SUBJECT:

Batavia Nursing and Convalescent Inn,

Petitioner,

Centers for Medicare & Medicaid

I. Background

This case came before me pursuant to an undated request for hearing filed by Petitioner, Batavia Nursing and Convalescent Inn, in accordance with section 1128A(c)(2) of the Social Security Act (Act) and 42 C.F.R. §§ 488.408(g), 498.40. On November 14, 2000, CMS informed Petitioner that, based on a survey conducted on October 20, 2000 by the Ohio Department of Health (ODH), it was imposing a mandatory denial of payment for new admissions (DPNA) effective January 20, 2001, and a civil money penalty (CMP) in the amount of $700 per day effective October 20, 2000. The DPNA was not put into effect because the facility returned to substantial compliance on December 13, 2000. CMS Ex. 1.

At the hearing, CMS offered 58 exhibits identified as CMS Exs. 1 - 58. Prior to the hearing, Petitioner had objected to Exhibit 15, which is a statement from Ms. Guran offered in lieu of testimony. Upon my directive, CMS provided the name and address of the person who authored Exhibit 15, so that Petitioner, if it so desired, could subpoena that witness. ⁽²⁾ Consequently, I admitted into evidence the 58 exhibits offered by CMS. Tr. I at 17. ⁽³⁾ Petitioner offered 30 exhibits identified as P. Exs. 1 - 30. Petitioner's exhibits were admitted into evidence without objection.

MS had announced Ms. Nancy Thompson and Ms. Sharon Dunn as witnesses. Due to an accident, these witnesses were not available to testify. As a result, CMS relied solely on the documentary evidence in the record to try to establish a prima facie case concerning Tags 242, 332, 371, and 444. ⁽⁴⁾

Subsequent to the hearing, the parties submitted simultaneous post-hearing briefs (CMS Br. and P. Br.), as well as response briefs (CMS Response and P. Response).

Based on the testimony offered at the hearing, the documentary evidence, the arguments of the parties, and the applicable law and regulations, I find that from October 20, 2000 until December 13, 2000, Petitioner was not in substantial compliance with Medicare participation requirements. Petitioner's noncompliance did not rise to the immediate jeopardy level. I further find that CMS was authorized to impose a CMP against Petitioner at the rate of $600 per day during the above period of noncompliance.

II. Applicable Law and Regulations

Petitioner is considered a long term care facility under the Act and regulations promulgated by the Secretary of Health and Human Services (Secretary). The statutory requirements for participation by a long term care facility are found at sections 1819 and 1919 of the Act, and at 42 C.F.R. Part 483.

Sections 1819 and 1919 of the Act entrust the Secretary with authority to impose certain remedies, including CMPs and denial of payment for new admissions, against a long term care facility for failure to comply substantially with participation requirements.

Pursuant to the Act, the Secretary has delegated to CMS and the States the authority to impose remedies against a long term care facility that is not complying substantially with federal participation requirements. Federal regulations codified at 42 C.F.R. Part 488 provide that facilities which participate in Medicare may be surveyed on behalf of CMS by State survey agencies in order to ascertain whether the facilities are complying with participation requirements. 42 C.F.R. §§ 488.10 - 488.28. The regulations contain special survey conditions for long-term care facilities. 42 C.F.R. §§ 488.300 - 488.335. Under Part 488, a State or CMS may impose a CMP against a long term care facility where a State survey agency ascertains that the facility is not complying substantially with participation requirements. 42 C.F.R. §§ 488.406, 488.408, 488.430. The penalty may start accruing as early as the date that the facility was first out of compliance until the date substantial compliance is achieved or the provider agreement is terminated.

The regulations specify that a CMP that is imposed against a facility will fall into one of two broad ranges of penalties. 42 C.F.R. §§ 488.408, 488.438. The upper range of civil money penalties, from $3,050 per day to $10,000 per day, is reserved for deficiencies that constitute immediate jeopardy to a facility's residents, and in some circumstances, for repeated deficiencies. 42 C.F.R. § 488.438(a)(1)(i) and (d)(2). The lower range of civil money penalties, from $50 per day to $3,000 per day, is reserved for deficiencies that do not constitute immediate jeopardy, but either cause actual harm to residents or cause no actual harm, but have the potential for causing more than minimal harm. 42 C.F.R. § 488.438(a)(1)(ii).

The regulations define the term "substantial compliance" to mean:

[a] level of compliance with the requirements of participation such that any identified deficiencies pose no greater risk to resident health or safety than the potential for causing minimal harm.

42 C.F.R. § 488.301.

In determining the amount of the CMP, the following factors specified at 42 C.F.R. § 488.438(f) must be considered:

1. The facility's history of noncompliance, including repeated deficiencies.

2. The facility's financial condition.

3. The seriousness of the deficiencies and other factors set forth at 42 C.F.R. § 488.404.

4. The facility's degree of culpability.

In a CMP case, CMS must make a prima facie case 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).

The Act and regulations make a hearing before an Administrative Law Judge available to a long term care facility against which CMS has determined to impose a CMP. Act, section 1128A(c)(2); 42 C.F.R. §§ 488.408(g), 498.3(b)(12), (13). The hearing before an Administrative Law Judge is a de novo proceeding. Anesthesiologists Affiliated, et al, DAB CR65 (1990), aff'd 941 F.2d 678 (8^th Cir. 1991).

III. Issues

A. Whether the facility was complying substantially with federal participation requirements on the dates CMS determined to impose a CMP.

B. Whether the amount of the penalty imposed by CMS is reasonable, if noncompliance is established.

IV. Findings and Discussion

The findings of fact and conclusions of law noted below in italics are followed by a discussion of each finding.

A. The facility was not in substantial compliance with federal participation requirements from October 20, 2000 through December 13, 2000.

1. Notification of Rights and Services (Tag F157). The facility failed to notify the physician immediately after a significant change in the condition of Resident #122 (R122).

The applicable regulation, at 42 C.F.R. § 483.10(b)(11), provides, in relevant part, that a facility must immediately consult with the resident's physician when there is:

•an accident involving the resident which results in injury and has the potential for requiring physician intervention;

•a significant change in the resident's physical, mental, or psychosocial status; or

•a need to alter treatment significantly.

a. State surveyor findings for Tag F157, as alleged in the Statement of Deficiencies (CMS Ex. 1, at 1-3).

Based on clinical record review and facility staff interviews during the survey completed on October 20, 2000, it was determined that the facility failed to notify the physician following a significant change in the resident's condition. The facility failed to notify R122's ⁽⁵⁾ physician following the onset of hallucinations. The resident had been admitted to the facility with diagnoses of delusional disorder, dementia, mood disorder, and depression. She was on a central nervous system medication regimen for these conditions.

On September 20, 2000, at 11:00 a.m., R122 complained of seeing bugs crawling all over her and asked how long she had been in the facility. She again complained of bugs crawling under her skin on September 23, 2000, at 9:00 p.m. This time she was observed by the nursing staff to be picking at moles and skin tags in an attempt to get the bugs out from under her skin. Facility records document the continuing nature of these hallucinations through September 27, 2000, with the indication that, on September 25, the resident was found attempting to remove the bugs with tweezers.

The resident's physician was notified of her hallucinatory experiences on September 27, 2000, and he ordered bilateral mittens to prevent self inflicted injury. The following day, during a visit to the facility, the physician prescribed medication to counteract the hallucinations.

b. Discussion

Petitioner contends that the citation regarding R122 under Tag 157 should be deleted because the resident had been diagnosed with a history of delusional disorder since October 6, 1995. Impliedly, Petitioner appears to argue that the resident's "delusion" that bugs were crawling under her skin did not constitute a significant change of condition. Additionally, Petitioner states that hallucinations are a common symptomatology of a delusional disorder, and that CMS's witness, Fran Tucker, was not competent to testify as to dementia, delusions, or hallucinations.

CMS argues that the issue is not whether the resident had been previously diagnosed with a delusional disorder, but whether she developed an onset of hallucinatory experiences that were not documented in her record prior to September 20, 2000. That manifestation of a more recent nature, says CMS, should have been reported to her treating physician as a significant change in condition.

Additionally, CMS contends that the care plan submitted by Petitioner, contained in P. Ex. 4, at 9, does not establish that the resident's physician was notified of her hallucinations prior to September 27, 2000.

Ms. Fran Tucker, a surveyor with the ODH, testified that she is a registered nurse of 30 years experience who participated in the survey conducted in October 2000. As part of her experience, she was employed as a psychiatric nurse for several years. Tr. I at 249. Ms. Tucker added that R122 was on several medications for her mental conditions, one of which was Pamelor, an antidepressant. This medication, said Ms. Tucker, may cause hallucinations as a side effect. She did not see the resident's hallucinations as a manifestation of her delusional disorder, inasmuch as delusions and hallucinations are distinct disease entities. In that regard, Ms. Tucker defined delusion as a false belief that is inconsistent with one's knowledge and background. Hallucinations, on the other hand, said Ms. Tucker, involve the senses, whether it be olfactory, visual, or hearing, and the person is unable to distinguish whether it is imagined or real. Tr. I at 251.

In her review of the facility's records, Ms. Tucker noted that there was documentation that the resident experienced a feeling of bugs crawling underneath her skin, yet there was no evidence that interventions were implemented to assist the resident in dealing with the situation. It was not until seven days after the onset of the hallucinations that the facility notified her doctor. During, the intervening period, however, the resident would attempt to pick the "bugs" from underneath her skin, initially with her fingers, and then with tweezers. When notified of the resident's hallucinations, the doctor ordered mittens in an attempt to restrain her from picking at the bugs. On the eighth day, the physician prescribed medication that relieved the resident of her hallucinations. In the surveyor's opinion, the delay in notifying the treating physician of a significant change in the resident's condition created the potential for more than minimal harm. Tr. I at 252, 253.

I find no merit in Petitioner's argument that since the resident's diagnoses include a "history of delusional disorder," that is sufficient grounds to delete any citation regarding R122 under Tag 157. P. Br. at 7. The particular diagnostic history associated with this resident is not really relevant to the resolution of the issue at hand. It does not matter whether the resident had a documented history of delusions or not. The issue to be addressed is whether the resident was experiencing symptoms that were a significant departure from those previously experienced, regardless of whether the symptoms arise from a new condition or a previously existing one. Thus, since the record is silent as to hallucinations that caused her to pick at her skin prior to September 20, 2000, such manifestation of her condition constituted a significant change that needed to be immediately reported to her treating physician ⁽⁶⁾ .

The record is not clear as to the origin of the hallucinations experienced by R122. However, the suggestion by Ms. Tucker that such sensory experiences may be associated with the administration of Pamelor, is something that the facility overlooked. Her testimony finds support in publications that treat the subject of prescription medication. See The Johns Hopkins Consumer Guide to Drugs, 551 (Simeon Margolis, M.D., Ph.D., ed.) (2002), at 551; PDR Nurse's Drug Handbook, 1069 (2003). It is interesting that The Johns Hopkins Guide to Drugs states that, should hallucinations occur with the administration of Pamelor, the physician is to be called immediately.

Finally, I agree with CMS that the care plan submitted by Petitioner at P. Ex. 4, at 9 does not establish that the resident's physician was notified of the change in her condition nor is there any evidence of when the care plan was prepared.

In view of the foregoing I find that CMS established a prima facie case under Tag F157. The presence of potential for more than minimal harm is evident from the possibility of injury from picking at her skin with tweezers. Petitioner has not overcome CMS's showing by a preponderance of the evidence. I therefore conclude that Petitioner failed to comply with the requirements of 42 C.F.R. § 483.10(b)(11).

