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Department of Health and Human Services DEPARTMENTAL APPEALS BOARD Civil Remedies Division |
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Wayne View Convalescent Center, Petitioner, |
DATE: September 12, 2006 |
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Centers for Medicare & Medicaid Services.
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Docket No.C-02-734
Decision No. CR1502 |
| DECISION | |
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DECISION The Centers for Medicare & Medicaid Services (CMS) is authorized to impose a denial of payment for new admissions (DPNA) and a civil money penalty (CMP) against Petitioner, Wayne View Convalescent Center. A CMP in the amount of $235,600 is reasonable, based on a CMP of $10,000 per day for immediate jeopardy from May 15, 2002 through June 6, 2002, and an additional CMP of $100 per day from June 7, 2002 through August 1, 2002. I. Background From May 13, 2002 to May 21, 2002 (May survey), CMS conducted a comparative survey (1) of Petitioner's facility in order to determine whether Petitioner was complying with federal participation requirements. As a result of the May survey, CMS found that Petitioner was not complying substantially with federal participation requirements and cited 10 immediate jeopardy deficiencies and 13 additional deficiencies. A revisit survey was completed on June 7, 2002 (June survey). The June survey was to specifically determine whether the immediate jeopardy deficiencies had been abated. Tr. 154. (2) No Statement of Deficiencies (SOD) was produced as a result of the revisit survey because there were no new deficiencies. Tr. 163. Nevertheless, although the immediate jeopardy had been abated as of June 6, 2002, the CMS surveyors determined that seven of the 10 immediate jeopardy deficiencies were still out of compliance at a lower level of scope and severity. A second revisit survey was conducted from July 31, 2002 to August 2, 2002 (August survey). As a result of the August survey, CMS determined that two deficiencies remained out of compliance. By letter dated June 14, 2002, CMS notified Petitioner that it was imposing a DPNA, a CMP in the amount of $10,000 per day for immediate jeopardy from May 15, 2002 through June 6, 2002, and a CMP of $200 per day from June 7, 2002 until substantial compliance was achieved. In addition, CMS was prohibiting Petitioner from conducting a Nurse Aide Training and Competency Evaluation Program (NATCEP) for two years and Petitioner's provider agreement would be terminated on November 21, 2002 if it did not achieve substantial compliance by that date. By letter dated July 19, 2002, Petitioner filed a request for hearing, and this case was assigned to me for hearing and decision. The request for hearing was timely filed and I do have jurisdiction. By letter dated September 6, 2002, CMS notified Petitioner that based on CMS's acceptance of Petitioner's August 7, 2002 plan of correction, it had determined that Petitioner had corrected the two remaining deficiencies and had achieved substantial compliance as of August 2, 2002. The September 6, 2002 letter also notified Petitioner that the CMP of $200 per day continued until August 1, 2002 and that the total amount of the CMP imposed was $241,200. A hearing was held in this case from February 23, 2004 through February 27, 2004 in New York, New York. At the hearing, CMS introduced into evidence 97 exhibits (CMS Exs. 1-97). I received CMS Exs. 1-97 into evidence. Petitioner introduced into evidence a total of 56 exhibits. I did not receive into evidence Petitioner's exhibit (P. Ex.) 47 because it is irrelevant. Tr. 476. I received P. Exs. 1-46 and 48-56 into evidence. CMS presented three witnesses, all surveyors: Elias Enriquez, Robert Klaus, and Robert Fitzpatrick. Petitioner presented eight witnesses: Dr. Lidiu Rappaport, Medical Director; Barabara Vliet, Ombudsman; Barbara Dorisio, Nurse Consultant; Maria Fajardo, Administrative Assistant; Oona O'Haynes, Recreation Director; Anne Riley, Social Worker; Vincent Tufariello, Chief Financial Officer for Petitioner's parent company; and George Mervine, Consultant and Petitioner's former Administrator. II. Applicable Law and Regulations Petitioner is a long-term care facility participating in Medicare. The statutory and regulatory requirements for participation by a long-term care facility are found at sections 1819 and 1919 of the Social Security Act (Act), and at 42 C.F.R. Part 483. Sections 1819 and 1919 of the Act vest the Secretary of Health and Human Services (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. 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. Some surveys are conducted by surveyor-employees of CMS. The regulations contain special survey conditions for long-term care facilities. 42 C.F.R. �� 488.300-488.335. Pursuant to 42 C.F.R. Part 488, CMS may impose a DPNA, a per instance, or a per day CMP against a long-term care facility when it is determined that the facility is not complying substantially with federal participation requirements. 42 C.F.R. �� 488.406; 488.408; 488.430. The regulations specify that a CMP that is imposed against a facility on a per day basis will fall into one of two broad ranges of penalties. The upper range of CMP, 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. The lower range of CMP, 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. There is only a single range of $1,000 to $10,000 for a per instance CMP. 42 C.F.R. �� 488.408; 488.438. The presence of even one substantial deficiency - without regard to the presence or absence of others and without regard to its actual level of severity - would be sufficient to justify the imposition of a DPNA. In setting the amount of the CMP, CMS considers the following factors: (1) the facility's history of noncompliance; (2) the facility's financial condition; (3) the factors specified in 42 C.F.R. � 488.404; and (4) the facility's degree of culpability, which includes neglect, indifference, or disregard for resident care, comfort, or safety. The absence of culpability is not a mitigating factor. 42 C.F.R. � 488.438(f). The factors in 42 C.F.R. � 488.404 include: (1) the scope and severity of the deficiency; (2) the relationship of the deficiency to other deficiencies resulting in noncompliance; and (3) the facility's prior history of noncompliance in general and specifically with reference to the cited deficiencies. Pursuant to 42 C.F.R. � 488.301, "(i)mmediate jeopardy means a situation in which the provider's noncompliance with one or more requirements of participation has caused, or is likely to cause, serious injury, harm, impairment, or death to a resident." (emphasis in original). Further, "(s)ubstantial compliance means 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." Id. (emphasis in original). 