SUBJECT: Ridge Terrace,

Petitioner,

Centers for Medicare & Medicaid Services

DECISION

I sustain the imposition of remedies against Petitioner, Ridge Terrace, consisting of the following civil money penalties:

1. $3,050 per day for each day of a period that began on January 12, 2000 and which ran through January 26, 2000;

2. $700 per day for each day of a period that began on January 27, 2000 and which ran through March 12, 2000; and

3. $250 per day for each day of a period that began on March 13, 2000 and which ran through March 26, 2000.

The total amount of civil money penalties that I impose against Petitioner is $81,450.

I. Background

Petitioner is a skilled nursing facility that is located in Cincinnati, Ohio. It is certified to participate in the Medicare program by the Centers for Medicare & Medicaid Services (CMS, formerly known as the Health Care Financing Administration, or HCFA). It is subject to the laws and regulations that govern the participation of facilities in that program. In 2000 Petitioner was surveyed on several occasions by surveyors employed by the Ohio Department of Health (Ohio State survey agency), acting on behalf of CMS, in order to determine whether Petitioner was complying substantially with Medicare participation requirements. These surveys were completed on January 28, 2000 (January survey), March 13, 2000 (March survey), and April 6, 2000 (April survey). At the January and March surveys, the surveyors found Petitioner not to be complying substantially with participation requirements. At the April survey the surveyors found that Petitioner had attained substantial compliance with participation requirements effective March 27, 2000.

The deficiency findings made by the surveyors included a finding in the report of the January survey that Petitioner had been deficient in complying with one participation requirement to the extent that residents of Petitioner were placed in a state of immediate jeopardy. The term "immediate jeopardy" is defined by applicable regulations to mean a situation in which a facility's noncompliance with a participation requirement or requirements has caused, or is likely to cause, serious injury, harm, impairment, or death to a resident. 42 C.F.R � 488.301. The surveyors concluded that this episode of immediate jeopardy began on January 12, 2000 and ran through January 26, 2000. They also found at the January survey that Petitioner failed to comply substantially with additional participation requirements, albeit at a level of severity that was less than the immediate jeopardy level. At the March survey, the surveyors concluded that Petitioner manifested additional non-immediate jeopardy level failures to comply with participation requirements.

CMS concurred with the noncompliance findings that were made by the surveyors and determined to impose remedies against Petitioner. These remedies consisted of civil money penalties in amounts of $3,950 per day for each day of the period that began on January 12 and which ran through January 26, 2000, and $700 per day for each day of the period that began on January 27, 2000 and which ran through March 26, 2000. The total amount of the civil money penalties that CMS determined to impose against Petitioner is $101,250.

Petitioner requested a hearing and the case was assigned to me for a hearing and a decision. CMS then moved for partial summary disposition as to certain issues. Petitioner opposed CMS's motion and cross-moved for summary disposition. On February 8, 2001, I issued rulings which granted CMS's motions in part and denied them in part. In that ruling I also denied Petitioner's cross-motion for summary disposition. I discuss my rulings in greater detail below.

On May 23, 2001, I held a hearing in Cincinnati, Ohio, as to those issues on which I had not issued summary disposition. The parties called witnesses. I received into evidence exhibits from CMS. These exhibits were identified with the descriptive acronym "HCFA" and, therefore, I refer to them that way. They consist of: HCFA Ex. 1 - HCFA Ex. 39; HCFA Ex. 40; HCFA Ex. 40A; and HCFA Ex. 41 - HCFA Ex. 116. I also received into evidence exhibits from CMS consisting of: HCFA Ex. 46A; HCFA Ex. 52A; HCFA Ex. 53A; HCFA Ex. 62A; HCFA Ex. 63A; and HCFA Ex. 72A. I received into evidence exhibits from Petitioner consisting of P. Ex. 1 - P. Ex. 4; P. Ex.1H; P. Ex. 2H; P. Ex. 3H; P. Ex. 4H; P. Ex. 5 - P. Ex. 14; and P. Ex. 18.

One of the witnesses that Petitioner called to testify is Mr. David Lipson. Mr. Lipson is a principal in the corporation that owns and operates Petitioner. Tr. at 188 - 89. Petitioner called Mr. Lipson to establish that Petitioner lacked the financial wherewithal to pay civil money penalties of $3,950 per day for the January 12 - 26, 2000 period. Counsel for CMS objected to Mr. Lipson being allowed to testify on the ground that Petitioner did not give CMS timely notice of its intent to call him as a witness. I allowed Mr. Lipson to testify but I also granted CMS leave to file supplemental evidence as rebuttal to his testimony. Tr. at 131. CMS offered such evidence as an additional exhibit which it filed with its post-hearing brief. It identified the additional exhibit as CMS Ex. 117 (the exhibit has attachments which CMS identified as attachments 117A - 117H). I am admitting into evidence CMS Ex. 117, including the attachments to that exhibit.