2. Free Choice (Tag F164). CMS did not establish that the facility failed to ensure that a resident receive personal privacy.

The applicable regulation, at 42 C.F.R. § 483.10(d)(3), provides, in relevant part, that a resident has the right to personal privacy.

a. State surveyor findings for Tag F164, as alleged in the Statement of Deficiencies (CMS Ex. 1 at 3-5).

Based on observations it was determined that the facility failed to ensure that the following three residents received personal privacy:

(Example 1) On October 16, 2000 at 9:00 a.m., R117 was observed on a bedside commode with the privacy curtain and room door open.

(Example 2) On October 16, 2000 at 12:29 p.m. R44 was observed being toilette and given personal care. After the resident was assisted to the bathroom and sat on the commode, a second staff member entered the bathroom without knocking or announcing herself.

(Example 3) On October 17, 2000 at 5:35 p.m., a dependent resident was observed during incontinent care in Room M-12. At that time the nurse aide entered the bathroom shared by the residents in M-12 and M-14. She did so without knocking, and while an independent female that occupied Room M-14 was sitting on the toilet.

b. Discussion

CMS argues in its brief that Petitioner violated the requirement under Tag 164 with respect to Examples 1 and 3. Example 1 refers to R117. It is CMS's contention that when the surveyor entered that resident's room during the initial tour of the facility, she was sitting on her bedside commode and both the privacy curtain and room door were open.

Petitioner presented the testimony of Ms. Kimberly Parks, Regional Director for Strategic Nursing Systems, who provides consulting services to the facility. She testified that R117 was an alert and oriented resident who would open her privacy curtain after using the commode to let staff know that she was finished. Tr. I at 443, 444. CMS's response is that Ms. Parks was a consultant and that very little of her testimony was based on direct observation. CMS Response Br. at 4. However, at the hearing, CMS did not object or test the witness' knowledge as to the basis for her testimony. CMS did object to that portion of Ms. Parks' testimony where she stated that the staff always pulls the curtain when the resident goes on the commode. I allowed the testimony only to the extent that it was a facility practice to close the privacy curtain when the resident was using the commode. Based on that testimony, however, I could not find that, with respect to this particular resident, and on the day in question, that the staff did in fact close the curtain for the benefit of the resident's privacy. Tr. I at 444.

In light of the foregoing discussion, I find that Petitioner has shown that R117 was capable of running the privacy curtain without assistance. Therefore, nothing prevented her from having the desired privacy when she was on the commode. Thus, I infer that if the privacy curtain was open when the surveyor entered the room, it was because the resident did not wish to have it closed. From the record, I am unable to conclude that she could not have closed it. I do find that the evidence leans toward the conclusion that she was in fact capable of doing so.

Concerning Example 3, Petitioner claims that it was unable to adequately defend against this deficiency because CMS did not properly identify the resident. CMS states that Petitioner knew that the resident involved in this example was R44, and points to the transcript at page 444, where Petitioner acknowledges that the resident in question was R44. However, the statement of deficiencies refers to R44 as the person noted in Example 2, and not Example 3. CMS Ex. 1, at 5. I find that if CMS was unable to properly identify the resident involved in this deficiency it would be unfair to expect Petitioner to be able to do so.

It is my finding that CMS failed to make a prima facie case regarding the charge under Tag 164.

3. Grievances (Tag F166). The facility failed to provide prompt efforts to resolve grievances the residents may have.

The regulations at 42 C.F.R. § 483.10(f)(2), provide that a resident has the right to prompt efforts by the facility to resolve grievances the resident may have.

a. State surveyor findings for Tag F166, as alleged in the Statement of Deficiencies (CMS Ex. 1, at 5, 6).

Interviews with 16 alert and oriented residents on October 17, 2000, revealed numerous complaints. The residents stated that the meat was tough, that substitutes were leftovers, and that there were too many green beans and carrots. At lunch time on that day the surveyors observed substantial amounts of food left on numerous plates in the dining room.

The residents also stated that there had been no beautician services available for approximately a month.

The residents further complained that they requested that someone from the administration attend a resident council meeting, but no one did.

b. Discussion

Surveyor Sami Guttery testified that the residents complained that leftovers from previous meals were used as substitutes. Substitutions are available so that the residents may eat something else if they do not like what is being offered. Tr. II at 332, 333. It was noted that on October 17, 2000, substantial amounts of food were observed left on the plates. Thus, residents who did not like what was being served, and had no appetite for leftovers, ran the risk of weight loss. Tr. II at 333.

Ms. Mary Palmer, who was the facility administrator at the time, testified that she did not recall seeing any of the complaints listed on Tag F166 in the resident council minutes. Tr. II at 382. However, the fact that she did not recall seeing those complaints does not dispute that they were aired. After having testified that she did not recall seeing the complaints listed in Tag F166, Ms. Palmer stated "none of the food concerns were on any of the resident council minutes for 2000." Tr. II at 383. I find the initial testimony offered by the administrator to be more accurate and consistent with the complaint of the 16 residents who aired the complaints. Additionally, the administrator did not appear to take the resident council meetings seriously, as evidenced by not attending them or not having someone from her staff attend. Moreover, Petitioner did not provide the records of the resident council minutes for 2000 for verification of its assertion that no complaints had been aired about the food and that someone from the administration was always present at resident council meetings. These minutes were in its possession and could have been easily produced. Interestingly, the resident council meeting minutes dated November 3, 2000, state as follows:

Last month's business reviewed, residents pleased with outcome of responses. The Dietician and Dietary supervisor were present during the meeting to answer questions and listen to any concerns.

CMS Ex. 9, at 98.

From the tenor of the minutes cited above, I can infer that prior to the month of November 2000, contrary to Petitioner's assertion, dietary issues had surfaced.

I find that CMS established a prima facie case that Petitioner failed to provide prompt efforts to resolve the resident's grievance regarding the poor quality of the meals. Petitioner did not rebut CMS's prima facie case by a preponderance of the evidence.

CMS also contends that Petitioner failed to make a prompt effort to resolve the residents' complaint to the effect that no beautician/hairdresser had been available at the facility for about a month. It was Sami Guttery's testimony that there was no evidence that the facility was making an effort to recruit a beautician. In response, Petitioner argues that Ms. Guttery acknowledged that she had been told during the survey that the facility had been looking for a beautician for a month. Ms. Palmer testified that in April the facility hired two beauticians that resigned at the beginning of October 2000. Tr. II at 385. There is no evidence that efforts were made to stagger their departure such that one remained in place until a replacement was hired, nor is there evidence as to when the ad for a new beautician was published. Assuming the customary two week notice, I would expect an ad to have been published in September 2000. If Petitioner is correct in its assertion that prompt efforts were being exerted to hire a new beautician, it would have been easy for Petitioner to produce evidence of a published ad in September 2000. However, no such evidence has been forthcoming. It was not until November 8, 2000 that a new beautician came on board. That is certainly more than the three week hiatus claimed by Petitioner. Tr. II at 385. In fact, the hiring took place on the heels of a deficiency finding during the October 2000 survey. Petitioner was given notice of that finding by ODH on October 30, 2000.

Ms. Palmer's suggestion that if a resident had requested hairdressing services, a beautician was available just 10 minutes away, at a neighboring sister facility, has a hollow ring. If Petitioner found itself without the services of a hairdresser, due to lack of diligence, and help was readily available nearby, it should have made arrangements to have that person visit their facility on a schedule until someone was hired. It is ironic for Petitioner to place the onus on the residents to request that a beautician from a sister facility be made available, when it is the duty of Petitioner to provide those services without the need for prompting by residents.

I find that CMS established a prima facie case that Petitioner was in violation of 42 C.F.R. § 483.10(f)(2). Petitioner has not overcome CMS's showing by a preponderance of the evidence.

4. Quality of Life (Tag F246). The facility failed to ensure that residents have the right to receive services in the facility with reasonable accommodations of individual needs and preferences.

The regulations at 42 C.F.R. § 483.15(e)(1) provide that a resident has the right to receive services in the facility with reasonable accommodation of individual needs and preferences except when the health or safety of the individual or other residents would be endangered.

a. State surveyor findings for Tag F246, as alleged in the Statement of Deficiencies (CMS Ex. 1, at 9-10).

Based on surveyor observation and interviews with facility staff, it was determined that approximately 45 residents in wheelchairs in the main dining room had difficulty reaching and bringing food to their mouth because the arms of the chair touched the table. Some of the wheelchairs had no arms at all.

b. Discussion

Mr. Vince Borell, State surveyor, testified that, on October 17, 2000, he observed approximately 45 residents out of a total of 67 that were in the dining room at the time who were unable to get their wheelchairs under the table. That put them at a significant distance from their plate, such that when they reached way over to the plate and attempted to bring food to their mouth, there was much spilling on the table and themselves. He was of the opinion that so much spilling of food over time may adversely impact the resident's nutritional support.

It is Petitioner's position that those chairs and tables had been used at the facility for many years without any prior indication from the State that they were inadequate. Petitioner also argues that no harm was done because second helpings were available to residents who so desired.

I find Petitioner's contentions to be wholly without merit. Petitioner has advanced no legal support for the argument that CMS is forever barred from taking action with respect to a deficient practice if it had been occurring in the past without citation. I do not agree with Petitioner that a vice practiced over a long period of time eventually becomes a virtue. It matters not how long the facility made use of the same wheelchairs or tables before the State noticed that their use constituted a deficient practice. Additionally, I note that of the 67 residents observed by the surveyor, 22 of them did not have the same problem as the other 45, in having access to their plate without spilling food on the table and themselves. That leads me to conclude that Petitioner's argument that all of the wheelchairs were of a "standard" size and all had the same fit under tables that had been in use for 25 years is unavailing. Tr. I at 447. Logically, the facility had some tables and/or chairs that allowed the residents better access to their food than others.

Petitioner's suggestion that the availability of second helpings would make up for the food that was spilled is an inadequate solution. Such solution only adds to the indignity perpetrated upon the residents by compounding their frustration with unsightly spilling of food and taxing the motor capabilities of their feeble upper extremities.

I find that CMS established a prima facie case that Petitioner was in violation of 42 C.F.R. § 483.15(e)(1). Petitioner has not overcome CMS's showing by a preponderance of the evidence

5. Social Services (Tag F250). The facility failed to provide medically-related social services to attain or maintain the highest practicable mental well-being of each resident.

The regulations, at 42 C.F.R. § 483.15(g), require that the facility must provide medically related social services to attain or maintain the highest practicable mental well-being of each resident.

a. State surveyor findings for Tag F250, as alleged in the Statement of Deficiencies (CMS Ex. 1, at 10-14).

(Example 3) The facility failed to provide R96 with medically related social services following a significant change in the resident's physical condition. R96 was admitted to the facility on November 22, 1999. At that time she was identified as a full code status if in need of resuscitation measures. Following hospitalization for pneumonia, she was readmitted to the facility. The resident was placed on the hospice program and her status was changed to "do not resuscitate." Review of the clinical record revealed that the social service documentation was silent as to the decline in the resident's condition, the need for hospice services, or the change in code status. Additionally, interview of the social worker revealed that the resident would still occasionally express grief and become tearful over the unexpected loss of her daughter in a tragic accident. Social service documentation was silent as to the daughter's death or the resident's re-occurring grief.

