SUBJECT:

Park Manor,

Petitioner,

Centers for Medicare & Medicaid

DECISION

I decide that Petitioner, Park Manor, failed to comply with at least one Medicare participation requirement during a period that began on March 22, 2001 and which ran through June 10, 2001. I impose civil money penalties of $150 per day for each day of this period.

I. Background

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

Petitioner was surveyed by representatives of the Wisconsin Department of Health and Family Services (Wisconsin State survey agency) in March 2001, in order to determine whether Petitioner was complying substantially with federal Medicare participation requirements. The survey was completed on March 22, 2001. The surveyors concluded that Petitioner was not complying substantially with several of these requirements. Subsequently, the Centers for Medicare & Medicaid Services (CMS) determined to impose civil money penalties against Petitioner of $150 per day based on noncompliance findings that were made at the March 22, 2001 survey. ⁽¹⁾

Petitioner was resurveyed on June 11, 2001 and the surveyors who conducted that survey found that Petitioner remained out of substantial compliance with federal participation requirements. Petitioner participated in an informal dispute resolution proceeding concerning the June 2001 survey. It prevailed in that proceeding and the findings of noncompliance that were made at the June 2001 survey were deleted by the Wisconsin State survey agency. I discuss the significance of this result and CMS's subsequent inaction below, at Finding 1 of this decision.

Petitioner requested a hearing. The case was assigned to me for a hearing and a decision. I conducted a hearing in Milwaukee, Wisconsin, on February 25, 2003. At the hearing I received evidence from both parties consisting of exhibits and the cross- and redirect examination of several witnesses. I received into evidence from CMS exhibits consisting of CMS Exhibits (Exs.) 1 - 66. I rejected CMS Exs. 67 and 68. ⁽²⁾ I received into evidence from Petitioner exhibits consisting of P. Exs. 1 - 56; 58; 61; 63 - 66; 68; 69; 71 - 74; and 77A - 88.

II. Issues, findings of fact and conclusions of law

A. Issues

The issues in this case are whether:

1. As of March 22, 2001 Petitioner failed to comply substantially with at least one Medicare participation requirement;

2. Civil money penalties of $150 per day are reasonable based on Petitioner's noncompliance and on relevant regulatory factors; and

3. Petitioner remained out of substantial compliance with one or more Medicare participation requirements through June 10, 2001.

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. I incorporate the rulings that I made prior to the hearing or on the record of the hearing. I deny CMS's renewed motion to receive CMS Ex. 68 into evidence.

The parties made several motions prior to or at the hearing and I have ruled on them. I incorporate those rulings into this decision although, with one exception, I do not discuss them here. Additionally, I deny CMS's renewed motion to receive CMS Ex. 68 into evidence.

On October 8, 2002 I issued a ruling on a motion filed by Petitioner for summary disposition. In part I granted and in part I denied that motion. In one section of my ruling I granted Petitioner's motion to preclude CMS from imposing remedies, including civil money penalties and denial of payment for new admissions, for dates beginning with June 11, 2001, because the noncompliance findings made at the June 11, 2001 survey were rescinded in informal dispute resolution and because CMS did not overrule the rescission determination. Ruling on Petitioner's Motion for Summary Disposition at 3 - 6 (October 8, 2002). In brief, I found that an informal dispute resolution finding made by a State which rescinds a deficiency finding nullifies that finding unless CMS explicitly overrules the informal dispute resolution outcome. I found that CMS did not overrule the State's finding. This ruling is a significant part of my overall decision in this case because it cuts off CMS's remedy determinations for dates beginning with June 11, 2001.

CMS's renewed motion to introduce into evidence CMS Ex. 68 relates to a ruling that I made at the close of the February 25, 2003 hearing. I ruled on the record of the hearing that CMS could not introduce this exhibit into evidence as "rebuttal" evidence. The exhibit consists of testimony in a State proceeding by a nurse who was employed by Petitioner at the time of the March 2001 survey. CMS acquired the document in December 2002, but did not make it part of its pre-hearing exchange of proposed exhibits. At the hearing I ruled that the exhibit contained evidence which CMS should have made part of its case in chief. It did not rebut anything that Petitioner introduced at the hearing and so was not rebuttal evidence.