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. Batavia Nursing and Convalescent Center, DAB No. 1904 (2004); Batavia Nursing and Convalescent Inn, DAB No. 1911 (2004); Emerald Oaks, DAB No. 1800 (2001); Cross Creek Health Care Center, DAB No. 1665 (1998); Hillman Rehabilitation Center, DAB No. 1611 (1997), aff'd Hillman Rehabilitation Center v. U.S. Dept. of Health and Human Services, No. 98-3789 (D.N.J. May 13, 1999). The Act and regulations make a hearing before an administrative law judge (ALJ) available to a long-term facility against whom CMS has determined to impose a CMP. Act, section 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 F.2d 678 (8th Cir. 1991). A facility has a right to appeal a "certification of noncompliance leading to an enforcement remedy." 42 C.F.R. � 488.408(g)(1); see also 42 C.F.R. �� 488.330(e) and 498.3. However, the choice of remedies by CMS or the factors CMS considered when choosing remedies are not subject to review. 42 C.F.R. � 488.408(g)(2). A facility may only challenge the scope and severity level of noncompliance found by CMS if a successful challenge would affect the amount of the CMP that could be collected by CMS or impact upon the facility's nurse aide training program. 42 C.F.R. �� 498.3(b)(14) and (d)(10)(i). CMS's determination as to the level of noncompliance "must be upheld unless it is clearly erroneous." 42 C.F.R. � 498.60(c)(2). This includes CMS's finding of immediate jeopardy. Woodstock Care Center, DAB No. 1726, at 9, 38 (2000), aff'd, Woodstock Care Center v. U.S. Dept. of Health and Human Services, 363 F.3d 583 (6th Cir. 2003). The Departmental Appeals Board (Board) has long held that the net effect of these regulations is that a provider has no right to challenge the scope and severity level assigned to a noncompliance finding, except in the situation where that finding was the basis for an immediate jeopardy determination. See, e.g., Ridge Terrace, DAB No. 1834 (2002); Koester Pavilion, DAB No. 1750 (2000). III. Issues, findings of fact and conclusions of law
The issues in this case are:
I make findings of fact and conclusions of law (Findings) to support my decision in this case. I set forth each Finding below as a separate heading and I discuss each Finding in detail. I do not discuss herein every deficiency that was cited by the surveyors at the three surveys in issue. The Board has previously approved an ALJ's discretion to exercise judicial economy and not discuss every alleged deficiency. Beechwood Sanitarium, DAB No. 1824 at 22 (2002); Beechwood Sanitarium, DAB No. 1906 (2004); Western Care Management Corp., d/b/a Rehab Specialties Inn, DAB No. 1921 (2004). Substantial noncompliance with only one participation requirement can support the imposition of a penalty. Beechwood Sanitarium, DAB No. 1824. Immediate jeopardy exists if the facility's noncompliance has caused or is likely to cause, "serious injury, harm, impairment or death to a resident." 42 C.F.R. � 488.301. CMS's determination as to the level of noncompliance "must be upheld unless it is clearly erroneous." 42 C.F.R. � 498.60(c)(2). This includes CMS's finding of immediate jeopardy. Woodstock Care Center, DAB No. 1726, at 9, 38 (2000), aff'd, Woodstock Care Center v. U.S. Dept. of Health and Human Services, 363 F.3d 583 (6th Cir. 2003). The Board has observed repeatedly that the "clearly erroneous" standard imposes on facilities a "heavy burden" to show no immediate jeopardy, and has sustained determinations of immediate jeopardy where CMS presented evidence "from which '[o]ne could reasonably conclude' that immediate jeopardy exists." Barbourville Nursing Home, DAB No. 1962, at 11 (2005); Florence Park Care Center, DAB No. 1931, at 27-28 (2004), citing Koester Pavilion, DAB No. 1750 (2000). In general, the F-Tags and residents I have focused on and discussed in this decision are those which, in my opinion, sustain the immediate jeopardy level findings for the period May 15, 2002 through June 6, 2002, a period of 23 days, thus invoking the "upper range" of the CMP. In the case before me, Petitioner has failed to show that CMS's determination of noncompliance at an immediate jeopardy level is clearly erroneous. Then, since Petitioner remained out of compliance, albeit at lower scope and severity levels, from June 7, 2002 until August 1, 2002, a period of 56 days, I address two F-Tags which occurred during the final survey. CMS proposed a CMP of $200 per day for this 56 day period. The period of non-compliance continued until August 1, 2002 based on Tag F241 (the "Mommy" incident on August 1, 2002) and Tag F444 (the observed failure of handwashing on July 31, 2002 and August 1, 2002). I do not sustain the incident recounted by CMS under Tag F241 on August 1, 2002. Therefore, it is reasonable to reduce the CMP for the 56 day period of non-compliance, from June 7, 2002 until August 1, 2002, from $200 per day to $100 per day. The deficiencies I have found herein provide a sufficient basis to affirm the finding of immediate jeopardy and the imposition of the CMP, as modified, against Petitioner. May Survey
The May 2002 survey found that Petitioner was not in substantial compliance, at an immediate jeopardy level (level K), with the regulation concerning abuse which provides that:
42 C.F.R. � 483.13(b). The regulation concerning abuse further provides that the facility must develop and implement written policies and procedures that prohibit mistreatment, neglect, and abuse of residents. It must not use verbal, mental, sexual, or physical abuse, corporal punishment, or involuntary seclusion. 42 C.F.R. � 483.13(c)(1)(i). It must ensure that all alleged violations involving mistreatment, neglect, or abuse, including injuries of unknown source, are reported immediately to the facility Administrator and to other officials in accordance with state law through established procedures. 42 C.F.R. � 483.13(c)(2). The facility must have evidence that all alleged violations are thoroughly investigated, and must prevent potential abuse while the investigation is in progress. 42 C.F.R. � 483.13(c)(3). The results of all investigations must be reported to the Administrator or his designated representative and to other officials in accordance with state law within five working days of the incident. If the alleged violation is verified, appropriate corrective action must be taken. 42 C.F.R. � 483.13(c)(4). The regulations define "abuse" as "the willful infliction of injury, unreasonable confinement, intimidation, or punishment with resulting physical harm, pain, or mental anguish." 42 C.F.R. � 488.301. Malice is not a necessary component of abuse. Although abuse involves "willful" conduct (42 C.F.R. � 488.301), this does not mean that the actor intended to inflict harm; it means that his/her action was "undertaken deliberately." If I find that staff conduct was undertaken deliberately or intentionally, or was performed in an unreasonable manner, and that a resident has suffered physical harm or mental anguish, then I must conclude that such a resident was not free from physical and mental abuse, and, therefore, the facility was not in substantial compliance with 42 C.F.R. � 483.13(b). Vandalia Park, DAB No. 1939, at 12 (2004). Petitioner was out of compliance with this regulation at an immediate jeopardy level as it concerns residents 3, 15, 18, and as it concerns the incident witnessed by resident 17's daughter. The evidence shows that Petitioner was aware of allegations of abuse involving fully cognizant residents but that these allegations were either never investigated or acted upon. In essence, Petitioner just ignored these allegations.
