. 114. The danger with allowing stool to come into contact with gauze dressing is that E. coli bacteria can get into the wound and cause infection. Tr. 114. In her testimony, Petitioner's nurse, LPN Washington, described Resident 13 as very white, very thin, and with skin vulnerable to break down. Nurse Washington said Resident 13 was difficult to treat because she would fight the care givers and she did not speak English. Tr. 248-49. When dressings were applied to this resident, she would rip them off. Tr. 249. LPN Washington was also adamant that Resident 13 was bruised on her buttocks and did not have a decubitus ulcer. According to LPN Washington, the bruise was crescent-shaped and she did not feel a pressure sore could be crescent-shaped. Tr. 249-50. Nurse Washington did not explain why she wrote in Resident 13's skin report that the wound "has characteristics of a Stage II area" on January 4, 2000. CMS Ex. 16, at 9. I find that Surveyor Thompson credibly described Resident 13's lesion on her left buttock as a pressure sore and that whether or not Resident 13 fought care or could not speak English, Resident 13 should not have been seated for as long as she was. Further, the resident's incontinence care was provided in such a way that Petitioner clearly was not doing all it could do to promote healing of Resident 13's pressure sores.
Resident 39 had muscle contractures and a Stage IV pressure sore on her coccyx. CMS Ex. 17; Tr. 117; CMS Ex. 12, at 35. She had physician orders to be out of bed for tube feeding only, which normally takes 20 -30 minutes. Tr. 117. Resident 39 was to have tube feedings at 7:00 a.m., 11:00 a.m., 4:00 p.m. and 7:00 p.m. CMS Ex. 12, at 35. On January 13, 2000, Surveyor Thompson saw Resident 39, at 5:00 a.m., sitting in a geri-chair even though Resident 39's tube feeding was still two hours away. Tr. 117. The resident was put back to bed after 6:00 a.m. CMS Ex. 12, at 35. To promote healing, sitting should be limited for a person with a Stage IV pressure sore on the coccyx. Tr. 117-18. When the surveyor saw Resident 39 sitting in a geri-chair for an hour, she asked the staff to put Resident 39 back into her bed. CMS Ex. 12, at 35. Petitioner's Nurse Washington testified that Resident 39 was in her chair early on the morning in question because her feeding tube had opened and had soiled the linen on her bed. Nurse Washington said the resident was put back to bed immediately after changing the linen. Tr. 250-51. Ms. Washington's testimony does not address why it took at least an hour for the staff to clean the linen on Resident 39's bed. The staff should have been aware that this resident was seated an inappropriately long time when she was to be seated again at 7:00 a.m. for her morning feeding. Surveyor Thompson also observed the nurse aide provide incontinence care for Resident 39. She saw the nurse aide wipe a stool-stained cloth over the bi-occlusive dressing on Resident 39's pressure sore, lifting the sealed dressing barrier and contaminating the dressing with stool. CMS Ex. 12, at 35. After Resident 39's incontinence care, Surveyor Thompson saw that the dressing was loose at the bottom and the gauze was visibly soiled. Id. Stool contamination on the dressing of a pressure sore does not promote healing. Id. Ms. Washington responded for Petitioner that Resident 39's wound was not contaminated with stool, only the top of the dressing was soiled. She said that staff were not permitted to change Resident 39's dressing. Staff called her after the incontinence care and she changed the dressing. Tr. 252. Again, Ms. Washington's testimony is not directly responsive. A cloth with stool on it should not come into contact with a dressing over a Stage IV pressure sore. If a facility's staff does soil such a dressing, the facility is not doing all it can to promote healing of a pressure sore. Moreover, Ms. Washington did not explain why Resident 39 was left seated for such a long period of time.
