CASE | DECISION |JUDGE | FOOTNOTES

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

SUBJECT:

Fairview Haven,

Petitioner,

DATE: May 11, 2004
                                          
             - v -

 

Centers for Medicare & Medicaid Services.

 

Docket No.C-01-660
Decision No. CR1175
DECISION
...TO TOP

DECISION

Fairview Haven, Petitioner, requested a hearing to challenge the determination by the Centers for Medicare & Medicaid Services (CMS) (1) to impose enforcement remedies against it, including a civil money penalty (CMP) of $13,450, based on deficiencies cited following a survey completed on March 31, 1999. For the reasons set forth below, I decide that CMS had the authority to impose the CMP, and the other enforcement remedies, because Petitioner was not in substantial compliance with the cited participation requirements for nursing facilities.

I. Background

Petitioner is a nursing facility located in Fairbury, Illinois. CMS determined that Petitioner was not in substantial compliance with Medicare participation requirements based on a survey completed on March 31, 1999, by the Illinois Department of Public Health (State survey agency). (2) Petitioner filed a timely hearing request to appeal the imposition of remedies by CMS based on the deficiencies cited by the State survey agency. Petitioner specifically contested the following remedies: the $3,050 per day CMP imposed by the State survey agency, based on an immediate jeopardy-level deficiency identified during the survey for one day of immediate jeopardy on March 20, 1999, and the $200 per day CMP imposed for the period beginning March 21, 1999 and continuing through May 11, 1999 (for a total CMP of $13,450); directed inservice training, effective April 21, 1999; and the loss of its nurse aide training and competency evaluation program (NATCEP) for two years. (3) Following a State survey agency revisit survey on May 12, 1999, Petitioner was found to be back in substantial compliance with participation requirements.

The case was assigned to me for hearing and decision. At the parties' request, I stayed the case to allow them to discuss settlement. They were unable to settle, and I then directed them to submit an exchange of witness and exhibit lists and documentary evidence in preparation for an in-person hearing. They complied with my order and submitted Petitioner's Exhibits (P. Exs.) 1 - 38 and CMS's Exhibits (CMS Exs.) 1 - 30. CMS then requested that the case be heard by motion for summary judgment or on the record without an in-person hearing. (4) Petitioner submitted a motion for summary judgment (P. Br.), accompanied by summary judgment exhibits (P. S.J. Exs. 1 - 6, 8 - 14, and 17 - 21 (the other numbers in sequence were not submitted)), (5) and I set a briefing schedule on Petitioner's motion. CMS submitted a cross-motion for summary judgment (CMS Br.), and an additional exhibit, CMS Ex. 31, the declaration of Mary Beth Augspurger, R.N. (the State survey agency surveyor who conducted the survey at issue in this case). Petitioner replied (P. Reply Br.), but did not directly respond to CMS's cross-motion, instead attaching motions requesting that I strike CMS's cross-motion for summary judgment and that I also strike CMS Ex. 31, Ms. Augspurger's declaration. (6) On July 1, 2003, I ruled that CMS had put forward a prima facie case, but I gave Petitioner the opportunity to submit a brief directly responsive to CMS's motion for summary judgment and to show that a disputed issue of material fact existed precluding me from issuing summary judgment for CMS. Petitioner responded to my Order (P. Supplemental Br.) (7) and CMS replied to Petitioner's response (CMS Supplemental Br.).

The parties have referred to CMS's exhibits, Petitioner's exhibits, and Petitioner's summary judgment exhibits in this case. For ease of reference, and in the absence of any documented objection in the parties' submissions to the authenticity of these exhibits, I am admitting all of these exhibits.

II. Applicable law

Long-term care providers, such as Petitioner, participate in the Medicare program by entering into provider agreements with the United States Department of Health and Human Services. Requirements of participation are imposed by statute and regulation. Social Security Act (Act), section 1819; 42 C.F.R. Parts 483, 488, and 489. In order to continue in the Medicare and Medicaid programs, providers must remain in substantial compliance with participation requirements.

The regulations define "substantial compliance" as follows: "Substantial compliance means a level of compliance with the requirements of participation such that any identified deficiencies pose no greater risk to resident health or safety than the potential for causing minimal harm." 42 C.F.R. § 488.301. The regulations define "immediate jeopardy" as follows: "Immediate jeopardy means 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." Id.

The regulations specify that a CMP that is imposed against a provider will fall into one of two broad ranges of penalties. 42 C.F.R. §§ 488.408; 488.438. The lower range of CMPs, from $50 per day to $3,000 per day, is reserved for deficiencies that do not constitute immediate jeopardy, but either cause actual harm to residents, or cause no actual harm, but have the potential for causing more than minimal harm. 42 C.F.R. § 488.438(a)(1)(ii). The upper range of CMPs, from $3,050 per day to $10,000 per day, is reserved for deficiencies that constitute immediate jeopardy to a provider's residents, and, in some circumstances, for repeated deficiencies. 42 C.F.R. §§ 488.438(a)(1)(i), (d)(2). When penalties are imposed for an instance of noncompliance, the penalties will be in the range of $1,000 to $10,000 per instance. 42 C.F.R. § 488.438(a)(2).

