SUBJECT:

Ocean Springs Nursing Center,

Petitioner,

Centers for Medicare & Medicaid

DECISION

After consideration of the written arguments and documentary evidence submitted by the parties, I partially deny the Motion for Dismissal or, in the Alternative, for Summary Judgment filed by the Centers for Medicare & Medicaid Services (CMS) and issue partial summary judgment in favor of Petitioner. In doing so, I find that Petitioner filed a timely and specific hearing request and that CMS had no basis for imposition of remedies subsequent to the survey completed on August 2, 2001, except with respect to a civil money penalty (CMP) in the amount of $50 per day based on the deficiency described at Tag F371.

I. UNDISPUTED FACTS AND PROCEDURAL HISTORY

A. Undisputed Facts

Petitioner is a skilled nursing facility located in Ocean Springs, Mississippi, that participates in the Medicare and Medicaid programs. On June 21, 2001 the Mississippi State Department of Health (State survey agency) conducted a survey of the facility which revealed a number of deficiencies. CMS Ex. 1. On June 25, 2001 the State survey agency notified Petitioner that, as a result of the survey, remedies were being recommended to CMS unless timely corrections were made. CMS Ex. 2. Based on Petitioner's allegation that substantial compliance would be achieved by July 21, 2001 a resurvey, along with a complaint investigation, was conducted on August 2, 2001. CMS Ex. 3. That resurvey noted that the facility was still deficient with the Quality of Care requirements set forth at 42 C.F.R. § 483.25 under Tag 309 at a scope and severity level of "G" (isolated incidents of actual harm) in regard to two specified residents of the facility. Id. The other specific deficiencies noted in the June survey, however, were not replicated in the resurvey. On August 14, 2001 CMS informed Petitioner that in view of that revisit survey conducted along with a complaint investigation, in addition to the survey of June 21, 2001 it had determined that Petitioner was not in substantial compliance with program requirements . CMS Ex. 7. Consistent with those findings, CMS notified Petitioner that the following remedies were being imposed:

•A CMP in the amount of $250 per day effective June 1, 2001 and continuing until substantial compliance is achieved;

•Denial of payment for new admissions (DPNA) effective September 1, 2001 if the facility is still out of compliance on that date; and

•Mandatory termination of the facility's Medicare and Medicaid provider agreements, effective December 1, 2001 if the facility is still out of compliance on that date.

Id. at 2 - 3. The DPNA and the proposed termination were subsequently withdrawn when a revisit survey found Petitioner in substantial compliance, leaving only the CMP of $250 per day as the remaining remedy before me. CMS stated that it was imposing the CMP "[a]s a result of your facility's noncompliance as evidenced by the findings of the August 2, 2001 survey . . . ." Id. at 2. The finding of noncompliance in the August 2, 2001 resurvey was based on an incident that occurred on July 22, 2001 involving Resident 14, and another incident that took place on February 2, 2001 involving Resident 12. CMS Ex. 3. Impliedly, then, CMS, in imposing the CMP, took no issue with the deficiencies noted in the June 21, 2001 survey and subsequently corrected by Petitioner.

B. Procedural History

On October 9, 2001 Petitioner requested a hearing to appeal the remedies imposed by CMS. The case was assigned to me for hearing and decision. On January 25, 2002, CMS filed a Motion for Dismissal or, in the Alternative, for Summary Judgment (CMS Br.). CMS's brief was accompanied by nine proposed exhibits. CMS added another exhibit with its response brief filed on February 20, 2002 (CMS Response Br.). On January 28, 2002 Petitioner filed a Motion to Dismiss and Memorandum (P. Memo.), accompanied by four proposed exhibits. ⁽¹⁾ I am admitting CMS's exhibits into evidence without objection as CMS exhibits 1 - 10 (CMS Exs. 1 - 10). I also admit Petitioner's exhibits without objection as Petitioner's Exs. 1 - 4 (P. Exs. 1 - 4).

On March 5, 2002 Petitioner responded to CMS's brief filed February 20, 2002 (P. Response Br.). CMS filed a reply brief (CMS Reply Br.) on March 8, 2002.

