CASE | DECISION | JUDGE

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


SUBJECT:

Carehouse Convalescent Hospital,

Petitioner,

DATE: January 16, 2001
                                          
             - v -

 

Health Care Financing Administration.

 

Docket No. C-00-006
Decision No. CR729
DECISION
...TO TOP

I decide this case as follows:

1. As of November 18, 1999, Petitioner, Carehouse Convalescent Hospital, complied substantially with federal requirements which govern the participation of long-term care facilities in the Medicare program. Consequently, the Health Care Financing Administration (HCFA) was not authorized to terminate Petitioner's participation in Medicare.

2. As of May 20, 1999, and thereafter, Petitioner did not manifest any immediate jeopardy level failures to comply with participation requirements. Consequently, HCFA was not authorized to impose civil money penalties against Petitioner at immediate jeopardy levels ($3,050 per day or higher).

3. As of May 20, 1999, and continuing through November 17, 1999, Petitioner failed to comply substantially with some participation requirements. These deficiencies were substantial but were not at the immediate jeopardy level of noncompliance.

4. Civil money penalties in the amount of $100 per day are appropriate for each day of Petitioner's noncompliance during the period which began on May 20, 1999 and which ran through November 17, 1999.

I. Background

Petitioner is a long-term care facility that is located in Santa Ana, California. It was surveyed on three occasions in 1999 by surveyors employed by the California Department of Health Services (California survey agency). These surveys were completed on May 20, 1999 (May 1999 survey), July 16, 1999 (July 1999 survey), and November 18, 1999 (November 1999 survey). At each of these surveys the surveyors found that Petitioner was not in substantial compliance with federal participation requirements.

At the May 1999 survey the surveyors concluded that, in two respects, Petitioner was deficient to the extent that residents of Petitioner were placed in immediate jeopardy. The surveyors found 13 additional failures by Petitioner to comply substantially with federal participation requirements at the May 1999 survey.

At the July 1999 survey the surveyors found 11 failures by Petitioner to comply substantially with federal participation requirements. None of these alleged failures to comply were at the immediate jeopardy level of noncompliance. At the November 1999 survey, the surveyors found three failures by Petitioner to comply substantially with participation requirements, none of which were at the immediate jeopardy level of noncompliance.

Based on these findings, the California survey agency recommended to HCFA that it impose remedies against Petitioner. Ultimately, HCFA determined to impose remedies. These included civil money penalties of $5,000 per day for the period which runs between May 20, 1999 through June 6, 1999. HCFA based its determination to impose $5,000 per day civil money penalties during this period on its conclusion that Petitioner manifested immediate jeopardy level deficiencies throughout the period. The remedies also included civil money penalties of $1,000 per day for the period which runs between June 7, 1999 and July 15, 1999, and $100 per day for the period which begins on July 16, 1999. HCFA also terminated Petitioner's participation in Medicare based on the findings that were made at the November 1999 survey.

Petitioner requested a hearing. Originally, the case was assigned to another administrative law judge. It was reassigned to me. I held a hearing in Santa Ana, California on June 26 - 29, 2000. Each party called numerous witnesses to testify. I received into evidence exhibits from each party. From HCFA I received into evidence exhibits which are identified as HCFA Ex. 1 - HCFA Ex. 89, and HCFA Ex. 91 - HCFA Ex. 106. I excluded HCFA Ex. 90. From Petitioner I received into evidence exhibits which are identified as P. Ex. 2, P. Ex. 5, P. Ex. 7, P. Ex. 10, P. Ex. 15 - P. Ex. 18, P. Ex. 23 - P. Ex. 25, P. Ex. 27 - P. Ex. 34, P. Ex. 38 - P. Ex. 43, P. Ex. 47, P. Ex. 49 - P. Ex. 53, P. Ex. 55, P. Ex. 57, P. Ex. 74 - P. Ex. 79, P. Ex. 81 - P. Ex. 85, P. Ex. 95 - P. Ex. 97, P. Ex. 99, and P. Ex. 102.

II. Ruling on Petitioner's arguments concerning whether federal regulations are ultra vires or unconstitutional

In its hearing request in this case Petitioner argued that regulations the Secretary had published to implement provisions of the Social Security Act (Act) affecting long-term care facilities were either ultra vires or unconstitutional. HCFA moved to dismiss these arguments, arguing that I was without authority to address them. Previously, I issued rulings which, among other things, deferred my final ruling on the issue of whether I had authority to address Petitioner's arguments. See Rulings Denying Motions (May 10, 2000). I now issue a final ruling that I lack the authority to address them.