Resident 47 was diagnosed with dehydration and dementia with psychotic features. He had weight loss and failure to thrive. He had a feeding tube. CMS Ex. 20, at 1, 5. At the time of the January survey, Resident 47 had a newly acquired pressure sore on his coccyx, first identified on January 11, 2000. On that date, an area of skin breakdown left of his coccyx was measured as 3.0 cm by 2.4 cm and was superficially open, and an area of skin breakdown on the right of his coccyx was measured as 3.2 cm by 2.8 cm and was also superficially open. CMS Ex. 12, at 36; CMS Ex. 20, at 5-6. On January 11, 2000, Surveyor Thompson observed Resident 47 lying on his back in the far right side of his bed at 5:15 a.m., 5:30 a.m., 5:50 a.m., 6:51 a.m., and 10:30 a.m. Resident 47's plan of care included a "turn schedule." He was to be lying on his left side from 5 a.m. to 7 a.m. CMS Ex. 12, at 36. The next day, Surveyor Thompson observed Resident 47 multiple times between 10:45 a.m. and 1:45 p.m. Resident 47's established "turn schedule" said the resident was to be on his right side between 11:00 a.m. and 1:00 p.m. and on his left side between 1:00 p.m. and 3:00 p.m. Each time Surveyor Thompson observed Resident 47, he was lying on his back on the right side of the bed. CMS Ex. 12, at 36; see CMS Ex. 20, at 7. He had no position pillow in the bed to keep him from turning onto his pressure sore. CMS Ex. 12, at 36. Surveyor Thompson testified that Resident 47 should have had a "turn pillow" or similar device to keep him from rolling over onto the same pressure area. Tr. 120. She saw that Resident 47's pressure sore had increased slightly. CMS Ex. 12, at 36. Nurse Washington testified that Resident 47 caused his own superficial pressure sores because he squirmed in bed. She said the facility had tried interventions to keep him from squirming. Eventually, the day after the survey, the facility bought a big body pillow to prop him in place and that seemed to contain his squirming. Tr. 252-53, 261. She said the facility had not purchased the pillow previously because Resident 47 had no pressure sore previously. Tr. 261. Obviously, if Resident 47 had a turn schedule in place, the facility was on notice that he should be turned regularly - and prevented from being in the same position for excessive periods of time due to his compromised skin condition - in order to prevent pressure sores and to promote healing of the sores he had acquired. The facility, by not employing some type of device, such as a rolled blanket or body pillow, was not doing all it could do to prevent sores from developing or to promote the healing of Resident 47's pressure sores. The evidence shows that Petitioner did not do all it could have done for these three residents to prevent new avoidable pressure sores from developing or to promote healing and prevent infection. Petitioner was not in substantial compliance with 42 C.F.R. � 483.25(c).
Section 483.25(d)(2) of 42 C.F.R. 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. I find that CMS proved by a preponderance of the evidence that, as alleged, Petitioner failed to comply with 42 C.F.R. � 483.25(d)(2) with respect to Resident 39.
Surveyor Thompson observed Resident 39 receiving incontinence care. Tr. 120. The resident had been incontinent of stool. Surveyor Thompson observed the nurse aide failing to turn the cloth after wiping the stool from Resident 39's perirectal area before wiping the opening to the urinary tract. CMS Ex. 12, at 37. She testified that the better practice is to either turn the cloth to a clean area or get a different cloth. She stated that this failure put Resident 39 at risk for urinary tract infections. Tr. 120-21. Ms. Fiehrer testified for Petitioner that what Surveyor Thompson observed was not typical of the incontinence care provided at the facility. Tr. 168. She explained that the facility's nurse aides go through a nurse aide training program and are separately trained by facility staff during orientation and again during the first 90 days of employment. Tr. 168-69. She testified that the staff does quality assurance monitoring and observes aides providing perineal care. She, herself, carries a checklist of steps necessary to properly provide care and compares the checklist with the care provided by the nurse aides. Tr. 169. In addition, she averred that quality assurance monitoring covers every area and every discipline. Tr. 169. Petitioner provided no testimony to specify during what period of time all of these procedures regarding training of nurse aides was taking place. The record does not contain any indication that these checking procedures were in place in January of 2000. The greater weight of the evidence is that the care provided Resident 39 was as Surveyor Thompson described and put Resident 39 at risk for a urinary tract infection. Ms. Fiehrer also testified that Resident 39 did not get a urinary tract infection. Tr. 169. The issue is not whether, in fact, Resident 39 actually contracted an infection, but whether she was receiving appropriate treatment and services to prevent such infections. I conclude she was not receiving appropriate treatment.