(Example 4) R182 had multiple diagnoses that included dementia and dysphagia. Following a series of hospitalizations that ended on September 27, 2000, the resident was readmitted to the facility. It was revealed that R182 had a 6.5 % significant weight loss from August 8, 2000 to September 1, 2000. The resident experienced a 12.5 % significant weight reduction from July 5, 2000 to October 12, 2000. The documentation addressing the resident's decreased appetite and oral intake suggested that a feeding tube might be the only means for maintaining weight and hydration. During an interview with the surveyor, the social worker stated having informed the dietician that she was not comfortable calling the family regarding potential feeding tube placement. An October 10, 2000, entry in the facility dietary records showed that R182's family requested a meeting to discuss the resident's status and options. However, there was no documentation regarding interventions and interactions to assist the resident and family with setting up a meeting or obtaining information regarding feeding tube placement or hospice services. Thus, the resident continued with intravenous treatment for dehydration, pneumonia, and oral intake.

b. Discussion

(Example 3) Ms. Fran Tucker testified that in July 2000, R96 was sent to the hospital with a diagnosis of pneumonia. Upon readmission to the facility, she was placed on the hospice program with a no code status, which meant that no significant measures would be undertaken regarding resuscitation. The placement of the resident in a hospice program meant that her life expectancy was six months or less. In such a setting, stated Ms. Tucker, the facility would be expected to provide comfort care. Such care could provide for the resident's physical comfort as well as for her spiritual and psychological needs. Tr. I at 264, 265. However, Ms. Tucker found no documentation in the care plan that made provision for the resident's grief after undergoing a change in code status. Additionally, Ms. Tucker noted that the social service staff revealed R96 would occasionally express grief and become tearful about a daughter that died unexpectedly in a tragic accident. ⁽⁷⁾ Tr. I at 264-266.

Petitioner counters with the argument that there was no documentation in the facility's social service notes regarding the referral to hospice because the referral was done by the discharge planner at the hospital prior to the resident's readmission. Petitioner also argues that a plan of care for hospice was started for this resident on October 16, 2000, which included nurse visitations, chaplain visits, and social worker and nurse aide visits. Petitioner relies on the testimony of the facility social worker, Amy Boehm, but did not provide the documentary support for that assertion. Instead, Petitioner presented a care plan that was initiated in the year 2001, months after the survey. P. Ex 7. Petitioner's argument that there was no documentation regarding the referral to hospice because the referral was done by the discharging hospital is inconsequential, inasmuch as CMS does not take issue with the lack of referral documentation to hospice from the facility. CMS's position is that the facility did nothing to assist R96 through grief from learning that she had only six months or less to live. I agree with CMS's reasoning.

(Example 4) The facility consultant, Kimberly Parks, testified, and Petitioner argues, that R182's family refused the placement of a feeding tube. Tr. II at 462; P. Br at 31. However, it was surveyor Truett's testimony that the dietary notes indicated that R182's family had requested a meeting with the social worker to discuss available options in terms of feeding tube placement or the provision of hospice services. In spite of the family's request, there were no social services notes regarding any meetings with the family or any notification or coordination with nursing and dietary. I find that the consultant's testimony has no support in the facility records. An important decision by the resident's family, such as the one under consideration here, would most certainly be documented in the facility records. In the absence of a documented reference showing that the resident's family refused the placement of a feeding tube, I can only infer, in keeping with the surveyor's testimony, that social services did not coordinate with the family and the pertinent facility components in a manner that would assure the resident prompt and appropriate services for arriving at whatever decision would be deemed best for R182. Tr. I at 134. The failure to coordinate the venue for a vital decision regarding the care of R182, created an undue delay in the exercise of available options. That unnecessary delay created the potential for more than minimal harm. It is obvious that the failure to act promptly narrowed the options available for this resident in the face of continued decline in her health.

I find that CMS established a prima facie case that Petitioner was in violation of 42 C.F.R. § 483.15(g). Petitioner has not overcome CMS's showing by a preponderance of the evidence.

6. Environment (Tag F253). The facility failed to provide housekeeping and maintenance services necessary to maintain a sanitary, orderly, and comfortable interior.

The regulations, at 42 C.F.R. § 483.15(h)(2), require that a facility must provide housekeeping and maintenance services necessary to maintain a sanitary, orderly, and comfortable interior.

a. State surveyor findings for Tag F253, as alleged in the Statement of Deficiencies (CMS Ex. 1, at 15-17).

(Example 2) On October 18 and 19, 2000, an oscillating fan in Room D-8 was observed blowing directly on R6 who had respiratory compromise, and a tracheotomy. The blades of the fan were noted to have a thick layer of gray dust.

(Example 3) On October 16, 2000, the surveyor observed that the facility failed to provide maintenance services necessary to maintain an orderly environment. The self- closing devices on two ash trays were broken.

(Example 4) On October 16, 2000, the surveyor observed that the facility failed to provide maintenance services to maintain an orderly interior. Large amounts of peeling paint were observed in the social room near two heating/cooling units.

b. Discussion

(Example 2) Surveyor Sami Guttery testified that she observed a dirty, dusty fan blowing directly on a resident who had a tracheotomy. The layer of dust on the fan was rather thick and blowing directly into the wind pipe of this resident who had a history of respiratory failure and pneumonia. This presented the potential for more than minimal harm inasmuch the resident was placed at risk for a pulmonary infection or allergic reaction to the dust. I find that CMS established a prima facie case that Petitioner violated the requirement under Tag 253. Petitioner did not refute this deficiency.

(Examples 3 & 4) 42 C.F.R. § 483.15(h)(2) addresses sanitation, orderliness, and comfort within the nursing facility. Example 3 refers to a broken ash tray cover and Example 4 refers to peeling paint near the heating/cooling system. CMS did not present a prima facie case in order to demonstrate the manner in which the facility failed to satisfy the requirements under this regulation pursuant to Examples 3 & 4. The testimonial evidence presented by CMS addressed safety hazards from the potential for fire from a broken ash tray cover and the possibility of residents eating paint chips. CMS did not present evidence to demonstrate the manner in which the alleged safety hazards were related to the requirements under 42 C.F.R. § 483.15(h)(2).

7. Professional standards of quality (Tag F281). The facility failed to provide services that met professional standards of quality.

The regulations, at 42 C.F.R. § 483.20(k)(3)(i), require that the services provided or arranged by the facility must meet professional standards of quality.

a. State surveyor findings for Tag F281, as alleged in the Statement of Deficiencies (CMS Ex. 1, at 20-25).

(Example 5) The state surveyors determined that R122 was not provided professional services of repeating a laboratory test as ordered by the physician. The resident had a serum blood calcium level drawn on May 11, 2000. Due to levels that exceeded the normal values, the resident's calcium replacement supplement was discontinued and calcium blood levels were ordered to be repeated in two weeks. Testing done on May 26, 2000, revealed that calcium blood levels were still elevated. When notified, the physician ordered that the test be repeated in one month. The clinical record was silent as to any additional calcium level tests or whether tests were performed as ordered by the physician.

(Example 6) R6 who had a history of constipation, cerebral palsy, and mental retardation, had a telephone order dated May 15, 2000, for a suppository laxative to be given each day as needed for constipation. Bowel records were silent as to any bowel movements from October 4 to October 7, 2000. A review of the medication administration records for October 2000 revealed that no laxatives had been given in that month at 11:00 p.m. Further review of the record showed no bowel movement from October 10, 2000 to October 15, 2000.

b. Discussion

Petitioner presented the testimony of Ms. Rebecca Vincent, an Ancillary Administrative Nurse, regarding the facility's failure to perform calcium level tests as ordered by the resident's treating physician. As indicated earlier, the surveyor had found that when the resident's calcium level continued to be elevated pursuant to testing conducted on May 11, 2002, the physician ordered discontinuance of the calcium replacement supplement, and repeat laboratory testing in two weeks. When the additional testing was done on May 26, 2000, and still revealed elevated calcium levels, the doctor ordered that the laboratory test be repeated in one month. Ms. Vincent stated that the initial order by the physician for repeat testing in two weeks was complied with, but that the repeat testing ordered to take place in a month was not done. Therefore, as to Example 5 under Tag F281, I find not only that CMS established a prima facie case, but also that Petitioner concedes not having carried out the treating physician's order.

Regarding Example 6 under Tag F281, Sami Guttery, the State surveyor, testified that R6 had constipation problems and was prescribed Dulcolax, a laxative. When Ms. Guttery reviewed the medication administration record, she found that the resident had only had two bowel movements from October 1 to October 15, 2000, and that a laxative was given only once. Ms. Guttery added that the bowel movements were preceded by the administration of the Dulcolax prescribed by the physician. Tr. II at 337, 338.

Testifying on behalf of the facility, Ms. Rebecca Vincent stated that the facility understood the deficiency under Tag F281 regarding Example 6 to be that the resident was not being administered a laxative when needed. However, she added, the resident was getting a daily laxative. Tr. I at 405. It was Ms. Guttery's testimony, on the other hand, that from October 1 to October 15, 2000, the resident was given a laxative only once (Dulcolax on October 7, 2000). See P. Ex. 14, at 12. There were no other references concerning the administration of laxatives on other than on that occasion. Apparently, Ms. Vincent was referring to Enulose, which had been prescribed by the physician on May 15, 2000 (P. Ex. 14, at 3), along with Dulcolax (CMS Ex. 24, at 1) which had been prescribed on the same date.

The record is clear that the physician prescribed both laxatives, yet there is evidence of only a one time administration, on October 7, 2000 at 11:00 p.m. (P. Ex 14, at 12). Even if I were to accept the unsubstantiated testimony that Enulose was administered daily, I would also have to conclude that it was obvious to the facility that it was not working, inasmuch as in a two week period the resident had only experienced two bowel movements. It is also noteworthy that the only bowel movements during that period were preceded by the administration of Dulcolax. That should have been sufficient indication to the staff that the Dulcolax prescribed by the physician on May 15, 2000 was sorely needed by the resident. Notwithstanding, Petitioner continued to ignore the resident's need and failed to provide the relief that the treating physician had made available for the resident's problem with constipation.

During the course of the testimony by its witness, Ms. Rebecca Vincent, Petitioner brought out that on October 31, 2000, the physician noted that the resident's abdomen was soft, with positive bowel sounds. Tr. II at 406. However, that was well after the deficiency findings by the State survey team. Of course, I must also note that I ascribe little probative value to the testimony of an LPN such as Ms. Vincent, to the effect that the treating physician's chart entry regarding the existence of positive bowel sounds is to be interpreted to mean that no laxative was necessary.

I find that CMS established a prima facie case that Petitioner was in violation of 42 C.F.R. § 483.20(k)(3)(i). Petitioner has not overcome CMS's showing by a preponderance of the evidence

8. Quality of Care (Tag F309). The facility failed to provide necessary care and services to attain or maintain the highest practicable physical, mental, and psychosocial well-being.

The regulations, at 42 C.F.R. § 483.25, require that each resident must receive and the facility must provide the necessary care and services to attain or maintain the highest practicable physical, mental, and psychosocial well-being, in accordance with the comprehensive assessment and plan of care.

a. State surveyor findings for Tag F309 as reflected in the Statement of Deficiencies (CMS Ex. 1, at 25-29).

(Example 1) The state surveyors determined that R159 had an upper respiratory infection and required the use of continuous oxygen per nasal cannula. Among other conditions, he also had swallowing difficulties. Nursing documented multiple episodes of coughing/choking with oral intake. An evaluation performed on August 25, 2000, identified an aspiration risk. Consequently, the resident had specific physician-ordered and care-planned strategies for eating. The orders included an upright 90 degrees position for meals, chin tuck, and small bites with sips for meals.