The preponderance of the evidence standard is applied to resolve disputed issues of fact, except as provided by 42 C.F.R. § 498.60(c)(2), which states that, in CMP cases, CMS's determination as to the level of noncompliance must be upheld unless it is clearly erroneous. CMS bears the burden of coming forward with evidence sufficient to establish a prima facie case that a provider was not in substantial compliance with the participation requirements at issue. Once CMS has established a prima facie case, the provider has the ultimate burden of persuasion: to prevail, the provider must prove by a preponderance of the evidence that it was in substantial compliance with each participation requirement at issue. See Batavia Nursing and Convalescent Center, DAB No. 1904 (2004); Batavia Nursing and Convalescent Inn, DAB No. 1911 (2004); Hillman Rehabilitation Center, DAB No. 1611 (1997), aff'd, Hillman Rehabilitation Center v. United States, No. 98-3789 (GEB) (D.N.J. May 13, 1999); see South Valley Health Care Center, DAB No. 1691 (1999), aff'd. South Valley Health Care Center v. HCFA, 223 F.3d 1221 (10th Cir. 2000). (8)

III. Summary Judgment

I note that I am deciding this case on CMS's motion for summary judgment. As I stated in my Ruling and Order dated July 1, 2003, the Board discussed under what circumstances summary judgment is appropriate in the case of Livingston Care Center, DAB No. 1871, at 5 (2003) and expanded upon the discussion in the case of Lebanon Nursing and Rehabilitation Center, DAB No. 1918, at 4 - 5 (2004). The Board stated,

Summary judgment is appropriate when the record shows that there is no genuine issue as to any material fact, and the moving party is entitled to judgment as a matter of law. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-25 (1986). The party moving for summary judgment bears the initial burden of demonstrating that there are no genuine issues of material fact for trial and that it is entitled to judgment as a matter of law. Celotex, 477 U.S. at 323. This burden may be discharged by showing that there is no evidence in the record to support a judgment for the non-moving party. Id. at 325. If a moving party carries its initial burden, the non-moving party must "come forward with 'specific facts showing that there is a genuine issue for trial.'" Matsushita Elec. Industrial Co. v. Zenith Radio, 475 U.S. 574, 587 (1986) (quoting FRCP 56(e)). To defeat an adequately supported summary judgment motion, the non-moving party may not rely on the denials in its pleadings or briefs, but must furnish evidence of a dispute concerning a material fact - a fact that, if proven, would affect the outcome of the case under governing law. Id. at 586, n.11; Celotex, 477 U.S. at 322 (moving party is entitled to summary judgment if the party opposing the motion "fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial."). Finally, in order to demonstrate a genuine issue, the opposing party must do more than show that there is "some metaphysical doubt as to the material facts . . . . Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is 'no genuine issue for trial.' Matsushita, at 587.

Lebanon, DAB No. 1918, at 4 - 5. In my Ruling and Order I found that CMS had put forward a prima facie case under 42 C.F.R. § 483.13(c)(1)(i) that Petitioner had failed to prevent the neglect of a resident in contravention of the resident's plan of care and facility policy (discussed fully below). However, I noted that Petitioner may have raised an issue of material fact which might preclude me from deciding the case on CMS's motion. I gave Petitioner the opportunity to respond and show that there is a genuine issue of material fact which might affect the outcome of the case and on which I would need to hear in-person testimony. Petitioner has failed to do so, and, moreover, has not requested that I give it an opportunity to present testimonial evidence in person or an opportunity to cross-examine CMS's proposed witnesses. Further, Petitioner has not made a proffer of any evidence that it would present at an in-person hearing that would change the outcome of this case. Thus, I am deciding this case based on CMS's motion for summary judgment. I note that in its response to CMS's motion for summary judgment, Petitioner did request oral argument. P. Supplemental Br. at 1. However, Petitioner did not state the reason it was requesting oral argument, or what it wanted to argue, and thus I am denying its request. Finally, Petitioner stated that should I "deny CMS' Cross Motion" it would request a full and complete hearing in the matter, including witness testimony. Id. at 2. As I have granted CMS's motion, I need not address Petitioner's request. Moreover, Petitioner did not make a proffer of what evidence it would present. Id.

IV. Issues, findings of fact and conclusions of law

A. Issues

The issues in this case are:

    •whether Petitioner was in substantial compliance with participation requirements; and

    •whether the remedies imposed against Petitioner 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, in bold face and italics, as a separate heading. I discuss each Finding in detail.

1. Petitioner was out of substantial compliance with participation requirements as identified in the March 31, 1999 Statement of Deficiencies (CMS 2567).

