Oak Lawn Pavilion, Inc., DAB CR474 (1997)

Department of Health and Human Services

DEPARTMENTAL APPEALS BOARD

Civil Remedies Division

In the Case of: Oak Lawn Pavilion, Inc. Petitioner,
- v. -
Health Care Financing Administration.

Date: May 21, 1997

Docket No. C-95-155
Decision No. CR474

DECISION

I. Procedural Background and Issue

In this case, Oak Lawn Pavilion (Petitioner) challenges the
determination by the Health Care Financing Administration (HCFA)
which terminated Petitioner's participation in the Medicare
program as a skilled nursing facility (SNF) effective May 31,
1995. HCFA notified Petitioner by letter dated May 3, 1995 that
the termination action was based on the findings from two
surveys: one which was completed on February 10, 1995 and one
which was completed on April 3, 1995. As stated in HCFA's May 3,
1995 notice letter, Petitioner was found out of compliance with
five Level A requirements specified by the regulations pursuant
to the February 10, 1995 survey conducted by HCFA's agent in
Illinois, the Illinois Department of Public Health (IDPH). Based
on a resurvey completed by IDPH on April 3, 1995, Petitioner was
found to have remained out of compliance with only one of the
earlier cited Level A requirements: Quality of Care, as codified
at 42 C.F.R. § 483.25. 1/ HCFA's May 3, 1995 Notice Letter.

Petitioner timely requested a hearing to challenge HCFA's
determination. Petitioner's hearing request was based on its
contention that the survey team did not follow the appropriate
protocol and had relied upon errors of fact in determining the
scope, severity, and outcome of alleged problems.

The issue in the case was established as follows pursuant to the
prehearing conference held on May 2, 1996:

Issue: The issue in this case is whether
Petitioner was out of compliance with the Level A
requirement specified at 42 C.F.R. § 483.25 -- Quality
of Care, as of the survey date of April 3, 1995, as
alleged in HCFA's May 3, 1995 letter.

Order and Notice of Hearing (May 14, 1996). Within the 10 days
specified by regulation, neither party objected to the foregoing
statement of issue. See, 42 C.F.R. § 498.52(b)(2).

On or about June 10, 1996, HCFA submitted a document titled,
"Statement of Facts, Overview of the Law and Issues of Fact and
Law" (HCFA Prehearing Brief), while filing its proposed exhibits
and lists of witnesses. HCFA noted that, because there were
overlaps between regulatory requirements (e.g., dietary
deficiencies which impact on quality of care), HCFA anticipated
presenting findings from both surveys which relate to the Quality
of Care deficiency, regardless of whether the surveyors had
specifically recorded the findings under the Quality of Care
requirement. HCFA Prehearing Brief, 11. HCFA stated also that
it intended to present evidence from the earlier, February 10,
1995, survey as background and as a part of the procedural
history of its termination decision, as consistent with an
evidentiary ruling I had issued in a similar case. Id. at 12.
2/ Since HCFA's Prehearing Brief did not seek relief on any
preliminary matter, I did not require Oak Lawn to file a written
response. Nor did I issue any ruling or modify my prehearing
order dated May 14, 1996 after having read HCFA's brief.

I conducted an in-person hearing in this case during the week of
July 15, 1996 in order to resolve the issue as stated in my May
14, 1996 prehearing order: whether Petitioner was out of
compliance with the Level A requirement specified at 42 C.F.R. §
483.25 -- Quality of Care, as of the survey date of April 3,
1995, as alleged in HCFA's May 3, 1995 letter. Petitioner, in
its opening statement at the hearing, adopted and re-emphasized
the foregoing statement of the issue from my prehearing order.
Transcript (Tr.) 445; see, Tr. 24. 3/ During the hearing, I
allowed HCFA to introduce certain evidence concerning the earlier
survey of February, 1995, to the extent such evidence was
relevant to the Quality of Care findings which resulted from the
latter April, 1995 resurvey.

After the parties submitted their post-hearing briefs in
accordance with 42 C.F.R. § 498.63, the DAB issued its decision
in Hillman Rehabilitation Center v. HCFA, DAB No. 1611 (1997),
which specified how the burden of moving forward and the burden
of persuasion should be allocated in provider sanction cases.
Especially because Petitioner had cited one of my rulings in
another case and that ruling is not fully consistent with the
DAB's legal conclusions in Hillman, 4/ I provided the parties
with the opportunity to submit written comments on the relevancy
of Hillman to the facts in this case and on whether additional
proceedings are necessary. Petitioner initially responded by
letter dated March 28, 1997 and urged the issuance of a decision
in this case without regard for the legal interpretations
contained in Hillman. 5/ Petitioner later submitted an
additional letter dated April 17, 1997, which quoted a portion of
my prehearing order governing the standard of proof and the
parties' respective burden of production during hearing. 6/
Petitioner's position was that, if I conclude that the quoted
portion of my prehearing order was wrong under Hillman, then "the
hearing must be held again." P. Letter date April 17, 1997 at 2.

I have considered Petitioner's comments and find that no
additional proceedings are necessary. In neither of its letters
did Petitioner allege that my prehearing order in this case was
inconsistent with Hillman. In fact, the portion of my prehearing
order quoted by Petitioner is fully in accord with the DAB's
conclusion in Hillman that HCFA has the burden of coming forward
with evidence sufficient to establish a prima facie case, and the
provider has the burden of coming forward with evidence
sufficient to establish any affirmative argument or defense.
Hillman at 8. My adoption of the preponderance of the evidence
standard in the prehearing order was not affected by the Hillman
decision. See, Hillman at 10. With respect to Hillman's holding
that the ultimate burden of persuasion is on program providers
instead of HCFA (i.e., HCFA would prevail if the evidence were in
equipoise)(Hillman at 10), Petitioner has not alleged that the
evidence in this case is in equipoise. The evidence in this case
is not in fact in equipoise. Even though Petitioner's reply
brief cited a ruling I had issued in another case on the burden
of persuasion issue (and my ruling on said issue is no longer
valid under Hillman), Petitioner has not shown that it has been
prejudiced by my ruling in the other case. Petitioner's
responses to my invitation to comment on Hillman and to suggest
appropriate proceedings do not even allege that it would have
presented more evidence to support its position if it had known
that, under Hillman it would lose if the evidence were in
equipoise. 7/ Petitioner has not indicated that it would have
done anything differently had the DAB settled the burden of proof
issue in Hillman prior to the hearing held in this case.

Therefore, for the reasons that follow, I uphold HCFA's
determination that Petitioner's participation agreement should be
terminated due to its noncompliance with the Level A Quality of
Care requirement at the time of the April, 1995 resurvey.

II. Findings of Fact and Conclusions of Law

I discuss each of my findings of fact and conclusions of law in
detail in the Analysis section at Part III of this decision.

1. HCFA determined that as of the April 1995 resurvey,
Petitioner remained out of compliance with the Level A
requirement of Quality of Care.

2. The Level A requirement for Quality of Care contained in 42
C.F.R. § 483.25 requires that each resident must receive, and the
facility must provide, the necessary care and services to attain
or maintain the highest practicable physical, mental and
psychological well-being, in accordance with the comprehensive
assessment and the plan of care.

3. HCFA's determination of noncompliance with the Level A
Quality of Care requirement is based on the resurvey finding that
Petitioner was out of compliance with the Level B Quality of Care
requirements pertaining to pressure sores at 42 C.F.R §
483.25(c); urinary incontinence at 42 C.F.R. § 483.25(d); range
of motion at 42 C.F.R. § 483.25(e); accidents at 42 C.F.R. §
483.25(h); and activities of daily living at 42 C.F.R. §
483.25(a).

4. The Quality of Care requirement for "pressure sores" at 42
C.F.R. § 483.25(c) requires that based on the resident's
comprehensive assessment, the facility must ensure that a
resident who enters the facility without pressure sores does not
develop pressure sores unless the individual's clinical condition
demonstrates that they were unavoidable; and a resident having
pressure sores receives necessary treatment and services to
promote healing, prevent infection and prevent new sores from
developing.

5. HCFA established numerous instances, which Petitioner failed
to rebut, in which Petitioner failed to meet its obligations
under the Level B requirement for pressure sores and failed to
follow its written plan of correction to train staff in the
importance of quickly assessing skin breakdowns and to take all
preventative measures to prevent and heal pressure sores,
including repositioning and keeping residents clean and dry.

6. HCFA has proven that Petitioner was out of compliance with
the "pressure sore" requirements of 42 C.F.R. § 483.25(c) at the
time of the resurvey.

7. The Quality of Care requirement for "urinary incontinence" at
42 C.F.R. § 483.25(d)(2) requires that based on the resident's
comprehensive assessment, the facility must ensure that a
resident who is incontinent of bladder receives appropriate
treatment and services to prevent urinary tract infection and to
restore as much normal bladder function as possible.

8. HCFA established several instances, which Petitioner failed
to rebut, in which Petitioner failed to meet it obligations under
the Level B requirement for "urinary incontinence" as well as
failed to follow its plan of correction to assess each resident
for their potential to benefit from a restorative bladder and
bowel program and to have such a program in place by March 15,
1995.

9. HCFA has proven that Petitioner was out of compliance with
the "urinary incontinence" requirements of 42 C.F.R. §
483.25(d)(2) at the time of the resurvey.

10. The Quality of Care requirement for "range of motion" at 42
C.F.R. 483.25(e)(2) requires that based on the resident's
comprehensive assessment, the facility must ensure that a
resident with limited range of motion receives appropriate
treatment and services to increase range of motion and/or prevent
further decrease in range of motion.

11. HCFA established several instances, which Petitioner failed
to rebut, in which Petitioner failed to meet its obligations
under the Level B requirement for "range of motion" as well as
failed to follow its plan of correction to train its CNAs on when
to and how to use positioning devices; to have its maintenance
department evaluate all wheelchairs to make sure that all parts

are in place and are working; and to have its Director of Nursing
(DON) and the rehabilitative coordinator monitor compliance in
this area.

12. HCFA has proven that Petitioner was out of compliance with
the "range of motion" requirements of 42 C.F.R. § 483.25(e)(2) at
the time of the resurvey.

13. The Quality of Care requirement for "accidents" at 42 C.F.R.
§ 483.25(h)(2) requires that the facility must ensure that each
resident receives adequate supervision and assistance devices to
prevent accidents.

14. HCFA established instances, which Petitioner failed to
rebut, in which Petitioner failed to meet its obligations under
the Level B requirement for "accidents" by its failure to
properly supervise residents and leaving the residents open to
significant health and safety risks including the potential for
accidents.

15. HCFA has proven that Petitioner was out of compliance with
the requirements for preventing accidents under 42 C.F.R. §
483.25(h)(2) at the time of the resurvey.

16. The Quality of Care requirement for "activities for daily
living" at 42 C.F.R. § 483.25(a)(3)(A) requires that based on the
resident's comprehensive assessment, the facility must ensure
that a resident who is unable to carry out activities of daily
living receives the necessary services to maintain good
nutrition, grooming and personal and oral hygiene.

17. HCFA established numerous instances, which Petitioner failed
to rebut, in which Petitioner failed to meet its obligations
under the Level B requirement for "activities of daily living" as
well as the provisions of its plan of care because residents
identified as needing such assistance did not receive needed
assistance with grooming and personal hygiene.