Section 483.25(h)(1) of 42 C.F.R. requires that the residents' environment remains as free of accident hazards as possible. I find that CMS proved Petitioner's facility contained several rooms where dangerous substances were too accessible to Petitioner's residents and presented the potential for more than minimal harm, especially to Petitioner's residents on the behavioral unit. See Tr. 123. CMS alleges that during the January survey, the surveyors observed that in room 104, fingernail polish remover, rubbing alcohol, and prescription mouth rinse with an expiration date of "9/16/98" were sitting out and unattended in the room's bathroom. CMS Ex. 12, at 38-39. The surveyors also observed that a supply closet was unlocked and unattended and had contained within it creams that had a warning label to avoid ingestion. Id. at 39. Moreover, the nurse aide supply closet was unlocked and unattended. This closet contained materials labeled for external use only. The surveyors further observed an unlocked and unattended storage closet in the facility's behavioral unit. This closet contained various cleaners and disinfectants with hazardous material warning labels. Id. Surveyor Thompson testified that she actually made the observations reported above, which were alleged in the SOD. Tr. 121-22. CMS also alleged that the surveyors found a coffee pot in the activity room of the behavioral unit that was turned on, was hot and unattended; an unlocked janitor closet on the "300" unit contained bottles of cleaners that had warning labels attached that said, "hazards [sic] to humans and animals;" a piece of carpet on the floor near the bed in room 305 did not have a non-skid backing and moved when it was stepped on; and Room 103 had a throw rug that slipped when stepped on. CMS Ex. 12, at 39-40. Surveyor Buczkowski testified that she had made these observations as written in the SOD. Tr. 145. Ms. Westermeyer, Petitioner's administrator, conceded that the janitor closet was unlocked. Tr. 187. Petitioner did not otherwise address any of the observations testified to by the surveyors at the hearing as noted above or the potential for harm caused by the hazardous materials. I can only conclude, therefore, that CMS presented a prima facie case that Petitioner was not in compliance with 42 C.F.R. � 483.25(h)(1) and Petitioner failed to rebut CMS's case.
Section 483.25(h)(2) of 42 C.F.R. requires the facility to ensure that each resident receives adequate supervision and assistance devices to prevent accidents. I conclude that, with respect to Resident 77, Petitioner was not in substantial compliance with 42 C.F.R. � 483.25(h)(2).
CMS alleges that Resident 77 was a cognitively impaired resident who was assessed as a high elopement risk with attempts to elope from the facility as recently as December 1999. CMS Ex. 12, at 41; see CMS Ex. 25, at 4. The physician's orders for Resident 77 at the time of the January survey called for every 15 minute checks of Resident 77 for risks of elopement and self-harm. On December 28, 1999, a physician's order was obtained for Resident 77 calling for an every-shift check of the placement of Resident 77's audible ankle bracelet. CMS Ex. 12, at 41; see CMS Ex. 25, at 3. As alleged in the SOD, the manufacturer's instructions for this ankle bracelet said the placement was to be checked at every shift change and a documented test of the ankle transmitter's performance should be done daily. CMS Ex. 12, at 41. The facility had no documentation to assure the bracelet's placement was checked every shift. Nor did the facility have documentation of the required every quarter hour check of the resident. The facility failed to document checks of the ankle transmitter's performance. CMS Ex. 12, at 41; see Tr. 145-46. Nurse Holbrook testified for Petitioner that Resident 77's ankle bracelet was constantly being checked because he would walk up to the doors and the bracelet would go off and he never actually eloped from the facility. Tr. 206-07. I do not find Petitioner's rather haphazard check of Resident 77's ankle bracelet to be the type of attention to the manufacturer's instructions or the response to the physician's order for an every 15 minute check that would suffice as "doing everything possible" to prevent accidents. The ankle bracelet was prescribed for Resident 77 and it should have been attended to as required to assure it worked. The fact that Resident 77 did not actually elope does not confirm that Petitioner was doing everything possible within its ken to prevent elopement. Resident 77 was not receiving adequate supervision to prevent accidents. In sum, with respect to the January survey, I find that Petitioner was not in substantial compliance with several federal long-term care participation requirements (Tags F250, F253, F314, F316, F323, and F324). Therefore, CMS is authorized to impose a per day CMP beginning on January 19, 2000.