This case is based on Petitioner's care of one very old and very frail resident, R1, on March 19 and 20, 1999. At the relevant time, R1 was a 105-year-old individual with diagnoses including, among other things, diabetes, arteriosclerotic heart disease, renal insufficiency, degenerative arthritis, history of hip fractures, thrombocytopenia, (9) and a past history of recurrent dislocation of the left shoulder. CMS Ex. 4, at 2; CMS Ex. 14, at 1 - 2; CMS Ex. 10, at 2. The State survey agency, after reviewing facility and hospital records and interviewing staff, found that Petitioner was out of compliance with three participation requirements based on Petitioner's care of R1 on March 19 and 20, 1999: Tag F224 on the CMS 2567, which references 42 C.F.R. § 483.13(c)(1)(i); Tag F272 on the CMS 2567, which references 42 C.F.R. § 483.20(b); and Tag F324 on the CMS 2567, which references 42 C.F.R. § 483.25(h)(2). Moreover, CMS found that Petitioner's noncompliance with Tag F224 constituted immediate jeopardy. I find Petitioner to have been out of substantial compliance with these participation requirements. Moreover, I find Petitioner's noncompliance with Tag F224 to constitute immediate jeopardy. I will only briefly address Tags F272 and F324, as the deficiency at Tag F224 alone is sufficient to uphold CMS's determination in this case. (10)

a. Petitioner was out of compliance with the participation requirement at Tag F224 on the CMS 2567.

Tag F224 references 42 C.F.R. § 483.13(c)(1)(i) of the regulations governing this case. This section of the regulations provides that a facility must develop and implement written policies and procedures that prohibit mistreatment, neglect, and abuse of residents and misappropriation of resident property. A facility must not use verbal, mental, sexual, or physical abuse, corporal punishment, or involuntary seclusion.

CMS argues that, based on facility and hospital record review, and staff interview, Petitioner failed to prevent neglect of R1. Specifically, Petitioner failed to properly transfer R1 to prevent injury; failed to communicate a possible incident during the transfer; failed to follow facility procedure for reporting incidents; failed to accurately assess the extent of R1's injury; failed to notify R1's physician regarding R1's injuries and condition; continued to transfer R1 up to a chair in the presence of injury and pain, still without notifying R1's physician; and failed to promptly assess R1 at the change of shift after report of possible injury and pain. CMS asserts that these failures contributed to injury and delay of treatment of R1. CMS assessed the alleged noncompliance at a level of immediate jeopardy. CMS Ex. 4, at 1 - 2; CMS Ex. 1. Below, I find that Petitioner failed to properly transfer R1 to prevent injury; failed to follow facility procedure for reporting incidents; and failed to timely notify R1's physician regarding R1's condition. Any one of these failures alone could have caused R1 to be in immediate jeopardy, but there is no question that, in combination, Petitioner's noncompliance put R1 in immediate jeopardy.

The CMS 2567 asserts that "according to facility investigation notes and interview with E4 and E5, on 3/19/99 at approximately 3:30 pm, R1 was transferred by E4 [Mary Byrd] and E5 [Vicki Harmon] from the bed to the commode, and from the commode to the wheelchair, by lifting R1 manually under the arms, not with the mechanical sling lift. R1 was later transferred at approximately 8:00 pm from the wheelchair to the bed by the mechanical lift by E4 alone without 2 assists." CMS Ex. 4, at 2 - 3. The 2567 also asserts that "R1 had been non-weightbearing and required a mechanical sling lift with 2 assists for all transfers." Id. at 2.

The record reflects that R1 had a care plan dated February 17, 1999, which indicated that when R1 was moved from her bed to a chair she was to be "transfer[red] to chair/bed w/2 assist/sling mech lift." CMS Ex. 14, at 12. Petitioner's policy on March 19, 1999 with regard to Hoyer lifts [the type of mechanical lift used to transfer R1] was that the lift was to be used for difficult transfers and for residents who could not bear weight. Petitioner's policy stated that a list of the residents requiring a Hoyer transfer was to be provided. CMS Ex. 19, at 7. More specifically, for a resident such as R1 who required the Hoyer lift at all times, Petitioner's policy was that "[r]esidents that are on the hoyer lift list that require transfer to the commode can not be made with a hoyer unless that resident is on a canvas lift designed for toileting use. This is not possible for all residents. Those lifts will require a 2 or more assist lift with the help of a transfer belt and personnel wearing back supports." Id. R1 was on the list of facility residents for whom it was indicated, in a facility posting for the period January 1, 1999 through March 31, 1999 (the time period at issue), and noted in capital letters and bold, that: "MECHANICAL LIFTS TO BE USED AT ALL TIMES ON THE FOLLOWING RESIDENTS". Specifically, R1 was the third resident listed, with a hyphen after her name and the indication "sling at all times" noted after the hyphen. CMS Ex. 15. In combination, I find this to mean that when R1 was to be moved between her bed and her chair or commode she was to be moved at all times with a mechanical lift and a sling and that two individuals were to assist in the transfer. (11)

Petitioner does not assert that its CNAs properly transferred R1 on March 19. In fact, the investigation by Petitioner's Director of Nursing (DON), Charlene Aaron, R.N., as exemplified in Ms. Aron's written report of the investigation, found that Ms. Byrd and Ms. Harmon transferred R1 manually on March 19 and that Ms. Byrd then transferred R1 later that day using the Hoyer lift by herself. Ms. Aaron stated that "[i]t is the policy of Fairview Haven to transfer resident's [sic] with the mechanical lift with 2 C.N.A.s present for safety purposes." P. Ex. 27, at 2.