CMS asserts that the exhibit is important and that I should admit it because it contains evidence from which one might infer that the witness had assumed that Petitioner's staff had exercised its responsibility to contact a resident's physician. As I pointed out on the record of the hearing, the issue of whether the staff discharged its responsibility to consult with a physician lies at the center of one of CMS's allegations of noncompliance. CMS should have offered the exhibit as part of its direct case because of the relationship between the exhibit's contents and CMS's allegations. Tr. at 265 - 269.

I reiterate that conclusion here. I am not satisfied that the exhibit truly is in the nature of rebuttal because it relates to CMS's case in chief and rebuts no specific evidence that Petitioner put on as part of its case. Moreover, I do not find the exhibit to contain evidence that would alter my findings in this case. At Finding 2, I find in favor of CMS on the allegations which CMS Ex. 68 addresses. CMS Ex. 68 would not significantly reinforce my finding.

2. As of the March 22, 2001 survey, Petitioner was not complying substantially with the requirements of 42 C.F.R. § 483.10(b)(11).

At Tag 157 of the report of the March 22, 2001 survey it is alleged that Petitioner failed to comply substantially with the requirements of 42 C.F.R. § 483.10(b)(11). CMS Ex. 4, at 1- 6. The regulation provides in relevant part that a facility must consult with a resident's physician when there is a significant change in the resident's physical, mental, or psychosocial status. 42 C.F.R. § 483.10(b)(11)(B). It defines a "significant change" to be, for example, a deterioration in health, mental, or psychosocial status in either life-threatening conditions or clinical complications. Id.

CMS bases its allegations that Petitioner failed to comply with the physician consultation requirement on the care that Petitioner's staff gave to a resident who is identified in the report of the March 22, 2001 survey as Resident # 20. According to CMS, between March 2 and March 6, 2001, the resident's condition deteriorated and he manifested a number of significant changes, any of which mandated that Petitioner's staff contact the resident's physician. CMS Ex. 4, at 2. CMS alleges that, notwithstanding these significant changes, Petitioner's staff failed to contact the resident's physician until the morning of March 5, 2001, the day before the resident's death. Petitioner denies these allegations. Id.

CMS's fact allegations are as follows:

• Petitioner's staff notified the resident's physician on the evening of March 2, 2001 of clinical signs that the physician concluded might signify a urinary tract infection. The physician ordered that the resident receive an antibiotic and that a urinalysis be done the following morning. CMS Ex. 4, at 3.

• At 3:15 a.m. on March 3, 2001, the resident had a temperature of 101.0 degrees, a pulse rate of 107, respirations of 16 (shallow), and oxygen saturation levels of 89 percent. CMS Ex. 4, at 3.

• On March 3 and March 4, 2001, Petitioner's staff observed that the resident was not bearing weight well and was not ambulating well, requiring the assistance of two persons for ambulation and transfers. CMS Ex. 13, at 1; CMS Ex. 16, at 3. Prior to these dates, the resident had been fully ambulatory. Tr. at 144.

• On the afternoon of March 4, 2001, the resident's color was dusky. His arms were cool to the touch and he was unresponsive. He didn't open his eyes when attempts were made to speak to him. P. Ex. 72, at 10.

• Either on the afternoon of March 4, 2001, or that evening, Resident # 20 began displaying signs of mottling of his extremities. CMS Ex. 13, at 1.

• Petitioner's staff did not contact the resident's physician to apprise him of changes in the resident's condition between the evening of March 2, 2001 and the morning of March 5, 2001. CMS Ex. 4, at 3 - 5.

CMS contends that there were several significant changes in the resident's condition which triggered an obligation on the part of Petitioner's staff to consult with the resident's physician. CMS Post-Hearing Brief (CMS Br.) at 2 - 9. Allegedly, these changes are marked by: the resident's vital signs early on the morning of March 3, 2001; his reduced ability to ambulate on March 3 and 4, 2001; the resident's appearance and non-responsiveness on March 4, 2001; and, the mottling of the resident's extremities on the afternoon or evening of March 4, 2001. Id.

I am not persuaded that the resident's vital signs on March 3, 2001, including an oxygen saturation level of 89 percent, denoted a change in the resident's condition which necessitated physician consultation. CMS has not proven a persuasive prima facie case that these signs constituted a significant departure from the resident's condition of a few hours previously, when the staff did notify the physician and the physician instituted antibiotic therapy. Nor has CMS satisfied me that standards of nursing practice mandate physician consultation under the described circumstances.