The State agency performed a resurvey of Petitioner that ended on March 10, 2000. Based on the State agency's findings, CMS determined that Petitioner had not yet regained substantial compliance with participation requirements.
Section 483.25(h)(2) of 42 C.F.R. requires the facility to ensure that each resident receives adequate supervision and assistance devices to prevent accidents. CMS alleges that Petitioner's staff, knowing one resident required a two-person assist in most ambulatory activities, attempted to stand her up with only one person assisting. As a result, the resident fell and injured her head. CMS proved by a preponderance of the evidence that Petitioner did not provide the supervision adequate to prevent this accident. I find, therefore, that Petitioner was not in substantial compliance with 42 C.F.R. � 483.25(h)(2).
Resident 12 had diagnoses of dementia, chronic mood disorder, history of cerebrovascular accident, expressive aphasia, and other medical problems. Resident 12's most recent comprehensive assessment stated Resident 12 was dependent on two staff members for bed mobility and toileting and for transfers and bathing. P. Ex. 31, at 9-10. A RAP assessment indicated Resident 12 was at increased risk for falls. CMS Ex. 33, at 7, 9. (10) Resident 12's behaviors were unpredictable and warranted close supervision; she fought care. Id. at 8. Petitioner's nurse's notes indicate that on February 25, 2000, Resident 12 slid from a geri-chair and fell to the floor. Resident 12 sustained a 1 cm skin tear on her forehead and a 1 cm open area on the bridge of her nose. P. Ex. 31, at 1. Resident 12 was in the bathroom with only one nurse aide. The nurse aide was attempting to stand Resident 12 up and toilet her after she had an incontinent episode. CMS Ex. 31, at 10. In an interview with the surveyor, the nurse aide stated she put a gait belt around Resident 12 and attempted to transfer her to a standing position to take off her soiled brief. Resident 12 slid forward and down in the chair. The nurse aide was on the wrong side of the chair and could not get at the gait belt. Resident 12 fell to the floor. This particular nurse aide verified she was alone with the resident. CMS Ex. 33, at 11. Upon being interviewed by the surveyors, Petitioner's Director of Nursing admitted that this resident should always be transferred and toileted by two people. CMS Ex. 33, at 8. On March 10, 2000, the last day of this resurvey visit, Resident 12 was screened by occupational therapy at the request of nursing staff. P. Ex. 31, at 15. The occupational therapist opined that Resident 12 was appropriate for an 18" wheelchair with a padded laptray. The therapist noted that Resident 12 is very fatigued at times and requires maximum assist for all transfers and activities of daily living. At other times of increased alertness, according to the therapist, Resident 12 was appropriate for a one-person transfer. The therapist added that at times of increased fatigue and decreased alertness, Resident 12 may benefit from lateral support and a wedge or pommel cushion to promote the resident's safety and comfort. Id. Petitioner submits this report to support its allegation that Resident 12 did not always need two people to assist with transfers and toileting. Petitioner, however, submitted no evidence about what state Resident 12 was in at the time of her fall. Pursuant to Petitioner's own occupational therapy evaluation, Resident 12, at times, requires maximum assist. Id. Moreover, Petitioner did not submit the testimony of its Director of Nursing at the time, and thus did not counter the surveyor's report of her interview with the Director of Nursing to the effect that it was known Resident 12 needed the assistance of two for transfers and toileting. As further evidence to support its contention that Petitioner had not failed to comply with 42 C.F.R. � 483.25(h)(2), Petitioner submitted the testimony of Nurse Holbrook that Resident 12 was not actually being transferred at the time of her fall, but she slid off the end of her chair. Tr. 209. Nurse Holbrook's statement is truly non-responsive because Resident 12's sliding off her chair occurred while a nurse aide was trying to get the resident in a standing position. This is the essence of a transfer. Had another staff member been present on the other side of the chair, the staff member could have intervened and prevented Resident 12's sliding off the geri-chair. Nurse Holbrook added in her testimony at the hearing that Resident 12 was demented, agitated, and combative. Id. This only supports CMS's allegation that additional supervision was known to be required when assisting Resident 12. Petitioner's evidence did not overcome CMS's evidence that Petitioner failed to provide adequate supervision for Resident 12 in order to prevent accidents. Petitioner was not in substantial compliance with 42 C.F.R.� 483.25(h)(2) and one resident experienced actual harm as a result.