Ms. Augspurger's declaration also discusses the use of mechanical lifts. She states,

Based on my education, training and experience, I am familiar with the use of mechanical lifts, including Hoyer lifts, which are a particular brand of mechanical lift. Such lifts are typically used to transfer residents who are difficult to transfer or cannot bear weight. They operate hydraulically or electronically, and the resident is moved on a large cloth sling that fits the resident approximately from their shoulders to their thighs and is hooked to the lift. The sling is designed to bear the entire weight of the resident. There are special slings for use when a resident is toileted. The professional standard of care for using a Hoyer lift safely is for two people to assist, one to actually maneuver the lift and the other to steady the resident so they do not swing or bump their head and to put them in a good position over the bed, chair or commode.

CMS Ex. 31, at 3 - 4. Ms. Augspurger's declaration confirms contemporaneous statements made by Ms. Aaron in her written investigation findings. I note Ms. Augspurger further stated,

Staff at Fairview Haven were supposed to use the Hoyer lift with a sling for all of R.1's transfers and were supposed to have two people assist with the Hoyer transfers. Instructions to this effect were in R.1's care plan . . . The Director of Nursing also told me that having two staff members assisting in Hoyer lifts is consistent with facility policy as it existed before March 19, 1999, as well as after March 20, 1999.

Id. at 4. Again, Ms. Augspurger's declaration is consistent with Ms. Aaron's contemporaneous written statement.

The purpose for Petitioner's lift policy is clear. The policy states "The lift provides a more comfortable and safe lift for the resident. This will help decrease the number of injuries to nursing personnel and to the residents." CMS Ex. 19, at 7. By not transferring R1 under her care plan and pursuant to facility policy, R1 was put at risk of injury and, given her age and frail condition, it is reasonable to conclude that such failure could lead to a likelihood of serious harm to her health. See Fairfax Nursing Home, Inc., DAB No. 1794, at 13 - 14.

I gave Petitioner the opportunity to submit evidence that the transfer methods used by the CNAs in the two incidents on March 19, 1999, a manual lift and a mechanical lift with a one person assist, were adequate substitutes for a two-person assisted lift. Petitioner did not avail itself of the opportunity and has never submitted evidence or even persuasive argument to show that such transfers are acceptable substitutes. Petitioner asserts only that a State administrative law judge, in the case against Ms. Byrd for neglect, looked at Petitioner's policies with regard to use of Hoyer lifts and Petitioner's care plan and concluded that two people were not required to make a transfer with a Hoyer lift; further, he read R1's care plan to permit either a two-person manual lift or transfer with a Hoyer lift by less than a two-person assist. P. Supplemental Br. at 4.

The conclusion of the State administrative law judge is not a material fact in this proceeding, and I am not bound by his conclusion. Moreover, I disagree with his conclusion regarding the nature of the lift policy and I believe he was wrong. My review of the documents in question, especially regarding the care plan reference to "Transfer to Chair/Bed w/2 Assist/Sling Mechanical Lift" with no reference to a "manual" lift, along with the declaration of Ms. Augspurger and the contemporaneous written investigative statement of Ms. Aaron (inexplicably discounted by the State administrative law judge, P. S.J. Ex. 9, at 7), lead me to a different conclusion; namely that a mechanical lift with a two-person assist was required. Facility staff failed to follow this policy. Thus, I sustain the deficiency. Further, I find the risk of harm to R1 by the improper transfers to have been so serious that, based on the transfers alone, I find the facility to be out of compliance at the immediate jeopardy level. (12)

However, this is not the only deficiency I find here. Petitioner also failed to follow facility procedure for reporting incidents, failed to accurately assess the extent of R1's injury, and failed to notify R1's physician regarding R1's injuries and condition. I find the facility's records to be the best evidence illustrating Petitioner's deficiencies in this regard. I am setting forth for reference, in their entirety, the facility's nurse's notes of March 19 and 20, 1999 regarding R1, as prepared by the facility's nurses: Dorothy Wessels, L.P.N. (who charted on March 19, 1999 through 10:10 P.M.); Sue Gero, L.P.N. (who charted through 5:00 A.M. on March 20, 1999); and Mary Anne Rabe, R.N. (who charted for the rest of the citations on March 20, 1999):

3-19-99 2000 Res c/o pain lt. foot during HS cares. R.O.M. done with lt. foot . . . c/o pain [with] manipulation. [No] swelling or discoloration noted. Tylenol supp. 650 mg. given rectally for disc.

3-19-99 2100 Res. sleeping. No change in appearance of lt. foot.

3-19-99 2210 Lg. ecchymotic area - blue/purple in color noted Rt. axilla area. Area swollen. No warmth to touch.

3/20/99 0100 Aide called nurse to Resident's room. Res. c/o [right] shoulder pain. Res. noted to have dark purple/Blue Bruising from scapula on posterior side to sternum on anterior side of body. Raised area of dark purple on [right] Breast area. Also warm to touch. Res. also noted to have Bruising on Both feet, tender to touch, [no] swelling. Res. unable to communicate the origin of Bruising. Tylenol Supp. given per order for pain. Continue to monitor.

