SUBJECT:

Spring Meadows Health Care Center,

Petitioner,

Centers for Medicare & Medicaid

DECISION

I sustain the determination of the Centers for Medicare & Medicaid Services (CMS) ⁽¹⁾ to impose remedies against Petitioner, Spring Meadows Health Care Center, for failure to comply substantially with federal requirements governing participation of long-term care facilities in Medicare and State Medicaid programs. I find additionally that, although CMS imposed a civil money penalty (CMP) of $5,000 per day for an immediate jeopardy deficiency from April 24, 1999 through June 11, 1999, a lesser period of time from April 24, 1999 through June 7, 1999, and a lesser CMP of $3,150 per day is reasonable.

I. Background

This case came before me pursuant to a request for hearing filed by Petitioner on August 12, 1999, in accordance with section 1128A(c)(2) of the Social Security Act ("Act") and 42 C.F.R. §§ 488.408(g), 498.40.

A complaint survey conducted by the Tennessee State agency (State agency), on June 7, 1999, found the conditions at the facility constituted immediate jeopardy and represented a substandard quality of care. On June 14, 1999, CMS informed Petitioner that CMS concurred with the State agency recommendation and imposed a CMP in the amount of $5,000 per day effective April 24, 1999. CMS determined that Petitioner was back in substantial compliance on June 11, 1999.

This case was assigned to several administrative law judges before being assigned to me. A hearing was held before me in Nashville, Tennessee, on July 9 and 10, 2002. CMS submitted 21 exhibits (CMS Exs. 1-21). Petitioner submitted 7 exhibits (P. Exs. 1-7). After consideration of objections and with agreement of the parties, the following exhibits were admitted, CMS Exs. 1 - 21; ⁽²⁾ P. Exs. 5, 6, 7, 9, 12, 14 and 16. At the hearing, Mary Elizabeth Gaynor, State agency surveyor, testified for CMS. Paige Adams, Petitioner's former Director of Nursing (DON); Shannon Ruth Jones, Petitioner's Administrator; Dr. David L. Gullett, Petitioner's Medical Director; and Denise Baggett, one of Petitioner's LPNs, testified for Petitioner.

Three "tags" are at issue in this proceeding:

• Tag F 224. CMS determined that Petitioner was noncompliant with 42 C.F.R. § 483.13(c)(1)(i) requiring the facility to "develop and implement written policies and procedures that prohibit mistreatment, neglect, and abuse of residents and misappropriation of resident property."



• Tag F 225. CMS determined that Petitioner was noncompliant with 42 C.F.R. § 483.13(c)(1)(ii) for failing to insure that "all alleged violations involving mistreatment, neglect, or abuse, including injuries of unknown source and misappropriation of resident property are reported immediately to the administrator of the facility and to other officials in accordance with State law through established procedures."



• Tag F 309. CMS determined that Petitioner was noncompliant with 42 C.F.R. § 483.25 because Petitioner failed to provide each resident with "the necessary care and services to attain or maintain the highest practicable physical, mental, and psycho social well-being . . . ."
  

Based on the testimony offered at the hearing, the documentary evidence, the arguments of the parties, and the applicable law and regulations, I find that from April 24, 1999 through June 7, 1999, Petitioner was not in substantial compliance with Medicare participation requirements at the immediate jeopardy level. And a CMP of $3,150 per day for that period is reasonable.

II. Applicable Law and Regulations

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

Sections 1819 and 1919 of the Act invest the Secretary with authority to impose CMPs against a long-term care facility for failure to comply substantially with federal participation requirements.

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

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

The regulations define the term "substantial compliance" to mean "a level of compliance with the requirements of participation such that any identified deficiencies pose no greater risk to resident health or safety than the potential for causing minimal harm." 42 C.F R. § 488.301.

"Immediate jeopardy" is defined as "a situation in which the provider's non-compliance with one or more requirements of participation has caused, or is likely to cause, serious injury, harm, impairment, or death to a resident." Id.

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

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

2. The facility's financial condition.

3. The factors specified in 42 C.F.R. § 488.404.

4. The facility's degree of culpability.

When a CMP is imposed, CMS must make a prima facie case that the facility has failed to comply substantially with federal participation requirements. To prevail, a long-term care facility must overcome CMS's showing by a preponderance of the evidence. Hillman Rehabilitation Center, DAB No. 1611 (1997); aff'd, Hillman Rehabilitation Center v. United States, No. 98-3789 (GEB) (D.N.J. 1999).

The Act and regulations make a hearing before an administrative law judge available to a long-term care facility against whom CMS has determined to impose a CMP. Act, sections 1128A(c)(2); 42 C.F.R. §§ 488.408(g), 498.3(b)(12), (13). The hearing before an administrative law judge is a de novo proceeding. Anesthesiologists Affiliated, et al, DAB CR65 (1990), aff'd, 941 F2d. 678 (8^th Cir. 1991).

III. Issues

A. Whether there is a basis for the imposition of remedies against Petitioner.

B. Whether, if the deficiencies are established, any deficiency posed immediate jeopardy.

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

IV. Findings and Discussion

A. Findings of Fact

All assessed deficiencies in this case are based on an occurrence on April 24, 1999, related to one resident who will be referred to as R1 to maintain his privacy.

1. R1 was a 93 year old gentleman who had been admitted to Petitioner's facility on January 25, 1999. P. Ex. 6, at 2. He suffered from several medical conditions including dementia, chronic obstructive pulmonary disease (COPD), coronary artery disease, hypertension, congestive heart failure, shortness of breath, sick sinus syndrome, gastro-esophageal reflux disease (GERD), and irritable colon. P. Ex. 7, at 1; Transcript (TR.) 216. He exhibited agitated behavioral symptoms and resisted care. P. Ex. 6, at 3; TR. 216. He was alert but confused. TR. 154. In January 1999, R1's physician had recommended that R1 leave his assisted living apartment to receive more complete assistance available at a nursing facility. P. Ex. 9, at 15-16.

2. R1 appeared to be deteriorating around the time of the incident in question. P. Ex. 9, at 15 - 16. Approximately one month prior to the incident, R1 experienced an agitated episode during which he worked free of his physical restraints and thrashed about, hitting, kicking, throwing furniture and breaking his dentures. P. Ex. 9, at 12. On the night prior to the incident in question, the facility staff noted the resident was not feeling well and had slight rubbing sounds in his lungs. CMS Ex. 19, at 20.

