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Department of Health and Human Services DEPARTMENTAL APPEALS BOARD Civil Remedies Division |
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| IN THE CASE OF | |
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Ontario Care Center, |
DATE: November 9, 2000 |
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- v - |
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Health Care Financing Administration
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Docket No.C-99-073 Decision No. CR713 |
| DECISION | |
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I impose civil money penalties against Petitioner, Ontario
Care Center, in the amount of $300 per day for each day of the period
which begins on April 17, 1998 and which runs through June 25, 1998. Additionally,
I impose civil money penalties against Petitioner in the amount of $750
per day for each day of the period which begins on June 26, 1998 and which
runs through August 13, 1998. I. Background The facts which I recite in this section are not disputed
by the parties. Petitioner is a long-term care facility which is located
in Ontario, California. Petitioner participates in the federal Medicare
program. Surveyors employed by the California Department of Health Services
(California State survey agency) found Petitioner not to be complying
substantially with federal participation requirements at surveys of Petitioner
which were completed on April 17, 1998 (April 17, 1998 survey) and on
June 26, 1998 (June 26, 1998 survey). Petitioner was found to have attained
compliance after August 13, 1998. Based on these findings, the Health
Care Financing Administration (HCFA) determined to impose civil money
penalties against Petitioner in the amounts of $1,000 per day for each
day of the period which begins on April 17, 1998 and which runs through
June 25, 1998, and $3,000 per day for each day of the period which begins
on June 26, 1998 and which runs through August 13, 1998.
Petitioner requested a hearing to challenge HCFA's determination
and the case was assigned to me for a hearing and a decision. I held a
hearing in Los Angeles, California, on June 13 and 14, 2000. At the hearing,
HCFA offered into evidence exhibits consisting of HCFA Ex. 1 - HCFA Ex.
110. I received these exhibits into evidence. However, I excluded pages
4 - 9 of HCFA Ex. 41 on the ground that these pages were irrelevant. Similarly,
I excluded as irrelevant page two of HCFA Ex. 93. Petitioner offered into
evidence exhibits consisting of P. Ex. 1 - 68. I received these exhibits
into evidence. The following witnesses were called to testify by HCFA:
The following witnesses were called to testify by Petitioner:
II. Issues The issues in this case are:
III. Findings of fact and conclusions of law This case involves two surveys that were conducted of
Petitioner. I have organized my findings of fact and conclusions of law
(Findings) under subparts (subparts A and B) which address each of the
surveys and the deficiency findings that were made at each of the surveys.
In these subparts, I make Findings addressing the issue of whether Petitioner
was complying substantially with participation requirements during the
time periods that are involved in this case. In an additional subpart
(subpart C), I make Findings which address the civil money penalties issue.
I set forth each Finding in each subpart as a separately numbered heading.
The surveyors who participated in the April 17, 1998 survey
wrote a report in which they allege that Petitioner had not complied substantially
with 12 separate Medicare requirements of participation governing long-term
care facilities. HCFA Ex. 1. They organized their findings and conclusions
under headings known as "tags." Subsequently, the California State survey
agency determined to delete the deficiency finding that the surveyors
made under Tag 272, leaving 11 alleged deficiencies. HCFA continues to
assert that each of these 11 alleged deficiencies was present as of April
17, 1998 and was substantial. I conclude that HCFA established a prima facie case of
noncompliance which Petitioner did not rebut by the preponderance of the
evidence with respect to four of the deficiencies that the surveyors allege.
These deficiencies are stated at Tags 225, 316, 427, and 430 in the report
of the April 17, 1998 survey. HCFA either failed to establish a prima
facie case or Petitioner rebutted HCFA's prima facie case by the preponderance
of the evidence with respect to each of the seven remaining deficiency
tags that are at issue. I analyze the evidence relating to all of the
alleged deficiencies as follows.
The surveyors allege at Tag 223 of the report of the April
17, 1998 survey that Petitioner failed to comply with the requirements
of 42 C.F.R. � 483.13(b). HCFA Ex. 1 at 1 - 12. This regulation states
that a resident of a long-term care facility has the right to be free
from verbal, sexual, physical, and mental abuse, corporal punishment,
and involuntary seclusion. The allegations at Tag 223 emanate primarily from a complaint
made by a female resident of Petitioner's facility who is identified in
the survey report as Resident 15. According to the report, the resident
told a surveyor that, on two occasions, a man whom the resident identified
as "Gus" or "Gustavo" came into her room during the early morning hours
and abused her. According to this resident, on the first occasion, "Gus"
came into her room, called her names, slapped her, and left the room before
anyone saw him. HCFA Ex. 1 at 5. Resident 15 averred that on the second
occasion, which allegedly occurred in late March 1998, "Gus" came into
her room at 1:00 or 2:00 in the morning, slapped her on the right side
of her face, put her legs over his shoulders, held her right arm down
with his left hand, held the left side of her face down with his right
hand, and raped her. The resident averred that she yelled for help and
that, eventually, the assailant left the resident's room. Id. at
4. The surveyors accept this account as credible. They conclude
that "Gus" is an individual who had been employed by Petitioner as a nursing
assistant. The gravamen of their findings under Tag 223 is that Petitioner
allowed this nursing assistant to abuse Resident 15 physically and sexually. I find that HCFA failed to establish a prima facie case
that Petitioner allowed physical and sexual abuse to take place on its
premises. The assertions that Petitioner allowed abuse to occur rest essentially
on the uncorroborated hearsay allegations of Resident 15. These allegations
are inherently unreliable because they are hearsay. The statements that
are attributed to Resident 15 are, by themselves, so unreliable as to
not be a credible basis for a prima facie case that Petitioner tolerated
the abuse of its residents. I routinely admit hearsay evidence in cases involving
HCFA. But, the fact that I admit hearsay does not mean that I assume it
to be reliable. As a general consideration, I do not accord much, if any,
weight to hearsay evidence unless there is other evidence which I can
rely on which establishes the hearsay to be credible. Hearsay evidence
is inherently less reliable than is evidence which can be tested through
cross-examination. It is not admissible in federal civil trials under
the Federal Rules of Evidence precisely because of its inherent unreliability.
Traditionally, it is barred from admission in jury trials because jurors
might be misled into assuming that it is more reliable than, in fact,
it is. What is entirely lacking in the instance of Resident 15
is evidence that is extrinsic to her hearsay allegations which supports
those allegations. There were no eyewitnesses to the alleged events. No
one corroborated the resident's assertion that she had called out for
help. There was no physical evidence of rape or abuse aside from some
minor contusions to the side of the resident's face which could be explained
easily by causes other than abuse. The police who investigated the allegations
concluded them not to be credible. The extrinsic evidence not only fails to support Resident
15's allegations but it undermines them. Resident 15's hearsay allegations
are shown to be unreliable by evidence establishing that this resident
has either a tenuous grasp or no grasp on reality. The resident suffers
from psychoses and hallucinations which may account for all of her allegations
of abuse and rape. A psychological evaluation was made of the resident
on March 30, 1998. P. Ex. 9 at 20 - 21. The resident was unable to identify
the day on which she was being evaluated. Id. at 20. She did not
know the name of the facility at which she resided. Id. She admitted
to hearing voices. Id. at 20 - 21. Her short-term memory was impaired.
Id. at 20. A psychiatric examination of the resident, performed
on April 3, 1998, found the resident not to be oriented either to place
or time. P. Ex. 16 at 8. The psychiatrist concluded that the resident
was psychotic and was experiencing both auditory and visual hallucinations.
