CASE | DECISION |JUDGE | FOOTNOTES

Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD
Civil Remedies Division
IN THE CASE OF  


SUBJECT:

The Windsor House,

Petitioner,

DATE: May 12, 2003
                                          
             - v -

 

Centers for Medicare & Medicaid

 

Docket No.C-99-227
Decision No. CR1039
DECISION
...TO TOP

DECISION

I decide that Petitioner, The Windsor House, was not in compliance with federal participation requirements. Consequently, the Centers for Medicare & Medicaid Services (CMS, formerly known as the Health Care Financing Administration or HCFA) (1) had the authority to impose a civil money penalty (CMP) of $5,000 per day, from November 18, 1998 through November 23, 1998, for each of the days that immediate jeopardy to residents' health and safety existed; $1,000 per day from November 24, 1998 through December 10, 1998; and $250 per day from December 11, 1998 through December 16, 1998. I also decide that the CMPs that were imposed against Petitioner were authorized and reasonable.

I. Background

Petitioner is a nursing facility located in Whites Creek, Tennessee. From November 16 through November 18, 1998, the Tennessee Department of Health (State agency) conducted an annual survey of Petitioner and determined that Petitioner was not in substantial compliance with the federal participation requirements of the Medicare and Medicaid programs. By letter dated November 25, 1998, CMS notified Petitioner that, based on the survey that was conducted on November 18, 1998, by the State agency, it was imposing, among other remedies, a CMP of $5,000 per day, effective November 18, 1998. The State agency conducted a revisit survey from December 9 through December 10, 1998, and determined that as of November 24, 1998 conditions no longer constituted immediate jeopardy to resident health and safety. A follow-up survey was conducted on January 13, 1999, and the State agency determined that Petitioner had achieved substantial compliance with federal requirements.

However, by letter dated March 2, 1999, as amended on July 21, 2000, CMS determined that Petitioner had achieved substantial compliance with federal requirements effective December 17, 1998. This amended letter showed that the CMPs imposed during the period of noncompliance were calculated as follows: $5,000 per day from November 18, 1998 through November 23, 1998; $1,000 per day from November 24, 1998 through December 10, 1998; and $250 per day from December 11, 1998 through December 16, 1998.

By letter dated January 19, 1999, Petitioner filed a hearing request. This case was assigned to Administrative Law Judge (ALJ) Steven T. Kessel and subsequently reassigned to me for hearing and decision. The hearing in this case took place in Nashville, Tennessee, from July 25 through July 27, 2000.

At the hearing the parties offered exhibits to be put into evidence. Petitioner offered into evidence 29 exhibits, P. Exs. 1 - 29. CMS offered into evidence 61 exhibits, CMS Exs. 1 - 61. I admit into evidence P. Exs. 1 - 29 and CMS Exs. 1 - 61.

The preponderance of the evidence standard is applied to resolve disputed issues of fact, except as provided by 42 C.F.R. § 498.60(c)(2), which states that in CMP cases, CMS's determination as to the level of noncompliance of a provider must be upheld unless it is clearly erroneous. CMS bears the burden of coming forward with evidence sufficient to establish a prima facie case that the provider was not in substantial compliance with the participation requirements at issue. Once CMS has established a prima facie case, the provider has the ultimate burden of persuasion: to prevail, the provider must prove by a preponderance of the evidence that it was in substantial compliance with each participation requirement at issue. Hillman Rehabilitation Center, DAB No. 1611 (1997), aff'd, Hillman Rehabilitation Center v. DHHS, No. 98-3789 (GEB), slip op. at 25 (D.N.J. May 13, 1999).

Petitioner argues that there was no testimony at hearing to corroborate portions of CMS's Statement of Deficiencies (2567) and some of CMS's other exhibits. Petitioner argues that the exhibits in question constituted impermissible hearsay and that I should not admit them into evidence. Petitioner's position is that as to those residents and deficiencies for which no testimony was presented at hearing, CMS has failed to present enough evidence to establish a prima facie case and that under Hillman, it is entitled to a decision in its favor concerning those residents and deficiencies. Petitioner misunderstands the Hillman decision. Hillman concerns the parties' burden of proof but does not dictate what kind of evidence can be used to fulfill that burden of proof. Even if these exhibits are hearsay, I am allowed to consider hearsay.

I routinely admit hearsay evidence in hearings involving CMS. The traditional reason for not admitting hearsay - that members of a jury might be prejudiced by evidence that is inherently unreliable - is not a factor in these cases. However, the fact that I admit hearsay does not mean that I find it necessarily to be credible. There are valid reasons which underlie a general rule of evidence against admitting hearsay. Much hearsay is unreliable, particularly when relying on uncorroborated complaints made by residents to surveyors. CMS's Statement of Deficiencies often includes statements that can be verified by other evidence, for example, parts of a resident's medical record that was submitted as an exhibit. Therefore, I am admitting into evidence those exhibits to which Petitioner objects. The weight I give to those exhibits will be determined by how credible I find the evidence within them.

Petitioner also argues, in footnote 9 of its initial post-hearing brief, that it objects to the presentation of evidence on Resident 2 (R2) for the reason that Petitioner was not provided with notice of the issues that would be presented prior to the presentation of testimony at the hearing, and was thus denied due process of law. Petitioner maintains that there were no specific findings listed in the 2567 for R2, although evidence was presented at the hearing. Petitioner Brief, at 13.

CMS submitted exhibits relating to R2 in its initial exchange of exhibits with Petitioner. Petitioner also submitted exhibits relating to R2 in its initial exchange of exhibits. CMS subsequently made a motion to supplement its exhibit list with 33 new exhibits, which included additional documents relating to R2. Petitioner filed an objection to the proposed supplemental exhibits, making the argument, among others, that to allow CMS to supplement its exhibit list would be prejudicial and violate all notions of due process. I issued a ruling indicating that the supplemental exhibits would be allowed, but the hearing would be rescheduled to allow Petitioner time to review and analyze the additional exhibits. The ruling also set a new date for the filing of objections to the authenticity of proposed exhibits.

On the new date set for objections to the authenticity of exhibits, Petitioner filed objections to CMS's exhibits based on hearsay, relevance, and also that certain exhibits which it claimed were for residents that were not cited in the relevant surveys in this case should be excluded. Petitioner referred to these residents and to the exhibits pertaining thereto as "uncited resident exhibits." None of Petitioner's objections challenged the authenticity of CMS's exhibits. CMS responded indicating that the residents to which Petitioner was referring were relevant to prove certain specific tags. I conducted a prehearing conference on July 20, 2000, to address the objections and instructed CMS to file a document identifying the specific regulatory violation which related to the residents Petitioner identified as "uncited residents." CMS was ordered to provide this information so that Petitioner would be more fully informed as to which regulatory violation related to which specific resident. CMS filed and faxed the requested information to Petitioner on the same day. CMS's second amendment to the response to Petitioner's objections included additional specific information regarding R2.

