CASE | DECISION |JUDGE | FOOTNOTES

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


SUBJECT:

Omni Manor Nursing Home,

Petitioner,

DATE: September 17, 2003
                                          
             - v -
 

Centers for Medicare & Medicaid

 

Docket No.C-01-874
Decision No. CR1084
DECISION
...TO TOP

DECISION

Petitioner, Omni Manor Nursing Home, is a long-term care facility certified to participate in the Medicare and Medicaid programs as a provider of services. Petitioner challenges the Centers for Medicare & Medicaid Services' (CMS) determination that it was not in substantial compliance with program participation requirements. For the reasons discussed below, I affirm CMS's determination to impose a civil money penalty (CMP) against Petitioner based on this noncompliance (specifically, a $3,800 CMP for one day of immediate jeopardy on May 18, 2001, and a $650 per day CMP for three days of continuous noncompliance, effective May 19, 2001 and continuing through May 21, 2001, for a total CMP imposed of $5,750).

I. Background

The Ohio Department of Health (State survey agency) conducted an extended survey at Petitioner's facility which was completed on May 18, 2001. The statement of deficiencies prepared by the State survey agency following the survey (statement of deficiencies, CMS 2567, or 2567) concluded that Petitioner was not in substantial compliance with 12 participation requirements, with the most serious deficiency an isolated deficiency constituting immediate jeopardy and requiring significant corrections. CMS imposed a CMP of $3,800 per day for one day of immediate jeopardy (May 18, 2001). A reduced CMP, in the amount of $650 per day, was imposed effective May 19, 2001, and was discontinued effective May 22, 2001. CMS exhibits (CMS Exs. 1 - 3, 8).

Petitioner timely requested a hearing. The case was assigned to me for the hearing, related proceedings, and decision. I held a hearing in this case on August 5 and 6, 2002. (1) At the hearing, I admitted CMS Exs. 1 - 50 and Petitioner's exhibits (P. Exs.) 1 - 8. (2) Following the hearing, Petitioner moved for leave to submit newly discovered evidence, which I am marking as P. Ex. 9. This exhibit consists of the two page affidavit of Petitioner's counsel, Geoffrey E. Webster, dated November 18, 2002, a one page letter from Thomas M. Prose, M.D., M.P.H., M.B.A., dated May 15, 2000, and a two page undated letter from Cindy Graunke to Dr. Prose. Petitioner asserts that this evidence regards the Department of Health and Human Services' interpretation of the correct application and interrelationship between the information contained on a minimum data set (MDS) for a resident and other resident records. CMS opposes the motion. Although I believe this exhibit is of dubious relevance, and I do not rely upon it as I find it non-persuasive in the context that Petitioner submits it, I am admitting it into evidence. (3) The parties also submitted prehearing briefs (CMS or P. Prehearing Br.), posthearing briefs (CMS or P. Br.) and posthearing reply briefs (CMS or P. R. Br.).

II. Issues

1. Whether Petitioner was out of substantial compliance with participation requirements.

2. Whether the CMP imposed by CMS against Petitioner is reasonable.

III. Statutory and Regulatory Background

The Social Security Act (Act) sets forth requirements for long-term care facilities (Medicare skilled nursing facilities (SNFs) and Medicaid nursing facilities (NFs)) participating in the Medicare and Medicaid programs, and authorizes the Secretary of Health and Human Services to promulgate regulations implementing the statutory provisions. Act, sections 1819 and 1919. The Secretary's regulations governing long term care facilities participating in the Medicare program are found at 42 C.F.R. Parts 483, 488, 489, and 498.

To participate in the Medicare program, a long-term care facility must maintain substantial compliance with program requirements. To be in substantial compliance, a facility's deficiencies may pose no greater risk to resident health and safety than "the potential for causing minimal harm." 42 C.F.R. § 488.301.

If a facility is not in substantial compliance with program requirements, CMS has the authority to impose one or more of the enforcement remedies listed in 42 C.F.R. § 488.406, which include imposing a CMP. See Act, section 1819(h). CMS may impose a CMP for the number of days that the facility is not in substantial compliance with one or more program requirements, or for each instance that a facility is not in substantial compliance. 42 C.F.R. §§ 488.430(a), 488.440.

In situations where deficiencies constitute immediate jeopardy, CMS may impose a CMP of between $3,050 and $10,000 per day. 42 C.F.R. § 488.438(a)(1)(i). In situations where deficiencies do not constitute immediate jeopardy, but have caused actual harm or have the potential for causing more than minimal harm, CMS may impose a CMP of $50 to $3,000 per day. 42 C.F.R. § 488.438(a)(1)(ii). An administrative law judge must uphold CMS's determination as to the level of noncompliance unless it is clearly erroneous. 42 C.F.R. § 498.60(c).