Id. at 9. The resident's cognitive problems are exacerbated by medical
problems which further impair the credibility of her allegations. The
resident is blind as a consequence of diabetic retinopathy. P. Ex. 16
at 1, 6; P. Ex. 18 at 1. Resident 15 is unable to discern objects and
can see shadows only. P. Ex. 16 at 6. It would be difficult for the resident
to identify any assailant, let alone "Gus," given the degree of visual
impairment that this resident experiences. HCFA argues that Resident 15 has adequate vision to identify
"Gus" as the perpetrator of abuse. HCFA argues that, in a weekly nursing
summary dated March 13, 1998, a nurse stated that the resident's vision
is "adequate." HCFA reply brief at 9; P. Ex. 39 at 5. I do not find this
document to comprise persuasive evidence that the resident had adequate
vision to identify an alleged perpetrator. It is unclear from the face
of the document how the nurse came to the conclusion that the resident
has "adequate" vision. Nor does the document explain what is meant by
the word "adequate." The nursing summary does not purport to record a
physical examination of the resident. See P. Ex. 39 at 5. By contrast,
a physical examination of the resident that was performed by a physician
found the resident to be blind. P. Ex. 16 at 1. I note also that the nursing
summary is manifestly inaccurate in other respects. For example, it recites
that the resident's primary language is "English" when, in fact, the resident
speaks only Spanish. See P. Ex. 39 at 5. Physical evidence suggests strongly that the resident
was not physically or sexually assaulted by anyone. Resident 15 manifested
none of the pattern of injuries that one might expect in a case of physical
assault and rape. On March 26, 1998, the date on which the resident alleged
that she had been assaulted, a nursing assistant observed only minimal
marking on the resident's face. This consisted of some red marks on the
left side of the resident's face that looked more like mosquito bites
than bruises. P. Ex. 13 at 3. These minimal marks on the left side of
the resident's face were the only evidence of physical trauma that was
observed. There was no evidence that the resident had been slapped on
the right side of her face as she alleged. There were no other observable
injuries to the resident. Id. Significantly, nothing was observed
that was consistent with the resident's allegations that she had been
violently assaulted, slapped, and raped. Petitioner's director of nursing performed an examination
of the resident on March 26, 1998 and found no evidence of any physical
trauma. P. Ex. 17 at 22. No other evidence of sexual abuse was observed.
Tr. at 302. A physician performed a physical examination of the resident
on April 8, 1998. P. Ex. 16 at 11. On that occasion, no evidence of trauma
was present. Id. Finally, Resident 15's allegations of physical abuse and rape were investigated by the Ontario City Police Department. These allegations were examined thoroughly by Detective Para, who has considerable experience in investigating cases of sexual abuse. He found the allegations not to be credible. Tr. at 451
- 452. I am persuaded by Detective Para's findings that the resident's
allegations of physical and sexual abuse are not credible. The surveyors who conducted the April 17, 1998 survey
made additional findings that abuse of residents had occurred at Petitioner's
facility. HCFA Ex. 1 at 11. These findings are based on a letter from
Petitioner's resident council, which is dated January 21, 1998. That letter,
according to the surveyors, alleged that on one occasion a nursing assistant
had left a resident wrapped in wet sheets. Additionally, the letter alleged
that a nursing assistant swore at a resident and was rough in assisting
residents in changing clothes. Id. I find these allegations not to be credible. The allegations
are meaningless given their nature and the absence of any supporting evidence.
Not only are they hearsay, but they are in fact double hearsay. Here,
HCFA and the surveyors are relying on a hearsay statement (the letter
of January 21, 1998) which reports hearsay allegations made by anonymous
complainants. HCFA has offered no corroborating evidence to support these
hearsay allegations. The surveyors failed to make any independent investigation
to ascertain whether the allegations were true.
The surveyors allege at Tag 224 of the report of the April
17, 1998 survey that Petitioner failed to comply with the requirements
of 42 C.F.R. � 483.13(c)(1)(i). HCFA Ex. 1 at 12 - 16. 42 C.F.R. � 483.13(c)
requires a long-term care facility to develop and implement written policies
and procedures that prohibit mistreatment, neglect, and abuse of residents.
Subpart (c)(1)(i) of this regulation prohibits a facility from using verbal,
mental, sexual, or physical abuse, corporal punishment, or involuntary
seclusion. The basis for the citation under Tag 224 is an allegation
that Petitioner failed to execute its anti-abuse policies in the course
of dealing with the allegations of physical abuse and rape that were made
by Resident 15. The specific allegations of noncompliance that are made
under the tag all relate to the manner in which the resident's allegations
were reported and investigated. HCFA Ex. 1 at 12 - 16. It is unclear why the surveyors cited subpart (c)(1)(i)
as part of the deficiency finding. There are no allegations in the report
of the April 17, 1998 survey that the facility used verbal, mental, sexual,
or physical abuse, corporal punishment, or involuntary seclusion in dealing
with any of its residents. I have examined closely the specific examples of alleged
noncompliance with Petitioner's anti-abuse policies that are cited under
Tag 224. It may be that, in some instances, Petitioner's staff did not
follow to the letter every prescription in those policies. But, it is
evident that Petitioner's staff did comply with the overall requirements
of its policies in reporting and investigating the allegations that were
made by Resident 15. There is no evidence that any technical noncompliance
by Petitioner with its abuse reporting policies posed the potential for
causing more than minimal harm to Resident 15 or to other residents of
Petitioner. The weight of the evidence belies any assertions that
Petitioner was remiss in investigating allegations of abuse. Petitioner's
staff was diligent in pursuing the allegations of abuse that were made
by Resident 15. The allegations were reported immediately to the police
and Petitioner gave full cooperation to the police. Petitioner had Resident
15 examined for evidence of abuse. Petitioner conducted an internal investigation
of the allegations and that investigation included interviewing a large
number of Petitioner's staff. The surveyors assert that, in completing a form entitled
"Resident Abuse Form" in order to report the allegations that were made
by Resident 15, Petitioner's staff failed to report that the resident
had been physically and sexually abused by a staff member and did not
disclose the staff member's name in the report. See HCFA Ex. 43.
This allegation suggests that Petitioner's staff concealed or obscured
an allegation by Resident 15 that she had been abused and raped by a male
staff member at Petitioner's facility. In fact, and contrary to what the surveyors assert, the
report that was generated by Petitioner's staff plainly identifies the
individual named "Gus," whom Resident 15 identified as the perpetrator
of abuse, to be a nursing assistant who was employed by Petitioner. HCFA
Ex. 43 at 22. Moreover, the report explicitly recounts an interview with
that employee and notes that, on March 26, 1998, the date of the alleged
episode, the employee was placed on suspension. Id. The surveyors note that the report of abuse states that
the date and time of the alleged physical abuse and rape are "unknown."
HCFA Ex. 1 at 13 - 14; see HCFA Ex. 43 at 1. According to the surveyors,
this is an error and a failure by Petitioner's staff to comply with Petitioner's
policy to prevent abuse. The surveyors aver that, in interviews, staff
members reported that they had noticed injuries to the left side of Resident
15's face on March 24 and 25, 1998. Apparently, the surveyors assert that
the alleged episode of abuse can be dated to March 24 or 25, 1998 by these
injuries. I am not persuaded that this alleged discrepancy in the
abuse report represents any failure by Petitioner to comply with its policies.
There is no evidence that Petitioner's staff was less than prompt in preparing
a report of possible abuse based on the allegations that were made by
Resident 15. Nor is there evidence that the staff failed to record the
information they received as accurately as they could. As I discuss above,
at Finding 1 in this section, the contusions that were observed on the
left side of the resident's face were minor and were not in and of themselves
indicative of abuse. Resident 15 had complained of being slapped on the
right side of her face and not on the left side where the contusions
were found. And, as I also discuss at Finding 1, Resident 15 is an exceedingly
poor historian who is not oriented to date or location. Any assertion
by this resident that an event occurred on a particular date is immediately
suspect. Most important, the abuse report was prepared on March 26, 1998.
HCFA Ex. 43. That is within two days of the earliest possible date of
the alleged abuse. And, apparently, it was prepared on the very date when
the resident first asserted to others that she had been abused. The surveyors assert additionally that Petitioner's staff
failed to document its initial interview with the resident's granddaughter.
HCFA Ex. 1 at 14. I note that the report prepared by Petitioner's staff
documents an interview that was conducted on March 28, 1998. HCFA Ex.
43 at 23. It is true that the report does not document explicitly any
statement that may have been obtained from the granddaughter prior to
March 28, 1998. However, HCFA has not made even a prima facie showing
that the failure to document a prior statement omitted significant information.
I find no evidence that this omission by Petitioner's staff posed a potential
for causing more than minimal harm to Resident 15 or to other residents. The surveyors assert also that Petitioner's staff failed
to interview all staff members who might have knowledge of the events
related to the alleged abuse. HCFA Ex. 1 at 15. According to the survey
report, there were two staff members who were not interviewed. The report
alleges that: "[b]oth the staff members provided detailed information
of the resident and the suspected staff member that was beneficial to
the surveyor." Id. I am not persuaded that the allegation that Petitioner
failed to interview two employees makes out even a prima facie case for
failure by Petitioner to comply with its abuse reporting requirements.