Notwithstanding the precautions previously noted, on October 17, 2000, at 11:10 a.m. during lunch and at 4:01 p.m., during dinner, the resident was observed in bed with a tray on the bedside table in front of him. The head of the resident was not elevated more than 40 degrees in either of those two instances. There was no staff present to assist with the care plan intervention in order to minimize the risk for aspiration.

(Example 3) R96 was identified in the clinical record as being allergic to oranges. On October 16, 2000, at 4:35 p.m., the resident was given a glass of orange juice with her supper.

(Example 4) On October 17, 2000, at 10:05 a.m. and 1:25 p.m., R106 was observed not wearing the bilateral knee anti-embolism stockings that had been care-planned and ordered by the physician.

(Example 5) The surveyor noted during observation of personal care on October 18, 2000, that R36 became verbally abusive and belligerent, using crude, foul language, directed at the staff. Review of the care plan revealed interventions of setting strict limits on inappropriate behavior, providing time outs and diverting the resident's attention. At no time during the observation did the staff employ interventions or make attempts to calm the resident.

b. Discussion

Ms. Debbie Truett testified that R159 was assessed as being at risk for aspiration. That was determined through a modified barium swallow test. She also made mention of the ample documentation in the nurse's notes regarding difficulty swallowing and of the resident's complaints concerning that problem. On two occasions on October 17, 2000, Ms. Truett observed the resident in bed at meal time with the head of his bed at about a 40 degree angle as opposed to 90 degrees as directed by the physician. In both instances staff was not present to assist him or explain the specific techniques that he should use. According to the surveyor, this had the potential for more than minimal harm due to risk of aspiration or choking. Tr. I at 44, 45.

Ms. Kimberly Parks testified that R96 was not allergic to orange juice. She disliked oranges, but would have orange juice every morning for breakfast. If the juice came with too much pulp it would have to be strained for her. Thus, the reference in the record to the effect that she was allergic to orange juice was an oversight. When the situation was brought to the attention of the facility staff, the correction was documented. With respect to this incident, under Example 3, I find that any identified deficiencies pose no greater risk to resident health or safety than the potential for causing minimal harm.

With respect to Example 4 under Tag F309, Vince Borell testified that on October 17, 2000, in the morning and afternoon, he observed R106 receiving range of motion care without the anti-embolism stockings that had been prescribed. This presented a potential for harm, according to the surveyor, because the resident was at risk for development of blood clots. Tr. I at 213, 214. The facility consultant testified, however, that R106 refused to wear the hose designed to protect her from clots. After she insisted on this pattern of behavior, the physician discontinued their use in early November 2000. Tr. II at 458, 473, 474. CMS did not dispute this testimony.

Under Example 5, CMS contends that the facility did not provide for R36's psychosocial well-being. Surveyor Sami Guttery testified that while she observed R36 receive personal care, the resident became very belligerent and inappropriate with the staff. She stated that according to the care plan, the staff was supposed to set strict limits on the resident's inappropriate behavior by diverting his attention to something else or providing time out for him. Furthermore, the resident was diagnosed with a bipolar disorder, and by not assisting him in controlling his behavior, the resident was placed at risk of harming himself or others. Tr. I at 348, 349.

It is Petitioner's position that the resident's behavior was rooted in a bigoted attitude toward people of African American descent. Tr. II at 348, 349, 390, 391. In that regard, Amy Boehm, the facility social worker, testified that the resident had a history of making racial remarks to staff. Ms. Boehm stated that the federal inspector wanted to witness the aides perform care on the resident, and that "Nancy" made her aware of his history of making racial remarks. Nonetheless, according to Ms. Boehm, the federal inspector was insistent on watching the personal care being given to R36. Thus, when R36 saw the federal inspector, who was African American, the resident became belligerent. Because of R36's racist attitude, said Ms. Boehm, the facility does not assign African Americans to provide care for him. Tr. II at 389, 390.

On cross-examination, Ms. Guttery indicated that she was unaware whether the two African American Surveyors were informed that R36 had a history of racism. However, although she did not hear the staff suggest that these two federal surveyors refrain from observing the care given to R36 so as not to provoke him, the African American surveyors sat behind the privacy curtain, and outside the view of the resident. Ms. Guttery also noticed that R36 did utter racial epithets and that the staff providing care were African American. Tr. II 360, 362.

I find the testimony of Ms. Guttery to be more reliable than that of Ms. Boehm. Pertinent to this is Ms. Boehm's testimony that she learned of the incident after the fact. Thus, what she stated at the hearing is based on information that she received second hand from someone named "Nancy" who was not available for cross-examination. Tr. II at 390, 397.

In view of the foregoing, I do not find that the resident's outburst was provoked by federal surveyors. Moreover, I note that Petitioner offered no evidence to demonstrate that staff applied the interventions set forth in the care plan to assist the resident in controlling his behavior. I also agree with the assessment of Ms. Boehm, the facility social worker, as well as Ms. Guttery's testimony, that the resident's uncontrolled display of conduct could cause him emotional harm. Tr. II at 389. I further find that the facility did not provide services to R36 according to the care plan to ensure the resident's psychosocial well-being. This had the potential for more than minimal harm.

9. Quality of Care (Tag F311). The facility failed to ensure that its residents' abilities in activities of daily living do not diminish unless circumstances of the individual's clinical condition demonstrate that diminution was unavoidable.

The regulations, at 42 C.F.R. § 483.25(a)(1), require that based on a comprehensive assessment of a resident, the facility must ensure that a resident's abilities in activities of daily living do not diminish unless circumstances of the individual's clinical condition demonstrate that diminution was unavoidable. This includes the resident's ability to :

•Bathe, dress, and groom;

•Transfer and ambulate;

•Toilet;

•Eat; and

•Use speech, language, or other functional communication system.

a. State surveyor findings for Tag F311 as reflected in the Statement of Deficiencies (CMS Ex. 1, at 29-31).

(Example 1) R177 was afflicted with multiple conditions, and had experienced a recent decline in activities of daily living. The decline was identified in the areas of transfer, ambulation, and personal hygiene. The resident had documentation of a restorative ambulation goal of 100 feet with assistance using handrails. The restorative documentation for August 2000 identified the resident as ambulating 8-10 feet. From October 17-19, 2000, the surveyor observed the resident intermittently. At no time was the resident observed ambulated by restorative staff.

Care-planned interventions for activities of daily living also included ambulating the resident to the bathroom every two hours and providing activities of daily living as needed. Nonetheless, there were no planned interventions to ensure the resident maintained or improved the skills of dressing, transfers, and personal hygiene.

On October 17, 2000, a nurse aide was observed attempting to ambulate R177 to the bathroom, but the resident was unable to walk even a few feet. During personal care, dressing, and transfer, the resident was totally dependent on staff. The nurse did not encourage or cue the resident to participate in her care in any way. A significant decline in the resident's abilities from August 2000 to the time of the survey was noted.

(Example 2) On October 18, 2000, the surveyor observed the transfer of R36 from the bed to the chair with a two-person assist. Although the resident was assessed as needing maximum assistance with transfers, a review of the care plan revealed that the staff were to encourage the resident to participate as able each day with activities of daily living. The state surveyor concluded that the facility did not provide services to maintain or improve the resident's abilities.

b. Discussion

Surveyor Debbie Truett testified that R177 had a restorative program for the provision of restorative ambulation of 100 feet per day, with restorative staff assistance. However, from the 17^th to the 19^th of October 2000, while consistently observing the resident for a period of hours, she did not see the resident ambulated by restorative staff. Ms. Truett stated that the care plan also called for ambulation to the bathroom every two hours by staff. In that regard, her observations on October 17, 2000 revealed that a nurse aide attempted to ambulate the resident from a Geri chair to the bathroom. During the observation, the resident was unable to ambulate. She was unable to take any steps, and actually began to fall. Although surveyors are not supposed to become involved in patient care, Ms. Truett had to push the Geri chair under the resident to prevent her from landing on the floor. Tr. I at 76, 77.

Ms. Truett indicated that there was a potential for more than minimal harm in light of the continued decline in the resident's abilities. Earlier in the year, the resident had been independently ambulatory, but now had difficulty standing up and had experienced falls. Restorative and routine ambulation was paramount to maintaining her abilities, without which she would continue to decline significantly. Tr. I at 77, 78.

Petitioner argues that R177 was on a restorative program and was ambulated 3-5 times per week, including October 17-19, 2000. Petitioner also claims that the resident was resistant to assistance, and at times would refuse to stand. P. Br. at 24; Tr. II at 427.

Although Tamela Lewis, a registered nurse employed by the facility, testified that R177 was ambulated 3-5 times per week, including October 17-19, 2000, she admitted on cross-examination that she herself never ambulated the resident nor did she observe anyone else doing it. Tr. II at 428. Petitioner claims that restorative ambulation was carried out according to the care plan, yet produced no records to substantiate the allegation. Additionally, as to this particular issue, the best testimonial evidence would have been that of the restorative nurse and not someone such as Ms. Lewis, who denied all personal knowledge concerning restoration efforts.

From a review of the evidence of record, I note that Petitioner did not dispute its failure to have planned interventions to ensure that R177 maintained or improved the skills of dressing, transfers, and personal hygiene. This failure was evident from the surveyor's observation on October 17, 2000. At that time it was noted that the resident was totally dependent on staff for all care including personal care, transfers, and dressing. While on August 2, 2000, the resident required limited to extensive assistance, by mid-October 2000, she was observed to be totally dependent. See CMS Ex. 1, at 30. The surveyor specifically noted that the care nurse did not encourage or cue the resident to participate in her care in any way. CMS Ex. 1, at 30, 31. This promoted further decline in the resident's ability to participate in her activities of daily living.

As stated earlier, 42 C.F.R. § 483.25(a)(1) provides that the facility must ensure that a resident's abilities in activities of daily living do not diminish unless circumstances of the individual's clinical condition demonstrate that diminution was unavoidable. I find that CMS has established a prima facie case that Petitioner failed to satisfy the regulatory requirement set forth above. Petitioner has not overcome that showing by a preponderance of the evidence, nor has it offered any evidence to demonstrate that diminution of the resident's abilities was unavoidable.

The finding under this Tag applies equally to "Example 2" in view of Petitioner's inability to come forward with evidence that its staff encouraged R36 to participate as able each day with activities of daily living. Petitioner argued generally that the resident was often non-compliant, but presented no evidence that it provided services to maintain or improve his abilities. P. Br. at 24.

10. Quality of Care (Tag F312). The facility failed to provide proper care and services to residents unable to perform activities of daily living.

The regulations, at 42 C.F.R. § 483.25(a)(3), require that a facility must ensure that a resident who is unable to carry out activities of daily living receives the necessary services to maintain good nutrition, grooming, and personal and oral hygiene.

a. State surveyor findings for Tag 312 as reflected at Tag in the Statement of Deficiencies (CMS Ex. 1, at 31-36).

(Example 1) R168 was diagnosed with a number of conditions including a history of left and right hip fractures, as well as a history of pressure sores. She had been identified as being at risk for further skin breakdown. On October 10, 2000, she was assessed as incontinent of bladder and totally dependent on two or more staff for bed mobility and toileting.

Observations by the surveyor on October 10, 2000, revealed that a nurse aide visited the resident's room in order to provide incontinent care but failed to bring the needed cleaning supplies. Thus, without having any supplies with him, he proceeded to uncover the resident and pushed her on the right hip to turn her to the side. When the nurse aide pushed the resident as described, she cried out in pain. Although the resident had been assessed as requiring two or more staff for bed mobility and toileting, the nurse aide continued to push the resident's hip and thigh area without the assistance of other staff. The nurse aide pulled an incontinent brief that was heavily soiled with urine and feces. At that point he stopped and left the resident's room to get a washcloth. He wiped from the rectal area forward over the perineal area. The nurse aide repeated this process three times, returning each time with feces on the washcloth. The nurse aide also continued to turn the resident from side to side to remove the incontinent product by pushing and pulling on the resident's hips and thighs. During the application of incontinent care the resident repeatedly moaned and complained of discomfort. No further cleansing of the resident's perineal area was provided before the nurse aide applied a new incontinent brief.

