Department of Health and Human Services DEPARTMENTAL APPEALS BOARD Civil Remedies Division |
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IN THE CASE OF | |
Perry Green Valley, Petitioner, |
DATE: April 18, 2007 |
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Centers for Medicare & Medicaid Services.
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Docket No.C-06-380
Decision No. CR1587 |
DECISION | |
DECISION
Petitioner, Perry Green Valley (Petitioner or facility), is a long-term care facility located in Perry, Oklahoma and certified to participate in the Medicare program as a provider of services. Here, Petitioner appeals the Center for Medicare and Medicaid Services' (CMS's) determinations that, from September 7 through 29, 2005, it was not in substantial compliance with Medicare program requirements, including 42 C.F.R. � 483.25(h)(2), and that, on September 7, 2005, its conditions posed immediate jeopardy to resident health and safety. The parties have agreed that this matter may be decided on the written record, without an in-person hearing. For the reasons set forth below, I find that the facility was not in substantial compliance for the period in question, and that, on September 7, 2005, its deficiencies posed immediate jeopardy to resident health and safety. I also sustain the $4,150 penalty imposed. I. Background Following a survey completed September 8, 2005, surveyors from the Oklahoma State Department of Health (State Agency) concluded that the facility was not in substantial compliance with federal requirements for nursing homes participating in the Medicareprogram. Specifically, they found that the facility did not meet federal requirements under:
CMS Ex. 4; P. Ex. 31. CMS agreed with the surveyors' conclusions, and has imposed a Civil Money Penalty (CMP) of $3,500 for the one day of immediate jeopardy (September 7), plus $50 per day from September 8 through 29, 2005, for a total CMP of $4,150. P. Ex. 21. Petitioner timely appealed and the matter was assigned to me as Docket No. C-06-12. In that case, I issued an initial order on October 19, 2005, directing CMS to file its prehearing exchanges on or before February 21, 2006. Unfortunately, the attorney who was then representing CMS, Mr. Kermit Williams, simply ignored my order. CMS filed no submission and no request for an extension of time in which to file. In an email sent March 8, 2006, we directed the parties to provide a status report no later than close of business that day. Petitioner promptly responded; CMS did not. In an Order to Show Cause dated March 10, 2006, I directed CMS to show cause why, in light of CMS's failure to proceed, I should not remand the matter to CMS. On March 21, 2006, Mr. Williams finally responded, indicating that he was not prepared to comply with my order and asking for additional time. I considered this response inadequate, and, on March 22, 2006, remanded the case to CMS to determine whether it was interested in pursuing the matter. On March 31, 2006, CMS issued a new initial determination, which Petitioner again appealed. The case was then reassigned to me as Docket No. C-06-380. The parties filed their initial briefs (CMS Pre-hearing Br. and P. Pre-hearing Br.) and submissions. Petitioner also moved for summary judgment, which CMS opposed, suggesting (without filing its own motion) that CMS was instead entitled to summary judgment. In a