3/20/99 0300 Bruising now noted larger, moving to [left] Breast inclusive. Repositioned for comfort.

3/20/99 0330 Res. resting comfortably in Bed. Scrape on [left] shin noted as well. Cleaned and dressed.

3/20/99 0500 Res [up for] cares. Pain to touch on [right] shoulder and arm. Sling lift used in transfer. Resident tolerated well. Continue to monitor.

3/20/99 0900 Noted Large ecchymotic area from Right Shoulder across chest to left shoulder down [right] arm [and] under breast [and] axilla. Very quiet [and] despondent at table refusing breakfast.

3/20/99 1030 Called to resident's room by CNA. Resident c/o Pain [left] leg. Depressed area [down left] shin. Swollen between [left] shin [and left] ankle. S/s possible fracture noted. Dr. Kothari paged. When we got no response Dr. Migas notified.

1200 Dr. Kothari . . . called back. Told us to transfer to Bromenn ER. R/o [left] ankle fracture, R/o [right] shoulder dislocation. Eval for blood dyscreatia. SE/CAS ambulance notified for transport. C. Aaron DON notified.

CMS Ex. 14, at 7 - 9. On March 21, 1999, the hospital called to inform Petitioner that R1 had died. Id. at 9.

I note that R1's minimum data set (MDS), dated February 11, 1999, approximately a month prior to the events at issue, reflected that R1 experienced mild pain less often than once a day, was in stable condition, and was able to make herself understood. CMS Ex. 14, at 17, 18. I note further that the facility's nurse's notes regarding R1 are scanty prior to March 19 and 20, 1999, with one page of nurse's notes reflecting dates from December 23, 1998 through March 19, 1999, and another single page reflecting her care from October 6, 1998 through December 23, 1998. CMS Ex. 14, at 7, 10. The only comprehensive nurse's notes during the period October 6, 1998 through March 19, 1999, deal with a fall R1 sustained on February 21, 1999. Nurse's notes reflect that:

2/21/99 1030 CNA found resident on floor on (L) side wc next to her. Apparently slid from chair. Dress was of silk-like material & material she was sitting on was of a silky consistency. Neuro [check] good . . . alert - coherent - able to speak asked for "Do you have candy?" (L) shoulder slightly reddened. No open areas, contusions, bruises, dislocations or fractures noted. Assisted into chair . . . No head trauma noted. Will cont to observe and assess.

2/21/99 1200 Paul Fairley DOA/Grandson notified on answering machine.

Dr. Kothari/Hough notified by fax.

2/21/99 2200 No further injuries - offered no c/o pain from incid this A.M. Neuro [check] good.

2/22/99 1300 Fall vitals. BP 97.4 p.o. P 74 R. 20 T. 114/52

2/22/99 1500 No c/o from fall on 2/21/99

2/23/99 0500 Fall vitals 110/62 - 97.6 - 72 - 20 - No new apparent injuries noted.

2/23/99 1100 No adverse effects from fall

2/23/99 2200 97 - 78 - 20 - 106/54 No c/o

2/24/99 0500 Fall vitals see flow sheet

CMS Ex. 14, at 7.

Finally, in addition to the nurse's notes, I reference Petitioner's policy regarding incident reports as of the relevant dates, which states:

1. Incident reports are to be completed on all incidents, whether they result in an injury or not. Injuries that are noted and are of an unknown origin are to be reported on an incident report. An example would be significant bruising or a skin tear first noticed on bed check.

a. Primary physicians are to be notified of any incident resulting in an injury even if it is as minor as a skin tear. All incidents where the head gets struck should be reported to the physician.

*Call D.O.N. regarding all incidents when first noted, or when there is a significant change in a resident's condition.

P. Ex. 35, at 22 - 23; CMS Ex. 19, at 2 - 3; CMS Ex. 31, at 4.

Petitioner argues that R1 had a history of thrombocytopenia and that it was not unusual for there to be bruising on her body. (13) P. Br. at 12. Further, Petitioner asserts that its staff was checking R1's vital signs and had determined that R1's condition was stable. Id. Petitioner asserts that it was not until March 20, 1999, that R1's condition significantly changed, and that it then immediately contacted R1's physician and transferred R1 to the hospital. P. Br. at 12, 18. However, the material facts of record belie Petitioner's assertions.

It is apparent that, in making copious notes of R1's condition beginning in the evening of March 19, 1999, in contrast to the scanty nurse's notes of the previous months, Petitioner understood that what was happening to R1 was a significant change in her condition - which previously had been stable, as noted above and as reflected in R1's MDS of February 11, 1999. Petitioner's policy called for reporting to the DON all injuries when first noted, which injuries would include significant bruising or a skin tear. And, although R1 had a history of thrombocytopenia, the bruising on her body beginning on the night of March 19 was enough of a change in condition from her condition over the last few months to be prominently noted in the nurse's notes. From the pertinent nurse's notes it is arguable that the DON should have been notified when R1 first complained of pain in her left foot during cares. At the very minimum, however, the DON should have been notified when the large ecchymotic area was noted in R1's right axilla at 10:10 P.M. on March 19, 1999, and an incident report filed, as required by Petitioner's policy. By 1:00 A.M. on March 20, 1999, R1 was noted to have the bruising on her side which was warm to the touch, as well as bruising on both of her feet which were tender. Inexplicably, neither the physician or the DON was alerted to this rapidly changing situation.