(Example 3) On October 18, 2000 at 7:00 a.m., two nurse aides changed R155's incontinent brief. Although the care plan interventions included incontinence care every two hours, no additional care was provided until 10:10 a.m. The surveyor who consistently observed the resident throughout this period noted that when the resident's brief was removed it was heavily soiled with urine.

(Example 4) R36 was observed receiving incontinent care on October 18, 2000, at 10:20 a.m. While cleaning the resident's peri-area, the foreskin was not retracted and the area was not cleaned appropriately. The peri-area and buttocks were not dried after cleaning. The resident's left pant leg was noted to have to have gotten wet in several places, but staff did not offer to change the resident's pants before leaving the room.

(Example 5) R8, who was blind, was observed feeding himself in bed on October 17 and 19, 2000. During breakfast on October 17 at 8:00 a.m., the resident was noted to spill milk on his chin and gown. Scrambled eggs portions and bacon were also scattered over the front of his gown. The surveyor saw staff enter the resident's room, but no effort was made to change his gown or clean up the spilled food. At 9:00 a.m., two members of the nursing staff were observed to enter the resident's room to provide incontinent care. At that time the gown was changed, but the area of the resident's skin where milk was spilled was not cleaned. A similar situation was observed on October 19, 2000.

b. Discussion

Petitioner did not dispute the deficiencies under Examples 1 and 3, except to say that R155 (Example 3) did not have a urinary tract infection. P. Br. at 33. Such defense is ludicrous inasmuch as the issue regarding Example 3 at Tag 312 charged Petitioner with failing to provide incontinent care every two hours according to its own care plan. It is true that the facility's failure created a risk for urinary tract infection (and skin breakdown), but CMS did not have to show that the resident had a urinary tract infection at the time nor that through improper care an infection was later acquired.

Petitioner's claim that it did not provide proper care to R36 because he was belligerent with care is unacceptable. There have been several instances, as it is evident from preceding discussions, where Petitioner defends its failure to provide appropriate care for this resident based on its argument that the resident was belligerent. From the description of the surveyor's observation there is no indication that the resident's hostile behavior had anything to do with the facility's failure to provide proper hygiene to R36. CMS Ex. 1, at 35.

Concerning Example 5, CMS determined, based on surveyor observation, that on October 17 and 19, 2000, that R8, who was blind, spilled food all over himself while in the process of eating breakfast. During observation of more than an hour, the surveyor saw staff enter and leave the resident's room, but none of the staff made an effort to clean him up or change his gown. This, Said Ms. Guttery, had the potential for more than minimal harm in that it greatly compromised the resident's dignity, as he lay there with food all over him. Tr. II at 340-342

Kimberly Parks, the facility consultant, testified that there was no potential for more than minimal harm in the case of R8 because he did not remain with food spilled all over him all day, inasmuch as sometime later in the day he was given his scheduled bath. Ms. Parks failed to explain, however, why the resident had to remain with food spilled over him until he was finally given his scheduled bath. In fact, Petitioner presented no evidence as to when the resident was given a bath nor whether he was in fact given a bath on the days in question as scheduled. All Ms. Parks stated was that the surveyor's observations occurred on the resident's scheduled bath days. She also failed to explain why staff entering the resident's room made no effort to clean him up during or after he had eaten breakfast.

CMS established a prima facie case that the facility failed to provide proper care and services to residents unable to perform activities of daily living. Petitioner did not overcome that showing by a preponderance of the evidence.

11. Pressure Sores (Tag F314). R169 was admitted to Petitioner's facility without pressure sores, and was not provided with pressure relief devices or other appropriate care to prevent skin breakdown.

The regulations, at 42 C.F.R. § 483.25(c), require that a facility must ensure that a resident who is admitted without pressure sores not develop them, unless the individual's clinical condition demonstrates that they were unavoidable; and a resident having pressure sores receives necessary treatment and services to promote healing, prevent infection and prevent new sores from developing.

a. State surveyor's findings for Tag F314, as alleged in the Statement of Deficiencies (CMS Ex. 1, at 36-39).

R169 was assessed as incontinent of bowel and bladder, and totally dependent on staff for all care. The resident had range of motion limitations of the upper and lower extremities, and was at risk for pressure sores.

The resident had a physician's order, written on October 12, 2000, for cleansing and application of an adhesive dressing to an abraded area on the right side of the buttock. The order included daily examination of the dressing. Additionally, the care-planned interventions included turning and repositioning every two hours and providing incontinence care every two hours.

On October 17, 2000 from 3:00 p.m. to 6:22 p.m., the resident was consistently observed seated in a reclined Geri chair next to the bed. At 6:00 p.m. two nurse aides transferred the resident from the chair to the bed and removed a heavily urine and feces soiled incontinent brief. The resident did not have the physician-ordered dressing on the buttocks. The surveyor noted that the resident's record was silent for a nurse check of the dressing on this date. In addition to the abraded area for which the dressing was ordered, there were other stage one and stage two pressure sores observed by the surveyor.

During the care, the nurse aide wiped feces from the rectal area across the open sores. A clean incontinent product was applied without any dressings on the open sores. The absence of dressing on the open sores was also noted on October 18, 2000.

b. Discussion

Ms. Carol Watson, who is a facility nurse, testified that what the surveyor identified as a stage one pressure sore was in reality a discoloration of the skin. Other sores that the surveyor described as stage two open sores were merely scratches, she said. Presumably, these were self-inflicted scratches. Tr. II at 432, 433.

Regarding the failure to follow the physician's order for dressing of the area described as "abraded," Ms. Watson stated that the wound care specialist recommended the application of a cream and that a dressing was no longer needed. Tr. II at 434.

In contrast to the testimony of Ms. Watson, Ms. Debbie Truett, the surveyor, testified that the sores she observed were in fact pressure sores. Ms. Truett described the stage one pressure sore on the left buttock as a large, deep, reddened area. She added that it did not go away when the pressure was relieved. Also, she noted small open sores within that area. Tr. I at 36. The surveyor described the stage two pressure sores as a yellow, round crater, as opposed to a scrape or scratch wound. ⁽⁸⁾ Tr. I at 191. Certainly, Ms. Truett's description of the sore is very different than a scratch.

In view of the evidence of record, I find that R169 did in fact develop pressure sores and that these were avoidable. I further find that R169 did not receive necessary care to prevent new pressure sores from developing, nor did she receive appropriate treatment and services to promote healing of the facility acquired pressure sores. The precise description by Ms. Truett of the pressure sores acquired by R169 is supported by the following undisputed evidence of record:

•The resident was allowed to remain for prolonged periods with urine and feces soiled incontinent brief. This was observed by the surveyor on October 17, 2000, when the resident was not given incontinent care for almost three and a half hours in spite of the care plan requirement to provide that care every two hours. The facility staff allowed the resident to remain soiled without a change for almost three and a half hours although on that day the facility was under the watchful eye of State surveyors. CMS Ex. 1, at 37, 38.

•The facility failed to reposition the resident every two hours as required by the care plan. This was observed by the surveyor on October 17, 2000. At that time repositioning did not take place for almost three and a half hours. CMS Ex. 1, at 37.

•The resident was seated on a canvas pad, without the benefit of pressure relief underneath her buttocks. Tr. I at 33.

•Petitioner's incontinence care promoted worsening of pressures sores, as opposed to healing. This was evident from the surveyor's observation on October 17, 2000, where it was noted that the nurse aide wiped feces from the rectal area across open sores.

•On October 17 and 18, 2000, the resident was observed without the open sore dressing that the physician had prescribed. CMS Ex. 1, at 38. Petitioner's argument that the dressings were discontinued because the wound care specialist concluded that they were no longer necessary is not acceptable in the absence of consultation with the treating physician who prescribed the dressings.

•Petitioner knew, but ignored, that the resident had a neurogenic bladder condition requiring frequent incontinence checks. Tr. II at 432.

•R169 was diagnosed with cerebral vascular accident with left hemiparesis and had range of motion limitations of the upper and lower extremities. Consequently, it is unlikely, as Petitioner claims, that she was able to reach under her garments and around to her backside and inflict scratch wounds on herself. CMS Ex. 1, at 37.

•Petitioner presented no evidence whatsoever indicative of efforts to prevent sores or promote the healing of pressure sores.

Mere general denial of the existence of pressure sores and other inconsequential arguments do not overcome, by a preponderance of the evidence, the prima facie case established by CMS. I further find that there was actual harm in that the resident developed open stage two avoidable pressure sores as a result of the facility's failure to provide adequate care and treatment. Tr. I at 39.

12. Quality of Care (Tag F315). CMS established that Petitioner was not in compliance with the quality of care requirements at Tag F315.

The regulations, at 42 C.F.R. § 483.25(d)(1), require that a facility must ensure that a resident who enters the facility without an indwelling catheter is not catheterized unless the resident's condition demonstrates that it was necessary.

a. State surveyor's findings for Tag F315 as alleged in the Statement of Deficiencies (CMS Ex. 1 at 39-40).

(Example1) R96 was observed with a urinary catheter. The clinical record was silent as to a medical diagnosis for the need of the urinary catheter. The catheter had been applied while the resident was hospitalized for pneumonia and remained in the resident when readmitted to the nursing facility on July 18, 2000. CMS concluded on record review that the resident had been treated on two separate occasions for urinary tract infection. On September 4, 2000, it was reported that the resident was upset upon learning that she had a catheter.

(Example 2) Record review on October 16, 2000, revealed that R106's clinical condition did not demonstrate the need for a catheter. On July 14, 2000, the resident went to the hospital for a hip replacement, and returned on the 18^th with a urinary catheter. The catheter was used to prevent contamination of the wound from the hip surgery. CMS concluded that in October 2000 there was no further clinical reason for the urinary catheter.

b. Discussion

Surveyor Fran Tucker testified that when she learned that R96 had a urinary catheter in place since her discharge from the hospital in July 2000, without a diagnosis to support continued use in the facility, she brought the matter to attention of the staff. The staff acknowledged the absence of a supporting diagnosis, and contacted the resident's treating physician. At that time, the physician advised that the catheter was not necessary, and the facility proceeded to remove it. Ms. Tucker added that the situation described above posed the potential for more than minimal harm because it increased the risk of urinary tract infection. In the case of R96, she had developed two urinary tract infections since her return from the hospital. There was additional risk of injury from the resident's pulling at the catheter. Tr. I at 259-262

Petitioner argues that since the resident was returned to the facility with a hospice referral, that constitutes a qualifying diagnosis for the use of a catheter. In that respect, Ms. Kimberly Parks testified that when a resident is in hospice, the goal is comfort. Thus, pain is averted from repositioning if a catheter is in place. Tr. II at 459. I agree with CMS that hospice is not "a diagnosis," but a program for residents with short life expectancy. CMS Response at 11; Tr. I at 265. In the particular case of R96, the placement of an unnecessary catheter, far from being a source of comfort, was the cause of distress. The distress upset the resident and caused her to pull on the catheter to remove it. The unnecessary catheter also created a risk for urinary tract infection. The resident's reaction to the catheter and the recurrent urinary tract infections should have prompted the facility to consult her physician regarding its need much sooner. In fact, in the absence of a diagnosis justifying the need for the urinary catheter, Petitioner should have contacted the treating physician immediately upon the resident's return to the facility.