II. APPLICABLE LAWS AND REGULATIONS

In cases involving CMS, a party is entitled to a hearing only if that party files its request for hearing within the time limits established by 42 C.F.R. § 498.40(a)(2), unless the time period for filing is extended. 42 C.F.R § 498.40(b) also provides that a request for hearing must:

•Identify the specific issues, and the findings of fact and conclusions of law with which the affected party disagrees; and,

•Specify the basis for contending that the findings and conclusions are incorrect.

Birchwood Manor Nursing Center, DAB No. 1669 (1998).

Sections 1819 and 1919 of the Social Security Act invest the Secretary of Health and Human Services with authority to impose remedies against a long-term care facility for failure to comply with participation requirements. The participation requirement for which Petitioner was cited as noncomplaint during the resurvey is set forth at 42 C.F.R. § 483.25 (Quality of Care):

Each resident must receive and the facility must provide the necessary care and services to attain the highest practicable physical, mental, and psycho-social well-being, in accordance with the comprehensive assessment and plan of care.

Remedies by CMS are appropriate only after CMS makes a prima facie case showing that the facility has failed to comply substantially with participation requirements. To prevail, a long-term care facility must overcome CMS's showing by a preponderance of the evidence. Hillman Rehabilitation Center, DAB No. 1611 (1997), aff'd sub nom, Hillman Rehabilitation Center v. United States Dept. of Health and Human Servs, Health Care Fin. Admin., No. 98-3789 (GEB), slip op. at 25 (D.N.J. May 13, 1999.)

III. ISSUES

The issues in this case are:

1. Whether Petitioner filed a timely and specific request for hearing; and, if so,

2. Whether CMS had a basis for the imposition of remedies against Petitioner.

IV. THE PARTIES' ARGUMENTS

A. CMS's contentions

CMS contends that, in its hearing request, Petitioner did not challenge one of the deficiencies cited as a result of the June survey, the deficiency under Tag F371, found to pose widespread potential for more than minimal harm. Additionally, CMS claims that with regard to the August survey, the facility has failed to identify any specific issues to be adjudicated. CMS argues, consequently, that it is entitled to dismissal or, in the alternative, to summary judgment. CMS Br. at 2.

B. Petitioner's contentions

Petitioner contends that CMS acknowledged that no remedies would be imposed if it achieved substantial compliance by July 21, 2001. Petitioner argues that, even though it did not challenge the deficiency under Tag F371, summary judgment in favor of CMS is inappropriate because all of the deficiencies from the June 2001 survey were corrected and no new deficiencies were present when the revisit resurvey took place in August. In this regard, Petitioner maintains that the deficiency noted by CMS, based on an incident in February 2001, is too far removed to have a bearing on this case, and the deficiency based on an incident that occurred in July 2001 is merely a disagreement in clinical judgment.

V. FINDINGS AND DISCUSSION

I make findings of fact and conclusions of law (Findings) to support partial summary judgment in favor of Petitioner. Each Finding is noted below, in boldface and italics, followed by a discussion of the findings.

A. Petitioner filed a valid and timely request for hearing.

On October 9, 2001 Petitioner filed a timely request for hearing to contest the imposition of remedies based on the June survey and the August resurvey. CMS Ex. 8. Petitioner specifically mentioned each of the deficiencies it was challenging, and stated the reasons therefore. I note that Petitioner not only contested the factual accuracy of the deficiencies, but also alleged that CMS lacked legal foundation for the imposition of remedies. Thus, Petitioner argued that, even accepting the statement of deficiencies to be accurate, the statement does not state a violation of the regulations.

Petitioner does not contest the findings under 42 C.F.R. § 483.35(h)(2), Tag F371, regarding sanitary conditions in the facility's kitchen. Consequently, Petitioner acknowledges that its facility was out of compliance with only that one requirement. P. Response at 3. See also CMS Ex. 1, at 8 - 10.

Inasmuch as Petitioner did not challenge the deficiency at Tag F371 and, in fact, acknowledged being out of compliance with respect to the requirement involved therein, the imposition of remedies based on that deficiency is not affected by the partial summary judgment I issue here.