I note in contrast that, when R1 was found on the floor on February 21, 1999, Petitioner's grandson and physician were notified within an hour and a half of her being found on the floor and where the only injury appeared to be a slightly reddened left shoulder. Moreover, for the next several days after her fall, nurse's notes reflect that Petitioner was monitored and vital signs were taken. In contrast, although Petitioner was observed every few hours at the relevant times on March 19 and 20, 1999, the nurses' notes show no evidence that R1's vital signs were even taken (although Petitioner has made an unsupported assertion that vitals were taken) until approximately 9:00 A.M. on the morning of March 20, 1999. P. Ex. 25. Instead, all staff appears to have done during this time was to note R1's rapidly expanding bruising and complaints of pain and administer Tylenol. I find Petitioner's staff's failure to contact the DON or call R1's physician, despite its observation of significant changes in R1's condition, to be a failure to accurately assess the extent of R1's injury.

b. Petitioner was out of compliance with the participation requirement at Tag F272 on the CMS 2567.

Tag F272 references 42 C.F.R. § 483.20(b) of the regulations governing this case. This section of the regulations provides that a facility must make a comprehensive assessment of a resident's needs, using the resident assessment instrument specified by the State and approved by the Secretary and that describes a resident's capability to perform daily life functions and significant impairments in functional capacity. (14) CMS asserts that based on record review and interview, Petitioner failed to accurately assess R1 in a timely manner after observing bruising and ankle injury. CMS Ex. 4, at 15 - 18. In particular, the 2567 cites Petitioner's failure to take vital signs, do further assessment, or timely notify R1's physician. Id.

Petitioner asserts that R1 was consistently monitored throughout the evening of March 19, 1999, and the morning of March 20, 1999, and that there is no indication that R1's condition significantly changed until 9:00 A.M. on March 20, 1999, when R1 became lethargic. P. Br. at 14; P. Supplemental Br. at 9. Thus, Petitioner argues that there was no reason for its staff to do an assessment based on a change in condition. P. Supplemental Br. at 9. As evidence of its monitoring of her condition, Petitioner asserts that its employees checked on R1 several times during the relevant times and, each time, staff reviewed R1's condition, checked her vital signs, and determined that her condition was stable. Id. at 9.

I disagree. As I note above, there is no evidence that Petitioner's staff took vital signs at any time until about 9:00 A.M. on March 20, 1999. P. Ex. 25, at 1. Moreover, the facility's nurse's notes reflect that rather than Petitioner's condition remaining stable, it was changing during the evening and early morning hours of March 19 and 20, 1999. Thus, I find Petitioner failed to address and assess significant changes in R1's condition and respond to those changes.

c. Petitioner was out of compliance with the participation requirement at Tag F324 on the CMS 2567.

Tag F324 references 42 C.F.R. § 483.25(h)(2) of the regulations governing this case. This section of the regulations provides that a facility must ensure that each resident receives adequate supervision and assistance devices to prevent accidents. CMS asserts that based on record review and staff interview, Petitioner failed to ensure safe transfer technique for R1 by failing to utilize a mechanical lift when indicated and by transferring with one person when two persons were required.

Above, I found that Petitioner failed to utilize a mechanical lift when indicated by R1's care plan and also transferred R1 by mechanical lift with one person when two people were required by facility policy. I also found that doing so placed R1 in immediate jeopardy of the likelihood of serious harm. Petitioner's supervision of these employees to assure that they followed Petitioner's care plan and facility policy fell far short of what can reasonably be considered adequate supervision under the circumstances. See Woodstock Care Center, DAB No. 1726 (2000). Based on this, I find that Petitioner failed to adequately supervise its employees and R1's care or provide assistance devices to prevent accidents.

2. CMS's determination that Petitioner's noncompliance with Tag F224 constituted immediate jeopardy is not clearly erroneous.

As discussed above, I feel it appropriate to recognize that CMS's declaration of immediate jeopardy is clearly supported in this case. The regulations define "immediate jeopardy" to mean "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. Immediate jeopardy can exist regardless of the scope and severity of a deficiency, so long as a deficiency involves a "potential for more than minimal harm." 42 C.F.R. § 488.301; Lake City Extended Care Center, DAB No. 1658, at 17 (1998). Here, immediate jeopardy existed when Petitioner's staff failed to transfer R1 in accordance with her care plan and facility policy and when it failed to accurately assess her based on her change in condition beginning in the evening of March 19, 1999. The focus of immediate jeopardy is not on the outcome of the events (i.e., that R1 had bruising or broken bones) but on the likelihood of the harm the resident faced. Southridge Nursing and Rehabilitation Center, DAB No. 1778, at 11 (2001).