I addressed the question of my authority in my decision in Life Care Center at Hendersonville, DAB CR542, at 10 (1998). I held there that I lack authority to decide questions involving the lawfulness of regulations. I concluded that I have the authority to interpret regulations and procedures and to decide whether HCFA has acted properly pursuant to those regulations and procedures. But, I am required to assume that the regulations and procedures under which HCFA acts are lawful.

I reiterate my holding in Life Care Center at Hendersonville. I do not have authority to hear and decide Petitioner's assertions that regulations are either ultra vires or unconstitutional. Petitioner may raise challenges to regulations elsewhere after it has exhausted its administrative remedies.

III. Issues, findings of fact and conclusions of law

A. Issues

The issues in this case are whether:

1. A basis exists to terminate Petitioner's participation in Medicare as a consequence of Petitioner's failure to comply substantially with a Medicare participation requirement or requirements as of the November 1999 survey;

2. A basis exists to impose immediate jeopardy level civil money penalties against Petitioner as a consequence of Petitioner's failure to comply substantially with a Medicare participation requirement or requirements as of the May 1999 survey;

3. A basis exists to impose civil money penalties against Petitioner as a consequence of Petitioner's failure to comply substantially with a Medicare participation requirement or requirements at any time beginning with the May 1999 survey and running through the November 1999 survey; and

4. The civil money penalties that HCFA determined to impose against Petitioner are reasonable.

B. Findings of fact and conclusions of law

I make findings of fact and conclusions of law (Findings) to support my decision in this case. I set forth each finding below as a separate heading. I discuss each Finding in detail.

1. Petitioner was not deficient in complying with participation requirements as of the November 1999 survey. Therefore, there is no basis to terminate Petitioner's participation in Medicare.

The remedies that HCFA imposed against Petitioner include termination of Petitioner's participation in Medicare. Imposition of this remedy rests on Petitioner's alleged noncompliance with federal participation requirements as of the November 1999 survey. The Act authorizes HCFA to terminate a facility's participation in Medicare whenever that facility is found not to be complying substantially with federal participation requirements. Act, section 1866(b)(2). Implementing regulations provide for termination where any failure to comply substantially with participation requirements is present. 42 C.F.R. § 488.456(a); see §§ 488.406(a); 488.412(a). Conversely, HCFA may not terminate a facility's participation where the facility is complying substantially with federal participation requirements.

Petitioner argues that HCFA may terminate a long-term care facility's participation in Medicare only in the circumstance where the facility is deficient in meeting participation requirements at the immediate jeopardy level. Petitioner asserts that, in effect, section 1866(b)(2) of the Act was amended by section 1819(h)(2) of the Act. Petitioner argues additionally that the Departmental Appeals Board decision in Beverly Health & Rehabilitation - Springhill, DAB No. 1696 (1999), which held that HCFA may terminate a nursing facility's participation for a less-than immediate jeopardy level deficiency, is distinguishable and not applicable to this case.

I must sustain HCFA's determination to terminate Petitioner's participation in Medicare if I find that, as of the November 1999 survey, Petitioner was not complying substantially with any federal participation requirement. The regulations do not limit HCFA's authority to terminate participation to a circumstance where immediate jeopardy is present.

I make no finding in this decision as to how the Act should be interpreted. The Secretary has interpreted the Act in her regulations and I am bound by this interpretation. The regulations provide for termination as a remedy in the presence of any failure to comply substantially regardless whether the noncompliance is at the immediate jeopardy level. 42 C.F.R. § 488.456(a). Furthermore, I do not find the decision in Beverly Health & Rehabilitation - Springhill to be distinguishable as is argued by Petitioner. That decision is consistent with 42 C.F.R. § 488.456(a).

The November 1999 survey was the third in a series of three surveys that the California State survey agency conducted of Petitioner's facility in 1999. The issue of Petitioner's compliance with participation requirements as of the November 1999 survey is critical in deciding whether HCFA is authorized to terminate Petitioner's participation in Medicare. If Petitioner failed to comply substantially with even one participation requirement as of November 1999 then HCFA is authorized to terminate Petitioner's participation in Medicare. If Petitioner was complying with participation requirements as of the November 1999 survey then HCFA would not have a basis to terminate Petitioner's participation in Medicare.