B. CMS did not have a basis upon which to impose the remedies against Petitioner noted in its letter of August 14, 2001.

Resident 14

The State survey agency informed Petitioner that if substantial compliance was achieved by July 21, 2001 the recommended remedies would be suspended. CMS Ex.2. Thus, the results of the August 2, 2001 resurvey were crucial to the enforcement action.

The Statement of deficiency prepared by the state survey agency based on the August 2001 resurvey reflects that none of the deficiencies noted in the June survey were still present. It was found, however, that the facility was non compliant as to quality of care requirements under Tag F309. The deficiency under this Tag referred to Residents 14 and 12. CMS Ex. 3.

The surveyors found that on July 22, 2001 the facility failed to monitor Resident 14's blood pressure for eight hours after an abnormal reading of 90/58mm/Hg was taken at 2:15 p.m. CMS Ex. 3, at 1. At the next reading taken at 10:00 p.m., the resident's blood pressure was 82/52mm/Hg. Id. Close monitoring thereafter revealed a downward trend in the resident's blood pressure requiring emergency hospitalization. Id., at 2.

Petitioner argues that the staff notified the treating physician of the results of the blood pressure reading taken at 2:15 p.m., and that the staff acted according to the orders received. P. Ex. 2, at 1. Petitioner adds that the treating physician opined that the blood pressure of 90/58mm/Hg. recorded on July 22, 2001 was not alarming at the time. Accordingly, says Petitioner, a reading was taken again at 10:00 p.m. on July 22, and the resident was continuously monitored until driven to the hospital.

CMS reasons that it was incumbent upon the facility to monitor and assess the resident more closely than it did in spite of the treating physician's opinion. That duty, adds CMS, is wholly independent of the physician's obligations, as held in Beverly Health & Rehabilitation--Spring Hill, DAB No. 1696, at 56 (1999). I agree with CMS that the Departmental Appeals Board has so held. However, CMS misapplies the holding in Beverly to the issue at hand. The threshold issue here is whether CMS has established a prima facie case regarding the facility's duty of care to Resident 14. I note from the Statement of Deficiencies that Petitioner did not monitor the resident's blood pressure between 2:15 p.m. and 10:00 p.m. I do not find in that Statement, however, any evidence that such absence of monitoring contravened established and acceptable clinical parameters or that the facility failed to follow the plan of care established for that resident. There is no discussion regarding Resident 14's baseline blood pressure in order to determine what hypotension levels were critical for Resident 14 requiring activation of an emergency medical response.

CMS provides a list of various blood pressure readings from different shifts. CMS Ex. 3, at 2. These range from 100/60mm/Hg to 120/80mm/Hg. At least four of those readings do not appear to be a marked departure from the 90/58mm/Hg reading recorded on July 22, 2001, at 2:15 pm. ⁽²⁾ In the absence of other evidence from CMS, I infer that the facility was persuaded by the treating physician's opinion that the resident's blood pressure reading of 90/58mm/Hg was not critical. Consequently, the facility activated the emergency medical response when the resident's hypotension reached levels that were a significant departure from prior low blood pressure readings. Furthermore, CMS does not allege that symptoms were present at 2:15 p.m. on July 22, that could be related to low blood pressure. In contrast, at 10:00 p.m. on that same day, when the resident's blood pressure reading was found to be 82/52mm/Hg, she appeared to be cool and damp. I also infer that those clinical signs, coupled with the reduced low blood pressure reading, prompted the closer monitoring undertaken by the facility at that time.

In view of the foregoing, I find that CMS has failed to establish a prima facie case regarding the care provided to Resident 14.

Resident 12

Based on record review, the State survey agency determined that on February 2, 2001 Resident 12 was not eating right, had a distant stare, and was weak. An Accucheck blood glucose done at 1:00 pm that day registered 437 mg.dl. The treating physician was paged at 1:15 p.m. Thereafter, repeated attempts to notify the physician were made every 15-30 minutes, until contact was made at 3:15 p.m., at which time the treating physician ordered the resident be transported to the hospital emergency room. CMS Ex. 3, at 3 - 4.

