CASE | DECISION | JUDGE

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


SUBJECT:

Britthaven of South Louisville,

Petitioner,

DATE: June 10, 2003
                                          
             - v -

 

Centers for Medicare & Medicaid

 

Docket No. C-01-804
Decision No. CR1053
DECISION
...TO TOP

DECISION

I sustain determinations of the Centers for Medicare & Medicaid Services (CMS) to impose civil money penalties against Petitioner, Britthaven of South Louisville, in amounts of $250 per day for each day of a period that began on March 7, 2001 and which ran through April 9, 2001, and $100 per day for each day of a period that began on April 10, 2001 and which ran through May 24, 2001. I sustain CMS' determination to deny payments for new admissions to Petitioner's facilities during a period that began on May 17, 2001 and which ran through May 24, 2001. I do not sustain CMS' determinations to deny payments for new admissions after May 24, 2001 or to impose civil money penalties after that date because I do not find that Petitioner was out of substantial compliance with Medicare participation requirements after that date.

I. Background

Petitioner is a skilled nursing facility that is located in South Louisville, Kentucky. It participates in the Medicare program and its participation is governed by federal regulations that are contained in 42 C.F.R. Parts 483 and 488. In 2001 Petitioner was surveyed for compliance with federal participation requirements by the Kentucky Division of Licensing and Regulation (Kentucky State survey agency) in surveys that were completed in March (March 2001 survey), April (April 2001 survey) and May (May 2001 survey). Petitioner was found not to be complying substantially with federal participation requirements at each of these surveys. CMS concurred with the Kentucky State survey agency's findings and determined to impose remedies against Petitioner consisting of the following:

• civil money penalties of $250 per day for each day of a period that began on March 7, 2001 and which continued through April 9, 2001;

• civil money penalties of $100 per day for each day of a period that began on April 10, 2001 and which continued through June 12, 2001; and

• denial of payment for new admissions for each day of a period that began on May 17, 2001 and which continued through June 12, 2001.

Petitioner requested a hearing and the case was assigned to me for a hearing and a decision. CMS moved for partial summary disposition. It asserted that Petitioner had not contested some of the deficiency findings that were made at the March 2001 and April 2001 surveys and had not challenged any of the findings that were made at the May 2001 survey. On October 3, 2002, I entered partial summary disposition in favor of CMS. (summary disposition ruling). I ruled that Petitioner did not challenge the deficiency finding that was made at Tag 272 of the report of the March 2001 survey. I ruled also that Petitioner did not challenge the deficiency findings that were made at Tags 274, 278, 367, and 514 of the report of the April 2001 survey. I concluded that CMS was entitled to impose civil money penalties against Petitioner in amounts of at least $50 per day for a period that began on March 7, 2001. I ruled also that Petitioner had challenged each of the two deficiency findings that were made at the May 2001 survey.

I scheduled an in-person hearing in order to receive evidence addressing the unresolved issues in the case. Prior to the hearing the parties advised me that they wished to proceed based on their written submissions including the written direct testimony of their witnesses. Accordingly, I established a briefing schedule for the parties and the parties submitted briefs.

CMS submitted 24 proposed exhibits. (CMS Ex. 1 - CMS Ex. 24). In addition, CMS submitted the proposed written direct testimony of two witnesses, Theresa Likens, R.N., and Mary Wine, R.N. CMS did not designate either of these witnesses' declarations as exhibits. For purposes of identification I designate Ms. Likens' statement as CMS Ex. 25 and I designate Ms. Wine's statement as CMS Ex. 26. I receive CMS Ex. 1 - CMS Ex. 26 into evidence.

Petitioner submitted six proposed exhibits (P. Ex. 1 - P. Ex. 6). However, Petitioner also submitted four proposed exhibits in connection with its opposition to CMS' motion for partial summary disposition which it designated as P. Ex. 1 - P. Ex. 4. And, Petitioner also submitted written direct testimony of five witnesses, Helen W. Burkholder, Pat Holland, Susan Greenwell, Robert Flatt, and Matilda Sapp. Petitioner did not designate any of these witnesses' declarations as exhibits.

For purposes of identification and in order to clarify the record, I redesignate the four exhibits that Petitioner filed in opposition to CMS' motion for partial summary disposition as P. Ex. 7. I designate Ms. Burkholder's declaration as P. Ex. 8, Ms. Holland's declaration as P. Ex. 9, Ms. Greenwell's declaration as P. Ex. 10, Mr. Flatt's declaration as P. Ex. 11, and Ms. Sapp's declaration as P. Ex. 12. I receive into evidence P. Ex. 1 - 6 and P. Ex. 8 - 12. I do not receive into evidence P. Ex. 7. Petitioner did not request that I admit into evidence the documents that are part of the exhibit. Furthermore, none of the documents contained in the exhibit have any evidentiary value inasmuch as they consist entirely of correspondence that is already part of the record of this case and of an administrative judge's decision that is a matter of public record.