It would be significant if the surveyors had actually identified an important
omission of fact in the abuse report resulting from the negligent failure
of Petitioner's staff to interview all employees with knowledge of the
events. But, the surveyors do not do so. Instead, they merely allude to
"detailed" and "beneficial" information without either disclosing that
information or explaining what it might have added to the abuse report
that the staff compiled. HCFA has made no showing that Petitioner either withheld
or omitted important information from its investigative findings or failed
to communicate effectively with the police. At the hearing, Ms. Sosa asserted
that the facility had failed to interview the immediate supervisor of
the alleged perpetrator of the abuse and had failed also to interview
another charge nurse, Gizzelle Mediana. See Tr. at 295. However,
Ms. Sosa did not identify any information that these two individuals possessed
that would have materially affected the outcome of any investigation conducted
into the allegations made by Resident 15. The "significant" and "beneficial"
information that Ms. Sosa identified as coming from the non-interviewed
employees does not add materially to information that is already of record.
For example, the information that Ms. Sosa attributed to Ms. Mediana merely
corroborated information that had been communicated by others (Ms. Mediana
reported seeing a rash and scratch marks on the left side of the resident's
face). Moreover, the evidence of what Petitioner did to investigate
the allegations of abuse shows that Petitioner made a thorough effort
to interview its staff. On March 26 and 27, 1998, Petitioner's staff interviewed
18 of Petitioner's employees concerning the allegations that were made
by Resident 15. I find no failure by Petitioner to comply with its abuse
reporting policies in the fact that Petitioner's staff may have inadvertently
omitted interviewing two employees whose knowledge of events was either
cumulative or incidental. The surveyors assert also that Petitioner failed to question
the employee named "Gus" about the allegations of abuse. HCFA Ex. 1 at
15 - 16; see HCFA Ex. 43 at 22. I conclude that any failure by
Petitioner's staff to interview "Gus" was, at most, harmless oversight.
An interview of "Gus" by Petitioner's staff plainly was not necessary.
Petitioner's staff identified "Gus" to the Ontario City Police Department.
P. Ex. 9 at 12. "Gus" was interviewed at length by Detective Para on March
27, 1998 and a detailed report was prepared of that interview. Id.
at 12 - 14. Finally, the surveyors allege that Petitioner's staff
failed to investigate the allegations of abuse that were reported on January
21, 1998 in a letter from the resident council. I have discussed these
allegations above, at Finding 1 in this section. I can understand why
these allegations would not have triggered full fledged abuse investigations
given the thinness of the documentation. I am not persuaded that Petitioner
had a duty to mount such investigations in the absence of something more
credible than the hearsay which comprises these allegations. Furthermore,
I am not persuaded that Petitioner's failure to investigate these allegations
posed the potential for causing more than minimal harm to residents of
Petitioner's facility.
The surveyors allege at Tag 225 of the report of the April
17, 1998 survey that Petitioner had not complied with the requirements
of 42 C.F.R. � 483.13(c)(1)(ii). HCFA Ex. 1 at 17 - 19. However, the text
of their allegations alludes in large degree to an alleged failure by
Petitioner to comply with the requirements of 42 C.F.R. � 483.13(c)(1)(iii).
That subsection of the regulations requires a facility to:
It is evident that, in 1997, Petitioner failed to comply
with this requirement in the instance of the employee named "Gus." Petitioner
knew that, in July 1997, "Gus" had been the subject of a criminal complaint
involving allegations of assault and battery against his sister. HCFA
Ex. 1 at 19; HCFA Ex. 27 at 2. This complaint resulted in a conviction
on July 29, 1997 for misdemeanor battery. HCFA Ex. 109 at 3. The criminal
charge and conviction plainly were matters that Petitioner was obligated
to report, because they suggested that "Gus" might have a propensity to
become abusive. However, Petitioner failed to discharge its obligation
to report information concerning the complaint and conviction. In this instance, Petitioner's failure to comply with
participation requirements posed more than a minimal risk to the health
and safety of its residents. The assault complaint against "Gus" and his
subsequent conviction suggested that "Gus" may have had impulse control
problems which could result in harm to a resident or residents. The episode regarding Petitioner's failure to communicate
its knowledge concerning "Gus'" criminal charge and conviction occurred
nearly nine months prior to the April 17, 1998 survey of Petitioner. I
have considered whether the failure to report the charge and conviction
was so remote in point of time from the April 17, 1998 survey as to not
comprise an ongoing deficiency as of April 17, 1998. I conclude that Petitioner
remained deficient as of the April 17, 1998 survey even though its failure
to report the arrest and conviction of Gus occurred several months previous
to the survey. The potential for harm that existed as of the date of
"Gus'" conviction remained as of April 17, 1998. As of April 17, 1998,
"Gus" was still an employee of Petitioner and was still providing care
to residents. Petitioner had on its staff an individual who had been convicted
of a crime of violence, and yet, Petitioner had not done anything to report
this fact to the relevant authorities.
The surveyors allege at Tag 250 of the report of the April
17, 1998 survey that Petitioner failed to comply with the requirements
of 42 C.F.R. � 483.15(g). This section requires that a long-term care
facility must provide medically related social services to residents so
that residents may attain their highest practicable levels of physical,
mental, and psychosocial well-being. The allegations that the surveyors make concerning Petitioner's
alleged failure to comply with this requirement all focus on the care
that Petitioner provided to a single resident, Resident 14. The surveyors
allege that Petitioner did not provide adequate medically related social
services to the resident in the following respects:
The surveyors allege that, as of April 17, 1998, there
was no documentation that Petitioner's social services director had followed
up on Resident 14's problems with his roommates or on discharge planning
for the resident. They allege additionally that as of April 17, 1998,
the resident had not been informed of the status of his discharge request. I am not persuaded that Petitioner failed to provide medically
related social services in the case of Resident 14. The credible evidence
of record in this case establishes that Petitioner in fact attended reasonably
to the resident's complaints and concerns. In its posthearing brief, HCFA asserts that the alleged
failure to provide social services to Resident 14 consisted in part of
"not training the resident's care giver in administering.
. . insulin injections, or arranging home health care for the resident."
HCFA's posthearing brief at 28. In effect, HCFA is asserting that a facility
not only has a duty to provide care to a resident who resides on its premises
but has a duty to assure that the resident receives adequate care after
the resident's discharge in circumstances where the facility no longer
has control over the resident's environment. I am not persuaded that such
an obligation reasonably may be read into the requirements of 42 C.F.R.
� 483.15(g). There is nothing in the regulations which requires a facility
to train a care-giver to administer insulin to a resident after that resident
has been discharged by the facility. It was reasonable for Petitioner
not to discharge Resident 14 until Petitioner had assurances that the
resident's physician and family had approved the discharge. But, Petitioner
had no affirmative duty to establish care for the resident outside of
its premises. Petitioner met its obligations with respect to the discharge
of Resident 14. Petitioner worked diligently to discharge Resident 14.
It was unable to effectuate discharge prior to April 17, 1998 because
of circumstances that were beyond its ability to control. The resident's
physician had not approved the resident's discharge as of that date. Tr.
at 389; P. Ex. 28 at 6. Although Petitioner had no duty to train a care-giver
outside of its facility to manage the resident's diabetes, it would not
have been able to discharge the resident even if had it done so. Furthermore,
as of April 17, 1998, the resident's diabetes had not become sufficiently
stabilized so that the resident could safely be discharged. Tr. at 492. Moreover, the evidence shows that Petitioner's social
worker actually was following Resident 14's case closely and not failing
to follow up on the resident's problems as the surveyors allege. The social
worker's notes show that the social worker had spoken to the resident
only two weeks prior to the April 17, 1998 survey concerning the resident's
desire to be discharged. The surveyors' allegations that a month had transpired
without contact between the social worker and the resident - which are
based on the hearsay statements of the resident - are simply untrue. The
social worker made notes concerning contacts with the resident or the
resident's family which occurred on March 11, 1998 (twice), on March 13,
1998, on April 1, 1998, and on April 17, 1998. P. Ex. 28 at 6. In the
April 1, 1998 entry, the social worker notes that the resident had voiced
a desire to be discharged. The social worker discussed efforts to manage
the resident's discharge. The evidence concerning the resident's alleged problems
with his roommates shows that Petitioner was not remiss in dealing with
those problems. The only notation of a complaint by the resident concerning
the roommates is an entry in Resident 14's records that is dated March
30, 1998, just two weeks prior to the April 17, 1998 survey. On that occasion
nursing notes report a notification by Petitioner's social worker that
the resident had complained of not being able to sleep due to the roommates
watching television late at night. HCFA Ex. 19 at 7. The notes recite
that the social worker would follow up on the resident's complaint. In
fact, the social worker did follow up by speaking with Resident 14's roommates.
