CASE | DECISION |JUDGE | FOOTNOTES

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


SUBJECT:

Brookwood Gardens Convalescent Center,

Petitioner,

DATE: September 17, 2003
             - v -
 

Centers for Medicare & Medicaid

 

Docket No.C-02-635
Decision No. CR1082
DECISION
...TO TOP

DECISION

I sustain the determination of the Centers for Medicare & Medicaid Services (CMS) to impose remedies against Petitioner, Brookwood Gardens Convalescent Center. I impose civil money penalties in amounts of $3,050 per day for each day of a period that began on April 12, 2002 and which ran through April 24, 2002. I impose additional civil money penalties in amounts of $250 per day for each day of a period that began on April 25, 2002 and which ran through May 13, 2002. (1) Additionally, I sustain CMS's determination to deny Petitioner payments for new Medicare admissions during a period that began on April 19, 2002 and which ran through May 13, 2002.

I. Background

Petitioner is a skilled nursing facility that is located in Homestead, Florida. Petitioner participates in the Medicare program. Its participation is governed by federal statutes including sections 1819 and 1866 of the Social Security Act and by regulations at 42 C.F.R. Parts 483 and 488.

Petitioner was surveyed between April 9 and 12, 2002 (April 12 survey) for compliance with Medicare participation requirements in a survey that was conducted by the Florida Agency for Health Care Administration (Florida State survey agency). The surveyors found that Petitioner was not complying substantially with Medicare participation requirements. In three instances, the surveyors concluded that Petitioner's noncompliance was so egregious as to constitute immediate jeopardy for residents of Petitioner's facility.

Petitioner was re-surveyed on April 25, 2002 (April 25 survey) and the surveyors concluded that Petitioner had abated all immediate jeopardy level deficiencies as of the date of that survey. Petitioner was re-surveyed for a second time on May 14, 2002 (May survey) and the surveyors determined that Petitioner had attained substantial compliance with Medicare participation requirements as of the date of that survey.

CMS concurred with the surveyors' findings and determined to impose remedies against Petitioner. It determined to impose civil money penalties of $10,000 per day for each day of a period that began on April 12, 2002 and which ran through April 24, 2002. It determined to impose civil money penalties of $3,000 per day for each day of a period that began on April 25, 2002 and which ran through May 13, 2002. And, it determined to deny Petitioner payment for new Medicare admissions for a period that began on April 19, 2002 and which ran through May 13, 2002.

Petitioner requested a hearing and the case was assigned to me for a hearing and a decision. I held an in-person hearing in Miami, Florida, on June 5, 2003. I heard the testimony of several witnesses. I received into evidence exhibits from CMS consisting of CMS Exhibits (Exs.) 1 - 43, and 45 - 53. I received into evidence exhibits from Petitioner consisting of Petitioner Exhibits (P. Exs.) 1 - 42.

II. Issues, findings of fact and conclusions of law

A. Issues

The issues in this case are:

1. Did Petitioner fail to comply substantially with one or more participation requirements at an immediate jeopardy level of noncompliance during the period from April 12, 2002 through April 24, 2002?

2. Did Petitioner fail to comply substantially with other participation requirements, at a scope and severity of noncompliance that is less egregious than the immediate jeopardy level of noncompliance, during the period from April 25, 2002 through May 13, 2002?

3. Is CMS authorized to impose remedies against Petitioner, including civil money penalties and denial of payments for new admissions?

4. What civil money penalty amounts are reasonable?

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. Petitioner failed to comply substantially with a participation requirement to the extent that residents of Petitioner were in immediate jeopardy during the period from April 12, through April 24, 2002.

CMS alleges that Petitioner manifested three distinct immediate jeopardy level deficiencies during the period that ran from April 12 through April 24, 2002. The allegations of immediate jeopardy level deficiencies were that Petitioner failed to:

• develop and implement written policies and procedures that prohibit mistreatment, neglect and abuse of residents, as is required by 42 C.F.R. § 483.13(c)(1)(i). CMS Ex. 3, at 12 - 23 (Tag 224 of the April 12 survey report);

• have sufficient nursing staff on duty on a daily basis to provide needed care and supervision to residents who wandered and/or were abusive towards other residents, as is required by 42 C.F.R. § 483.30(a)(1) and (2). CMS Ex. 3, at 63 - 67 (Tag 353 of the April 12 survey report); and

• be administered in a manner that enabled it to use its resources effectively and efficiently to attain or maintain the highest practicable physical, mental, and psychosocial well-being of each resident, as is required by 42 C.F.R. § 483.75. CMS Ex. 3, at 74 - 79 (Tag 490 of the April 12 survey report).

I sustain the first of these three allegations. I do not sustain the remaining two allegations.

a. Petitioner failed to prevent neglect of its residents.

At Tag 224 of the April 12 survey report, the surveyors alleged that Petitioner neglected the needs of its residents by failing adequately to supervise residents who were wandering or aggressive towards others. CMS Ex. 3, at 12 - 22. The surveyors asserted that Petitioner's alleged neglect of its residents' needs permitted uncontrolled wandering by residents and resulted in a series of altercations which, in one instance, left a resident injured and bleeding. To support these contentions, the surveyors relied on the following specific allegations of fact:

• Four of ten residents who were interviewed at a group interview held on April 10, 2002 alleged that they had been physically and psychologically abused by other residents.

• Nine of ten residents who were interviewed reported that there were problems at Petitioner's facility with residents who wandered.

• Several residents were observed by surveyors to be wandering. Two residents, identified in the survey report as Residents #s 32 and 17, were observed by the surveyors to be involved in physical altercations.