3. As a result of R1's agitation and destruction in March 1999, his physician had recommended to R1's family that they arrange for a sitter to come to Petitioner's facility and sit with R1 at night. The family did employ a sitter and a sitter was in the room with R1 on the night of April 23 - 24, 1999. P. Ex. 9, at 14.

4. At about 1:00 a.m. on the morning of April 24, 1999, R1's sitter summoned Petitioner's charge nurse, Charleston Brown, LPN, to R1's room. The sitter told the charge nurse that the resident had hit his head on the bed's side rail. P. Ex. 9, at 16; P. Ex. 12. The charge nurse observed an injury above R1's right eye; that is, R1 had two lacerations each about ½ inch over the right eye. The LPN applied steri strips to the wound, covered the wound with a telfa pad and an ice pack. CMS Ex. 4, at 20. About an hour and a half later, the sitter came out of R1's room and reported R1 was in pain and asked if R1 could be given a pain medication. The charge nurse gave R1 Tylenol, which R1 was able to swallow. P. Ex. 9, at 16. The charge nurse phoned R1's daughter at 6:15 a.m. about the incident. P. Ex. 9, at 16.

5. At about 7:00 a.m. another nurse, Denise Baggett, LPN, arrived to assume responsibility for the care of residents including R1. She did not immediately go to see R1. Rather she attended to some dining room activities. At 9:00 a.m. she examined R1. She noted edema with red circular bruising and purple discoloration on the outer borders approximately 5 centimeters in diameter above his right eye. She noted R1 refused to leave the bandages on and was very agitated and lethargic. The sitter informed LPN Baggett that R1 had not slept well the night before. CMS Ex. 4, at 20.

6. LPN Baggett then called R1's physician. TR. 231-232. R1's physician instructed LPN Baggett to monitor the resident and apply ice as needed. TR. 231. She noted that R1 refused ice and became agitated. She also noted that the staff had performed ADLs for R1 and R1 was resting quietly with his eyes closed. CMS Ex. 18, at 85.

7. Some members of R1's family came to the facility on the morning of April 24, 1999. At about 11:15 a.m., after one of R1's family members reported that R1 had a fever and had vomited, LPN Baggett again contacted R1's physician and asked that R1 be transferred to the hospital. R1 was transported to the emergency room (ER) fifteen minutes later. CMS Ex. 4, at 20; TR. 232. While R1 was being sent to the ER, LPN Baggett filled out a patient transfer form and stated that the diagnosis at the time of the transfer was "head injury/possible aspiration." CMS Ex. 18, at 87.

8. Neither LPN Brown nor LPN Baggett did a neurological assessment of R1 after his injury and while he was in their care. CMS Ex. 4, at 20; CMS Ex. 18, at 86.

9. At the hospital, R1 was coded as "do not resuscitate." Only comfort measures were requested by his family. Three days later R1 died. CMS Ex. 18, at 17 - 21. The cause of R1's death is unclear. He had several diagnoses the few days he was in the hospital including cerebral vascular accident (CVA) with intra cranial bleeding, heart attack, pneumonia and sepsis. CMS Ex. 18, at 13, 17-21, 31-33, and 38.

10. On the Monday following April 24, 1999 (a Saturday), Petitioner's Administrator, Shannon Jones, first became involved in the incident during a "bed meeting" described by Administrator Jones as a regularly scheduled meeting when the staff would get together and discuss the residents. Petitioner's social worker asked why R1 was in the hospital and Paige Adams, the DON, said she would look into it. TR. 190. The DON reviewed the incident report prepared by LPN Brown and then looked at the nurse's notes to confirm that R1's injury was two, ½ inch lacerations rather than one, 2 and ½ inch cut. TR. 155; P. Ex. 12.

11. At some point the hospital reported to Petitioner's social services worker that R1 had died from pneumonia. On April 29, 1999, Administrator Jones did not know the identify of R1's sitter. According to her contemporaneous note, R1's family had not used Cumberland Sitters, the sitter group to which Petitioner generally referred, to hire R1's sitter. Administrator Jones also reported LPN Baggett did not know who the sitter was because the sitter had left before her shift started. CMS Ex. 18, at 85. ⁽³⁾

12. About 1½ weeks after R1's death (between May 3 and 7, 1999), DON Adams was summoned to a meeting with R1's family members. The family members had a photograph of R1 showing the wound above his right eye and expressed concern that the injury did not appear to be consistent with the sitter's report that R1 had fallen backwards. Moreover, the hospital had told the family that R1 had expired due to a CVA. The family members asked the DON whether she thought it peculiar that the sitter had not called the family to inquire about the resident. TR. 167.

13. At the time of the family meeting, DON Adams could not identify the sitter but was told by the family that a S.W., Jr., or his father, S.W., Sr., had been the sitter for R1 on April 24, 1999. Some family members expressed their belief to DON Adams that these men were associated with a church and they did not think the sitter would have hurt R1. On the other hand, the family had some unresolved questions about the incident. At that time, the DON knew the sitter had not reported and signed in as required by facility policy. TR. 170 - 172. The DON suggested that the family ask Adult Protective Services (APS) of the Tennessee Department of Human Services to assist them. TR. 63.

14. After the conversation with R1's family, DON Adams spoke to Administrator Jones and the social services worker who had originally been told by the hospital that R1's cause of death was pneumonia. At DON Adams' request, Petitioner's social services worker phoned the hospital and reported to DON Adams that she was again told R1 had died from pneumonia. TR. 171 - 172.

15. Neither DON Adams nor Administrator Jones contacted the Tennessee Department of Human Services regarding the concerns expressed by R1's family.

16. R1's family did contact APS on May 19, 1999. TR. 130; CMS Ex. 3. Either R1's family or APS contacted the local sheriff's department. Fifteen days after receiving the complaint, on June 3, 1999, APS notified the State agency of the complaint, which triggered the complaint survey at Petitioner's facility completed on June 7, 1999. TR. 61; CMS Ex. 17.

17. CMS provided no evidence that the injuries R1 sustained on the night of April 24, 1999, either caused or hastened his death. I affirmatively find that R1's injury did not cause or hasten his death.

18. CMS provided no evidence that either APS, any other Tennessee agency or the sheriff's department, determined that R1's sitter had abused R1. For purposes of this decision, I affirmatively find that the sitter did not abuse R1.

B. Conclusions of law

Each of my ultimate conclusions, noted in bold italics, is followed by a discussion of my rationale for the conclusion.