18. HCFA has proven that Petitioner was out of compliance with
the "activities of daily living" requirements of 42 C.F.R. §
483.25(a)(3)(A) at the time of the resurvey.

19. The regulations at 42 C.F.R. §488.26(a) specify that a
decision as to whether there is compliance with Level A
requirements will depend upon the manner and degree to which a
SNF satisfies the various Level B requirements, and pursuant to
42 C.F.R. § 288.24 (a), noncompliance with Level A requirements
will be found for SNF's "where the deficiencies are of such
character as to substantially limit the provider's . . . capacity
to render adequate care or which adversely affect the health and
safety of patients. . . ."

20. The totality of the evidence surrounding the Level B
deficiencies preponderate in favor of HCFA's conclusion that
there exists systemic problems which arise to noncompliance with
Level A requirement for Quality of Care.

III. Analysis

A. The Requirements for Participation in the Medicare Program as
a SNF

In order to participate in the Medicare program and thereby
receive federal payments for services rendered to Medicare
beneficiaries, a provider of services must be a provider within
the definition of the statutes and enter into an agreement with
the Secretary of Health and Human Services. Sections 1861(u) and
1866 of the Social Security Act (Act); 42 U.S.C. §§ 1395x(u),
1395cc. Sections 1861(j) and 1819(a) of the Act define a
facility as a SNF eligible to participate in the Medicare
program. 42 U.S.C. §§ 1395x(j), 1395i-3(a). Section 1819 of the
Act contains those requirements such as the provision of
services, residents' rights, and administration; it states also
that a SNF "must meet such other requirements relating to the
health, safety, and well-being of residents ... as the Secretary
may find necessary." 42 U.S.C. § 1395i-3(d)(4)(B). Those health
and safety requirements prescribed by the Secretary are codified
in 42 C.F.R. Part 483, subpart B.

During the time relevant to this action, all SNFs wishing to
continue participating in the Medicare program must satisfy the
major, broad categories of requirements denoted as Level A
requirements in 42 C.F.R. Part 483, subpart B. Each Level A
requirement is subdivided into related Level B requirements.
See, 42 C.F.R. § 483.10 et seq. The decision as to whether there
is compliance with Level A requirements will depend upon the
manner and degree to which a SNF satisfies the various Level B
requirements. 42 C.F.R. § 488.26(a). Noncompliance with level A
requirements will be found for SNFs and NFs "where the
deficiencies are of such character as to substantially limit the
provider's ... capacity to render adequate care or which
adversely affect the health and safety of patients...." 42
C.F.R. § 488.24(a). On-site surveys conducted by HCFA or on
HCFA's behalf are used to determine whether a SNF continues to
meet Medicare participation requirements. 42 U.S.C. § 1395aa(a);
42 C.F.R. §§ 488.10(a)(1), 488.20.

B. The Determinations Made by HCFA

The evidence introduced by HCFA shows, by way of background, that
a team from the IDPH, acting as HCFA's agents, completed a survey
of Petitioner on February 10, 1995 as part of the annual
licensure and certification process it must undergo as a SNF
participating in the Medicare program. HCFA Ex. 2. Tr. 18.
Based on the survey completed on February 10, 1995, the IDPH team
concluded that Petitioner had five Level A deficiencies. HCFA
Ex. 2, 3. In response to the surveyors' findings, Petitioner
submitted a Plan of Correction which represented that a it would
correct its deficiencies by March 15, 1995. See, HCFA Ex. 2.
Thereafter, the IDPH conducted a resurvey which began on March
27, 1995 and ended on April 3, 1995. Tr. 89. The resurvey
resulted in the determination made by HCFA that Petitioner
remained out of compliance with one of the earlier noted Level A
requirements: Quality of Care. HCFA's May 3, 1995 Notice Letter.

The Quality of Care regulation requires as follows:

Each resident must receive and the facility must
provide the necessary care and services to attain or
maintain the highest practicable physical, mental, and
psychological well-being, in accordance with the
comprehensive assessment and the plan of care.

42 C.F.R. § 483.25. In this case, HCFA's determination of
noncompliance with the Level A Quality of Care requirement is
based, in turn, on the resurvey findings that Petitioner was out
of compliance with the Level B Quality of Care requirements
pertaining to:

"Pressure sores" (42 C.F.R. § 483.25(c));

"Urinary Incontinence" (42 C.F.R. § 483.25(d));

"Range of motion" (42 C.F.R. § 483.25(e));

"Accidents" (42 C.F.R. § 483.25(h)).

"Activities of daily living" (42 C.F.R. §
483.25(a));

HCFA Ex. 4.

For each Level B determination in dispute, I will discuss below
the evidence and arguments I consider significant.

Many of HCFA's level B determinations resulted from and related
to the surveyors' having found multiple instances in which
Petitioner's staff had failed or refused to render appropriate
care to its residents with urinary incontinency problems. When
asked what facts stood out in her mind concerning the survey
results, the IDPH official responsible for reviewing the findings
and submitting IDPH's recommendations to HCFA testified that it
was the incontinency problems at the facility, along with the
facility's failure to change and reposition its residents --
especially those who had pressure sores or were at high risk for
pressure sores. Tr. 380. Therefore, I will begin with the
evidence pertaining to "Pressure sores."

1. The Level B "Pressure sore" Citation

For the "Pressure sores" citation, the regulation relied upon by
HCFA states in relevant parts:

Each resident must receive and the facility must
provide the necessary care and services to attain or
maintain the highest practicable physical, mental, and
psychological well-being in accordance with the
comprehensive assessment and the plan of care.

(c) Pressure sores. Based on the comprehensive
assessment of a resident, the facility must ensure that
--

(1) A resident who enters the facility without
pressure sores does not develop pressure sores unless
the individual's clinical condition demonstrates that
they were unavoidable; and

(2) A resident having pressure sores receives
necessary treatment and services to promote healing,
prevent infection and prevent new sores from
developing.

42 C.F.R. § 483.25(c).

As explained by the witnesses during hearing, pressure sores or
decubiti are skin wounds which occur when circulation has been
inhibited. Tr. 29. Pressure sores generally occur in areas
where bony prominences press against the skin and constrict the
flow of blood. Id. Since acids in urine act as irritants to the
skin, residents who are incontinent are at high risk for
developing decubiti. Tr. 107. Also at high risk for developing
decubiti are residents who are unable to reposition themselves
without assistance or who are dependent on staff for their
nutritional intake. Tr. 43.

There are four stages of decubitus or pressure sores, with Stage
IV being the most serious and Stage I being the least serious.
Tr. 183. At Stage I, there is redness or discoloration of the
skin, evidencing the beginning of cell damage; at Stage II, a
break in the skin occurs; at Stage III, all three layers of skin
are affected, and there is damage to the underlying tissue or
muscle; at Stage IV, there is a breakdown affecting the deep
muscles or bones. Tr. 29 - 30, 107, 183 - 184. Necrotic or dead
tissues are generally present in Stages III and IV, indicating
that the tissues had died from insufficient nutrients and oxygen

caused by pressure on the area. Tr. 184. Decubiti are not only
painful, but they can cause infection, blood poisoning, or death.
Tr. 37, 109 - 10, 185.

As discussed in greater detail below, the protocol for preventing
and treating pressure sores on incontinent residents is to check
them as often as possible in order to keep them as clean and dry
as possible. Tr. 108, 208. At the very least, all incontinent
residents should be checked at least once every two hours. Tr.
108. However, residents may need to be checked and changed more
frequently than once every two hours if, for example, they have
decubiti or are at high risk for developing them. Tr. 108 - 109.
In addition, since decubiti develop due to decreased oxygen and
nutrient flow to those areas with bony prominences that have been
subjected to prolonged pressures (Tr. 29, 212), an aggressive
prevention program must include the frequent repositioning of the
residents in order to restore proper circulation in the
susceptible areas. Tr. 42 - 43, 213. Even though repositioning
must be done at least every two hours, those residents who have
decubiti or who are at risk for developing them should be
repositioned at even more frequent intervals. Id.

Because Petitioner was cited for numerous deficiencies in its
assessment, prevention, and treatment of decubiti
during the initial survey of February, 1996, Petitioner had
submitted a written plan of correction (POC) in which Petitioner
committed to effectuate certain practices by March 15, 1995
notwithstanding its denial of these deficiencies. HCFA Ex. 2 at
96; HCFA Ex. 14 at 10. In its POC, Petitioner promised to
provide training to its staff on the importance of quickly
assessing skin breakdowns; it promised to take all preventative
measures available to prevent and heal decubiti, including
repositioning its residents and keeping them dry and clean; and
it promised to provide one-on-one hands-on training to its
certified nurse aides (CNAs) and professional staff on
positioning residents as well as on keeping residents dry and
clean. HCFA Ex. 2 at 88; HCFA Ex. 14 at 10. Petitioner made its
director of nursing (DON) responsible for monitoring the
corrections asserted in the POC. HCFA Ex. 2 at 96; HCFA Ex. 14
at 10.

Notwithstanding Petitioner's commitments to institute corrections
such as keeping its residents clean and dry pursuant to its POC
by March 15, 1995, the surveyors immediately smelled a strong
odor of stale urine on March 27, 1995, when they entered
Petitioner's premises to begin the resurvey. Tr. 95, 96, 172.
The strong smell of stale urine was present on both floors of the
facility even though windows had been opened and the rooms were
cold from the outside air. Tr. 171 - 174; HCFA Ex. 4 at 25 - 26.
One of the Nurse surveyors on the resurvey team specifically
testified that, based on his professional experience, urine odors
in nursing homes are usually caused by the staff's failure to
change incontinent residents timely and to dispose of the wet
linen in a timely manner. Tr. 172 - 173. In Petitioner's case,
the strong smell of urine was not attributable to poor
ventilation since the surveyors noted that windows had been
opened. Tr. 173.

The surveyors testified that the strong urine odor was
subsequently traced to residents who were sitting or lying in
their own urine for prolonged periods of time, some of whom had
decubiti or were at high risk for developing decubiti. Some of
these residents were changed only after the surveyors intervened.
In the surveyors' professional opinions, sitting or lying in
urine has significant adverse psychological and physiological
implications for the residents. E.g., Tr. 182.