Tr. at 388. HCFA now asserts that the failure to provide medically
related social services to Resident 14 included failure to transfer the
resident to another room in Petitioner's facility in order to deal with
the resident's complaints about noisy roommates. HCFA's posthearing brief
at 28. This allegation constitutes a new allegation that was not made
by the surveyors and of which Petitioner did not have notice. I find it
to be without merit because Petitioner did not receive requisite notice
of the allegation and was not provided the opportunity to defend against
it. Moreover, I note that there is no evidence that Resident 14 requested
a change of room. HCFA also asserts that the "failure [by Petitioner] to
resolve the resident's complaints about his roommates resulted in the
resident being given an order for . . . [Ambien], which is a hypnotic
drug for insomnia." HCFA's posthearing brief at 28. This also is a new
allegation by HCFA of which Petitioner did not receive notice, and, for
that reason, I find it to be without merit. Moreover, there is no credible
evidence that the resident was given Ambien as a result of his unresolved
complaints about his roommates. To the contrary, the evidence shows that
the resident's insomnia predated any complaints that the resident may
have voiced about his roommates. The resident had been receiving medication
for insomnia since at least February 24, 1998, more than a month prior
to his first voicing any complaints about his roommates. HCFA Ex. 1 at
23.
The surveyors allege at Tag 314 of the report of the April
17, 1998 survey that Petitioner failed to comply with the requirements
of 42 C.F.R. � 483.25(c). HCFA Ex. 1 at 26 - 27. This regulation provides
that a facility must ensure that a resident who enters a facility without
pressure sores does not develop pressure sores unless the resident's clinical
condition shows that the development of pressure sores in that resident
was unavoidable. The regulation provides further that a facility must
ensure that a resident who has pressure sores receives the necessary treatment
and services to promote healing, prevent infection, and to prevent new
pressure sores from developing. Finally, the regulation requires that
prevention and care of pressure sores must be based on a comprehensive
assessment of the resident. The surveyors base their allegations of failure to comply
with the requirements of 42 C.F.R. � 483.25(c) entirely on the care that
Petitioner allegedly gave to a resident who is identified as Resident
11. Although the allegations of noncompliance are not completely clear,
they seem to link the resident's development of pressure sores to an alleged
failure by Petitioner to plan for the resident's care. The allegations
of noncompliance do not identify any errors or omissions in the care that
Petitioner gave to Resident 11 - as opposed to its planning for the resident's
care - as reasons for the resident developing pressure sores that were
avoidable. HCFA Ex. 1 at 27. I am not persuaded by these allegations. First, HCFA has
taken an inconsistent position on the issue of whether Petitioner properly
planned the care of Resident 11. The report of the April 17, 1998 survey
alleges at Tag 272 that Petitioner failed to develop a comprehensive care
plan for the resident. HCFA Ex. 1 at 24 - 26. The allegations about planning
failures that the surveyors make under Tag 272 are identical to the allegations
about planning failures that they make under Tag 314. Id. at 27.
However, the State survey agency rescinded the allegations under Tag 272
after completing an informal dispute resolution process with Petitioner. It is reasonable to conclude that the development of pressure
sores by Resident 11 was unavoidable. Tr. at 488 - 491. HCFA asserts that
there is no evidence in the resident's medical record to show that pressure
sores were unavoidable. HCFA's reply brief at 1. But, in fact, neither
the surveyors nor HCFA have identified any shortcomings in the care that
Petitioner gave to the resident which might have led to the development
of pressure sores. There is no evidence that Petitioner gave inadequate
nutrition to the resident. Nor is there any evidence that Petitioner failed
to utilize adequate treatment regimes to prevent the development of pressure
sores. There is evidence, however, which shows that the resident developed
pressure sores despite receiving reasonable care from Petitioner to prevent
the development of pressure sores. Resident 11 is a highly compromised individual who is
at an extreme risk for developing pressure sores. HCFA Ex. 1 at 27; Tr.
at 488 - 490. The likelihood is high that the resident would have developed
pressure sores despite all reasonable efforts by Petitioner to prevent
them. Petitioner made reasonable efforts to prevent the resident from
developing pressure sores. Petitioner used heel protectors to protect
the resident's feet. Tr. at 489; P. Ex. 32. The resident was given range
of motion exercises. Tr. at 489; P. Ex. 34. The resident was given an
egg crate mattress in order to relieve pressure. Tr. at 489; P. Ex. 3.
The surveyors allege at Tag 316 of the report of the April
17, 1998 survey that Petitioner failed to comply with the requirements
of 42 C.F.R. � 483.25(d)(2). HCFA Ex. 1 at 28 - 29. This regulation requires
a long-term care facility to provide appropriate treatment and services
to a resident who experiences bladder incontinence in order to restore
as much bladder function as possible. The surveyors allege that, in one instance, Petitioner
failed to provide services to restore bladder function to the resident.
The surveyors assert that the resident, who is identified in the survey
report as Resident 5, was identified by Petitioner's staff as being a
likely candidate for bowel and/or bladder retraining. The surveyors allege
that a physician wrote an order for the resident to provide the resident
with bladder training. However, according to the surveyors, the resident
never received bladder retraining. HCFA Ex. 1 at 28. Petitioner contends that restoring normal bladder function
was not possible for Resident 5. Petitioner's posthearing brief at 13
- 14; Tr. at 495. Petitioner argues, essentially, that it would have been
fruitless to attempt bladder retraining in light of the resident's medical
condition, which includes diagnoses of stroke, dementia, and congestive
heart failure. P. Ex. 36 at 1, 3, 6 - 9. However, Petitioner does not explain why it did not at
least attempt to carry out its own assessment of the resident or the order
of the resident's physician. In this case, there was a consensus between
Petitioner's staff and the physician that bladder retraining was appropriate.
Petitioner was remiss in not executing the physician's order. It is at least arguable that the effort would have been
fruitless had it been attempted. As Petitioner notes, an unsuccessful
effort was made to retrain Resident 5 subsequent to the survey and that
effort failed. P. Ex. 41 at 9. I infer from this evidence that Resident
5 experienced no actual harm from Petitioner's failure to carry out the
resident's physician's orders. However, there existed a more generalized
potential for harm to all of Petitioner's residents from its failure to
carry out retraining in the case of Resident 5. Petitioner's failure in
this case suggests an overall potential by the facility not to execute
the orders of residents' physicians.
The surveyors allege at Tag 325 of the report of the April
17, 1998 survey that Petitioner failed to maintain acceptable parameters
of nutritional status for its residents in violation of the requirements
of 42 C.F.R. � 483.25(i)(1). HCFA Ex. 1 at 29 - 30. The regulation provides
that, based on a comprehensive assessment of a resident, a long-term care
facility must ensure that the resident maintains acceptable parameters
of nutritional status, such as body weight and protein levels, unless
the resident's clinical condition demonstrates that it is not possible
to do so. The surveyors' allegations of noncompliance under this
tag are based on the care that Petitioner provided to a resident who is
identified as Resident 4. The surveyors allege that, during a period which
ran from June 1997 into January 1998, the resident lost a total of 18.6
pounds. The surveyors allege further that the facility's dietician had
recommended supplementing the resident's diet with fortified cereal but
that this recommendation was not implemented by the staff. HCFA Ex. 1
at 29 - 30. However, the evidence pertaining to Resident 4 establishes
that the resident's weight never fell below the range of weights that
are considered to be ideal for an individual of the resident's height.
P. Ex. 43 at 1; Tr. at 497; see Tr. at 391 - 392. In the case of
Resident 4, his ideal body weight was between 139 and 151 pounds. Id.
The resident's weight in January 1998 was 148 pounds. Tr. at 357. There is no evidence that Petitioner failed either to
monitor or to assess the resident's weight. In fact, Petitioner's dietician
assessed Resident 4's nutritional status several times between June 1997
and January 1998. Tr. at 357 - 359. But, although the dietician was following
the status of the resident, it is evident that, in at least one respect,
Petitioner's staff failed to carry out the dietician's recommendations.
Petitioner has not denied that the staff failed to supply the resident
with fortified cereal. The failure of Petitioner's staff to carry out the dietician's
recommendation was an error. However, the error does not rise to the level
of failure to comply substantially with participation requirements. There
is no evidence that this failure by staff to carry out the dietician's
recommendation in the case of Resident 4 posed the potential for causing
more than minimal harm to the resident. The resident was not suffering
from malnutrition, as is evidenced by the fact that the resident stayed
within his ideal range of body weights.
