CASE | DECISION |JUDGE | FOOTNOTES

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


SUBJECT:

Spring Meadows Health Care Center,

Petitioner,

DATE: January 13, 2004
                                          
             - v -

 

Centers for Medicare & Medicaid

 

Docket No.C-99-756
Decision No. CR1130
DECISION
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DECISION

On July 9, 2003, I issued a decision (Decision No. CR1063) in the above-entitled case finding that from April 24, 1999 through June 7, 1999, Spring Meadows Health Care Center (Petitioner) was not complying with federal Medicare participation requirements at the immediate jeopardy level and that the imposition of a civil money penalty (CMP) by the Centers fro Medicare & Medicaid Services (CMS) of $3150 per day is reasonable. Following Petitioner's motion for reconsideration, I amend the Decision to the extent only that I find a lesser CMP of $3050 per day is reasonable.

I. Background

The procedural history of this case set forth in the original Decision, is incorporated by reference, and is not repeated here. On September 12, 2003, after the Decision was issued, Petitioner filed Petitioner's Request for Reconsideration. (1) In its motion, Petitioner made the following main arguments:

•a surveyor from the State agency testified at the hearing in error that Petitioner had previous problems similar to the deficiencies at issue in this case, and because in Petitioner's view, much of my decision was based on my finding that a repeat deficiency existed, the Decision should be reconsidered; and,

•my conclusion regarding one deficiency relied on facts and a theory that were not presented by CMS in the original Statement of Deficiencies (SOD) or in the presentation of CMS's prima facie case. Therefore, Petitioner argued, it could not know it needed to present responsive evidence, and the Decision should be reconsidered in light of the legal error and Petitioner's newly-submitted evidence.

On October 3, 2003, a letter was sent to CMS counsel, at my request, offering CMS an opportunity to respond to Petitioner's motion by October 20, 2003. This letter specified that, if CMS did not respond, I would assume Petitioner was correct that CMS's witness had incorrectly testified the deficiency at issue was a repeat deficiency. To date, CMS has not responded to either Petitioner's motion nor to the October 3, 2003 letter sent at my direction.

II. Legal Authority

The regulatory provisions relating to administrative hearings at the Departmental Appeals Board address reconsideration and/or reopening of Administrative Law Judge decisions in several sections. 42 C.F.R. § 498.74 (b)(3), and in Subpart F. Based on Subpart F, new evidence can be the basis for a revised decision. 42 C.F.R. § 498.102.

With respect to federal civil practice and the Federal Rules of Civil Procedure, the standard for reconsideration of a decision is whether the decision contains a manifest error of fact, a manifest error of law or additional evidence has been newly discovered. FRCivP, Rule 59(a); Brown v. Wright, 588 F.2d 708, 710 (9th Cir. 1978).

III. Revised Findings

1. Petitioner was not previously cited for noncompliance with federal regulations because of a problem with privately-hired sitters.

The Decision of July 9, 2003, contained the following statement.

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

Decision, at 19.

Surveyor Gaynor testified at the hearing as follows:

Also on that survey [January 1998] there was licensure deficiency that dealt with the regulation regarding sitters and the fact that they are accountable to the facility, and must meet the same requirements as do their employees with regard to physicals and accountability to the regulations of the facility.

Tr., at 31.

Upon Petitioner's objection on the grounds of relevance, CMS counsel stated the following:

. . . the review of a facility's compliance history is quite relevant and it's one of the things that goes into determining the assessment of a CMP. It's also important to note that this was not Spring Meadows' first brush with a problem with a sitter and the issue of the private sitter and liability of the private sitter . .

Id.

CMS Counsel also stated:

She [Surveyor Gaynor] was just simply reviewing the compliance history, in particular the fact that less than a year prior to the survey this facility had the same problem with sitters, which is quite relevant.

Tr., at 32.

I ruled that Petitioner's compliance history was relevant. Surveyor Gaynor then testified that:

On January 11th, 1998, there was a complaint survey where there was a harm cited and there was an associated CMP. The next survey was a standard survey from January the 5th through January the 7th of 99. There were three tags cited. One had to do with pressure sores; one had to do with adequate hydration and one with housekeeping. And the next survey was the complaint survey that I conducted June the 4th through June the 7th [the subject of this case] with the result in the immediate jeopardy citation.

Tr., at 33.

On rereading the transcript, especially Surveyor Gaynor's statement at Tr. 33, it appears I misread her testimony with respect to whether a prior survey in 1998 or 1999 resulted in a deficiency citation relating to Petitioner's relationship with privately-hired sitters. It is possible that Petitioner's sitter problem came up with respect to a state licensing review, but no corroborating evidence was presented to that effect. CMS made no effort either upon receipt of the transcript, the Decision, Petitioner's motion, or my letter inviting response, to correct or explain Surveyor Gaynor's statement upon which I had relied.