I find that CMS established a prima facie case that Petitioner was not in substantial compliance regarding Tag F315, Example 1. Petitioner did not overcome CMS's showing by a preponderance of the evidence.

Regarding Example 2, surveyor Vince Borell testified that the facility records indicated that the purpose of placement of a catheter on R106 was to avoid urine contamination to the incision wound from a surgery. He stated, however, that the incision had healed, and there was no longer a need for the catheter. Tr. I at 216. In response, Petitioner presented the testimony of the facility consultant, Ms. Kimberly Parks, who stated that, while in the hospital, the resident developed a stage four pressure sore on her heel. Consequently, she was unable to stand or ambulate in order to go to the bathroom. The facility reasoned that the indwelling catheter would promote comfort in contrast with the pain and discomfort the resident would experience if attempts were made to get her to the bathroom or if repositioned for toileting. Tr. II at 460. Ms. Parks also testified that a urinalysis and sensitivity culture was done for R106 and the results were negative. Tr. II at 459.

I find that Petitioner has overcome CMS's prima facie case by demonstrating that the facility had a reason for continuing to leave the indwelling urinary catheter in the resident. Additionally, the facility monitored for urinary tract infection. The fact that the treating physician later ordered the catheter removed does not detract from Petitioner's persuasive case that it did have a valid reason for leaving the catheter in R106 after the surgical wound had healed. CMS Reply Br. at 11.

13. Quality of Care (Tag F316). CMS established that Petitioner was not in compliance with the quality of care requirements at Tag 316.

The regulations, at 42 C.F.R. § 483.25(d)(2), require that a facility must ensure that a resident who is incontinent receives appropriate treatment and services to prevent urinary tract infections and to restore as much normal bladder function as possible.

a. State surveyor findings for Tag F316 as reflected in the Statement of Deficiencies (CMS Ex. 1, at 40-45).

(Examples 1 and 2) R177 and R38 were both incontinent and required assistance with toileting. Current care-planned interventions included toileting every two hours. On October 17, 2000, these two residents were consistently observed for a period of approximately three hours, during which no toileting assistance was provided. After that period of time, a nurse aide removed an incontinent brief that was heavily soiled with urine and feces. In both instances, the nurse aide did not provide cleansing of the perineal area before applying a clean incontinent brief. The residents did not receive adequate cleansing to prevent the potential for urinary tract infections.

(Example 4) On October 17, 2000, R106 was observed to receive care following an episode of being incontinent of stool. Using a single washcloth sprayed with a perineal wash agent, the nurse repeatedly wiped the resident's rectal/buttock area with a back to front technique, wiping stool towards the perineum. The resident had a urinary catheter drainage tube. The washcloth was observed to be heavily soiled with stool. At no time was the front perineal area cleaned. The resident did not receive adequate cleansing to prevent the potential for urinary tract infections.

a. Discussion

I find that CMS has established a prima facie case that Petitioner was in violation of 42 C.F.R. § 483.25(d)(2). Except for inconsequential argument, Petitioner did not dispute the substance of these deficiencies. P. Br. at 6. Therefore, no further analysis is necessary to show that Petitioner's conduct constituted more than minimal harm due to exposure of some of its residents to the risk of urinary tract infection from inadequate incontinence care.

14. Quality of Care (Tag F324). CMS established that Petitioner was not in compliance with the quality of care requirements at Tag F324 because it failed to provide supervision and assistive devices to prevent accidents.

The regulations, at 42 C.F.R. § 483.25(h)(2), require that a facility must ensure that each resident receives adequate supervision and assistance devices to prevent accidents.

a. State surveyor's findings for Tag F324, as alleged in the Statement of Deficiencies (CMS Ex. 1, at 45-51).

(Example 1) R177 had diagnoses of transient ischemic attacks, dementia, Alzheimer's with psychotic features, gait disturbance, osteoporosis, and weight loss. She had a history of falls with the use of physical restraints and personal alarms. The facility failed to document a complete accounting of the resident's falls and accidents to allow accurate evaluation and implementation of effective preventive interventions. On July 3, 2000, the treating physician was informed that the resident had experienced two falls in a 24-hour period. The first fall, occurring on July 2, 2000, resulted in swelling and bruising to the right eyebrow. On July 3, 2000, nursing documented a lap cushion restraint was ordered for the resident's wheelchair on a trial basis due to unassisted ambulation secondary to dementia. The lap cushion restraint was added to the care plan on July 11, 2000. On the night of August 4, 2000, the resident was found lying on the floor and the family was notified, although it was documented that no injuries were noted. The clinical record reflected no additional falls. However, a post-fall assessment of August 4, 2000, revealed that the resident was found on her knees at the bedside at 2:00 p.m., and at 2:30 p.m. she was found by the bathroom door lying on the floor covered with a blanket. The care plan per post-fall assessment was a bed pad alarm on the resident at all times. There was no evidence, however, that this intervention was in place at the time of the falls. After the resident slid out of her wheelchair on September 24, 2000, the physician ordered a reclining chair in the upright position with a tray applied during meals.

On August 2, 2000, the resident was assessed as requiring partial physical support during sitting and standing. Care-planned interventions also included ensuring a call light within reach at all times. On October 17, 2000, the resident was observed in the Geri chair without a call light within reach.

(Example 2) R159 was assessed on August 29, 2000, with unsteady gait and requiring physical assistance with activities of daily living. He was at high risk for falls. The personal alarm identified as an intervention on the fall care plan was discontinued on September 13, 2000. On September 20, 2000, nursing documented the resident was found on the floor beside the bed. The post-fall assessment indicated that a personal alarm was put in place. On October 8, 2000, at 3:30 a.m., the resident was found on the floor of his bedroom again, but the nurse's notes were silent as to the alarm activating. In spite of conflicting entries in the record, there was no evidence that the alarm was on or that it sounded when the fall occurred. Subsequently, at 9:15 a.m., the resident was found on the floor and the alarm was in the center of the bed. The resident sustained an abrasion, with frank bleeding to the right elbow. He complained of pain in the left side, and an x-ray revealed fractures of the 9^th and 10^th ribs. According to nursing documentation, all of the reported falls were due to the resident's attempts to reach the bathroom unassisted. A commode was placed in the resident's room, but no toileting schedule or plan was developed. The door to the resident's room was intermittently observed to be closed.

(Examples 4 and 6) R32 was not provided with adequate supervision to prevent accidents. On October 17, 2000, the resident was observed returning a lighter to nursing staff. She was also observed on October 19 smoking on the front porch without staff supervision. Her care plan required her to remain on the porch while smoking, but made no reference to her mental capacity nor did it address her carrying a lighter around the facility. On October 17, 2000, the resident was observed smoking in the lounge without staff supervision.

a. Discussion

(Example 1) R177 was on a program for restorative ambulation with a goal of 100 feet with assistance using handrails. In August, she was only able to ambulate about eight feet. CMS Ex. 1, at 29-30. Thus, in spite of the facility's restoration goals for this resident, she appeared to experience a rapid decline in the ability to ambulate and actively participate in activities of daily living. In fact, on October 17, 2000, she was unable to ambulate even a few feet, and was unable to stand straight without keeping her knees bent. CMS Ex. 1, at 30. CMS argues that R177 was at high risk for falls on July 2, 2000, based on her diagnoses of transient ischemic attacks, dementia, osteoporosis, and gait disturbance. However, CMS has offered no evidence as to the impact of those identified clinical diagnoses on the resident's ability to ambulate at that time in order to reach the conclusion that she was at high risk for falls. Ms. Rebecca Vincent, Petitioner's witness, on the other hand, testified that the nurse's notes documented that, on July 1, 2000, R177 was ambulating in the hall without difficulty. CMS did not dispute that testimony. Thus, there was no justification for a finding that the facility should have had a comprehensive fall prevention plan for the resident prior to July 2, 2000, as suggested by Ms. Debbie Truett. Tr. I at 86.

It was not incumbent upon the facility to implement fall prevention plan until the resident suffered two falls in a 24-hour period from July 2 to July 3, 2000. In this regard, stated Ms. Truett, all the facility did was plan for redirecting the resident back to her room. Ms. Truett added that with respect to the second fall occurring on July 3, 2000, she could find no documentation anywhere in the clinical record. She did, however, find a reference in the nurse's notes that the facility notified the treating physician that the resident had suffered two falls in a 24-hour period. Tr. I at 87. Ms. Vincent testified that the facility went beyond merely notifying the treating physician. For example, the resident was referred for a physical therapy evaluation, and examined for causative medical conditions such as urinary tract infections that may affect her gait. She was also seen by the psychiatrist who managed her psychiatric medications. In terms of assistive devices, Ms. Vincent stated that in view of the resident's decline in mobility and physical function, several items were tried. At first, a lap buddy was used, which is a foam-covered vinyl pad that fits in the wheel chair and prevents residents from falling when they lean forward. Inasmuch as the resident was removing the lap buddy and attempting to get up, an alarm was employed. Later, when the resident was no longer able to sit upright, she was given a reclining chair. Tr. II at 407, 408. CMS argues that Ms. Rebecca Vincent, an ancillary administrative nurse, never explained how she knew that the interventions mentioned in her testimony were actually employed. CMS Response at 12, 13. If CMS wanted an answer to that question it should have availed itself of the opportunity to ask it on cross-examination. It is too late for that now. As the record stands, Ms. Vincent's testimony remains undisputed.

CMS's claim that the facility did not have a call light within reach was disputed by Ms. Rebecca Vincent's testimony that, by October, the resident's condition had deteriorated to the point that she could no longer operate a call light. Tr. II at 408. I agree with CMS, however, that in view of the marked decline in the resident's cognitive and physical abilities, she was placed at risk for falls when left unattended on the toilet on October 17, 2000. Ms. Truett testified that on October 17, 2000, the nurse aide left the resident unattended twice while sitting alone on the toilet, although she had been assessed as requiring physical support for standing as well as sitting. At that point in time the facility knew that the resident was incapable of even operating a call light. Thus, leaving her unattended on the commode constituted grossly deficient care.

The evidence before me establishes that although Petitioner did not document all of the events pertinent to the falls suffered by R177 from July to October 2000, it is unreasonable to conclude that the resident suffered actual harm due to the facility's failure to implement fall prevention measures prior to July 2, 2000. Tr. I at 98. Nonetheless, as correctly stated by Ms. Truett, by failing to accurately and comprehensively account for falls and injuries once they occurred, the potential was created for assessing the resident inappropriately and thereby failing to implement measures in a more focused way so as to prevent further falls. Tr. I at 101, 102. The absence of proper documentation led to inappropriate monitoring of the fall prevention measures put into place after July 3, 2000. In regard to the fall suffered by the resident on August 4, 2000, Ms. Truett testified that:

There was no mention anywhere in any of the documentation that the alarms were in place at the time of the fall.

Tr. I at 94.

Consequently, I find that Petitioner's failure to properly document and monitor the interventions implemented after July 3, 2000, resulted in a fall to R177 on August 4, 2000. That fall caused bruising and pain to the resident. Tr. I at 94. Therefore, with respect to Example 1 regarding R177, Petitioner did not successfully refute CMS's prima facie case that the deficiency in this instance caused more than minimal harm. I conclude that Petitioner was not in substantial compliance with participation requirements by leaving R177 unattended on the toilet on October 17, 2000, by not properly documenting the events surrounding the falls suffered by the resident, by not documenting and monitoring the fall intervention measures implemented after July 3, 2000, and by creating the conditions leading up to the fall experienced by the resident on August 4, 2000. Moreover, the bruises and pain experienced by the resident on August 4 caused her actual harm.