1. With respect to Tag F 224, Petitioner proved, by a preponderance of the evidence, that it complied substantially with 42 C.F.R. § 483.13 (c)(1)(i) from April 24, 1999 through June 11, 1999.

a. CMS's contentions regarding Tag F 224.

As a result of the June 7, 1999 survey, CMS cited Petitioner at the scope and severity level of "J," for not developing and implementing written policies and procedures that prohibit mistreatment, neglect, and abuse of residents, as required by 42 C.F.R. § 483.13 (c)(1)(i). ⁽⁴⁾ The gravamen of CMS's citation is that Petitioner did not follow its own policies following R1's head injury in that no neurological assessments (neuro checks) ⁽⁵⁾ were performed on R1 and no neuro check assessment forms were completed after R1's injury as required by the Petitioner's written policies. CMS equates this with neglect. CMS asserts that "[f]ailure by the facility staff to recognize the injury suffered by the resident as a 'head injury', monitor the resident's condition, and perform neurological assessments as outlined in the facility's policies contributed to the delay of appropriate treatment and resulted in a serious threat to the resident's health." CMS Ex. 1.

b. Petitioner's contentions regarding Tag F 224.

Petitioner responds that R1 did not have a head injury. Rather, he sustained two small ½ inch skin tears above his right eye. Therefore, the injury did not trigger Petitioner's policies with respect to head injuries. Second, Petitioner asserts that this particular resident was not able to participate in neuro checks. Finally, Petitioner argues that whether or not neurological assessments had been performed would have had no effect on the appropriate treatment for this resident.

c. Rationale

Neglect, as defined in the regulations, is the failure to provide goods and services necessary to avoid physical harm, mental anguish, or mental illness. 42 C.F.R. § 488.301. CMS failed to prove that Petitioner violated 42 C.F.R. § 483.13(c)(1), Tag F 224, because CMS failed to prove that a neurological assessment of R1 after his injury was necessary to avoid physical harm, mental anguish, or mental illness. CMS failed to show that R1 was neglected because of the failure to provide him a neurological assessment. Petitioner failed to show that the facility provided R1 with a neurological assessment after his injury. Petitioner's failure to do a neurological assessment of R1, however, did not manifest Petitioner's failure to implement a policy against neglect.

Petitioner's written policy for dealing with residents' acute episodes required that "acute episodes or changes in a resident's condition will be documented in the medical record each shift until the condition is resolved." CMS Ex. 13. Moreover, the policy required the nursing notes contain documentation about neuro checks "if head injury or CVA is suspected for at least 72 hours, or longer until the condition is stable or the resident is transferred to an acute care facility." CMS Ex. 13.

The greater weight of the evidence is that R1 did, in fact, suffer a "head injury." While Petitioner attempted to portray R1's injury as minor skin tears or small lacerations, R1's injury was more extensive. As part of LPN Baggett's transfer of R1 to the hospital, she referred to R1's diagnosis as a head injury. She explained a few days later to Administrator Jones that R1 had been bleeding badly under the skin. Further, R1's hospitalization notes refer to R1's "large laceration and contusion on the right forehead with bruising @ the eye." and "head trauma to the rt side." CMS Ex. 18, at 18, 23, 32. A hospital physician also makes a reference to a laceration with three sutures and "6 days to get stitches out." CMS Ex. 22 at, 36. These references suggest strongly to me that R1's injury was far more serious than minor skin tears. I question whether a hospital would have done stitching as a result of a small skin tear. See, e.g., Cherrywood Nursing and Living Center, DAB CR845 (2001).

While I find that R1 did have a head injury, CMS provided no credible or reliable evidence to support the various statements in its brief that R1 had a deadly head injury or that the injury caused or hastened his death. See, e.g. CMS's Brief at, xii, xiii, xiv, xv, xvii.

On the other hand, Petitioner provided physician testimony from its medical director, David L. Gullett, M.D., that R1 more than likely died from a stroke with intra cerebral hemorrhaging or pneumonia rather than from a head injury. Dr. Gullett opined that R1's head injury likely did not cause his death because R1 seemed to be improving during the first part of his hospital stay. According to Dr. Gullett, if the head injury had caused R1's death, R1 would have become semicomatose, then comatose prior to expiring, rather than improving slightly after hospital admission. Dr. Gullett also opined that R1 would have experienced no different course had he been transported to the hospital sooner. TR. 222.

At the hearing, DON Adams testified she had written Petitioner's acute episode policies. She testified that regardless of the written policies, she expected the nurses to use their nursing judgment with respect to doing neuro checks. TR. 158-159. Don Adams stated that ". . . if [the nurses] felt like it was a type of injury that could lead to a neurological change to do neuro check. And if not, then to monitor the patient according to protocol and judgment." TR. 174.

DON Adams explained in her testimony that when a care provider has been taking care of patients in a long-term care setting, the care provider becomes aware of the patient's neurological baseline and knows when the patient has had a change in status. Therefore, a neuro check may not always be required after an incident. She also testified that some patients are unable to participate in a neurological assessment and, in such situations, a neuro check would be unnecessary. TR 160. Based on her review of the records, DON Adams did not believe a neuro check was necessary for R1 after R1's head injury on April 24, 1999. TR. 160.

CMS failed to put on any testimony - other than Surveyor Gaynor - regarding whether a neuro check would have been important for R1 after his injury. The surveyor testified from her own notes - which had been transferred to the Statement of Deficiencies (SOD) - that R1's physician told her during her complaint survey that, if Petitioner had performed neuro checks as included in Petitioner's policies, R1's abnormal pupils would have been noted prior to R1's transfer to the emergency room. ⁽⁶⁾ I find this type of hearsay to be relatively unreliable evidence. To accept the physician's alleged statement to be correct, one must assume that Surveyor Gaynor heard the physician correctly, understood what he was saying, and either remembered clearly the conversation or transcribed it to her notes entirely correctly. I cannot make that assumption without corroboration. At the hearing, CMS did not present either the physician who allegedly made the statement or another expert witness who could have corroborated the allegation.

Although I suspect that performing neuro checks following a head injury is the better nursing practice, CMS failed to offer a preponderance of the evidence that a neurological assessment is required and standard medical practice when a resident has a head injury. Surveyor Gaynor is a registered nurse who certainly has more expertise concerning good nursing practice than the average layperson. On the other hand, DON Adams, also a registered nurse, testified that a nurse familiar with a patient can tell whether that patient has sustained a neurological injury. The nurse can see whether a resident has diminished orientation or consciousness because the nurse knows the resident's baseline. TR. 159. While DON Adams admitted R1 had an acute episode, she also said R1's baseline had not changed and the LPN could determine a formal neuro check was unnecessary. TR. 179.