If there are any further proceedings in this case the parties should refer to the exhibits by the exhibit numbers that I have assigned to them.

II. Issues, findings of fact and conclusions of law.

A. Issues

The issues in this case are:

1. What civil money penalty amounts may reasonably be imposed against Petitioner and for what time periods?

2. Is CMS is authorized to impose denial of payment for new admissions against Petitioner and, if so, for what dates?

B. Findings of fact and conclusions of law

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

1. Civil money penalties in amounts of $250 per day are reasonable for each day of the period that began on March 7, 2001 and which continued through April 9, 2001.

In my summary disposition ruling I held that Petitioner did not comply substantially with participation requirements during the period that ran from March 7, 2001 through April 9, 2001. Based on that holding I concluded that CMS was authorized to impose civil money penalties of at least $50 per day against Petitioner for each day of the March 7 - April 9, 2001 period.

CMS determined to impose civil money penalties of $250 per day for each day of this period. There remains to be decided the issue of whether these penalty amounts are reasonable or whether some other penalty amounts are reasonable for all or part of the period.

My obligation is to decide this issue de novo and not simply to review or to ratify CMS' penalty determination. 42 C.F.R. § 488.438(e). In doing so, I may consider the regulatory factors for deciding penalty amounts that are set forth at 42 C.F.R. § 488.438(f)(1) - (4). These factors include the factors that are specified in 42 C.F.R. § 488.404 (incorporated by reference into 42 C.F.R. § 488.438(f)(3)). The factors which I may consider include a facility's compliance history; its financial condition; the seriousness of any deficiencies that are established; and the facility's degree of culpability. Id.

Neither CMS nor Petitioner offered any arguments about the application of these factors, although Petitioner does dispute the presence of deficiencies other than those whose presence I sustained in my summary disposition ruling. The presence or absence of these disputed deficiencies may be relevant to deciding penalty amounts in light of the factors that address the seriousness of deficiencies. See 42 C.F.R. § 488.404. For that reason, I decide here the issue of whether the disputed deficiencies were present. I also consider, in the aggregate, the seriousness of any deficiencies that were present during the March 7 - April 9, 2001 period. I do not consider any of the other possible factors which might affect penalty amounts in light of the parties' failure to offer evidence or argument concerning any of them.

The report of the March 2001 survey alleges that Petitioner failed to comply substantially with five distinct participation requirements. CMS Ex. 1. Petitioner did not challenge the deficiency finding that is cited at Tag 272 of the March 2001 survey report. Id. At 4 - 6. The scope and severity level which the surveyors assigned to this deficiency is "D", and I take notice that this level is the minimum level of noncompliance which, in the eyes of CMS, justifies the imposition of civil money penalties. Petitioner contested the other four deficiencies that were cited in the March 2001 survey report.

I sustain CMS's determinations of noncompliance as to two of these deficiencies. These two are cited at Tags 279 and 324 of the March 2001 survey report. CMS Ex. 1 at 6 - 9, 10 - 14. I do not sustain the allegations of noncompliance that were made as to the other tags (Tags 224 and 282) that were cited in the March 2001 survey report. I conclude, however, that CMS' determination to impose penalties of $250 per day during the March 7 - April 9, 2001 period is justified by the seriousness of the deficiencies that I have found to be extant at the time of the March 2001 survey. The deficiencies at Tags 279 and 324 were both assigned scope and severity levels of "G" and I take notice that this constitutes a finding of relatively severe problems at Petitioner's facility. As I discuss below, these two deficiencies were in and of themselves sufficiently severe as to justify the penalty amounts of $250 per day even though other deficiencies alleged by CMS were not, in fact, present.

a. Petitioner failed to comply substantially with the requirements of 42 C.F.R. § 483.20(k).

Tag 279 of the March 2001 survey report alleges that Petitioner did not comply substantially with the requirements of 42 C.F.R. § 483.20(k). The regulation requires, among other things, that a facility must develop a comprehensive care plan for each of its residents. The plan must include measurable objectives and timetables that are designed to meet a resident's needs and it must describe the services that are to be provided to the resident in order to meet the resident's needs.