3. The remedies imposed against Petitioner are reasonable.

If a facility is found to be out of substantial compliance with participation requirements at an immediate jeopardy level, CMS has the authority to impose one or more of the enforcement remedies listed in 42 C.F.R. § 488.406, including directed in-service training and a CMP (either per instance or per day). 42 C.F.R. § 488.408. Here, CMS has imposed the following remedies: 1) a $3,050 per day CMP for one day of immediate jeopardy on March 20, 1999, and a $200 per day CMP for the period beginning March 21, 1999 and continuing through May 11, 1999, for a total CMP of $13,450 (which CMS asserts it imposed following its consideration of Petitioner's facility history, its financial condition, and the factors enumerated in 42 C.F.R. § 488.404); 2) directed in-service training, effective April 21, 1999; and 3) a prohibition on Petitioner's provision of a NATCEP program. CMS Ex. 1.

In this case, I have found ample evidence in support of the alleged deficiencies and concluded that CMS was out of compliance with participation requirements and, with regard to Tag F224, that it was out of compliance at a level of immediate jeopardy on March 20, 1999. CMS was thus authorized to impose directed in-service training and a CMP. Having found Petitioner to be in noncompliance, I have no authority to review CMS's imposition of directed in-service training. (15) Moreover, as I found that Petitioner was out of compliance at a level of immediate jeopardy on March 20, 1999, CMS was authorized to impose a CMP of from $3,050 to $10,000 for that day of noncompliance. Although I generally have the authority to review the amount of a CMP, where, as here, CMS imposes a penalty that is at the minimum, I must sustain that determination. Further, for the period of noncompliance which ended on May 11, 1999, CMS has imposed a penalty of $200 a day, which is at the lower end of the range ($50 to $3,000) for CMPs imposed where immediate jeopardy is absent, but which either cause actual harm, or cause no actual harm but have the potential for causing more than minimal harm. 42 C.F.R. § 488.438. When I assess the reasonableness of the $200 per day CMP against the factors set forth in 42 C.F.R. § 488.438(f), I find that Petitioner has not provided me with evidence regarding its financial condition which would impact its ability to pay the CMP. Moreover, given the seriousness of the deficiencies found and the likelihood of harm to R1 (and to other residents similarly situated) where Petitioner's staff was able to ignore the resident's care plan and facility policy in its transfers and assessments, I find Petitioner to be culpable. Thus, I find the CMP imposed to be reasonable and I uphold it.

Finally, as CMS imposed a CMP of more than $5,000, and I have sustained that CMP, I uphold CMS's prohibition of Petitioner's NATCEP program.

V. Conclusion

For all the reasons discussed above, I uphold CMS's determination that, on March 20, 1999, Petitioner was out of substantial compliance with program participation requirements at a level of immediate jeopardy and that, from March 21, 1999 through May 11, 1999, Petitioner remained out of substantial compliance with program participation requirements, although not at the immediate jeopardy level. Further, I affirm CMS's determination to impose a CMP of $13,450, to direct in-service training, and to prohibit Petitioner from conducting a NATCEP program for two years.

JUDGE
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Marion T. Silva

Administrative Law Judge

FOOTNOTES
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1. When this case was docketed, CMS was named the Health Care Financing Administration or HCFA. All references in the record to the Health Care Financing Administration or HCFA are changed to CMS in this decision.

2. CMS contracts with state agencies to conduct surveys of nursing facilities' compliance with Medicare participation requirements. Sections 1864 and 1819 of the Social Security Act; 42 C.F.R. § 488.20.

3. CMS based its decision to impose the NATCEP prohibition on its imposition of a CMP totaling $5,000 or more. The Act, at sections 1819(f)(2)(B) and 1919(f)(2)(B), prohibits approval of NATCEP when, among other things, a facility has been the subject of an extended or partial extended survey as a result of a finding of substandard care or has been assessed a total CMP of not less than $5,000. Although in this case CMS found a deficiency to constitute substandard quality of care, it did not base the imposition of the NATCEP prohibition on that finding of substandard care. CMS's letter notifying Petitioner of the imposition of remedies as reflected in CMS Exhibit 1.

4. CMS has referred to its motion for summary judgment as a "motion for summary affirmance" of its decision to impose remedies on Petitioner.

5. Petitioner did not mark or paginate its summary judgment exhibits. I directed Petitioner to submit a copy of its summary judgment exhibits marked and paginated. Petitioner complied and I have substituted the marked and paginated exhibits as the record copy of the exhibits.

6. Although I did not directly deny Petitioner's motions to strike at the time of my July 1, 2003 Ruling, I do so now. I note that CMS initially requested that the case be heard on a motion for summary judgment, and I note further that I did not preclude CMS from filing such a motion and that the regulations do not preclude the filing of such a motion. Further, I am not striking Ms. Augspurger's declaration. Petitioner has not stated any basis for my striking her declaration. Parties are permitted to submit sworn declarations in support of summary judgment and Petitioner has had ample time to submit a rebuttal to Ms. Augspurger's declaration. Moreover, Ms. Augspurger's opinions are within her expertise as a registered nurse and a surveyor, and I have not considered her declaration to refute the testimony of physicians with regard to the facts of the case.