Petitioner then moved to submit additional documentary evidence in response to CMS Ex. 117. CMS opposed Petitioner's motion. I deny Petitioner's request to submit additional evidence. I permitted CMS the opportunity to offer additional evidence only in order to eliminate the prejudice caused by Petitioner's giving CMS late notice of its intent to call Mr. Lipson as a witness. I am not giving Petitioner a last bite at the apple because Petitioner had a full opportunity to present its position through Mr. Lipson's testimony. I note, however, that the dispute over Mr. Lipson's testimony, CMS's rebuttal to that testimony, and Petitioner's request that it be permitted to offer additional evidence, is academic. That is because, as I explain below, I am imposing the minimum civil money penalties against Petitioner that may be imposed for an immediate jeopardy level deficiency. I have no authority to reduce those penalties below $3,050 per day, regardless of Petitioner's financial condition.

II. Issues, findings of fact and conclusions of law

A. Issues

The issues in this case are:

1. Whether there is a basis for imposing civil money penalties against Petitioner during the period which ran from January 12, 2000 through March 26, 2000; and

2. What civil money penalties are reasonable as remedies for Petitioner's noncompliance.

B. Findings of fact and conclusions of law

I make findings of fact and conclusions of law (Findings) to support my decision in this case. I set forth each Finding below as a separate heading. I discuss each Finding in detail.

1. I incorporate my rulings of February 8, 2001 into this decision.

I incorporate my February 8, 2001 rulings into this decision. Briefly, I summarize the most significant parts of those rulings. I do not intend my summary to substitute for the analysis that I made in the rulings.

� I issued partial summary disposition in favor of CMS by finding that Petitioner was deficient at the immediate jeopardy level of noncompliance during the period that ran from January 12 through January 26, 2000. Rulings at 2 - 9. The allegation of noncompliance which is the basis for this finding was made at Tag 333 of the report of the January survey. HCFA Ex. 3, at 20 - 22. It described Petitioner's failure to comply substantially with the requirements of 42 C.F.R. � 483.25(m)(2). This regulation requires that residents of a facility not experience significant medication errors. I found the undisputed material facts showed that, during the January 12 - 26, 2000 period, Petitioner employed a nurse who administered overdoses of Dilantin to a resident who is identified as Resident # 2 in the report of the January survey. The consequence of these overdoses was that the resident experienced Dilantin toxicity for which hospitalization was required. I found also that there was no evidence that the nurse had mis-administered medication to other residents or that other residents had suffered from medication overdoses. I found that the administration of overdoses of Dilantin to Resident # 2 comprised a "significant" error in administration of medication. I found that the undisputed material facts established an immediate jeopardy level deficiency because Resident # 2 suffered serious injury and harm from Dilantin overdoses.

� I denied CMS's motion that I issue summary disposition in its favor on the issue of whether civil money penalties of $3,950 per day for each day of the January 12 - 26, 2000 period were reasonable. Rulings at 8 - 9.

� I denied the parties' motions for summary disposition concerning an alleged deficiency that the surveyors identified at the March survey. Rulings at 9 - 11. This alleged deficiency was cited at Tag 314 of the report of that survey. HCFA Ex. 27, at 1 - 3. Allegedly, Petitioner failed to comply substantially with the requirements of 42 C.F.R. � 483.25(c). The regulation in question, which I discuss below in greater detail, defines a facility's duty to prevent the development of, and to treat, pressure sores. I found that there were disputed issues of material fact concerning Petitioner's alleged noncompliance with the regulation's requirements. Also, I found that, in some respects, CMS raised allegations of noncompliance in its motion that had not been made in the survey report. I found these allegations to be irrelevant to the issue of Petitioner's compliance under Tag 314, although I granted CMS leave to move to amend its allegations if it desired to do so.

� I granted CMS's motion to dismiss Petitioner's hearing request as to certain Life Safety Code deficiencies that were identified in the report of the January 2000 survey. Rulings at 12. I found that CMS imposed no remedies based on alleged Life Safety Code deficiencies. I concluded that Petitioner has no right to a hearing concerning alleged deficiencies for which no remedy was imposed.

2. Civil money penalties of $3,950 for each day of the January 12 - 26, 2000 period are not reasonable. Civil money penalties of $3,050 per day are reasonable.

Regulations governing civil money penalties provide that, in the case of an immediate jeopardy level deficiency or deficiencies, penalties may be imposed in a range of from $3,050 to $10,000 for each day that the deficiency or deficiencies persist. 42 C.F.R. � 488.408(e). Deciding where penalties should fall within this range depends on weighing evidence relating to factors that are identified in the regulations. These include a facility's history of noncompliance including any repeated deficiencies, its financial condition, and its culpability for the deficiencies. 42 C.F.R. � 488.438(f)(1), (2), and (4). The factors also include the seriousness of deficiencies and their relationship to each other. 42 C.F.R. � 488.404 (incorporated by reference into 42 C.F.R. � 488.438(f)(3)).