• On April 11, 2002, Petitioner transferred an aggressive resident, identified as Resident # 17, into the room of another aggressive resident, identified as Resident # 14. An altercation occurred on that date between the two residents, resulting in the bleeding of a pre-existing hematoma on the back of Resident # 17's head.

Id.

As I discuss in more detail below, I am not persuaded that the allegations of wandering and abuse that were made to the surveyors by unnamed residents are credible. However, evidence relating to specific incidents of wandering and the situation of Residents #s 17 and 14 in the same room is sufficiently credible to establish a prima facie case that Petitioner failed adequately to supervise its wandering and/or aggressive residents and so neglected these residents' needs. I do not find that Petitioner overcame this evidence with evidence proving that it provided adequate supervision.

"Neglect" is defined at 42 C.F.R. § 488.301 as-

failure to provide goods and services necessary to avoid physical harm, mental anguish, or mental illness.

It is evident when this definition is read into 42 C.F.R. § 483.13(c)(1)(i) that a facility may be liable for failure to implement policies assuring that residents receive necessary care.

Failure to supervise residents properly to protect them against the consequences of wandering or to prevent resident-on-resident assaults may be an act of "neglect" and constitute a deficiency under 42 C.F.R. § 483.13(c)(1)(i). Supervision is a service that a facility needs to provide to those residents who are in need of it in order to protect them against physical harm, mental anguish, or mental illness. (2)

I do not find the complaints of various residents that are reported and relied on by the surveyors to be credible. These consist of hearsay reports by surveyors of unverified hearsay statements, which I find to be unreliable. Petitioner was not afforded the opportunity to test the credibility of any of the declarants or their statements. I can make no principled decision whether these accounts are accurate or not.

By contrast, there is sufficient credible evidence in this case for me to conclude that Petitioner was remiss in the way that it dealt with Residents #s 14 and 17. By placing these two aggressive, cognitively impaired residents together in one room, Petitioner created the likelihood that there would be an altercation involving them with potentially very serious consequences resulting from that altercation.

The evidence establishes that:

• Resident # 14 is an individual who is physically mobile but who has severe cognitive impairments. CMS Ex. 17, at 3, 14, 18, 81.

• Resident # 14 has a long history of verbal and physical aggression towards other residents. Tr. at 166. On various occasions, the resident: pushed wheelchair bound residents away from her; slapped another resident in the face when that resident invaded what she considered to be her personal space; and hit other residents. CMS Ex. 17, at 6, 8 - 10, 19.

• Resident # 14 is highly territorial about her room and the space immediately adjacent to her room. Tr. at 139 - 140. Petitioner's staff knew that the resident was aggressive towards perceived intruders and was especially aggressive towards other residents who approached her room. CMS Ex. 17, at 20, 24, 26, 61.

• Petitioner's staff attempted to deal with Resident # 14's aggressiveness and territoriality by placing her in a room that was located at the end of a corridor. Tr. at 137. However, this action seemed to increase the resident's territoriality. CMS Ex. 17, at 76. The decision to house the resident at the far end of a long corridor also was at odds with the resident's physician's recommendation to move the resident to a room that was close to a nurse's station so that the resident could be more closely supervised. CMS Ex. 17, at 20 - 21.

• On March 29, 2002, Petitioner's staff attempted to transfer Resident # 14 to another room. Tr. at 137. However, the attempt was not successful due, at least in part, to conflicts between the resident and her new roommate and the resident was returned to her original room on April 9, 2002. CMS Ex. 17, at 54 - 55.

• Resident # 17 was admitted to Petitioner's facility on March 2, 2002. The resident has severely impaired cognition and was admitted to Petitioner's facility because she needed around the clock supervision. CMS Ex. 16, at 12, 15; Tr. at 143. The resident is capable of independent ambulation but has an unsteady gait and is a fall risk. Id. at 16; Tr. at 142. The resident sustained falls on four occasions between April 4 and April 11, 2002. CMS Ex. 16, at 6, 8 - 9.

• Petitioner's staff observed Resident # 17 to be combative and uncooperative at times. On March 3, 2002, the resident slapped a nurse. CMS Ex. 16, at 6. On April 7, 2002, Petitioner's nursing staff noted that the resident was combative and engaged in hitting and spitting behaviors. Id.

• Petitioner's staff decided to relocate Resident # 17 into the same room as was occupied by Resident # 14. The staff decided to relocate the resident because she was physically abusive with others. CMS Ex. 16, at 15. They determined that it would be appropriate for the resident to share a room with Resident # 14 because the two residents functioned at the same cognitive level. Id.

• On April 11, 2002, at approximately 8:35 a.m., Petitioner's staff relocated Resident # 17 from her previous room into Resident # 14's room. CMS Ex. 16, at 9.

• An altercation occurred between Resident # 17 and Resident # 14 almost immediately after the relocation of Resident # 17 was completed. P. Ex. 36, at 11 - 12. Subsequent to the altercation, Resident # 17 was observed to be bleeding from a pre-existing hematoma to the back of her head. CMS Ex. 16, at 9. However, no one observed any physical contact between Resident # 14 and Resident # 17.

From the aforesaid evidence, I conclude that Petitioner housed two cognitively impaired, volatile, and at times, physically abusive residents in the same room under circumstances under which an altercation between the two residents was highly likely. Petitioner knew or should have known that these residents were likely to come in conflict with each other.

Each resident, particularly Resident # 14, is an individual who has been known to react violently to perceived intrusions on her privacy and space. Housing these two individuals together in close quarters was a recipe for a confrontation between the two of them.