ruling dated August 24, 2006, I denied summary judgment. Although the parties agreed that one of the facility residents (R4) was at significant risk for falls, that she had suffered multiple falls and some injuries, and that the facility had taken some steps to prevent falls and injury, they disputed the adequacy of the facility's actions. Under the Departmental Appeals Board's reasoning in Lebanon Nursing and Rehabilitation Center, DAB No. 1918 (2004), summary judgment is generally not appropriate where the parties dispute the degree of resident risk or the appropriateness of a facility's plan to address that risk. The parties subsequently agreed that the case could be decided on their written submissions, without an in-person hearing. See Agreed Motion to Supplement Testimony (September 11, 2006); Amended Order and Schedule for Briefing (September 11, 2006); 42 C.F.R. � 498.66 (waiver of right to appear and present evidence). The parties have filed closing briefs (CMS Br. and P. Br.) and reply briefs (CMS Reply and P. Reply). CMS has filed 14 exhibits (CMS Exs. 1-14). Petitioner has filed 32 exhibits (P. Exs. 1-32). (2) In the absence of any objection, I admit CMS Exs. 1-14 and P. Exs. 1-32. II. Issues This case presents the following questions:
III. Discussion
Under the statute and "quality of care" regulation, each resident must receive and the facility must provide the necessary care and services to attain or maintain the highest practicable physical, mental, and psychological well-being, in accordance with the resident's comprehensive assessment and plan of care. Act, section 1819(b); 42 C.F.R. � 483.25. The regulation imposes on facilities an affirmative duty designed to achieve favorable outcomes "to the highest practicable degree." Windsor Health Care Center, DAB No. 1902, at 16 - 17 (2003); Woodstock Care Center, DAB No. 1726, at 25 - 30 (2002). Among other specific requirements, the facility is required to "take reasonable steps to ensure that a resident receives supervision and assistance devices designed to meet his or her assessed needs and to mitigate foreseeable risks of harm from accidents." 42 C.F.R. � 483.25(h)(2); Windsor, DAB No. 1902, at 5 (2003); Asbury Center at Johnson City, DAB No. 1815, at 12 (2002); Koester Pavilion, DAB No. 1750, at 25 - 26 (2000); Woodstock, DAB No. 1726, at 25 (2002). The regulation requires the facility to anticipate what accidents might befall a resident and to take steps - increased supervision or the use of assistance devices - to prevent them. Guardian Health Care Center, DAB No. 1943, at 18 (2004).
Windsor, DAB No. 1902, at 5 (2003). In this case, R4 was a 55-year-old woman with diagnoses of malignant brain cancer, obsessive-compulsive disorder, and dementia. She suffered significant long and short-term memory loss. "Verbal reminders seem to fall on deaf ears at times." CMS Ex. 7, at 6. She was unable to walk and required total assistance with all transfers. She spent her days up in a wheelchair, wandering the halls, asking for cigarettes and Pepsi. Id. R4 was admitted to the facility on May 4, 2004. She was at high risk for falls, and, to prevent accidents, the facility provided her with a Wanderguard bracelet, as well as bed and chair alarms, and kept her mattress at a low level. P. Ex. 1e, at 1-5. However, as the record shows, these interventions were not particularly effective in preventing accidents.