(Example 2) The facility assessed R159 on August 4, 2000, as high risk for falls due to unsteady gait, and required physical assistance with activities of daily living. As a fall prevention measure the facility put a restraint-free alarm ⁽⁹⁾ on the resident. The facility records reveal that on September 20, 2000, the resident was found on the floor, and the alarm that had inexplicably been removed on September 13 was reapplied. CMS Ex. 1, at 48. Petitioner appears to argue that the restraint-free alarm applied to R159 was not really discontinued on September 13, 2000. This is evident from Petitioner's statement at page 8 of its post-hearing brief asserting that the facility's records specifically indicate that the notation for discontinuation of the restraint-free alarm was an erroneous entry. See also P. Ex. 13, at 5. This claim, however, is inconsistent with the testimony of Petitioner's own witness, Ms. Rebecca Vincent, who indicated that since the alarm bothered the resident, and he had experienced no falls at that point, the facility removed the alarm, in keeping with his wishes. Tr. II at 410. The reason for the discontinuance of the restraint- free alarm could not be verified by the surveyor upon review of the facility records. Tr. I at 47.

R159 was found on the floor again on October 8, 2000, at 3:30 a.m. The alarm was attached to the resident, but it did not go off. Later that same day, at 9:15 a.m., the resident was found on the floor. The facility documentation indicated that the resident had removed the alarm. He was noted to have an abrasion with frank bleeding on his right elbow. Further testing revealed two fractured ribs on the left side. According to the documentation, the resident's falls were the result of attempts to reach the bathroom to toilet himself. The facility's only response was to place a commode next to the resident's bed. Tr. I at 51, 52. The facility's justification for taking no additional steps to protect the resident from falls is that he was very determined to be independent, thus he would not seek assistance. Tr. II at 410. However, the serious injuries to which the resident was exposed due to falls outweighed whatever desire he may have had to do things unassisted. Having said that, it is worthy of mention, that in review of the records for this resident, I saw no indication that he refused assistance. See P. Ex. 13.

I agree with the opinion of surveyor Truett that Petitioner made no effort to evaluate the effectiveness of its interventions. She stated that if the tether alarm (restraint-free alarm) was not appropriate for this resident, other options should have been explored. As an example of an alternative alarm, she suggested the use of a pressure sensitive alarm. This device is placed underneath the bedding of the resident's bed or underneath the chair padding, and is something that can't be taken off. The alarm would sound when the resident attempts to rise from the bed or chair. The device has a sensitive setting, so that the staff determines how much pressure alteration will set off the alarm. Ms. Truett emphasized the fact that this type of alarm is one that the resident cannot remove. In fact, nothing attaches to the individual; thus, there is no sensation of discomfort of having a foreign object attached to the person. It appears that such an alarm would have addressed the resident's complaint that the tether alarm bothered him. Ms. Truett added that it would also help if the alarm box is hidden behind the headboard, where it cannot be seen.

Another intervention that could have been implemented, according to Ms. Truett, was the scheduling of routine toileting for the resident. She reasoned that a planned toileting schedule would have sent the resident a message, that although he was not used to needing toileting assistance, the time had come when such assistance was needed. Tr. I at 54, 55.

In view of the foregoing, I find that the facility's failure created the potential for more than minimal harm. In fact, the resident suffered bleeding, an abrasion, and fractured ribs. Those injuries resulting from the facility's failure to provide supervision and assistive devices caused actual harm. Petitioner, therefore, did not overcome CMS's prima facie showing regarding this deficiency by a preponderance of the evidence.

(Examples 4 and 6) R32 had buccal lingual tardive dyskinesia associated with the use of psychotropic drugs. There is no evidence in the record, however, that she had involuntary movements of the extremities. The resident did have a personality disorder and chronic schizophrenia, but such diagnosis, without more, is insufficient to conclude that she was at increased risk for starting a fire under the circumstances described by CMS. I find, therefore, that CMS did not establish a prima facie case as to Examples 4 and 6 under Tag F324.

15. Quality of Care (Tag F325). CMS established that Petitioner was not in compliance with the quality of care requirements at Tag 325 because it failed to maintain acceptable parameters of nutritional status regarding R182.

The regulations, at 42 C.F.R. § 483.25(i)(1), require that a facility must ensure that a resident maintains acceptable parameters of nutritional status, such as body weight and protein levels, unless the resident's clinical condition demonstrates that this is not possible.

a. State surveyor's findings for Tag F325, as alleged in the Statement of Deficiencies (CMS Ex. 1, at 52-54).

(Example 4) R182 had multiple diagnoses that included dementia and dysphagia. Following a series of hospitalizations that ended on September 27, 2000, the resident was readmitted to the facility. It was revealed that R182 had a 6.5 % significant weight loss from August 8, 2000 to September 1, 2000. The resident experienced a 12.5 % significant weight reduction from July 5, 2000 to October 12, 2000. The documentation addressing the resident's decreased appetite and oral intake suggested that a feeding tube may be the only means for maintaining weight and hydration. During an interview with the surveyor, the social worker stated having informed the dietician that she was not comfortable calling the family regarding potential feeding tube placement. An October 10, 2000 entry in the facility dietary records showed that R182's family requested a meeting to discuss the resident's status and options. From October 6, 2000 through October 8, 2000, a calorie count was ordered by the physician. On October 10, 2000, the dietician documented that the calorie count was recorded with a cross reference to the calorie form. The calorie count form was reviewed on October 17, 2000 and October 20, 2000, and was found incomplete with blanks for the resident's intake for breakfast and lunch on October 6 and 7, 2000. The dietician did not address this incomplete calorie count in the documentation. After October 10, 2000, there was no further documentation of the resident's condition or regarding meeting with the family and the necessity for a feeding tube. The resident was at risk for further weight loss, skin breakdown, and decline in protein levels.

b. Discussion

Petitioner argues that R182 experienced weight loss due to acute illness. However, she continued to suffer significant weight loss after discharge from the hospital on September 27, 2000. I infer that at that time the acute stage of her illness had passed. Nonetheless, it was determined that the weight loss continued to deteriorate in the facility after the resident was treated for pneumonia in the hospital. CMS Ex. 1, at 52; Tr. II at 461. Moreover, the fact that the resident had been through a spell of acute illness does not address the facility's failure to implement measures to prevent further decline.

Petitioner's argument that the family refused placement of a feeding tube has been addressed above in the discussion of Tag F250.

I find that the facility failed to ensure that the resident maintained acceptable parameters of nutritional status. Furthermore, Petitioner has not demonstrated that maintenance of such nutritional status was not possible given R182's clinical condition. By placing the resident at risk for further weight loss, the potential for more than minimal harm was created.

16. Quality of Care (Tag F329). CMS established that Petitioner was not in compliance with the quality of care requirements at Tag F329 because it failed to ensure that each resident was free from unnecessary drugs.

The regulations, at 42 C.F.R. § 483.25(l)(1), require that each resident's drug regimen must be free from unnecessary drugs. Drugs are considered unnecessary when used:

(i) In excessive dose; or

(ii) For excessive duration; or

(iii) Without adequate monitoring; or

(iv) Without adequate indications for its use; or

(v) In the presence of adverse consequences which indicate the dose should be reduced or discontinued; or

(vi) Any combination of the reasons above.

a. State surveyor's findings for Tag F329, as alleged in the Statement of Deficiencies (CMS Ex. 1 at 54-56).

Record review revealed that R96 repeatedly received an "as needed" (prn) medication without adequate indication for its use. She had a physician's order for an anti-anxiety medication, Xanax .25 mg. The clinical and medication administration records reflected that the resident received Xanax (prn) eight times in August and September, but only on one of those eight occasions did the facility document the resident's behavior and evidence of attempted non-pharmaceutical intervention. The records also failed to disclose the effectiveness or adverse reaction of the medication.

b. Discussion

Petitioner contends that R96 was not administered unnecessary drugs. She was a terminally ill resident whose shortness of breath made her anxious. When she asked for Xanax under those circumstances, says Petitioner, it was routinely administered to her. However, what is at issue here is not whether there was justification for the administration of the anti-anxiety medication, but whether Petitioner failed to document the resident's behavior that prompted the administration of the medication on each occasion, and what other non-pharmaceutical modalities were pursued prior administering Xanax (prn). Apparently, the facility was aware of the required documentation because in one instance the record was appropriately documented when Xanax was administered. CMS Ex. 1, at 55. On the other hand, Ms. Rebecca Vincent's response to the question regarding CMS's claimed lack of documentation, reveals a hint of ignorance as to the regulatory requirements. She responded as follows:

I'm not sure what that specifically pertains to. She had the order for it. It was on her medication record. The behaviors were care planned as far as how she acted when she became anxious and the fact that she would ask for the medication when she needed it.

Tr. II at 415.

Ms. Vincent seemed to be at a loss as to what the facility's documentation requirements were. She mistakenly felt that just because the medication was in the resident's record, and the fact that the residents behaviors were mentioned in the care plan, that the documentation mandated by 42 C.F.R. § 483.25(l)(1) could be dispensed with.

It was also Ms. Vincent's reasoning that when R96 became short of breath, there was no time to seek alternative interventions to pharmacological approach. Tr. II at 414. However, I infer from the record that the resident's condition made her short of breath frequently. Thus, the facility was grossly inept in waiting for an anxiety attack to occur prior to giving consideration to non-pharmaceutical interventions. Since the problem was a recurring one, those options should have been readily available to the staff providing care to the resident. A review of the evidence regarding this deficiency leads me to the conclusion that the facility's failure to properly document the resident's record resulted from its inclination to take short cuts.

The facility's failure to properly document the record left no clue for the resident's treating professionals as to the effectiveness, adverse reactions, or need to adjust the medication. The facility's failure under Tag F329 created the potential for more than minimal harm.

17. Quality of Care (Tag F330). CMS did not establish that Petitioner failed to comply with the quality of care requirements at Tag 330 by failing to ensure residents who had not used antipsychotic drugs were not given those dugs unless antipsychotic drug therapy was necessary to treat a specific condition as diagnosed and documented in the clinical record.

Section 483.25(l)(2) of the regulations, as is pertinent here, requires that, based on a comprehensive assessment of a resident, the facility must ensure that residents who have not used antipsychotic drugs are not given these drugs unless antipsychotic drug therapy is necessary to treat a specific condition as diagnosed and documented in the clinical record.

a. State surveyor's findings for Tag F330, as alleged in the Statement of Deficiencies (CMS Ex. 1 at 56-59).