I conclude that the evidence which I describe above establishes prima facie that Petitioner neglected the needs of Residents #s 14 and 17. An important element of each of these resident's care was close supervision to assure that the resident not become engaged in confrontations that could lead to injuries to the resident or to other persons. The evidence offered by CMS shows that Petitioner neglected to provide that care when it housed Residents #s 14 and 17 together.

I do not find to be persuasive the evidence or arguments offered by Petitioner to refute the evidence of its neglect. Petitioner asserts that "no system can guarantee that a resident will not be involved in an altercation." Petitioner's Post-Hearing Brief at 14. But, the altercation between Residents #s 14 and 17 clearly was foreseeable. The placement of the two residents was within Petitioner's ability to control. The altercation between these two volatile residents was the direct effect of Petitioner's staff placing them together in the same room.

Petitioner argues also that it implemented numerous policies and procedures to prevent mistreatment, neglect, and abuse of its residents. Petitioner's Post-Hearing Brief at 16 - 17. That may be so and I do not doubt Petitioner's diligence. But, the misjudgments that led to the placement of Residents #s 14 and 17 in the same room nonetheless demonstrate a flaw in Petitioner's system of preventing abuse and neglect.

Petitioner asserts that Resident # 14 was seen by a psychiatrist on March 15, 2002 and it was noted by the psychiatrist that the resident had displayed appropriate behavior since at least December 2001. Petitioner' Post-Hearing Brief at 18; P. Ex. 12. The inference that Petitioner evidently intends that I draw is that reasonable persons would have concluded, in April 2002, that the resident was no longer a threat to engage in assaultive behavior towards those whom she perceived as invading her space.

That is not a reasonable inference. The weight of the evidence is that Petitioner's staff remained concerned about Resident # 14's behavior right up until the incident on April 11, 2002. CMS Ex. 17, at 15 - 16, 24, 26, and 61. Indeed, the evidence shows that the resident remained hyper-territorial up until the April 11 episode and Petitioner's staff knew that. Id.

Finally, Petitioner argues that it was paying close attention to the behaviors of both Residents #s 14 and 17. Petitioner's Post-Hearing Brief at 19. It argues that it knew that a room change could trigger abusive behavior by Resident # 14 and that, therefore, its staff was watching the resident closely. Likewise, according to Petitioner, it was closely observing Resident # 17 because the resident was in the initial assessment phase of her residence at Petitioner's facility. That may be true, but it begs the question of why Petitioner would decide to house the two residents together in the same room given what its staff knew about the residents' volatility and potential for aggressive behavior.

b. Petitioner's neglect of its residents placed them at immediate jeopardy.

Regulations define "immediate jeopardy" as-

a situation in which the provider's noncompliance with one or more requirements of participation has caused, or is likely to cause, serious injury, harm, impairment, or death to a resident.

42 C.F.R. § 488.301. Where a deficiency is established and CMS has made a determination that the deficiency is at the immediate jeopardy level, the burden falls on the facility to prove that the determination is clearly erroneous.

I do not find to be clearly erroneous CMS's determination that Petitioner's failure to implement its policies to prevent neglect, in the cases of Residents #s 14 and 17, was at the immediate jeopardy level of noncompliance. CMS has presented a prima facie case that there was a substantial likelihood that housing the two residents together could cause serious harm or worse to one or both of the residents. Petitioner did not rebut that evidence. Both Residents #s 14 and 17, but, particularly, Resident # 14, had a propensity to engage in violent behavior. In Resident # 14's case there were well-documented episodes of that resident striking, slapping, and pushing other residents or facility staff. It is not clearly erroneous to infer that there was a high likelihood that someone would get hurt when these two residents were placed together, given their volatile personalities and their histories.

c. CMS did not establish a prima facie case that Petitioner had insufficient nursing staff on duty on a daily basis to provide needed care and supervision to residents who wandered and/or were aggressive towards other residents.

At Tag 353 of the April 12 survey report, the surveyors alleged that Petitioner failed to ensure that sufficient nursing staff was available on a daily basis to provide needed care and supervision to residents who wandered and/or were aggressive towards other residents. CMS Ex. 3, at 63 - 67. I find that CMS failed to prove a prima facie case to support this allegation.

The regulation which is at issue here, 42 C.F.R. § 483.30(a)(1), requires that a facility:

must provide services by sufficient numbers of . . . [specified] nursing personnel on a 24-hour basis to provide nursing care to all residents in accordance with resident care plans . . . .

(Emphasis added). On its face, the regulation addresses the numbers of nursing staff that a facility must employ and have on duty. It does not directly address the quality of care that a facility's staff provides.

I have addressed previously the evidentiary requirements for showing prima facie that a facility is not complying substantially with the requirements of the regulation. In Life Care Center of Hendersonville, DAB CR542 (1998) and again, in Carehouse Convalescent Hospital, DAB CR729 (2001), aff'd in part rev'd in part, DAB No. 1799 (2002), I held that a prima facie case of noncompliance with the requirement for sufficient number of staff may not be based solely on evidence showing that a facility's staff provided care of a poor quality. That is because quality of care is not necessarily linked in every instance to staffing levels. A facility may be able to provide excellent care to its residents for a time even though it is understaffed. And, by the same token, a facility may provide care of a poor quality despite having adequate staffing numbers, if the staff is poorly trained, poorly motivated, or not sufficiently competent to provide care. It is impossible, therefore, to infer from evidence solely related to quality of care that a facility maintained an inadequate number of staff on duty. In its decision in Carehouse, the Departmental Appeals Board upheld my legal analysis of 42 C.F.R. § 483.30(a)(1).