P. Ex. 1b, at 2; P. Ex. 17, at 2.
P. Ex. 1b, at 3; P. Ex. 17, at 3.
P. Ex. 1b, at 4; P. Ex. 17, at 4.
P. Ex. 1b, at 5; P. Ex. 17, at 6.
P. Ex. 1b, at 5.
P. Ex. 1b, at 6; P. Ex. 17, at 7.
P. Ex. 1b, at 7; P. Ex. 17, at 8.
P. Ex. 1b, at 8.
P. Ex. 17, at 10; See P. Ex. 1b, at 34.
P. Ex. 1b, at 8; P. Ex. 17, at 9.
P. Ex. 1b, at 9; P. Ex. 17, at 12.
P. Ex. 1b, at 10; P. Ex. 17, at 11.
P. Ex. 1b, at 11; P. Ex. 17, at 14.
P. Ex. 1b, at 11; P. Ex. 17, at 15.
P. Ex. 1b, at 12; P. Ex. 17, at 16.
P. Ex. 1b, at 13-14; P. Ex. 17, at 17.
P. Ex. 1b, at 15; P. Ex. 17, at 18.
P. Ex. 1b, at 16; P. Ex. 17, at 19.
P. Ex. 1b, at 17.
P. Ex. 1b, at 18; P. Ex. 17, at 20.
P. Ex. 1b, at 19.
P. Ex. 1b, at 19; CMS Ex. 8, at 1; P. Ex. 17, at 21; CMS Ex. 9, at 1.
P. Ex. 1b, at 20.
P. Ex. 1b, at 20; CMS Ex. 8, at 2; P. Ex. 17, at 22; CMS Ex. 9, at 2.
P. Ex. 1b, at 21, 22 (small purple bruise to right eye); CMS Ex. 8, at 3; P. Ex. 17, at 23; CMS Ex. 9, at 3.
P. Ex. 1b, at 22, 23; CMS Ex. 8, at 4, 5; P. Ex. 17, at 24; CMS Ex. 9, at 4.
P. Ex. 1b, at 23.
P. Ex. 1b, at 23, 24; CMS Ex. 7, at 5; CMS Ex. 8, at 5, 6; P. Ex. 17, at 25; CMS Ex. 9, at 5.
P. Ex. 1b, at 25; CMS Ex. 8, at 7; P. Ex. 17, at 26; CMS Ex. 9, at 6.
P. Ex. 1b, at 25-27; CMS Ex. 8, at 7-9; P. Ex. 17, at 26-27; CMS Ex. 9, at 7.
P. Ex. 1b, at 28.
P. Ex. 1b, at 30; CMS Ex. 8, at 12; P. Ex. 17, at 30; CMS Ex. 9, at 10.
Compare P. Ex. 1b, at 30 with P. Ex. 17, at 28. Notes thereafter include complaints of headache and facial pain from her bruises. See P. Ex. 1b, at 31.
P. Ex. 1b, at 31; P. Ex. 17, at 29.
P. Ex. 1b, at 32.
CMS Ex. 7, at 6-9.
P. Ex. 1b, at 34; P. Ex. 17, at 31.
P. Ex. 1b, at 36; P. Ex. 17, at 32. Overwhelming evidence thus establishes that, from the time of R4's admission, her high risk of injury from falls was plainly foreseeable. To establish its substantial compliance with � 483.25(h)(2), the facility must show that it took "reasonable steps to ensure" that she receive the level of supervision and assistive devices she needed in order to be safe. Petitioner acknowledges R4's propensity to fall, attributes it to her deteriorating condition, and argues that it "successfully implemented interventions after each fall that reduced the likelihood of that particular type of fall recurring." P. Br. at 1-2. But the evidence before me does not establish that the facility was adequately responding to R4's alarming rate of accidents. In fact, after implementing its initial efforts (bed/chair alarms and low level mattress) - which did not effectively prevent accidents - about the only additional step the facility took was to provide R4 a lap buddy. It did so at the family's request sometime in April 2005, after almost a full year of R4's experiencing frequent and dangerous accidents. P. Ex. 1b, at 23; P. Ex. 17, at 25, 26. But the lap buddy was plainly ineffective since R4 was able to remove it, and, in fact, she removed it repeatedly. P. Ex. 1b, at 32, 34, 36; CMS Ex. 7, at 6, 7. The two falls that most immediately preceded the survey (July 21 and September 1, 2005) involved her removing the lap buddy. P. Ex. 1b, at 34, 36. The incident reports mention a number of other potential interventions: "frequent bed checks" (P. Ex. 17, at 2); "encourage CNA to toilet every 2 hrs. and as needed" (P. Ex. 17, at 9); "lay her down before shift change" (P. Ex. 17, at 12); "lay her down for a nap after lunch" (P. Ex. 17, at 20); "encourage staff to monitor frequently" (P. Ex. 17, at 11, 16, 17, 19); "staff encouraged to leave items w/in her reach" (P. Ex. 17, at 24); staff "encouraged to anticipate and meet her needs" (P. Ex. 1b, at 23); "this lady should be put to bed by 7:00 p.m." (P. Ex. 1b, at 36). But not one shred of evidence suggests that the facility ever implemented any of these suggestions in any systematic, reliable way. I see no evidence that these interventions were incorporated into R4's care plan. CMS Ex. 7, at 8. Petitioner does not even define "frequent" checks, much less offer evidence that staff was monitoring R4 at regular intervals. Most often, the facility responded to R4's accidents by "reminding" or "encouraging" her to ask for assistance. P. Ex. 17, at 3, 4, 6, 7, 14, 15, 16, 17, 19, 22, 24, 31, 32. But, as facility staff well understood, this response was useless. R4 simply could not remember such cautions. See, e.g., CMS Ex. 7, at 6, 7; P. Ex. 1b, at 19, 20, 23 (because of her cognitive impairment, does not remember verbal cautioning). Petitioner's expert