Moreover, Petitioner offered the testimony of Dr. Gullett, a licensed physician, that neuro checks are not medically necessary for every patient who has a head injury and were not medically required for R1 after his injury of April 24, 1999. TR. 216. The preponderance of the evidence in this case is, therefore, that neuro checks are not required for every head injury and were not required for R1. CMS, to prevail, needed to offer some contrary evidence, which it failed to do.

CMS has not shown the necessity for a neurological assessment for R1 on the night he was injured, and CMS has not shown R1 was neglected because of the lack of a neurological assessment. Moreover, CMS cannot show that Petitioner failed to implement a policy prohibiting neglect.

Surveyor Gaynor did not even testify that it is standard nursing practice for neuro checks to be done after every head injury. Her point in testimony was that, if a facility had any type of written policy, the facility had to follow the policy. To explain why I do not agree, I will use an obviously exaggerated analogy. CMS appears to argue that if a nursing facility had a written policy to give each resident a birthday party, CMS could show a facility's failure to implement a policy against neglect by a mere showing the facility failed to provide several residents with a birthday party. On the contrary, I find CMS must additionally show that a facility's failure to follow a policy resulted in a failure to provide services necessary to avoid physical harm, mental anguish, or mental illness.

For all of the situations to which CMS referred to show that Petitioner continued in its failure to follow its policies concerning neuro checks until after June 11, 1999, when Petitioner was determined back in substantial compliance, CMS provided insufficient evidence that any of Petitioner's failures to do neuro checks resulted in either neglect or, therefore, resulted in Petitioner's failure to implement policies against neglect.

2. With respect to Tag F 225, the preponderance of the evidence shows that Petitioner failed to substantially comply with 42 C.F.R. § 483.13(2) and (4) as alleged.

a. CMS's contentions regarding Tag F 225.

CMS cited Petitioner at Tag F 225 at a scope and severity level of "J," meaning CMS considered this to be an isolated incident that presented immediate jeopardy to the residents. CMS contends that the incident with respect to R1 was sufficiently indicative of sitter abuse that the incident should have been investigated and reported to the State agency.

b. Petitioner's contentions regarding Tag F225.

Petitioner contends that there was no suggestion of abuse presented by the incident. Moreover, if there had been a suggestion of abuse, the alleged perpetrator was not employed by the Petitioner. Finally, Petitioner argues it had, in essence, "reported" the incident since it had told R1's family to go to APS if the family had concerns about abuse

c. Rationale

Section 1819(g)(1)(C) of the Act and 42 C.F.R. § 483.13(c) establish a participating facility's duty to report and investigate all allegations of neglect or abuse or the misappropriation of the property of a resident of a facility. The applicable regulation, 42 C.F.R. § 483.13(c)(2), states that:

The facility must ensure that all alleged violations involving mistreatment, neglect, or abuse, including injuries of unknown source, and misappropriation of resident property are reported immediately to the administrator of the facility and to other officials in accordance with State law through established procedures (including to the State survey and certification agency). Emphasis added.

Additionally, 42 C.F.R. § 483.13(c)(3) states that:

The facility must have evidence that all alleged violations are thoroughly investigated, and must prevent further potential abuse while the investigation is in process.

Another applicable portion of this regulation, at 42 C.F.R. § 483.13(c)(4), requires that:

The results of all investigations must be reported to the administrator or his designated representative and to other officials in accordance with State law (including to the State survey and certification agency) within 5 working days of the incident . . . .

There is no conflict between the specific reporting requirements of section 1819(g)(1)(C) of the Act, as implemented by 42 C.F.R. § 483.13(c), and the general reporting requirements of the Tennessee law applicable in this case.

Tennessee requires that:

Any person, including, but not limited to, a physician, nurse, social worker, department personnel, coroner, medical examiner, alternate care facility employee, or caretaker, having reasonable cause to suspect that an adult has suffered abuse, neglect, or exploitation, shall report or cause reports to be made in accordance with the provisions of this part.

Tennessee Code Annotated (T.C.A) § 71 - 6-103(b)(1).

The Tennessee statute also specifies that:

An oral or written report shall be made immediately to the [Tennessee Department of Human Services] upon knowledge of the occurrence of suspected abuse, neglect, or exploitation of an adult.

T.C.A. § 71-6-103(c).

If staff is implicated in the abuse or neglect of a resident or the misappropriation of a resident's property, the Act and regulations require that the facility immediately notify the appropriate State agency which will conduct the investigation. Moreover, the facility must maintain documentation of its preliminary investigation and any more formal investigation conducted either by the facility or the State agency.

i. Petitioner failed to report allegations of abuse as required by 42 C.F.R. § 483.13 (2) and (4).

First, I find it absolutely disingenuous for Petitioner to argue that it had satisfied its requirement under the regulations to report the incident by telling R1's family to go to APS if the family had concerns about abuse. If Petitioner was required to report the allegations, it was required to assure that the report was made. The Petitioner could not make that assurance by telling others to report.

I read the applicable regulations and Tennessee state law together as making it incumbent on the facility to do a preliminary investigation and report all allegations of abuse, regardless of the outcome of the preliminary investigation. Bergen Regional Medical Center, DAB No. 1832 (2002). Once an investigation suggests a staff member may be involved, the incident must be reported and it is up to the State agency to direct a further investigation, if deemed necessary.

The case law suggests that, if the staff is not implicated, it is possible the facility has met its burden by conducting an investigation only, if the investigation results in a finding that abuse did not occur. Beverly Health and Rehabilitation Center - Williamsburg, DAB No. 1748 (2002); see also, Pathfinder Healthcare, Inc., DAB CR958 (2002). In this case, the alleged perpetrator was a privately-hired sitter; a quasi-staff member.

In Cedar View Good Samaritan, DAB CR997 (2003), Administrative Law Judge (ALJ) Keith W. Sickendick exhaustively reviewed the legislative history of 42 C.F.R. § 483.13. He pointed out that the drafters of the section 1819(g)(1)(C) of the Act believed that:

. . . the facility has an important responsibility for identifying and investigating all incidents of suspected resident abuse, neglect, or mistreatment or misappropriation of property whether by staff or others.

56 FR 48842 - 43 (Sept. 26, 1991).

ALJ Sickendick also concluded that the legislative history of 42 C.F.R. § 483.13(c)(2) and (4) "makes clear that when the facility investigates an allegation which does not involve staff, the intent of the reference to State law, which appears in both subsections, is that reports to State agencies will be done in accordance with the procedures specified in State law." Cedar View at 17.