7. Petitioner also submitted a separate motion asking me to dismiss the case because CMS had cited evidence of disciplinary actions taken by Petitioner against its employees to support CMS's motion for summary judgment. Petitioner argued that such subsequent remedial measures cannot be introduced as evidence of its culpability. I am denying Petitioner's motion and am not sanctioning CMS based on CMS's citation of this evidence. I note that the Departmental Appeals Board, in the case of Fairfax Nursing Home, Inc., DAB No. 1794, at 8 - 9 (2001), approved the admission as evidence of corrective actions taken by facilities. Further, I note that Petitioner itself, in its proposed exhibits (P. Exs. 7 and 16, at 4), reflects the disciplinary action it took. Finally, I would uphold the remedies imposed against Petitioner in the absence of any reference to Petitioner's disciplinary actions towards its employees, and I do not rely on these disciplinary actions in making my decision in this case.

8. Petitioner asserts that for a facility to be found out of substantial compliance with participation requirements the regulations require evidence that a facility failed to meet a certification requirement and that the failure caused a negative outcome. P. Br. at 10, 15. In its brief at page 15, Petitioner cites 42 C.F.R. § 488.402 as authority for the contention that the failure must cause a negative outcome. This section, however, covers general provisions of the regulations and does not state that a negative outcome is required. In fact, a facility is not in substantial compliance with participation requirements if it has any deficiency that poses a risk of causing more than the potential for minimal harm to resident health or safety, regardless of whether a negative outcome occurred. 42 C.F.R. § 488.301.

9. Thrombocytopenia is a condition of the blood in which not enough platelets are produced. The condition can cause bruising and bleeding. CMS Ex. 31, at 4.

10. I need not address each deficiency finding or example within each deficiency finding cited by CMS to uphold CMS's decision in this case, as it is unnecessary for me to do so to support my finding that this condition is out of compliance. Beechwood Sanitarium, DAB No. 1824, at 19 - 22 (2002); Batavia Nursing and Convalescent Inn, DAB No. 1911, at 22.

11. Petitioner has asserted that, following State administrative hearings in the cases of Petitioner's employees, CNAs Mary Byrd and Vicki Harmon, the State dismissed findings of neglect against them based on the transfers at issue here. P. S.J. Exs. 8, 9; P. Exs. 5, 6, 10, 11; CMS Exs. 20, at 2; 29, 30. I find the decisions of State administrative law judges in a proceeding to determine whether an individual was guilty of neglect, and where the burden of proof is with the State agency, not with Petitioner, to be substantially different from the issues before me. I find further that these State administrative proceedings are irrelevant to my determinations in this case, which is a de novo proceeding based on my examination of the record and federal law. Moreover, it is equally irrelevant to me that the State reduced the alleged violation under State law to a Type "B" violation.

12. I have found this deficiency to be so serious that I find the condition to be out of compliance whether or not R1's injury was caused by the improper transfers, due to the likelihood of serious harm to R1 by the improper transfers alone. However, I note Petitioner's implication that since R1's physicians found that R1's injury could not be due to a manual transfer, Petitioner was not out of substantial compliance with the condition at a level of immediate jeopardy. P. Br. at 5, 16. Petitioner refers to the CMS 2567 where a physician opines to the State surveyor that "quite some force" would be needed to cause R1's injuries and to the State administrative law judges' decisions in the cases of Mary Byrd and Vicki Harmon where they did not find the CNAs to be negligent. P. S.J. Ex. 3, at 13 (which is also CMS Ex. 4, at 13); P. S.J. Ex. 9, at 14; P. S.J. Ex. 8, at 13 - 15. While I do not believe that the exhibits cited necessarily support a conclusion that the manual transfers did not cause R1's injuries, even if I were to accept that the transfers did not do so, I would not find such evidence probative of Petitioner's compliance with participation requirements. It is undisputed that R1 sustained serious injuries in Petitioner's facility without explanation as to how she was injured. Although the injuries do not prove a deficiency exists, the presence of the injuries does not otherwise lead to a conclusion that no deficiency existed.

13. The nurse's notes reflect that on November 3, 1998, at 10:00 P.M., bruising was noted on R1's outer right foot and up her right arm. CMS Ex. 14, at 10. However, the bruising was not accompanied by pain or swelling, nor did it appear over a larger area.

14. The regulation also sets forth time frames for these assessments. The time frames, however, do not mean that a facility has no obligation to assess a resident upon a change in condition earlier than the time frames set forth in the regulation. See 62 Fed. Reg. 67174, 67192-67193 (Dec. 23, 1997); Kelsey Memorial Hospital, DAB CR583 (1999).

15. The directed inservice training was to "include accurate and complete assessments of residents . . . after a significant change or injury occurs, notification of physician, responsibilities of all staff to report injuries or significant observations to appropriate personnel in a timely manner, and supervision and monitoring of staff to ensure residents are transferred appropriately." CMS Ex. 3, at 2. Had I the authority, I would find this to be an entirely appropriate remedy in this instance.

CASE | DECISION | JUDGE | FOOTNOTES