Department of Health and Human Services DEPARTMENTAL APPEALS BOARD Civil Remedies Division |
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IN THE CASE OF | |
Sunrise Care & Rehabilitation - Cambridge Drive, |
DATE: February 23, 2001 |
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Health Care Financing Administration
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Docket No.XC-99-161
Decision No. CR747 |
DECISION | |
I decide that on April 1, 1998, Sunrise Care
& Rehabilitation - Cambridge Drive (Petitioner) was not in substantial
compliance with Medicare participation requirements, specifically an administration
requirement under Tag F-490 (42 C.F.R. � 483.75).
Accordingly, the Health Care Financing Administration (HCFA) was authorized
to impose a civil money penalty (CMP) in the amount of $3,050. Moreover,
HCFA's determination that Petitioner's noncompliance was at an immediate
jeopardy level was not clearly erroneous. I. Background Petitioner is a 106-bed skilled nursing facility located in Lexington, Kentucky. HCFA found that Petitioner was not in substantial compliance with Medicare participation requirements on April 1, 1998, based on a May 22, 1998 complaint survey by the Kentucky Department of Health and Human Services (State survey agency).(1) A survey is identified by its exit date; the survey here lasted from May 18 through May 22. HCFA imposed a $3,050 CMP for one day of immediate jeopardy on April 1, 1998, based on allegations of deficiencies involving two residents. HCFA Ex. 32. Specifically, HCFA cited six deficiencies stemming from an alleged sexual contact between the two residents. HCFA determined that there was immediate jeopardy for three of the citations, Tags F-490, F-223, and F-224; and non-immediate jeopardy for the other three citations, Tags F-225, F-250, and F-319. HCFA found Petitioner to be in substantial compliance with Medicare participation requirements beginning April 2, 1998. During the in-person hearing, August 17-19, 1999, in Lexington,
Kentucky, each party called witnesses to testify. The transcript of the
hearing is referred to as "Tr." Petitioner moved the admission into evidence
of 44 exhibits, referred to as Petitioner exhibits (P. Exs.) 1- 44. All
were initially admitted into evidence without objection. Tr. 46. As the
hearing progressed, HCFA raised an objection regarding the authenticity
of P. Ex. 33. See Tr. 170. HCFA moved the admission into evidence
of 45 exhibits, referred to as HCFA exhibits (HCFA Exs.) 1- 45, which
were admitted into evidence without objection. The parties submitted initial
posthearing briefs (P. Br. and HCFA Br.), response briefs (P. R. Br. and
HCFA R. Br.), and also briefs concerning the admissibility of P. Ex. 33.
I deny HCFA's motion to exclude P. Ex. 33. However, I have considered
HCFA's objection to P. Ex. 33 in determination of the weight I have given
to that evidence. A. Issues. The principal issue is whether Petitioner was in substantial
compliance with Medicare participation requirements on April 1, 1998.
The more specific issues are:
Below, I make findings of fact and conclusions of law/finding
to support my decision. In so doing I set forth each finding below as
a separately numbered heading.
Following the May 22, 1998 survey, HCFA cited Petitioner for an administrative deficiency, specifically under the subsection of the regulations concerning compliance with federal, State, and local laws (e.g., failure to report suspected abuse and neglect), 42 C.F.R. � 483.75, which states in pertinent part:
42 C.F.R. � 483.75.
Resident B was a well-developed, well-nourished, 72-year-old
male, who was known to be hard of hearing. He had been discharged from
Woodford County Kentucky Hospital immediately prior to his residency at
Petitioner's facility, which began on March 20, 1998. During the intake
interview process for Petitioner's facility, while still at Woodford,
Resident B grabbed the breast of Petitioner's interview nurse. That incident
was noted in his pre-admission assessment. Tr. 433; HCFA Ex. 6 at 1. Petitioner's protocol for new residents was to prepare and follow an interim Plan of Care (POC) and observe the resident for a period of 14 days before preparing a permanent POC. Resident B was scheduled to have a permanent POC prepared for him within seven days following his 14-day observation period. P. Ex. 29 at 20. A resident assessment is required
to be completed within 14 days after admission. 42 C.F.R. � 483.20(b)(2)(i).