CMS relies on the affidavit and hearing testimony of Ms. Wanda Hardges, R.N., to support this contention. CMS Ex. 54, at 3; Tr. at 63. Ms. Hardges states as a conclusion that the resident's vital signs on the morning of March 3, 2001 were a "significant decline in his status." CMS Ex. 54, at 3. However, there is nothing cited by Ms. Hardges or identified by CMS to establish that this is so. Indeed, on the evening of March 2, 2001, the resident had manifested temperatures that were higher than the 101.0 degrees that was recorded early on the morning of March 3. CMS Ex. 13, at 1. And, there is no evidence in the record to show that the resident's oxygen saturation level on March 3, 2001 departed significantly from the resident's baseline oxygen saturation level. Ms. Hardges did not identify any nursing standard or protocol that would require physician consultation based on the vital signs that the resident displayed on the morning of March 3, 2001.

But, although the evidence offered by CMS does not persuade me that the resident's vital signs early on the morning of March 3, 2001 necessitated physician consultation, I am persuaded that physician consultation was required by other evidence of significant changes in the resident's condition that occurred later during the day of March 3 and on March 4, 2001. The resident's loss of ability to ambulate on March 3 and 4, 2001, his non-responsiveness on March 4, 2001, and the mottling of his extremities on that date, all denote significant changes that should have prompted Petitioner's staff to consult with a physician.

Prior to March 3, 2001, Resident # 20 was ambulatory, albeit unsteady on his feet at times. P. Ex. 2, at 10. Consequently, the facts that the resident was not ambulating well on March 3, 2001, and then required the assistance of two persons for ambulation and transfers on March 4, 2001, establish a significant decline in the resident's condition. These facts support Ms. Hardges' opinion that Petitioner's staff should have advised a physician of this decline. CMS Ex. 54, at 3.

Petitioner contends that Resident # 20's ambulatory status on March 3 and 4, 2001 actually is part of a constellation of medical signs and symptoms that demonstrates a relative improvement in the resident's condition on those dates. Petitioner's Post-Hearing Reply Brief (P. Reply) at 6 - 7. I do not find this argument to be persuasive. As I discuss above, the resident's ability to stand and walk decreased on March 3 and 4, 2001. Other signs, such as the resident's temperature or food intake may have fluctuated on those dates. But, Petitioner has not shown that Resident # 20's decreased ability to stand and walk loses significance in light of those other signs.

The resident's non-responsiveness on the afternoon of March 4, 2001 also was a significant change in Resident # 20's condition. P. Ex. 72, at 10. Nothing in the resident's clinical record suggests that he had been non-responsive prior to this time. See, e.g., CMS Ex. 13, at 1.

Finally, the mottling of the resident's extremities on the afternoon or evening of March 4, 2001 constituted a significant change in the resident's condition. Mottling is a sign of lack of oxygen and may be a sign of impending death. CMS Ex. 54, at 3; P. Ex. 68, at 10.

Petitioner's principal response to the evidence presented by CMS is to argue that the failure to consult with the resident's physician prior to March 5, 2001 about changes in the resident's condition was consistent with the wishes of the resident's guardian. P. Br. at 17. Petitioner, in effect, concedes that at least some of these changes - for example, the mottling of the resident's extremities on March 4, 2001 - were signs of impending death, and does not dispute that they would have normally mandated physician consultation in circumstances other than those of this case. Id. But, Petitioner contends that the resident's guardian had expressed a desire that the resident's physician not be advised of such changes. P. Br. at 13. This desire, according to Petitioner, trumps the requirements of the regulation.

It is unnecessary that I decide whether Petitioner would be relieved of its obligation to comply with the requirements of 42 C.F.R. § 483.10(b)(11) if the resident's guardian had expressed a desire that Petitioner not consult with the resident's physician in the event of a significant change in the resident's condition. That is because the record fails to establish that the guardian expressed such a desire.

Petitioner's care plan contained the following statement:

All Staff -- Aware of code status Keep res. comfortable. Do not initiate CPR. Be supportive to decision maker with their decision. Do health assessment as indicated to provide comfort measures. Assist with spiritual comfort as indicated. Allow res. and/or family to vent feelings re: anxiety over death as they choose. Provide comfort measures[.]

P. Ex. 1, at 3.

I find nothing in this statement to suggest that Resident # 20's guardian did not want Petitioner's staff to consult with the resident's physician in the event of a significant change in the resident's condition. The statement expresses a wish that the resident be given comfort measures and that cardiopulmonary resuscitation (CPR) not be initiated in the event of cardiac arrest or pulmonary failure. See CMS Ex. 66, at 15. However, 42 C.F.R. § 483.10(b)(11) addresses circumstances which go beyond cardiac arrest or pulmonary failure. It applies to all significant clinical changes in a resident's condition, including changes that might cause a resident to experience pain or discomfort.