Pursuant to 42 C.F.R. � 483.15(h)(2), a facility must provide housekeeping and maintenance services necessary to maintain a sanitary, orderly, and comfortable interior. Petitioner, according to CMS in its SOD, continued to have broken and torn furniture and inadequate housekeeping. CMS Ex. 31, at 2-4. CMS, however, provided no testimonial evidence with regard to these allegations even though two of the surveyors who were on the survey team testified at the hearing. CMS submitted the surveyors' notes apparently for these observations. See CMS Ex. 35. Neither of the surveyors, however, was asked to explain these notes or to verify their observations. I find that, although at times the SOD can be used as evidence, in this circumstance the SOD does not amount to a prima facie case for CMS.
Federal regulations
require a facility to develop a comprehensive care plan for each resident
that includes measurable objectives and timetables to meet a resident's
medical, nursing, and mental and psychosocial needs that are identified
in the comprehensive assessment. 42 C.F.R. � 483.20(k). As with its allegations
regarding Tag F 253, CMS presented no evidence with respect to this alleged
deficiency other than the SOD. The surveyors who testified did not attest
to the accuracy of the SOD or their notes. I find this evidence insufficient
in this circumstance to make a prima facie case.
Pursuant to 42 C.F.R. � 483.20(k)(3)(i), the services provided or arranged by a facility must meet professional standards of quality. CMS alleges that one resident did not receive medications as ordered. As with the other tags noted above, CMS presented no surveyor testimony attesting to their reports in the SOD or the surveyor notes. Based on such limited evidence, I cannot determine - and Petitioner could not test by cross-examination - the accuracy of CMS's allegations. I find that CMS failed to make a prima facie case regarding this alleged deficiency.
Pursuant to 42 C.F.R. � 483.25(h)(1), a facility must ensure that the resident environment remains as free of accident hazards as is possible. CMS alleges that during the March survey, a janitor's closet on the 100 unit was unlocked. The closet contained six gallon containers of cleaners with caution labels stored on a shelf. And on the closet floor there were multiple boxes containing gallon containers of cleaners. No staff were in the area of the closet at the time it was found to be unlocked. CMS Ex. 31, at 8. CMS also contends that two rooms had oxygen concentrators inside and there were no signs on the doors to the rooms warning of the potential hazards. Id. The surveyors also noted two resident rooms that had throw rugs without nonskid backing. Id. Finally, CMS contends that the 300 unit common shower room had the door propped open and there was an unlocked partially open cupboard inside containing a box of razors, a bag of razors, and toiletries with various warning labels. According to the SOD, Petitioner's staff stated a padlock was normally on this cupboard, but the padlock could not be located at the time of the survey. Id. at 9. Some of the CMS exhibits appear to be the surveyors' original notes on these observations. See, e.g., CMS Ex. 35, at 1-4. However, CMS failed to have the testifying surveyors attest to either the accuracy of the SOD or their notes. CMS also did not ask the surveyors to explain their notes. The notes are far too cryptic to suffice as a prima facie case. For this tag, CMS failed to make a prima facie case.