In one case, as three surveyors were walking through the hallway
of the second floor where Petitioner housed those residents who
were to receive heavy or skilled care (Tr. 512 - 513), the three
surveyors smelled a "strong urine odor" from a resident who was
seated in a wheelchair or geri-chair placed in that hallway. Tr.
174 - 177, 179; HCFA Ex. 4 at 25 - 26. Mr. Gaffud, one of the
surveyors, then kept the resident (R 15) under observation for
approximately one hour. Tr. 177. During that one hour, Mr.
Gaffud saw that nearly all of Petitioner's staff had walked past
R 15 sitting in the hallway, but no staff member had stopped to
investigate or assist R 15. Tr. 179. After the approximately
one hour of observation, Mr. Gaffud requested assistance for R 15
from Petitioner's DON. Staff then put R 15 to bed, and they
confirmed that R 15 had been wet. Tr. 179. 8/

The incident is significant for several reasons. First, it can
be concluded from the urine smell and from the information that R
15 was wearing an adult diaper (Tr. 177) and that R 15 had been
allowed to sit in a considerable amount of urine for an extended
period of time. Tr. 181. An adult diaper or pad is likely to
suppress urine odor for so long as the quantity of urine does not
exceed its capacity to absorb it. Tr. 181. Where the amount of
urine can no longer be absorbed by the diaper, the smell would
then becomes noticeable to people around the resident. Tr. 181.
Therefore, in Mr. Gaffud's opinion, staff members should have
suspected the source of the urine odor when they walked past R 15
in the hallway and checked her diaper or pad within 30 minutes at
the very latest. Tr. 178, 180. Another surveyor testified also
that allowing a resident to sit in urine for one hour does not
constitute timely incontinent care. Tr. 110. In addition,
Petitioner's DON acknowledged that, barring the existence of an
emergency elsewhere, it is not consistent with proper standard of
nursing care for a staff member to merely walk by a resident
emitting a strong odor of urine without an investigation of
whether the resident is wet. Tr. 530, 531, 534 - 535

The incident described above is especially significant because R
15 had a decubitus ulcer at the time of the survey and Petitioner
itself had assessed R 15 as being at high risk for developing
more decubiti. Tr. 531, 533 - 535. When R 15 was admitted as a
resident seven months prior to the resurvey, she had a large
Stage IV decubitus or pressure sore on her back; that decubitus
had not healed by the time of the resurvey. Tr. 185 - 187, HCFA
Ex. 4 at 15. Therefore, in addition to the fact that an episode
of incontinence is uncomfortable and has adverse psychosocial
effects for any resident (Tr. 182), not timely changing someone
with R 15's condition placed her at risk physically for
exacerbating her existing decubitus as well as for developing
additional decubiti.

The surveyors expressed concerns for the fact that R 15's Stage
IV pressure sore had not healed completely in seven months since
her admission. They thought that the length of the healing
period suggested improper treatment by Petitioner, even if R 15's
decubitus had been reduced to a Stage II - III as alleged by
Petitioner. Testimony from the surveyors established that,
depending on a resident's condition, a Stage IV pressure sore may
be cured completely in a week with surgery and in a month without
surgery. Tr. 109, 187 - 189. Under proper nursing standards,
pressure sores should be treated with aggressive care and proper
intervention. Tr. 109, 187 - 189. Aggressive treatment is given
under a team approach and extends to surgically covering the
affected area with a flap of healthy skin as the highest level of
treatment. Tr. 188. However, other aggressive treatments
include repositioning the resident more frequently than once
every hour and doing treatments more than is minimally required.
Tr. 188.

In a written response to the survey findings on R 15, Petitioner
had alleged that its staff makes rounds every two hours and that
the residents are changed and repositioned every two hours. HCFA
Ex. 4 at 15. However, this approach is not consistent with the
re-mediation efforts and principles appearing in the POC
Petitioner had submitted to address the same types of problems
found during the February survey. HCFA Ex. 2 at 88 and 96; HCFA
Ex. 14 at 10. Additionally, every nursing facility has the duty
to assess each resident to determine how often he/she should be
checked for incontinency and be changed. Tr. 108. The parties
are in agreement that under applicable nursing standards, every
incontinent resident should be checked and changed if necessary
at least once every two hours. Tr. 108; P. Br., 15. However, a
resident may also need to be checked and changed more frequently
than once every two hours, if the individual's circumstances
warrant it. Tr. 108 - 109. Petitioner's DON acknowledged that R
15 not only had a decubitus but was at high risk for developing
other decubiti, and high risk residents such as R 15 should be
checked more frequently than every two hours. Tr. 531, 533 -
535.

Petitioner's DON also initially testified that R 15 was a hospice
patient and that families of hospice patients do not want
Petitioner to provide any aggressive treatment. 9/ Tr. 510.
However, Petitioner's DON acknowledged during cross-examination
that R 15 was not a hospice patient during the time of the
resurvey, even though she did die sometime after the resurvey.
Tr. 510, 529, 535, 536. Petitioner's DON admitted also that,
even if R 15 had been a hospice patient, Petitioner had a duty to
at least keep her comfortable. Tr. 510, 535. There does not
appear to be any dispute to the fact that pressure sores can be
very painful and lead to infections or death. Tr. 110, 183 - 85.

With respect to R 15, HCFA submitted evidence also showing that
Petitioner had failed to either accurately assess or fully
disclose the seriousness of R 15's decubitus at the time of the
resurvey. When the surveyors entered the facility, Petitioner
had a duty to submit a list containing the identity of those
residents with decubitus and with up-to-date descriptions of
their conditions. Tr. 100 - 101, 182, 183, 200, 395. Mr. Gaffud
remembered that R 15 was described in such a list prepared by
Petitioner as having a Stage II - III decubitus. Tr. 183. This
information given by Petitioner is consistent only with its
treatment record from March 17, 1995, which predated the
beginning of the resurvey by 10 days. Petitioner's records for
March 17, 1995 showed that Petitioner considered R 15's decubitus
to be a Stage III-II sore, with a measurement of 8 cm by 5 cm and
having "meaty red" tissue surrounded by "bright red" tissue
exuding bloody drainage. HCFA Ex. 13 at 3; Tr. 388, 391 - 393.
However, a week later, on March 24, 1995 (still before the
resurvey), Petitioner's treatment records described R 15's
decubitus as having increased to Stage IV-II-III. HCFA Ex 13 at
4; Tr. 391. Then during the resurvey, Petitioner's records for
March 30, 1995 also described R 15's decubitus as a Stage IV-II-
III, with an increased size of 9 cm x 6 cm, and 1 cm in depth,
since the measurements of March 17th. HCFA Ex. 13 at 5; Tr. 392.
In addition, Petitioner's records for March 30, 1995 show that
there was necrotic tissues scattered throughout the ulcer. HCFA
Ex. 13 at 4; Tr. 393. Yet in addition to not having acknowledged
the worsening of R 15's decubitus when it prepared the list for
HCFA's use at the outset for the resurvey, Petitioner persisted
in ignoring the contents of its records in responding to the
surveyors' findings on R 15. Petitioner claimed that it had been
doing a good job of treating R 15 because her pressure sore had
improved from a Stage IV on admission in September of 1994 to an
alleged Stage II. Tr. 185; HCFA Ex. 4 at 15.

The above problems with Petitioner's descriptions of R 15's
decubitus is significant in light of the fact that during the
initial survey of February, 1995, Petitioner had been cited for
its failure or inability to identify pressure sores on its
residents. HCFA Ex. 2 at 88 - 95. During the February, 1995
survey, surveyors pointed out to Petitioner's staff the existence
and locations of numerous pressure sores on at least four
residents; those sores were not previously identified by
Petitioner's staff. Petitioner denied the existence of such
deficiencies and alleged that, in many cases, the decubiti
developed on the day that they were noted by the surveyors. Id.
Nevertheless, Petitioner had committed to train its staff on the
importance of quickly assessing skin breakdown and "to take all
preventative measures available to stop them, and heal them."
HCFA Ex. 2 at 88. As one witness pointed out, decubiti cannot be
treated if they are not identified. Tr. 37. By analogy, I can
conclude that, even if Petitioner had not intended to mislead the
HCFA surveyors concerning the true state of R 15's decubitus, it
would not be possible for Petitioner's staff to provide
appropriate treatment of a decubitus when staff fails or refuses
to recognize that the decubitus has worsened instead of improved.
I do not find that the merits of HCFA's evidence or conclusions
concerning R 15 is significantly rebutted by Petitioner's
observations that none of HCFA's witnesses at the hearing
testified to having personally reviewed R 15's charts, to having
personally observed R 15's decubitus, or to having personally
seen R 15 wet. P. Br., 14. Nor do I agree with Petitioner's
conclusion that HCFA failed to sustain its burden of proving that
R 15 was incontinent and was not receiving the necessary
treatment or services required by regulation even if incontinent.
P. Br., 16. It is standard survey practice to apportion
responsibility for resident record reviews among team members and
for these team members to discuss and rely on each other's
reviews throughout the survey. Tr. 161 - 162. The totality of
the evidence shows that R 15's charts were reviewed by one or
more surveyors during the survey process, that the existence of a
decubitus on R 15 at the time of survey was not in dispute, and
that the strong urine odor from R 15, in addition to the CNAs'
acknowledgement of this residents' wetness when putting her to
bed, sufficiently establishes that R 15 was sitting in urine. If
R 15 was continent at the time of the survey and what the
surveyors observed was an unusual occurrence, these are
affirmative defenses that Petitioner must support with a
preponderance of the evidence. Yet Petitioner did not endeavor
to do so.

During the resurvey which ended in early April, 1995, other
residents were also observed to have been left to sit or lie in
their own urine without Petitioner's staff having volunteered
their assistance. Like R 15, some of these other residents were
also at high risk for developing decubiti.

In the case of R 21, Petitioner had identified her as incontinent
and at high risk for developing decubiti. Tr. 208. Yet, R 21
was also left lying on a urine soaked pad for approximately one
and half hours until a surveyor intervened. According to Mr.
Gaffud's testimony, he began observing R 21 in her room at about
2:25 p.m., when she was already lying on a wet bed pad. Tr. 201.
Pads of the type used for incontinent residents are generally as
large as the bed itself, with a plastic underside to keep the bed
dry. Tr. 202 - 203. Mr. Gaffud did not know for how long her
pad had been wet or when she was last changed by staff. However,
since R 21 had little covering her, Mr. Gaffud was able to see
that her pad was already saturated and soaked to its ends at the
time he entered the room to begin his observations. Tr. 201.

Mr. Gaffud then followed the usual method adopted by surveyors
for ascertaining whether a resident's pad would be changed
timely: he wrote on the wet pad his initials and the date and
time he began his observations (approximately 2:25 pm), and he
checked for the marked pad. Tr. 201 - 202, 278. At 4:00 p.m.,
Mr. Gaffud found the same wet pad with his markings under R 21.
Tr. 208. According to Petitioner's Assistant DON, it is the
staff's usual practice to remove and dispose of wet pads when a
resident is changed. Tr. 480.

When Mr. Gaffud contacted a charge nurse and asked why R 21 had
not been changed, the charge nurse then spoke with a CNA. Tr.
209. Mr. Gaffud was given the response that the CNA had been
working from room to room and had not yet reached R 21's room at
the time of Mr. Gaffud's observation and inquiry. Tr. 209. Mr.
Gaffud noted that Petitioner's staff was following a practice
where the higher-level personnel (such as registered nurses (RNs)
and licensed practical nurses (LPNs)) would ask the next lower-
level employee to look for a CNA in charge of a particular
resident to check and change that resident. Tr. 211.
Petitioner's staff appeared to have followed this bumping
downward process even though a charge nurse had been nearby and
was available to change R 21 after she had laid in her urine for
at least one hour and a half, and even though R 21, who was
already at high risk for decubitus, needed to be changed more
frequently than a CNA's usual work pace allowed. Id.; Tr. 108 -
109.

In the absence of any contrary expert testimony, I accept Mr.
Gaffud's opinion that even RNs and LPNs have a duty to change wet
pads if they notice or are apprised of a problem relating to
residents at high risk for decubiti. Tr. 211. I do not accept
Petitioner's contention that, under the circumstances described
by the surveyor, Petitioner's allowing R 21 to lie in her own
urine for an hour and an half did not constitute a deviation from
the standard nursing practice of checking a resident every two
hours. See, P. Br., 17. Since Petitioner had already assessed R
21 as being at high risk for decubiti (Tr. 208), depending only
on the CNA to check on R 21 and change her when the CNA happened
to reach R 21's room (or even depending on the CNA to check on
residents such as R 21 only once every two hours) is not
appropriate care for R 21. See, Tr. 180, 108 - 109.