Given CMS's lack of response to this matter, I find that Petitioner was not previously cited for noncompliance with federal requirements for any action or inaction related to privately-hired sitters working at Petitioner's facility.

2. My correction regarding Petitioner's compliance history does not lead me to change my finding that CMS's assessment of immediate jeopardy was not clearly erroneous.

My conclusion regarding CMS's assessment of immediate jeopardy is explained in the Decision, at 22, and I do not repeat it here. My conclusion was not based on Petitioner's prior compliance history. My mistake of fact with respect Petitioner's compliance history does not change my conclusion that CMS's assessment of immediate jeopardy was not clearly erroneous.

3. My reassessment of Petitioner's compliance history does lead me to conclude that the lowest immediate jeopardy CMP is reasonable in this case.

One of the factors I relied upon in determining the reasonableness of the assessed CMP was the factor specified in 42 C.F.R. § 488.438(f)(1). This regulation states that the facility's history of noncompliance, including repeat deficiencies, must be taken into account. Decision, at 24. Given my erroneous assumption with respect to repeat deficiencies, I found that Petitioner should not be assessed the lowest CMP for immediate jeopardy deficiencies. I now find that the lowest per day immediate jeopardy CMP of $3050 is reasonable in light of all the regulatory factors that are considered in determining the reasonableness of CMPs.

4. After review of the record and Petitioner's arguments, I continue to conclude that Petitioner was not in compliance with Tag F-309, the requirement set forth at 42 C.F.R. § 483.25 between April 24, 1999 and June 7, 1999.

The regulation at 42 C.F.R. § 483.25 requires that a facility provide "necessary" services in accordance with the facility's own assessment of the resident and the resident's plan of care. In the Decision, I noted that R1's plan of care required frequent monitoring of him; i.e., checking his restraint every 30 minutes and releasing his restraints every two hours to allow him to exercise. I concluded that "[a]n abdication of staff monitoring because R1 had a sitter with him is a failure to provide necessary services according to R1's plan of care, particularly when the facility is unaware of the identity or duties of the sitter." Decision, at 21.

In its motion for reconsideration, Petitioner makes three arguments why I should reconsider my conclusions with respect to Tag F-309. First, Petitioner argues that its method of charting would not result in routine observations and services being documented in its nurses' notes. Petitioner submitted the Declaration of Paige Adams, in which she attested that the facility used a modified version of charting by exception in which abnormal events and observations are charted rather than routine occurrences and that restraint checks and releases are documented at the end of a shift on a separate form from the nurses' notes.

Second, Petitioner argues that no one from either CMS or the State agency cited the failure to make or document observations and services as a care plan failure. The SOD for the Tag does not mention the failure to make or record observations or provide routine services as a violation of the care plan. Petitioner contends that CMS presented no evidence that Petitioner provided insufficient monitoring, observations or services described in R1's care plan. The citation, according to Petitioner, was based entirely on the facility's failure to provide neurochecks for R1, and the basis for the deficiency was my opinion alone.

Third, Petitioner did not have sufficient notice to prepare adequately for the hearing because it had insufficient notice of what it must show to prove compliance. In essence, Petitioner claims that it was not fully informed of the case against it such that it could contest its basis and produce evidence in rebuttal. Due process, Petitioner contends, requires that it be able to rely on the SOD as the notice of factual allegations which it must confront at the hearing.

I decline to amend further the Decision. After reviewing Petitioner's motion as well as the SOD, I note that the SOD under tag F 309 refers to the absence in the nurses' notes that a neurological or physical assessment was performed by the LPN and to the failure by the facility staff to assess the resident's condition. CMS Ex.1, at 7, 8. I also note that a recent DAB decision in Regency Gardens Nursing Center, DAB No. 1858 (2002) stated that the SOD is a notice document not designed to lay out every single detail in support of a finding of violation; cf., Cross Creek Health Care Center, DAB No.1665 (1998). Finally, Petitioner's newly-submitted evidence did not persuade me to change the Decision.

IV. Conclusion

From April 24, 1999 through June 7, 1999, Petitioner was not complying with federal Medicare participation requirements at the immediate jeopardy level and the imposition of a CMP in the amount of $3050 per day is reasonable.

JUDGE
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Anne E. Blair

Administrative Law Judge

FOOTNOTES
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1. Petitioner attached exhibits marked Petitioner's Posthearing Exhibits 1 - 4. There being no objection, I admit these exhibits into the record.

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