At hearing, Petitioner conducted substantive cross-examination of the witness called to testify about issues relating to R2. Petitioner also submitted a reasoned and informed argument, citing its own exhibits, in its post-hearing brief concerning the regulatory violations involving R2

Petitioner was fully informed of the issues and regulatory violation relating to R2 prior to the hearing. Petitioner's specific objection is that it was not provided notice of the issues that would be presented prior to the presentation of testimony at the hearing and that it was thus denied due process of law. I find this objection to be without merit.

At the end of the hearing in this matter the parties were ordered to file post-hearing briefs. CMS and Petitioner filed a post-hearing brief and a reply brief. Two attachments accompanied CMS's post-hearing reply brief. These attachments were not admitted into evidence. CMS filed a post-hearing sur-reply brief, as well.

II. Applicable law

Skilled nursing facilities, such as Petitioner, participate in the Medicare program by entering into provider agreements with the United States Department of Health and Human Services (DHHS). Requirements of participation are imposed by statute and regulation. Social Security Act (Act), section 1819 [42 U.S.C. § 1395i-3]; 42 C.F.R. Parts 483, 488, and 489.

The regulations define "substantial compliance" as follows: "Substantial compliance means 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.

The regulations define "immediate jeopardy" as follows: "Immediate jeopardy means a situation in which the provider's noncompliance with one or more requirements of participation has caused, or is likely to cause, serious injury, harm, impairment, or death to a resident." 42 C.F.R. § 488.301.

The regulations specify that a CMP that is imposed against a provider will fall into one of two broad ranges of penalties. 42 C.F.R. §§ 488.408, 488.438. The lower range of CMPs, 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 upper range of CMPs, from $3,050 per day to $10,000 per day, is reserved for deficiencies that constitute immediate jeopardy to a provider's residents, and, in some circumstances, for repeated deficiencies. 42 C.F.R. §§ 488.438(a)(1)(i), (d)(2).

III. Issues, findings of fact and conclusions of law

A. Issues

The issues are whether the provider was in substantial compliance with Medicare participation requirements at the time of each of the surveys and whether the amounts of the CMPs imposed were reasonable.

B. Findings of fact and conclusions of law

In this section, I address in detail my findings of fact and conclusions of law (Findings) relative to specific deficiencies cited by CMS. I set forth each finding as a separately numbered bolded heading.

The November 18, 1998 survey

1. Petitioner was not in substantial compliance with the regulation concerning nutrition, at an immediate jeopardy level, during the November 18, 1998 survey. 42 C.F.R. § 483.25(i)(1).

CMS found that Petitioner was not in substantial compliance, at an immediate jeopardy level, with the regulation at 42 C.F.R. § 483.25(i)(1), which states:

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 . . .

(i) Nutrition. Based on a resident's comprehensive assessment, the facility must ensure that a resident -

(1) 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.

I note that CMS provided me with the testimony of Ms. Alice Ray, who has 25 years of experience as a dietician and 15 years experience as a surveyor. I find her testimony credible and give it great weight. On the other hand, Petitioner provided me with testimony on these nutrition deficiencies from two licenced practical nurses, Ms. Pamela Franks and Ms. Sherry Pippin, and one registered nurse, Ms. Glenda Duke, who has no specialized training in nutrition and who was Petitioner's Director of Regional Compliance. Ms. Duke's job is to ensure compliance with federal regulations. I find that more weight is due to CMS's witness because of her level of expertise based on her training and experience. The testimony from Ms. Duke and the two licensed practical nurses, none of whom had specialized training in nutrition, was not of the same weight as the testimony of Ms. Ray.

CMS can establish its prima facie case that there was a deficiency with the regulation concerning nutrition in several ways. Petitioner suggests that I should consider only symptoms of malnutrition as a way to determine whether this regulation has been complied with. I reject Petitioner's suggestion. Under federal regulations, the correct standard is "acceptable parameters of nutritional status" not malnutrition. One factor that I may consider is whether CMS can establish that residents experienced unplanned severe weight loss. Both parties agree that severe weight loss can be demonstrated by a loss of more than 5% of body weight in one month, more than 7.5% of body weight in three months, or by more than 10% of body weight in six months. Other factors may be considered when determining if CMS has established a prima facie case. These factors include: whether a resident has fallen below his ideal body weight while under Petitioner's care; whether Petitioner has failed to assist residents who required assistance while eating; whether physician's orders for nutritional supplements were disregarded; whether residents had low protein levels as indicated by a low albumin level; whether Petitioner was slow to react to significant weight loss; whether Petitioner failed to follow its own policies of weekly weighing a resident who has had a significant weight loss; whether Petitioner failed to follow the recommendations of its own dietician concerning a resident who has had a significant weight loss; whether Petitioner stopped trying new interventions for a resident who was experiencing severe weight loss; whether Petitioner discontinued nutritional supplements without providing a substitute for the discontinued supplements for a resident who has had a significant weight loss, and not taking a resident's food preferences into account for a resident who has had a significant weight loss.

I find that CMS has shown that there has been a generalized failure by Petitioner to comply with federal nutritional requirements. Residents 1, 2, 5, 15, 17, 28, 29, and 30 experienced severe, unplanned weight loss. Residents 1 and 15 fell below their ideal body weight. Residents who required assistance with eating (Residents 1, 5, 14, 16) were not given assistance when eating. Resident 1 was not provided with snacks ordered by her doctor. Resident 5 had low albumin levels. Petitioner was slow to react to severe weight loss by Residents 14, 15, and 17. Petitioner failed to follow its own policy for weekly weight with Resident 15. Petitioner failed to follow its own dietician's advice about Resident 2. Petitioner stopped trying new interventions with Resident 1 and discontinued giving Resident 1 a supplement but did not replace the supplement with a substitute supplement.

Petitioner argues, however, that the regulation requires that before a deficiency can be found, the clinical condition of the resident at the time of the weight loss must be such that maintaining acceptable nutritional status is possible. I agree with Petitioner's argument, in part, but I would restate it a way that clarifies the parties' burden of proof. Once CMS has made a prima facie case that nutritional parameters have not been maintained for Petitioner's residents, then Petitioner has the burden of proof to establish, by a preponderance of the evidence, that it was not possible to do so because of a clinical condition. Petitioner is required to do everything in its power to maintain the nutritional status of its residents. The regulation, after all, uses the word "ensure."