In the case of R 32, Mr. Gaffud testified that the wet padding
for this incontinent resident was not changed from 8:30 a.m.,
when Mr. Gaffud began his observations, until 10:30 a.m., when
Mr. Gaffud told the charge nurse for a second time that R 32
needed to be changed. Tr. 205. When Mr. Gaffud began his
observations at 8:30 a.m., this resident's pad was only a little
wet; as time went by, the pad became saturated. Id. Mr. Gaffud
continued his observations after having marked R 32's pads with
his signature in the presence of another surveyor. Tr. 206. At
approximately 9:30 a.m., a CNA was seen in the room repositioning
R 32. Tr. 205 - 207. However, Mr. Gaffud said the CNA did not
change the pads even though in repositioning R 32, the CNA should
have noticed the wetness--especially when the CNA removed the
resident's covers, held the resident while repositioning him,
rolling the resident from side to side during the repositioning
process. Tr. 205 - 207.

Having seen no effort by the CNA to change R 32, Mr. Gaffud then
notified the charge nurse on the floor at approximately 9:30 a.m.
that R 32 should be changed. Tr. 205. At approximately 10:30
a.m., Mr. Gaffud saw that R 32 was still lying on the same wet
pads which he had earlier marked for identification. Tr. 206.
Then Mr. Gaffud sought out the charge nurse for a second time and
asked why R 32 had not been changed. Tr. 206.

As with R 21, a nurse employed by Petitioner did not undertake to
change R 32 even though a surveyor had twice told the nurse that
R 32 needed to be changed. After R 32 had been left in his own
urine for the two hours between 8:30 to 10:30 a.m., the charge
nurse on R 32's floor said that she had told someone else to
change the resident. Tr. 206. The charge nurse expressed
surprise to the surveyor that R 32 had not been changed by
someone else. Tr. 206. When she disputed the surveyor's
representation that R 32 had been wet for those two hours, the
surveyor showed her the marked pads under the resident. Tr. 206.
As I noted earlier in discussing R 21's situation, any member of
Petitioner's nursing staff has an obligation to assist an
incontinent resident if the resident's need is known and the
resident's usual caregiver is not available. Tr. 211 - 12.

Petitioner contends that Mr. Gaffud could not have actually seen
the care given to R 32 by the CNA at about 9:30 a.m., since Mr.
Gaffud was outside the resident's door and there was a privacy
curtain in the resident's room. P. Br., 17 - 18. Petitioner
notes also that the CNA involved in the incident testified that
he had changed R 32 on the morning in question. P. Br., 18.
Moreover, Petitioner suggested that Mr. Gaffud's recollection may
have been flawed since the surveyors' written report gave the
time of the incident as 8:35 a.m. and three of Petitioner's
employees, the CNA (Michael Sroka), the charge nurse (Maria
Baker), and the DON (Maria Baker), all recalled that the incident
occurred at 8:30 a.m. P. Br., 18. Petitioner suggests also that
since Mr. Sroka testified that sometimes two pads (one
overlapping the other) are placed under a resident, Mr. Gaffud
may have marked the dry pad; therefore, the marked pad remained
even though the wet pad had been removed by Mr. Sroka. P. Br.,
18.

I find HCFA's evidence to be more credible, and HCFA's
conclusions to be more reasonable, than the testimony and
theories offered by Petitioner. Mr. Gaffud and his colleagues
have no motive to lie about their observations concerning R 32,
especially when they had repeatedly requested assistance for R 32
and Mr. Gaffud had especially marked the wet pad in order to
verify his observations. By contrast, Mr. Sroka had an obvious
motive to lie concerning the events of that day. As the DON
testified, a CNA like Mr. Sroka would be disciplined or fired if
he failed to change a resident after having been told to do so.
Tr. 542. No one saw Mr. Sroka change R 32, even though
Petitioner chose to believe that Mr. Sroka had done so. Tr. 459,
541. The testimony that Mr. Sroka was in R 32's room at 8:30
s.m. instead of 9:30 a.m. does not materially affect Mr. Gaffud's
testimony that he told the charge nurse, Ms. Chisholm, at 9:30
a.m. and again at 10:30 a.m. that R 32 was wet. Moreover, even
before Petitioner's witnesses gave their sequence of events, Mr.
Gaffud had said the reference to 8:30 a.m. in the written report
was a typographical error. Tr. 280 - 281.

With respect to Petitioner's theory that Mr. Sroka had changed R
32's wet pad but not the dry one containing Mr. Gaffud's
markings, HCFA correctly pointed out in its reply brief that Mr.
Gaffud testified to having marked "pads" -- not just one pad.
Therefore, Mr. Gaffud could have ascertained if only one pad had
been changed. More significantly, Mr. Sroka did not testify
during direct examination that two pads had been placed under R
32 on the day in question. He said only that two pads are
usually placed under "heavy wetters" and R 32 "can be" such a
person. Tr. 500. However, Mr. Sroka grew more certain on the
use of two pads for R 32 during cross-examination, and he
testified in response to HCFA's questions that he had placed both
pads from R 32's bed into the laundry hamper. Tr. 505. Thus, if
Mr. Sroka had been telling the truth, there should have been no
marked pad or pads left.

In the case of R 23, Mr. Gaffud and a fellow surveyor saw her
being brought into the dining room and seated with others for
luncheon service. After about 10 minutes of observations, the
surveyors saw liquid trickling down R 23's chair and forming a
puddle under her chair. 10/ Tr. 231 - 239. Mr. Gaffud
testified that he was certain the liquid they saw was urine, as
he had placed his finger in the liquid and smelled it. Tr. 233 -
234. There were staff members all about R 23 in the dining room,
and one staff member was even sitting next to R 23 while feeding
someone else. Tr. 233. No staff member attempted to give
assistance to R 23 even though some staff members were seen
trying to avoid stepping into the puddle. Id. After seeing that
no assistance was being given to R 23 during the ten minutes
following her episode of incontinency, one of the surveyors told
the problem to Petitioner's owner, who was present also in the
dining room. Tr. 234. Petitioner's owner then instructed some
nurses to take R 23 out of the dining room and check her. Tr.
236.

Even though Petitioner's owner did not attempt to give an excuse
for the incident on that day (Id.), Petitioner later alleged that
what the surveyor observed was spilt lemonade. HCFA Ex. 4 at 8.
However, the surveyors saw no lemonade being served to R 23 or
anyone else at her table since R 23 was brought into the dining
room. Tr. 235. Nor did they see any lemonade pitchers or cups
on the table. Id. Mr. Gaffud's testimony established the
liquid in question as urine by smell. Tr. 234.

On the Statement of Deficiencies, the surveyors had placed the
incident involving R 23 as a violation of resident's dignity
under the Quality of Life requirement. HCFA Ex. 4 at 7.
However, HCFA maintains in its brief that the incident
exemplifies Petitioner's failure to keep its residents as dry as
possible under the Quality of Care requirement. HCFA Brief, 27.
I do not find HCFA's approach to be improper since a reasonable
reading of the Statement of Deficiencies shows that discussions
of those incidents described under each broad category were
provided as examples of the thought processes by which certain
conclusions were reached. The incidents described in the
document do not form a definitive or exhaustive list of all
violations under each program requirement. HCFA Ex. 4. In
addition, Mr. Gaffud explained during the hearing that his
colleagues and he had discussed where to place the example
involving R 23 because the incident pertained not only to a
resident's dignity but also to the development of decubiti. Tr.
240. The example of R 23 could have been cited also for the
Quality of Care deficiency since changing an incontinent resident
timely, keeping the resident dry, and placing her on an
appropriate toileting schedule are all factors relevant to the
prevention of decubiti. Tr. 241. It was due to the lack of time
that the surveyors had failed to cross-reference the example to
various program requirements as they had intended. Tr. 241.

After the surveyor testified that the observations concerning R
23 could have been placed under either the Quality of Care
requirement as well as the Quality of Life requirement,
Petitioner had the opportunity to introduce evidence concerning
its treatment of R 23 under one or both of those requirements.
Petitioner presented no evidence at the hearing to refute HCFA's
observations and conclusions concerning R 23. Moreover, HCFA's
evidence on R 23 is consistent with other evidence concerning
Petitioner's treatment of other incontinent residents. HCFA's
observations of R 23's situation corroborates its contention that
various system-wide problems have resulted in Petitioner's
violation of the Quality of Care requirements.

Under 42 C.F.R. § 493.25(c), HCFA not only introduced evidence
concerning Petitioner's failure to keep residents clean and dry
in accordance with established protocol for preventing and
treating decubiti, HCFA showed also that Petitioner had also
failed to reposition residents who had decubiti or were at high
risk for decubiti. As noted above, repositioning must be done at
least once every two hours, but should be done even more
frequently if the resident's condition so warrants. In response
to earlier findings of deficiencies under the same requirement,
Petitioner had submitted a POC which committed to providing
training to staff on the use of repositioning to prevent and
treat pressure sores.

One day during the resurvey, surveyors observed three residents
(R 31, R 35, R 36) sitting continuously in geri chairs from 10 am
to 2 pm. HCFA Ex. 4 at 15 - 16. All three residents had been
identified by Petitioner as being at high risk for development of
decubiti. Tr. 285. Petitioner's records for R 35 even showed
that she had a Stage II decubitus on her buttock. HCFA Ex. 4 at
16.

These three residents were not repositioned by staff during the
four hours that Mr. Gaffud and another surveyor had kept them
under observation. Tr. 215 - 216. The care plan for all three
residents showed that they needed assistance for transfers and
mobility. Tr. 215. None of them were observed to have shifted
their weight independently during the four hours described by the
surveyor. Tr. 215 - 216. During the time he was observing these
residents, Mr. Gaffud heard an announcement over the public
address system to reposition residents, but these residents were
not repositioned. Tr. 220.

All three residents had been left in geri chairs with lap trays
in place, which restricted the movements of the residents. Tr.
216. These residents also could not be repositioned by
Petitioner's staff unless the trays on their geri chairs were
first removed. Id. Therefore, to corroborate the accuracy of
his and other surveyors' visual observations of these three
residents, Mr. Gaffud placed tape across the tray tables' latches
so that, if the trays were removed, the tapes would be broken.
Id. Mr. Gaffud then checked the tape every hour during the four
hour period. Id. At no time was the tape broken to suggest that
any of the three residents had been repositioned. Id. Other
surveyors continued the observations of the three residents when
they were taken into the dining room for meal service. Tr. 217 -
218. Not only were these three residents not repositioned during
the four hours between 10 am to 2 pm, these residents were not
even toileted during that period. Tr. 218.

In response to the survey findings, Petitioner alleged generally
that residents are repositioned every two hours when its staff
makes rounds. HCFA Ex. 4 at 15. However, Petitioner did not
deny that the three residents observed by surveyors were never
repositioned for four hours. Instead, Petitioner merely implied
that there was no need to reposition them since they allegedly
could shift their own weight without assistance and therefore did
not place pressure on any given area of their body. HCFA Ex. 4
at 15. Petitioner's explanation for its failure to reposition
these residents ignores the fact that Petitioner itself had
assessed them as being at high risk for development of decubiti,
as well as the impossibility of removing weight from the buttocks
area for any period of time even when a healthy and otherwise
mobile person is sitting in a geri chair for four hours with a
tray table in place.