R159 ⁽¹⁰⁾ was admitted to the facility on July 24, 2000, following a hospitalization for lumbar compression fractures due to a fall at home. After admission, the resident experienced occasional bouts of anxiety and uttered complaints of pain. On August 10, 2000, the resident had a psychiatric evaluation. The examining physician found no signs or symptoms of psychosis. His impression was that the resident had a mood, anxiety, and pain disorder secondary to the lumbar compression fractures. The psychiatrist ordered a routine anti-depressant, and recommended that the treating physician prescribe a stronger pain medication. The clinical record was silent for any psychiatric diagnoses or behaviors which would warrant the use of antipsychotic medication. On August 29, 2000, the treating physician ordered the use of an antipsychotic medication for dementia with agitation. From October 16 to October 20, 2000, the surveyors intermittently observed the resident and noted him to be alert and oriented. He was pleasant and in no way did he demonstrate negative behavior. Through communication with staff, the surveyors concluded that there was no documentation regarding behaviors before or after the antipsychotic medication was ordered.

b. Discussion

It is CMS's contention that the antipsychotic, Risperdal, prescribed for R159, was not justified in the absence of psychotic behaviors during or after the administration of the medication. CMS recognizes that dementia with agitation is one of the specific conditions for which an antipsychotic medication may be prescribed. It argues, however, that the agitation noted in R159 was due to pain. CMS Br. at 34. I find that the record does not lend support to CMS's position. On August 29, a diagnosis of dementia with agitation was entered into the resident's record. P. Ex. 13, at 2. That diagnosis is further supported by the nurse's notes of August 1, 2000, when it was indicated that R159 demonstrated increased agitation, but complained of no pain. He would yell for help repeatedly, and could not be successfully redirected by staff. P. Ex. 13, at 13. Thus, CMS's conclusion that the resident's agitation was only evident with regard to his pain disorder or concern for his wife's well-being is misplaced. Moreover, there is no foundation for the surveyors' finding that the absence of psychotic features during the October 2000 survey is additional evidence of the contraindication of Risperdal. The more obvious conclusion for the surveyor to reach would have been that the Risperdal was working, and therefore, that accounted for the absence of psychotic symptoms during the survey.

In view of the foregoing, I find that CMS has failed to establish a prima facie case with regard to the administration of an anti-psychotic to R159 in August 2000.

18. Dietary Services (Tag F369). CMS established that Petitioner did not provide special eating equipment and utensils for residents who needed them.

The regulations, at 42 C.F.R. § 483.35(g), provide that a facility must provide special eating equipment and utensils for residents who need them.

a. State surveyor's findings for Tag F369, as alleged in the Statement of Deficiencies (CMS Ex. 1, at 63-64).

On October 17, 2000, R8, who was blind and had a history of weight loss, was observed feeding himself. A plate guard was noted around the resident's plate with the opening towards the resident. The resident was observed scooping the food towards himself and spilling a significant amount, making the positioning of the plate guard ineffective. The facility did not ensure the proper use of special eating equipment for this resident.

b. Discussion

Petitioner argues that it is irrelevant whether the resident spilled food on himself or not because he received vitamin supplements, and there was no showing that he was lacking nutrition. Additionally, Petitioner claims the resident received double portions of food. I note that CMS asserted in the statement of deficiencies that the resident had a history of weight loss (CMS Ex. 1, at 63), while at the hearing conceded that he was overweight. Tr. II at 344. However, neither the fact that he may have been overweight nor the fact that he received vitamin supplements or double portions of food, resolves all of the issues involved in this deficiency. It is true that if the resident had a weight loss problem and was determined to be lacking in proper nutrition, the facility's failure would bear more significant consequences. However, my analysis does not stop there. I must also consider the issue of the resident's dignity. It is ironic that the facility would rather quarrel than simply place the plate in its proper position. In this regard, Ms. Guttery testified as follows:

The way the plate guard was positioned, it was on the back side of the plate, so as the resident was scooping the food towards him, it was spilling all down the front. The plate guard was ineffective . . .

If the plate guard had been applied where it was next to him then as he scooped his food it would have caught the food and assisted it into the spoon . . . .

Tr. II at 343.

I am appalled at Petitioner's attitude regarding this deficiency. I am at a loss to fathom its logic. The Petitioner appears to be saying that it is totally unconcerned if the resident portrays a slovenly appearance, and that it finds more common sense in providing double portions, than simply positioning the plate guard properly. Of course, the more food provided to this resident under the conditions discussed above, the greater the indignity perpetrated upon him. Could it also mean that the facility is so well off financially that it can afford to engage in waste?

I find that the facility's improper use of the plate guard is tantamount to not providing effective equipment to assist the resident in his ability to eat. This constitutes more than minimal harm. Petitioner failed to overcome CMS's prima facie case by a preponderance of the evidence.

19. Infection Control Practices Tag F441. CMS established that Petitioner did not follow the proper procedures to prevent cross-contamination infections.

The regulations, at 42 C.F.R. § 483.65(a), provide, among other things, that a facility must establish an infection control program under which it investigates, controls, and prevents infections in the facility.

a. State surveyor's findings for Tag F441, as alleged in the Statement of Deficiencies (CMS Ex. 1, at 65-69).

The surveyors found that with respect to R78, R38, and R106, the facility failed to follow appropriate infection control practices. In these instances, the nurse aides handled a periwash bottle and ointment tube as well as other items, and opened a resident's night stand and bathroom door with stool soiled gloves.

b. Discussion

Petitioner did not refute any of the examples under Tag F441, except to claim that Ms. Truett did not know the facility's nosocomial infection rate (infections caused by the facility's practices). P. Br. at 9. I agree with CMS that where the facility is charged with a pattern of deficiencies with the potential for more than minimal harm, it is not relevant whether an actual spreading of infections occurred. Thus, I find that Petitioner did not overcome CMS's prima facie showing that Petitioner's practices had the potential to cause more than minimal harm.

20. Infection Control Practices Tag F442. CMS established that Petitioner failed to ensure that isolation precautions were followed.

The regulations, at 42 C.F.R. § 483.65(b)(1), provide that when the infection control program determines that a resident needs isolation to prevent the spread of infection, the facility must isolate the resident.

a. State surveyor's findings for Tag F442, as allege in the Statement of Deficiencies (CMS Ex. 1, at 69-70).

R15 was readmitted to the facility on August 8, 2000 with a diagnosis of pneumonia and a respiratory infection which was resistant to antibiotics. The facility's policy on prevention and control of these types of infections required that a mask be worn when working within three feet of the infected resident. On October 17, 2000, the surveyor observed the nurse administer medications to R15 without wearing any type of mask. Interview with direct care staff revealed that they were unaware of the facility's policy in regards to isolation precautions for this resident.

b. Discussion

Petitioner contends that there was no further need to wear a mask (on October 17, 2000) because there was an order discontinuing the MRSA (antibiotic resistant infection) precautions. P. Br. at 32. The argument is misplaced inasmuch as the surveyor observed the nurse approach the resident without a mask on October 17, 2000, and the precautions were discontinued the following day, on October 18. CMS Ex. 1, at 70; P. Ex. 10, at 6. It is also worthy of note that when the surveyor approached the nurse aide regarding the facility's infection control policy, she responded that: "you don't have to wear a mask if you don't want to." As stated by the surveyor, this showed ignorance of the facility's policy. Tr. II at 346.

I agree with CMS that this deficiency created the potential for more than minimal harm because the nurse aide could be exposed to the antibiotic-resistant bacteria and transmit it to other residents. Petitioner failed to overcome CMS's prima facie showing of noncompliance as to this deficiency, by a preponderance of the evidence.

21. Administration Tag F514. CMS established that Petitioner failed to maintain clinical records which were complete.

The regulations, at 42 C.F.R. § 483.75(l)(1), provide that the facility must maintain clinical records on each resident in accordance with accepted professional standards and practices that are:

(i) Complete;

(ii) Accurately documented;

(iii) Readily accessible; and

(iv) Systematically organized.

a. State surveyor's findings for Tag F514, as alleged in the Statement of Deficiencies (CMS Ex. 1, at 72-76).

Based on record review and as verified by staff, the facility failed to maintain complete clinical records. This was demonstrated by Examples 2, 3, 4, & 5 at Tag F514.

b. Discussion

I find that CMS has established a prima facie case under Tag F514. Petitioner has not disputed those deficiencies. Thus, I conclude that Petitioner's failure to maintain complete clinical records created a potential for more than minimal harm by not documenting information that would be useful in preventing risk of injuries to residents.

B. A CMP in the amount of $600 per day is reasonable.

I uphold CMS's determination that Petitioner was deficient at the less than immediate jeopardy level that constituted actual harm. CMS also established a pattern of deficiencies that were not actual harm, but created the potential for more than minimal harm. The CMP imposed by CMS was $700 per day effective October 20, 2000, through December 13, 2000.

On November 14, 2000, CMS notified Petitioner that the imposition of the CMP took into consideration the facility's history and financial condition as well as the factors enumerated at 42 C.F.R. 488.404. ⁽¹¹⁾ CMS Ex 5.

Regarding the facility's prior history, CMS Ex. 16 reflects that many of the deficiencies cited in the survey subject of this litigation were also cited the prior year (1999) under the same deficiency tags (F314, F324). Additionally, states CMS, new deficiencies were cited in the October 2000 survey. CMS Br. at 40, 41.

CMS also argues that, as to the facility's financial condition, the facility had a net income of $965,684 on total revenues of $7,014,381 on the Statement of Revenues and Expenses filed with its Medicare cost report for the period from June 1, 2000 through December 31, 2000. See CMS Ex. 15, at 1, 4. However, CMS did not establish all of the deficiencies charged, and which were taken into account when it considered the scope and severity of those deficiencies. The failure to make a case regarding some of the deficiencies impacts on CMS's perceived degree of culpability. Consequently, I conclude that a $600 per day CMP is reasonable and constitutes an appropriate remedial remedy.

V. Conclusion

I conclude that CMS correctly determined that, beginning October 20, 2000 through December 13, 2000, Petitioner was not complying with federal participation requirements in the Medicare program at the less than immediate jeopardy level, and that the imposition of a CMP of $600.00 per day is reasonable.

José A. Anglada

Administrative Law Judge

1. The Health Care Financing Administration has been renamed the Centers for Medicare & Medicaid Services (CMS). Reference to either name shall apply to both names.

2. Petitioner chose not to subpoena Ms. Guran.

3. The transcript incorrectly refers to CMS's exhibits as Exhibit Nos. 1-14 and 16-58. Tr. I at 18.

4. CMS did not discuss these Tags in its brief. Therefore, I have not addressed them in this decision.

5. Throughout this decision, I refer to residents by number using the abbreviation "R" for resident.

6. I note that Petitioner refers to the resident's condition as delusions when in reality she was experiencing hallucinations. The distinction between these two entities made by Ms. Tucker during her testimony is supported by medically accepted literature. See Diagnostic and Statistical Manual of Mental Disorders app. B at 356, 359 (3d ed.); Merriam Webster's Medical Dictionary 166, 274 (1995). Contrary to Petitioner's assertion that Ms. Tucker lacked the training, experience, or knowledge to voice an opinion as to the distinctions between delusions and hallucinations, it was her uncontradicted testimony that she had 30 years of experience as a registered nurse and several years experience as a psychiatric nurse. Tr. I at 249.

7. It appears that the resident continued to grieve the loss of her daughter although she died many years earlier.

8. Ms. Truett defined a stage one pressure sore as a persistent area of redness. A stage two, she said, is when there is superficial loss of tissue. It is open, but not deep. A stage three is deeper than a stage two, and involves at least a partial thickness of the underlying tissue. A stage four is a full loss of tissue that can involve the muscle and reach the underlying bone. Tr. I at 191.

9. The restraint free alarm was described as a 3" by 4" device (box) that is attached to a solid surface by way of a velcro, clip or hook. The string connected to the box is attached to the resident's clothing so that when the resident rises or moves enough to stretch the string taut, it snaps out of the box and alarm sounds.

10. The notice of deficiencies refers to this Example under Tag F330 as involving R141 instead of R159. I allowed a correction to this typographical error at the hearing based on Petitioner's recognition in its plan of correction that the deficiency considered here referred to R159. Tr. I at 65; CMS Ex. 9, at 58, 253-254.

11. The regulatory factors to consider in determining the amount of the CMP include the facility's history of noncompliance, the scope and severity of the deficiencies, the facility's culpability, the facility's financial condition, and the factors specified in 42 C.F.R. § 488.404.