Petitioner has not shouldered its burden of proof by a preponderance of the evidence. All Petitioner has shown is that it had some residents who had a difficult time maintaining acceptable nutritional status. Petitioner has failed to show that it did everything within its power to maintain the nutritional status of its residents. CMS considered whether there were factors that made the maintenance of nutritional status impossible. Tr. 108, 170, 174. Ms. Ray, CMS's experienced dietician, testified that there were factors that may have caused some weight loss, "but [the residents] shouldn't have [suffered] the severe weight loss that we saw" if the residents had been properly assessed, monitored, and treated. Tr. 200. Based upon Ms. Ray's expertise and experience in nutrition, I found her testimony to be particularly persuasive.

a. Resident 1 (R1)

R1 was admitted into the facility in December, 1996. In January, 1997, R1 weighed 121 pounds. P. Ex. 6, at 61. Her ideal body weight was in the range of 96 - 125 pounds. By the time of the November 18, 1998 survey, R1 weighed only 78 pounds, having lost 43 pounds in 23 months, a weight loss of 35.5% of her body weight. CMS Ex. 27, at 5.

R1 had five occurrences of severe weight loss in 1997. P. Ex. 6. In January, 1998, R1 weighed 91 pounds. This was the first time she had dropped below her ideal body weight range. Id. R1 had eight occurrences of severe body weight loss in 1998. Id. At the time of the survey, she weighed 78 pounds. However, R1 had two occurrences of weight gain. She gained a little over five pounds from January to February, 1998 and had another five pound weight gain from September to October, 1998. Id. Both of these weight gains demonstrated that she was not so clinically compromised that she could not gain weight. In fact, during her first occurrence of weight gain, her pressure sores were getting worse and she refused to eat occasionally. This showed that her weight gain was not affected by her clinical condition. P. Ex. 6, at 1, 48, 49.

On January 15, 1998, due to this steady weight loss, R1's doctor ordered an increase in calories for lunch and dinner and ordered that R1 should get a snack in the morning and the evening. Id. at 47. However Petitioner's own records show that Petitioner failed to follow the doctor's order, in that R1 was offered an evening snack on January 16 and then not again until March 2, 1998. P. Ex. 6, at 22 - 24. No other new interventions were tried after this date even though R1 continued to lose weight, and, on July 15, 1998, Petitioner discontinued the morning and evening snack which had been ordered by R1's doctor in January. P. Ex. 6, at 28. Also on July 15, 1998, Petitioner discontinued the chocolate supplements and Ensure Plus even though R1 had been consuming much of the Ensure Plus and the snacks from July 1 - 5, 1998. Id. However, there were no doctor's orders in the record indicating that these interventions should be discontinued and no other interventions were adopted in place of the discontinued interventions. In July, 1998, R1 weighed 76 pounds. P. Ex. 6, at 1.

Petitioner also failed to consider critical information about R1's eating history. R1's sister had made the facility aware that R1 had a history of sleeping until noon, snacking in the afternoon, eating dinner, and then snacking until bedtime. P. Ex. 6, at 48; Tr. 458 - 459. According to Alice Ray, a registered dietician, Petitioner may have been successful treating this nutritionally compromised resident had Petitioner considered and acted on this information. Tr. 130. Ms. Ray testified that if a plan had been made to conform to "the habits that she [R1] had formed throughout a lifetime and the plan had been implemented, [the extraordinary weight loss] could have been avoided." Tr. 144. Petitioner failed to structure meal schedules and interventions in accordance with this resident's customary daily routine.

Petitioner points out that R1 was admitted into the facility with a diagnosis of failure to thrive (FTT) which is defined by a patient chronically refusing to eat. It is undeniable that the record shows that R1 was a difficult resident and often refused to eat. P. Ex. 6. Petitioner argues that FTT is a clinical condition that demonstrates that maintaining an acceptable nutritional status for R1 may not have been possible. Further, Petitioner argues that a resident has the right to refuse to eat. Additionally, R1 had pressure sores that developed in late January of 1998 that did not heal until September 1998. Pressure sores made maintaining an acceptable nutritional status harder. Finally, Petitioner argues that CMS should have limited its review of the medical history of R1 to the six month period prior to the November 1998 survey instead of going back to the time R1 was admitted.

I note first that Petitioner does not present any support for the view that surveyors should limited their review to a six month period. In fact, Ms. Ray testified that surveyors are required to evaluate the care facilities give from the last survey to the current survey. Tr. 128.

Petitioner's other arguments are not supported by the evidence. At most, Petitioner has shown that it may have been difficult for R1 to maintain an acceptable nutritional status but not that it was impossible to do so. Petitioner never called any witnesses with training and expertise to establish that the weight loss was due to clinical conditions instead of Petitioner's practices. The mere presence of a significant clinical condition, without additional evidence, does not prove that maintaining acceptable nutritional status is not possible. Petitioner disregarded R1's physician's orders for snacks, a practice its own compliance officer condemned. Tr. 575. R1's physician's order for snacks was disregarded from mid-January and throughout all of February. P. Ex. 6, at 22 - 23. During this time, February, 1998, R1 lost almost 10 pounds, which was 10% of her body weight and fell below her ideal body weight. Petitioner's compliance officer also admitted that Petitioner had other snacks and supplements that it could have given to R1, but it failed to do so. Tr. 578.

Petitioner failed to substantially comply with the regulation at 42 C.F.R. § 483.25(i)(1) by failing to structure a meal plan that considered R1's eating history, by failing to introduce new interventions, by discontinuing supplements without a doctor's order, and by failing to offer different supplements that were available.

b. Resident 14 (R14)

R14, a 5'7" woman, weighed 95 pounds on admission to the facility on September 22, 1998. P. Ex. 10, at 2. She weighed only 81% of her ideal body weight, which was between 118 - 150 pounds. Id. R14 had a history of alcoholism and anorexia but this information was not included in R14's minimum data set (MDS). CMS Ex. 10, at 10. One month after admission, in October, 1998, her weight dropped to 84 pounds. P. Ex. 10, at 1.

42 C.F.R. § 483.25(i)(1) requires that a resident maintain acceptable parameters of nutritional status based on a comprehensive assessment. However, neither the alcoholism nor the anorexia were mentioned on R14's MDS, which is used to create a resident's care plan. Failure to mention such critical information resulted in Petitioner not taking more aggressive measures in R14's case, which might have avoided such a drastic weight loss in R14's first month.

In addition, R14 had chronic daily pain in her bones, chest and joints. R14's pain was not mentioned on her nutritional assessment. Tr. 147. This impacts a nutritionally compromised resident in that such a resident needs assistance with feeding. Tr. 146. However, a surveyor, who had 40 years experience as a dietician, observed R14 eating without assistance and continuously complaining of pain. Tr. 149. Petitioner improperly assessed R14's need for assistance in feeding. Id.

Further, despite R14's drastic weight loss in October, 1998, Petitioner did not have R14 evaluated by a registered dietician until the last week in November, 1998 (P. Ex. 10, at 4) and R14 was not offered a nutritional supplement until the third week of November. Id. at 11, 21. Petitioner was slow to react to R14's nutritional needs.