The report of the November survey alleges three failures by Petitioner to comply substantially with participation requirements. These alleged deficiencies are stated under headings known as "tags." The tags are cited in the survey report as Tag 151 (HCFA Ex. 49 at 1 - 7); Tag 322 (Id. at 8 - 17); and Tag 325 (Id. at 17 - 25). All three of the alleged deficiencies carry a scope and severity assessment of level "D." I take notice that a level "D" deficiency is the lowest level of deficiency that State survey agencies and HCFA deem to be substantial. There is also a citation in the survey report of an additional deficiency at Tag 241 (Id. at 7 - 8). However, this deficiency carries a scope and severity assessment of level "B" meaning that neither the State survey agency nor HCFA considered it to be substantial.

Below, I analyze the allegedly substantial deficiencies that were identified in the report of the November 1999 survey. My overall conclusion is that the preponderance of the evidence establishes that Petitioner was complying with the participation requirements that are the basis for the deficiency allegations. Therefore, HCFA had no basis to terminate Petitioner's participation in Medicare.

a. Tag 151

The report of the November 1999 survey alleges that Petitioner failed to comply with the requirements of 42 C.F.R. § 483.10(a)(1) and (2). HCFA Ex. 49 at 1 - 7. This regulation provides that a resident of a facility has the right to exercise his or her rights as a resident of the facility and as a citizen of the United States. Additionally, it states that a resident has the right to be free from interference, coercion, discrimination, and reprisal from a facility in the exercise of his or her rights.

The survey report alleges that Petitioner failed to comply with the requirements of the regulation by failing to ensure that a resident was free from coercion. The report alleges that Petitioner transferred a resident who is identified in the survey report as Resident # 8 from one room to another room in Petitioner's facility without consulting with the resident's family. It alleges also that the resident was induced against his will to sign a consent form in which he agreed to the transfer.

I find no deficiency because the allegations of noncompliance are based on unverifiable and unreliable hearsay. The "evidence" of Petitioner's noncompliance consists of hearsay reports of complaints by unnamed members of the resident's family in which they are alleged to have asserted to the surveyors that: they were not notified of the transfer of the resident (HCFA Ex. 49 at 2); an unnamed member of Petitioner's staff told the family members that the transfer was being made because the facility had a right to move the resident inasmuch as the resident's care was being paid for by the State (Id.); and; the resident revealed to the family members that he felt "forced" to sign a document in which he consented to the room change (Id. at 3). Additionally, the family members allegedly witnessed an unnamed social services worker "bending over the resident and verbally prompting him to sign another document." (Id. at 5). According to the survey report the family members asserted that the worker's manner was intimidating. Id. The family members also are alleged to have related that they had a meeting on November 17, 1999, with Petitioner's administrator, social services designee, and director of nursing. Id. at 6. However, the substance of that meeting is not disclosed in the survey report.

I routinely admit hearsay at hearings involving HCFA. I admit hearsay because, in an administrative proceeding that is conducted without a jury, there is little danger that a fact-finder will be swayed by unreliable evidence and because it is more efficient simply to admit the evidence than to spend time ruling on its admissibility at the hearing. However, the fact that I may admit hearsay does not mean that I find it to be reliable. Hearsay evidence is inherently unreliable in most instances. Most rules of evidence, including the Federal Rules of Evidence, find hearsay generally to be inadmissable at trial.

In this case I admitted the survey reports, including the report of the November 1999 survey, even though they contain hearsay. However, I explained to the parties that, in the final analysis, I might find hearsay to be unreliable. Trial Transcript (Tr.) at #35 - #38.

The hearsay that is at issue here is unverified and unreliable. HCFA did not establish even a prima facie case that Petitioner failed to comply with 42 C.F.R. § 483.10(a)(1) and (2). It is not possible to discern whether the surveyors accurately reported the statements that are recited in the survey report, or whether the statements are unbiased and otherwise credible, even if they are accurately reported. HCFA did nothing at the hearing to prove that the assertions in the survey report are reliable. For example, HCFA might have called as witnesses members of the resident's family to attest to the truth of the alleged statements. HCFA did not call any of these individuals.

b. Tag 322

The report of the November 1999 survey alleges that Petitioner failed to comply substantially with the requirements of 42 C.F.R. § 483.25(g)(2). HCFA Ex. 49 at 8 - 17. This regulation states that a resident who is fed by a naso-gastric or gastrostomy tube receives the appropriate treatment and services to prevent aspiration, pneumonia, diarrhea, vomiting, dehydration, metabolic abnormalities, and nasal-pharyngeal ulcers, and to restore, if possible, normal eating skills. The report alleges that Petitioner failed to ensure that a resident fed by gastrostomy tube, who is identified in the survey report as Resident #3, received appropriate treatment and services to prevent the resident from suffering dehydration and metabolic abnormalities.