It is anticipated that the POC in effect would be followed unless there
arose a "significant change" in a resident's mental or physical condition.
Significant change, for the purposes of this section, means a major decline
or improvement in a resident's status that will not normally resolve itself
without further intervention by staff or by implementing standard disease-related
clinical interventions, that has an impact on more than one area of a
resident's health status and requires interdisciplinary review or revision
of the care plan or both. 42 C.F.R. � 483.20. Petitioner's Administrator was awakened by a call from
DON at approximately 4:15 a.m. on April 1, 1998, concerning the incident.
P. Ex. 29 at 50. The Administrator arrived at the facility at approximately
5:30 a.m. P. Ex. 29 at 60. She read through the written statements provided
by employees LPNs Janet and Mona and NAs Tomeka, William, Michael, and
Gary. P. Ex. 29 at 51. Those written statements had been completed by
Petitioner's employees by 3:30 a.m. of April 1, 1998. The Administrator testified that she was the person ultimately responsible for conducting the abuse investigation. Tr. 748. The Administrator identified Petitioner's corporate policy statement regarding reports of resident abuse and stated it was written by the Corp. VP (the same person sitting in her office when she made the call to the Complaints Coordinator). Tr. 748. Petitioner's written policy was that a person shall not knowingly-
P. Ex. 30 at 5. Petitioners's policy and procedure for investigation of
any observation of, or suspicion of, resident/resident abuse was that
the documentation in the medical record was to reflect direct observable
facts (i.e., if residents complained of being hit, document redness, swelling,
etc.). HCFA Ex. 19 at 2. The complaint investigation file should contain
the employee statements. HCFA Ex. 19 at 8. Written reports of the allegation
of abuse should be completed within 48 hours of the initial telephone
call. As a result of two anonymous telephone calls which were
received by the Cabinet for Health Services, Office of Inspector General
Division of Licensing and Regulation for the State of Kentucky, the State
conducted an investigation. It subsequently issued a Type "A" citation.
HCFA Ex. 20. A separate hearing was held in that case on September 16-17,
1998. P. Ex. 29.
To support its determination that Petitioner failed to
comply with this requirement, HCFA alleged that Petitioner's failure to
report an alleged act of sexual abuse involving two residents as detailed
at Tag F-490 on the Statement of Deficiencies. HCFA cited this deficiency
as an overall failure at the level of immediate jeopardy. I base my decision
on the documents in evidence, except P. Ex. 33, the testimony and my determination
as to the credibility of the witnesses before me, and application of the
law. It is the duty of a facility through its administrators "to operate and provide services in compliance with all applicable Federal, State and local laws, regulations, and codes . . ." 42 C.F.R. � 483.75. Here, this includes local laws requiring Petitioner to make reports to the Kentucky Adult Protective Services [of] all allegation of abuse." (emphasis added). State law in Kentucky requires a report of an incident where there is reasonable cause to suspect abuse, neglect, or exploitation. Tr. 676.