Petitioner argues that R14 was fully competent, a former nurse, who knew about the consequences of not eating and who knew she could refuse to eat and also refused to consent to tube feedings. R14 suffered from protracted alcoholism and anorexia. P. Ex. 10, at 8. In addition, R14 had a fractured shoulder and suffered from depression, clinical conditions that make it more difficult to maintain an acceptable nutritional status. P. Ex. 5. Again, the mere existence of clinical conditions that make it difficult to maintain acceptable nutritional status, by itself, is not enough to meet Petitioner's burden of proof. Further, Petitioner claims it made multiple interventions to encourage R14 to eat and was monitoring R14's nutritional status and reporting this to R14's physician. However, the evidence does not support this claim.

The facility's own documentation showed that Petitioner sometimes failed to give meals to this resident and failed to offer substitutes. P. Ex. 10, at 6, shows that Petitioner did not offer breakfast substitutes for 12 days in November, 1998, and failed to offer substitutes at lunch for more than half of November, even though at no time in November did this resident consume more than 50% of her breakfast or lunch, and many times consumed only 25% of her meals. P. Ex. 10, at 6, also shows that R14 refused her evening meal on November 8, 1998, and Petitioner failed to offer a substitute meal. Under Petitioner's care plan, R14 was supposed to be offered a substitute when she consumed less than 25% of her meal. There were many times when no meal at all was offered to R14. No meal was offered on: November 11 (for both lunch and dinner); November 12 (for breakfast or lunch); all of November 13; all of November 16; November 17 (for breakfast or lunch); November 28 (for dinner); November 29 (for dinner); and November 30 (for lunch or dinner). No substitute was offered for any of these meals except for November 16. R14's weight went from 84 pounds in November to 77 pounds in December. P. Ex. 10, at 4.

c. Resident 5 (R5)

R5 weighed 198.5 pounds on admission on October 2, 1998. P. Ex. 8, at 1. In November, 1998, R5 weighed 167 pounds, a loss of over 30 pounds in one month. Id. R5 ate some meals but also was tube fed. Although R5 was overweight (her ideal weight was between 118 and 150 pounds), she was malnourished, as indicated by her low albumin level. P. Ex. 8, at 3. Low albumin levels mean low protein levels which make individuals more prone to infection and pressure sores. Tr. 309. R5's tube feeding regimen did not provide enough calories nor enough protein and was less than what was recommended by Petitioner's dietician. Tr. 310 - 311; P. Ex. 8, at 3. As a result, R5 received inadequate nutrition by tube feeding.

R5's inadequate tube feeding was not compensated by R5 eating her own meals because she did not receive the assistance she required in feeding. R5 had tremors in both hands and her left hand was contracted. CMS Ex. 27, at 6. The surveyors observed that R5 did not receive assistance with her morning or afternoon meals on November 17, nor did she receive assistance the next morning with her meal. CMS Ex. 40, at 6. Petitioner failed to ensure that R5 received adequate nutrition by tube feeding or by mouth.

Petitioner argues that R5 was receiving adequate nutrition from a combination of tube feedings, pleasure meals and house supplements. Petitioner Brief, at 31. Petitioner claims that Petitioner's weight fluctuation was due to cellulitis and associated fluid retention and loss. Tr. 418 - 419, 536. Petitioner also points out that R5 had a pressure sore that made it difficult to maintain R5's nutritional status. Petitioner, however, has not shouldered its burden of proof by a preponderance of the evidence.

d. Resident 15 (R15)

R15, a 90-year-old woman, weighed 107 pounds in January, 1998, but her weight dropped steadily and by, October, 1998, she weighed only 86 pounds. P. Ex. 11, at 1. R15 had several periods during this time of severe weight loss. The first such period was in May, 1998. In the three months before May, R15 lost 10.4% of her body weight which is considered a severe weight loss. However, Petitioner did not implement measures to alleviate R15's severe weight loss until September, 1998. Weekly weights were ordered in September. P. Ex. 11, at 3. On November 5, 1998, supplements were ordered three times a day. P. Ex. 11, at 4. R15 consumed almost all of the supplements each time a supplement was offered. P. Ex. 11, at 5. Petitioner failed to respond to R15's weight loss for a four month period from May through August, 1998.

Petitioner argues that it intervened in a timely manner. Petitioner points out that R15 had episodes of refusing to eat and developed a pressure sore at the end of September which is a clinical condition that demonstrates that maintenance of acceptable nutritional parameters may not be possible.

However, I find that a four month period (from May through August, 1998) before intervening is not timely intervention. This is particularly true since R15 consumed almost all of the supplements offered to her in November and, had Petitioner tried offering supplements earlier, it is possible that such a severe weight loss could have been avoided. Id.

e. Resident 2 (R2)

R2 was dependent on a feeding tube for her nutrition. R2 weighed 135 pounds in February, 1998, but weighed 109 pounds at the time of this survey. P. Ex. 7, at 1. R2 had undergone several periods of severe weight loss during 1998. On November 2, 1998, the dietician recommended increasing the tube feeding. P. Ex. 7, at 14. Despite this recommendation, Petitioner did not increase the tube feeding. Ms. Younger, a surveyor, talked with Dr. Anderson, R2's attending or facility physician, about R2. Tr. 237. Dr. Anderson indicated that he did not increase the tube feeding for R2 because he was concerned with regurgitation that would lead to aspiration. Tr. 237. Despite the supposed concern about regurgitation, there was no documentary evidence that this resident had such a problem anywhere in the nurses' notes. Tr. 235, 281; P. Ex. 7, at 6 - 8, 11, 15. After Dr. Anderson's meeting with Ms. Younger, he indicated that he would increase the tube feeding on a trial basis. Tr. 237. This was not refuted by Petitioner. However, Ms. Younger never saw any indication that Dr. Anderson ordered a change in tube feeding. P. Ex. 7, at 13, 22 - 25; Tr. 282 - 286.

In addition to failing to give this resident enough nourishment by feeding tube, despite the recommendation of its own dietitian, Petitioner incorrectly assessed R2's weight status in her quarterly assessment on October 26, 1998. The dietitian indicated that there was no change in R2's weight status on the October 26, 1998 assessment, even though on October 25, 1998, just one day before, a nine pound loss was noted. P. Ex. 7, at 1, 13; Tr. 229 - 231.