CMS determined to impose civil money penalties of $3,950 per day against Petitioner for each day of the January 12 - 26, 2000 period. It contends that penalties in these amounts are supported by the following factors:

� The seriousness of Petitioner's immediate jeopardy level deficiency. CMS contends that the seriousness of the deficiency, when considered by itself, is sufficient to support the $3,950 per day civil money penalties that it determined to impose. It argues that the mis-administration of Dilantin to Resident # 2 caused the resident to suffer serious harm from Dilantin toxicity. The resident had blood levels of Dilantin that were more than three times the maximum therapeutic level. As a consequence of that, the resident became ill and needed hospitalization.

� The presence of other non-immediate jeopardy level deficiencies. CMS asserts that higher than minimum immediate jeopardy level penalties are justified by the fact that Petitioner manifested other non-immediate jeopardy level deficiencies at the same time that it manifested an immediate jeopardy level deficiency.

� Petitioner's asserted failure to prove that it could not afford to pay civil money penalties of $3,950 per day. CMS contends that the testimony of Mr. Lipson was not persuasive evidence that Petitioner was unable to afford civil money penalties of $3,950 per day. Additionally, CMS argues that it rebutted any evidence that Petitioner may have given about its alleged inability to pay civil money penalties.

Petitioner responds to CMS's arguments by contending that its immediate jeopardy level deficiency was only an isolated episode. It asserts that, as a matter of law, whatever non-immediate jeopardy level deficiencies it may have manifested as of the January survey should not be considered in deciding the amount of any immediate jeopardy level penalties (it also denies that it had other deficiencies). And, it contends that it lacks the financial wherewithal to pay civil money penalties of $3,950 per day.

I conclude that civil money penalties of $3,950 per day are not reasonable. Civil money penalties of $3,050 per day are reasonable and I modify CMS's penalty determination to reflect my conclusion.

Close examination of the facts which pertain to Petitioner's immediate jeopardy level deficiency establish that the deficiency constituted an isolated failure by Petitioner to provide proper supervision to one of its employees' administration of medication. Rulings at 2 - 9. There is no evidence that Petitioner had a history of similar deficiencies, or that other employees of Petitioner manifested the poor nursing skills and judgment that the nurse in question demonstrated. Nor is there evidence that the nurse in question mis-administered drugs to any resident other than to Resident # 2. There is no evidence that any other resident in Petitioner's facility suffered from mis-administration of medication. There is no evidence that Petitioner had lax hiring policies. Indeed, the nurse was licensed and appeared to be appropriately credentialed to perform her duties.

I am not suggesting that the deficiency was not serious. Petitioner's failure to assure that Resident # 2 received appropriate dosages of medication caused the resident to experience serious harm. But, the deficiency, nonetheless, was a consequence of poor care provided by only one of Petitioner's employees to only one of Petitioner's residents. The facts thus establish an isolated aberration in the care that Petitioner gave to its residents and do not demonstrate a broad failure by Petitioner's staff to administer medications appropriately or to supervise their administration.

In opposing CMS's motion for summary disposition in this case, Petitioner argued that there was no basis for finding a deficiency because the conduct of the nurse in question was only an isolated error and not evidence of some systemic problem in the way the Petitioner provided care. I rejected that argument. Rulings at 8. In doing so, I held that a pattern of errors in administration of medication to multiple patients is not a necessary prerequisite for finding a deficiency (although there was a pattern in this case of mis-administration of Dilantin to Resident # 2). But, while a pattern of errors may not be a prerequisite for finding a deficiency, the fact that a deficiency is isolated in character may be a basis for imposing a reduced civil money penalty.

I do not agree with CMS's assertion that the immediate jeopardy penalty amount should be determined in part by considering other non-immediate jeopardy level deficiencies that Petitioner may have manifested at the same time as it manifested an immediate jeopardy level deficiency. The regulation which governs immediate jeopardy level civil money penalties provides that:

Penalties in the range of $3,050-$10,000 per day are imposed for deficiencies constituting immediate jeopardy . . . .

42 C.F.R. � 488.438(a)(1)(i) (emphasis added). On its face, this regulation says that only immediate jeopardy level deficiencies may be considered in deciding the appropriate amounts of civil money penalties that may be imposed for such deficiencies. Hermina Traeye Memorial Nursing Home, DAB CR756, CR757 (2001); aff'd DAB No. 1810 (2002).

I do not find Petitioner's financial status to be a relevant consideration in deciding the amount of the immediate jeopardy level penalties. I base my decision to impose penalties of $3,050 per day on the seriousness of the deficiency and its isolated character. Petitioner's financial condition is irrelevant to my analysis because I have no authority to reduce immediate jeopardy level penalties below $3,050 per day regardless of a facility's financial condition.

3. There is a basis for imposing non-immediate jeopardy level civil money penalties against Petitioner for each day of the period that ran from January 27 through March 26, 2000.