CMS alleges that Petitioner failed to comply with these requirements in providing care for a resident who is identified as Resident # 2 in the March 2001 survey report. The prima facie evidence offered by CMS about this resident establishes her to be an individual who suffered from Alzheimer's disease, chronic osteomyelitis, arthritis, and impaired vision. CMS Ex. 1 at 11 - 12. The resident needed the assistance of two individuals in order to walk. Id.

Resident # 2 sustained numerous falls while she lived at Petitioner's facility. The resident fell at least five times between the time of her admission to Petitioner's facility in August 2000 and the date of the survey. Id. at 11 - 12. On February 21, 2001, the resident fell while she was in the bathroom, breaking her ankle. Id. at 7 - 11. However, Petitioner did not develop a care plan to address the resident's propensity to fall or which identified interventions that Petitioner's staff might take to prevent the resident from falling.

This evidence establishes a prima facie case of noncompliance by Petitioner with the requirements of 42 C.F.R. § 483.20(k). It was highly likely that Resident # 2 would fall unless Petitioner took interventions to prevent her from falling. She had illnesses, including a gait disturbance, that made her prone to falling. Her cognitive abilities, memory, and vision were impaired. Moreover, her osteomyelitis placed her at a great risk to sustain injury if she fell. Finally the resident's history of falls put Petitioner on notice that the resident was likely to fall. All of these facts imposed a duty on Petitioner to identify the resident's risk of falling as a problem which needed to be assessed and addressed in a care plan and which needed to be dealt with through appropriate interventions by Petitioner's staff. But, Petitioner failed to write a care plan to address the resident's needs despite the foregoing facts.

The prima facie case presented by CMS establishes an obvious risk of harm to Resident # 2 from Petitioner's failure to care plan the resident's propensity for falls. Indeed, the prima facie evidence is that the resident was harmed as an indirect consequence of Petitioner's failure to identify and respond to the resident's needs.

Petitioner argues that care planning for the resident's propensity to falls was unnecessary because the resident did not sustain a fall between November 2000 and February 2001. Petitioner's brief at 6. I do not find this argument to be persuasive. The resident was an obvious risk for falls given her clinical condition, her cognitive and memory deficits, her vision problems, and her history. That she may not have fallen for several weeks was not a reason for Petitioner to assume that she was not at risk for falling. And, even if - as Petitioner claims to be the case - the resident did not fall because of the timely interventions of Petitioner's staff, the resident's care plan should have documented what the staff was doing to prevent falls.

Moreover, Petitioner's staff plainly recognized that the resident was at risk for falling. It documented that risk in the resident's quarterly assessment form. CMS Ex. 4 at 8. Petitioner had no justification not to write a care plan to address an identified risk.

b. Petitioner failed to comply substantially with the requirements of 42 C.F.R. § 483.25(h)(2).

Tag 324 of the report of the March 2001 survey alleges that Petitioner failed to comply substantially with the requirements of 42 C.F.R. § 483.25(h)(2). The regulation imposes on a facility the duty that it provide each of its residents with adequate supervision and assistance devices to prevent accidents.

The allegations of noncompliance made at this tag are based on the same facts which form the basis for the noncompliance allegations that are made at Tag 279 of the March 2001 survey report. CMS Ex. 1 at 10 - 14. Essentially, CMS argues that Petitioner should have foreseen that Resident # 2 was at risk for falling given the resident's history and limitations and that it had a duty to take reasonable measures to protect the resident against the risk that she might fall. CMS contends that the broken ankle that Petitioner sustained on February 21, 2001, when the resident fell while alone in a bathroom, could have been prevented had Petitioner's staff exercised appropriate diligence.

I find that the evidence presented by CMS comprises a strong prima facie case that Petitioner failed to exercise appropriate care to protect Resident # 2 from sustaining falls. As I discuss above, at part a. of this Finding, Resident # 2 was at obvious risk for being injured from a fall. That was underscored by the resident's history of falling. CMS's prima facie evidence establishes that Petitioner's staff recognized that the resident was a fall risk. Indeed, the staff knew that the resident was particularly at risk for falling while in the bathroom because the resident had fallen on at least two occasions prior to February 21, 2001, while attempting to use the bathroom. CMS Ex. 1 at 11 - 12. Given that, Petitioner's staff should not have allowed the resident to use a bathroom without supervision or without some protection against falling. Yet, on February 21, 2001, the resident was allowed to use a bathroom unsupervised and she fell, breaking her ankle.

The potential for harm to the resident from Petitioner's absence of supervision is obvious. Indeed, prima facie proof is that the resident was seriously harmed by the fall she sustained on February 21, 2001.