Kentucky Revised Statutes � 209.030(2). Petitioner had an adequate policy and procedure in place prohibiting abuse. Tr. 231. Petitioner's administrator testified that she did make a report of the incident involving Resident A on April 1, 1998, at approximately 10:00 a.m. Tr . 818. The Administrator stated that she is the person responsible for making those reports. Tr. 748. The Complaints Coordinator testified that he did receive an oral report of the incident from the Administrator on April 1, 1998, at approximately 10:00 a.m. and made handwritten entries on a form. HCFA Ex 31. at 3. The innocuous nature of the information transmitted from the Administrator to the Complaints Coordinator is uncontroverted. Tr. 785; P. Ex. 29 at 63. It was recorded by the Complaints Coordinator as:
At the time of the phone report, the Administrator stated
she had in her possession all of the statements by Petitioner's employees
and had interviewed the employees. Tr. 513-514, 776, 806, 818. Some of
the employees were interviewed more than once. Tr. 776. The Administrator
agreed that she had heightened sensitivity to possible consequences to
Petitioner from adverse publicity from an alleged sexual abuse matter
in the recent past. Tr. 808. When the Administrator made the telephone
call to the Complaints Coordinator, she was in the presence of the Regional
Manager and the Corp. VP. Tr. 748; P. Ex. 29 at 54. The Administrator
stated she had followed the reporting procedures set forth by Petitioner.
Tr. 774. The Administrator agreed that she was under an obligation to
make an abuse investigation, because as of the time of her phone call
to the Complaints Coordinator on April 1, 1998, she was "investigating
this incident as if a sexual assault might have occurred." P. Ex. 10;
Tr. 772, 783. The oral report provided to the Complaints Coordinator by
the Administrator was missing many details concerning the alleged abuse,
which is contrary to Petitioner's written policy for reporting alleged
sexual abuse. P. Ex. 29 at 55; Tr. 125, 164. Petitioner's staff had been trained to convey reports of alleged abuse to their supervisors in the chain of command. Tr. 747. Petitioner's staff, other than NAs William and Michael, took prompt and appropriate action after observing prohibited intimate contact between Residents A and B and reported the incident to the facility Administrator and/or the DON. NA Gary was very upset by what he said he witnessed and told LPN Janet to call the DON right away. HCFA Ex. 21; Tr. 128. The urgency of the incident to Petitioner's staff on duty is shown by the telephone call made by NA Gary to the DON, which awakened her at home at 3:30 a.m. on the morning of April 1, 1998. Tr. 256. The DON stated that she was not aware that Resident B was acting out sexually prior to April 1, 1998. Tr. 267, 253. However, much of the initial information concerning Resident B's inappropriate sexual behavior, although conflicting, was available to the DON when she called and discussed the matter from the facility via telephone at 4:15 a.m. with the Administrator who was also still at home. Tr. 274-275, 772.Some of the on-duty night shift nursing personnel viewed and assessed Resident A in time frames ranging from immediately to 15 minutes after the alleged incident. Tr. 503. LPNs Mona and Janet gave credible versions of having seen and smelled semen on the vaginal area of Resident A. P. Ex. 29 at 81; Tr. 139, 296, 462, 467, 488, 508, 593. The DON viewed Resident A approximately 45 minutes after the alleged incident and declared that the wetness was cotton lint and urine. Tr. 464. The testimony as to whether to clean up Resident A was contradictory. NA Tomeka said that the DON told her to take Resident A to the shower and clean her up. Tr. 135, 464, 484. The DON said she told Tomeka to not wash Resident A. Tr. 277. In any event, CNA Dorothy testified that she showered and cleaned Resident A and got her ready for breakfast, because it was her routine. CNA Dorothy said she was unaware of any the events earlier that morning. P. Ex. 28; P. Ex. 29 at 88. The DON called Petitioner's admitting Physician while he was at home between 5:00 to 5:30 a.m. to describe the incident to him. Tr. 437. The information transmitted to the Physician to assist him in his examination of both residents was devoid of any reference to an observation of possible semen, alleged observations of up and down motion made by Resident B, bare genitals touching, male nurse aides laughing in the hall outside the Resident A's room, or of