The clinical changes that the resident experienced on March 3 and 4, 2001 were changes that were not analogous to the "no code" circumstances described in the care plan directive. Petitioner's staff should have notified the resident's physician about them. These were changes that, when viewed from the vantage point of hindsight, were precursors of the resident's death. But, they were not changes that necessarily signified that the resident was experiencing cardiac or pulmonary arrest. Nor was Petitioner's staff qualified to make judgments on its own about what these changes signified. It is easy to say today that they signified that the resident was dying. I am not persuaded by any evidence that Petitioner offered that it was possible for the staff to reach that conclusion on March 3 and 4, 2001 and to conclude, therefore, that there was no reason to contact the physician. Thus, not only did the changes fall outside of the ambit of the directive, but they were beyond the competence of Petitioner's staff to interpret.

It is manifest that Petitioner's staff understood the difference between the "no code" situation covered by the resident's care plan and other circumstances that necessitated physician involvement. Petitioner's staff obviously knew that the directive did not mean that the staff was to withhold care from the resident, including care that fell short of CPR, but which might prolong the resident's life. The chain of events preceding Resident # 20's death included his suspected development of a urinary tract infection on March 2, 2001. No one on the staff interpreted the "no code" instruction as meaning that he or she should not inform the physician of the resident's signs or symptoms or should refrain from initiating antibiotic therapy. The staff in fact contacted the physician when the resident exhibited signs of a urinary tract infection and followed the physician's orders to implement potentially life-prolonging antibiotic therapy.

Indeed, the "no code" directive does not excuse Petitioner's staff from notifying a physician of significant changes even where those changes are in the nature of cardiac or pulmonary arrest. The directive addresses the types of treatment - presumably given under a physician's orders - that Petitioner's staff was to provide for Resident # 20. But, it does not excuse Petitioner from consulting with a physician if only to determine whether changes in the resident's condition signified an event that fell within the ambit of the directive.

Petitioner's failure to consult with Resident # 20's physician is a substantial failure to comply with the requirements of 42 C.F.R. § 483.10(b)(11). In this case the failure posed the potential for causing more than minimal harm to the resident.

I note that the State survey agency and CMS determined that Petitioner's noncompliance with the regulation caused Resident # 20 to experience actual harm. It is unnecessary for me to decide whether, in fact, the resident was harmed by Petitioner's failure to consult with the resident's physician in order for me to decide whether Petitioner failed to comply substantially with the requirements of 42 C.F.R. § 483.10(b)(11). All that is necessary for me to decide is whether Petitioner's noncompliance posed the potential for more than minimal harm to a resident or residents. 42 C.F.R. § 488.301.

In this case the evidence clearly shows the potential for more than minimal harm to Resident # 20. Petitioner's staff does not consist of trained physicians and they were not in the position to make medical judgments concerning the meaning of the changes in Resident # 20's condition. Petitioner's staff deprived the resident's physician of the opportunity to make medical judgments which he was uniquely qualified to make - and which may well have benefitted the resident - by not consulting with the physician on March 3 and 4, 2001 about the significant changes in the resident's condition. The significant changes that the resident displayed on those dates were warnings that physician intervention might be necessary at least to address any discomfort that the resident might be experiencing.

3. Civil money penalties of $150 per day are reasonable based on Petitioner's failure to comply with the requirements of 42 C.F.R. § 483.10(b)(11).

CMS alleges that, as of the March 22, 2001 survey, Petitioner was not complying substantially with five distinct participation requirements, including the requirements of 42 C.F.R. § 483.10(b)(11). CMS's determination to impose civil money penalties of $150 per day against Petitioner is based on Petitioner's alleged noncompliance with all five of these requirements. I find it unnecessary that I decide whether Petitioner was complying with requirements other than those stated at 42 C.F.R. § 483.10(b)(11) because Petitioner's noncompliance with this one regulation is sufficient to justify civil money penalties of $150 per day.