IV. Burden of Proof

As an evidentiary matter, CMS must set forth a prima facie case that a facility is not in substantial compliance. Petitioner then has the burden of coming forward with evidence sufficient to establish the elements of any affirmative argument or defense, and bears the ultimate burden of persuasion. To prevail, Petitioner must prove, by a preponderance of the evidence, that it was in substantial compliance with relevant statutory and regulatory provisions. Meadow Wood Nursing Home, DAB No. 1841 (2002); Cross Creek Health Care Center, DAB No. 1611 (1998), applying Hillman Rehabilitation Center, DAB No. 1611 (1997), aff'd Hillman Rehabilitation Center v. HHS, No. 98-3789 (GEB), slip op. at 25 (D.N.J. May 13, 1999); see Coquina Center, DAB No. 1860, n.4 (2002). I follow this precedent in making my decision here.

V. Findings of Fact, Conclusions of Law, and Discussion

I make findings of fact and conclusions of law to support my decision in this case. I set forth each finding below, in italics, as a separate heading.

In making my findings in this case, I will not be addressing all of the deficiencies cited by the State survey agency in the CMS 2567. CMS stated at the hearing that it would not be presenting testimony on F Tags 221, 241, 248 and 315 (4) and that the Tags are not being relied on by CMS to prove its case. Thus, I am not discussing or considering these Tags. Transcript (Tr.) 394 - 395, 445. Further, I will not address all eight of the other deficiencies relied on by CMS. Instead, I address the immediate jeopardy deficiency (F Tag 281) as well as four other deficiencies (F Tags 280, 490, 323, and 324) in sustaining the CMP. I do not address F Tags 156 and 250, because it is not necessary for me to do so in order to sustain the CMP. I also find that CMS has not satisfied me that a deficiency exists with regard to F Tag 225, but I also find that whether or not Petitioner is in substantial compliance with F Tag 225 has no direct effect on the CMP or on the general outcome of the case. See Beechwood Sanitarium, DAB No. 1824, at 19 - 22 (2002). I will begin my discussion with F Tag 281, because it presents the most serious deficiency alleged, that immediate jeopardy existed in the facility as of May 18, 2001.

1. As of the survey ending on May 18, 2001, Petitioner was out of compliance with the participation requirement at 42 C.F.R. § 483.20(k)(3)(i) (F Tag 281 on the statement of deficiencies dated May 18, 2001) at the immediate jeopardy level.

The regulation at 42 C.F.R. § 483.20(k)(3)(i) falls under the "Resident assessment" part of the regulations and requires that the services provided or arranged by the facility must "[m]eet professional standards of quality." The 2567 reflects that Petitioner "failed to provide the necessary care and services of cardio-pulmonary resuscitation in accordance with the comprehensive assessment and plan of care. This affected one resident who expired in the facility on 04/10/01, and a current resident who had conflicting documentation regarding resuscitation status. Immediate jeopardy exists beginning 04/10/01, due to the failure of the facility to ensure the implementation of the policies and procedures for initiating cardio-pulmonary resuscitation." CMS Ex. 8, at 31.

As Petitioner notes in its posthearing brief, "[t]he essential part of this hearing revolves around two residents, Resident CL 1 and Resident 27" (Resident CL 1 and Resident 27). P. Br. at 1. Both instances involve the resuscitation status of these two residents following their transfer to Petitioner's facility following hospitalizations, and whether or not their status was considered "do not resuscitate (DNR)." At F Tag 281, the 2567 reflects for Resident CL 1 that:

Resident #CL 1 was originally admitted to the facility on 01/08/98, with medical diagnoses including Hypertension, Chronic Obstructive Pulmonary Disease and Asthma. The facility's procedure is for the social service designee to speak with the resident and family at admission regarding their wishes for resuscitation. The social service assessment completed on admission to the facility indicated the resident had no durable power of attorney and no paperwork regarding advanced directives. The resident was considered to be a "full code" which meant that he/she would receive cardio-pulmonary resuscitation if needed.

Record review revealed the resident was sent to the emergency room of a local hospital on 03/04/01. The resident was considered to be a "full code" when transferred to the hospital. The resident remained in the hospital until transfer back to the facility on 03/14/01. New medical diagnoses included on the hospital transfer form dated 03/14/01, included Urinary Tract Infection, Infected Bullae and Deep Vein Thrombosis. The hospital transfer form dated 03/14/01, also listed the resuscitation status of the resident as "DNR". There was no documentation in the chart to indicate the facility followed up on that issue.

The Minimum Data Set 2.0 Assessment dated 03/19/01, revealed the resident had no advanced directives. The cognitive status of the resident indicated the resident had no long term memory deficits and was moderately impaired for decision-making skills.

Nursing notes dated 04/10/01 at 5:30 A.M., indicated 'resident went non-responsive after shower." The resident's skin color was pale and dusky. The nurse was unable to obtain a blood pressure or pulse. The resident was having Cheyne-Stoke respirations at 16 per minute. The physician was notified and an order was received to send the resident to the local hospital emergency room. The nursing note revealed the resident's condition continued to deteriorate . . . . The nurse's note timed for 5:45 A.M. indicated that respirations ceased. The nurse was unable to obtain a blood pressure or pulse. The physician was notified and an order was received to release the body to the funeral home . . . .