Petitioner argues that the concern about regurgitation was supportable, and that this resident also had a pressure sore problem. This argument is meritless since, had this resident had a significant regurgitation problem, Dr. Anderson would not have indicated to Ms. Younger that he would increase the tube feeding even on a trial basis.

f. Other Residents

Other residents at The Windsor House (Residents 7, 16, 17, 26, 27, 28, 29, 30, and 31) also suffered significant weight loss. Resident 7 lost 10% of her body weight during 1998. CMS Ex. 27, at 7. Resident 16 lost 7.8% of her body weight during 1998. Id. at 8. Her care plan required assistance with feeding but she was observed at lunch not receiving any assistance. CMS Ex. 51, at 7, 11. Resident 17 lost 20.5% of her body weight during 1998. CMS Ex. 27, at 8. Most of her wight loss occurred prior to April, but Petitioner did not intervene until September. P. Ex. 13, at 3. House supplements were ordered in October, and were given for only three days, even though there was no evidence that an order was given to discontinue the house supplements. CMS Exs. 27, 52. Resident 26 lost 11.5% of her body weight during 1998. CMS Ex. 27, at 9. Resident 27 lost 7.8% of her body weight between August and October 1998. Id. Resident 28 lost 20% of her body weight during 1998. Id. Resident 29 lost almost 20% of her body weight during 1998. Id. Resident 30 lost 14% of her body weight during 1998. Id. Resident 31 lost 10% of her body weight during 1998. Id.

Petitioner failed to properly assess (as evidenced by its care of R14), treat (as evidenced by its care of R2 and R5), monitor and address weight loss quickly (as evidenced by its care of R15), and failed to follow doctor's orders, failed to effectively plan for and exhaust all treatment options (as evidenced by its care of R1) for its residents. There were significant problems with feeding residents who required assistance. Tr. 200 - 201. In particular, there was not enough staff in the dining room to feed all the residents who required assistance. Tr. 34 - 38, 124 - 125, 201. Many of the residents, such as R1, R5, R14, R16, R17, and R31, who all lost severe amounts of weight, required assistance with feeding or were dependent on Petitioner for feeding. In addition, food trays were misdelivered throughout the facility. Tr. 110. Food preferences were not honored. Tr. 113 - 114. Food was cold when served. Tr. 122.

Many of the residents involved in the survey had medical conditions that could affect their ability to maintain their weight. The survey team, composed in part of registered nurses and a dietitian, however, considered the medical conditions of these residents and determined that although some weight loss might be expected, the residents should not have had such severe weight losses. Tr. 199 - 200. This testimony was persuasive and unrebutted by Petitioner.

I find that Petitioner's failure to comply with the regulation at 42 C.F.R. § 483.25(i)(1) put its residents in immediate jeopardy. Extreme weight loss is dangerous, particularly for frail residents of a nursing home. It affects an organ's ability to function, makes it difficult to fight infection, promotes skin breakdown and the development of pressure sores, and can ultimately make elderly people more likely to die. Tr. 106 - 108.

2. Petitioner was not in substantial compliance with the regulation concerning personal privacy during the November 18, 1998 survey. 42 C.F.R. § 483.10(e).

CMS found that Petitioner was not in substantial compliance with the regulation at 42 C.F.R. § 483.10(e), which states:

Privacy and Confidentiality. The resident has the right to personal privacy and confidentiality of his personal and clinical records.

(1) Personal privacy includes accommodations, medical treatment, . . . personal care, . . . but this does not require the facility to provide a private room for each resident.

Petitioner failed to use and provide privacy curtains to ensure the personal privacy of its residents. A surveyor testified that when she entered a communal bathroom, after knocking and receiving no response, she encountered a female resident who was nude from the waist up being attended to by a staff member. However, the staff member had not pulled the privacy curtain to shield the resident from the view of anyone entering the bathroom. Tr. 294; CMS Ex. 30, at 22. Petitioner claims that it was the surveyor who violated the resident's privacy, not the facility, because the bathrooms are set up in such a way that only staff entered the bathrooms. Petitioner Brief, at 43. Petitioner's argument is without merit, because a resident's right to privacy extends to other staff members who are not actively treating that resident and to other residents.

In addition, a staff member was providing personal care to Resident 13 (R13) and exposed his buttocks to public view because the staff member had not pulled the resident's privacy curtain. CMS Ex. 48, at 4. Further, it was observed that the privacy curtain could not be extended far enough to reach the foot of the resident's bed. Id.

There were 18 rooms that had privacy curtains that were inadequate to shield residents from view. Privacy curtains were too short to surround the resident's beds. CMS Exs. 30, 38, 48. Other privacy curtains were missing, torn, or hanging from too few hooks to provide privacy. CMS Exs. 30, 38; Tr. 294.

The potential for harm to the residents was more than minimal. Residents could suffer humiliation and feel degraded by having their unclothed bodies exposed to the view of other residents, staff members who were not actively treating them, and to visitors at the facility.

3. Petitioner was not in substantial compliance with the regulation concerning housekeeping during the November 18, 1998 survey. 42 C.F.R. § 483.15(h)(1).

CMS found that Petitioner was not in substantial compliance with the regulation at 42 C.F.R. § 483.15(h)(1), which states that the facility must provide a safe, clean, and homelike environment.

Evidence showed that the facility was filthy and in disrepair. Many rooms contained trash, dust, and dried food on floors, over-bed tables, and feeding poles. Tr. 219, 293; CMS Ex. 30, at 22. Nasal cannulas used by oxygen-dependent residents were left uncovered. Tr. 296; CMS Ex. 47, at 4. A nasal cannula was found dirty and on the floor. Id. A dirty bed pan was lying on the floor. CMS Ex. 27, at 3; CMS Ex. 30, at 9.

Fixtures and furniture were broken or in disrepair. The heating/air conditioning unit in one room was broken. CMS Ex. 30, at 11. Dressers were scarred and broken in rooms 33 and 41 and the front of a dresser drawer was missing in room 13. CMS Exs. 30, 33, 37. There were holes in the walls in two rooms. CMS Ex. 30. One room had a strong odor of urine during the entire survey. Id.

The potential for harm to the residents was more than minimal. Residents could hardly view their environment as clean and homelike. Residents were ashamed of the conditions in which they lived, and were reluctant to ask friends to visit. CMS Ex. 31, at 2. In addition, the unsanitary conditions could be a source of infection.

4. Petitioner was not in substantial compliance with the regulation concerning accident hazards during the November 18, 1998 survey. 42 C.F.R. § 483.25(h)(1).

CMS found that Petitioner was not in substantial compliance with the regulation at 42 C.F.R. § 483.25(h)(1), which states:

The facility must ensure that . . . [t]he resident environment remains as free of accident hazards as is possible.

Evidence showed that Petitioner left hazardous chemical solutions in unlocked areas that were accessible to residents. During the survey, the beauty center at the facility was entered and several hazardous items were found in an unlocked cabinet. The items included instant cleaner germicidal spray, an unlabeled bottle of pink liquid, and four bottles of Sharp PPC Black Noir hair toner. CMS Ex. 30, at 32. Petitioner's administrator immediately removed these hazardous solutions when informed of the situation.