Federal regulations require that the nurses' station in a facility be equipped to receive resident calls through a communication system from residents' rooms and toilet and bathing facilities. 42 C.F.R. � 483.70(f). For one example of this cited deficiency, CMS alleges in the SOD the following: a surveyor observed a call light in one resident's room that had been disabled. Plastic tape had been folded into a small pad and tightly taped in a star pattern over the reset button in the resident's room. This action disabled the call light and when the button was pushed, the alarm did not sound or light. The resident was not in the room at the time of the surveyor's observation. Nursing personnel explained that the call light had been periodically sounding without being pushed so it was taped to disable it. Nursing staff had not notified maintenance about the dysfunctional call light. CMS Ex. 31, at 11-12. Surveyor Thompson testified for CMS that the SOD accurately reflects the observations she made during the survey. Tr. 127; see also CMS Ex. 35, at 1. Surveyor Thompson did not testify that the call light had been disabled for any appreciable time. Nor did she state where the resident was at the time the resident's room had a malfunctioning call light. Petitioner's nursing notes dated March 8, 2000, regarding this incident state that the resident's call light was alarming constantly and the staff was unable to turn it off. At the time, the resident was in the dining room under staff supervision. The call light was disabled by a staff member so that staff could be alerted if another resident required assistance. Maintenance was called. The resident was kept in the dining room or the TV lounge under staff supervision until the call light was fixed. The call light was repaired and the resident was returned to her room after lunch. CMS Ex. 34, at 1. The regulations require that a facility be equipped with a communication system. Petitioner had a communication system as required. One would expect Petitioner to keep the system operational. The regulations, however, do not require that the system never malfunction. In this circumstance, I find that Petitioner acted reasonably in disabling this resident's call light so that other alarms could be monitored and moving the resident to a place where she could be supervised. CMS did not prove, with this cited example, that Petitioner failed to comply with 42 C.F.R. � 483.70(f). In the second example of a deficiency under this tag, CMS alleges that, during the survey, a call light in one resident room had been sounding. The nurse aides in the room had difficulty shutting the light off with the reset button. When maintenance was notified, no problem could be found. The next day at 7:21 a.m., the resident residing in the room was observed in the doorway with the call cord in hand pressing the call light button. The call light was not sounding or lighting. After the staff attempted to fix the call light, maintenance, upon being again notified, called a manufacturer's representative who found a wiring problem with the call light and removed and replaced it by 1:00 p.m.. CMS Ex. 31, at 12-13. Surveyor Thompson also testified that this example in the SOD accurately reflected her observations during the survey. Tr. 127; see also, CMS Ex. 34, at 2. Nonetheless, if CMS had numerous examples of call light malfunctioning such that one could say de facto Petitioner had no communications system, I could accept that Petitioner had not complied substantially with the federal requirement that it have in place at the nurses' station a system to receive resident calls from residents' rooms and toilet and bathing facilities. In this case, Petitioner had a system in place as required. It malfunctioned twice while the surveyors were present. Without more evidence that this was a frequent occurrence, I conclude Petitioner was in compliance substantially with 42 C.F.R. � 483.70(f). With respect to the March survey as a whole, I find that Petitioner was not in compliance with 42 C.F.R. � 483.25(h)(2) at Tag F324. Because a single deficiency can support a finding of noncompliance, I find CMS was authorized to continue the per day CMP until CMS determined that Petitioner was back in substantial compliance.
Although Petitioner did raise the issue of the reasonableness of the amounts of the CMPs assessed against it in a cursory fashion in its various filings, Petitioner has provided no evidence or argument regarding its compliance history, financial condition, or degree of culpability that could be used to consider the reasonableness of the CMP amounts. The ALJ is to make a de novo review of the factors listed in 42 C.F.R. � 488.438(f) to evaluate whether a CMP is within a reasonable range. Community Nursing Home, DAB No. 1807 (2002). CMS provided no evidence other than an "OSCAR" report regarding the reasonableness of the CMPs. CMS Ex. 40. CMS, however, need not produce evidence relating to the factors in 42 C.F.R. � 488.438(f) unless the facility timely contends some listed factor(s) makes the CMP unreasonable. Id. at 22. The factors I must consider under 42 C.F.R. � 488.438(f) are: the facility's history of noncompliance, the facility's financial condition, the factors specified in 42 C.F.R. � 488.404, and the facility's degree of culpability. The factors listed in 42 C.F.R. � 488.404 include the scope and severity of the deficiencies, and the relationship of one deficiency to other deficiencies resulting in noncompliance. The regulations define culpability as neglect, indifference, or disregard for resident care, comfort or safety. 42 C.F.R. � 488.438(f)(4). Petitioner has not contended that its financial condition will be affected substantially by the payment of the assessed CMPs or that it cannot pay the CMPs. The regulations authorize a CMP in the range of $50 to $3,000 in cases where the noncompliance presents the potential for more than minimal harm, but not immediate jeopardy, to the residents. CMS assessed a CMP of $1,150 per day from November 5, 1999 through December 9, 1999. This assessment is mid-way between the allowed CMPs for the scope and severity of the deficiencies. Several of the deficiencies that CMS substantiated during the January survey resulted in actual harm to the residents by, inter alia: the development of pressure sores, diminishment in range of motion, and lack of appropriate incontinence care. Moreover, the development of pressure sores and lack of appropriate incontinence care shows a disregard for the residents' comfort. Based on these factors, I find that a CMP of $1,150 per day from November 5, 1999 through December 9, 1999, to be reasonable. CMS assessed Petitioner with a per day CMP of $550 per day from January 19, 2000 through March 25, 2000. The deficiencies determined during the January survey included one that resulted in actual harm from Petitioner's failure to ensure that pressure sores did not develop or that unavoidable sores could heal and this was a repeat deficiency. Additionally, Petitioner's failure to provide supervision and assistive devices as required and as determined during the March survey resulted in actual harm to a resident. I find, therefore, that the per day CMP assessed for the period of January 19, 2000 through March 25, 2000, was reasonable. See Findings III.B.7, III.C.1, above.