On 5/16/01, the director of nursing phoned the nurse who was caring for this resident when he/she expired. The nurse indicated that when the resident went non-responsive, she checked the chart for the resuscitation status. The nurse revealed she saw the hospital transfer form dated 03/14/01, when looking through the chart and thus decided not to initiate CPR. Therefore, the EMS squad was never called.

Interview with the director of nursing on 05/16/01, at approximately 10:30 A.M., revealed the facility's procedure regarding resuscitation status is as follows:

There must be a progress note from the physician indicating he has discussed the issue of no cardio-pulmonary resuscitation (CPR) with the family or resident, and a physician's order must be written for no CPR.

Review of Resident #CL 1's record revealed no physician's progress note or physician's order in place for "no CPR". The only note addressing this issue was a physician's note dated 01/14/01, indicating the resident was on comfort care. The nursing staff and the social service department failed to follow through with the coordination of needed care and physician's orders for this resident.

The director of nursing also revealed in the interview that if a resident is found unresponsive, the nurse must look in the chart under the physician's orders or in the legal documents section for CPR instructions or advanced directives. Interview with staff nurses on the west, south and north unit on 05/16/01, revealed the nurses verbalized understanding of that system. Each nurse said they would look on the preprinted physician's orders or legal documents section before initiating CPR or calling 911. The nurses revealed that if the resident did not have a "No CPR or Do not Resuscitate" order then CPR must be started. The director of nursing revealed the facility was unaware of this situation involving Resident #CL 1 until surveyor intervention. There has been no employee in-service conducted regarding advanced directives since this incident.

Review of the facility's policy regarding resident self-determination for advanced directives revealed it is the policy of the facility to perform life sustaining procedures such as CPR in the case of a resident's sudden death. The policy also indicated the facility may honor a physician's order for a resident at the end stage of life to die peacefully and as painlessly as possible.

Interview with the head of the social service department on 05/16/01, revealed that advanced directives and resuscitation status are discussed with the resident and family upon admission and with physical deterioration. The social service department failed to follow through with notification of the resident's wishes and the completion of the advanced directives.

This investigation revealed the facility did not follow their protocol regarding advanced directives. There was no physician's order or progress note in place for no CPR. This resident should have received CPR when found unresponsive.

The 2567 reflects with regard to Resident 27 that:

Review of Resident #27's record revealed hospital transfer orders in the chart. These transfer orders were located in the "miscellaneous" section. The hospital transfer form dated 03/29/01, for Resident #27 indicated the resident was a "DNR-CCA" status. Review of the physician's admission notes in the progress note section indicated the patient and family requested a do not resuscitate order due to terminal illness. The interdisciplinary team failed to ensure the communication of requested services and did not obtain the needed orders required by the facility's policy and procedure. No physician order had been written for withholding CPR. The surveyor asked two nurses working on that unit about the resuscitation status of the resident. Both nurses flipped to the physician's order section and indicated the resident would receive CPR. The two nurses were unaware of the physician's progress note for no CPR.

CMS Ex. 8, at 31- 35.

CMS sets forth in its briefs, based on the surveyors' testimony and other evidence of record, what it asserts to be the standard of practice applicable to determining and documenting a long-term care facility resident's resuscitation status following admission and re-admission. Petitioner generally objects to CMS's assertions regarding this standard, but does not present any evidence contesting whether or not the standard is correct. Instead, it argues that Ohio law governs in this situation. However, Petitioner does not explain exactly how Ohio law contradicts the standard of practice asserted by CMS or asserts what the standard of practice should be. Specifically, CMS, relying on the credible testimony of the surveyors, asserts that to be in compliance with F Tag 281, and to ensure that a long-term care facility provides services that meet professional standards of quality, the standard of practice is to determine a resident's resuscitation status promptly upon admission and re-admission and to have a system in place to clearly communicate the status of the resident to all staff. Tr. 41, 45 - 46, 152; CMS Ex. 49, at 5. CMS recognizes that this can be done in a number of ways. CMS cites to an article in the December 1998 issue of the journal Geriatric Nursing, which states:

The multitude of ways used to differentiate between residents who have DNR orders and those who do not and the inadequacy of many of these methods clearly point to the need for clear, unequivocal, and rapid determination of a resident's preference regarding resuscitation. The effectiveness of CPR depends on rapid response, which allows no time to leaf through a medical record to determine resident wishes. The high staff turnover rate in nursing homes and the use of personnel from external labor pools intensify the need to have mechanisms in place that facilitate immediate identification of a resident's CPR status in the event of an arrest. Such mechanisms both protect against unwanted resuscitation for people with DNR orders and ensure appropriate action for those without them.

CMS Ex. 49, at 5.