Two days later, during the same survey, an unattended, unlocked housekeeping cart was observed outside a resident's room and remained there while the housekeeping staff cleaned four resident rooms. CMS Ex. 27, at 4; CMS Ex. 30, at 36. The unlocked, unattended housekeeping cart contained two cans of furniture polish, germicide, glass cleaner and air freshener. Id.

The evidence shows that unattended and unsecured hazardous chemicals were left in an area accessible to residents. Many nursing home residents are confused or cognitively impaired and could have done harm to themselves or others if they had gotten hold of hazardous chemicals. Therefore, there was a risk of more than minimal harm to Petitioner's residents.

5. Petitioner was not in substantial compliance with the regulation concerning sufficient staffing during the November 18, 1998 survey. 42 C.F.R. § 483.30.

CMS found that Petitioner was not in substantial compliance with the regulation at 42 C.F.R. § 483.30, which states:

Nursing Services. The facility must have sufficient nursing staff to provide nursing and related services to attain or maintain the highest practicable physical, mental, and psychosocial well-being of each resident, as determined by resident assessments and individual care plans.

The evidence clearly shows that Petitioner was inadequately staffed to provide the nursing and other related services required by its residents. In particular, I have already discussed the failure of Petitioner to provide residents, who required assistance to eat or who were completely dependent on Petitioner in order to eat, the assistance required. Evidence was presented to show that Petitioner's failure to provide assistance in this area was based on Petitioner's insufficient staffing. Petitioner failed to maintain sufficient numbers of staff whose duties included feeding residents. Tr. 160 - 161. At one time, 15 - 20 residents who required assistance in feeding were getting help from only a single nurse aide. Tr. 124. At another time, 10 residents were observed being fed by only one nurse aide. CMS Ex. 52, at 21. R5, for example, was totally dependent on staff for assistance with feeding. During both breakfast and lunch on November 18, 1998, a surveyor observed that R5 got no assistance with feeding at all. CMS Ex. 40, at 5 - 6; CMS Ex. 30, at 5. Another example is R14, whose care plan indicated that she required assistance while eating. However, R14 was observed not receiving any assistance during the evening meal on November 17, 1998. Tr. 120; CMS Ex. 30, at 4. The same was true for R1 and R15. P. Ex. 1, at 7 - 8, 10; P. Ex. 11, at 6. Family members would help feed the residents. Tr. 61 - 62. A family member testified that she frequently found her mother-in-law covered with old, dried feces because of the inadequate staffing. Tr. 46 - 48; CMS Ex. 35, at 4. During the survey, staff members told surveyors that there was inadequate staffing and this was supported by testimony at the hearing. Tr. 300 - 302, 455 - 456; CMS Ex. 30, at 25.

Petitioner's assignment book also revealed evidence of insufficient staffing. The Director of Nurses stated that the day, afternoon and evening shifts should be staffed with 14, nine, and five nurses aides respectively. Tr. 303 - 304. A surveyor noted at least 10 dates when the day shift was understaffed during the month before the survey. Instead of 14 nurses aides during the day time shift, there were only four - five nurse aides present. CMS Ex. 30, at 26. At least six dates were noted, during the month before the survey, when only three - four nurse aides were present on the night shift, where there should have been five nurse aides. Id.

Petitioner argues that the facility met the minimum State staffing requirement, in that the State standard was two hours per patient day, and that the facility exceeded the standard by providing two and a half hours per patient day. Tr. 333, 497 - 498. Petitioner claims that staff cannot sit with each resident for an hour at every meal to get the resident to eat because there is insufficient reimbursement to facilities to provide that type of one-on-one care and that the regulations do not require that type of care. Petitioner Brief, at 48. However the regulation at 42 C.F.R. § 483.30 clearly requires that a facility must have sufficient nursing staff to provide nursing and related services to attain or maintain the highest practicable physical, mental, and psychosocial well-being of each resident, as determined by resident assessments and individual care plans. Petitioner clearly failed to maintain the highest practicable physical well-being of each resident. Due to the inadequate staffing, many residents were underfed and did not get the nutrition that they required. There was a risk of more that minimal harm due to Petitioner's failure to provide adequate staff.

6. Petitioner was not in substantial compliance with the regulation concerning palatable food served at proper temperatures during the November 18, 1998 survey. 42 C.F.R. § 483.35(d).

CMS determined that Petitioner was not in compliance with the regulation at 42 C.F. R. § 483.35(d), which states that facilities are to ensure that:

Each resident receives and the facility provides -

(1) Food prepared by methods that conserve nutritive value, flavor and appearance; and

(2) Food is palatable, attractive and at a proper temperature.

Cold food was a consistent complaint in the surveyor interviews with residents. CMS Ex. 27, at 10, 13; CMS Ex. 30, at 10; CMS Ex. 31, at 6, 10, 14, 23; CMS Ex. 43, at 5. Surveyors also observed cold food being served to residents. CMS Ex. 30, at 5. The evidence shows that food was not delivered to where the residents were and that food was left on unheated carts for extended periods of time and, therefore, would get cold. Tr. 110, 122. On November 17, 1998, a surveyor noted that food was given to some of the residents a full hour after the meals left the dietary department. CMS Ex. 30, at 4.

The regulation requires that palatable food be served at proper temperatures. This encourages residents, particularly the ones who are malnourished, to eat. Tr. 560 - 561. Petitioner's failure to comply with this regulation posed a risk of more than minimal harm, because residents are unlikely to consume all the food that was planned for them by the dietary department and would not maintain the level of nutrition that they required. One surveyor, in fact, observed a resident who refused to eat lunch at all because the food was too cold. CMS Ex. 30, at 5.

7. Petitioner was not in substantial compliance with the regulation concerning meal times during the November 18, 1998 survey. 42 C.F.R. § 483.35(f)(1) - (3).

CMS determined that Petitioner was not in compliance with the regulation at 42 C.F.R. § 483.35(f)(1) - (3), which states:

Frequency of meals. (1) Each resident receives and the facility provides at least three meals daily, at regular times comparable to normal mealtimes in the community.

* * *

(3) The facility must offer snacks at bedtime daily.

The residents complained to the surveyors, and Petitioner did not dispute, that meals were served later than the residents were used to before they entered the facility. CMS Ex. 27, at 13 - 15. For example, one surveyor noted that one resident had still not been served breakfast at 9:40 a.m. CMS Ex. 60, at 1; Tr. 105. In another instance, meal service began at 6:05 p.m. but, because two trays were sent to the dining room for residents who were in their rooms, these two residents were not served until 7:40 p.m. Tr. 117; CMS Ex. 30, at 4. The record also reflects that a family member of a resident complained to the State survey agency that dinner was served as late as 7:30 p.m. CMS Ex. 28, at 1.