Petitioner alleged also that the surveyors had neglected to
observe that, after lunch, all three residents were taken out of
the dining room and toileted. HCFA Ex. 4 at 16. However,
Petitioner did not explain why the tapes on the tray latches
remained intact until 2:00 pm. Therefore, I do not find
Petitioner's contention credible.

Petitioner pointed out in its posthearing brief that neither Mr.
Gaffud nor anyone else on behalf of HCFA had alleged that R 31, R
35 or R 36 was incontinent. P. Br., 19. However, even if there
was no evidence of these residents' incontinency, 11/ there is
already sufficient support for HCFA's conclusion that these
residents needed repositioning pursuant to 42 C.F.R. § 483.25(c):
i.e., the expert testimony of record concerning the development
and exacerbation of decubiti, coupled with the fact that
Petitioner's own assessments placed all three residents at high
risk for development of decubiti and as needing assistance in
transfers and mobility. In addition, there is no evidence on
which to conclude that even continent residents who are at risk
for decubiti and who need assistance in transfers and mobility,
and who were seated behind tray tables attached to their geri-
chairs, need not be taken to the toilet by staff (and therefore
receive de facto repositioning) during the four hours observed by
the surveyors. If Petitioner's theory is that these residents
did not need to be toileted or repositioned from 10:00 a.m. to
2:00 p.m. because they were continent, then Petitioner has failed
to introduce any evidence to support this affirmative defense.

Petitioner has asked that the examples of R 21, R 31, R 32, and R
36 be stricken because these residents did not have any decubitus
even though the deficiency identifier ("F 320") used by HCFA
relates only to residents with decubiti. P. Br., 16 - 17, 19.
However, as HCFA correctly pointed out in opposing Petitioner's
request, the regulation codified at 42 C.F.R. § 483.25(c)(1)
(which should be denoted by "F 319") required Petitioner to
prevent the development of pressure sores in persons who do not
have pressure sores. HCFA Reply, 19 - 20. HCFA contends that it
was reasonable for the surveyors to cite these related
deficiencies under one F tag, especially since there is no
support for striking "a validly cited failure to meet the
regulation as a whole" and doing so would defeat the intent of
the regulation. HCFA Reply, 20.

I agree with HCFA's views. As discussed above, all four
residents had been assessed by Petitioner as being at high risk
for the development of decubiti; yet Petitioner's staff had left
them lying on urine soaked bed pads (R 21 and R 31) or sitting in
geri-chairs with attached trays for several hours without being
repositioned or taken to the toilet (R 32 and R 36). The
evidence discussed above concerning these four residents supports
the conclusion that Petitioner was out of compliance with the
requirements of 42 C.F.R. § 483.25(c)(1), even though HCFA had
not earlier cited these violations under 42 C.F.R. § 483.25(c)(1)
in its Statement of Deficiencies. Since HCFA's factual findings
with respect to these four residents (albeit under F Tag 320
instead of under F Tag 319) have been known to Petitioner since
the issuance of the Statement of Deficiencies, allowing HCFA to
conform its legal conclusions to the evidence cannot result in
undue prejudice to Petitioner.

Additionally, the expert testimony of record establishes the
relatedness between these regulatory requirements in that
aggressive interventions and care are necessary for the
prevention of decubiti in persons at risk for their development
as well as the treatment of existing decubiti. Therefore, even
if the evidence concerning R 21, R 31, R 32, and R 36 do not show
deficiencies under 42 C.F.R. § 483.25(c)(1) or F Tag 319, such
evidence at the very least corroborates HCFA's findings and
conclusions which were made explicitly under 42 C.F.R. §
483.25(c)(2) or F Tag 320.

2. The Level B "Urinary Incontinence" Citation

With respect to the "Urinary Incontinence" citation, HCFA relied
upon the following regulatory requirements:

Each resident must receive and the facility must
provide the necessary care and services to attain or
maintain the highest practicable physical, mental, and
psychological well-being in accordance with the
comprehensive assessment and the plan of care.

(d) Urinary Incontinence. Based on the resident's
comprehensive assessment, the facility must ensure that
--

(2) A resident who is incontinent of bladder
receives appropriate treatment and services to prevent
urinary tract infection and to restore as much normal
bladder function as possible.

42 C.F.R. § 483.25(d)(2).

There exists a relationship between the strong urine odor noted
by surveyors at Petitioner's facility and Petitioner's failure to
use a program to restore as much normal bladder function as
possible. See, Tr. 113 - 14. Generally, the number of
incontinent residents and the amount of odor would be reduced if
a facility has a restorative bladder and bowel (B & B) 12/
program in place. Tr. 114. B & B is a restorative type of
program which entails assessing the voiding patterns of the
residents and the use such restorative techniques as pushing
fluids. Tr. 112, 222. Regular toileting of residents is not a
substitute for a B & B program. Tr. 111, 113, 229. Whereas
regular toileting is merely timed or scheduled toileting, a B & B
is a restorative program based on the resident's individualized
needs and potential for returning to continency. Tr. 111, 221 -
222. Upon admitting each resident and at periodic intervals
thereafter, facilities are required to assess each resident's
potentials and needs; the assessments and the programs suitable
to their needs and potentials should appear on the resident's
care plan. Tr. 114 - 115. 221 -223.

During the February survey, Petitioner was found out of
compliance with the foregoing Level B requirements. HCFA Ex. 2
at 104 - 105. The survey team on the February survey found that
Petitioner did not have a B & B program even though it had
identified 30 residents with bladder incontinence and two
residents with bowel incontinence. HCFA Ex. 2, 104 - 105. The
POC submitted by Petitioner represented that it had, since the
February survey, assessed its residents for their potential to
benefit from a B & B programs and was setting forth this
information on the residents' care plans. The POC stated also
that the B & B program was "in progress" and would be completed
by March 15, 1995. Tr. 229; HCFA Ex. 14 at 10. Such a program
was to be monitored by Petitioner's DON. Id. Because the
administrator of a facility and its DON usually prepare the POC,
HCFA expected Petitioner's professional staff to know the
differences between scheduled toileting and a B & B program. Tr.
230.

When the surveyors returned for the resurvey in late March, one
of the surveyors asked an LPN whether a B & B program was in
place. Tr. 113. The surveyor asked the question due to the
urine odor in the facility and its likely relationship with the
absence of intervention given to incontinent residents. Tr. 114.
The LPN responded that there was no B & B program in place. Tr.
114. According to the surveyor, an LPN should have known what is
a B & B program, as opposed to regular toileting of residents.
Id.

It was Petitioner's responsibility to assess each resident to
determine whether the resident could benefit from a restorative
program such as a B & B program. Tr. 112, 222 - 223.
Therefore, during the resurvey, the surveyors also reviewed the
care plans for six incontinent residents. However, the surveyors
found no such assessments. Tr. 114 - 116, 227 - 228. One of the
surveyors, Ms. Langford, reviewed the care plans for three
incontinent residents; she found on these care plans that
Petitioner had acknowledged three residents' urinary
incontinency, but there was no indication that Petitioner had
assessed these three residents for any B & B program. Tr. 116,
163 - 164. Mr. Gaffud reached the same findings after reviewing
the care plans of another three residents who were assessed by
Petitioner as incontinent. Tr. 227 - 228; HCFA Ex. 4 at 16 - 17.

The care plans reviewed by Mr. Gaffud were for R 31, 35, and 36.
Tr. 228. As discussed above, these same residents were observed
by the surveyors left sitting in a geri chair without
repositioning or toileting for four hours. These residents' care
plans only contained their toilet schedules. Tr. 228, 230.
However, Mr. Gaffud's testimony established that these residents
were not even toileted according to the schedules written on
their care plans by Petitioner. Tr. 230, 321.

Petitioner disputes HCFA's conclusions under 42 C.F.R. §
483.25(d)(2) on several specific grounds which I do not find
persuasive. First, I do not read the regulation as meaning that
a deficiency exists only if a facility fails to restore as much
normal bladder function as possible, as well to prevent urinary
tract infections. Thus, it is immaterial whether, as argued by
Petitioner, HCFA has not alleged a failure by Petitioner to
prevent urinary tract infections in its residents. See, P. Br.,
20. Second, Petitioner has failed to prove its affirmative
defense that it had a restorative program which it did not call a
B & B program. See, P. Br., 21. Even though there is no
requirement that a program for restoring as much bladder
functioning as possible be called any particular name, Petitioner
cannot simply rely on an assertion that it has such a program by
an unspecified name. The evidence of record shows only that
Petitioner's residents were supposed to be on specified toileting
schedules which Petitioner did not always maintain (see
discussions of R 31, R 35, and R 36); there is no evidence
showing that these residents are likely to regain their bladder
functioning capabilities if Petitioner were to toilet them on the
specified schedules.

Nor do I find persuasive Petitioner argument that, with respect
to two residents (R 31 and R 35) who were left in their geri-
chairs for four consecutive hours without toileting, HCFA has
failed to demonstrate that Petitioner was not providing them with
services to restore as much normal bowel and bladder function as
possible. P. Br., 22. The evidence shows that members of the
resurvey team had looked at these residents' daily toileting
schedules as contained in their care plans and determined that
Petitioner's failure to toilet them for four consecutive hours
was not consistent with their toileting schedules. HCFA Ex. 4 at
17. There is no evidence to suggest that not toileting residents
in accordance with the schedules specified in their care plans
might help restore their bladder or bowel functions. There is
also no evidence that Petitioner had even made the necessary
assessments of these two or any other cited residents to
ascertain whether they would benefit from a restorative program
such as a B & B program; nor has Petitioner introduced evidence
that it had any bowel or bladder restorative program called by
whatever name, even though the POC submitted in response to the
February survey findings had committed to institute such a
program. In essence, HCFA's evidence pointing to Petitioner's
failure to meet its obligations under the regulations is
unrebutted by contrary evidence from Petitioner.

Nor was I persuaded by Petitioner's argument that no deficiency
has been proven because the surveyors observed only one day of
technical violation during which regular toileting schedules were
not followed for some residents. P. Br., 22. Such is the nature
of a survey, which spot-checks Petitioner's compliance and relies
upon reasonable inferences from observations, interviews, and
record reviews. The evidence from HCFA is sufficient for having
shifted the burden of moving forward to Petitioner, who chose not
to submit any evidence to show how it was restoring as much
function as possible for its residents in accordance with the
regulatory requirements.

Finally, I agree with HCFA that the absence of restorative
program such as a B & B program is a systemic problem at
Petitioner's facility. HCFA Br., 23. All of the evidence
introduced by HCFA (including the examples of six residents)
shows that such a program did not exist at the time of the
resurvey, and Petitioner has not introduced any evidence to
establish that it does exist. Therefore, I do not find valid
Petitioner's contention that HCFA has not established sufficient
frequency of the incidents to justify a Level B deficiency. See,
P. Br., 21. There is simply no indication from the record that
HCFA might have found a restorative program if, for example, HCFA
had studied more care plans, observed more residents, or extended
the days of the resurvey as suggested by Petitioner's arguments
on frequency. Moreover, there is no bright line test for Level A
or Level B findings. See, Tr. 78 - 292.