Surveyor Elias Enriquez interviewed R3 on May 14, 2002. R3 was observed to have circular shaped areas of pinkish red discoloration (ecchymosis) on her right forearm (Tr. 35; CMS Ex. 2, at 7-8) and yellowish bruises on her left arm which were fading. Tr. 35. R3 informed the surveyor that, a month or two before the survey, her arm was hurt by a Certified Nurse Assistant (CNA) on the night shift when the CNA turned her roughly (3) while the CNA was angry or upset. See Tr. 31; CMS Ex. 69, at 2-3, 6. According to R3, she reported the incident to the day nurse who told her that the bruises on her arm were due to her taking Plavix, an anticoagulant medication. Tr. 33. R3 did not accept the nurse's explanation and maintained that her arm was hurt from the abuse of the CNA and that her arms do not hurt when she takes her medication. Id. Review of the medical records from January 8 through May 12, 2002, show no notation of any marks on the resident's arms, including weekly skin assessments done on April 1, 8, 15, 22, and May 6, and 13, 2002. CMS Ex. 2, at 8. The medical records indicate that R3's skin was intact even though the surveyor observed the bruising. Id.; Tr. 33, 637; P. Ex. 1, at 68-69. The day charge nurse, when interviewed by the surveyor, stated that, after talking to R3, he did not report this incident because he looked up Plavix and discovered that bruises were a side effect. Tr. 34; CMS Ex. 2, at 8. The Medical Director, Dr. Rappaport, was interviewed about R3. According to Dr. Rappaport, reddish purple bruises are a side effect of anticoagulant therapy. Tr. 34. Grab marks and bruises will change color and fade to yellow over time. Tr. 35, 624. However, Dr. Rappaport admitted, during his testimony and to the surveyor, that he had never asked the resident how she got the bruises on her arm. Tr. 36, 636; CMS Ex. 2, at 8. This allegation of abuse is supported by a statement by Anne Riley, Social Worker. CMS Ex. 69, at 6. In Ms. Riley's statement dated May 15, 2002, she states that R3 told her of the incident where the CNA grabbed her tightly to reposition R3, resulting in bruising on R3's arm, which happened at about 5 a.m. when the CNA was in a hurry to get home. Ms. Riley's statement further relates how R3 told her that R3 reported this incident to a nurse, was told that the bruising was from her medication, and that the CNA later apologized to R3. Id. Petitioner argues that this is not an example of abuse, instead that the medication Plavix causes bruising. However, R3 was assessed by the facility as having no limitations in cognitive function and decision making. P. Ex. 1, at 22; Tr. 29-31. R3 was "alert, and oriented to person, time and place . . . . [s]he's able to communicate her needs, understood and understands other." P. Ex. 1, at 22. R3 complained of abuse to both the day charge nurse and the social worker. R3 also stated that the CNA involved came to R3 and asked her forgiveness. Tr. 115-16. Nevertheless, this incident wasn't followed up and investigated by the facility. The Medical Director never asked R3 how she acquired the bruises. A situation where a fully cognitive resident complains of abuse, has the bruises to show anyone interested, and is ignored, is disgraceful. Such a situation demands a further investigation of R3's complaint and is required by federal regulations. Petitioner further argues that this is not abuse because the element of intent is absent and the rough handling happened during the course of providing routine care to R3. Petitioner's argument is unavailing. Surveyor Enriquez testified that R3 told him that the CNA was angry or upset and that the CNA "grabbed" R3 when it was time for the CNA to go home. Tr. 88-89, 114; P. Br. at 6. The surveyor testified that when a CNA, in a moment of anger, directs that anger toward a resident resulting in rough handling that causes bruising, especially in the frail and elderly nursing home population, this is indeed abuse. Tr. 88. I agree, although I do not make a finding that the CNA was angry or upset, but only that the CNA repositioned R3 intentionally and in did so in an unreasonable manner. The ordinary and routine care of repositioning a resident for comfort and to avoid pressure sores, if done properly, should be painless and not cause bruising. Tr. 115. This incident should have been reported to the facility administration by both the day charge nurse and the social worker and was not. Also, at a minimum, this incident required further investigation. All allegations of abuse must be reported to facility administration, appropriate state officials, and must be thoroughly investigated. 42 C.F.R. � 483.13(c)(2) and (3).
R15 was assessed as needing staff assistance with toileting and personal hygiene because she had "highly impaired" vision, but was fully cognizant. Tr. 337-38; CMS Ex. 2, at 6. When interviewed by Surveyor Robert Fitzpatrick, R15 generally complained about trouble getting staff members to address her care needs. Tr. 336. R15 stated that "awhile ago" the staff had not responded to her call bell when she needed toileting assistance. R15 alleges that when she called for assistance, the staff did not respond, and so R15 attempted to toilet herself. Tr. 339, 501. As a result, she lost her balance, fell in the bathroom, and suffered a head injury. Tr. 339. Petitioner had an Incident/Accident report of this accident from October 6, 2001 which reflects that R15 was "found in a sitting position on the bathroom floor. [R15] was bleeding on R [right] forehead" and had a "small laceration also noted on L [left] temporal area." Tr. 339-40; CMS Ex. 60. The Incident/Accident report indicates that R15 was to be instructed to use her call bell to receive assistance when out of her bed in order to prevent a reoccurrence. However, R15 stated that she attempted to toilet herself because no one was responding to her call bell in the first place. Tr. 340; CMS Ex. 60. Petitioner's investigation confirms much of what R15 told the surveyor. Tr. 344-45; CMS Ex. 21, at 67, CMS Ex. 72. However, Petitioner claims, without any support, that R15 rang her call bell after she fell in the bathroom. Tr. 679, 911. There is no mention in the medical record of a call bell ringing at R15's bedside (Tr. 679) or in the bathroom. See P. Ex. 2, at 16. R15's allegation is supported by the facility's documentation of the fall, and her daughter's complaint to the front desk about her mother's care. (4) Tr. 340-41. I find R15's account of her fall to be reliable, especially since Petitioner's Minimum Data Set (MDS) for R15 indicates that R15 has no cognitive limitations. P. Ex. 2, at 9-10; Tr. 337-38. (5) R15's allegation is also supported by Petitioner's social worker's notes. The surveyor confirmed that R15's difficulty in getting care was noted in Petitioner's social worker's notes. Tr. 341-43; CMS Ex. 2, at 26. The social worker's notes show that R15's daughter had expressed concerns regarding the staff's slow response to call bells as far back as April 9, 2001. CMS Ex. 2, at 26. However, no action was taken by the social worker to address R15's difficulties or R15's daughter's complaint. Id. Petitioner argues that I should not rely on the social worker's notes since CMS failed to offer them into evidence. Petitioner, however, did not provide me with the social worker's notes which would have cleared up this entire point. Since the social worker's notes were in the complete control of Petitioner, and Petitioner did not provide me with them but was on notice from the Statement of Deficiencies that these notes were at issue, I find Petitioner's argument to lack merit.