In this case, under Tennessee State law, "an oral or written report shall be made immediately to the department [Tennessee Department of Human Services] upon knowledge of the occurrence of suspected abuse, neglect or exploitation of an adult." T.C.A. § 71 - 6 - 103(c). The department then would have been required to notify the facility's licensing authority; that is, the State agency. T.C.A. § 71 - 6 - 103(d)(2).

The question then becomes whether and when Petitioner had knowledge of "suspected abuse." I note that the Tennessee statute requires reporting when the facility has knowledge not of abuse but of "suspected abuse."

Petitioner contends there was no reason to suspect abuse and therefore none of the facility's abuse policies were triggered; that is, the Petitioner had no reason to investigate the incident. In Petitioner's view R1 had a small laceration above the right eye likely caused, as reported by the sitter, on the bed's side rails when the resident fell against it. Petitioner cites as support for its view that after the hospital reported to the facility that R1 had expired due to pneumonia, Petitioner reasonably believed R1 had died in due course and no investigation was necessary.

As I explain below, had Petitioner's policies against abuse been implemented immediately, "suspected abuse" may have arisen early on. For example, if the nurses on duty had immediately reported inconsistent stories about how R1's injury had occurred, Petitioner may have done a more thorough investigation. Nonetheless, clearly after DON Adams' meeting with R1's family, Petitioner had knowledge of "suspected abuse" and was required to report it.

As DON Adams testified, R1's family brought in a picture of R1 showing the injury over his eye. Some of his family members inquired whether the DON did not feel it strange that the sitter had not contacted them to find out what had happened with the resident. Moreover, the family reported that the hospital told them R1 had died from a CVA rather than pneumonia as the DON thought. TR. 167. Several family members were reluctant to suggest abuse on the part of the sitter. Indeed, some of the family members said that, because the sitter was a preacher or a preacher's son, the family did not really think the sitter had abused the resident. TR. 170. Nonetheless, the implications are clear. Some family members suspected abuse by the sitter. At that point the facility had knowledge of suspected abuse and was required to report it. If DON Adams had not understood some of R1's family members suspected abuse, she would not have suggested the family contact APS.

At the hearing, DON Adams testified she "felt like I couldn't make the sitter talk with them [the family] because he didn't go through the Cumberland Sitting Services which is what we refer to and he wasn't our employee, so I felt like a third party might be able to get that information for them, and that's why I suggested APS. I didn't tell them to go to the police department or the sheriff's department because I didn't feel like they felt any abuse had happened, but I felt like a third party might be able to come in and clarify that." TR. 170; 184. ⁽⁷⁾ I find it credible that DON Adams felt unable to require the sitter to speak to R1's family. That inability is support for the regulatory and statutory requirements to report so that a governmental agency can investigate. I do not find it credible, however, that DON Adams did not perceive that some of R1's family members suspected abuse.

ii. Petitioner failed to have evidence that suspected abuse was investigated as required by 42 C.F.R. § 483.13(c)(3).

I reviewed the record to determine what, if anything, the Petitioner did with respect to investigating R1's injury between the time of the injury and the time R1's family came to meet with DON Adams to discuss R1's death. I found that:

A. The first LPN on duty, Charleston Brown, filled out an incident report dated April 24, 1999. He said he was called to the resident's room by the resident's sitter and bleeding was noted above the resident's right eye. [The sitter reported R1 had hit his head on the side rails.] He cleaned the wound, applied steri stips and covered the wound with a telfa pad and applied an ice pack to the resident's right forehead. The resident's level of consciousness was noted to be alert yet confused. CMS Ex. 18, at 86.

B. After learning of R1's death, approximately one week after the incident, DON Adams was concerned because she had not known who the sitter was. After she received the incident report, she went to the sitter's sign-in log and the sitter had not signed in. TR. 155, 170. DON Adams reviewed LPN Brown's incident report but she did not see anything unusual in the incident report because R1 had been agitated quite often and it seemed likely that he had hit his head on the side rails as stated in the incident report. She did not consider possible abuse because the report looked consistent. TR. 156 - 157.

C. The staff discussed R1 at a bed meeting on the Monday following R1's death. Petitioner's social services worker had spoken with the hospital and was told R1 had died from pneumonia. On April 29, 1999, Administrator Jones prepared a hand-written note in which she states that R1's family did not use Cumberland Sitters. The note includes a statement given by Denise Baggett, the LPN on duty the morning following R1's injury. She stated the resident "bleeds bad under his skin & did see active bleeding under his skin down his face. He would not stay off the injured side & picked at the bandages so much she had to remove them. He was agitated with the bandages."

D. Ms. Jones further reported that Denise Baggett did not know who the sitter was because he had left before her shift started. CMS Ex. 18, at 85. ⁽⁸⁾

It is important that the record contains no evidence that Administrator Jones or DON Adams spoke with any other staff on duty the night of April 24, 1999, prior to the meeting with R1's family. Petitioner's failure to question other staff members on duty that night is troubling because according to a report allegedly written and signed on June 9, 1999, by Sharon Grammar, RN, the nurse on duty that night, a CNA Watkins had noted there were no blood stains on R1's side rail, but there was blood on the door frame to R1's room. Nurse Grammar reported that "the appearance of the room and the location of the blood stains was not consistent with what the sitter stated had happened." CMS Ex. 18, at 11.

This particular exhibit (CMS Ex. 18, at 11), however, is fraught with reliability problems. Neither Nurse Grammar nor CNA Watkins were called to testify to verify the exhibit or to explain what had occurred that night. I make no finding that, in fact, the appearance of the room and the location of the blood stains were inconsistent with the sitter's story. I only point out that other staff members on duty that night should have been contemporaneously asked about R1's injury and Petitioner should have retained the results of the inquiry as required by 42 C.F.R. § 483.13(c)(3).

I also reviewed the record to determine what the Petitioner did with regard to investigating this incident after R1's family came into the facility with R1's photograph. After the conversation with R1's family, DON Adams spoke to the Administrator and the social services worker who had originally talked to the hospital about the cause of R1's death. This employee called the hospital and was again told that R1 had died from pneumonia. TR 171 - 72. After the family came in, DON Adams wanted to know who the sitter was, what his certification was, and whether he was sitting for anyone else. She checked with Wanda Cumberland whose sitter services Petitioner normally used "and he wasn't her sitter." TR. 171.