I conclude that Petitioner was not in substantial compliance with Medicare conditions of participation governing nursing home facilities from November 5, 1999 through December 9, 1999, and from January 19, 2000 through March 25, 2000. Further, the CMPs assessed by CMS for those days of noncompliance are reasonable. |
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| JUDGE | |
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Anne E. Blair Administrative Law Judge |
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1. Petitioner also objected to the admission of CMS Ex. 40, which is an Online Survey and Certification (Oscar) report. As the report only contained information about Petitioner and thus, could be readily verified by Petitioner, I overruled Petitioner's objection. Transcript (Tr.) at 8-10. 2. The burden of persuasion set forth in Hillman applies only where the evidence proffered by both sides is "in equipoise." In such cases, the burden of persuasion would be on Petitioner. 3. CMS also cited Petitioner under Tag F368. Although not specifically waived as a deficiency, CMS presented no evidence or argument with respect to this tag. 4. Resident 13 was identified mistakenly as Resident 19 on the SOD. CMS Ex. 3, at 4; Tr. 16. I find Petitioner was not prejudiced by this mistake because Petitioner was aware of the typographical error from the beginning of this dispute. Petitioner actually pointed out the error on its plan of correction by stating, "[p]lease note this is really resident #13, the only resident on this unit with a pelvic restraint." CMS Ex. 3, at 4. 5. As in many instances in this case, CMS did not submit any nursing notes or other contemporaneous documents to corroborate what the surveyor reviewed and reported in the surveyor notes and SOD. Hearsay is admissible in Civil Remedies Division hearings (42 C.F.R. � 498.61), and Petitioner does not deny the occurrences as described by the surveyors. While I do find surveyor notes to be less reliable evidence than copies of the documents the surveyor actually reviewed, the surveyors who testified at the hearing are long-time surveyors who follow regular methods in making notes during the surveys. Their survey notes can be considered more reliable as a result. Moreover, Petitioner had ample opportunity to cross-examine the surveyors or submit clinical records that rebutted the surveyors' allegations. 6. The SOD states that a "stage 1 pressure area was noted on the coccyx," but this appears to be an error. CMS Ex. 3, at 12. 7. Some information on both P. Ex. 4, at 7, and CMS Ex. 9, at 15 was left off of the copies. This information may refer to interventions but it is unclear. 8. CMS provided no testimony with respect to this tag and Resident 105. The documentary evidence with respect to this resident, however, is detailed, self-explanatory, and provides CMS's prima facie case. 9. CMS submitted no testimony regarding this tag and this resident. 10. CMS presented no testimony about this tag. The surveyor in preparing the SOD apparently relied on interviews she had with the staff about the incident. I find, nonetheless, that the documentary evidence regarding this tag have indicia of reliability in that the surveyor's notes are self-explanatory (CMS Ex. 33) and Petitioner had an opportunity to submit rebutting evidence from the staff members who were interviewed. Moreover, Surveyor Thompson, who had interviewed Petitioner's nurse aide who was involved in this incident, was available for cross-examination during the hearing. | |