The State survey agency concluded that the abnormally high blood sugar reading should have prompted activation of the emergency medical response.

Petitioner contends that it is inappropriate to conclude that an event of February 2, 2001 could serve as a basis for finding Petitioner noncompliant when the August 2001 survey was conducted. Petitioner adds that whatever may have happened in February is clearly irrelevant to the determination at issue. P. Memo. at 3.

I agree with Petitioner's argument that there is no evidentiary significance regarding an event that occurred more than six months earlier. The February incident reveals nothing about the facility's compliance status in August. Thus, I find that the event surrounding Resident 12 is so remote as to be non-probative, inasmuch as CMS has produced no prima facie evidence to show that the alleged deficiency found in February 2001 was still present when the August survey was conducted. I do not find that CMS is barred from determining that Petitioner was not compliant based on an event that occurred more than six months earlier. What I conclude is that such a remote and unrelated finding cannot serve as a basis, without more, for a finding that Petitioner was still noncompliant in August 2001. CMS contends that the purpose of the August survey was not only to do a resurvey, but also to probe into complaints of questionable deaths by residents. Contrary to CMS's contention, the purpose of the August survey cannot legitimize the misapplication of an alleged, past, and isolated deficiency.

Notwithstanding the above discussion, I also find that CMS has not established a prima facie case that Petitioner erred in making diligent efforts at contacting the treating physician prior to considering emergency measures. This is particularly true in a case where, as here, the treating physician was contacted within two hours of the elevated high glucose reading. Nothing in the record justifies the presumption that a glucose reading warranted immediate transfer to a hospital emergency room, without first attempting to contact the treating physician. It has been a long standing policy of CMS not to counsel a facility as to the precise interventions it should implement or how the adopted interventions are to be implemented. In the case at hand, the facility chose to seek the advice of the treating physician before taking any other action. CMS has not shown that the two hours employed in contacting the treating physician was an inordinate delay under the circumstances. CMS's position leaves a minute window of tolerance to the facility in the exercise of judgment in the care of its residents.

Tag F371

As stated earlier, Petitioner did not challenge the deficiency under Tag F37; therefore, the facility was out of compliance with respect to the dietary services standard set forth at 42 C.F.R. § 483.35(h)(2) because of unsanitary food storage and preparation. Although I have concluded that the facility had corrected all of the deficiencies from the June survey at the time of the August resurvey, Petitioner did not request a hearing with respect to Tag F371. That deficiency is thus not affected by my decision in this case. In order to avoid the possible imposition of any CMP, it behooved Petitioner to challenge all of the deficiencies involved in the June survey, inasmuch as the law is not self- executing. Of course, I understand that Petitioner did not request a hearing with respect to Tag F371 because it accepted that it was out of compliance with that requirement.

Since Petitioner was out of compliance with at least one requirement, it is appropriate to impose a CMP during the period of non compliance from June 1 to August 2, 2001. I, therefore, impose a CMP of $50 per day beginning June 1, 2001, and ending August 2, 2001. There is no issue as to the amount of the penalty, inasmuch as that is the lowest amount possible under the regulations set forth at 42 C.F.R. § 488.438, for a deficiency that does not constitute immediate jeopardy but has the potential for more than minimal harm. The imposition of a DPNA is inappropriate because the facility attained substantial compliance within three months after the June survey.

VI. CONCLUSION

Based on the applicable law and undisputed facts, I conclude that Petitioner filed a timely and valid hearing request, except with respect to the deficiency at Tag F371. I also find that CMS did not establish a prima facie case that justified the imposition of the remedies noted in its letter of imposition of remedies dated August 14, 2001. Finally, I find that CMS may impose a CMP of $50 per day from June 1, 2001 until August 2, 2001 based on the deficiency at Tag F371.

Jose A. Anglada

Administrative Law Judge

1. Petitioner labeled its exhibits A - D. I have re-labeled them as Exs. 1 - 4 to conform to Civil Remedies Division's procedures .

2. Three were 100/60mm/Hg and one was 100/62mm/Hg.