There is a basis for imposing non-immediate jeopardy level civil money penalties against Petitioner for each day of the period that ran from January 27 through March 26, 2000. CMS offered prima facie evidence, which Petitioner did not overcome, that shows that Petitioner had non-immediate jeopardy level deficiencies as of the January and March surveys. Petitioner did not prove that it attained compliance with participation requirements prior to March 26, 2000, the date on which Ohio State survey agency surveyors found that Petitioner had attained substantial compliance.

The surveyors who conducted the January survey concluded that Petitioner had 10 non-immediate jeopardy level deficiencies. HCFA Ex. 3. They found that three of these alleged deficiencies were so severe as to have caused residents of Petitioner's facility to experience actual harm. These alleged deficiencies are identified at Tags 314, 323, and 324 of the report of the report of the January survey. Id. at 6 - 8; 14 - 15; 15 - 18. The surveyors found that Petitioner had three non-immediate jeopardy level deficiencies as of the March survey. HCFA Ex. 27. One of these alleged deficiencies, which is identified at Tag 314 of the report of the March survey, was found to be so severe as to have caused actual harm. Id. at 1 - 3. After informal dispute resolution, however, the Ohio State survey agency reduced the scope and severity of the alleged noncompliance to one that presented the risk of more than minimal harm. HCFA Ex. 31. CMS focused its evidentiary presentation and its post-hearing arguments on these alleged deficiencies and I likewise focus my analysis on them.

a. Petitioner had non-immediate jeopardy level deficiencies as of January 27, 2000.

I find that Petitioner did not overcome the prima facie evidence of noncompliance with participation requirements that CMS presented about deficiencies that are alleged at Tags 314, 323, and 324 of the January survey report. Consequently, Petitioner was not complying substantially with participation requirements as of January 27, 2000.

i. Tag 314

At Tag 314 of the January survey report, the surveyors alleged that Petitioner was not complying substantially with the requirements of 42 C.F.R. � 483.25(c). HCFA Ex. 3, at 6 - 8. This regulation requires that a facility ensure that a resident who enters a facility without pressure sores does not develop pressure sores unless the resident's clinical condition makes the development of such sores unavoidable. It also requires that a facility provide the necessary treatment and services to a resident with pressure sores to promote healing, prevent infection, and to prevent the development of new pressure sores.

The surveyors alleged that Petitioner's staff failed to prevent two residents from developing avoidable pressure sores. These residents are identified in the January survey report as Resident # 26 and Resident # 2. I find that Petitioner failed to comply substantially with the requirements of 42 C.F.R. � 483.25(c) because these allegations are supported by prima facie evidence which Petitioner did not overcome.

The prima facie case presented by CMS with respect to Resident # 26 is that she developed a pressure sore on her right heel because Petitioner's staff failed to take appropriate preventive measures against development of a sore despite the presence of obvious risk factors. Tr. at 39 - 42. Resident # 26 was admitted to Petitioner's facility in August 1999. Tr. at 39. At that time the resident did not have any pressure sores. Id. The resident was not identified by Petitioner's staff as being at risk for developing pressure sores and the resident's plan of care did not prescribe any interventions to protect the resident against developing sores. HCFA Ex. 3, at 7.

In fact, the resident was at risk for developing pressure sores. The resident's right heel was at risk for developing sores because the heel was under constant pressure. The resident had to wear an abductor splint at all times as a consequence of a hip fracture. HCFA Ex. 3, at 7; Tr. at 39 - 42. The splint immobilized the resident's leg while she was in bed so that the resident's fractured hip could heal. Tr. at 42. That caused the resident's right heel to bear weight for lengthy periods of time during the several weeks that the resident wore the splint. In October 1999, a pressure sore developed on the resident's right heel. HCFA Ex. 3, at 7. This sore remained present as of the January survey. Id. The sore could have been prevented had Petitioner's staff recognized that the resident was at risk for developing one and had it taken appropriate measures to reduce pressure on the resident's heel. Tr. at 43. However, the staff both failed to perceive the risk and to take appropriate measures. Tr. at 43 - 45.

Petitioner argues that Resident # 26's pressure sore was not caused by the resident wearing an abductor splint. Petitioner's post-hearing brief (P. Br.) at 7; see Tr. at 143. Petitioner asserts that its staff positioned the resident while she was in bed to alleviate pressure from the abductor splint thereby assuring that pressure from the splint did not cause the resident to develop a sore. P. Br. at 6; Tr. at 142 - 43. Petitioner argues also that it used an air and water mattress to protect the resident against developing a pressure sore while the resident was in bed.

Petitioner contends that the sore was caused by the way in which the resident ambulated. Tr. at 143. Petitioner's witness, Ms. Linda Jo Combs, L.P.N., R.N., explained that the resident had a habit of riding her heels down on her shoes as she pushed her wheelchair, apparently by shuffling her feet against the floor. Id. According to Ms. Combs, it was the rubbing of the shoe against the resident's right heel as she shuffled her feet that caused the resident to develop a sore. She averred that the sore was unavoidable because, allegedly, the resident continued to ambulate by shuffling her feet notwithstanding staff warnings to the resident. Id. at 143 - 44.