Specifically, Ms. Kuhns testified that it is the standard practice to ask the treating physician to review any inconsistency between resuscitation status as indicated on a hospital transfer order and the status in the facility within several hours of the resident's return to the facility. Tr. 44, 46. Ms. Kostelic, Ms. Trebus, and Ms. Costa testified that the facility has an obligation to discuss resuscitation status with a resident when there is conflicting information in the resident's medical chart regarding resuscitation status. See Tr. 206, 342, 306. Thus, what CMS asserts the regulation requires as a standard of practice is that in emergency situations where the facility would have to make a decision about a resident's DNR status, the facility must have a mechanism in place to facilitate immediate identification of a resident's resuscitation status in order to determine whether to attempt CPR or not. Here, CMS asserts that Petitioner failed to provide services meeting professional standards with regard to ascertaining and documenting DNR status for these two residents due to Petitioner's failure to ascertain that DNR status and to ensure that the medical record clearly and consistently documented the DNR status. Moreover, CMS asserts (through the testimony of Surveyor Gresham) that relatively simple changes implemented by Petitioner following the survey brought Petitioner into compliance, changes which included requiring that all physician orders contained on hospital transfer sheets (including DNR status) be incorporated into physician orders and reviewed with the physician upon readmission and putting a sticker system in place to easily identify residents with DNR orders. CMS Br. at 26 - 27; Tr. 370 - 373.

The standard of practice asserted by CMS is reasonable (and, as stated above, essentially unrebutted), given that what is being decided here is whether the DNR status of these two residents was appropriately ascertained and documented. I make no findings in this decision as to whether or not Petitioner's staff falsified the medical records in this case following the survey, as making such determination is not relevant to my decision. See P. Br. at 1 - 2; P. Reply Br. at 4 - 5. With regard to facility documentation, what I am looking at is whether, at the time of the survey, the surveyors and the facility staff were able to find the documents necessary to show compliance with the participation requirements. The inability to find such documents is the gravamen of the citation at issue. The whereabouts of the documents or the date of their creation is beside the point when they are not in a resident's files when surveyors and facility staff are looking for them, either at the time of the survey or when a DNR decision needs to be made. As I identify below, the evidence of record is that the documentation was not there at these times.

Resident CL 1: The evidence shows that Petitioner never adequately addressed the apparent contradiction between the hospital transfer form designating Resident CL 1 as DNR at the hospital (CMS Ex. 19, at 9) and the medical record at Petitioner's facility which (at least on the documentary evidence of record) reflects that the resident was full code.

Prior to Resident CL 1's stay at Forum Health Hospital, Resident CL 1 was considered "full code," in that CPR was to be attempted for resuscitation. Specifically, the documentation of record shows that upon Resident CL 1's admission to Petitioner's facility there were no advance directives for Resident CL 1, although two members of the resident's family signed the advance directive notification form (Resident CL 1 did not sign it). CMS Ex. 19, at 20. Resident CL 1's social service history/assessment dated January 8, 1998, notes that there was "no paperwork" with regard to "heroics." CMS Ex. 19, at 5. An interdisciplinary team meeting occurring on February 14, 2001 stated that the resident had no advance directives. CMS Ex. 19, at 4; Tr. 53. Surveyor Kuhns testified that she interviewed the director of nursing (DON) and the head of the social services department on May 17, 2001, regarding Petitioner's procedure for documenting resuscitation status. CMS Ex. 19, at 7; Tr. 54. The social services representative indicated that the staff discusses advance directives with residents and their families upon admission and when there is a significant change in condition. Id. The DON indicated to Surveyor Kuhns that a resident was not considered DNR unless a physician's progress notes indicated that the issue had been discussed with the resident or family and a physician's order for "No CPR" and an ambulance form were in place. Either a resident or a family member must sign the form and the status could not be changed unless a form were completed. Tr. 54 - 56. Moreover, Petitioner's policy on DNR orders stated that "[a]lthough we accept advance directives, it is the policy of this facility to perform life sustaining procedures such as CPR in the case of a resident's sudden death." CMS Ex. 37, at 2. During the survey, the surveyors were not provided any facility policy regarding the use of transfer orders in place of current physician's orders. Tr. 58.

On March 4, 2001, Resident CL 1 was admitted to the hospital complaining of confusion. Tr. 61; CMS Ex. 19, at 13. The history and physical report completed at the time of admission did not mention Resident CL 1's DNR status. Tr. 62; CMS Ex. 19, at 13 - 17. Resident CL 1 was re-admitted to Petitioner's facility on March 14, 2001 following a stay at Forum Health Hospital. The transfer form noted that her resuscitation status was "DNR." CMS Ex. 19, at 9. The transfer form was signed by a physician, but the signature does not appear to be that of Dr. Dickstein, the physician caring for Resident CL 1 at Petitioner's facility. CMS Ex. 19, at 9, 18. There is no information on the transfer form indicating why Resident CL 1's DNR status had changed or who made the decision to change it, and there is no evidence in the record that anyone in the facility attempted to clarify why Resident CL 1's DNR status changed.