The surveyors allege at Tag 329 of the report of the April
17, 1998 survey that Petitioner failed to assure that a resident's drug
regimen was free from unnecessary drugs in violation of the requirements
of 42 C.F.R. � 483.25(l)(1). HCFA Ex. 1 at 30 - 32. The surveyors base
their allegations on the care that they assert Petitioner gave to Resident
1. The surveyors contend that the resident had long-standing prescriptions
for depression (Zoloft), anxiety (Klonopin), and psychotic behavior, including
angry outbursts (Haldol) which had not been reviewed either for necessity,
amount, or duration. HCFA Ex. 1 at 30 - 32. The surveyors contend that
Petitioner was obligated to review periodically the administration of
these medications to the resident and to determine whether their continued
use was necessary. The surveyors allege that Petitioner did not conduct
such reviews thereby failing to comply with the requirements of 42 C.F.R.
� 483.25(l)(1). Id. I do not find these allegations to be persuasive. First,
there is no language in 42 C.F.R. � 483.25(l) which requires a long-term
care facility to conduct periodic reviews of residents' medication regimes
and to make express written findings concerning the necessity for continued
administration of medications. The regulation neither states nor suggests
that a facility will be held strictly liable for noncompliance if it fails
to engage in periodic reviews of its residents' medication use. There is a requirement in the regulation that use of drugs
be monitored adequately. 42 C.F.R. � 483.25(l)(1)(iii). I read this to
be a more general requirement than the "periodic review for necessity"
requirement that the surveyors and HCFA read into the regulation. I note
that the surveyors did not assert that Petitioner failed to monitor the
administration of drugs to Resident 1. And, in fact, the facility did
monitor administration of medications to the resident. Tr. at 500 - 502. I find no evidence that medications were administered
unnecessarily or inappropriately to Resident 1. The weight of the evidence
is that the medication regime for Resident 1 was appropriate. Tr. at 500
- 502. Although it is true that the resident was on long-standing prescriptions
for Zoloft, Klonopin, and Haldol, these prescriptions were approved by
the resident's psychiatrist. P. Ex. 44 at 12. Moreover, there is ample
evidence in the record establishing a need for the medications. The resident
had numerous episodes of suicidal ideation in June and July 1997 and occasional
episodes thereafter. Id. at 16. The resident had episodes of anxiety
during this same period. Id. at 18. And, the resident had episodes
of angry outbursts during this period as well. Id. at 13 -14.
The surveyors allege at Tag 427 of the report of the April
17, 1998 survey that Petitioner failed to establish a system of records
of receipt and disposition of all controlled drugs in sufficient detail
to enable an adequate reconciliation of controlled drugs in violation
of 42 C.F.R. � 483.60(b)(1) - (3). HCFA Ex. 1 at 33 - 34. The regulation
states as follows:
The surveyors allege that, on April 16, 1998, there was
a 100cc bottle of Phenobarbital on the facility's medication cart that
contained approximately 75cc of the medication. According to the surveyors,
they requested a copy of the record of receipt and disposition of the
Phenobarbital. They assert that Petitioner's staff was unable to produce
the record because the pharmacy had not sent the receipt and disposition
form to them. Id. The allegations of the surveyors prove a prima facie case
that Petitioner failed to comply with the requirements of 42 C.F.R. �
483.60(b)(3). The evidence that Petitioner was not able to account for
all of the Phenobarbital that had been dispensed suggests that Petitioner
was not maintaining an account of all of its controlled drugs. Petitioner has not persuasively rebutted this evidence.
Petitioner argues that it would have been possible to determine the recipient
of the Phenobarbital by conducting a reconciliation. Petitioner's posthearing
brief at 22; Tr. at 537 -538. However, this assertion, assuming it to
be correct, begs the question of whether Petitioner was complying with
the pharmacy record-keeping requirements that are contained in 42 C.F.R.
� 483.60(b). I find that the potential for more than minimal harm existed
in Petitioner's failure to comply with the requirements of the regulation.
I find to be persuasive the testimony of Ms. DeMartini, HCFA's pharmacy
expert, that the potential is increased for diversion of controlled substances
where accurate records are not maintained pursuant to the requirements
of the regulation. Tr. at 235.
The surveyors allege at Tag 429 of the report of the April
17, 1998 survey that Petitioner failed to comply with the requirements
of 42 C.F.R. � 483.60(c)(2). HCFA Ex. 1 at 34 - 36. The regulation cited
by the surveyors under this tag requires that a facility's pharmacist
report to a resident's attending physician and to the facility's director
of nursing any irregularities that the pharmacist observes. The regulation
does not explain what constitutes "irregularities."
Presumably, irregularities might include apparent errors in the administration
of medication to a resident. The allegations under Tag 429 to a large degree repeat
the allegations that the surveyors make under Tag 329 in the report of
April 17, 1998. The surveyors assert here that, in the case of Resident
1, there was no support in the resident's medical record for prolonged
administration of Zoloft, Klonopin, or Haldol to the resident and that
no recommendations were made by Petitioner's pharmacist to reduce the
dosage of these medications. HCFA Ex. 1 at 34 - 36. I do not find these allegations to be persuasive. As I
discuss above, at Finding 8 in this subpart, the resident's physician
had prescribed Zoloft, Klonopin, and Haldol for the resident to address
ongoing psychological problems that the resident was manifesting. There
were no irregularities in the administration of these medications to Resident
1 for the pharmacist to report.
The surveyors allege at Tag 430 in the report of the April
17, 1998 survey that Petitioner failed to comply with the requirements
of 42 C.F.R. � 483.60(d)(2). HCFA Ex. 1 at 36 - 37. In fact, this is a
miscitation of the regulation by the surveyors. It is apparent from the
text of the tag that the surveyors are referring to the requirements of
42 C.F.R. � 483.60(c)(2). This regulation requires that any reports of
irregularities (presumably, in the administration of medication) made
by a facility's pharmacist be acted upon by the resident's attending physician
or by the facility's director of nursing. Again, the surveyors refer to the care that Petitioner
gave to Resident 1. Here, the surveyors observe that, on June 18, 1997,
the facility's pharmacy consultant made a recommendation to the resident's
attending physician that the resident be evaluated for possible dose reduction
of Klonopin. HCFA Ex. 1 at 36 - 37. The attending physician referred the
recommendation to the resident's psychiatrist. However, no action had
been taken by the psychiatrist or by the attending physician on the recommendation
as of April 17, 1998. Id. This evidence is distinguishable from the evidence that
I discuss above, under Findings 8 and 10 of this subpart. The issue here
is not whether there was a need to reduce medication dosages to the resident
or whether the continuation of medication to the resident was an irregularity
that needed to be reported. Here the issue is whether a report that a
pharmacist had made was acted on in a timely manner. The evidence offered
by HCFA to the effect that a pharmacist's report was not acted on timely
has not been rebutted by Petitioner. Petitioner has not shown that either
the attending physician or the resident's psychiatrist acted on the pharmacist's
recommendation to reduce the resident's Klonopin dosage. Petitioner argues that the pharmacy consultant's report
was "reviewed and rejected." Petitioner's posthearing brief at 24. Petitioner
has offered no evidence to support this contention. I do not infer from
the fact that there was inaction by the attending physician and the psychiatrist
that the report was reviewed and rejected. Under 42 C.F.R. � 483.60(c)(2) Petitioner had a duty to
assure that its pharmacist's report was acted on. I realize that Petitioner
could not direct either the attending physician or the pharmacist to act
on the report. But, at a minimum, Petitioner could have followed up on
the report by directing inquiries to these physicians concerning their
inaction. If, in fact, these physicians had reviewed and rejected the
recommendation, then Petitioner should have obtained documentation of
that review and rejection. Petitioner's inaction here posed a potential for more
than minimal harm. Klonopin is a medication which has side effects. Tr.
at 241. Misuse of the medication can cause impairment in an individual's
cognitive functioning. Id. As I discuss above, at Finding 8, Resident
1 had a prescription for Klonopin and was receiving the minimum therapeutic
dose of the medication. For that reason, I do not find that there existed
a potential for harm to this resident in Petitioner's failure
to assure that the pharmacist's report was acted on. But, Petitioner's
failure to act appropriately in this instance suggests at least the potential
for failures to act appropriately in other analogous circumstances. I
find that Petitioner's failure to act on the pharmacist's report in the
case of Resident 1 shows some propensity on the part of Petitioner's staff
to be inattentive to such matters in general.