3. The Level B "Range of motion" Citation

For the "Range of motion" citation, HCFA relied upon the
following regulatory requirements:

Each resident must receive and the facility must
provide the necessary care and services to attain or
maintain the highest practicable physical, mental, and
psychological well-being in accordance with the
comprehensive assessment and the plan of care.

(e) Range of motion. Based on the comprehensive
assessment of a resident, the facility must ensure that
--

(2) A resident with a limited range of motion
receives appropriate treatment and services to increase
range of motion and/or to prevent further decrease in
range of motion.

42 C.F.R. § 483.25(e)(2)

During the initial survey conducted in February of 1995,
surveyors found that Petitioner had failed to provide proper
range of motion treatment or services to five residents from the
selected samples and five residents from outside the selected
samples. HCFA Ex. 2 at 106 - 11. The citations of deficiencies
from the February survey included findings such as Petitioner's
failure to have hand rolls or like positioning devices in place
for those residents who were assessed by Petitioner as having
hand contractures or as being at high risk for hand contractures.
Tr. 45 - 46. (Hand rolls should be used for any resident whose
inability or unwillingness to extend or contract his hand is
likely to cause the hands to form a tight fist; bones will become
fixed if the tight fist remains in place, thereby causing a
painful condition, with a possibility for infection and the
growth of nails into the palms of the hand. Tr. 45 - 46.) Other
citations of deficiencies from the February survey involved the
absence of proper foot support for residents, which can cause a
condition called "foot drop" where the muscles contract and the
foot hangs out of position without normal flexibility. Tr. 118,
305.

The POC submitted by Petitioner to address the February survey
findings included its commitment to train CNAs on when to and how
to use positioning devices; having its maintenance department
evaluate all wheelchairs to make sure that all parts are in place
and are working; and to have the DON and the rehabilitations
coordinator monitor compliance in this area. HCFA Ex. 2 at 111.
Petitioner's POC committed to having the deficiencies corrected
by March 1, 1995. Id.

During the resurvey conducted from March 27 to April 4, 1995,
surveyors observed R 14, R 37, and R 38 sitting with their feet
dangling above the floor in their wheelchairs or geri-chairs,
without any foot support. Tr. 116 - 118. The footrests of
wheelchairs and geri-chairs are supposed to be in place. Tr.
117. Without these footrests in place, and without having any
other kind of foot support, these residents were at risk for
having their range of motion reduced through the development of
"foot drop." See, Tr. 118, 305. Despite Petitioner's commitment
in its earlier submitted POC to repair all wheelchairs by March
1, 1995, Mr. Gaffud still saw missing footrests during the
resurvey, and to having seen feet dangling above these missing
footrests. Tr. 305.

Even though R 37 had been identified by Petitioner as ambulatory,
development of "foot drop" due to proper foot support could
reduce the range of motion in his feet and therefore his ability
to ambulate. Tr. 118. The other two residents, R 14 and 38,
were identified by Petitioner as having weakness in their lower
extremities and in need of range of motion exercises. Tr. 118 -
119; HCFA Ex. 4 at 18. None of these three residents had full
ranges of motions. Therefore, having these three residents sit
in wheelchairs or geri-chair without foot support and placing
them at risk for "foot drop" were not consistent with
Petitioner's affirmative obligations under 42 C.F.R. §
483.25(e)(2) to not only provide residents with a limited range
of motion with appropriate treatments or services to increase
their range of motion, but to also prevent further decrease in
their range of motion.

Petitioner argued that R 37 was never in danger of developing
"foot drop" because one of its nurses, Mary Chisholm, testified
that R 37 was ambulatory and that the only time R 37 was in a
wheelchair was during mealtime. P. Br., 25. However, the fact
that R 37 has some range of motion limitations is implied by the
fact that he needs to sit in a wheelchair despite Petitioner's
assessment that he is ambulatory. Therefore, Petitioner had a
duty under the regulations to provide appropriate treatment or
services which would increase this resident's range of motion and
to prevent further decreases in his range of motion.

HCFA pointed out in response, moreover, that Ms. Chisholm
acknowledged on cross-examination that it was not mealtime when
the surveyors observed R 37 sitting in a wheelchair without
footrests. HCFA Reply, 25 - 26 at n. 27 (citing Tr. 490 - 491).
One of HCFA's surveyors, Ms. Langford, also testified that when
she observed R 37 in the wheelchair without footrests, it was
"well between either mealtime." Tr. 123. Since Petitioner was
keeping an allegedly ambulatory resident in a wheelchair when he
should not be in a wheelchair, I am unable to accept Petitioner's
hypothesis that this resident was in no danger of developing

"foot drop" from the lack of footrests on his wheel chair because
he was ambulatory and should only be in a wheelchair during
mealtime.

Petitioner argued also that, according to Ms. Chisholm's
testimony, R 38 was a stroke victim who was paralyzed on one
side; the footrest of her wheelchair was intentionally not in
place to enable her to use her good foot to ambulate in the
wheelchair. P. Br., 25. There are several problems with Ms.
Chisholm's testimony and Petitioner's reliance on it. Most
fundamentally, there is no evidence explaining how a stroke
victim paralyzed on one side of her body could maneuver the
wheelchair with sufficient control to ambulate with her one good
foot. But even assuming that one footrest should be removed in
order to allow her to use her good foot as alleged by Petitioner,
there is no evidence from Petitioner to explain why the other
footrest was not left in place to support her paralyzed foot.
(In other words, Petitioner has not shown that it should not
provide the requisite support for this resident's paralyzed foot
while allegedly allowing freedom of movement for her other foot.)
Moreover, there is no evidence from Petitioner that any
professional staff had made an assessment that R 38's footrests
should be removed, or that the benefits of having her propel
herself with her good foot outweighed the risk of having her
develop "foot drop" in her paralyzed foot. Absent such evidence,
Ms. Chisholm's testimony and Petitioner's affirmative arguments
based on her testimony appear contrived.

To the extent that Petitioner argues HCFA has not proven that the
cited incidents occurred with sufficient frequency to justify a
Level B deficiency finding (P. Br., 25, 26), I note that
Petitioner's explanations for even the foregoing residents show a
failure or refusal to acknowledge the need for proper foot
support. Whereas the testimony introduced by Petitioner on this
issue was largely unpersuasive, HCFA presented persuasive
testimony concerning the surveyors' observations 13/ and
conclusions from the resurvey which were consistent with the
findings from the initial survey. Even though Petitioner had
submitted a POC containing detailed commitments to be completed
by March 1, 1995, it does not appear that Petitioner had done
what it said it would do. In addition, if Petitioner truly
believed that HCFA's examples failed to reflect Petitioner's
usual practices on improving or maintaining ranges of motion
limitations, Petitioner was in a position to show how it was
meeting the regulatory requirements with respect to other
residents; but Petitioner introduced no such evidence.
Therefore, the totality of the record leads me to conclude that
there existed a systemic problem under 42 C.F.R. § 483.25(e)(2)
at the time of the resurvey.

4. The Level B "Accidents" Citation

For the "Accidents" citation, I will consider HCFA's reliance
upon the following regulatory requirements 14/:

Each resident must receive and the facility must
provide the necessary care and services to attain or
maintain the highest practicable physical, mental, and
psychological well-being in accordance with the
comprehensive assessment and the plan of care.

(h) Accidents. The facility must ensure that --

(2) Each resident receives adequate supervision and
assistance devices to prevent accidents.

42 C.F.R. § 483.25(h)(2).

The resurvey at issue was commenced in late March of 1995 partly
because Petitioner was found to have been out of compliance with
the foregoing requirements during the February survey. Findings
from the February survey in this area included those incidents
relating to R 15 and R 16. Four days prior to the February
survey, R 15 had fallen while being showered at Petitioner's
facility and was hospitalized as a result. Tr. 54. The CNA who
was showering R 15 knew that this resident was ambulatory, was
being treated with anti-psychotic medication for a mental
disorder, was easily agitated, and had a history of falls which
resulted in two fractured hips and two prior fractured arms. Tr.
54 - 55. However, the CNA who was showering R 15 when she again
fell four days prior to the survey neither used a gait belt (a
canvas safety belt placed around the waist of unstable or
unpredictable residents), nor sought assistance to help her
support R 15. HCFA Ex. 2 at 118 - 119; Tr. 54 - 55. The results
of the February survey included citations of Petitioner's failure
to provide proper supervision for R 16. R 16 had a diagnosis of
severe dementia and manic psychosis; he was identified in his
care plan as being able to ambulate independently, but in need of
constant supervision. Tr. 56; HCFA Ex. 2 at 120. However, he
was observed during the survey wandering about in the dining room
unsupervised, removing sweaters from the backs of other
residents' wheelchairs, removing other residents' lap blankets,
taking others' newspapers, and drinking out of other residents'
cups without their apparent permission. Id. While R 16 was
engaged in these activities, two CNAs were in the room engaged in
a private conversation; they did not stop R 16's behavior or
appeared to have noticed it. Tr. 56. The surveyors believed
that R 16's unsupervised conduct posed health and safety risks
for himself as well as other residents. Tr. 56.

When the surveyors returned to the facility in late March of 1995
to conduct the resurvey, they again evaluated the supervision
being given to the resident previously designated as R 16 in the
February survey and now re-designated as R 37 in the resurvey.
The surveyors found that, instead of being allowed to wander
about as during the February survey, this resident was now left
alone in a hallway sitting in a geri-chair with a tray table
attached. Tr. 122. To the surveyors, he appeared anxious and
agitated, and seemed to have been rocking his geri-chair in an
effort to get out. Tr. 122. It was 10:25 AM when this resident
was so observed, even though this resident was not supposed to
have been in restraints at any time other than meal time. Tr.
123. There is no dispute that 10:25 AM was not mealtime at
Petitioner's facility. Tr. 123, 491.

As was noted during the February survey, this resident was
assessed by Petitioner as having severe dementia and manic
psychosis, and as being in need of constant supervision. Tr. 56.
The surveyor who made the observations concerning this resident
during the resurvey testified that confining him to a geri-chair
with a tray table in place did not constitute adequate
supervision, especially when this resident is known to be
agitated. Tr. 125. She testified also that the resident was
rocking the geri-chair in an apparent effort to get out, that the
geri-chair was not very stable, and that the geri-chair could
have tipped over. Tr. 123 - 124.

The team that conducted the resurvey also found deficiencies with
respect to R 8. During three days of the resurvey, R 8 was seen
in a wheelchair with her back against the dining room, and
surrounded by a C-shaped table pushed up against her wheelchair.
Tr. 242 - 243. These so-called "C tables" are supposed to be
used by staff during mealtime to help feed multiple residents
simultaneously. Tr. 243 - 246, 492. When a C table is properly
used, a staff member sits within the smaller curvature and
multiple residents sit around the larger, outer curvature, so
that the staff member can assist and supervise these multiple
residents during meal time. Tr. 243 . However, in the case of R
8, the C table was not being used by a staff member to feed one
or more residents; rather, the C table was being used as a
restraint for R 8, who was in a wheelchair situated within the
smaller or inner semi-circle of the table where a staff member
should have sat had the table been used for feeding multiple
residents. Tr. 243 - 246, 492. The resident did not respond
when one of the surveyors attempted to communicate with her to
ascertain if she wished to be in that position. Id. However, R
8 appeared not to have wanted to be in that position as she was
observed attempting to push the C table away and trying to reach
over the table to get nearby objects. Tr. 244.