Another allegation of abuse was made by the daughter of R17, which was never investigated. The daughter of R17, who was extremely involved with her mother, was interviewed by Surveyor Robert Fitzpatrick. During the interview, R17's daughter stated that, approximately four weeks earlier, while wheeling her mother down the second floor hallway, she saw Petitioner's staff attempting to free two residents in wheelchairs who had gotten the wheels of their wheelchairs tangled. Tr. 333; CMS Ex. 2, at 5. She stated that she saw a staff member repeatedly hit and forcibly remove a resident's hand from the armrest of one of the wheelchairs. Id.; CMS Ex. 57, at 7. She stated that she has never been contacted by anyone about this incident, even though she was the main witness to the incident and reported it to the head nurse on the second floor unit, to the nursing supervisory and administrative staff, and to a social worker. Tr. 333-34; CMS Ex. 2, at 5-6. The social worker was interviewed about this incident and admitted that R17's daughter had reported this incident to her. The social worker verbally reported this allegation to the Dirctor of Nursing (DON), but did not report this allegation of abuse to the State agency or any other agencies as required by State law and Petitioner's own policy, nor had she taken any corrective actions to protect residents from future potential abuse. Id. at 6; see also CMS Ex. 47, at 1. The DON and the Administrator denied any knowledge of this allegation of abuse and no report was made documenting this incident. CMS Ex. 57, at 10, CMS Ex. 79, at 1. Petitioner presented the testimony of Nurse Consultant Dorisio. Ms. Dorisio testified that, in such a situation, it is reasonable for staff to use force to remove a resident's hand and free the wheelchairs in order to avoid resident to resident altercations and to prevent a resident's hand from getting caught in the wheels. Tr. 671. There is a dispute concerning whether the resident's hand was in danger of getting caught in the wheel of the wheelchair or not. CMS claims that this danger did not exist in this case because one resident grabbed hold of the other resident's armrest and not the wheel. This dispute begs the question. The point is that the incident reported by R17's daughter was not investigated, as evidenced by the fact that R17's daughter was never interviewed about this incident, and the fact that both the DON and the Administrator denied any knowledge of this allegation of abuse and no report was made documenting this incident. CMS Ex. 57, at 10, CMS Ex. 79, at 1. Petitioner argues that the resident being hit, and the CNA who was the alleged abuser, were never identified, and that CMS, therefore, does not meet its burden of presenting a prima facie case. I disagree. Resident 17's daughter witnessed this event and reported it to everyone she could think of at the facility who would be in a position to take action. It was not up to R17's daughter to identify the alleged abused and abuser. That is the function of the investigation that should have been performed by the facility. Petitioner failed in it's duty to investigate this alleged incidence of abuse. Further, Petitioner failed to have any policy or procedures that would address the proper response of staff in such a situation. Evidence was presented that Petitioner did not have any policy or procedure regarding the use of force against residents in such a situation, nor had any of the CNAs or other staff undergone any training as to the use of force. Tr. 907-8.
The Assistant Director of Recreation (6) was interviewed by Surveyor Enriquez on May 15, 2002. Tr. 38-39; CMS Ex. 2, at 9. During the interview she informed the surveyor that she was aware of two incidents of abuse, one of which involved R18. The Assistant Director had memorialized these allegations of abuse in memo form and put the memos in the mailbox of the DON. Tr. 39. The Assistant Director gave the surveyor a copy of the memo dated March 29, 2002, which indicated that R18 claimed that she didn't get much sleep the night before because, when she requested help with urination three times from a CNA, she was told to "do it in the diaper" and the diaper was not changed. Tr. 40; CMS Ex. 62, at 3; CMS Ex. 74. The DON told the surveyor that she did not know anything about the recreation worker's memo. Tr. 41; CMS Ex. 74; CMS Ex. 2, at 10. R18 told the surveyor that the CNA had told her to go ahead and wet the bed because it was too much trouble to lift up her panties so that R18 could void into a bedpan. (7) Tr. 41; CMS Ex. 2, at 9-10; CMS Ex. 81, at 1-4. R18 was alert and oriented when interviewed. Tr. 41-42. The MDS for R18 indicated that R18 was capable of making decisions consistently and reasonably, and that there were no episodes of delirium or disordered thinking. P. Ex. 5, at 14-15. Surveyor Enriquez correctly determined that R18's allegations were substantiated. The DON never acknowledged these allegations, even though the Assistant Director put a written memo in the DON's mailbox. Further, the Assistant Director did not, herself, follow up on R18's complaint. Petitioner's consultant agreed that failure of the Assistant Director to follow up on this complaint was a violation of Petitioner's abuse policy. Tr. 914-15. A common thread exists in the incidents already discussed. The administration and supervisory staff claimed to be unaware of allegations of abuse made by residents. Residents or others reported incidents to staff members who should have taken responsibility to report these incidents to the proper authorities. Thereafter, nothing was done. The proper authorities were never informed, investigations were never conducted, and efforts were never made to prevent a reoccurrence of any abuse. Residents who were assessed as fully cognizant and with intact memories were ignored. Injuries were suffered by residents with no effort made to prevent future injuries. The situation at Petitioner's facility fully meets the definition of immediate jeopardy.
I need not address the incidents involving Residents 8, 16, or 20, under this deficiency tag. The facts behind those three incidents are not clear to me, most lack any objective corroboration, and, in some the residents have changed or have withdrawn their original complaints. The incidents involving R3, R15, R18, and the incident witnessed by R17's daughter, fully support this deficiency finding.
The May 2002 survey found that Petitioner was not in substantial compliance, at an immediate jeopardy level (level K), with the regulation concerning staff treatment of residents, which provides that the facility must not employ individuals who have been found guilty of abusing, neglecting, or mistreating residents by a court of law; or have had a finding entered into the state nurse aide registry concerning abuse, neglect, mistreatment of residents or misappropriation of their property; and report any knowledge it has of actions by a court of law against an employee which would indicate unfitness for service as a nurse aide, or other facility staff, to the state nurse aide registry or licensing authorities. 42 C.F.R. � 483.13(c)(1)(ii) and (iii). The facility must ensure that all alleged violations involving mistreatment, neglect, or abuse, including injuries of unknown source and misappropriation of resident property, are reported immediately to the Administrator of the facility and to other officials in accordance with state law through established procedures (including to the state survey and certification agency). 42 C.F.R. � 483.13(c)(2). The facility must have evidence that all alleged violations are thoroughly investigated, and must prevent further potential abuse while the investigation is in progress. 42 C.F.R. � 483.13(c)(3). The results of all investigations must be reported to the Administrator or his designated representative and to other officials in accordance with State law (including to the State survey and certification agency) within five working days of the incident, and, if the alleged violation is verified, appropriate corrective action must be taken. 42 C.F.R. � 483.13(c)(4). Petitioner was out of compliance with this regulation at an immediate jeopardy level as it concerns R3, R15, R18, and the incident reported by R17's daughter. CMS Ex. 2, at 11-19. The evidence shows that Petitioner was aware of allegations of abuse involving fully cognizant residents but that these allegations were either never investigated or acted upon. In essence, Petitioner just ignored these allegations. The underlying facts for this deficiency as it relates to R3, R15, R18, and the incident reported by R17's daughter, have been discussed above in Section III.B.1 of this Decision. In these cases, the surveyors determined that the facility failed to follow their own policy and procedures in order to attempt to determine potential causative factors to substantiate or deny the allegations raised by the residents under Tag F223. I sustain the immediate jeopardy deficiency as it relates to R3, R15, R18, and the incident reported by R17's daughter. Evidence was presented that there were incidents of alleged abuse by facility staff persons and Petitioner's Administrator and DON were unaware of these allegations, or, if aware, did nothing further to substantiate or prevent repetitions of potential abuse. For the reasons mentioned above, I do not address this deficiency as it relates to R8, R16, and R20.