I find this testimony not to be credible because it is not supported by the records that Petitioner maintained of the care that it provided to Resident # 26. Indeed, the treatment records are evidence that Petitioner's staff actually failed to recognize that the resident was at risk for developing a pressure sore and failed to take measures designed to protect the resident against developing a sore.

The treatment records of Resident # 26 are devoid of evidence showing that the resident was assessed for possible pressure sores prior to October 1999, when the resident first developed a sore. See P. Ex. 7. There is nothing in the resident's records that shows that Petitioner's staff recognized that pressure from the resident's abductor splint necessitated repositioning the resident while she was in bed. There is no evidence that the resident was given an air or water mattress prior to October 1999, when the resident was first observed to have developed a pressure sore.

Nor does the resident's care plan or other clinical records contain any observation that the resident's foot shuffling put the resident at risk for developing a pressure sore. There is nothing in the resident's record that shows that Petitioner's staff undertook any preventive measures to address the resident's foot shuffling if, in fact, the resident was shuffling her feet. I therefore conclude that Petitioner failed to overcome the evidence presented by CMS that Petitioner failed to comply substantially with the requirements of 42 C.F.R. � 483.25(c) in its care of Resident # 26.

Petitioner similarly failed to overcome the prima facie case that CMS presented concerning Resident # 2. CMS offered evidence that Petitioner's staff failed to protect the resident against developing a pressure sore caused by friction resulting from wearing plastic oxygen tubing. The resident is a quadriplegic individual in a chronic vegetative state. Tr. at 47 - 48. The resident receives oxygen via nasal cannula that is fed by plastic tubing that rests behind the resident's ear. Tr. at 46. The resident is unable to communicate and is unable to adjust the tubing. Tr. at 48. The resident developed a pressure sore behind her ear in late 1999 caused by pressure of the tubing against the resident's skin. That sore was considered to be healed as of early January 2000. HCFA Ex. 3, at 8; Tr. at 46. However, at some point between January 4 and January 20, 2000, the resident developed another pressure sore behind her ear. Id.

The evidence that CMS offered shows that Petitioner's staff knew that the resident was at risk for developing a sore resulting from plastic tubing pressing against the resident's unprotected skin. The fact that the resident developed a sore in late 1999 put the staff on notice that a potential existed for more sores in the future if the resident was not protected against friction caused by the tubing. Yet, the staff failed to implement protective measures designed to prevent sores from developing again. As a consequence, the resident developed a new sore in January 2000. Tr. at 46 - 49.

There is no evidence of record which rebuts CMS's prima facie case concerning Resident # 2. Petitioner has not presented any argument concerning the care that it gave to the resident. Consequently, the prima facie evidence offered by CMS establishes that Petitioner allowed Resident # 2 to develop an avoidable pressure sore.

ii. Tag 323

At Tag 323 of the January survey report, the surveyors alleged that Petitioner was not complying substantially with the requirements of 42 C.F.R. � 483.25(h)(1). HCFA Ex. 3, at 14 - 15. This regulation requires that a facility must ensure that its residents' environment be as free of accident hazards as is possible.

The surveyors who conducted the January survey alleged that Petitioner had failed to assure that a resident who is identified in the survey report as Resident # 31 was protected against accident hazards. Specifically, the surveyors alleged that Petitioner's staff did not take steps to assure that prescribed bed side rail padding was properly positioned on the resident's bed rails.

CMS offered the following evidence of noncompliance. Resident # 31 had sustained a left elbow abrasion apparently from striking the elbow against the side rails on the resident's bed. Tr. at 74. On the morning of January 24, 2000, Resident # 31's physician issued a written order that the side rails of the resident's bed be padded in order to "decrease risk of injury from thrashing and hitting hands and arms on rails." HCFA Ex. 3, at 14. However, on the evening of January 24, Petitioner's staff noted that the resident had reopened the elbow abrasion. Id. at 14 - 15.

The surveyors observed Resident # 31's bed both on the morning and afternoon of January 25, 2000. On both occasions the side rail padding was observed to be at the lower end of the bed, near the resident's feet and legs, and not at the upper end of the bed where the resident's arms and hands lay. HCFA Ex. 3, at 14; see also Tr. at 70. The surveyors discussed these observations with Petitioner's administrative staff on January 27 and staff confirmed that padding had not been positioned correctly. HCFA Ex. 3, at 15.

The foregoing evidence establishes a prima facie case of noncompliance by Petitioner. It shows that Petitioner's staff knew that unprotected bed side rails posed an accident hazard for Resident # 31. That knowledge grew out of the fact that the resident had been injured, evidently from striking the side rails. Furthermore, Petitioner's staff had been directed by the resident's physician to pad the side rails in order to protect the resident's hands and arms. But, notwithstanding, Petitioner's staff failed to position padding on the resident's bed in a way that would protect the resident against the hazard posed by the unprotected side rails.