The resident in question is a long-term resident of Petitioner's facility. He was hospitalized between October 11 - 15, 1999, suffering from pneumonia and other medical problems. He returned to Petitioner's facility on October 15, 1999. The resident was fed and given water via a gastrostomy tube from readmission until after the date of the survey report.

The survey report makes numerous allegations concerning the allegedly deficient care that Petitioner gave to Resident # 3. However, the overriding assertion that emerges from the survey report is that Petitioner systematically failed to administer nutrition and water to Resident # 3 in a manner which was consistent with the tube feeding orders that were given by the resident's physician.

The overriding assertion emerges from a number of examples that the survey report identifies as allegedly deficient conduct by Petitioner's staff. First, the report seems to say that the resident's treating physician initially gave the resident an incorrect prescription for tube feeding and water.

Second, the report asserts that on October 19, 1999, Petitioner's dietary services supervisor made an initial assessment of the resident. It notes that the supervisor indicated that the resident's case would be referred to a registered dietician for a tube feeding assessment. However, according to the report, there is "no evidence" that a licensed nurse or a registered dietician was notified "immediately" of the nutritional concerns regarding Resident # 3. HCFA Ex. 49 at 10.

Third, the report notes that, on October 20, 1999, a registered dietician recommended that the resident's tube feeding be increased to 85 cc per hour for 22 hours per day and that the feeding tube be flushed with 250 cc of water per shift. It notes also that, on October 21, 1999, a physician's order was obtained which increased the feeding and water flushes as per the dietician's recommendations. HCFA Ex. 49 at 11. The report asserts that on several dates after October 21, 1999 and running through November 1, 1999, the resident received substantially less formula and water than had been prescribed. Id. at 12.

Fourth, the report notes that, on November 2, 1999, the registered dietician again assessed Resident # 3. At this time the dietician recommended that the resident's formula be changed to Nutren 1.5, at 85 cc per hour for 22 hours per day. The dietician also recommended that the resident receive water flushes at the rate of 300 cc per shift. HCFA Ex. 49 at 12. However, Petitioner did not receive a physician's order for a change in the resident's nutrition and fluid intake until November 4, 1999, three days after the dietician recommended a change. Id. at 13. The report alleges that, between November 8 - 11, 1999, the resident's intake of formula and water was inconsistent with that which had been recommended by the dietician and ordered by the resident's physician. Id. at 13 - 14.

Fifth, the report relates the observations of a surveyor. The surveyor asserts that, at three times on November 17, 1999, observations were made of the resident. These observations were recorded at 8:10 a.m., 10:45 a.m., and 11:30 a.m. No formula was being administered during these observations, although formula was administered at a subsequent observation that was made at 12:45 p.m. on November 17, 1999. The report contends that, on that date, the resident could not have received the 650 cc of formula that the nurse documented as being administered to the resident during the nursing shift which included the surveyor's observations at various times that no formula was being administered to the resident.

Finally, the report contains some observations about the state of the resident's health. It notes that, during the late October - early November 1999 period, the resident lost weight. Additionally, the resident developed a urinary tract infection and had laboratory test results indicative of metabolic problems. The report also notes that, on November 17, 1999, the resident's urine was observed to be "dark caramel in color and very concentrated." HCFA Ex. 49 at 14. The report does not specifically assert that any of these problems were the consequence of the alleged failure by Petitioner to provide nutrition and water to the resident consistent with the requirements of 42 C.F.R. § 483.25(g)(2). However, HCFA asserts that Petitioner caused the resident to suffer "actual harm" and argues that the medical problems that are identified in the survey report are the consequence of Petitioner's allegedly improper administration of nutrition and water to the resident.

Petitioner established by a preponderance of the evidence that it complied substantially with the requirements of 42 C.F.R. § 483.25(g)(2). First, I find no basis to conclude that Petitioner had a duty to challenge the initial prescription for nutrition and water that was given by the resident's physician. Moreover, Petitioner not only assessed the resident's needs but obtained a revised prescription from the resident's physician which reflected that assessment.