Petitioner's response to this evidence is to assert that Petitioner's staff acted appropriately in dealing with Resident # 2 because the resident asked the staff to leave her in the bathroom and to return in five minutes. Petitioner's brief at 7. According to Petitioner, the staff was acting appropriately because "it was required to respect . . . [the resident's] privacy during toileting as the resident requested." Id. I am not persuaded by this assertion. Resident # 2 was a cognitively impaired resident who had sustained falls twice prior to February 21, 2001 while in the bathroom and who had sustained several other falls. In view of that, Petitioner's staff had an obligation to provide protection for the resident even if the resident demanded privacy. I do not find it to be purely speculative, as Petitioner contends, to conclude that the risk to Resident # 2 might have been significantly reduced or eliminated had a staff member remained outside of the resident's bathroom while the resident used that facility in order to provide the resident with immediate assistance when she attempted to rise from the toilet. See CMS Ex. 25 at 2.

c. CMS did not establish a prima facie case that Petitioner failed to comply substantially with the requirements of 42 C.F.R. § 483.13(c)(1)(i).

Tag 224 of the report of the March 2001 survey alleges that Petitioner failed to comply substantially with the requirements of 42 C.F.R. § 483.13(c)(1)(i). The regulation provides, in relevant part, that a facility must develop and implement written policies that prevent mistreatment, neglect, and abuse of residents. CMS alleges that Petitioner failed to comply with the requirements of the regulation in providing care to one resident who is identified in the survey report as Resident # 1. CMS Ex. 1 at 2 - 3.

Resident # 1 sustained a fall at about 11:45 a.m. on January 22, 2001 as he attempted to rise from a wheelchair. CMS Ex. 1 at 2. Immediately after falling the resident complained of pain in his legs, asserting that "My legs hurt so bad I can't stand it." Id. Petitioner's staff put the resident to bed. At about 2:00 p.m. on that date the resident's daughter expressed concern that the resident was in too much discomfort to use a bedpan. The staff did not administer pain medication to the resident for more than three hours after the incident. At about 3:00 p.m. on January 22, 2001 the resident was given a prescribed dose of Tylenol. Id. at 3. An unnamed member of Petitioner's nursing staff told the surveyor during the March 2001 survey that the resident stopped complaining of pain once he was put to bed. Furthermore, according to the nursing staff member, the staff wanted to monitor the resident and determine if anything was wrong, before administering pain medication to the resident. Id.

CMS asserts that Petitioner's staff should have been more attentive to the resident's needs. According to CMS, the failure to administer pain medication to the resident immediately after the resident sustained his fall or, at least, within the three hour period that ensued prior to the staff giving prescribed pain medication to the resident, is prima facie proof that Petitioner's staff neglected the resident's needs.

The word "neglect" is defined at 42 C.F.R. § 488.301 as a failure to provide goods and services to a resident that are necessary to avoid physical harm, mental anguish, or mental illness. I am not persuaded that CMS has made a prima facie showing that Petitioner's staff neglected the needs of Resident # 1 when this definition is applied to the evidence that CMS introduced concerning the care that was given to the resident by the staff. The evidence does not establish that pain medication was "necessary" during the three hour period after the resident fell. The evidence offered by CMS does not show that the resident complained of pain during this period. And, CMS has offered no other credible evidence to show that, in fact, the resident experienced pain after he was put to bed.

The evidence offered by CMS as to the resident's pain consists of: (1) proof that the resident complained of pain immediately after he fell; and (2) evidence that the resident's daughter was concerned that the resident was in too much pain after his fall to use a bedpan. I do not find this evidence to be persuasive proof that the resident experienced pain during the three hour period between his fall and the time that the staff gave Tylenol to him. From the record it does not appear that the resident vocalized any complaints of pain except for those he expressed right after he fell. The reasonable inference that I draw from the record is that he did not complain of pain because he wasn't experiencing pain. I do not find the concerns expressed by the resident's daughter show that the resident was in pain. There is no evidence in the record that the resident's daughter based her statements either on her observation of the resident or on his vocalizations.

Moreover, I would not find that Petitioner's staff neglected the resident's needs even if it could be established with hindsight that the resident experienced pain between 11:45 a.m. and 3:00 p.m. on January 22, 2001. It is plain from the evidence offered by CMS that Petitioner's staff was not neglecting to provide care for Resident # 1. Indeed, the evidence shows that the staff was monitoring the resident in order to decide on the most appropriate medical care to give to the resident.