CMS's contention of Petitioner's alleged noncompliance with 42 C.F.R. § 483.30(a)(1) manifests the same evidentiary deficiency as was fatal to its allegations in both Life Care Center of Hendersonville and Carehouse. CMS rests its entire case of allegedly inadequate staffing on evidence that Petitioner provided poor quality of care to its wandering or physically aggressive residents. It offered no evidence showing how this allegedly poor care was linked to the numbers of staff that Petitioner had on duty at any given time. See CMS Ex. 3, at 63 - 67.

CMS argues that I should infer from the plan of correction that Petitioner prepared in response to the April 12 survey that it had inadequate numbers of staff on duty at the time of the survey. CMS notes that the plan of correction, in evidence as P. Ex. 4, recites that Petitioner would satisfy the surveyors' concerns about staffing adequacy by assigning two additional nursing assistants for the 3 p.m. to 11 p.m. shift in order to assure quality of care. Additionally, Petitioner averred that it would assign an additional nursing assistant to work each day from 8 a.m. to 4:30 p.m. to walk residents for 15-minute periods. Id. at 45. CMS argues that these promises constitute an admission by Petitioner that it was inadequately staffed prior to implementing its plan of correction.

I decline to draw the inference that is advocated by CMS. The plan of correction plainly was designed by Petitioner to satisfy the demands of the Florida State survey agency surveyors and CMS. It was not offered by Petitioner as an admission of its deficiencies and, in fact, Petitioner expressly stated that at the preamble to the plan. P. Ex. 4, at 1. I am certain that there are innumerable instances in which nursing facilities offer plans of correction to a State survey agency or CMS solely because they want to avoid imposition of remedies and not because they are admitting failure to comply with the requirements of regulations. To infer from a facility's plan of correction that it has admitted noncompliance with a participation requirement - in the absence of any prima facie evidence from CMS that the facility had not complied substantially with that requirement - would, for practical purposes, make that facility's right to a hearing a meaningless exercise because it would render it unnecessary that CMS establish even a prima facie case of noncompliance. (3)

d. CMS failed to establish a prima facie case that Petitioner was administered in a manner that prevented it from using its resources effectively and efficiently to deter residents from wandering or to prevent residents from physically and mentally abusing other residents.

At Tag 490 of the April 12 survey report, the surveyors alleged that Petitioner failed to use its resources effectively and efficiently to deter wandering residents identified by the facility from going into other residents' rooms uninvited and to prevent facility-identified abusive residents from physically and mentally abusing other residents. CMS Ex. 3, at 74 - 79. I find that CMS failed to prove a prima facie case to establish this allegation.

The specific requirements of the regulation that Tag 490 refers to, 42 C.F.R. § 483.75, are that:

A facility must be administered in a manner that enables it to use its resources effectively and efficiently to attain or maintain the highest practicable physical, mental, and psychosocial well-being of each resident.

(Emphasis added). This regulation, as is the case with the regulation that I describe in the preceding subpart of this Finding, is not on its face a quality of care regulation. It is a regulation that addresses the manner in which a facility is managed.

CMS offered no evidence addressing directly the way in which Petitioner managed its facility. It is unclear whether the surveyors actually looked at evidence relating directly to that issue or whether they simply assumed that Petitioner's facility was poorly managed based on alleged quality of care deficiencies. However, unlike the case with the staffing regulation that I described above, it may be possible to infer management shortcomings at a facility from the quality of care provided by that facility. That is because management is responsible for the quality of care that a facility provides. Thus, for example, a pattern of non-implementation of management directives by staff may suggest poor oversight of that staff.

However, examples of staff errors at a facility are not necessarily proof from which one may infer poor management. Obviously, there will be times when errors are committed that are beyond the control of management to anticipate. And, moreover, there is nothing in the regulations to suggest that every quality of care deficiency at the facility means, ipso facto, that the facility's management also is deficient.

Here, the evidence presented by CMS simply is not sufficiently persuasive evidence from which I may infer that Petitioner's facility was poorly managed. Much of the evidence relied on by CMS is hearsay evidence which I find not to be credible. The allegations of noncompliance are in large measure based on statements by residents, some of whom are anonymous, at a group meeting. CMS Ex. 3, at 74 - 75. The surveyors appear not to have made an effort to verify these statements. Additional allegations include an instance of a resident, identified as Resident # 10, wandering into another resident's room and instances of failure by Petitioner to maintain barrier strips on doorways to prevent unauthorized entry by residents to other residents' rooms. Id. at 74 - 79. Although these episodes may support other quality of care allegations, I do not find that the surveyors drew a sufficient nexus between them and the management of Petitioner's facility for me to conclude that these isolated errors constituted a failure of administration.

2. Petitioner's immediate jeopardy level noncompliance persisted through April 24, 2002.

Petitioner was re-surveyed on April 25, 2002 and its immediate jeopardy noncompliance was found to be abated as of that date. Petitioner has not alleged, nor has it offered evidence to prove that it corrected its immediate jeopardy level deficiency prior to April 25, 2002. Consequently, I find that Petitioner remained noncompliant at the immediate jeopardy level from April 12 through April 24, 2002.

3. Civil money penalties of $3,050 per day are reasonable for each day of Petitioner's immediate jeopardy level noncompliance.

Regulations provide that civil money penalties in the range of from $3,050 to $10,000 per day may be imposed to remedy an immediate jeopardy level deficiency or deficiencies. 42 C.F.R. § 488.438(a)(i). The reasonable amount of any penalties falling within this range depends on the application of factors that are identified at 42 C.F.R. §§ 488.438(f) and 488.404 (incorporated by reference into 42 C.F.R. § 488.438(f)(3)). These factors may include a facility's: history of noncompliance, including any repeated deficiencies; its financial condition; the scope and severity of the deficiency or deficiencies; and, its culpability for the deficiency or deficiencies.