The May 2002 survey found that Petitioner was not in substantial compliance, at an immediate jeopardy level (level K), with the regulation concerning the failure to follow policies to prevent abuse and requiring record checks of employees which provides that:
42 C.F.R. � 483.13(c)(1)(i) There is no dispute that Petitioner had an adequate abuse policy. The regulation, however, requires that such policies must be implemented and, as I found above, Petitioner did not do so. Further, I sustain this deficiency because the facility had a policy to do reference checks and criminal background checks for all CNAs and failed to implement this policy. Tr. 44. Surveyor Enriquez, after reviewing Petitioner's files, determined that three out of the seven CNA's files reviewed did not have any evidence of a reference check, and one of the seven CNA files reviewed showed that there was no evidence of a request for a criminal background check. (8) Tr. 44-45; CMS Ex. 2, at 20; CMS Ex. 14, at 1; CMS Ex. 64, at 2.
The May 2002 survey found that Petitioner was not in substantial compliance, at an immediate jeopardy level (level K), with the regulation concerning resident dignity and self respect which provides that:
42 C.F.R. � 483.15(a). Petitioner was out of compliance with this regulation at an immediate jeopardy level as it concerns Residents 15, and 31.
R15 was receiving dialysis treatments and had "highly impaired" vision. R15 needed assistance with her toileting and personal hygiene. CMS Ex. 2, at 21-22. While being interviewed, R15 stated that she was unable to wash herself and needed, but was unable to get, staff assistance to clean herself. R15 stated that she had not been washed in three days. She complained that many times she had gone without being bathed for up to a week and that, on several occasions, when using her call bell to request assistance, the staff had responded by asking why she had requested assistance or had been told by the staff that "you're driving me crazy." Id. at 22. She also attempted to toilet herself once when staff did not respond to her call bell, fell, and injured herself. This incident was discussed in section III.B.1.b of this Decision.
On May 20, 2002, R31 was observed by Surveyor Enriquez. R31's body was exposed in the shower room on the first floor. Tr. 98. Twice, the CNA caring for R31, partially opened the door to the shower room to obtain linen from the linen cart, and R31 was exposed to anyone in the corridor, sitting naked on a shower chair with his private parts exposed. Tr. 99; CMS Ex. 2, at 23. Petitioner does not deny this but instead contends that there was no other way to obtain linens from the linen cart except by opening the door. Tr. 99. Petitioner overlooks the fact that the CNA should have brought any needed clean linen into the bathroom with her and thereby not risked exposing the resident to anyone who was in the corridor.
Incidents involving R16 and R20 were also cited under this deficiency tag. For reasons already explained above in section III.B.1.e of this Decision, I do not address these incidents. I also do not address the incident involving R9 since I find it de minimus.
The May 2002 survey found that Petitioner was not in substantial compliance, at an immediate jeopardy level (level J), with the regulation concerning attention to resident's grievances, which requires that, where a resident's council exists, a facility must listen to and act upon any grievances and recommendations made. 42 C.F.R. � 483.15(c). Petitioner had a Resident Council that met, and minutes were taken of the meeting. Petitioner's social worker testified that she was regularly given minutes of the Resident Council which she would read. Tr. 1013, 1023. Almost a month after the Resident Council's meeting of April 24, 2002, Petitioner's social worker admitted to Surveyor Fitzpatrick that she had not read the minutes for the April 24, 2002 meeting of the Resident Council. Tr. 328-9, 1013; CMS Ex. 2, at 24. These minutes included, among other things, allegations from R16 concerning alleged abuse by Petitioner's staff. Tr. 321, 328; CMS Ex. 55, CMS Ex. 2, at 24. Petitioner's Administrator stated that it was her policy to investigate resident's grievances by having the social worker read the Resident Council minutes and then having the social worker inform her of any grievances that should be investigated. Tr. 328. Petitioner argues that there is no requirement that the minutes of the Resident Council be read within a stipulated time period. However, allegations of abuse must be investigated in a timely manner so that further abuse will not occur. The failure of the social worker to read the minutes of April 24, 2002 for almost one month and report R16's allegations of abuse to the Administrator resulted in these allegations not being investigated in a competent manner, which put residents at risk for further abuse. Tr. 329-30. Petitioner states that it is irrelevant whether the social worker timely reviewed the Resident Council's minutes because Activities Director Haynes reviewed the Resident Council's minutes and made the Administrator aware of the contents of the minutes. Tr. 978-81. Ms. Haynes testified that she tried to ascertain the identity of R16 but was unable to do so. She pointed to a memo that she wrote which states, "[o]nce these minutes were read, I spoke to several residents to determine the persons in question in the notes. I was unable to do that." Tr. 980. When asked what else she did to determine the identity of R16, Ms. Haynes answered that, "[o]ther than the fact that I spoke to several of the residents just to see how they were doing, because that Monday I left for vacation. But prior to it, I just continued to speak to several of the residents." Tr. 981. It is evident from Ms. Haynes' testimony that she did not exert herself to identify R16 and after she left for vacation, nothing more was done to further investigate the allegations of abuse. Petitioner totally ignores the fact that according to its Administrator, it was the social worker's responsibility to review the minutes of the Resident Council and follow up on any problems identified during the Resident Council meeting. Possibly, had the social worker performed her assigned duties in a timely manner, R16's allegations of abuse would not have gone unaddressed.