The surveyors who participated in the June 26, 1998 survey
wrote a report in which they allege that Petitioner had not complied substantially
with five separate Medicare requirements of participation governing long-term
care facilities. HCFA Ex. 47 at 1 - 23. I find that HCFA
established a prima facie case of noncompliance that Petitioner did not
rebut with the preponderance of the evidence with respect to two of the
deficiencies that are cited in the report of the June 26, 1998 survey.
These two deficiencies are cited at Tags 157 and 223 in the survey report.
HCFA either failed to establish a prima facie case, or Petitioner rebutted
Petitioner's prima facie case, with respect to the other cited deficiencies. I analyze the evidence relating to all of the alleged
deficiencies as follows.
The surveyors allege at Tag 157 of the report of the June
26, 1998 survey that Petitioner failed to comply substantially with the
requirements of 42 C.F.R. � 483.10(b)(11). HCFA Ex. 47 at 1 - 8. This
section requires that, among other things, a facility consult with a resident's
physician concerning a significant change in the resident's physical,
mental, or psychosocial status. The regulation also requires consultation
where a need exists to alter a resident's treatment significantly. The
surveyors allege that Petitioner failed to discharge its obligation to
consult in providing care for two residents, Residents 8 and 1. Petitioner was remiss in not notifying Resident 8's treating
physician promptly about the changes in condition that affected the resident
and by not consulting with the physician about those changes. Petitioner's
failures to notify and consult the resident's treating physician are not
excused by the possibility that the physician may have learned about the
resident's condition through his visits to the resident or from other
sources. With respect to Resident 8, the surveyors allege that
Petitioner consistently failed to advise the resident's physician concerning
the resident's weight loss and also failed to consult with the physician
concerning the progressive deterioration of pressure sores that the resident
developed while at Petitioner's facility. HCFA Ex. 47 at 1 - 8. The surveyors cite several specific incidents to support
their allegations. For example, the surveyors allege that, on May 9, 1998,
the resident's pressure sores were observed to have increased in size.
However, the resident's physician was not notified of this change, according
to the surveyors. Id. at 3 - 4. The pressure sores were observed
to have increased in severity (from Stage II to Stage III) on May 16,
1998. Id. at 4. Again, Petitioner's physician was not notified,
according to the surveyors. The surveyors allege that the resident's pressure
sores were found to have become more severe on May 23, 1998. Id.
at 4 - 5. However, again, there was no record that the physician was notified
of this change. The surveyors allege that further deterioration of the
pressure sores was noted on June 10, 1998. However, once again, there
is no record that the resident's physician was notified of the change.
Id. at 6. Petitioner does not challenge directly most of the allegations
of failure to notify or consult with the resident's treating physician.
Essentially, Petitioner argues that the physician was aware of the resident's
deteriorating condition, consulted actively with Petitioner's staff, and
that the physician and Petitioner's staff provided adequate care for the
resident. Petitioner has supplied a statement from Resident 8's treating
physician, Ricardo E. Saca, M.D., in which Dr. Saca opines that he was
properly and promptly informed of any changes in the resident's condition
during the resident's stay at Petitioner's facility. P. Ex. 47. Dr. Saca
opines further that any decline in the resident's condition during the
resident's stay at Petitioner's facility was due to the resident's medical
condition. He asserts that Petitioner consistently implemented and adhered
to his treatment orders for the resident. Id. I am not persuaded by Petitioner's assertions or Dr. Saca's
statement that Petitioner complied with the notification and consultation
requirements in the regulation. The objective record of Petitioner's care
of Resident 8 documents persistent failures by Petitioner to notify Dr.
Saca and consult with him concerning the resident's deteriorating medical
condition. I am certain that Dr. Saca believes that Petitioner consulted
with him appropriately. But, the record of this case demonstrates otherwise. Petitioner also was remiss in failing to notify and consult
timely with the treating physician of Resident 1 concerning the resident's
weight loss. The weight records for this resident document two relatively
substantial weight losses by the resident. The first was noted on April
2, 1998. On that occasion, the resident's weight was recorded as being
89 pounds, a loss of 3.6 pounds in a one-month period. P. Ex. 60 at 1.
The second relatively substantial loss was documented on June 1, 1998.
On that occasion, the resident was noted to have lost five additional
pounds (the resident also lost one pound between April and June). Id. The resident's medical records do not contain any evidence
that the resident's physician was notified of or consulted with promptly
about these losses. On April 8, 1998, the resident's physician ordered
a change in the resident's diet. P. Ex. 60 at 11. I infer from that order
that the physician became aware on April 8, 1998 of the resident's weight
loss that had been documented on April 2, 1998. There is nothing in the
resident's records to establish any communication between Petitioner's
staff and the physician between April 2, 1998 and April 8, 1998. Nor is
there any evidence to show that the physician actually consulted with
Petitioner's staff before changing the resident's diet on April 8, 1998.
There is also a physician's order dated June 13, 1998 in
which the physician orders a change in the resident's diet. Id.
at 22. However, there is nothing in the resident's records to establish
communication between Petitioner's staff and the physician at any time
between June 1, 1998, when the resident was observed to have lost five
additional pounds, and June 13, 1998. Again, there is no evidence to show
that the physician wrote his order on June 13, 1998 after consulting with
Petitioner's staff about the resident's loss of weight. The omissions to notify and consult with treating physicians
in the cases of Residents 8 and 1 caused harm to these residents. Both
of these residents were extremely ill individuals. The delays in notification
and consultation were substantial and were about changes that plainly
threatened the residents' well-being. I am particularly concerned about
the facility's failure to communicate with Resident 8's treating physician
concerning the progression of the resident's pressure sores.
The surveyors allege at Tag 223 of the report of the June
26, 1998 survey that Petitioner failed to comply with the requirements
of 42 C.F.R. � 483.13(b). HCFA Ex. 47 at 8 - 9. This regulation provides
that a resident of a facility has a right to be free from verbal, sexual,
physical, and mental abuse, corporal punishment, and involuntary seclusion. The surveyors allege that Petitioner's staff secluded
Resident 3 involuntarily (the resident is mis-identified in the survey
report as Resident 1). Tr. at 25. The surveyors base their allegations
on the personal observation of a surveyor of the care that Petitioner
gave to the resident. On the morning of June 24, 1998, Ms. Blue observed
Resident 3 alone in the facility's physical therapy room turning in circles
in his wheelchair. The resident was restrained in his wheelchair by a
posey vest. Tr. at 26 - 27, 29. The surveyor asked a nursing assistant
why the resident had been left alone. The nursing assistant replied that
the resident had been making noise and the assistant left him alone while
she went to get some towels. Tr. at 28 - 29. The surveyor questioned the
resident, who expressed some emotional discomfort at being left alone.
Tr. at 31. Petitioner does not deny the facts as they are alleged
by the surveyors. It asserts, however, that there was "no permanent seclusion
or intent on the part of" the nursing assistant to seclude the resident.
Petitioner's posthearing brief at 32. It argues additionally that the
resident experienced no harm from the episode. I am not persuaded by Petitioner's arguments. There is
nothing in the regulation to suggest that a resident must be secluded
permanently in order for noncompliance to exist. And, the evidence
in this case shows that the seclusion of Resident 3 was intentional. The
nursing assistant who left the resident alone may not have intended to
harm the resident. But, the assistant wanted the resident out of the way
while the assistant performed other duties. The sequestering of the resident
plainly was a deliberate act, designed to warehouse a disruptive individual,
if only temporarily. The failure to comply with the requirements of the regulation
was substantial in this case. The resident experienced emotional distress
as a result of being secluded. That is actual harm.