Eating late or at irregular times poses a risk of more than minimal harm because it puts residents at risk for malnutrition. Residents who are forced to wait for meals past their customary time may lose their desire to eat and may, therefore, consume less of their meals. Tr. 118. In addition, if residents are upset because they are not served meals when they are hungry, they may simply not eat as well. Tr. 171. In particular, residents who are supposed to be given supplemental feedings in the evenings (at 9:00 p.m.) to increase their intake of proteins and calories, would not eat these supplementary feedings because they had eaten a late dinner. Tr. 118.

8. Petitioner was not in substantial compliance with the regulation concerning pharmacy services during the November 18, 1998 survey. 42 C.F.R. § 483.60(e).

CMS determined that Petitioner was not in compliance with the regulation at 42 C.F.R. § 483.60(e), which states:

Storage of Drugs and Biologicals.

(1) In accordance with State and Federal Laws, the facility must store all drugs and biologicals in locked compartments under proper temperature controls, and permit only authorized personnel to have access to the keys.

On the morning of November 18, 1998, an unlocked medication cart was observed in the middle of a hallway. CMS Ex. 30, at 25; Tr. 299. This cart was unlocked and unattended and a confused wandering resident was observed near the cart. Id.

Failure to comply with this regulation could result in a resident accidentally ingesting potentially dangerous medications. Tr. 299. Petitioner did not offer any evidence in rebuttal. This poses a risk of more than minimal harm.

9. Petitioner was not in substantial compliance with the regulation concerning the physical environment during the November 18, 1998 survey. 42 C.F.R. § 483.70(f).

CMS determined that Petitioner was not in compliance with the regulation at 42 C.F.R. § 483.70(f), which states:

Resident Call System. The nurse's station must be equipped to receive resident calls through a communication system from -

(1) Resident rooms; and

(2) Toilet and bathing facilities.

Petitioner did not have a call bell system in a restroom in the lobby. This restroom was accessible to residents and residents were observed in this area. Tr. 220; CMS Ex. 27, at 18; CMS Ex. 30, at 19. Petitioner did not present any evidence in rebuttal. Residents could have entered this restroom and would not have had anyway to contact the nurse's station in the event of an emergency. This poses a risk of more than minimal harm.

The December 9, 1998 revisit survey

During the December 9, 1998 revisit survey, CMS determined that the severe nutrition and weight loss deficiencies initially cited during the November 18, 1998 survey ceased as of November 24, 1998 to constitute immediate jeopardy. However, four deficiencies were found during the revisit survey.

10. Petitioner was not in substantial compliance with the regulation concerning housekeeping during the December 9, 1998 revisit survey. 42 C.F.R. § 483.15(h)(1).

CMS determined that Petitioner was not in compliance with the regulation at 42 C.F.R. § 483.15(h)(1), which states that the facility must provide a safe, clean and homelike environment.

Resident 7's (R7) room had a suction machine that was dirty, an open water container filled with suctioning solution, and a suction catheter that was left uncovered on a bedside table. Tr. 356; CMS Ex. 1, at 56. R7 had been recently readmitted to this facility following a hospitalization for a respiratory infection. Tr. 356. These conditions created a possible source of infection and placed R7, who was particularly susceptible to reinfection, at risk for more than minimal harm. Tr. 356 - 357. Petitioner did not offer any evidence in rebuttal.

11. Petitioner was not in substantial compliance with the regulation concerning quality of care (compliance with physician's order) during the December 9, 1998 revisit survey. 42 C.F.R. § 483.25.

CMS determined that Petitioner was not in compliance with the regulation at 42 C.F.R. § 483.25, which states:

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.

The evidence shows that Petitioner failed to act on a physician's order prescribing pain medication, thereby causing R7 to experience severe pain. P. Ex. 3, at 3 - 4; CMS Ex. 12, at 9; Tr. 358 - 361. R7 was experiencing extreme pain and had requested medication, but was erroneously told that he could only have Tylenol. R7's physician had ordered a Duragesic patch, a medicated patch for pain, on December 8, 1998, the day R7 was admitted to the facility. Tr. 361; CMS Ex. 12, at 6; P. Ex. 20, at 1. This medicated patch works on a time release and must be given to a resident before the pain starts. R7's physician must have anticipated that R7 would begin to have pain within a day. Petitioner had failed to send the Duragesic patch order to the pharmacy supplier. Tr. 361 - 362. Once this was pointed out to the nursing staff by the surveyor, the Duragesic patch was ordered on December 9, 1998. However, since the facility did not have any medicated patches available, it took an additional day to receive the medicated patch from the pharmacy. Tr. 362. As a result, R7 unnecessarily suffered pain and Petitioner caused R7 to experience actual harm. Petitioner admits that the patch was placed on R7 at 10 a.m., December 10, 1998, the morning after it was ordered from the pharmacy. Petitioner Brief, at 51. Petitioner argues, however, that the patch does not relieve pain entirely and some additional medication is usually required. Since R7 received other pain medication, Tylenol and then Darvocet, Petitioner argues that R7's needs were met. However, R7 did not receive the pain medication patch as ordered by his physician on the day the order was written. R7 received the pain medication patch only after the order was pointed out by the surveyor, thus receiving it two days late, and suffering unnecessarily from avoidable pain due to Petitioner's failure to follow physician's orders.

12. Petitioner was not in substantial compliance with the regulation concerning quality of care (nutrition) during the December 9, 1998 revisit survey. 42 C.F.R. § 483.25(i)(1).

CMS determined that Petitioner was not in compliance with the regulation at 42 C.F.R. § 483.25(i)(1), which states:

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 . . .

(i) Nutrition. Based on a resident's comprehensive assessment, the facility must ensure that a resident -

(1) 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.

CMS determined that although residents' weight had improved since the initial survey, in that seven out of nine residents had gained weight, there were still systemic problems with ensuring that residents were fed and that their likes and dislikes were being honored. Tr. 155, 158, 161; P. Ex. 3, at 5. The facility had to use its administrator, its Director of Nursing, a nurse consultant, a social worker, and a restoration nurse to get the residents fed during one meal. Tr. 158; CMS Ex. 1, at 25. A resident was erroneously served an evening meal and had to reschedule a colonoscopy that was to be performed the next morning. CMS Ex. 1, at 32. Dietary intake cards used to keep track of residents food consumption were not dated, so that it was difficult to keep accurate track of consumption patterns. P. Ex. 3, at 7. Resident likes and dislikes were still not being honored. CMS Ex. 1, at 25; Tr. 158. Resident trays were still being sent to the wrong locations. Id.

These practices pose a risk of more than minimal harm because residents may not receive adequate nutrition and suffer avoidable weight loss. Staff who are taken away from their own jobs to feed residents are neglecting the jobs that they were hired for and this may pose a risk of harm. Postsponing a medically necessary procedure also poses a risk of more than minimal harm.

13. Petitioner was not in substantial compliance with the regulation concerning infection control during the December 9, 1998 revisit survey. 42 C.F.R. § 483.65(a)(1) - (3).