I point out that Administrator Jones and DON Adams testified to these occurrences but Petitioner had no contemporaneous notes corroborating any investigations. The record contains no evidence Petitioner did anything further to investigate R1's injury prior to the June complaint survey. Petitioner, it appears, did not seek out any other employees on duty that evening to obtain their observations. TR. 186. As pointed out in footnote 3, supra, Petitioner did not investigate the obvious inconsistency concerning whether LPN Baggett actually spoke to R1's sitter before the sitter left the facility. Nor was any inquiry made as to whether LPN Brown knew who the sitter was.

Section 483.13(c)(3) of 42 C.F.R. also requires that a facility prevent further "potential abuse" while an investigation is in process. After DON Adams' meeting with R1's family and the Petitioner's knowledge of suspected abuse, Petitioner should have reminded the staff of the importance of having information about private sitters, e.g., on a sign-in log, in order to prevent further potential abuse. If Petitioner actually did remind staff about the necessity of keeping an accurate sign-in log of sitters, Petitioner provided no evidence of that. I can only conclude, therefore, that Petitioner took no actions to prevent potential abuse or to assure implementation of non-abuse policies already in place.

iii. Petitioner failed to implement its written policies prohibiting mistreatment, neglect and abuse of residents as required by 42 C.F.R. § 483.13(c).

Petitioner did have a number of written rules which were established, in part, to address the regulatory requirements relating to abuse. Petitioner had a Policy of Reporting Abuse. This written policy indicated that the facility would not tolerate physical or mental abuse of the residents. The policy required, inter alia, that the DON be notified at the time an incident occurs, who will in turn notify the Administrator and that "[a] copy of the incident report and the [employee] statements will be sent to the State within 5 days of the occurance (sic)." CMS Ex. 8. As no employee statements were obtained and no reports made, clearly the Petitioner did not follow its own rules regarding suspected abuse.

The Petitioner also had other written rules tangentially addressing the regulatory requirement to implement policies prohibiting mistreatment, neglect and abuse. I use the term tangential because the policies of Petitioner to which I refer do not specifically relate to abuse. Nonetheless, I conclude a major reason for the policies is to prevent mistreatment, abuse and neglect. The policy I refer to acknowledges Petitioner's acceptance of responsibility for all persons having an impact on residents' rights. Rule number 11 of Petitioner's policy list provided that "Private duty sitters must have prior approval by the Director of Nursing in order to sit with any of our residents." CMS Ex. 10.

Contrary to Petitioner's own rules, the private duty sitter who was with R1 on the night of April 24, 1999, certainly did not have the DON's prior approval to sit with one of Petitioner's residents. At the time the DON met with R1's family, the DON could not identify and was unaware of this particular sitter. She did not know his name. The sitter had not signed in or out as the facility required. The DON testified she had no idea what the sitter's duties were with respect to this resident. Even after the suggestion of a possible problem with this sitter by R1's family, the DON made only minor attempts to investigate what occurred that night. Because the sitter was not obtained through the service normally used by the facility, the DON felt the facility had no responsibility for him or his actions. TR 171 - 72. This belief simply contradicts the purpose behind the entire regulatory scheme designed to protect vulnerable nursing facility residents.

The DON's lack of information regarding the sitter and disregard for the facility's own policies regarding private sitters is further concerning because, as Surveyor Gaynor testified, as part of an earlier survey in January of 1999, Petitioner had a deficiency that dealt with the facility's incorrect assumption that because sitters were not facility employees, the facility had no responsibility for them. TR. 31. ⁽⁹⁾

It is imperative that facilities are knowledgeable about the people who are in the facility caring for the facility's residents. Petitioner was aware of the importance of keeping track of private sitters and had established a rule that private duty sitters have the approval of the DON. Yet, in this situation, the DON had no knowledge of the sitter. A facility is required to assure that its own employees have no record of abuse or inclination to abuse the facility's vulnerable residents. The facility must also assure that privately hired sitters have no record of abuse or inclination to abuse the facility's residents. The regulations place responsibility for the adequacy of staff, even those persons employed on a temporary basis from an agency, squarely on the facility and do not allow it to transfer that responsibility to an outside entity. 42 C.F.R. § 483.75; Barn Hill Care Center, DAB CR902 (2002).

I concede that one incident of a lapse regarding suspected abuse does not necessarily mean the facility has failed to implement policies against abuse. Life Care Center of Hendersonville, DAB CR542 (1998). In this case, however, LPN Baggett, a charge nurse, confirmed during her testimony that she had not seen the Petitioner's accident and incident policy. TR. 237. She said she knew the location of the policy book and had been told about it during her employee orientation, but she conceded she had not paid much attention to the accident/incident policy. TR. 239. Obviously, a facility's policies are unlikely to be implemented if the employees are not trained to use them.

Certainly a facility must know that there is an allegation of abuse before the duty to investigate and report is triggered. The regulations contemplate that the facility will become aware of all possible incidents of abuse by requiring the facility to ensure that staff reports all incidents and investigations regarding the incidents to the Administrator. One way for the facility to accomplish that assurance is to have a written policy, which Petitioner did. But no required staff reporting will take place if the staff does not know about the policy. Pathfinder Health Care, Inc., DAB CR958 (2002).

3. With respect to Tag F 309, CMS proved by a preponderance of the evidence that Petitioner was not in substantial compliance with 42 C.F.R. § 483.25 between April 24, 1999 and June 7, 1999.

a. CMS's contentions regarding Tag F 309.

CMS cited Petitioner under F Tag 309, at the scope and severity level of J (isolated incident posing immediate jeopardy). Section 483.23 of 42 C.F.R. requires that in a long term care facility:

[E]ach 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.

CMS refers to this regulation as a "catch-all" deficiency in that, if Petitioner failed to adequately investigate possible incidents of abuse or provide adequate treatment for a head injury, obviously Petitioner did not provide each resident "the necessary care and services to attain or maintain the highest practicable physical, mental and psychosocial well-being . . ." 42 C.F.R. § 483.25. CMS Brief at xiv.

b. Petitioner's contentions regarding Tag F309.