The surveyors allege at Tag 314 of the report of the June
26, 1998 survey that Petitioner failed to comply substantially with the
requirements of 42 C.F.R. � 483.25(c). HCFA Ex. 47 at 10 - 16. The surveyors
assert that Petitioner failed, in the case of Resident 8, to ensure that
the resident did not develop pressure sores that were avoidable. The evidence
that the surveyors rely on for this assertion is the same evidence that
they rely on at Tag 157 of the report of the June 26, 1998 survey. Id.
at 3 - 8. At the outset I note that it is extremely difficult to
discern from the allegations that the surveyors make under Tag 314 exactly
what they are alleging. As I note, the allegations essentially repeat
the allegations concerning failure by Petitioner's staff to notify Resident
8's physician of changes in the resident's condition. Although the allegations
recite at considerable length evidence which addresses that issue - and
which describes the deterioration that the resident experienced over the
passage of time - they do not articulate specifically any alleged failures
by Petitioner's staff to prevent the development of pressure sores by
the resident. I am not persuaded that Petitioner allowed Resident 8
to develop avoidable pressure sores. The evidence that HCFA relied on
at Tag 157 of the report of the June 26, 1998 survey, and which the surveyors
restate at Tag 314 of the survey report, is persuasive evidence that Petitioner
failed to report timely to the resident's physician the development and
progression of pressure sores. However, as I discuss above, the evidence
does not address the treatments that Petitioner's staff gave to the resident
to prevent the development of or progression of pressure sores. The surveyors
made no allegations under Tag 314 that Petitioner's staff failed to provide
the resident with necessary and appropriate care. HCFA has offered no
evidence to show that Petitioner gave inadequate wound care to the resident
or that Petitioner failed to position the resident or to provide other
appropriate care. Although there is evidence to show that the resident
lost weight, there is no evidence to show that the resident's nutritional
status caused the resident to develop pressure sores. For example, HCFA
has not shown that the resident was receiving inadequate protein or that
the resident's serum protein levels were low. Indeed, there is evidence
to the contrary in the resident's medical record. Tr. at 99, 272 - 273. Petitioner introduced affirmative evidence to rebut any
inference of noncompliance that might arise from Petitioner's failure
to notify timely the resident's treating physician of changes in Resident
8's condition. The resident's treating physician, Dr. Saca, opined that
Petitioner complied with the treatment orders that he gave for the resident.
P. Ex. 47. Although I do not find this opinion to be persuasive evidence
that Petitioner complied with notification requirements I find it to be
persuasive evidence that the care that Petitioner gave to Resident 8 was
reasonable and appropriate. Dr. Saca's opinion is persuasive evidence
that the resident's pressure sores were unavoidable. HCFA asserts that its own expert, Dr. Hinshaw, concluded
that the care that Petitioner gave to Resident 8 was inadequate and that
the resident's pressure sores were the consequence of that allegedly inadequate
care. Tr. at 122 - 124. I find Dr. Hinshaw's opinion to be less persuasive
than that of Dr. Saca. Dr. Saca was the resident's treating physician.
He personally examined the resident and provided care to the resident.
Dr. Hinshaw based his opinion on his review of the surveyors' assertions
about the care that Petitioner gave to the resident along with his review
of some of the resident's treatment records. Dr. Hinshaw did not personally
examine the resident. Tr. at 118.
The surveyors allege at Tag 323 of the report of the June
26, 1998 survey that Petitioner failed to comply substantially with the
requirements of 42 C.F.R. � 483.25(h)(1). HCFA Ex. 47 at 16 - 17. This
regulation requires a facility to ensure that its residents' environment
remains as free of accident hazards as is possible. The surveyors base their allegations under this tag on
the observations that they made at the June 26, 1998 survey and on interviews
that they conducted with Petitioner's staff. They assert that on the morning
of June 26, 1998, they observed that numerous wheelchairs and Geri chairs
were lined up against siderails in Petitioner's east hallway. HCFA Ex.
47 at 16. According to the surveyors, the wheelchairs and Geri chairs
obstructed a portion of the hallway and prevented residents from using
siderails as assistive devices in negotiating the hallway. Petitioner does not dispute these facts. Petitioner argues
that it has limited space within which to store wheelchairs and Geri chairs.
It asserts that it has been storing wheelchairs and Geri chairs in its
east hallway since 1983 without objection from any agency. Finally, it
argues that no hazard to residents exists from its practice of storing
wheelchairs and Geri chairs in the hallway inasmuch as the residents are
in bed when the devices are stored. Petitioner's posthearing brief at
34; P. Ex. 64. I do not find that HCFA established a prima facie case
that Petitioner created an accident hazard by storing wheelchairs and
Geri chairs in its east hallway. I do not disagree with HCFA that the
storage of such devices in the hallway might present a hazard to residents
who use the hallway as a means of passage from one part of Petitioner's
facility to another. Tr. at 70 - 74. However, HCFA presented no evidence
to show that residents actually used the hallway during the hours when
wheelchairs and Geri chairs were stored there by Petitioner. The surveyors did not record the hour of the morning that
they witnessed the wheelchairs and Geri chairs being stored. See
HCFA Ex. 47 at 16; Tr. at 70 - 74. Nor did they aver that they witnessed
any residents attempting to negotiate the hallway during the time that
wheelchairs and carts were stored there. See id. Therefore,
there is no prima facie evidence that the wheelchairs and Geri chairs
presented an actual hazard to Petitioner's residents. Furthermore, even
if an inference could be drawn that some hazard might exist from Petitioner's
storage of wheelchairs and Geri chairs in the hallway, that inference
is rebutted by Petitioner's uncontradicted evidence that residents are
all in bed when the wheelchairs and Geri chairs are stored.
The surveyors allege at Tag 325 of the report of the June
26, 1998 survey that Petitioner failed comply with the requirements of
42 C.F.R. � 483.25(i)(1). They aver that Petitioner failed to ensure that
one of its residents, Resident 8, maintain acceptable parameters of nutrition.
HCFA Ex. 47 at 17 - 23. Resident 8 is the same resident whose care is
cited under Tags 157 and 314 of the report of the June 26, 1998 survey
as evidence to support the allegations that the surveyors make under those
tags. See Findings 12 and 14 of this subpart. Indeed, the fact
allegations that the surveyors make under Tag 325 essentially duplicate
the allegations that they make concerning resident 8 under Tags 157 and
314. Essentially, the surveyors base their allegations on the
following evidence. First, it is undisputed that Resident 8 lost weight
during the period prior to the June 26, 1998 survey. On March 6, 1998,
the date of the resident's admission to Petitioner's facility, the resident
weighed 143 pounds. HCFA Ex. 47 at 17. By June 24, 1998, the resident's
weight had decreased to 126 pounds. Id. at 22. Second, the surveyors
aver that Petitioner's dietician incorrectly decided that it was advisable
that the resident sustain a slow weight loss. HCFA Ex. 84 at 114. According
to the surveyors, this was an incorrect assessment of the care that ought
to have been provided to the resident. Tr. at 64 - 65. The surveyors and HCFA contend that, rather than allow
the resident to lose weight, Petitioner's staff should have provided care
either to maintain or even to increase the resident's weight. Tr. at 257,
259, 264 - 267. HCFA argues that the resident's weight loss was a sign
that the resident was becoming malnourished. It suggests that the resident
developed pressure sores at least partly as a consequence of the resident's
allegedly inappropriate loss of weight. It argues that, as a result of
alleged malnutrition, the resident became ill, suffered vomiting and nausea,
and had to be admitted to a hospital. HCFA's posthearing brief at 39;
Tr. at 55 - 56, 66 - 67. I am not persuaded that Petitioner failed to maintain
acceptable parameters of nutrition for Resident 8. The preponderance of
the evidence establishes otherwise. First, HCFA's contentions ignore the
fact that the resident's weight was above the resident's ideal
body weight at all times during the resident's stay at Petitioner's facility.
The ideal body weight range for Resident 8, given the resident's height
of 62 inches, is from 99 to 121 pounds. HCFA Ex. 47 at 17; Tr. at 89,
258. The resident's weight was never recorded as being below 126 pounds.
HCFA Ex. 47 at 22. Second, the resident's blood protein levels were recorded
as being within normal limits during the resident's stay at Petitioner's
facility. Tr. at 99, 272 - 273. HCFA's dietician witness argued that the
blood protein levels might have been elevated above their actual levels
due to the resident's dehydrated state. See id. at 272 -
273. However, the fact remains that the only levels that were recorded
for the resident were within the normal range. There is no evidence that
the resident ever demonstrated abnormally low blood protein levels. Finally, the resident's treating physician, Dr. Saca,
opined that Petitioner consistently adhered to his treatment orders. He
opined additionally that the decline in the resident's state of health
was due to the resident's medical condition. P. Ex. 47. Again, I do not
find that Dr. Saca's opinion establishes that Petitioner gave Dr. Saca
reasonable notice of every change in the resident's condition. See
Finding 12 of this subpart. But, I do find that Dr. Saca's opinion is
persuasive evidence that Petitioner was not derelict in providing care
to the resident. And, in particular, I find that his opinion supports
my conclusion that the resident was not nourished inadequately.