CMS determined that Petitioner was not in compliance with the regulation at 42 C.F.R. § 483.65(a)(1) - (3), which states:

Infection Control.The facility must establish and maintain an infection control program designed to provide a safe, sanitary, and comfortable environment and to help prevent the development and transmission of disease and infection.

(a) Infection control program. The facility must establish an infection control program under which it -

(1) Investigates, controls, and prevents infections in the facility;

(2) Decides what procedures, such as isolation, should be applied to individual residents; and

(3) Maintains a record of incidents and corrective actions related to infections.

Resident 10 (R10) had pressure sores infected with Methicillin Resistant Staphylococcus Aureus (MRSA). CMS Ex. 14, at 4, 16; Tr. 316. MRSA is very contagious and can cause serious complication and death for elderly individuals. Tr. 316. R10's physician had ordered contact isolation for R10. Petitioner had written policies and protocols for not spreading MRSA infection among its residents but these policies were not being followed in regards to R10. Petitioner's infection control policies required that the facility post isolation signs above R10's doorway and bed but, on December 10, 1998, no such signs were posted. Tr. 317 - 318; CMS Ex. 14, at 4, 16, 38. In addition, on December 10, 1998, a nurse aide who had performed personal care for R10 disposed of soiled linens and her dirty gloves in a manner inconsistent with the MRSA policies and protocols. Id. at 16. Petitioner did not present any evidence to disprove these failures.

Instead, Petitioner claims that the infection control policies were no longer needed because the staff of the facility knew, on December 9, 1998, that a wound culture on this resident had come back as negative. The wound culture was ordered on December 9, 1998. Petitioner argues that the facility received a preliminary result by fax of the negative result of the culture on December 9, 1998. Petitioner points to P. Ex. 21, at 1, as evidence that the facility knew that the wound culture result was negative on December 9, 1998. P. Ex. 21, at 1, the final culture report, has two dates on it -December 17, as the date of the final result and December 9, as the date of the preliminary result. However, the date of December 9 on this report is not labeled in any way. There is no indication that this is the date of the preliminary result and could just be the date the culture was ordered or the date the culture was obtained or collected. There is no evidence in the doctor's notes that the culture result had come back as negative on December 9, and nurses' notes for December 9 were not provided to me by Petitioner to support its allegation. Nor did the Director of Nurses mention a negative result when interviewed by the surveyor on December 10, 1998. Instead, the Director of Nurses stated that the signs were not posted because they disturbed the staff. CMS Ex. 14, at 16. I find the statement in lieu of testimony (P. Ex. 22) by the Director of Nursing stating that the facility had received a fax on December 9, 1998, that the wound culture was negative to be self serving. In addition, Petitioner submitted a laboratory summary report on R10 that included a summary of a previous positive wound culture result done in November. P. Ex. 21, at 11. The summary report showed that the November wound culture took two days to perform and indicated that results were called to someone at the facility. This clearly leads to several inferences: a negative wound culture result could not have been faxed as a preliminary result on the same day as it was ordered because the negative result would have taken longer than a positive result because the culture would have to be incubated for a longer period of time to confirm no growth of bacteria; the normal method of communication of results was not by fax; and the absence of the wound culture results done on December 9, 1998, from the summary report, when it should have been available to Petitioner, is very suspicious. In addition, a preliminary result is not final by definition and it would not have made sense to stop infection control measures until a final result had been received. Therefore, Petitioner does not carry its burden by a preponderance of the evidence.

Having appropriate signs would alert staff to the need to use MRSA contact isolation procedures, which require staff to wear gloves and wash carefully after treating an infected resident. Tr. 317. Failure to use signs could cause the spread of a serious infection to other residents or to the staff itself. In addition, disposal of soiled linens and gloves in a manner inconsistent with isolation policies could also cause the spread of MRSA infections. This poses a more than minimal harm to the Petitioner's residents.

14. The amount of the CMP is reasonable.

The regulations specify the factors that I can consider in determining whether the amount of a CMP is reasonable. These factors are: the facility's history of noncompliance, including repeat deficiencies; the facility's financial condition; the factors specified in 42 C.F.R. § 488.404 (including seriousness and scope of deficiencies); and the facility's degree of culpability, which includes, but is not limited to neglect, indifference, or disregard for resident care, comfort, or safety. 42 C.F.R. § 488.438(f)(1) - (4).

The evidence shows that Petitioner had a history of problems with feeding residents and assisting residents who required assistance. Tr. 102. Petitioner also had a history of residents with weight loss problems. Id. Further, Petitioner had a history of having problems with pressure sores and tube feedings. Tr. 116; CMS Ex. 28, at 1.

No evidence was submitted by Petitioner as to its financial condition. It is Petitioner's burden to raise any issue concerning its own financial condition. In the absence of any evidence on this factor, I can assume that Petitioner can afford the CMP imposed.

During November 18 - 23, 1998, CMS imposed a CMP on Petitioner of $5,000 per day because the nutrition related deficiencies were found to be at an immediate jeopardy level. CMPs at an immediate jeopardy level can be in an amount from $3,050 to $10,000 per day. 42 C.F.R. § 488.438(a)(1)(i). The $5,000 CMP per day for the period of immediate jeopardy, therefore, is at the lower end of the permissible range. I also infer culpability on Petitioner's behalf due to the nature of the nutrition related deficiencies and the potentially severe impact on its residents.

After the period of immediate jeopardy had ended, and Petitioner was making progress in correcting its deficiencies, the CMP was reduced to $1,000 per day for the period from November 24, 1998 to December 10, 1998. Again, this is a relatively low amount, since the amount of a CMP permissible for non-immediate jeopardy deficiencies can be from $50 to $3,000 per day. 42 C.F.R. § 488.438(a)(1)(ii). After the revisit survey of December 10, 1998, CMS imposed a CMP on Petitioner of $250 per day for the period of December 11 - 16, 1998. Once again, this was a small CMP considering the allowable range of CMPs and the actual harm caused to one resident who had to endure severe pain due to Petitioner's error. 42 C.F.R. § 488.438(a)(1)(ii).

In light of the facility's past compliance history, the facility's culpability because of the potentially significant impact of these deficiencies on resident health, and the scope and severity of the deficiencies, I find that the CMPs imposed by CMS on Petitioner are reasonable.

IV. Conclusion

I decide that Petitioner was not in compliance with federal participation requirements. In addition, I decide that the CMPs imposed by CMS against Petitioner were authorized and reasonable.

JUDGE
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Alfonso J. Montano

Administrative Law Judge

FOOTNOTES
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1. Since "HCFA" was used to refer to the agency at the time that the actions at issue were taken, references from documents use the old acronym. However, for the sake of clarity, I will refer to the governmental entity and any related documentation as "CMS."

CASE | DECISION | JUDGE | FOOTNOTES