Finally, I would not find that this single episode is proof of failure by Petitioner to implement an anti-neglect policy even if I were to conclude that Petitioner's staff erred in failing to give pain medication to Resident # 1 more promptly. The issue here is not whether Petitioner's staff made a mistake in evaluating and treating a resident. Rather, it is whether Petitioner failed overall to implement an anti-neglect policy. I do not find that this single episode of arguably questionable exercise of judgment by Petitioner's staff is persuasive proof of an overall failure to implement the policy.

Although I do not find that CMS established a prima facie case that Petitioner failed to implement an anti-neglect policy, I also conclude that Petitioner offered persuasive proof that it provided appropriate care to Resident # 1. Such proof is in the form of a statement from the resident's treating physician, who averred that in his opinion, Petitioner's staff acted appropriately in the management of the resident's injuries. P. Ex. 3 at 18.

d. CMS did not establish a prima facie case that Petitioner failed to comply substantially with the requirements of 42 C.F.R. § 483.20(k)(3)(ii).

Tag 282 of the report of the March 2001 survey alleges that Petitioner failed to comply substantially with the requirements of 42 C.F.R. § 483.20(k)(3)(ii). CMS Ex. 1 at 9 - 10. The regulation requires that services provided by a facility to a resident must be provided by qualified personnel in accordance with the resident's written plan of care. CMS alleges, based on the same facts that I have discussed above, at part c. of this Finding, that Petitioner failed to provide services to Resident # 1 in accordance with his plan of care.

More specifically, CMS asserts that the resident's plan of care required that the resident be free from signs or symptoms of pain and required also that the resident be administered pain medication as ordered. CMS asserts that Petitioner failed to implement these requirements because it failed to address the resident's pain on January 21, 2001.

The allegation rests on a premise that I find is not established prima facie, that being that the resident was in pain. As I discuss above, the evidence that CMS offered as to the resident's condition after he sustained his fall and was put to bed does not show that the resident was experiencing pain. Consequently, it cannot be concluded reasonably from that evidence that Petitioner failed to provide appropriate care to the resident.

e. Petitioner did not prove that it corrected the deficiencies that were identified and established at the March 2001 survey prior to the April survey.

CMS asserts that civil money penalties should be imposed against Petitioner for each day of the period March 7 through April 9, 2001 because Petitioner did not prove that it corrected those deficiencies that were identified and established at the March 2001 survey prior to April 10, 2001. In my summary disposition ruling I concluded that Petitioner offered no contention that it had corrected the deficiency that was identified at Tag 272 of the March survey report prior to April 10. Here, I conclude that Petitioner also has not offered evidence to show that the additional deficiencies that I find to have been present, described at Tags 279 and 324 of the March survey report, were corrected prior to April 10. Petitioner has simply not offered any evidence to show that it corrected these deficiencies at any date that is earlier than April 10, 2001, the date of the April 2001 survey.

f. Civil money penalties of $250 per day are reasonable based on the seriousness of Petitioner's deficiencies.

Petitioner did not manifest as many deficiencies at the March 2001 survey as is contended by CMS to be the case. But, it is also clear that Petitioner manifested some serious deficiencies. I find it reasonable to conclude that Resident # 2 was harmed as a consequence of Petitioner's failure adequately to plan that resident's care and to supervise the resident.

As I discuss above, neither CMS nor Petitioner offered evidence as to any regulatory factors addressing penalty amounts other than the seriousness of the deficiencies. Therefore, I base my decision as to what is reasonable entirely on the seriousness of the deficiencies that Petitioner manifested during the March 7 - April 9, 2001 period.

The range of civil money penalties that CMS may impose against a facility for a deficiency that does not rise to the immediate jeopardy level of scope and severity is from $50 to $3,000 per day. The civil money penalties that CMS determined to impose for the deficiencies that Petitioner manifested during the March 7 - April 9, 2001 period is $250 per day. I find these penalty amounts to be reasonable in light of the relatively serious deficiencies that Petitioner manifested. The penalties are a small fraction - less than ten percent - of the maximum permissible amounts that might be imposed for non-immediate jeopardy level deficiencies.

I do not conclude that the penalties should be set at a level below $250 per day based on my conclusion that Petitioner did not manifest all of the deficiencies that were alleged in the report of the March 2001 survey. Those deficiencies that were established are sufficiently serious as to justify the $250 daily penalty amounts.

2. Civil money penalties in amounts of $100 per day are reasonable for each day of the period that began on April 10, 2001 and which continued through May 24, 2001.