any alleged statement that ". . . [Resident B] is down there getting a piece of ass." Tr. 438, 440. The Physician had initially examined Resident B upon his admission on March 20, 1998. Tr. 408. The Physician believed that Resident B could not achieve an erection, nor ejaculate. Tr. 418. Later observations of Resident B proved him wrong. Tr. 516; P. Ex. 29 at 83; P. Ex. 17 at 4; P. Ex. 18 at 7, 17, P. Ex. 22 at 3. In fact, Resident B was later transferred to St. Joseph Hospital with a diagnosis of being hypersexually active. Tr. 314; HCFA Ex. 42 (see unnumbered pages entitled "Discharge/Transfer Summary" dated 5/29/1998). The Physician believed that the staff at the facility kept him informed about Resident B's condition. Tr. 410. However, contrary to the information known to the Physician, Petitioner's Social Services Director, told the investigator that Resident B's "sexual behavior escalated from . . . (the time of) . . . admission. After the second day there, everyone knew of his sexual aggressiveness." Tr. 150. LPN Janet stated that Resident B was combative and sexually combative before April 1. Tr. 456. The DON stated that if a nurse was aware of sexually acting out behavior by a resident, but not charting it, she would be disciplined. Tr. 255. The witnesses testified that several combative and/or sexually inappropriate behavior episodes of Resident B were not recorded. Tr. 234, 240, 256, 479, 516, 561. There was no evidence that any personnel were cited for inadequacies of reporting. The Physician gave no instructions regarding the preservation of tissue evidence, nor did he advise the staff not to clean the resident. Nevertheless, one of the staff, NA Tomeka, instinctively knew that this evidence should be preserved, and she put the soiled briefs and cloths used to clean Resident A in a plastic bag and turned it over to the DON. P. Ex. 29 at 31; Tr. 137, 262. The DON said that she discarded the evidence preserved in the plastic bag about one and one-half days later, without testing it. Tr. 262. The Administrator stated she was not aware Resident B was masturbating or that he could have an erection. Tr. 824. She said she was never told by the DON that someone had reported seeing semen. Tr. 812. The nursing staff contend that in preparing the nurses, notes after the incident between Residents A and B they were told that they were to use clinical descriptive language and not make conclusions (i.e. "yellowish, white discharge" instead of "looks like, smells like semen"). The contention by Petitioner's staff members that they were told by the DON to use clinical descriptive language and not make conclusions (i.e., yellowish, white discharge versus looks like- smells like semen) in their oral and written incident reports is credible. Tr. 467, 486, 814; P. Ex. 29 at 81. I find that the use of the terms, "looks like semen . . . smells like semen" is an objective observation and not a conclusion, thus qualifying it as useful, necessary language to be included in Patient A's charting and the investigation statement. The Administrator admitted she had read the investigation statement by LPN Janet and NA Tomeka. HCFA Exs. 23, 24. But she did not perceive that "yellowish, white drainage" might be semen. The Physician, after the benign report of his examination of Residents A and B, expressed his belief to the Administrator that was unlikely that male Resident B could achieve erection or ejaculate. Tr. 819. At 10:00 a.m. April 1, 1998, the Administrator then made the report by telephone to the Complaints Coordinator. The Complaints Coordinator testified that he recalled the April 1, 1998 phone call regarding the incident very well, and that the information he initially received from the Administrator made: (1) no mention of any sexual activity; (2) no mention of possible identification of semen; (3) no mention of Resident B's diaper being found on the floor of Resident A's room; (4) no mention of two staff allegedly watching an act of intercourse; (5) no mention of a statement that the resident in issue was "down there getting a piece of ass;" (6) no mention that the genitals were touching; (7) no mention that two male NAs were standing outside the resident's room laughing; and (8) no mention that the two male NAs were suspended. Tr. 652-657. He stated that at the time of the April 1 call, he believed that "we had a relatively common episode of wandering behavior." Tr at 656. The Complaints Coordinator stated that if the oral report contained or referred to the above factors, the