An MDS was completed on March 19, 2001. Tr. 64 - 65. Although no copy of this MDS was submitted, I accept Ms. Kuhns' credible testimony that the MDS she saw indicated that Resident CL 1 did not have a DNR order and did not have advance directives. Tr. 65. Petitioner did not submit a copy of the MDS in question to rebut Ms. Kuhn's testimony. See also Tr. 429. Ms. Kuhns also testified that team meeting notes for an interdisciplinary team meeting held on March 21, 2001 did not indicate that Resident CL 1's advance directive or DNR status was discussed, which Petitioner did not rebut with documentary evidence. See Tr. 65 . Ms. Kuhns testified further that she found no indication in the nursing notes that resuscitation status was discussed with Resident CL 1 when the resident returned from the hospital, nor did she find social service notes indicating that the social service staff or anyone else at Petitioner's facility discussed advance directives or DNR status with the resident or the resident's family after the resident's return to the facility on March 14, 2001. Id. at 65 - 67.

Ms. Kuhns also testified that there were no new physician's orders addressing Resident CL 1's DNR status. The pre-print physician's orders produced by Omni Manor's pharmacy for the month of April 2001 did not contain orders regarding DNR status. Ms. Kuhns testified that these were the current physician's orders for the resident and, in the event of cardiac or respiratory arrest, that would be where the staff would look to determine Resident CL 1's code status. Tr. 66. Moreover, no new physician's orders were prepared addressing Resident CL 1's DNR status. Ms. Kuhns testified that the lack of a physician's order regarding DNR status in the pre-print physician's orders is important because, in an emergency, that would be where the staff would look to determine code status, and here it indicated that the resident was full code. Tr. 65 - 66.

On April 10, 2001, at 5:30 A.M., Resident CL 1 went "non-responsive" after a shower. CMS Ex. 19, at 19. Resident CL 1's color was "pale, dusky" and the staff was unable to obtain a blood pressure or pulse. Id. The resident's breathing was strained and irregular. Id.; Tr. 69. Resident CL 1's physician, Dr. Dickstein, was called and ordered that Resident CL 1 be transported to the emergency room. CMS Ex. 19, at 19. The resident's condition continued to deteriorate, her respirations ceased, and the staff was unable to obtain a blood pressure or pulse. Id. The staff contacted Dr. Dickstein's office again and he ordered that Resident CL 1's body be released to a funeral home. Id. The parties do not dispute that no CPR was attempted.

Ms. Kuhns testified that she believed Resident CL 1 was in immediate jeopardy because there was a high risk of this resident suffering serious harm after the resident's return from the hospital to Petitioner's facility due to the inconsistencies in the medical record regarding the resident's DNR status. Tr. 74 - 75.

Resident 27

The evidence shows that Petitioner never addressed conflicting information regarding Resident 27's DNR status.

Ms. DeLuco testified that Resident 27 did not have "[an] indication in the chart as to whether [the resident] wanted to be resuscitated or not." Tr. 140. Resident 27 was admitted to Petitioner's facility on March 29, 2001. Ms. DeLuco testified that she reviewed a physician's progress note dated March 29, 2001, which indicated that Resident 27's family had requested that the resident be designated as DNR due to terminal status and that the resident was to be placed in the facility for comfort measures only. Tr. 140, 145 - 146; CMS Ex. 22, at 6. The transfer form from the hospital to Petitioner's facility, dated March 29, 2001, also indicated that Resident 27 was designated as "DNR CCA." Tr. 146; CMS Ex. 22, at 6. However, Ms. DeLuco testified that her review of the documents in Resident 27's medical record indicated conflicting information regarding the resident's DNR status. Tr. 139 - 144. Ms. DeLuco did not find a physician's order in the record designating Resident 27 as "DNR" at the facility, nor did she find a DNR indicated on the resident's plan of care, the legal documents section of the resident's medical chart, in a white envelope at the front of the chart which was to contain advance directives, or in social service notes. Tr. 146 - 147; CMS Ex. 22, at 6. Moreover, Resident 27's MDS information as of April 20, 2001, indicated that the resident had no advanced directives and was not listed as "DNR." Tr. 144 - 145.

On May 16, 2001 at 3:15 P.M., Ms. DeLuco spoke with the MDS nurse and the charge nurse working on Resident 27's unit and asked them to identify the resident's code status. Tr. 147; CMS Ex. 22, at 6. Both nurses checked the current physician's orders to determine Resident 27's code status and both looked in the chart and told Ms. DeLuco that Resident 27 was a full code. Tr. 147- 148; CMS Ex. 22, at 6. Moreover, they told Ms. DeLuco that the way they determined code status is to check current physician's orders. Tr. 148. Also, according to Ms. DeLuco, as of May 16, 2001, Resident 27 did not appear on a list of residents in the facility who had orders for no CPR. Tr. 148; CMS Ex. 38. Ms. Bennett, however, testified that Resident 27 did have a DNR order on the chart in March. Tr. 422; P. Ex. 1, at 8 - 9. I note the handwritten notations on P. Ex. 1, at 8 - 9, indicating no CPR. I make no findings as to when or how the notations were made. However, I find to be credible Ms. DeLuco's testimony that when she spoke with the nurses on May 16, 2001, they did not find these orders in Resident 27's chart and indicated that Resident 27 was a full code. Thus, I agree with surveyors DeLuco and Kuhns that F Tag 281 was violated in this case because the facility did not take the steps necessary to carry out the resident's wishes regarding resuscitation. See Tr. 94, 96, 152.