As I discuss above, CMS determined to impose civil money penalties of $100 per day for each day of a period that ran from April 10, 2001 until June 12, 2001. CMS based its determination to impose these penalties on its conclusion that Petitioner failed to comply substantially with participation requirements throughout the period. Below, at Finding 4, I conclude that Petitioner attained substantial compliance with participation requirements by May 25, 2001. Therefore there is no basis for CMS to impose remedies after May 24, 2001.

In my summary disposition ruling I concluded that Petitioner had not challenged several of the noncompliance findings that were made at the April 2001 survey of Petitioner. These deficiencies establish a basis for CMS to impose remedies during the period which began on April 10, 2001. These remedies may include civil money penalties. In this Finding I address both the reasonable amount and duration of the civil money penalties that may be imposed against Petitioner for its noncompliance beginning on April 10, 2001.

a. Petitioner remained noncompliant with participation requirements from April 10, 2001 through May 24, 2001.

Petitioner offered evidence and argument to challenge two of the deficiency findings (Tags 248 and 282) that were made at the April 2001 survey. But, Petitioner did not challenge the other four deficiency findings that were made at this survey (Tags 274, 278, 367, and 514). Summary disposition ruling. Nor has Petitioner offered any evidence to show that it corrected these four deficiencies at any date prior to May 24, 2001, the day before the May 2001 survey. For these reasons I conclude that Petitioner remained out of substantial compliance with participation requirements for each day of the period that ran from April 10, 2001 through May 24, 2001 and CMS may impose remedies against Petitioner, including civil money penalties, for each day of that period.

b. Civil money penalties of $100 per day are reasonable for each day of the period running from April 10, 2001 through May 24, 2001 based on the seriousness of Petitioner's deficiencies during that period.

Neither CMS nor Petitioner offered specific arguments addressing the reasonableness of the $100 per day civil money penalties that CMS determined to impose based on the deficiency findings that were made at the April 2001 survey. Petitioner contested two of the six findings of substantial noncompliance that were made at the survey.

I conclude that the seriousness of the four deficiencies that Petitioner did not challenge is sufficient to justify penalties of $100 per day. For that reason it is unnecessary that I address the merits of the two deficiencies (Tags 248 and 282) that Petitioner did challenge and I decline to do so.

The four deficiencies that Petitioner did not contest are described at Tags 274, 278, 367, and 514 of the report of the April 2001 survey. CMS Ex. 5 at 10 - 11, 11 - 15, 21 - 22, and 22 - 24. To each of these deficiencies the Kentucky State survey agency assigned a scope and severity level of "D" and CMS accepted these scope and severity findings. I take notice here, as I did at Finding 1 of this decision, that a scope and severity level of "D" is the lowest level of noncompliance which is deemed to be substantial and for which civil money penalties may be imposed as remedies. But, although these are low-level deficiencies, each of them was determined to be substantial because Petitioner's noncompliance posed a potential for more than minimal harm to its residents.

For example, at Tag 274 of the April survey report, the Kentucky State survey agency surveyors found that Petitioner failed to comply substantially with the requirements of 42 C.F.R. § 483.20(b)(2)(ii). CMS Ex. 5 at 10 - 11. This regulation requires that a facility must conduct a comprehensive assessment of a resident within 14 days of the date that the staff determines that there has been a significant change in a resident's physical or mental condition. The purpose of the regulation is obvious. It is intended to assure that the care that a facility gives to a resident is consonant with the resident's actual medical condition and reflects any significant changes in the resident's condition.

The surveyors found that Petitioner had failed to discharge this requirement in the case of a resident who is identified in the survey report as Resident # 2. The resident had not previously required supervision with eating. However, with the passage of time the resident had regressed to the point where she required extensive assistance in eating. Additionally, the resident experienced a substantial weight loss. CMS Ex. 5 at 11.

These were significant changes in the resident's condition. But, Petitioner failed to prepare an assessment of these changes. The potential for harm from failing to do so is apparent. The resident's health and safety was potentially jeopardized as she lost the ability to feed herself. Her loss of weight confirms that the resident's health was beginning to deteriorate as the consequence of the resident's loss of self-feeding skills.

As I discuss above, at Finding 1, penalties of from $50 to $3,000 per day are the range of penalties that applies to remedy deficiencies that do not pose immediate jeopardy to residents. Civil money penalties of $100 per day approach the minimum penalties that may be imposed for such deficiencies. I find that penalties of $100 per day are amply justified by the presence of four deficiencies that posed the potential for more than minimal harm to residents of Petitioner.

c. It is not necessary that I decide whether Petitioner manifested additional deficiencies as of the April 2001 survey.