response of his office would have been different and he absolutely would have sent a surveyor out as a "priority one complaint." He said he had surveyors readily available in the office that day who would have been capable of investigating the report by the Administrator immediately. Tr. 663. NA William, who was never found for a follow-up interview, was the only person who claimed he saw Resident B engage in sex with Resident A. Tr. 130; HCFA Ex. 22. NA Michael's testimony at the State administrative hearing concerning the Type "A" citation months later was less definitive. P. Ex. 29 at 97. The Administrator said she made a follow-up oral report on Friday, April 3, 1998, to State officials giving greater details of the incident. Tr. 789, 807. She was unable at either the State hearing or the hearing for this case to recall to whom she gave the follow-up report. Tr. 807. The Complaints Coordinator stated that there is no record of a State official having received an April 3 incoming call from the Administrator. Tr. 663. The Administrator's assertion that she made an oral follow-up report within three days of the incident is uncorroborated, and I am unable to accept her version as compelling given the equally credible testimony of the Complaints Coordinator. The social worker of Kentucky Adult Protective Services for Fayette County, Kentucky, stated she also received a call on April 1, 1998 from the Administrator. The Social Worker stated she did not receive any follow-up calls. P. Ex. 29 at 39. She testified in the State administration hearing, held on September 16-17, 1998, that she was told:
P. Ex. 29 at 39. The Administrator stated that she informally handed copies
of the staff incident reports to the Social Worker when she visited the
facility on another matter. Tr. 130, 786. There was no offer of proof
of an acknowledgment of receipt by the Social Worker of these reports
by Petitioner. The Social Worker denied receiving any documents from the
Administrator. P. Ex. 29 at 41. The Administrator did not file a written report of the incident with the State Agency. Tr. 701; P. Ex. 29 at 57; HCFA Ex. 19 at 8. LPN Janet believed there was a "cover up" of the April 1, 1998 incident. P. Ex. 29 at 82. LPN Mona stated that she was concerned as to why the State surveyors had not shown up to investigate the incident. Tr. 524. The lack of response by the State agency between April 1 and April 22, 1998 prompted two anonymous reports to be phoned into the State survey agency on or about last week of April 1998. The notes taken as a result of those calls were hand written and placed onto the previous report prepared by the Complaints Coordinator on April 1, 1998. Tr. 94, 198. The follow-up notes on the Kentucky State agency report were:
HCFA Ex. 31 at 3. While the sexual impulses of Resident B were unpredictable,
I find that the facility was missing vital information to deal with his
impulses. There is evidence that his impulses ranged from being an annoyance
to being dangerous to staff and to other residents. We cannot at this
time state with confidence what his impulses were or when they occurred,
due to the lack of a definitive behavior record during his residency period
of March 20 through April 1, 1998. It appears from the testimony that
the night shift was short of staff to provide the necessary oversight,
or even to perceive the necessity to give oversight to Resident B. Even
though he had arrived at the facility only 10 days before the incident,
it appears that the lack of communication up and down the chain of command
allowed the night shift staff to make resident care decisions without
adequate support, instructions, and personnel to prevent Resident B's
behavior from becoming an institutional problem. The lack of communication, both oral and written, allows
the person responsible for each step in the chain of command to disavow
knowledge and culpability for adverse consequences. The LPNs said they
didn't know that they were supposed to chart dangerous and potentially
dangerous acts by a resident during the period of the initial POC and
to confirm that the report of such behavior went up the chain of command
to allow the alteration of the initial POC due to a "significant change"
in the resident's condition. I have considered the following actions taken by the DON:
The Administrator reviewed some, but not all, of the evidence
and made a report to State officials weighted heavily upon the DON's opinion.
Although she made a timely oral report, it was not a complete report.