In looking at the facts surrounding Residents CL 1 and 27, I find that: for Resident CL 1, no resuscitation was attempted even though the resident should have been treated as full code under facility policy; and, for Resident 27, the resident's family had requested DNR status, but the facility failed to implement the order in a way that nursing staff would recognize and, thus, staff believed the resident to be a full code at the time of the survey. Accordingly, I find that these facts show that Petitioner was out of compliance with the participation requirement as stated at F Tag 281. CMS has determined that an immediate jeopardy situation existed based on these facts. I must uphold CMS's determination as to the level of noncompliance unless I find it to be clearly erroneous. 42 C.F.R. § 498.60(c)(2).

I do not find CMS's determination to be clearly erroneous here. By not adequately documenting these patients' DNR status, Petitioner failed to give CPR when it should have and could have erroneously attempted to revive an individual who did not wish to have CPR performed. I can think of no more serious deficiency - literally a deficiency involving life and death.

2. As of the survey ending on May 18, 2001, Petitioner was out of compliance with the participation requirement at 42 C.F.R. § 483.20(k)(2) (F Tag 280 on the statement of deficiencies dated May 18, 2001), at a non-immediate jeopardy level of noncompliance.

The regulation at 42 C.F.R. § 483.20(k)(2) also falls under the "Resident assessment" part of the regulations and requires that a comprehensive care plan: (i) be developed within seven days after completion of the comprehensive assessment; (ii) be prepared by an interdisciplinary team that includes the attending physician, a registered nurse with responsibility for the resident, and other appropriate staff in disciplines as determined by the resident's needs and, to the extent practicable, the participation of the resident, the resident's family or the resident's legal representative; and (iii) be periodically reviewed and revised by a team of qualified persons after each assessment.

The surveyors determined that Petitioner was out of compliance with this requirement because it failed to ensure that the interdisciplinary team develop comprehensive care plans to provide the greatest benefit to Residents CL 1 and 27 due to conflicting documentation regarding their resuscitation status. CMS Ex. 8, at 27 - 31.

I find that Petitioner was out of compliance with this participation requirement. The facts regarding Residents CL 1 and 27 are discussed above at Finding 1. The evidence of record shows that Petitioner's interdisciplinary team failed to discuss Resident CL 1's DNR status during its meeting on March 21, 2001, and Petitioner provided no documentary evidence to rebut CMS's prima facie case on this point. Specifically, Ms. Kuhns testified that her review of the interdisciplinary team notes showed that when Resident CL 1 returned to the facility with conflicting documentation, the interdisciplinary team did not act on that by following up and writing a care plan to indicate what type of care the resident would receive in case of cardiac or respiratory arrest. Tr. 79 - 81. With regard to Resident 27, Petitioner failed to ensure that Resident 27 had a current physician's order for no CPR consistent with the resident's expressed wish to be designated as DNR.

3. As of the survey ending on May 18, 2001, Petitioner was out of compliance with the participation requirement at 42 C.F.R. § 483.75 (F Tag 490 on the statement of deficiencies dated May 18, 2001) at a non-immediate jeopardy level of noncompliance.

The regulation at 42 C.F.R. § 483.75 provides 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. The surveyors alleged that this participation requirement was not met because the facility failed to ensure that the protocol for advanced directives was followed in the cases of Residents CL 1 and 27. CMS Ex. 8, at 39 - 43. I agree with CMS that Petitioner has failed to rebut CMS's prima facie case that the facility's administration failed to implement an effective and efficient procedure to determine residents' wishes regarding DNR upon admission and readmission and effectively communicate the DNR status to staff members, as exemplified in the cases of these two residents. Ms. Kuhns testified that Petitioner did not provide the supervision to ensure that its policies and procedures regarding advance directives and DNRs were followed through and she testified also that there was no working system in place at that time regarding how the facility staff should ascertain a resident's wishes regarding DNR status in the documentation. Tr. 81 - 82. Ms. Kuhns testified that with regard to Resident CL 1, there was no clear documentation of the resident's wishes regarding advance directives or DNR when the resident became unresponsive approximately one month after the resident's return from the hospital. Tr. 82. Resident CL 1's medical chart thus contained inconsistencies which should have been resolved shortly after her readmission. Ms. Bennett appears to concede such inconsistency by testifying that Petitioner failed to turn the DNR status noted on the hospital transfer form into a physician's order at the facility. Tr. 428. With regard to Resident 27, Ms. Kuhns and Ms. DeLuco both testified that the facility failed to have procedures in place to ensure that the resident's wishes regarding DNR status were adhered to by Petitioner's staff. Tr. 100 -101, 156. This is exemplified by the fact that two of Petitioner's nurses checked the physician's orders for Resident 27 and indicated that the resident would receive CPR, in contravention of the physician's progress note.

4. As of the survey ending on May 18, 2001, Petitioner was out of compliance with the participation requirement at 42 C.F.R. § 483.25(h)(1) (F Tag 323 on the statement of deficiencies dated May 18, 2001) at a non-immediate jeopardy level of noncompliance.