Petitioner makes the following contentions and arguments to respond to the prima facie case of noncompliance:

� Petitioner's staff followed the physician's orders and padded the side rails adjacent to the resident's arms. The resident - and not Petitioner's staff - moved the padding.

� Finding Petitioner to be deficient under Tag 323 would be "nothing more than a penalty imposed upon [Petitioner] for failing to keep [Resident #] 31 from exercising his free will."

� A side rail that becomes unpadded because of resident conduct is not an accident hazard under 42 C.F.R. � 483.25(h)(1).

P. Br. at 8 - 9. I find these contentions and arguments to be unpersuasive. Petitioner's contentions and arguments notwithstanding, the facts relating to the care that Petitioner gave to Resident # 31 show that Petitioner failed to protect the resident against an obvious accident hazard.

It is well within the realm of reasonable probability that Petitioner's staff initially placed padding on the resident's side rails consistent with the physician's order - that is to say, by the resident's arms - and that the resident moved the padding down towards the foot of the bed. But, assuming that to be true, it does not excuse Petitioner from its obligation to protect the resident against an accident hazard. Petitioner's staff should have taken steps to assure that the pads were not moved.

Petitioner's staff knew that unpadded side rails posed a hazard for Resident # 31. The staff knew or should have known that the padding that had been placed on Resident # 31's bed side rails was not protecting the resident against injury. On January 25, 2000, surveyors observed the resident's bed during the course of nearly a full day. HCFA Ex. 3, at 14. During that entire time, the padding was located at the lower half of the bed, and not by the resident's arms, as was prescribed by the resident's physician. Id. During this time, Petitioner's staff did nothing to reposition the pads and to secure them against further shifting.

The fact that the resident may have caused the padding to move did not excuse Petitioner's staff from its obligation to protect the resident. The staff had a duty to protect the resident whether or not the resident initially moved the padding that Petitioner's staff placed on the rails. If the resident moved the padding, then Petitioner's staff should have attempted other measures to protect the resident.

There were measures that Petitioner's staff might have attempted to better protect the resident. The staff did not need additional orders from the resident's physician to pad the entire rails on the resident's bed. Or, the staff could have attempted to tie the pads on more securely. Petitioner has offered no evidence that its staff attempted to take any of these measures.

I find there to be no merit in Petitioner's argument that a facility has no duty to protect a resident from an accident hazard where the hazard is created by a resident. A facility has a duty to protect a resident from an accident hazard whether the hazard is created by a force that is beyond the resident's ability to control or whether it is created by the resident's exercise of "free will." That is not to suggest that there may not be circumstances where a facility does everything that is reasonable to protect a resident and the resident thwarts those measures. In that instance, the facility would not be liable. But here, Petitioner did nothing to protect Resident # 31 once it became evident that the resident was possibly moving the pads that Petitioner's staff had placed on the resident's bed side rails. And, additional reasonable protective measures were well within Petitioner's capacity to implement.

iii. Tag 324

At Tag 324 of the January survey report, the surveyors alleged that Petitioner was not complying substantially with the requirements of 42 C.F.R. � 483.25(h)(2). HCFA Ex. 3, at 15 - 18. The regulation requires that a facility provide each of its residents with adequate supervision and assistive devices to prevent accidents.

The report of the January survey alleges that Petitioner did not comply with the requirements of the regulation in that it failed to prevent residents from sustaining accidents. HCFA Ex. 3, at 15. The survey report specifically alleges that Petitioner failed to provide assistive devices to two of its residents who are identified as Resident # 12 and Resident # 15. However, in its post-hearing arguments, CMS focuses only on the care that Petitioner gave to Resident # 12. CMS post-hearing brief (CMS Br.) at 3 - 5.

The evidence offered by CMS shows that Resident # 12 is an individual who suffers from a range of impairments that make him prone to falling. These impairments include: cognitive loss, rigidity, a seizure disorder, an unsteady gait, and blindness. HCFA Ex. 3, at 15. The resident had numerous falls prior to January 17, 2000, some of which caused injuries. Id. at 15 - 16. On December 15, 2000, Petitioner ordered that padded floor mats be installed next to the resident's bed. Id. at 16. However, on January 17, 2000, the resident again fell. On this occasion, the resident's injuries were sufficiently severe so as to require that the resident be treated at a hospital. Id.

On January 24, 2000, Resident # 12's physician ordered that the resident wear elbow pad protectors at all times to protect him against injury. However, the resident was observed by surveyors on January 25 and 26, 2000, not to be wearing protectors. HCFA Ex. 3, at 16.