The report was missing details which may have shed a new light on the
initial conclusion. Petitioner suggests " . . . no regulation requires
the report to be complete or even accurate." P. Br. at 32. To follow Petitioner's
theory of the meaning of K.R.S. � 209.030(2) would not only gut the law,
but lull the governmental agency into a state of complacency. Could any
reports be trusted using the Petitioners's theory? The receipt of accurate
and timely reports is a vital part of the monitoring process designed
to protect the aged, infirm, and those unable to protect themselves. An
incomplete and/or untimely incident report is a crucial break in the web
of protection afforded to otherwise helpless residents. I reject Petitioner's
theory that an incomplete or inaccurate report would be a satisfactory
report. The post-event factual analysis of the incident by the Administrator
or by the DON may have been solicited and useful to the Complaints Coordinator,
but the State agency also deserves the raw, unfiltered evidence. What is deficient here is the overall failure of the administration to:
The events which occurred during the early morning of
April 1, 1998, at Petitioner's facility may indeed have been as innocuous
as initially described to the Complaints Coordinator by the Administrator.
On the other hand, actual harm to Resident A could have occurred. There
is strong evidence that one or both of the male NAs (William and Michael)
observed prohibited intimate contact (sexual contact) between two demented
residents, A and B, and failed to take timely, appropriate action. Without
complete, accurate, and timely reports, no one will know. However, HCFA
stated none of the deficiencies were based upon the lack of or delay of
intervention of the two male NAs in the alleged sexual abuse incident.
P. Ex. 29 at 20; Tr. 222, 639. I am impressed that two unknown witnesses to the incident
at Petitioner's facility were so concerned that no State investigation
of the incident had been initiated that they telephoned the proper agency
to report the incident as they recalled it. The Administrator agreed it
was an "alleged" sexual abuse investigation. Tr. 772-773. The incident
deserved a proper report, as required by the Kentucky statute.
Agencies that are under a duty to enforce the regulations
protecting nursing home residents cannot be in all places at all times.
They must necessarily depend upon a reporting system and record-keeping
prepared in good faith by the staff of the facilities. I find that the
inevitable result of not following proper procedures initially crippled
Petitioner from recognizing the threat of Resident B, and ultimately kept
members of Petitioner's management staff from having access to important
raw data. It is also hard to escape the conclusion that the pressure of
having to please regional corporate staff and the desire to reduce adverse
publicity to the corporate facility resulted in incomplete reports to
the Complaints Coordinator and the Social Worker. Through the incomplete
and inaccurate incident reporting, the responsible agencies were lulled
into a state of mind that nothing unusual had occurred. Upon learning the additional disturbing information, both
Kentucky State agencies instituted separate civil penalty actions against
the facility. I find that the prima facie evidence presented by HCFA has
not been overcome by Petitioner's evidence. Thus, Petitioner has not proved
by a preponderance of evidence that it was in substantial compliance with
the requirements of 42 C.F.R. � 483.75. HCFA's burden is simply to present prima facie evidence that Petitioner's failure to substantially comply with the regulations constituted a deficiency and that the deficiency constituted immediate jeopardy. To rebut HCFA's prima facie case of immediate jeopardy, Petitioner must prove that HCFA's determination was clearly erroneous. 42 C.F.R. � 498.60(c)(2). I find the shortfalls of the facility in this regard are serious and that HCFA's determination that the deficiency constituted immediate jeopardy for one day was justified.
Following the May 22, 1998 survey, HCFA cited Petitioner with facility practice deficiencies, specifically the subsection of the regulations concerning sexual abuse, 42 C.F.R. � 483.13(b), which states in pertinent part:
42 C.F.R. � 483.13(b). To support the allegation that Petitioner failed to comply
with this requirement, the alleged sexual abuse by Resident B of Resident
A is detailed at Tag F-223 on the Statement of Deficiencies. I find that the allegations presented by HCFA on the element of "willful infliction of injury" inherent in the term "abuse" is unsupported by the evidence or is speculative. The degree of active involvement of the two male NAs in promoting the prohibited contact between Resident A and Resident B cannot be determined. I follow the Board's decision regarding "abuse" in Beverly Health and Rehabilitation Center - Williamsburg, DAB No. 1748 (2000). Because of my determination above based on Tag F-490, I need not analyze this deficiency in further detail.