The May 2002 survey found that Petitioner was not in substantial compliance, at an immediate jeopardy level (level K), with the regulation at 42 C.F.R. � 483.15(g) which provides:
This deficiency is based on Petitioner's social worker's failure to take appropriate action when the incidents involving R15, R16 and the incident reported by R17's daughter were reported to her. CMS Ex. 2, at 25-28. As to R15 and R17, the underlying issue of this deficiency is whether the facility adequately responded to the complaints of each residents' daughter. R15's daughter complained about the slow responses to call bells. (R15 has been previously discussed in sections III.B.1.b and III.B.4.a of this Decision.) A review of the social worker's notes shows that as far back as April 9, 2001, R15's daughter had expressed her concern with the slow response of the nursing department to call bells. CMS Ex. 2, at 26. No action by the social worker was documented attempting to address R15's and R15's daughters' concerns. Id. The incident concerning the wheelchair tangle and R17's daughter's complaint about this incident was previously discussed in section III.B.1.c of this Decision. The social worker told Surveyor Fitzpatrick that she had not reported the allegations made by R17's daughter to the State agency as required by state law and Petitioner's policy, nor had she taken any corrective action to protect Petitioner's residents from any further potential abuse. CMS Ex. 2, at 25. The social worker only reported the alleged abuse to the DON and then did nothing else. Tr. 412-13. Ms. Riley, the social worker, states that since she could not identify the staff members and the residents involved in the wheelchair collision, she could not proceed further with any investigation. Ms. Riley did not even interview R17's daughter, the main witness to this event, who, although unaware of the identity of the individuals involved, could have described the incident in more detail which could have resulted in identifying the individuals involved. Tr. 333-34, 497. Ms. Riley's lack of vigor in pursuing an investigation does not alleviate the facility of its responsibility to investigate abuse when even the most elementary steps in an investigation were not taken. Ms. Riley's failure to fully investigate this allegation of abuse resulted in the failure to provide counseling to an abused resident, which is a medically related social service. R16 was discussed in section III.B.5 of this Decision. The Administrator stated that she had never been informed by the social worker of R16's allegation made at the Resident Council. In fact, the social worker had never even read the minutes of the April 24, 2002 Resident's Council where R16 made the allegation. CMS Ex. 2, at 28. The social worker did not follow up on the instances involving R16 or of the complaints made by R15's and R17's daughters. She did not counsel any of the affected individuals. Nor did the social worker address interventions to prevent a repetition of any of these incidents. The failure of Petitioner's social worker to report and address any of these incidents put all Petitioner's residents at risk for possible continued abuse.
The May 2002 survey found that Petitioner was not in substantial compliance, at an immediate jeopardy level (level L), with the regulation at 42 C.F.R. � 483.25(h)(1) which provides:
Surveyor Robert Klaus testified that on May 15, 2002, he observed two staff members smoking in an area that contained oxygen and helium tanks. CMS Ex. 2, at 33; Tr. 133-34. The staff members were approximately three feet and seven feet away from the oxygen storage area. Id. This storage area was marked as an oxygen storage area, had "No Smoking" signs posted, and had 35 small tanks that were full and six large tanks that were not marked either full or empty. Id. In addition, the storage area had one large tank of helium, other flammable items, such as paint thinner, and other chemical agents in it. Tr. 135; CMS Ex. 2, at 34. Surveyor Klaus testified that both the building maintenance director and the food service director of the facility told him that this area was used as a smoking area by the staff, and he observed cigarette butts on the ground. Tr. 133-37. Although the oxygen storage area was inside a garage, and the smoking area was outside the garage, the garage door was open when Surveyor Klaus observed the two staff members smoking, and remained open other times during the course of the survey. Tr. 195-96. Petitioner admits that the garage door was open when the smoking employees were observed. P. Br. at 44. Surveyor Klaus is qualified to make determinations on life safety code violations and testified that there was a danger of fire and explosion. Tr. 134-35, 165. There is no question that the facility's employees had made themselves a smoking area in extremely dangerous proximity to an area where oxygen and other flammable products were stored, and that this area had been in use for some time. Petitioner claims that the area outside the oxygen storage area was recommended as a smoking area by the New Jersey Department of Health and Senior Services. P. Br. at 45. Petitioner provides no evidence for this unusual claim, and I cannot put any weight on such a claim, especially when evidence was provided to me that the garage door between the outside smoking area and the inside oxygen storage area was open.
The May 2002 survey found that Petitioner was not in substantial compliance, at an immediate jeopardy level (level L), with each of the regulations at 42 C.F.R. �� 483.75, 483.75(d)(1)-(2), and 483.75(o)(2) and (3). The regulation at 42 C.F.R. �� 483.75 provides that:
The regulation at 42 C.F.R. �� 483.75(d)(1)-(2) provides that:
Under the regulation at 42 C.F.R. �� 483.75(o)(2) and (3), the facility's quality assessment and assurance committee must meet at least quarterly to identify issues with respect to which quality assessment and assurance activities are necessary, and develop and implement appropriate plans of action to correct identified quality of care deficiencies. Also, disclosure of the records of such a committee is required only as related to the compliance of such committee to the requirements of this section. These three deficiencies are based on Petitioner's Administrator's laxity in permitting and tolerating the seven substantive deficiencies already discussed in sections III.B.1-7 above. The nature of the seven deficiencies already discussed makes it clear that most of them either would not have happened, or would not have been ignored by management, if Petitioner's administration had functioned as it should have. It is also evident that the quality assessment and assurance committee was not properly functioning. Petitioner provided the testimony of George Mervine, a Consultant and the facility's former Administrator, who testified on the policies he put in place when he was administer. However, Mr. Mervine's testimony is not relevant because he was unaware of the conditions at the facility at the time of the survey since he was no longer associated with the facility. The surveyors testified that Petitioner was gathering data on certain problem areas but had not evaluated the data to see if the problems were being addressed properly. Tr. 151-52, 200-01. For example, both food temperatures and abuse had been identified as problem areas. Data gathered was not used to respond to either problem area. CMS Ex. 2, at 47-48. Body checks were being done on residents going out on passes, but the Administrator, at the time of the survey, was unable to explain why this was being done even though he should have known. Tr. 152-53, 197-99, 934-35. An administer cannot manage a facility when he does not know the purpose behind policies and procedures that he is trying to enforce, since he will never be able to evaluate whether the purpose is being achieved.