The regulation at 42 C.F.R. § 483.25(h)(1) provides that the facility must ensure that the resident environment remain as free of accident hazards as is possible. The surveyors alleged that this requirement was not met and asserted that:

During a tour of the environment on 05/16/01, at approximately 4:30 P.M., a door at the end of the north hall was found unlocked. The door was labeled with the following: "Caution. Chemical Storage Area." The following was found inside the storage area: a. Bathroom cleaner labeled as hazardous to humans. b. Disinfectant cleaner labeled as harmful if swallowed. c. Deodorant concentrate, emergency cleaner, powder cleanser and industrial window cleaner labeled as keep out of reach of children, may cause skin/eye irritation and harmful if swallowed. d. Bleach labeled as hazardous to humans and harmful if swallowed. e. Germicidal cleanser labeled as "danger - corrosive. Harmful or fatal if swallowed". The cleanser bottled indicated goggles must be worn while handling. f. Liquid cream cleanser labeled as hazardous to humans. g. Sanitizer solution labeled as corrosive. h. Disinfectant solution labeled as harmful if swallowed. Located next to the two containers of sanitizer solution and disinfectant solution were several boxes of plastic drinking cups. Six residents were observed on all days of the survey ambulating in and out of resident rooms on the north hall and attempting to open several doors, including the storage area door. The nursing supervisor indicated during an interview on 05/16/01, that the door should have been locked and verified the door was unlocked. The maintenance supervisor indicated during an interview on 05/17/01, that the storage area door should always be locked.

CMS Ex. 8, at 37 - 38.

Ms. Kostelic and Ms. Trebus both testified regarding the observations above. Tr. 237 - 240; 347 - 349; CMS Ex. 34, at 2; CMS Ex. 16, at 1. Ms. Kostelic testified that the items in the storage room could cause serious problems for any resident, including death. Tr. 240. Ms. Kostelic also testified that there were no staff members near the unlocked closet when she observed it. Tr. 239. Ms. Trebus testified that with the storage door unlocked, with hazardous chemicals in the room, and with the residents she and Ms. Kostelic observed attempting to open doors in the hall, there was a potential for the residents to enter the room and get into the hazardous chemicals. Tr. 349. Ms. Trebus also did not observe any staff members in the immediate area when they observed the unlocked door, stating that if they had seen staff members they would not have taken issue with the door being unlocked. Tr. 348.

Petitioner argues that CMS did not prove that there were no staff members in the area supervising the allegedly unlocked closet. Petitioner asserts that if closets are always to remain locked there is no purpose to having them. Further, Petitioner argues that the door to the storage room is next to the nurses' station and records storage room and is in a heavily trafficked area.

Petitioner has not rebutted CMS's prima facie case here. CMS has credibly asserted through the observations of the surveyors, that no staff members were present in the area of the unlocked storage closet and it is Petitioner's burden to rebut it. Petitioner has not done so. I do not understand Petitioner's argument regarding there being no purpose to a locked closet. I cannot believe Petitioner could be arguing that it is acceptable to leave an unlocked closet containing hazardous substances open while elderly and perhaps demented residents are walking through the halls. A closet containing hazardous materials should be unlocked only while a staff member is present and utilizing the materials there and should be locked when the staff member is finished - anything else would leave Petitioner's residents vulnerable to harm. Petitioner's nursing and maintenance supervisors both appear to understand that the door should have been locked. Petitioner did not present any evidence to show that the unlocked closet containing numerous hazardous substances did not present more than a minimal risk of harm to Petitioner's residents. To ensure compliance with this participation requirement, Petitioner needed only to have recognized that it is essential that the door to this closet be locked at all times when a staff member is not using and monitoring the closet.

5. As of the survey ending on May 18, 2001, Petitioner was out of compliance with the participation requirement at 42 C.F.R. § 483.25(h)(2) (F Tag 324 on the statement of deficiencies dated May 18, 2001) at a non-immediate jeopardy level of noncompliance.

The regulation at 42 C.F.R. § 483.25(h)(2) states that the facility must ensure that "[e]ach resident receives adequate supervision and assistance devices to prevent accidents."

The surveyors alleged that this requirement was not met based on an incident involving Resident 134. Specifically, the surveyors relate that:

[T]he nurses' notes of Resident # 134 on 03/26/01, revealed that the nursing assistant reported that while transferring the resident to a wheelchair, the resident's leg bumped the wheelchair resulting in three skin tears. The skin tears measured 0.7 centimeters (cm) by 0.4 cm by 0.2 cm; 0.4 cm. by 0.2 cm. The current Minimum Data Set 2.0 indicated that the resident required two staff members for transfers. The care card for this resident specified that the resident required the assistance of two or more for transfers. This was verified by the unit coordinator. The investigation indicated that the nursing assistant was reminded of proper transfer technique and to ask for assistance if the resident required two persons for safe transport.