At the hearing, CMS amplified considerably on the allegations that the surveyors made in the survey report. Ms. Jacqueline Kardasz, R.N., one of the surveyors who participated in the January survey, testified that there were a range of interventions that Petitioner should have attempted with Resident # 12, but which Petitioner failed to attempt, which might have prevented the resident from sustaining falls. These interventions included: having elbow pads in place on January 17, 2000; giving the resident a low bed next to a wall or a mattress on the floor in lieu of a bed; utilizing a bed alarm, personal alarm, or motion detector to track the resident's movements; giving the resident more physical therapy; giving the resident a psychological assessment; and involving the resident in diversionary activities. Tr. at 33 - 37.

I find much of this evidence to be irrelevant because Petitioner was not given notice by CMS that it intended to offer it. Ms. Kardasz' allegations concerning what Petitioner should have done to protect Resident # 12 were not made in the report of the January survey. Thus, Petitioner had no notice prior to the hearing that CMS planned to assert that Petitioner should have attempted to implement, but failed to implement, a range of specific interventions. CMS did not move to amplify on the allegations of the survey report prior to the hearing.

However, there is a core to CMS's evidence which is stated in the survey report and which, on its face, shows that Petitioner did not provide Resident # 12 with adequate assistive devices to prevent accidents. That is evidence which shows that Petitioner did not provide the resident with protective elbow pads after January 24, 2000, even though the resident's physician had ordered that such pads be provided.

I find that Petitioner did not respond to this allegation of noncompliance. Petitioner asserts that it provided Resident # 12 with all sorts of assistance that was intended to protect the resident against falling but the resident made "willful efforts" to avoid such assistance. P. Br. at 10. According to Petitioner, the assistance that it provided to the resident included: side rails, pelvic restraints, Merry walkers, call lights, and alarms. Petitioner contends that its staff met weekly to discuss the resident's problems. Tr. at 147.

However, what Petitioner does not address is its staff's failure to do what was prescribed for Resident # 12 by the resident's physician. Petitioner offers no explanation for its failure to supply the resident with elbow pads after January 24, 2000.

Petitioner's failure to provide Resident # 12 with protective elbow pads clearly was a failure by Petitioner to provide assistive devices to the resident to prevent accidents. The resident was known to be at high risk for falling. His physician had prescribed elbow pads precisely because of that risk and the injuries that the resident had sustained in the past.

Petitioner argues that 42 C.F.R. � 483.25(h)(2) mandates that a facility provide assistive devices to prevent accidents and not to prevent injuries resulting from accidents. Petitioner seems to be saying that it was not deficient for its failure to provide Resident # 12 with elbow pads because the pads would not have prevented the resident from falling. I am not persuaded by this argument. The regulation does not define the word "accidents." However, its obvious intent is not just to assure that a facility prevent events that cause injuries but that it also protect its residents against the reasonably foreseeable consequences of such events. Here, the reasonably foreseeable consequence of a fall was that Resident # 12 might injure his arms and elbows. It was for that reason that the resident's physician prescribed elbow pads for the resident and Petitioner was deficient in not providing them.

b. Petitioner had at least one non-immediate jeopardy level deficiency as of the March survey.

In its evidentiary presentation and post-hearing arguments, CMS focused on one of the three deficiencies that were identified at the March survey. This deficiency is described at Tag 314 of the report of the March survey. HCFA Ex. 27, at 1 - 3. The tag alleges that Petitioner did not comply with the requirements of 42 C.F.R. � 483.25(c), which addresses a facility's obligation to prevent and to treat pressure sores. See discussion at Finding 1.a.i. The Ohio State survey agency surveyors alleged that Petitioner had failed, in the case of a resident who is identified as Resident # 58, to provide the resident with services to prevent infection and to promote the healing of newly developed pressure sores. HCFA Ex. 27, at 2.

The evidence offered by CMS to support this allegation consists of the observations of Ms. Bernadette Poole, R.N., one of the surveyors who participated in the March survey. In both the survey report and as a witness, Ms. Poole averred that, on March 13, 2000, she had observed Petitioner's staff providing care to Resident # 58. She testified that she observed two very small pressure sores on the resident's buttocks. According to Ms. Poole, Petitioner's staff wiped a stool-stained washcloth directly across these sores. HCFA Ex. 27, at 2; Tr. at 80. Ms. Poole also testified that she saw staff apply Vaseline Intensive Care lotion to the resident's buttocks instead of the barrier cream that had been prescribed by the resident's physician. Id.

The evidence presented by CMS establishes a prima facie case of noncompliance with the requirements of 42 C.F.R. � 483.25(c)(2). Use of a septic washcloth to clean open sores is not care that is designed to promote healing or to prevent infection.

Petitioner did not overcome this prima facie case of noncompliance. Petitioner argues that, in fact, it applied a barrier cream to Resident # 58 as was prescribed by the resident's physician. P. Br. at 5; see Tr. at 133 - 139. But Petitioner has not offered any evidence to address the more serious allegation that its staff attempted to clean the resident's sores with a stool-stained washcloth.

c. Petitioner did not prove that it attained compliance with participation requirements prior to March 27, 2000.