After the hearing, Petitioner filed Petitioner's Motion to Dismiss along with its post-hearing brief with regard to this cited deficiency on the grounds that the regulation, as a "catch all" provision, has language that is "so subjective and vague as to be capable of whatever interpretation an individual surveyor desires to apply." Petitioner's Motion at 1. Petitioner contends that, as a result, the regulatory language fails to provide fair notice and violates due process as a result.

c. Rationale

I do not have jurisdiction to consider whether regulatory language violates due process and I, therefore, deny Petitioner's motion to dismiss Tag F 309 on those grounds. Heritage Manor of Columbia, DAB CR995 (2003); Hermina Traeye Memorial Nursing Home, DAB No. 1810 (2002); Sentinel Medical Laboratories, Inc., DAB No. 1762 (2001); Salvacion Lee, M.D., DAB CR920 (2002). I can, nonetheless, review the regulation as written and determine whether CMS has shown that Petitioner was not in substantial compliance with the regulation. I did not view the cited deficiency as a "catch-all" deficiency. I focused on the language of the regulation that requires a facility to provide "necessary" services in accordance with the facility's own assessment of the resident and the resident's plan of care. ⁽¹⁰⁾

R1's plan of care dated February 3, 1999, reported R1's propensity to climb out of bed and over the bed rail if not restrained. Petitioner's stated goal to address this problem was to emphasize safety with no incident reports due to falling. Petitioner's stated approach in R1's plan of care for this goal was to restrain R1 with a posey vest or the side rails up and to check his restraint every 30 minutes and release R1's restraints every two hours to allow R1 to exercise. P. Ex. 6, at 12. ⁽¹¹⁾

I reviewed the evidence regarding the staff's activities that night and compared those activities with R1's sitter's actions. I can only conclude that Petitioner basically left the care of R1 in the sitter's hands. Petitioner attended to R1 when the sitter called upon the staff, first, to relate the injury, and second, to ask for pain medication for R1. LPN Brown apparently looked in on R1 at 3:30 a.m to ask whether the pain medication had worked. There is no evidence that anyone on Petitioner's staff checked on R1 between 3:30 a.m. and 9:00 a.m. R1's care was left in the hands of a person whom the Petitioner did not know and about whose duties Petitioner was unaware. CMS Ex. 4, at 20.

Obviously, Petitioner's plan of care contemplated the need for some substantial monitoring of R1, certainly more frequently than the times recorded in the nurses' notes. CMS Ex. 4, at 20; TR. 231. An abdication of staff monitoring because R1 had a sitter with him is a failure to provide necessary services according to R1's plan of care, particularly when the facility is unaware of the identity or duties of the sitter. Based on the plain language of the regulation, Petitioner was not providing the necessary care and services to attain or maintain R1's highest practicable physical well-being.

4. CMS's assessment of immediate jeopardy is not clearly erroneous.

As noted above, immediate jeopardy occurs when a 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. Given CMS's expertise in determining scope or severity, I cannot change CMS's assignment of immediate jeopardy unless that assignment is clearly erroneous. I am constrained by 42 C.F.R. § 498.60(c)(2), which provides that the administrative law judge upholds "CMS's determination as to the level of the noncompliance of" a skilled nursing facility "unless it is clearly erroneous." See also 42 C.F.R. § 498.3(d)(10).

In this case, CMS did not prove that Petitioner's noncompliance with federal requirements caused injury, harm, impairment, or death to R1. Petitioner has suggested that the only reason CMS assigned immediate jeopardy to this incident was because, at the time of the complaint survey, the surveyor believed R1's death was caused by his head injury. Petitioner claimed, in essence, that the SOD as written by the surveyor was inflammatory and caused CMS to agree that immediate jeopardy existed. Petitioner further posited that, by the time Petitioner made its presentation in the state's alternative dispute forum, the surveyor concentrated on Petitioner's failure to follow its own procedures rather than the death of R1.

Petitioner's argument requires an assumption that CMS's assignment of immediate jeopardy was based entirely on the death of R1, which is an assumption I cannot make. The issue in this case is whether Petitioner's noncompliance with Tag F 225 and Tag F 309 was "likely" to cause injury, harm, impairment, or death. I must consider the probabilities of harm, given the noncompliance. As ALJ Jill Clifton stated in South Ridge Nursing and Rehabilitation Center, DAB No. 1778 (2001), ". . . the determination of whether there was immediate jeopardy requires some prognosticating, some predicting of probabilities . . . reasonable minds can and do differ on issues such as these."

Of course, a finding of immediate jeopardy does not hinge on a showing of a direct causal relationship between the facility's failure and the serious injury or death of a resident. The regulations do not require any finding of actual harm to justify a determination that immediate jeopardy exists. Fairfax Nursing Home, Inc., DAB No. 1794 at, 13 - 14 (2001); South Ridge, DAB No. 1778 (2001); Woodstock Care Center, DAB No. 1726 (2000).

I do not substitute my own conclusion for CMS's regarding the likelihood of injury, harm, impairment or death in any particular situation. I note that CMS essentially conceded that the deficiency cited at Tag F 225 regarding Petitioner's failure to investigate and report allegations of abuse, standing alone, did not pose immediate jeopardy. It was "pulled up" to immediate jeopardy by the other cited deficiencies. TR. 120. I note also that I have found that CMS did not prove that Petitioner was out of compliance at Tag F 224, an immediate jeopardy assessment.

Nonetheless, when a resident of a long term care facility has a plan of care such as R1 had, and suffers an injury, the likelihood of a bad "patient outcome" is increased significantly if the resident is not examined on a regular basis. I can only hope that, if R1 did not have a sitter with him, surely Petitioner's staff would have examined him more frequently than it did. With the scope of his injury, his history of agitation, and R1's attempts to remove bandages and ice, R1 required the staff's frequent review during the night to determine whether R1 was deteriorating neurologically or otherwise. Instead, the facility appears to have relied on word from the sitter regarding R1's condition. For example, no pain medication was administered until the sitter requested it. And yet, the facility did not know the identity of the sitter or what the sitter's duties were. Given the totality of this situation, I cannot predict a low likelihood of R1's further serious injury or death.

Notwithstanding CMS's apparent concession with regard to the scope and severity of Petitioner's noncompliance with Tag F 225 alone, the absence of control over the providers of care in Petitioner's facility, that is, outside sitters, posed a danger for the residents for whom the facility had responsibility. If the sitter had actually abused R1, Petitioner's failure to investigate the situation after R1's family visited and not report the incident to the State agency certainly posed dangers that the sitter would return to Petitioner's facility or another facility.

Therefore, while I might not have agreed with the exact assignment of severity made by CMS, I find that CMS's determination of immediate jeopardy is not clearly erroneous.