As a result of the 10 immediate jeopardy deficiencies cited during the May survey discussed above, CMS determined to impose a CMP in the amount of $10,000 per day for the 23 day period of May 15, 2002 through June 6, 2002. The 10 immediate jeopardy deficiencies I have discussed fully support the amount of this portion of the CMP. Therefore, I find it unnecessary to discuss the other deficiencies found during the May survey that were at a non-immediate jeopardy level. A mere listing of these non-immediate jeopardy level deficiencies and my finding for each will suffice:
I discuss separately only one non-immediate jeopardy deficiency found during the May survey because this deficiency was also found during the August survey. The May 2002 survey found that Petitioner was not in substantial compliance, at a non-immediate jeopardy level (level D), with the regulation at 42 C.F.R. � 483.65(b)(3) concerning infection control which provides: The facility must require staff to wash their hands after each direct resident contact for which handwashing is indicated by acceptable professional practice. Facility hand washing procedures to prevent infection required that after thoroughly using paper towels to dry hands and fingers, a clean paper towel be used to turn off the faucet. CMS Ex. 40. However, in violation of facility procedures, a nurse, during treatment of a Stage 2 pressure sore on the lower right leg of Resident 14 (R14) on May 14, 2002, was observed washing her hands three times in a manner that did not comply with acceptable handwashing technique. During each of the three handwashings, she was observed to turn off the faucet with paper towels and continue to dry her hands with the same paper towels that were now potentially contaminated. CMS Ex. 2, at 39. Further, a nursing supervisor stated that facility policy requires all nurses to thoroughly wash their hands with soap and water prior to beginning dressing changes. In violation of this policy, a nurse, during a dressing change on Resident 12 (R12) on May 16, 2002, was observed not to wash her hands prior to initiating the wound treatment, either prior to or during the dressing change. Id. Petitioner does not dispute either incident and I sustain this deficiency. June Survey A revisit survey was conducted after a plan of correction (POC) was submitted by Petitioner on May 30, 2002. CMS Exs. 19-37; Tr. 778. The revisit survey was conducted from June 5 through June 7, 2002. The June survey was to specifically determine whether the immediate jeopardy level deficiencies had been abated. Tr. 154. No Statement of Deficiencies (SOD) was produced as a result of the revisit survey because there were no new deficiencies. Tr. 163. Nevertheless, although the immediate jeopardy had been abated as of June 6, 2002, the CMS surveyors determined that seven of the 10 immediate jeopardy level deficiencies were still out of compliance at a lower level of scope and severity. The other non-immediate jeopardy level deficiencies found during the May survey were not reviewed by the surveyors since the purpose of the revisit survey was to determine whether the immediate jeopardy had been abated, because, otherwise, Petitioner, being on a 23-day immediate jeopardy termination track, faced termination by CMS. Tr. 172-73, 207. The seven deficiencies that were still out of compliance at non-immediate jeopardy levels included Tags F223, F225, F226, F323, F490, F493, and F521. Petitioner gave the surveyors addendums to the POC (CMS Exs. 90, 91, and 93) to address these Tags, with the latest completion date being June 11, 2002 for the deficiency cited as Tag F223. (9) CMS Ex. 90. August Survey The second revisit survey was conducted from July 31 through August 2, 2002. The surveyors determined that Petitioner remained out of compliance. Two deficiencies were cited in the August survey. These two deficiencies were at Tag F241 and at Tag F444. Petitioner submitted a POC dated August 7, 2002. CMS accepted the POC and determined that Petitioner had corrected these two deficiencies and achieved substantial compliance as of August 2, 2002.
This deficiency was found during the May survey and CMS alleges that Petitioner remained out of compliance with this deficiency on August 1, 2002 at a non-immediate jeopardy level (level F). During the final survey, on August 1, 2002, the "Mommy" incident was observed. The parties have made much of the "Mommy" incident involving R8, both at the hearing and in their briefing. Details of the incident appear at CMS. Ex. 6, at 1-2, and in the transcript of the hearing at pages 374-77 and 457-65. CMS asserts that it amounted to an act of noncompliance with 42 C.F.R. � 483.15(a) and cited it at Tag F241. I cannot agree, and feel some obligation to very briefly note my disagreement here. Residents' dignity is an important concept and a precious matter, and the use of insulting, vulgar, profane, or obscene language toward residents in any nursing facility is a practice to be condemned in the most vigorous manner. But this incident, in which a staffer at the facility is alleged to have said, "Come on, Mommy, I have to change you," to R8 while she was part of a group watching television, and then to have pulled her Geri-Chair backwards out of the group before heading her and it down the hall, cannot be understood in the light CMS projects. Regrettably, the testimony mars that of a credible CMS witness, because it conveys a sense of over-eagerness to observe violations and to cling obdurately to that view of circumstances. In my view the incident, which was observed by R8's family without complaint and with approval, was nothing more than an exercise of familiarity in a form which some may find uncomfortable, but which the law cannot regard as wrong. Given that view, it also seems entirely appropriate to note that this incident, observed by the surveyor on August 1, 2002, is a major element in CMS's decision to hold the facility in noncompliance for 56 days after the period of immediate jeopardy ended. That is a very attenuated period on this record, and I believe that reason requires the per-day CMP imposed for it to be reduced once the "Mommy" incident is removed from the array of sustained citations.
The August 2002 survey found that Petitioner was not in substantial compliance, at a non-immediate jeopardy level (level E), with the regulation at 42 C.F.R. � 483.65(b)(3) concerning infection control which provides:
This deficiency was also found in the initial May survey and Petitioner failed to correct it. Petitioner's own policy for "Care of the Incontinent Patient" requires that staff must wash hands and apply gloves before checking incontinent residents, and must also wash hands after removing gloves and exiting a resident's room. CMS Ex. 39, at 1-2; CMS Ex. 6, at 3; see also CMS Ex. 40. However, on July 31, 2002, the Assistant Director of Nursing (ADON) was observed checking the incontinent pads of multiple patients. The ADON was observed not washing her hands, but only putting on gloves while checking the incontinent pads of Residents 1, 6, and 7. CMS Ex. 6, at 2. In addition, the ADON did not wash her hands when leaving R1 and R3. The ADON was also observed not washing her hands or putting on gloves when checking the incontinent pads of Residents 2, 3, 4, and 5. Id. Without washing her hands, the ADON was observed to go to the Medication Cart, assist residents in the hallway adjust their clothes, and go to the nurses station to continue her daily tasks. Id. The ADON did not follow acceptable professional practice, the facility's own procedures and policies, and set a bad example for other staff members.