CMS determined to impose civil money penalties of $10,000 per day against Petitioner for each day of the April 12 - 24, 2002 period. It is unclear precisely why CMS advocates this amount as CMS has not articulated specific factors that would support penalties of $10,000 per day. In any event, I find that penalties of $3,050 per day, and not $10,000 per day, are reasonable.

I do so based primarily on the seriousness of Petitioner's immediate jeopardy level deficiency. The neglect of care of Residents #s 14 and 17 posed a high risk of serious harm to either or both of them. These two residents have volatile personalities and there was a risk that either of them could become involved in a physical altercation with another resident. Putting them together, unsupervised, in a single room was potentially a recipe for disaster.

However, having said that, there is no proof that either resident actually was harmed by Petitioner's neglect to provide care for them. No one witnessed the altercation that occurred between the two residents on April 11, 2002. There is no evidence to show that the two residents even came into physical contact with each other on that date. And, although a hematoma on Resident # 17's head was subsequently found to have bled, that was a pre-existing injury and it would be speculation to guess at the cause of the renewed bleeding.

In an instance of immediate jeopardy in another case, I found that civil money penalties of $10,000 per day were reasonable. Wellington Specialty Care, DAB CR548 (1998). The circumstances which justified penalties of that amount in Wellington are not only distinguishable from the facts of this case, but they illustrate vividly why penalties of that magnitude are inappropriate here.

Wellington involved a particularly egregious failure by a facility to protect one of its residents against a known and obvious hazard. A resident of that facility strangled in the side rails of her bed. The facility had been warned by the manufacturer of the bed that the rails posed a safety risk for some residents. Additionally, the facility knew that the resident had previously put her head between the side rails. Yet, the facility disregarded all warnings and the consequence was that the resident strangled and died. That situation is plainly distinguishable from that of the present case. It is true that Petitioner should have known that Residents #s 14 and 17 were volatile individuals who should not have been housed together. However, although Petitioner's staff made a serious judgment error in housing these individuals together, that error does not approach in egregiousness the indifference towards safety issues that was so manifest in Wellington. Moreover, the consequences of Petitioner's judgment error were far less devastating in this case than were the consequences of the misjudgments and indifference that were present in Wellington.

I also note that there were fewer deficiencies of an immediate jeopardy level established in this case than CMS contended. I have sustained only one of the three immediate jeopardy level deficiencies that CMS asserted to be present. Having said that, however, I would sustain civil money penalties of $3,050 per day for the immediate jeopardy level noncompliance even had I also found that Petitioner was deficient under the "administration" tag, Tag 490. The management deficiency that is alleged at Tag 490 of the April 12 survey report essentially is derivative of the neglect deficiency that is alleged at Tag 224. It does not rest on additional alleged facts and the possibility that the neglect that existed under Tag 224 also constitutes a failure of management in Petitioner's facility does not, in this case, make Petitioner's deficiency any more egregious.

4. Petitioner failed to comply with additional participation requirements at a scope and severity of noncompliance that was less egregious than the immediate jeopardy level of noncompliance.

The report of the April 12 survey asserts that Petitioner manifested several deficiencies that are in addition to the three alleged immediate jeopardy level deficiencies that I discuss above at Finding 1. The allegations of non-immediate jeopardy level deficiencies were that Petitioner failed to:

• follow its policy about investigating allegations of abuse and neglect and mistreatment of residents, because its staff failed immediately to report an allegation of abuse to Petitioner's administrator and other officials, as is required by 42 C.F.R. § 483.13(c)(2). CMS Ex. 3, at 23 - 26 (Tag 225 of the April 12 survey report); (4)

• promote care for its residents in a manner and in an environment that maintains or enhances each resident's dignity and respect in full recognition of the resident's individuality as is required by 42 C.F.R. § 483.15(a). CMS Ex. 3, at 26 - 28 (Tag 241 of the April 12 survey report);

• provide for an ongoing program of activities designed to meet, in accordance with a resident's comprehensive assessment, the interests and the physical, mental, and psychosocial well-being of each resident as is required by 42 C.F.R. § 483.15(f)(1). CMS Ex. 3, at 28 - 47 (Tag 248 of the April 12 survey report);

• provide housekeeping and maintenance services that are necessary to maintain a sanitary, orderly, and comfortable interior as is required by 42 C.F.R. § 483.15(h)(2). CMS Ex. 3, at 47 - 51 (Tag 253 of the April 12 survey report);

• prepare an effective and comprehensive care plan for each of its residents as is required by 42 C.F.R. § 483.20(k). CMS Ex. 3, at 51 - 63 (Tag 279 of the April 12 survey report);

• utilize the services of a registered nurse for at least eight (8) consecutive hours a day, seven (7) days a week, as is required by 42 C.F.R. § 483.30(b)(1). CMS Ex. 3, at 67 - 69 (Tag 354 of the April 12 survey report); and

• store, prepare, distribute, and serve food under sanitary conditions as is required by 42 C.F.R. § 483.35(h)(2). CMS Ex. 3, at 69 - 74 (Tag 371 of the April 12 survey report).

For the reasons that I discuss below, I do not sustain the allegations of noncompliance that were made at Tags 225, 241, and 354. I sustain the allegations of noncompliance that were made at Tags 248, 253, 279, and 371.

a. Petitioner effectively rebutted allegations that Petitioner's staff failed to report and to investigate an allegation of abuse.