A basis exists to impose civil money penalties against
Petitioner for each day of the period which begins on April 17, 1998 and
which runs through August 13, 1998. Civil money penalties are among the
remedies that HCFA may impose against a long-term care facility where
that facility is not complying substantially with federal participation
requirements. 42 C.F.R. � 488.406(a)(3). In this case, I have found that
Petitioner was not complying substantially with federal participation
requirements as of the dates of surveys that were completed on April 17,
1998 and on June 26, 1998. Petitioner did not prove that it corrected
any of the deficiencies that were identified on April 17, 1998 at any
time prior to June 26, 1998. Nor did Petitioner prove that it corrected
any of the deficiencies that were identified on June 26, 1998 at any time
prior to August 13, 1998, the date when HCFA determined that Petitioner
had attained substantial compliance with all participation requirements.
Regulations which govern the imposition of civil money
penalties provide that a civil money penalty in an amount ranging from
$50 to $3,000 per day may be imposed for each day in which a long-term
care facility is deficient in complying with federal participation requirements
at a level which is substantial but which does not constitute immediate
jeopardy for the facility's residents. 42 C.F.R. � 488.438(a)(1)(ii) (the
current regulation recodifies a regulation which, in 1998, was codified
at 42 C.F.R. � 488.438(a)(2)). A basis exists to impose civil money penalties
against Petitioner for each day of the period which begins on April 17,
1998 and which runs through August 13, 1998. Petitioner failed to comply
substantially with participation requirements - albeit at a level of noncompliance
that was less severe than the immediate jeopardy level - for each day
of this period.
Section 1819(h)(2)(B) of the Social Security Act (Act)
provides statutory authority for imposing civil money penalties against
long-term care facilities that do not comply substantially with Medicare
participation requirements. This section provides that civil money penalties
shall be applied against noncompliant facilities in the same manner as
civil money penalties are applied under the Civil Money Penalties and
Assessments Act, section 1128A of the Act. Id. Both sections 1819 and 1128A are remedial statutes. Their
purpose is not to punish wrongdoers but to induce compliance with the
requirements of law. Any civil money penalty that is imposed against a
long-term care facility must be consistent with this remedial purpose.
In a case involving imposition of civil money penalties
my authority to determine the reasonable amounts of penalties derives
both from the Act and from implementing regulations. That authority constitutes
de novo review authority in which I must decide in those cases where a
basis exists for imposing civil money penalties what penalty amounts are
reasonable independent from any determination by HCFA or any recommendation
that is made by a State survey agency. In reaching a decision as to the
reasonable amounts of civil money penalties, I am authorized expressly
to hear and rule on evidence that relates to all of the factors that HCFA
may consider in making its initial determination. 42 C.F.R. � 488.438(e)(3).
Those factors are specified at 42 C.F.R. � 488.438(f) and, at 42 C.F.R.
� 488.404, which is incorporated into 42 C.F.R. � 488.438(f) at 42 C.F.R.
� 488.438(f)(3). I have applied the factors specified at 42 C.F.R. �� 488.438(f)
and 488.404 to decide what is reasonable.
I find that civil money penalties of $300 per day are
reasonable for the period which begins on April 17, 1998 and which runs
through June 25, 1998. These are substantially lower civil money penalties
than the $1,000 per day penalties that HCFA determined to impose over
the same period. I base my decision to impose the reduced civil money
penalties in part on my conclusion that Petitioner manifested significantly
fewer deficiencies as of April 17, 1998 than HCFA asserted to be the case.
My decision to impose penalties of $300 per day - rather than the $1,000
per day that HCFA determined to impose - also takes into account my conclusion
that, in the aggregate, Petitioner's deficiencies as of April 17, 1998
were substantially less serious than HCFA determined Petitioner's overall
deficiencies to be. 42 C.F.R. � 488.404; see 42 C.F.R. � 488.438(f)(3). Petitioner manifested significantly fewer deficiencies
as of April 17, 1998 than HCFA asserts to be the case. HCFA alleges that
there were 11 deficiencies extant as of that date. However, as I find
at Findings III.A.1 - 11, Petitioner manifested only four deficiencies
as of April 17, 1998. Not only did Petitioner have fewer deficiencies than HCFA
determined as of April 17, 1998, but, in the aggregate, these deficiencies
were less serious than HCFA found them to be. The surveyors who conducted
the April 17, 1998 survey and HCFA alleged that Petitioner manifested
four deficiencies (Tags 223, 224, 225, and 314) that were at a scope and
severity level of "G." HCFA Ex. 1 at 1, 12, 17, 26. In fact, Petitioner
had one deficiency (Tag 225) at a scope and severity level of "G." HCFA
Ex. 1 at 17. I take notice that a scope and severity level of "G" means
that there exists an isolated circumstance at a facility where the facility's
noncompliance with participation requirements causes a resident to suffer
actual harm. The remaining deficiencies that Petitioner manifested
as of April 17, 1998 (Tags 316, 427, and 430) all were at a scope and
severity level of "D." HCFA Ex. 1 at 28, 33, 36. I take notice that a
scope and severity level of "D" means that there exists an isolated circumstance
at a facility where the facility's noncompliance with participation requirements
poses a potential for more than minimal harm to a resident. A level "D"
deficiency is the lowest level of noncompliance for which imposition of
civil money penalties will be considered as a possible remedy. I have considered the other factors which may be the basis
for determining the amounts of civil money penalties. I have taken into
account that Petitioner was found to be deficient at compliance surveys
that were conducted in 1996 and 1997. Tr. at 427; 42 C.F.R. � 488.438(f)(1).
The deficiencies that Petitioner manifested in April 1998 were not recurrences
of deficiencies that were found previously. On the other hand, the record
shows that Petitioner has a poor compliance history albeit involving deficiencies
at a relatively low level of seriousness. Tr. at 427. I have also considered
Petitioner's argument that its financial condition precludes it from paying
a substantial civil money penalty. 42 C.F.R. � 488.438(f)(2); Petitioner's
posthearing brief at 36 - 37. As I discuss in more detail below, I do
not find that Petitioner would not be capable of paying civil money penalties
in the amounts that I have determined to impose.
I decide that civil money penalties in the amount of $750
per day are reasonable for the period which begins on June 26, 1998 and
which runs through August 13, 1998. These penalties are substantially
lower than the $3,000 per day penalties that HCFA determined to impose
for the same period. I base my decision to impose penalties that are substantially
lower than the $3,000 per day that HCFA determined to impose on several
factors:
By imposing civil money penalties of $750 per day for
the period which runs from June 26 through August 13, 1998, I am more
than doubling the amounts of the civil money penalties that I imposed
for the April 17 - June 25, 1998 period. I find this to be appropriate
for two reasons. First, the deficiencies that Petitioner manifested on
June 26, 1998 were in the aggregate, substantially more serious than those
that Petitioner manifested on April 17, 1998. As of April 17, 1998, Petitioner
had a single level "G" deficiency. As of June 26, 1998, Petitioner had
two level "G" deficiencies. Second, the fact that Petitioner remained
deficient after June 26, 1998 - although its deficiencies were not the
same deficiencies as those that were present on April 17, 1998 - shows
that Petitioner needed a greater inducement to correct its deficiencies.
Petitioner argues that its financial condition precludes
it from paying substantial civil money penalties. Petitioner's posthearing
brief at 37 - 38; see 42 C.F.R. � 488.438(f)(2). Petitioner contends
that it lost money in 1996 and 1997 and has lost money in every year since
1993. Id. HCFA disputes Petitioner's contentions. HCFA's posthearing
brief at 46 - 47. According to HCFA, many of the "losses" sustained on
paper by Petitioner during the years prior to 1998 actually were profits
that were paid out from Petitioner to its owner. It might be necessary for me to look closely at Petitioner's financial condition if I decided to sustain the full amounts of the civil money penalties that HCFA determined to impose. However, I find it unnecessary to scrutinize Petitioner's financial condition closely because I am imposing civil money penalties that are, in the aggregate, a substantially smaller amount than that which HCFA determined to impose. Petitioner did not contend that it was unable to pay any civil money penalties. It argued only that penalties in the amounts determined by HCFA were onerous. Petitioner's posthearing brief at 36 - 37. I do not find that Petitioner made any showing that it would be unable to pay the lower total penalty amount that I am imposing in this case. |
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| JUDGE | |
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Steven T. Kessel Administrative Law Judge |
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