witness, former nurse surveyor Linda Wilkerson, claims that the facility
took some additional intervening steps to prevent accidents because staff
took R4's blood pressure every week; and periodically checked her medication
levels. P. Ex. 32, at 2, 9-10. I do not see a lot of evidence linking
these practices to accident prevention, although that may be attributable
to the absence of specific citations to the clinical records in Petitioner's
argument. (7) R4's blood pressure was normal,
and nothing in the record suggests that her propensity to fall was related
to either blood pressure or medication issues. According to her assessments,
she was at risk because she was unable to walk or transfer without total
assistance. CMS Ex. 7, at 6. But she could not remember that she was unable
to walk; she also tended to lean too far forward in her Nurse Wilkerson also points to the bed and chair alarms as devices that allow for staff's "rapid response," so they can intervene quickly and prevent further injury. P. Ex. 32, at 4. Bed and chair alarms can do that, and, the record here includes one occasion where responding to an alarm likely prevented an accident. P. Ex. 1b, at 9. More often, however, staff either did not hear an alarm, or were unable or unwilling to respond quickly enough to prevent accidents. A bed or chair alarm is not an adequate substitute for supervision, and the record is striking for how often R4 is "found" lying on the floor. P. Ex. 1b, at 2, 4, 5, 6, 8, 9, 10, 11, 12, 13-14, 15, 16, 17, 18, 19, 20, 22, 23, 25-27, 30, 31, 34, 36; P. Ex. 17, at 10. Pointing to an entry in the nurses' notes, Nurse Wilkerson also claims that the facility moved R4 to a room nearer the nurses' station. P. Ex. 32, at 8; P. Br. at 5. A May 6, 2005 entry says that, after a discussion with R4's mother, the facility intended to move R4 from Room 34 to Room 12, a room "closer to the center of the building." P. Ex. 1b, at 33. As with so many of the facility's purported interventions, however, no evidence establishes that this was ever implemented. To the contrary, the record entries consistently show that R4 remained in Room 34. The incident reports put her in Room 34 prior to May 6, 2005, when the entry was written (P. Ex. 17, at 2, 3, 7, 10,12, 14, 15, 16, 17, 19, 23, 24, 25, 26, 28, 29). She was there on May 6, 2005 (P. Ex. 17, at 30), and, she was still there at the time of her most recent falls, July 21, and September 1, 2005. P. Ex. 17, at 31, 32. See also P. Ex. 1a, at 2 - 10 (medication records throughout her stay show that she is in Room 34); P. Ex. 1b (from time of her admission through September 20, 2005, virtually every page of the nurses' notes places her in Room 34). (8) Finally, Petitioner complains that the immediate jeopardy penalty was imposed for one day in September, pointing out that, as of the time of the survey, R4 had fallen only twice since May (on July 21, 2005 and again on September 1, 2005). Indeed, even though the facility failed to prevent accidents for a 16-month period, CMS has only imposed a penalty effective September 7, 2005. Certainly, CMS might have determined that the facility's failure to supervise began well before then, and could justifiably have imposed penalties from an earlier date. However, CMS's disinclination to do so does not mean that the facility was in substantial compliance on September 7, 2005. The evidence establishes on September 7 and thereafter, R4 was at high risk for falls, the facility recognized that risk, but was not providing her the "necessary care and services to attain or maintain the highest practicable physical, mental, and psychosocial well-being," as required by the regulation. (9) I must therefore sustain CMS's determination that the facility was not in substantial compliance.
I next consider whether CMS's immediate jeopardy finding was "clearly erroneous." 42 C.F.R. � 498.60(c)(2). 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). 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. Here, R4 suffered some serious injuries as a result of falls. P. Ex. 1b, at 17, 22, 23. Her falling - particularly falling head-first out of her wheelchair - created the likelihood of more serious injury. CMS's immediate jeopardy determination is therefore not clearly erroneous, and must be affirmed.