The allegations that Petitioner's staff failed to report and to investigate an act of abuse all emanate from a complaint to a surveyor by a resident - identified in the report of the April 12 survey as Resident # 27 - that he was hit by another resident about two months prior to the April 12 survey. The surveyors reviewed Petitioner's abuse inquiry report log and found no mention of the alleged incident. CMS Ex. 3, at 25. The surveyors then interviewed Petitioner's abuse coordinator who, according to the surveyors, acknowledged that there was a rumor that Resident # 27 had been hit by another resident, but admitted that the rumor had not been investigated by Petitioner's staff. CMS Ex. 3, at 26.

Petitioner argues that the resident who allegedly perpetrated the act of abuse against Resident # 27 - Resident # 15 - is a severely, cognitively impaired individual who could not form the intent to cause harm that is a necessary element of "abuse" as is defined by 42 C.F.R. § 488.301. I agree with Petitioner that intent is a necessary element of abuse and I question whether an assault by a severely, cognitively impaired individual is abuse. But, Petitioner's argument really begs the question of whether it ought to have investigated Resident # 27's allegations. Its management and staff should have investigated whatever allegations of abuse were brought to its attention, if only to satisfy themselves that the complained-of act was not, in fact, abuse.

However, I find that Petitioner's staff did conduct an adequate investigation into Resident # 27's allegations. That is made apparent by the sworn declaration of Linda Howell, Petitioner's abuse coordinator. P. Ex. 30. She avers credibly that the episode in question was investigated by Petitioner's RN nurse supervisor, that Resident #15's family and physician were notified, and that an incident report was made. Id.

b. Petitioner effectively rebutted allegations that its staff failed to respect the dignity of residents.

The allegations that Petitioner failed to respect its residents' dignity are based on surveyors' observations that two residents wore garments with their names written on them. CMS Ex. 3, at 26 - 28. Petitioner does not dispute these observations. However, Petitioner contends, credibly, that its staff was not responsible for placing the residents' names on their clothing. P. Ex. 4, at 22 - 23. Rather, the clothing was marked by family members of the two residents in question, contrary to requests that were made by Petitioner's staff that they not do so. CMS Ex. 3, at 30.

The preponderance of the evidence is that Petitioner did what it could reasonably be expected to do to protect the dignity of its residents. Moreover, there is no evidence that these cognitively impaired residents' dignity was offended, particularly in view of the fact that the clothing worn by these residents comported with their families' wishes.

c. Petitioner failed to provide an ongoing program of activities that was designed to meet the interests and the physical, mental, and psychosocial well-being of each resident.

The surveyors' based their allegations at Tag 248 of the April 12 survey report on complaints voiced by residents at a group meeting and on review of specific residents' records. I do not find the surveyors' recitation of complaints to be persuasive for the reason that they are hearsay. But, I am persuaded that CMS did present a prima facie case that was not rebutted by Petitioner, which shows that Petitioner failed adequately to plan activities for some of its residents who had a propensity to wander and/or to engage in aggressive behavior.

The surveyors reviewed the treatment records of residents who are identified in the survey report as Residents #s 15, 17, 3, 14, and 1. CMS Ex. 3, at 31 - 47. These residents have common features in that all of them are severely, cognitively impaired individuals who are prone to wandering and to violent outbursts. The surveyors found, based on a review of the residents' records, that Petitioner had not provided these residents with activities to divert them from their inappropriate behaviors. Nor had Petitioner's staff assessed the residents to determine whether the activities that were available benefitted them or to determine whether there might be other activities that would work more effectively to curb the residents' inappropriate behavior. Id.

In response to this evidence, Petitioner asserts that the residents in question in fact participated in numerous activities. For example, Petitioner avers that Resident # 3 attended Friday movies, bingo five times a week, birthday parties and special group events. Petitioner's Pre-Hearing Brief at 43; P. Ex. 36.

I find that Petitioner's recitation of the activities in which the residents participated is not persuasive evidence that it was complying substantially with the requirements of 42 C.F.R. § 483.15(f)(1). The regulation does not require just that activities be offered to residents. Nor is the requirement of the regulation satisfied by proof that a resident attends activities. The regulation specifically requires that activities be tailored to meet the specific needs and requirements of each resident. The regulation contemplates that activities be offered as part of the resident's therapy and that they be designed to facilitate meeting the specific goals of a resident's care plan.

The problem that the surveyors identified is that Petitioner was not evaluating the residents' participation in activities to determine whether their participation was providing them with any benefit. In particular, Petitioner failed to assess whether the residents' participation in activities curbed their propensity to wander or to become violent. Petitioner has not rebutted these findings by showing that activities were offered to its residents or that residents participated in activities.

Petitioner argues that it is unfair to assert that it was remiss in assessing the effect that participation in activities had on Resident # 17 inasmuch as the resident was in the initial assessment phase at the time of the April 12 survey. I agree with Petitioner's argument as to Resident # 17. However, that does not account for the way in which Petitioner dealt with the other residents who are identified in the survey report. Petitioner's failure to make assessments of these other residents' participation in activities is sufficient to establish that Petitioner did not comply substantially with the requirements of 42 C.F.R. § 483.15(f)(1).

d. Petitioner failed to provide housekeeping and maintenance services that are necessary to maintain a sanitary, orderly, and comfortable interior of its facility.

The surveyors' allegations at Tag 253 of the April 12 survey report are based on their observations of Petitioner's facility. CMS Ex. 3, at 47 - 51. These observations include numerous observations of debris in shower stalls. This observed debris included empty or partially empty containers, soiled clothing, a razor, and in one instance, formed stool. The surveyors' observations also include observations of non-functioning equipment, such as a whirlpool bath, and non-working overhead lights. Id. Taken together, these observations establish a prima facie case that Petitioner did not comply substantially with the requirements of 42 C.F.R. § 483.15(h)(2).