Surveyor Costa testified that Petitioner was in violation of this section of the regulations because a nurse aide did not provide the assistance and supervision necessary to safely transfer Resident 134 on March 26, 2001, because the facility had determined that the resident needed at least two people to transfer the resident and only one person transferred the resident - which could result in injury such as a fracture. Tr. 322 - 323. Ms. Smith, an LPN at Petitioner's facility, testified that Resident 134 was a two-person transfer only when combative. Tr. 414. Ms. Smith also testified that on March 26, 2001, Resident 134 was not combative and it was therefore appropriate to transfer her with one person only. Tr. 415. Ms. Smith testified on cross-examination that she was not aware that the nurse aide involved in this incident was given one-on-one counseling, reminded of the proper transfer techniques, and reminded to ask for assistance because the resident is a two-person transfer for same transport. Tr. 415 - 416.

Petitioner did not submit any documentary evidence supporting Ms. Smith's testimony that it was appropriate to transfer Resident 134 with one person only. I find Petitioner's failure to provide a two-person transfer, given the unrebutted facts of this citation as set out in the statement of deficiencies above, is a violation of this participation requirement. See Cherrywood Nursing and Living Center, DAB No. 1845, at 8 - 9 (2002).

6. As of the survey ending on May 18, 2001, Petitioner was in substantial compliance with the participation requirement at 42 C.F.R. § 483.13(c)(1) (F Tag 225 on the statement of deficiencies dated May 18, 2001).

As I have pointed out elsewhere in this decision, the resolution of certain deficiency citations in CMS's favor renders unnecessary a discussion and resolution of many others, because whether they might be resolved in favor of Petitioner or of CMS would not alter the ultimate effect of my decision to affirm the CMP imposed. Thus, given my resolution of F Tags 280, 281, 323, 324, and 490 in favor of CMS, any discussion of F Tag 225 may be the purest obiter dictum. By definition, such dicta are always unnecessary; by the usual standards of prudence, they are almost always to be avoided.

Nevertheless, the citation at F Tag 225 is a particularly sensitive issue here because it raises questions of resident abuse. CMS asserts that the facility failed to report allegations that Residents CL 4 and 18 had been mistreated. Because my disposition of this citation is pure dictum I shall not review the facts of this citation in detail. However, I believe that the facility is entitled to know that as to Resident CL 4 I find that the staff-trainees who witnessed the alleged incident behaved as immediately and professionally as their training could have suggested, and as courageously as their consciences could have demanded, and that the facility responded immediately and thoroughly. Similarly, I find that the facility responded to allegations concerning the mark on Resident 18's face in a reasonably thorough and immediate manner.

7. The CMP imposed is reasonable.

Petitioner has made no argument regarding the reasonableness of the CMP. Petitioner states "CMS is correct that Omni Manor made no argument regarding the reasonableness of the CMP. Indeed it is not a significant amount of money from anyone's perspective." P. R. Br. at 11. I note, however, that I find the CMP imposed to be eminently reasonable, given that the CMP imposed for one day of immediate jeopardy ($3,800) is at the very low end of the range imposed for deficiencies constituting immediate jeopardy (from $3,050 to $10,000), and that the $650 CMP imposed for the non-immediate jeopardy level deficiencies from May 19 - 22, 2001 (which could have ranged from $50 to $3,050 per day) is also at the lower end of the range of permitted CMPs, especially given the seriousness of the deficiencies found above.

JUDGE
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Richard J. Smith

Administrative Law Judge

FOOTNOTES
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1. CMS presented the testimony of State survey agency surveyors Susan Kuhns, R.N., Diane DeLuco, R.D., Barbara Kostelic, R.N., Katherine Costa, R.N., Michelle Trebus, R.N., and Katherine Gresham, L.S.W. Despite Petitioner's allusions to the inexperience or ineptitude of the surveyors with regard to their credibility ( see P. Reply Br. at 6), I found the testimony of these surveyors to be credible. Below, I rely on the testimony of these professionally credentialed individuals and their survey findings where such testimony and survey findings are consistent with the regulations, their professional expertise as surveyors, and the documentary evidence of record. Petitioner presented the testimony of Charlotte Marling, L.S.W., Bonnie Jean Smith, L.P.N., Diane Bennett, R.N., and Paul Fabian.

2. I note that Petitioner submitted its exhibits marked as Docket number C-01-847. The correct docket number for this case is C-01-874. I am re-marking Petitioner's exhibits to reflect the correct docket number.

3. Petitioner has argued also that evidentiary rulings I made were in error and prejudicial to it and that I should re-visit my rulings. Petitioner's Posthearing Brief (P. Br.) at 28 - 29. I decline to do so, and re-affirm my rulings for the reasons stated at the time.

4. The CMS 2567 references the regulatory citations as F Tags. F Tag 221 refers to 42 C.F.R. § 483.13(a); F Tag 241 refers to 42 C.F.R. § 483.15(a); F Tag 248 refers to 42 C.F.R. § 483.15(f)(1); and F Tag 325 refers to 42 C.F.R. § 483.25(d)(1).

CASE | DECISION | JUDGE | FOOTNOTES