Following the May 22, 1998 survey, HCFA cited Petitioner with a "staff treatment of residents" deficiency, specifically the subsection of the regulations concerning sexual abuse, 42 C.F.R. � 483.13(c)(1)(i), which states in pertinent part:
42 C.F.R. � 483.13(c)(1)(i). To support the allegation that Petitioner failed to comply
with this requirement, the staff's involvement concerning the alleged
act of sexual abuse by Resident B of Resident A is detailed at Tag F-224
on the Statement of Deficiencies. Petitioner did develop an adequate policy and procedure regarding this requirement. Tr. 232; HCFA Ex. 19. However, regarding implementation for those policies and procedures, I find that the allegations presented by HCFA on the element of "willful infliction of injury" inherent in the term "mistreatment, neglect, and abuse" is unsupported by the evidence. Furthermore, there were no deficiencies written for the failure of Petitioner to monitor or observe the behavior of Resident B. P. Ex. 29 at 20. None of the deficiencies are based upon the failure to intervene or late intervention of the two male NAs (Michael or William) in the alleged sexual abuse incident. Tr. 222, 639. Because of my determination above based on Tag F-490, I need not analyze this deficiency in further detail.
Following the May 22, 1998 survey, HCFA cited Petitioner with deficiencies of "Staff treatment of residents," specifically the subsection of the regulation concerning employment of certain individuals, 42 C.F.R. � 483.13(c)(1)(ii), which states in pertinent part:
42 C.F.R. � 483.13(c)(1)(ii). To support the allegation that Petitioner failed to comply
with this requirement, the alleged act relating to employment of certain
individuals is detailed at Tag F-225 on the Statement of Deficiencies. I find that HCFA did not make a prima facie showing that there was any employment of persons who were "found guilty' or "had a finding entered" concerning mistreatment, neglect, or abuse of residents. I take notice that there is a variance between the citation to 42 C.F.R � 483.13(c)(1)(ii) in the HCFA form 2567L and the descriptive language below the citation where the descriptive language appears to relate to 42 C.F.R. � 483.13(c)(1)(iii). HCFA Ex. 5 at 4. Because of my determination above based on Tag F-490, I need not analyze this deficiency in further detail.
Following the May 22, 1998 survey, HCFA cited Petitioner with quality of life deficiencies, specifically the subsection of the regulations concerning the provision of social services to residents, 42 C.F.R. � 483.15(g), which states in pertinent part:
42 C.F.R. � 483.15(g)(1). To support the allegation that Petitioner failed to comply
with this requirement, the alleged act is detailed at Tag F-250 on the
Statement of Deficiencies. Because of my determination above based on Tag F-490, I need not analyze this deficiency in further detail.
Following the May 22, 1998 survey, HCFA cited Petitioner with quality of care deficiencies, specifically the subsection of the regulations concerning the provision of necessary care and services related to the mental and psychosocial functioning of residents, 42 C.F.R. � 483.25(f)(1), which states in pertinent part:
42 C.F.R. � 483.25(f)(1). To support the allegation that Petitioner failed to comply
with this requirement, the alleged deficiency is detailed at Tag F-319
on the Statement of Deficiencies. Because of my determination above based on Tag F-490,
I need not analyze this deficiency in further detail. VI. Conclusion. Petitioner was not in substantial compliance with Medicare participation requirements on April 1, 1998. HCFA's determination that Petitioner's noncompliance was at an immediate jeopardy level was not clearly erroneous. HCFA had the authority to impose a $3,050 CMP for one day of immediate jeopardy. |
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JUDGE | |
Jill S. Clifton Administrative Law Judge
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FOOTNOTES | |
1. HCFA contracts with State agencies to conduct surveys of skilled nursing facilities to determine compliance with Medicare participation requirements. Sections 1864 and 1819(a) of the Social Security Act (Act); 42 U.S.C. � 1395aa; 42 U.S.C. �1395i-3(g); and 42 C.F.R. � 488.20. | |