Petitioner responds to these observations by contending that "all environmental deficiencies that could be immediately corrected were corrected and re-inspected by the surveyor before the end of the day the surveyor made her initial observation." Petitioner's Pre-Hearing Brief at 45. The thrust of this argument is to suggest that there was not really a deficiency because the observed problems, or most of them, were fixed immediately.

But, this begs the question of whether Petitioner was deficient in its practices. The problems observed by the surveyors are proof of lax maintenance practices by Petitioner as much as they establish the presence of specific things that made aspects of Petitioner's facility unsanitary. Moreover, they establish that Petitioner was deficient as of the time of the survey even if Petitioner corrected its deficiency immediately.

e. Petitioner failed to prepare an effective and comprehensive care plan for each of its residents.

The bulk of the allegations made at Tag 279 of the report of the April 12 survey are based on the surveyors' review of Petitioner's resident treatment records. The surveyors concluded that Petitioner's staff had failed to prepare an effective or a comprehensive care plan for Residents identified in the survey report as Residents #s 2, 3, 12, 14, 15, and 17. CMS Ex. 3, at 53 - 63. (5) Briefly summarized, the surveyors' allegations and the evidence supporting those allegations are as follows:

• Resident # 2 was assessed by Petitioner's staff as being cognitively impaired to the extent that the resident was rarely or never understood by others and was rarely or never able to understand others. CMS Ex. 22, at 18. However, Petitioner's staff wrote a care plan for the resident which had as a goal that the resident would be able to answer one or two simple yes or no questions per day without screaming. CMS Ex. 40. CMS contends that this goal was unrealistic given the resident's limitations.

• Resident # 3 had a propensity to become aggressive in situations involving food. Petitioner's staff was aware of this problem and had received professional recommendations for dealing with it. CMS Ex. 3, at 53 - 54. However, Petitioner's staff failed to address this problem in the resident's care plan. Furthermore, the resident was receiving bowel and bladder retraining. However, this aspect of the resident's care was not discussed in the resident's care plan. CMS Ex. 8, at 28 - 29.

• Resident # 12 was a severely cognitively impaired individual who was receiving Seraquel, an anti-psychotic medication. CMS Ex. 3, at 62. However, the resident's care plan did not address the resident's use of anti-psychotic medications. CMS Ex. 43.

• Resident # 15 had a history of manifesting aggression towards other residents and Petitioner's staff. In March 2002 the resident sustained a fractured hip which severely limited the resident's mobility. The resident's limited mobility limited the opportunities for aggressive behavior. However, Petitioner's staff remained sufficiently concerned about the resident's propensities that it continued to escort and supervise the resident during group activities. Tr. At 157. Petitioner failed to write a care plan to address this and failed to plan for the future when the resident would regain mobility.

• Resident # 17's behaviors included wandering into other residents' rooms and refusing to take prescribed medications. CMS contends that the care plan failed to address the resident's refusal to take medications. Moreover, the plan failed adequately to address the resident's propensity to wander. See Tr. At 172 - 173.

With the exception of the allegations made concerning Residents # 2 and 15, I find CMS to have established a prima facie case of noncompliance by Petitioner with the requirements of 42 C.F.R. § 483.20(k). I find also that Petitioner failed to rebut this prima facie case.

The allegations concerning Resident # 2 do not describe any situation where there conceivably would be a potential for harming the resident. The resident's care plan had staff encouraging the resident to be responsive. While that may or may not have been effective, I cannot envision how such efforts would cause the resident any harm and CMS has offered no explanation as to how they would even potentially harm the resident. I also find that CMS has not explained what harm would potentially befall resident # 15 by waiting until the resident recovered mobility to plan for dealing with the resident's resumption of aggressive behavior.

But, there manifestly was a potential for harm in failing to plan for: the aggressive behavior and bowel and bladder retraining needs of Resident # 3; administration of anti-psychotic medications to Resident # 12; and, Resident # 17's wandering and refusal to take medications. Each of these residents had needs or problems that Petitioner's staff had identified and which needed to be addressed. Petitioner's staff failed to address these needs in the resident's care plans. That left open the possibility that the residents' needs would not be addressed to the residents' detriment.

Petitioner's response to CMS's prima facie case is to assert, essentially, that Petitioner's staff was addressing the residents' needs even if care was not specifically planned. I find this argument to be unpersuasive. The requirement that a detailed care plan be developed for each resident reflects the need to systematize the care that each resident receives. Even the most dedicated staff can overlook a resident's problems if care for those problems is not systematically planned. Consequently, the potential existed to omit necessary care to Residents #s 3, 12, and 17 and that, potentially, could have caused these residents to experience more than minimal harm.

f. Petitioner effectively rebutted allegations that it failed to utilize the services of a registered nurse for at least eight (8 ) consecutive hours a day, seven (7 ) days a week.

The allegation made at Tag 354 of the April 12 survey report is that Petitioner failed to have a registered nurse on duty on March 16, 2002. CMS Ex. 3, at 69. The surveyors based the allegation on an interview with Petitioner's nursing director and on a review of the facility's time card reports. Id. The evidence reviewed by the surveyors allegedly shows that a nurse who was scheduled to work on March 16, 2002 was not available on that date. The nursing supervisor was scheduled to work on that date. However, review of Petitioner's time cards does not show that the nursing supervisor actually reported for work. Id.

I am persuaded that, in fact, Petitioner provided a substitute for its absent nurse on March 16, 2002. The credible evidence is that an assistant director of nursing did, in fact, work in place of the registered nurse on that date. P. Ex. 36, at 21; P. Ex. 28.

g. Petitioner failed to store, prepare, distribute, and serve food under sanitary conditions.