My authority to hear and decide this case is de novo. In deciding what civil money penalty amounts are reasonable I do not simply review CMS's civil money penalty determination. Indeed, the process by which CMS came to its determination is irrelevant, because I am required to conduct a de novo review of the facts which relate to the issue of penalty amounts and because I make an independent decision as to what penalty amounts are reasonable. In doing so I am bound by the regulatory factors for deciding penalty amounts that are stated 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 include: a facility's history of noncompliance; the seriousness of its noncompliance; its financial condition; and its culpability. Id.

Petitioner's failure to comply with the requirements of 42 C.F.R. § 483.10(b)(11) is a non-immediate jeopardy level deficiency, meaning that, although it is substantial, it is not a deficiency that caused, or was likely to cause, serious injury, harm, impairment, or death to a resident. 42 C.F.R. § 488.301. Civil money penalty amounts for a non-immediate jeopardy level deficiency must fall within a range of from $50 - $3,000 per day. 42 C.F.R. § 488.438(a)(1)(ii). Penalties of $150 per day fall within the permissible range. The question that I must decide, therefore, is whether penalties of $150 per day are reasonable given the factors that I have described above.

I find them to be reasonable. As a starting point for my analysis I note that penalties of $150 day constitute only five percent of the maximum daily penalties that might be imposed for a non-immediate jeopardy level deficiency. The penalty amount that is at issue is close to the minimum amount and it is an amount that normally is imposed for a relatively minor deficiency or deficiencies.

However, Petitioner's failure to consult with Resident # 20's physician on March 3 and 4, 2001 was not a minor deficiency. The potential for harm to the resident was substantial. I will not speculate whether consulting with the physician would have resulted in an improvement in the quality of the resident's life. But, it is not speculative to say that this resident was dying on March 3 and 4, 2001 and that failure to consult with the physician prevented that physician from exercising any judgment that might have assisted the resident. That lapse by Petitioner's staff clearly posed the potential for serious harm to Resident # 20 and it justifies, in and of itself, at least the minimal civil money penalty amount of $150 per day that I find to be reasonable.

Petitioner argues that CMS probably would not have assessed civil money penalties against Petitioner to begin with had the case been in its present posture at the time that CMS made its penalty determination. P. Br. at 11 - 12. Petitioner predicates this argument on its assertion that, initially, Petitioner was alleged to exhibit more serious deficiencies than ultimately were alleged. Petitioner argues also that, initially, it was alleged that Petitioner failed timely to correct its deficiencies. However, according to Petitioner, this allegation has been eliminated. Therefore, according to Petitioner, the rationale for imposing civil money penalties of $150 per day no longer exists. Id. According to Petitioner: "Where it is probable that CMS would not have assessed . . . [civil money penalties] at all based on any deficiencies found to exist, any assessment above the minimum of $50 per day would be per se unreasonable." Id. at 12 - 13.

This argument incorrectly assumes that the purpose of my hearing this case is to conduct a review of the process by which CMS arrived at its penalty determination. I am not basing my conclusion that civil money penalties of $150 per day are reasonable on the reasoning that CMS may have used to arrive at those penalty amounts. Nor do I ask or answer the question: what penalty determination would CMS make based on the evidence before me? I base my conclusion entirely on the record before me and, in particular, on evidence of the seriousness of Petitioner's noncompliance with the physician consultation requirements of 42 C.F.R. § 483.10(b)(11).

As I explain above, the seriousness of Petitioner's failure to consult with Resident # 20's physician is, in and of itself, sufficient to justify the imposition of civil money penalties of $150 per day. I am not persuaded that the possibility CMS may have determined initially that Petitioner's noncompliance may have been more serious than I find it to be is any basis for reducing the penalty amounts.

I have examined the record of this case in order to decide whether there is evidence that falls under any of the regulatory factors other than those relating to the seriousness of Petitioner's noncompliance that would justify reducing the penalty amounts below $150 per day. I find none to exist. In particular, I find that Petitioner offered no evidence to suggest that its financial condition would preclude it from paying civil money penalties of $150 per day. Nor do I find anything in Petitioner's history that would justify reducing the penalty amounts. Finally, and as I discuss above, I do not find that it is necessary to consider Petitioner's failure to comply with the physician consultation requirement in the context of other possible deficiencies in order to justify civil money penalties of $150 per day. That is because the failure to consult, by itself, justifies penalties in that amount.

4. The duration of Petitioner's noncompliance is from March 22, 2001 through June 10, 2001. CMS is authorized to impose civil money penalties of $150 per day against Petitioner for each day of that period.