On one occasion, Mr. Gaffud and other surveyors saw R 8 against
the wall in a wheelchair and behind a C table in the dining room
for the entire morning. Tr. 245 - 246. There was no staff
members present in the dining room to provide supervision except
during lunch and during activity time. Tr. 249. No one removed
the C table from in front of R 8 until she was taken for her
afternoon nap. Tr. 249. Mr. Gaffud's review of R 8's records
maintained by Petitioner showed that she had "senile dementia,"
which is a subset of Alzheimer's disease. Tr. 261. Mr.
Gaffud's review of R 8's records showed also that she had been in
an accident within 30 days of the resurvey. Tr. 263. In his
opinion, leaving R 8 in the position observed during the resurvey
was likely to result in another accident. Tr. 263.

Petitioner alleged that it had a reasonable explanation for
having placed R 8 behind the C table: R 8 was a diabetic, and
the table is used to keep R 8 from taking other residents' food
while allowing him to eat independently. P. Br., 32. I find,
however, that whatever need there might be to keep R 8 from
taking others' food does not excuse Petitioner's having kept R 8
behind a C table when there was no meals being served and when
there was no staff to supervise him sitting in a wheel chair
behind a C table. Petitioner's treatment of R 8 was cited as a
deficiency because there was a failure of supervision and the
likelihood of another accident to R 8.

I am also not persuaded by Petitioner's argument that HCFA has
not shown sufficient frequency to justify a citation of
deficiency under 42 C.F.R. § 483.25(h)(2). See, P. Br., 31.
Here, even in the two examples relied upon by HCFA, the evidence
pointed to very significant health and safety risks created by
the staff's very obvious lack of concern for residents. Even one
example may suffice, if, as here, the dangers are very
significant. See, Tr. 434 - 437. In addition, as I noted above,
even after having been cited for its failure to properly
supervise R 16 during the February survey, Petitioner's staff was
still failing to properly supervise the same resident (now
identified as R 37) during the resurvey. In addition, the
evidence shows that confining R 8 behind a C table without proper
supervision continued for three days, despite the fact that Mr.
Gaffud had brought this problem situation to the attention of key
staff members on the very first day of the resurvey. Tr. 264.
Even though Petitioner had specific notice that proper
supervision was not being provided to at least these two
residents, Petitioner failed to remedy the situations, choosing
instead to rely on contrived excuses such as the alleged need to
use a C table to prevent R 8 from taking others' food. Thus, I
do not view the examples cited by HCFA as isolated incidents of
Petitioner's inadvertence. Rather, the examples cited by HCFA
under 42 C.F.R. § 483.25(h)(2) are consistent with other
incidents discussed in this decision which also point to the
conclusion that there existed system-wide practices which
violated program participation requirements because Petitioner
and its staff simply did not care about the residents' health,
safety, or general well-being even when surveyors are
scrutinizing the staff's conduct.

I conclude that HCFA has established Petitioner's failure to
comply with the requirements of 42 C.F.R. § 483.25(h)(2).

5. The Level B "Activities of daily living"
Citation

For the "Activities of daily living" citation, HCFA relied upon
the following regulatory requirements:

Each resident must receive and the facility must
provide the necessary care and services to attain or
maintain the highest practicable physical, mental, and
psychological well-being in accordance with the
comprehensive assessment and the plan of care.

(a) Activities of daily living. Based on the
comprehensive assessment of a resident, the facility
must ensure that --

(3)(A) A resident who is unable to carry out
activities of daily living receives the necessary
services to maintain good nutrition, grooming, and
personal and oral hygiene.

42 C.F.R. § 483.25(a)(3)(A).

During the February survey, the surveyors found that various
residents (six of 24 in the designated sample group, and 5 from
outside the designated sample group) were not receiving the
assistance they needed to maintain good grooming and personal
hygiene. HCFA Ex. 2 at 83 - 86. The examples cited by HCFA were
compelling, including not only dependent residents who were
unshaven, had uncombed hair, and exhibited long fingernails or
toe nails (some of which had buildups, were discolored, or were
irregular), but also dependent residents in wheelchairs who had
on soiled clothing or emitted a strong odor of urine. Other
residents were seen wearing unmatched clothing, a shirt with a
hole, or a soiled sling. In one case, a resident's family told
the surveyors that they (the family) had to wipe dried feces from
the resident, even though this resident was blind and needed
extensive to total assistance in activities of daily living from
Petitioner's staff. Another resident who was dependent on staff
for care not only had body odor and urine smell, but she was also
observed to have had a dried substance on her fingers which
looked like dried feces.

Petitioner's responses to these February findings included
allegations of resident preferences (e.g., some residents wanted
to wear the same clothes each day or refused baths) and that the
surveyors saw some residents before they were bathed according to
their daily schedule. HCFA Ex. 2 at 81 - 86. Nevertheless,
Petitioner submitted POC in which it committed to provide
inservice training to staff on dressing, grooming, and cleaning
residents in order to maintain their hygiene. HCFA Ex. 2 at 87.

During the resurvey, surveyors proceeded on the basis of a list
prepared by Petitioner, which identified those residents who
needed assistance with their activities of daily living (ADLs).
Tr. 129, 132 - 34. The surveyors then concluded that 11
residents were not receiving the needed assistance with grooming
and personal hygiene. HCFA Ex. 4 at 12 - 13; Tr. 125 - 26, 128 -
129. For example, of those residents who, according to
Petitioner's Assistant DON, needed prompting to do their ADLs, R
16 was seen sitting in a wheel chair with a strong odor of urine
about her, and R 7, R 12, R. 24, and R 27 were observed in need
of oral hygiene at 11:20 AM (approximately an hour to an hour and
a half after their morning snack). HCFA Ex. 4 at 13; Tr. 452.
The surveyors made additional observations that R 27 was wearing
shoes without socks, that R 11 and R 25 were in need of personal
hygiene, and that R 25, R 27, and R 29 had messy hair. HCFA Ex.
4 at 13.

One of the residents who was identified during the February
survey as having long fingernails was again found as having long,
jagged fingernails in need of trimming during the resurvey.
15/ HCFA Ex. 16, p. 2. The Assistant DON testified that this
resident is "generally very unkempt." Tr. 126, 128. Two other
residents, R 29 and R 30, were also observed during the resurvey
as having long, jagged fingernails in need of trimming. HCFA Ex.
4 at 23; Tr. 126, 128. The DON confirmed that R 30 relies on
staff to cut her nails. Tr. 453, 486, 487. One of HCFA's
surveyors testified that long, jagged nails can cause scratches
and infection, as well as have an adverse psychological affect on
the resident. Tr. 126, 128.

The surveyors found also that R 11 wore the same clothing all
three days of the survey, along with shoes and socks which were
not only mismatched, but stained (i.e., her right leg prosthesis
was in stained hosiery and a heavily stained tennis shoe, while
her left leg was in a short white sock and a brown leather shoe).
HCFA Ex. 4 at 13, 14; Tr. 131 - 132. R 11 told one of the
surveyors that, even though she was able to apply the prosthesis
by herself, she was unable to care for the shoe, the stocking, or
her prosthesis. Tr. 132 - 133. This resident complained also
that her prosthesis was loose fitting. Tr. 134. The surveyor's
review of those assessments done by Petitioner showed that R 11
needed assistance with grooming and hygiene. Id. The surveyor
found nothing indicated in R 11's care plan for maintenance of R
11's prosthesis, as required by law. Tr. 134 - 135. However,
since R 11 was receiving rehabilitation services and gait
training, Petitioner's staff should have been aware that this
resident's prosthesis was loose. Tr. 136.

Petitioner's Assistant DON, Mary Chisholm, testified that R 11
was a diabetic with an artificial limb below the knee. Tr. 455 -
456. Even though the surveyors observed a white sock and a brown
leather shoe on R 11's left leg and foot, Ms. Chisholm testified
that this resident was wearing a white sock and a gym shoe on her
left leg and foot during the resurvey due to circulatory problems
which caused her skin to break down. Tr. 455 - 456. Petitioner
alleged also that R 11 was independent and liked to do things her
own way. P. Br., 11; HCFA Ex. 4 at 13.

I do not find Petitioner's explanations for R 11 credible given
that the record as a whole establishes a general lack of concern
on the part of Petitioner's staff for the residents' health and
psychological well being. I do not believe Petitioner's
explanation that R 11 was wearing stained items of clothing,
mismatched items of clothing, and the same clothes for three days
because R 11 had insisted on doing so even though Petitioner's
staff was available to help her dress in unstained, matched, and
different clothes each day. Instead, HCFA's theory that R 11 and
others were not being provided with the necessary assistance in
daily grooming and hygiene is consistent with other evidence of
record, such as the pervasive smell of stale urine on the
premise, the absence of footrests on wheelchairs, the poor
grooming and hygiene of other dependent residents also observed
by the surveyors, and the residents who were left to sit or lie
in their own urine even after the surveyors intervened.

Moreover, even if I were to assume as true that R 11 preferred to
wear the same clothes for several consecutive days along with
different socks on each leg and different shoes on each foot,
this does not account for the stains noted by the surveyors. Nor
would such an assumption account for Petitioner's failure to
properly maintain this resident's prosthesis. There is no
evidence from Petitioner that R 11's preferred items of clothing
was being worn around the clock or that the stained items could
not have been cleaned when R 11 took them off in order for
Petitioner to help her maintain appropriate grooming or personal
hygiene. Nor has Petitioner given an explanation for the
looseness of R 11's prosthesis, which was also cited by HCFA as a
basis for the deficiency.

Even though each of the examples cited by HCFA under 42 C.F.R. §
483.25(a)(3)(A) might be arguably insignificant when viewed
individually, together they show Petitioner's lack of concern for
the dependent residents' grooming and hygiene that is very
consistent with other evidence of record discussed herein.
Accordingly, I conclude that Petitioner has violated the
requirements of 42 C.F.R. § 483.25(a)(3)(A).

6. The Level A "Quality of Care" Citation

As noted above, the regulations specify that a decision as to
whether there is compliance with Level A requirements will depend
upon the manner and degree to which a SNF satisfies the various
Level B requirements (42 C.F.R. § 488.26(a)), and noncompliance
with Level A requirements will be found for SNFs "where the
deficiencies are of such character as to substantially limit the
provider's ... capacity to render adequate care or which
adversely affect the health and safety of patients...." (42
C.F.R. § 488.24(a)). Based on my evaluation of the evidence
discussed above, I find that a preponderance of the evidence
supports HCFA's determination that the manner and degree of
Petitioner's noncompliance with the specified Level B
requirements also placed Petitioner out of compliance with the
Level A requirement for Quality of Care.

In reaching this conclusion, I have considered the various
resident-specific defenses presented by Petitioner (see
discussions above), as well as the three main lines of arguments
articulated in Petitioner's posthearing briefs: (1) that HCFA's
findings are invalid because the surveyors had allegedly failed
to follow certain guidelines contained in the State Operations
Manual (SOM); (2) that HCFA's evidence is not sufficient for
proving the severity and frequency of the deficiencies noted by
the surveyors; and (3) that Petitioner's expert consultant,
Kathleen Baker, was of the opinion that the Statement of
Deficiencies written by the surveyors does not contain adequate
information to supporting HCFA's findings of deficiencies.