The allegations that Petitioner failed to store, prepare, distribute, and serve food under sanitary conditions are based on several observations made by the surveyors and recorded in the report of the April 12 survey. CMS Ex. 3, at 69 - 79. I find that these allegations constitute prima facie evidence of noncompliance by Petitioner with the requirements of 42 C.F.R. § 483.35(h)(2). They describe observed instances of dirty, cracked, or unsanitary food service equipment as well as ineffective practices for assuring sanitary kitchen conditions. I find that Petitioner failed to rebut these allegations. Petitioner does not deny the truth of the surveyors' observations. Rather, it argues that there never have been incidents of foodborne illnesses at Petitioner's facility. Petitioner's pre-hearing brief at 57. That may be the case, but it begs the question of whether the observed unsanitary practices posed the potential for harm to Petitioner's residents.

5. Petitioner did not prove that it corrected its non-immediate jeopardy level deficiencies prior to May 14, 2002.

CMS determined that Petitioner attained compliance with all participation requirements effective May 14, 2002. I do not find that Petitioner proved that attained compliance at an earlier date.

Petitioner did not allege or argue that, if it was deficient in complying with participation requirements, it attained full compliance at a date or dates earlier than May 14, 2002. I note that the plan of correction that Petitioner submitted did not allege that all corrections that Petitioner made were completed prior to May 14, 2002. Several of the corrections were listed in the plan as "ongoing." Others were listed with completion dates as late as May 10, 2002, a date that is very close to the May 14, 2002 compliance date that was found by CMS. P. Ex. 4.

6. Civil money penalties of $250 per day are reasonable for each day of the period that began on April 25, 2002 and which ran through May 13, 2002.

CMS determined to impose civil money penalties against Petitioner in amounts of $3,000 per day for each day of the period that began on April 25, 2002 and which ran through May 13, 2002. I find these amounts to be unreasonable and I impose civil money penalties of $250 per day for each day of that period.

The permissible range of non-immediate jeopardy level civil money penalties is from $50 to $3,000 per day. Obviously, penalties of $3,000 per day should be reserved as remedies for the most serious of non-immediate jeopardy level deficiencies, those which are so egregious that they approach immediate jeopardy in scope in severity. But, that was not the case with those non-immediate jeopardy level deficiencies that were identified in the April 12 survey report. The scope and severity levels that the surveyors assigned to these deficiencies, and with which CMS concurred, were either at level "D" or at level "E." I take notice that these two levels of scope and severity denote the lowest levels of deficiency scope and severity for which civil money penalties generally are imposed. Thus, even if all of the non-immediate jeopardy level deficiencies that the surveyors and CMS alleged were sustained, they would neither individually nor in the aggregate, suggest a level of scope and severity that would justify penalties approaching the immediate jeopardy level of penalties.

I find the determination to impose civil money penalties of $3,000 per day for these deficiencies to be inexplicable given their low levels of scope and severity. Moreover, I have sustained only four of the seven non-immediate jeopardy level deficiencies that were alleged in the report of the April 12 survey. That, too, suggests that civil money penalties at the top of the non-immediate jeopardy range are unreasonable.

The low scope and severity of these four deficiencies (two level "D" deficiencies and two level "E" deficiencies) justifies penalties of a much lower level than was originally determined to be imposed by CMS. I find penalties of $250 per day to be reasonable because they fairly reflect the seriousness of the deficiencies that I have sustained.

7. CMS is authorized to deny Petitioner payments for new Medicare admissions for a period that began on April 19, 2002 and which ran through May 13, 2002.

CMS is authorized to deny Petitioner payments for new Medicare admissions for a period that began on April 19, 2002 and which ran through May 13, 2002, based on Petitioner's failure to comply substantially with participation requirements during that period.

JUDGE
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Steven T. Kessel

Administrative Law Judge

FOOTNOTES
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1. The civil money penalty amounts which I impose in this case are less than that which CMS determined to impose ($10,000 for each day of the April 12 - 24, 2002 period and $3,000 for each day of the April 25 - May 13, 2002 period). I explain my rationale for imposing reduced civil money penalties at Findings 3 and 6 of this decision.

2. 42 C.F.R. § 483.13(c)(1)(i) may overlap with 42 C.F.R. § 483.25(h)(2), which requires that each resident of a facility receive adequate supervision and assistance devices to prevent accidents. Shortly prior to the hearing, CMS moved to amend its determination to allege that Petitioner had failed to comply with the latter regulation. I denied the motion on the grounds that it was untimely. I base my decision as to whether Petitioner failed to comply with the requirements of 42 C.F.R. § 483.13(c)(1)(i) entirely on the standards for compliance with that regulation that I discuss above and without regard to the possibility that noncompliance with 42 C.F.R. § 483.13(c)(1)(i) might also be noncompliance with the requirements of 42 C.F.R. § 483.25(h)(2).

3. This is not to say that a plan of correction will never be of evidentiary value in a case. For example, the correction date in a plan may be evidence of the date of correction of a deficiency where evidence independent from the plan proves that a facility was not complying with a participation requirement as of a specific date.

4. The April 12 survey report incorrectly cites 42 C.F.R. § 483.13(c)(1)(ii) as the regulatory requirement which is at issue. Petitioner argues that CMS should not be allowed to amend the allegation of noncompliance to assert that Petitioner's noncompliance was with the requirements of 42 C.F.R. § 483.13(c)(2). I find that there is no due process issue in this instance. CMS amended its allegation effective with the filing of its pre-hearing brief, months prior to the hearing, and Petitioner had ample time to prepare its defenses against the amended allegation.

5. After the hearing, CMS withdrew the allegations about Resident # 14.

CASE | DECISION | JUDGE | FOOTNOTES