One consequence of my October 8, 2002 ruling granting Petitioner partial summary disposition in this case is to preclude the imposition of any remedies, including civil money penalties, against Petitioner on dates after June 10, 2001. CMS now asserts that Petitioner remained noncompliant with one or more participation requirements through that date. It contends that, as a consequence, the period during which civil money penalties of $150 per day should be imposed against Petitioner must run through June 10, 2001.

Petitioner disputes this assertion. It avers that it attained substantial compliance with participation requirements on April 13, 2001. Consequently, according to Petitioner, any civil money penalties that are imposed against it must cease accruing effective with April 12, 2001.

There was no compliance survey conducted of Petitioner between March 22 and June 11, 2001. CMS argues that one must assume conclusively that Petitioner's status of noncompliance remained unchanged in the absence of any survey on dates between March 22 and June 11. CMS Reply at 23 - 24. In effect, CMS asserts that Petitioner must be held to have remained noncompliant during that period because there are no survey findings showing that the noncompliance had been eliminated.

Petitioner argues that there is affirmative proof that it attained compliance by April 13, 2001. That proof, according to Petitioner, consists of its plans of correction in which it avers that it attained compliance by that date. P. Brief at 5 - 8.

I have held on several occasions that a facility that is found to be out of compliance with participation requirements may prove that it attained compliance with participation requirements prior to the date of a followup survey of that facility. See, e.g., Lebanon Nursing and Rehabilitation Center, DAB CR1069, at 14 (2003). But, establishing the date of post-survey compliance is Petitioner's burden to prove and not CMS's burden to disprove. CMS is not obligated to offer evidence of continuing noncompliance in order to establish that a facility remains noncompliant on dates which follow a survey. A finding of noncompliance that is made at a survey creates a presumption of continuing noncompliance until the facility proves, by the preponderance of the evidence, that it has reattained compliance.

Thus, Petitioner is presumed to have remained out of compliance with the requirements of 42 C.F.R. § 483.10(b)(11) until June 11, 2001. The question I must decide is whether Petitioner overcame that presumption by the preponderance of the evidence. I find that it did not.

The only evidence that Petitioner offered to support its contention that it reattained compliance by April 13, 2001 consists of a plan of correction that Petitioner prepared after the March 22, 2001 survey and which it sent to the Wisconsin State survey agency. CMS Ex. 1, at 1 - 2. That plan contains statements of how Petitioner intended to comply with the requirements of the regulation and announces a completion date of April 13, 2001.

I do not find Petitioner's plan of correction to be persuasive evidence that it attained compliance with participation requirements prior to June 10, 2001. The plan of correction is, by its very terms, a self-serving document. Although I will assume for argument's sake that completion of the plan by Petitioner put it back into compliance with participation requirements, I will not find without corroborating evidence that Petitioner actually fulfilled its plan by the completion date.

The plan is a self-serving document. It contains nothing more than Petitioner's representations as to its actions and statements of intent as to what it would do. I am not suggesting here that the plan was not created in good faith. But, Petitioner needed to produce some credible corroboration showing that it actually carried out that which it said it would do.

Arguably, Petitioner could have documented carefully how it was complying with participation requirements and could have offered such evidence to show that it attained compliance prior to June 10, 2001. Had it done so it would have met its burden of proof.

For example, at paragraph 2 of the plan of correction Petitioner avers that:

An all staff inservice has been conducted to remind staff again proper notification duties and Park Manor policy and procedure regarding notification duties.

CMS Ex. 1, at 2. In-service training of Petitioner's staff certainly appears to be an appropriate means to remind the staff of its obligation to consult with a physician about a significant change in a resident's condition. But, Petitioner has not offered documentation establishing how the in-service training was conducted and, most importantly, what was said and emphasized at such training. Because Petitioner failed to do so, I am not persuaded that Petitioner attained compliance by April 13, 2001, as it contends, or on any date prior to June 11, 2001.

Steven T. Kessel

Administrative Law Judge

1. Originally, CMS determined to impose penalties of $250 per day but then reduced the penalty amounts to $150 per day.

2. The introduction to the transcript of the hearing which includes a page headed with the word "Exhibits" erroneously states that I rejected CMS Exs. 66 and 67. Tr. at 4. However, it is clear from the body of the transcript that I admitted CMS Ex. 66 and rejected CMS Exs. 67 and 68. Tr. at 251 - 269. I discuss in more detail my ruling as to CMS Ex. 68 below, at Finding 1.