The Ohio State survey agency surveyors determined at the April survey that Petitioner attained compliance with participation requirements on March 27, 2000. Petitioner has offered no evidence - aside from arguing that it was never, in fact, deficient - to refute this conclusion. Indeed, in responding to the findings that were made at the March survey, Petitioner filed a plan of correction in which it averred that it would attain compliance with participation requirements by March 27, 2000. HCFA Ex. 27.

4. Civil money penalties of $700 per day are reasonable for each day of the period that began on January 27, 2000 and which ran through March 12, 2000.

CMS determined to impose against Petitioner civil money penalties of $700 per day as remedies for the non-immediate jeopardy level deficiencies that were identified at the January survey. I find these amounts to be reasonable.

Penalties of $700 per day are justified based on both the seriousness of Petitioner's deficiencies and by their relationship to each other. Petitioner had three deficiencies as of January 27, 2000 which caused residents to experience actual harm. HCFA Ex. 3, at 6 - 8; 14 - 15; 15 - 18. These deficiencies had elements in common. The deficiencies that were established at Tags 314, 323, and 324 of the January survey report demonstrate a failure by Petitioner's staff to devote adequate attention to the needs of Petitioner's residents. The repetitive character of these deficiencies is evidence from which I infer an overall inattentiveness of Petitioner's staff to the residents' needs.

CMS argues that an additional consideration mitigates in favor of $700 per day civil money penalties for the non-immediate jeopardy level deficiencies that were found at the January survey. This allegedly consists of Petitioner's alleged poor compliance history. According to CMS, Petitioner was found to have a "G" level deficiency at a compliance survey that was completed in 1998. CMS Br. at 39.

CMS has not offered evidence which describes the alleged additional deficiency nor has it explained how that deficiency relates to the deficiencies that were identified in January 2000. I conclude that the relationship between any deficiency that may have been identified in 1998 and those that were found in January 2000 is too tenuous to establish an additional basis for imposing the $700 per day civil money penalties for deficiencies that were identified at the January 2000 survey. However, the deficiencies that were identified in January 2000 are, in and of themselves, sufficiently serious to justify civil money penalties of $700 per day.

Finally, I note that Petitioner did not argue that its financial condition was such that it was unable to pay the $700 per day non-immediate jeopardy level civil money penalties that CMS imposed although it did make such an argument concerning the $3,950 per day civil money penalties that CMS imposed for the immediate jeopardy level deficiency that was identified at the January survey. See Finding 2; see also P. Br. at 14 - 16. For this reason, I make no findings concerning whether Petitioner's financial condition would make the $700 per day civil money penalties unreasonable.

5. Civil money penalties of $700 per day for each day of the March 13 - 26, 2000 period are not reasonable. Civil money penalties of $250 per day are reasonable.

CMS determined to continue to impose civil money penalties of $700 per day against Petitioner for the period which ran from March 13 - March 26, 2000, based on the surveyors' findings at the March survey that Petitioner continued to manifest some non-immediate jeopardy level deficiencies at that survey. However, it is not reasonable to impose civil money penalties during the March 13 - 26, 2000 period in the same amounts as were imposed for the January 27 - March 12, 2000 period. The deficiencies that Petitioner had in March were fewer in number and of a lower scope and severity than were the deficiencies that were identified in January. The results of the March survey establish that, by the time of the survey, Petitioner had made considerable progress in correcting its deficiencies. Therefore, I reduce the civil money penalties for the March 13 - March 26, 2000 period to $250 per day to reflect this progress.

At the January survey the surveyors identified 10 non-immediate jeopardy level deficiencies. However, in March they only identified three non-immediate jeopardy level deficiencies. HCFA Ex. 3; HCFA Ex. 27. Furthermore, the deficiencies that were identified at the March survey were substantially less serious than those that were identified at the January survey. Three of the 10 deficiencies (Tags 314, 323, and 324) that were identified at the January survey were assigned scope and severity levels of "G" meaning that the surveyors found that the deficiencies caused residents to experience actual harm. One of the three deficiencies that were identified at the March survey (Tag 314) was initially assigned a scope and severity level of "G." HCFA Ex. 27, at 1. However, the Ohio State survey agency subsequently determined to reduce the scope and severity of this deficiency to level "D". CMS Br. at 2. Thus, none of the deficiencies that were identified in March caused Petitioner's residents to experience actual harm.

III. Conclusion

For the reasons stated, I sustain CMS's determination that Petitioner was out of compliance with Medicare participation requirements for the period January 12, 2000 through March 26, 2000. Accordingly, CMS was authorized to impose civil money penalties. I find reasonable civil money penalties in the following amounts: $3,050 per day for each day of a period that began on January 12, 2000 and which ran through January 26, 2000; $700 per day for each day of a period that began on January 27, 2000 and which ran through March 12, 2000; and $250 per day for each day of a period that began on March 13, 2000 and which ran through March 26, 2000. The total amount of civil money penalties that I find reasonable is $81,450.

Steven T. Kessel

Administrative Law Judge