The statute and regulations limit my authority to review the amount of the CMP. In situations such as this, where the deficiencies constitute immediate jeopardy, CMS may impose a CMP in the range of $3,050 to $10,000 per day. 42 C.F.R. � 488.438. Where a CMP of $3,050 per day is imposed, the daily amount must be sustained unless the nursing home establishes that the determination of immediate jeopardy is clearly erroneous. Hermina Traeye Memorial Nursing Home, DAB No. 1810, at 16 (2002). With respect to the days of substantial noncompliance that was not immediate jeopardy, the minimum penalty must be at least $50 per day. 42 C.F.R. � 488.438. IV. Conclusion For all of these reasons, I uphold CMS's determination that, from September 7 through 29, 2005, the facility was not in substantial compliance with program participation requirements, specifically 42 C.F.R. � 483.25(h)(2), and on September 7, 2005, its deficiencies posed immediate jeopardy to resident health and safety. I therefore sustain the $4,150 CMP. |
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JUDGE | |
Carolyn Cozad Hughes Administrative Law Judge |
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FOOTNOTES | |
1. Although neither party mentions it, the statement of deficiencies incorrectly cites 42 C.F.R. � 483.35(h)(2) for deficiencies that instead violate � 483.25(i)(2). CMS Ex. 3, at 25. Nevertheless, the survey report quotes the text of the correct sub-section, and lays out in sufficient detail the bases for its findings. Id. at 25-26. I consider this sufficient notice of violations. Cedar View Good Samaritan, DAB No. 1897, at 7-9 (2003) (quoting the text of the regulation held sufficient notice of violations, without actual citation to the regulation). Moreover, as discussed below, the deficiencies cited under 42 C.F.R. � 483.25, by themselves, justify the penalties imposed, without considering the deficiencies cited under dietary services. 2. P. Exhibit (Ex.) 1 consists of six sub-parts, Exs. 1a through 1f. 3. Although CMS cited additional deficiencies, the parties have focused exclusively on the immediate jeopardy finding, 42 C.F.R. � 483.25(h)(2). Inasmuch as this deficiency, by itself, justifies the penalties imposed, I need not review the remaining citations. Batavia Nursing and Convalescent Center, DAB No. 1904, at 23 (2004); Beechwood Sanitarium, DAB No. 1824, at 19 (2002). 4. In an event, where (as here) the facility's deficiencies have the potential for more than minimal harm, the facility is generally considered out of compliance "from the date of the completion of the survey in which these deficiencies were cited until the date of the resurvey in which substantial compliance is established." Lake City Extended Care, DAB No. 1658, at 14-15 (1998). And the burden is on the facility to prove that it has resumed complying with program requirements, not on CMS to prove that the deficiencies continued to exist after they were discovered. Hermina Traeye Memorial Nursing Home, DAB No. 1810, at 10 (2002). 5. A lap buddy is a laptop cushion that should fit snugly between the resident and the wheelchair frame to facilitate upper body positioning and reduce falls. CMS suggests that R4's lap buddy did not fit snugly; it was too small for the chair. 6. That R4 was "up all day" suggests that staff did not "lay her down before shift change" (P. Ex. 17, at 12) and did not "lay her down for a nap after lunch" (P. Ex. 17, at 20) as recommended in the earlier incident reports. 7. Throughout their briefs, both parties make many broad assertions without specific reference to the record, which makes it much more difficult to credit their arguments. 8. Facility staff obviously know whether R4's room was changed, and no staff person has suggested that it was. That Nurse Wilkerson would make this claim without regard to the overwhelming evidence to the contrary, suggests that she did not verify her factual assertions, and raises serious questions about the credibility of her statements and opinions. 9. Following the survey, the facility initially provided one-on-one supervision, during which time the resident attempted to remove the lap buddy, but the nurse prevented her from doing so. P. Ex. 1b, at 36, 41. The facility ordered a drop seat for her wheelchair to discourage her from standing. The lap buddy, bed and chair alarms, were continued. She was also supposed to lie down after meals. P. Ex. 1f, at 1; see also, CMS Ex. 5. | |