I address these three lines of arguments as a group here because
they all appear to suggest that the surveying process is an exact
science, under which results are computed based on the
application of precise formulas. My review of the evidence
persuades me that the surveying process is not an exact science.
The SOM and like publications contain guidelines -- not precise
or inflexible formulas -- for trained surveyors to apply in
accordance with their professional judgment and the exigencies of
circumstances, for the protection of Medicare beneficiaries and
Medicaid recipients. The evidence in this case has established
to my satisfaction that the surveyors conducted the resurvey at
issue reasonably and appropriately, and in a manner consistent
with the regulations.

Without doubt, the severity or frequency of alleged problems are
relevant to the ultimate issue of whether "the deficiencies are
of such character as to substantially limit the provider's ...
capacity to render adequate care or which adversely affect the
health and safety of patients...." 42 C.F.R. § 488.24(a).
However, there exists no bright-line test for determining when
problems are of the severity or frequency to substantially limit
a facility's capacity to render adequate care or to affect
adversely the health and safety of patients. Nor can such
bright-line tests be created. In some instances, for example,
surveyors are not likely to have the opportunity to personally
observe the full or actual extent of harm to residents because
surveys are conducted during limited periods of time. In other
situations, more severe or more widespread harm to residents may
not have been observed on the days of survey due to the
interventions exercised by the surveyors for the residents'
protection. The expert witnesses for both parties in this case
agree that actual harm to residents is not necessary to justify a
finding of noncompliance. Tr. 434 - 435, 662. As even
Petitioner's expert witness, Kathleen Baker, testified, "There
really aren't any clear definitions of what constitutes a Level
A" (Tr. 599 - 600), and whether deficiencies amount to a Level A
noncompliance rests "ultimately ... [on] a judgment call" (Tr.
635).

For these reasons, I have relied on the totality of evidence in
this case, including all reasonable inferences arising therefrom,
in concluding that Petitioner's deficiencies substantially
limited its capacity to render adequate care or adversely
affected the health and safety of its residents. My reliance
upon the totality of the evidence means that I have looked beyond
what is within the four corners of the survey report criticized
by Kathleen Baker, Petitioner's expert consultant. There is more
evidence in this case than the written report of the surveyors.
Additionally, Ms. Baker testified that she did not participate in
the surveying of Petitioner (Tr. 641) and that she based her
opinions solely on her review of the Statement of Deficiencies
from the resurvey (Tr. 604 - 605). In contrast to Ms. Baker, who
was not present during the testimony of other witnesses (Tr. 3 -
4), I have had the benefit of listening to surveyors and other
witnesses explain their observations and conclusions under oath
over a period of several days during the hearing.

I am aware that several of the examples of deficiencies cited by
HCFA may appear to be insubstantial if each of them is viewed in
isolation as urged by Petitioner. However, when all of these
examples are viewed together, the facts and inferences underlying
them preponderate in favor of HCFA's conclusion that there exists
systemic problems which arise to a Level A Quality of Care
noncompliance. See, e.g., HCFA Reply, 23.

As indicated in my discussions of various Level B citations, I
attached weight also to the fact that Petitioner was not only on
notice to correct certain deficiencies prior to the resurvey but
had, in many instances, committed to correct them prior to the
resurvey; yet, the same types of deficiencies continued to be
present during the time of the resurvey. As also indicated in my
earlier discussions, I attached weight to the fact that
Petitioner's staff was unmindful of the residents' needs and
well-being even when staff was aware that surveyors were on
premise making observations and intervening to request the
delivery of appropriate care to residents. The lack of concern
for residents' needs and well-being shown on the days of the
resurvey led me to believe that Petitioner's noncompliance with
the Quality of Care requirements would not have been better on
those days when it knew no surveyors were present.

IV. Conclusion

Thus, for the foregoing reasons, I uphold HCFA's termination of
Petitioner's participation agreement due to its noncompliance
with the Level A Quality of Care requirement at the time of the
April, 1995 resurvey.

________________________
Mimi Hwang Leahy
Administrative Law Judge

* * * Footnotes * * *

1. The regulations governing the surveying and
certification of long term care facilities under the Medicare and
Medicaid programs were modified, effective July 1, 1995. 59 Fed.
Reg. 36117 (Nov. 10, 1994). In this case, the relevant surveys
were done prior to July 1, 1995, and HCFA also made its
determinations prior to said date. Therefore, I cite in this
decision only those regulations which were codified and in effect
prior to July 1, 1995.
2. HCFA cited my ruling in Capitol View Care Center
v. HCFA, C-94-332, and attached a copy of said ruling as
Attachment D to its prehearing brief.
3. During the hearing, Petitioner objected to HCFA's
eliciting testimony concerning the February, 1995 survey (HCFA
Ex. 2) by stating:

The exhibit has been admitted and Petitioner is
prepared to admit on the record the allegations
contained in HCFA Exhibit Number 2.

Having this witness going through observations
serves no purpose.

Tr. 24.
4. For example, at page 3 of Petitioner's post-
hearing reply brief, Petitioner stated that it "agrees that this
Court's Order in Brighton Pavilion, Docket No. C-96-081, ruling
that HCFA has the burden of proof, is controlling in this
matter."

In Brighton Pavilion v. HCFA, C-96-081, I issued a ruling on
September 11, 1996 which placed the ultimate burden of persuasion
on HCFA. Under that ruling, I would set aside HCFA's findings
and imposition of enforcement remedies against a provider if the
evidence were in equipoise. The DAB's decision in Hillman, by
contrast, placed the ultimate burden of persuasion on the
provider, so that HCFA's findings and sanctions would be upheld
if the evidence were in equipoise.
5. Petitioner's letter alleged that, because no
decision has been issued in this case, Petitioner was losing
revenue on a daily basis.

I note that Petitioner had earlier brought two related cases,
which involved Petitioner's request to re-enter the Medicare
program after termination and HCFA's refusal to re-admit
Petitioner to the Medicare program based on the results of
surveys conducted in August and October, 1995. Oak Lawn Pavilion
v. HCFA, Dec. No. CR426 (1996). I dismissed the requests for
hearing in those two cases for lack of jurisdiction because
Petitioner had failed to follow the appeals procedures specified
by regulation (i.e., Petitioner had failed to request
reconsideration prior to requesting a hearing).
6. The portion of my May 14, 1996 prehearing order
quoted by Petitioner is as follows:

Burden of proof: For purposes of this hearing, HCFA
shall have the burden of coming forward, to establish by a
preponderance of the evidence, that Petitioner was not in
compliance with the cited Level A requirement as of the date
specified in HCFA's notice of adverse action. Petitioner
has the burden of coming forward with evidence in support of
Petitioner's arguments.
7. Petitioner's March 28, 1997 letter indicates its
belief that I need not apply the relevant legal principles set
forth by the DAB's Appellate Panel in Hillman. There is, of
course, no legal basis for such a belief by Petitioner. Nor is
there any legal basis for Petitioner's belief that if a decision
in this case had been rendered earlier (by, for example, denying
HCFA's right under 42 C.F.R. § 498.63 to submit a post-hearing
brief), the Hillman decision would have had no effect on this
case." P. Letter dated March 28, 1997 at 2.
8. Petitioner points out that the DON, Maria Baker,
testified that she did not tell any of the surveyors that R 15
had been wet. P. Br., 14 (citing Tr. 513 -14). However, Mr.
Gaffud's testimony was that the CNAs who put the resident to bed
confirmed the wetness. The record is devoid of any evidence from
Petitioner that this resident was not wet or did not have the
strong urine odor described by HCFA's witness. Therefore,
whether this resident's wetness was in fact confirmed by
Petitioner's DON does not appear to be of critical significance.
9. Petitioner described the DON's testimony as
follows:

She also stated that from March to April 1995,
R15's condition worsened. R15 they [sic] became
terminal, was a DNR (hospice patient) and has since
expired.

P. Br., 14 - 15.
10. Mr. Gaffud explained why his testimony concerned
R 23 when the Statement of Deficiencies (HCFA Ex. 4 at 7)
attributed this incident to R 24. Mr Gaffud testified that the
Statement of Deficiencies contained a typographical error. It
misidentified the resident as R 24 when, in fact, it should have
identified the resident as R 23. Tr. at 237 and 239.
11. However, there is evidence of record that these
three residents were incontinent, as they were among those
residents whose care plans were reviewed by HCFA surveyors during
March and April to verify Petitioner's toileting of incontinent
residents and to ascertain whether Petitioner had a restorative
bladder and bowel program for incontinent residents. HCFA Ex. 4
at 16 - 17; Tr. 227 - 28.
12. Even though the deficiencies relate only to
residents with urinary incontinency problems, I will use the
abbreviation of B & B to denote the type of program Petitioner
was required to have under the regulations to restore as much
bladder function as possible for residents with urinary
incontinency.
13. Petitioner points out that only Ms. Langford
testified with regard to the deficiency under 42 C.F.R. §
483.25(e), and she only made personal observations with respect
to R. 37. P. Br., 25. However, there is no requirement for each
surveyor to testify about his or her own personal observations
which are set forth in a report generated in the ordinary course
of business. The other surveyors' observations concerning R 38
and R 14 were set forth in the Statement of Deficiencies. These
observations are not unreliable or incredible on their face. If
Petitioner disputed these observations concerning R 38 and R 14,
it had the opportunity to subpoena the responsible surveyors to
testify concerning their observations. Petitioner could have
also presented evidence to refute these surveyors' observations,
if Petitioner thought such observations untrue. Petitioner has
not taken these foregoing courses of action. Consequently, the
facially credible observations recorded in the Statement of
Deficiencies concerning R 38 and R 14 stand unrefuted.
14. For several reasons, I will not include an
analysis of the evidence relevant to 42 C.F.R. § 483.25(h)(1).
HCFA has alleged that Petitioner violated this regulation by
failing to have a call light in what Petitioner calls its
hydrotherapy room at the time of the resurvey. HCFA Ex. 4 at 27.
However, as pointed by Petitioner in its written response, the
absence of a call light had been cited as a deficiency under a
different regulation during the February survey. HCFA Ex. 4 at
27; HCFA Br., 56. More importantly, Petitioner believed that
this deficiency from the February survey had been deleted. Id.
I find Petitioner's belief to be credible because even HCFA
admits that the surveyor responsible for citing said deficiency
during the February survey thought that the deficiency had been
deleted by her superiors. HCFA Reply, 28. Under these
circumstances, Petitioner cannot be considered to have had notice
that HCFA would expect the installation of a call light in the
hydrotherapy room by the time of the resurvey in order for
Petitioner to be considered in compliance with 42 C.F.R. §
483.25(h)(1). Therefore, I do not find it appropriate to reach
the merits of HCFA's citation under 42 C.F.R. § 483.25(h)(1).

15. This resident was identified as R 46 in the
February survey and as R 28 during the resurvey. In addition to
long nails, this resident also had uncombed hair and appeared in
need of a shave during the February survey. HCFA Ex. 2 at 81.
HCFA cited the appearance of this resident under a related tag
number in its survey report. Id.