5. CMS proved by a preponderance of the evidence that Petitioner was not in substantial compliance from April 24, 1999 through June 7, 1999, but CMS failed to prove that Petitioner's noncompliance extended beyond June 7, 1999.

CMS assessed the CMP for the period from April 24, 1999 through June 11, 1999. The apparent reason for extending the immediate jeopardy beyond the date of the complaint survey was because CMS found instances of Petitioner's failure to do neuro checks after June 7, 1999. CMS made no other arguments that the jeopardy continued after the complaint survey. Because I have found that CMS did not prove Petitioner's failure to do neuro checks represented noncompliance, I can see no reason to extend the CMP beyond the date of the complaint survey. Obviously, the jeopardy continued at least until Petitioner was made aware that it had a clear responsibility for all residents, even those with outside sitters. Had Petitioner advised the State agency about the possibility of abuse prior to being told by the surveyor, the immediate jeopardy could have been abated. The length of the immediate jeopardy was, to a certain extent, within the control of the Petitioner.

Based on the above, I find Petitioner's noncompliance at the immediate jeopardy level extended from April 24, 1999, until June 7, 1999.

6. A CMP of $3,150 per day is reasonable.

A basis exists to impose a CMP against Petitioner of between $3,050 and $10,000 per day for each day of the period beginning on April 24, 1999 through June 7, 1999, because during that period Petitioner was deficient in complying with participation requirements to the extent that residents of Petitioner were in a state of immediate jeopardy. 42 C.F.R. § 488.438(a)(1).

The fact that a basis exists for an upper range penalty does not justify per se CMS's determination to impose a penalty of a particular amount that falls within that range. I determine the reasonableness of the civil money penalty based on the regulatory factors listed in 42 C.F.R. §§ 488.438(f), 488.404 (incorporated by reference into 42 C.F.R. § 488.438(f)(3).

As part of my independent review of the relevant regulatory factors set forth at 42 C.F.R. § 488.438(f) and 42 C.F.R. § 488.404, I find that Petitioner presented no evidence and hasnot argued that its financial condition is such that it cannot pay the per day CMP imposed against it. (42 C.F.R. § 488.438(f)(2)).

I also find that Petitioner was somewhat culpable. CMS did not show that Petitioner's acts were wilful or callous with respect to R1. Petitioner, however, was indifferent in allowing the sitter to assume almost sole responsibility for R1 after his injury. Moreover, a review of all the evidence suggests to me the Petitioner had simply moved on to other residents after R1's death and had no real interest in uncovering or stirring up the issues R1's injury presented.

I also find that CMS did show that Petitioner was previously cited for not taking responsibility for private sitters and that a repeat deficiency suggests the CMP should not be at the lowest level for immediate jeopardy.

Nonetheless, Petitioner's immediate jeopardy level deficiency was at a relatively low level of seriousness. 42 C.F.R. §§ 488.438(f)(3), 488.404(b). Surveyors use a rating system to describe the scope and severity of any deficiencies that are identified. Under this system immediate jeopardy level deficiencies are given scope and severity ratings of "J," "K," or "L," with "J" representing the lowest degree of seriousness and "L" representing the highest. In this case, CMS rated the Petitioner's failure at all three deficiency tags to be at the scope and severity level of "J."

While Petitioner's deficiencies were serious and met the criteria for immediate jeopardy, the regulations establish a range of money penalties for immediate jeopardy deficiencies and the CMP imposed should be commensurate with the actual seriousness of the deficiencies. The relatively less serious nature of Petitioner's deficiencies is shown by CMS's inability to show that Petitioner's failure to investigate or report potential abuse or to monitor R1 contributed to R1's death or that R1 or anyone else was actually abused. Less serious immediate jeopardy level deficiencies justify lower penalties.

I find CMS's continued pursuit of $5,000 per day, without presenting any evidence that Petitioner's response to R1's head injury led to delayed treatment or death, or that the sitter did abuse R1, to be unreasonable. I find that there is a basis to impose a CMP against Petitioner of $3,150 per day. I base my conclusion on the factors that are set forth in the regulations.

V. Conclusion

I conclude that as of April 24, 1999 through June 7, 1999, Petitioner was not complying with federal participation requirements in the Medicare program at the immediate jeopardy level and the imposition of CMP of $3,150 per day is reasonable.

Anne E. Blair

Administrative Law Judge

1. The Health Care Financing Administration (HCFA) has been renamed the Centers for Medicare and Medicaid Services. Reference to either name shall apply to the same entity, CMS.

2. CMS agreed to withdraw CMS Ex. 4, at 1 - 4; CMS Ex. 6, at 1 - 5; CMS Ex. 11; CMS Ex. 18, at 5 - 8, 40; and 118 - 120. The portions of the exhibits that were withdrawn are not part of the record before me.

3. I note there is a contradiction between LPN Baggett's nursing notes of April 24, stating that the sitter spoke to her, CMS Ex. 4, at 20, and Administrator Jones' report that LPN Baggett's shift started after the sitter left, CMS Ex. 18, at 85. As explained in Section 2. ii, infra, I find the contradiction relevant to show the rather surface investigation done by Petitioner regarding R1's injury of unknown origin.

4. CMS's assignment of a scope and severity level of "J" means CMS considered this to be an isolated incident that posed immediate jeopardy to the residents.

5. Neuro checks tell care providers whether a patient's neurological status is intact. A neuro check includes looking at the patient's level of consciousness, pupils, reflexes, and the ability to follow commands. TR. 158.

6. Petitioner argued that R1's pupils had been unequal since R1's cataract surgery in 1993.

7. The family did contact APS. TR. 130; CMS Ex. 3. Fifteen days after receiving the complaint, the APS notified the State agency. The State agency initiated a complaint survey. TR. 61; CMS Ex. 17. Although it is unclear how much investigation was actually done by them, no evidence of abuse was found by either APS or the sheriff's department.

8. I noted this inconsistency previously in footnote 3.

9. None of the deficiencies cited from the January 1999 survey constituted substandard quality of care. TR. 60.

10. I note that in Heritage Manor of Columbia, DAB CR995 (2003), ALJ Kessel denied a similar motion to dismiss in which the petitioner had complained that the regulation failed to define "necessary." ALJ Kessel concluded that professionally accepted standards of care can be considered as incorporated in the regulations. I find that a resident's defined plan of care can also be used to define "necessary" services.

11. Petitioner suggested that R1's family did not want R1 restrained. Petitioner provided no written evidence documenting that fact. A posey vest was put on R1 after the incident in question. CMS Ex. 18, at 86.