I decline to consider whether Petitioner manifested additional deficiencies at Tags 248 and 282 in the report of the April 2001 survey because it is not necessary that I do so. It is not necessary that I address these two tags because Petitioner's failure to comply substantially with four other participation requirements is sufficient to support the imposition of $100 per day civil money penalties.

3. CMS is authorized to impose denial of payment for new admissions against Petitioner for each day of the period that began on May 17, 2001 and which ran through May 24, 2001.

The remedy of denial of payments of new admissions is one among several remedies that CMS may impose against a facility that is not complying substantially with Medicare participation requirements. 42 C.F.R. § 488.406(a)(1) - (9). CMS has discretion to decide which remedy or remedies among those that are available to it may be imposed to address a given deficiency or set of deficiencies. I do not have authority to question the propriety of CMS' remedy choice. Thus, CMS may impose denial of payments for new admissions as a remedy to address even a single failure by a facility to comply substantially with a participation requirement or requirements. That remedy may be imposed for each day of the facility's continued noncompliance with participation requirements.

Here, the evidence is that Petitioner failed to comply substantially with several participation requirements up until the May 2001 survey, which took place on May 25, 2001. In light of that, CMS is authorized to impose denial of payments for new admissions from May 17, 2001, the date when CMS first determined to impose this remedy, through May 24, 2001, the day before the May 2001 survey.

4. CMS is not authorized to impose a denial of payments for new admissions or civil money penalties against Petitioner after May 24, 2001, because CMS failed to establish a prima facie case that Petitioner was not complying substantially with Medicare participation requirements on or after May 25, 2001.

The May 2001 survey took place on May 25, 2001. CMS alleges that, on that date, Petitioner failed to comply with two participation requirements. These requirements are stated at 42 C.F.R. § 483.20(b) (Tag 272 of the May 2001 survey report) and at 42 C.F.R. § 483.35(e) (Tag 367 of the May 2001 survey report). CMS Ex. 16 at 1 - 7.

I conclude that CMS did not establish a prima facie case that Petitioner failed to comply substantially with the two participation requirements that are at issue. Although the evidence offered by CMS does show that Petitioner failed to comply with the letter of the applicable regulations it does not make a prima facie showing that any of the residents whose care was evaluated by the surveyors sustained a potential for more than minimal harm as a consequence of Petitioner's actions or inactions.

CMS was not authorized to impose remedies after May 24, 2001. Its failure to establish a prima facie case as to the two deficiencies that are alleged in the May 2001 survey report means that no deficiencies in Petitioner's operation are established after May 24, 2001. CMS is not authorized to impose remedies if there are no deficiencies extant to be remedied.

a. CMS did not establish prima facie that Petitioner failed to comply substantially with the requirements of 42 C.F.R. § 483.20(b).

The requirements of 42 C.F.R. § 483.20(b) include the obligation to make a comprehensive assessment of a resident's needs within 14 days of: (i) a resident's admission to a facility; and (ii) any significant change in the resident's condition. 42 C.F.R. § 483.20(b)(2)(i)(ii). CMS alleges that Petitioner failed to fulfill this obligation in the cases of 5 residents whose care was reviewed at the May 2001 survey. CMS Ex. 16 at 2 - 6.

Petitioner does not deny that it has the legal obligation to perform assessments within the 14-day time frames spelled out in the regulation. Nor does it deny that it missed the 14-day deadline in the five instances cited by CMS. Petitioner argues that these failures were the consequence of a staff member's miscounting of the days within which assessments may be performed. It asserts that the deficient conduct here is trivial because in each instance that is cited by CMS the miscounting resulted in missing the 14-day deadline only by a day or two. See CMS Ex. 16 at 2 - 6.

I am not persuaded that CMS has shown that a potential for harm existed in the cases of any of the residents' whose assessments were not completed timely. CMS has not offered evidence about these residents' individual conditions to show how any of them potentially were harmed by small delays in completing assessment documents. Nor has CMS made any showing that care was not given to any of the residents - or even potentially denied to any of them - by virtue of Petitioner's staff being late in completing the residents' assessment documents. I am not prepared to conclude, on the strength of the evidence presented by CMS, that the deficiency in this instance was anything more than technical in nature.

Arguably, a delay of as little as a single day beyond the required 14-day period might pose a risk of harm to the resident. The 14-day deadline was put in the regulation because there has to be some rational outside time limit on a facility's completion of a resident's assessment and evaluation. The whole point of doing an assessment is to determine what problems a resident manifests and to develop an information base that may be used in planning that resident's future care. But, having said that, it is not correct to assume automatically that completing an assessment on the 15th or 16th day poses a risk to a resident that did not exist on the 14th day. If CMS opts to pursue the argument that an error of such small magnitude poses a risk of harm to a resident or residents it is incumbent on CMS to show how, in each individual case, the resident potentially is harmed by the lapse.