Petitioner's noncompliance with 10 deficiencies at the immediate jeopardy level amply justifies a CMP at the upper end of the applicable penalty range ($3,050 to $10,000 per day). A single immediate jeopardy level deficiency requires a minimum CMP of $3,050. CMS determined that Petitioner had 10 immediate jeopardy deficiencies, a very large number. In addition, the nature of the deficiencies, that of widespread abuse and the significant hazard to residents due to the location of the staff's smoking area, among others, also amply supports the amount of the CMP imposed per day. I now consider whether the CMP amounts imposed against Petitioner are reasonable, applying the factors listed in 42 C.F.R. �� 488.438(f) and 488.404 (incorporated by reference into 42 C.F.R. � 488.438(f)(3)). The factors include a facility's noncompliance history, its financial condition, its culpability, the seriousness of its deficiencies, and the relationship of one deficiency to another. My "inquiry should be whether the evidence presented on the record concerning the relevant regulatory factors supports a finding that the amount of the CMP is at a level reasonably related to an effort to produce corrective action by a provider with the kind of deficiencies found and in light of the other factors involved." CarePlex of Silver Spring, DAB No. 1683, at 8 (1999). It is evident that CMS did consider Petitioner's past history of noncompliance. Petitioner was selected as a test facility incurring monthly visits from the State because it had been identified by CMS as a "Special Focus Facility," because it had "a record of giving poor care," and, therefore, it was receiving special enforcement. See CMS Exs. 95-97. Vincent Tufariello, the Chief Financial Officer of Petitioner's parent company, testified regarding the purported financial problems that the CMP and the DPNA were causing the facility. However, no documentation to support any financial hardship was provided to me. Documentation concerning a facility's financial condition is in the complete control of the facility and it is up to a facility to see that such documentation is submitted. Petitioner's financial losses, even if they are severe, are not enough by themselves to establish an inability of the provider to pay the CMP. The burden in this proceeding is not on CMS to prove Petitioner's ability to pay the CMP, but on Petitioner to present evidence that the CMP would render it insolvent or adversely affect its ability to provide its residents with quality care. See Windsor Health Care Center, DAB No. 1902 (2003) ("The key factor in assessing financial condition is whether the facility has adequate assets to pay the CMP without having to go out of business or compromise resident health and safety"); 59 Fed. Reg. 56,116, 56,204 (1994) ("it is the responsibility of the facility to furnish the information it believes appropriately represents its financial status"). Petitioner had access to its financial statements and other records regarding its financial condition. Other than Mr. Tufariello's testimony, Petitioner chose not to submit any evidence into the record. Under these circumstances, I conclude that Petitioner did not establish that its financial condition warranted a reduction of the CMP. With respect to the seriousness of Petitioner's deficiencies, it is apparent from the evidence pertaining to them that they were extremely serious. The deficiencies showed that, among other things, residents at Petitioner's facility suffered harm, nothing was done to prevent other residents from further abuse, and that there existed a significant hazard to residents due to the location of the staff's smoking area. Petitioner had a high degree of culpability for its noncompliance. I am, therefore, not able to find CMS's determination to impose a CMP of $10,000 per day for the period May 15, 2002 through June 6, 2002, unreasonable.
CMS determined that Petitioner remained out of compliance with participation requirements, at a level of noncompliance that was less than an immediate jeopardy level, between June 7, 2002 and August 1, 2002. CMS determined that Petitioner was in substantial compliance on August 2, 2002. CMPs in amounts of from $50 to $3,000 per day are authorized as remedies for deficiencies that are substantial but which do not reach the immediate jeopardy level of noncompliance. CMS determined to impose CMPs of $200 per day for each day of Petitioner's continued noncompliance with participation requirements during the period which ran from June 7, 2002 through August 1, 2002. As previously discussed, since I find that the "Mommy" incident did not amount to a deficiency, I am sustaining only one deficiency from the August survey. Consequently, I find it reasonable to reduce the amount of the CMP to $100 per day for each day of Petitioner's continued noncompliance from June 7, 2002 through August 1, 2002.
Under 42 C.F.R. � 488.406, a DPNA is one of the enforcement remedies that is available to CMS in the event of a facility's failure to comply substantially with participation requirements. See Act, section 1819(h). I have found that Petitioner was not in substantial compliance with Medicare participation requirements as of the May survey and, thus, there is a basis for the imposition of remedies against Petitioner. Based on Petitioner's noncompliance, I find that CMS is authorized to impose the remedy of DPNA against Petitioner. Petitioner argues that it lost a considerable amount of money due to the imposition of the DPNA, and that the DPNA was excessive, arbitrary, and punitive. P. Br. at 63-65. Petitioner's argument is meritless. Petitioner was notified, by letter dated June 14, 2002, that a DPNA was being imposed. CMS Ex. 1. Yet, Petitioner chose to continue admitting residents. Petitioner must accept the consequences of its decision. Finally, the loss of Petitioner's NATCEP was mandatory by operation of law, triggered by the imposition of the DPNA. By regulation, the State survey agency had no choice but to deny or withdraw approval for a period of two years after the May survey. 42 C.F.R. � 483.151(b)(2) and (e)(1). |
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Richard J. Smith Administrative Law Judge |
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1. A comparative survey is a survey where federal surveyors go in on their own and conduct a survey using the same sample of residents used previously in a survey conducted by a state agency. The federal surveyors add residents to the sample as appropriate when compliance problems are found. Transcript (Tr.) 26-27. 2. The purpose of the revisit survey was to determine whether the immediate jeopardy had been abated. Petitioner was on a 23-day immediate jeopardy termination track and faced termination by CMS if the immediate jeopardy was not abated before the termination date. Tr. 172-173, 207. 3. CMS characterizes the handling as "rough" and Petitioner disagrees with this characterization. I will accept this characterization as "rough" because otherwise R3 would not have had cause to complain of the handling. The inference that the CNA was rough because she in a hurry and it was close to the end of her shift is reasonable. That the CNA later apologized to R3 also lends support to this characterization. I do not make a finding of malice on the part of the CNA. Malice is not required under the definition of abuse, only that the turning of R3 by the CNA was intentional, or that the turning was done in an unreasonable manner. 4. R15 did not herself report the staff's failure to answer her call bell because she felt intimidated and felt it would not do any good. However, R15 told the surveyor that her daughter reported the staff's failure to answer her call bell to Petitioner's front desk. Tr. 340. 5. Petitioner asserts that R15 had periods of forgetfulness, citing to two comments in the nurse's notes. P. Ex. 2, at 24, 37. However, the MDS for the time period in question assesses R15's short term and long term memory as "memory OK." P. Ex. 2, at 9. 6. There is a dispute between the parties as to the identity of the staff member interviewed by Surveyor Enriquez. CMS has identified this individual as the Assistant Director of Recreation because that is what the individual told Mr. Enriquez she was. CMS Reply Br. at 6. However, Petitioner claims that this individual was a staff member working in the recreation department of the facility as a recreation assistant and was not the Assistant Director of Recreation. P. Br. at 9. It is clear, however, that R18 told a member of Petitioner's staff in the recreation department of the alleged abuse, that a memo memorializing this conversation was made at the time of the complaint, and that the memo was intended for the DON. 7. R18 was not actually wearing a diaper during this incident. Tr. 41. In spite of the fact that the memo was not accurate about R18 wearing a diaper during the incident, I find the memo concerning this incident to be reliable, because the most central and material part of the memo is supported by R18's independent account of the incident, the memo was written at the time R18 related this incident to the staff member (which was the day after the incident happened), and the fact that R18 is described as not having any mental impairment. 8. It is irrelevant whether one of the employees may have been hired provisionally. See Tr. 916. 9. On June 7, 2002, in an addendum to the POC, Petitioner stated that it would complete retrospectively reviewing the medical records of cognitively impaired residents by June 11, 2002. Tr. 364-65, 937; CMS Ex. 90. | |