Arguably, CMS might have offered evidence to prove that individual residents had conditions that required staff attention that would have been provided to them but, which wasn't, due to failure to complete assessments. Or, it might have attempted to prove that significant information about a resident or residents' condition was not communicated to a resident or residents' physicians due to the failure of Petitioner's staff to complete assessments timely. Such lapses clearly would have established a potential for more than minimal harm to residents due to a failure by Petitioner's staff to complete assessments timely. But, CMS didn't offer such proof and I am not prepared to draw inferences that residents potentially were harmed in its absence.

b. CMS did not establish prima facie that Petitioner failed to comply with the requirements of 42 C.F.R. 483.35(e).

CMS alleges that Petitioner failed to comply substantially with the requirements of 42 C.F.R. § 483.35(e). CMS Ex. 16 at 7. The regulation states that:

Therapeutic diets must be prescribed by the attending physician.

CMS bases its allegations of non-compliance with this regulation on observations that a surveyor made on May 25, 2001 of a resident who is identified as Resident # 12 in the report of the May 2001 survey. Observation showed that the resident's lunch included a salmon patty that was cut into large chunks. The resident's physician had prescribed a mechanically altered diet for the resident. Petitioner's dietician advised the surveyor that the regime prescribed by the physician called for the resident to receive pureed food. The dietician admitted that, as a consequence of an oversight by Petitioner's cook, the wrong food had been placed on the resident's tray for lunch on May 25, 2001. CMS Ex. 16 at 7. The surveyor determined additionally that the resident's written assessment did not contain a notation that a mechanically ordered diet had been prescribed for Resident # 12. Id.

Assuming these facts to be true they do not describe a prima facie failure by Petitioner to comply with the requirements of 42 C.F.R. § 483.35(e). The regulation requires explicitly that, in the an instance where a resident is to be given a therapeutic diet, the diet must be prescribed by the resident's attending physician. The facts offered by CMS show clearly that Petitioner complied with that requirement in this case. Resident # 12 was prescribed a therapeutic diet by her attending physician. CMS Ex. 16 at 7.

The arguable deficiency that occurred here was not failure by Petitioner to obtain a prescription for a therapeutic diet but failure by Petitioner to provide a therapeutic meal to Resident # 12 at lunch on May 25, 2001. But, failure to deliver care is not the subject of 42 C.F.R. § 483.35(e). On its face, the regulation is limited to a facility's duty to obtain a physician's prescription for a therapeutic diet.

The issue of delivery of diet is addressed elsewhere in the regulations. At 42 C.F.R. § 483.25(i), the regulations state:

Based on a resident's comprehensive assessement, the facility must ensure that a resident - . . .

(2) Receives a therapeutic diet when there is a nutritional problem.

(Emphasis added). The evidence offered by CMS might arguably comprise a basis for concluding that Petitioner failed to comply with the requirements of 42 C.F.R. § 483.25(i)(2), had CMS asserted that to be so. But, CMS did not make that assertion. Consequently, Petitioner offered no evidence which might have addressed it and neither side argued it.

Moreover, I am not persuaded that the evidence that CMS offers shows that a potential existed for more than minimal harm to the resident as a consequence of the cook's mistake on May 25, 2001. CMS did not offer any evidence that a salmon patty varied so significantly from pureed food that the resident would have had difficulty consuming it or that it potentially would have caused the resident medical problems if she attempted to consume it. Thus, CMS offered no evidence to show that the resident was at risk, clinically, as a consequence of receiving food at one meal that was not pureed.

CMS asserts that the resident was at risk because Petitioner allegedly "failed to maintain and implement an accurate comprehensive assessment of . . . [the resident's] individual needs." CMS Ex. 26 at 2 (paragraph 17). I might be persuaded by that argument if CMS could show that the resident was being deprived systematically of the diet that had been prescribed for her as a consequence of Petitioner's failure to accurately state the resident's needs in the resident's comprehensive assessment. But, the evidence offered by CMS does not show that. Indeed, the evidence is to the contrary. As was noted in the survey report, Petitioner's dietary manager knew that the resident was supposed to be receiving pureed food. CMS Ex. 16 at 7. CMS has not offered any evidence that would show that this knowledge had not been communicated to Petitioner's staff aside from the single episode on May 25, 2001 in which the cook erred.

JUDGE
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Steven T. Kessel

Administrative Law Judge

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