The regulation does not require a facility to challenge the nutrition orders that are given by a resident's physician. Nonetheless, in this case the record establishes that Petitioner's staff did assess the resident's dietary and fluid needs shortly after the resident was readmitted to the facility and it recommended a change in the volume of nutrition and water that was being administered. As is noted by the survey report, within four days of the resident's readmission to the facility, Petitioner's dietary services supervisor had looked at Petitioner's case and determined to refer the matter to Petitioner's registered dietician. The survey report's finding that the matter was not referred promptly to the dietician is incorrect. The registered dietician completed a review of the resident's nutritional needs and made recommendations for a change in the physician's orders on

October 20, 1999, only one day after the resident was seen by the dietary services supervisor. HCFA Ex. 49 at 11. A new order for increased tube feedings and water flushes was obtained from the resident's physician on the next day, October 21, 1999. Id.

Indeed, the initial assessment of the resident by Petitioner's dietary staff was not the only assessment that the staff made of the resident's nutrition and water needs. As the survey report notes, the dietician reassessed the resident on November 2, 1999 and recommended an increase in nutrition which was subsequently ordered by the resident's physician. The survey report criticizes Petitioner for not receiving an updated physician's order for three days after the recommendation was made. But, the report cites nothing which would suggest that the delay was occasioned by some error or omission of Petitioner or its staff.

Second, I conclude that Petitioner administered formula and water to the resident in substantial compliance with the resident's physician's orders. By carrying out these orders Petitioner complied with the requirements of 42 C.F.R. § 483.25(g)(2).

The evidence which HCFA relies on as support for the survey report's conclusion that Petitioner failed to administer nutrition and water to Resident # 3 in accord with his physician's orders consists of the Input and Output record that was maintained for the resident. P. Ex. 55 at 173 - 176. On its face, this document shows that the resident was not receiving nutrition and water as had been prescribed. Close examination of the Input and Output record shows that, on nearly all of the dates at issue, records for the 11 p.m. - 7 a.m. shift show that the resident received nutrition and water at a less-than-prescribed rate during that shift. If the Input and Output record is accurate, the discrepancy between what was prescribed to the resident and what the resident received can be explained almost completely by an under supply of nutrition and water to the resident during the 11 p.m. - 7 a.m. shift. Id.

However, I do not find that the Input and Output record accurately records the quantities of nutrition and water that Petitioner's staff gave to the resident. I find that the nurse who was on duty during the 11 p.m. - 7 a.m. shift consistently under-recorded information on the Input and Output record. Petitioner's witness, Ms. Joan Redden, testified credibly that the pump on a tube feeding machine is preset to deliver nutrition and water to a patient at a calibrated rate of flow. Tr. at 950. In order for the pump to deliver nutrition and water at less than a preset rate over any given time the operator has to reset the pump to deliver at the lower rate. Id. at 950 - 951. It is highly improbable that a nurse would reset the pump consistently - and contrary to the resident's physician's orders - during that nurse's shift in order to deliver nutrition and water to the resident at a lower rate than had been prescribed and for which the pump was set to deliver on the other two shifts (7 a.m. - 3 p.m. and 3 p.m. - 11 p.m.). It is far more likely that the nurse who recorded input and output on the 11 p.m. - 7 a.m. shift misread the pump calibration and, therefore, misrecorded the pump's output to the resident.

Therefore, I find that the record shows that Resident # 3 actually was receiving nutrition and water as prescribed by the resident's physician. Thus, the weight of the evidence is that Petitioner's staff complied with the physician's orders.

Ms. Redden's testimony is corroborated by documentary evidence. The resident's medication administration record and the weekly nursing summary for the resident both show that the resident received nutrition and water consistent with his physician's orders. P. Ex. 55 at 94, 118.

There were occasions when Petitioner's staff administered slightly more or slightly less nutrition and water to Resident # 3 than was prescribed by the resident's physician. For example, I do not doubt the accuracy of the surveyor's observations on the morning of October 17, 1999. On that occasion the feeding tube was disconnected from the resident for nearly three hours. But, identifying a few minor deviations from the regime that was prescribed by the resident's physician does not support a contention that Petitioner systematically delivered inadequate quantities of nutrition and water to Resident # 3. I note that the physician prescribed that the resident be administered tube feeding 22 hours per day. The interruption which was observed on October 17, 1999 was for approximately three hours. Thus, the difference between what was prescribed for the resident and what was observed was minor.

I do not find to be relevant HCFA's assertion that the resident's medical problems were the consequence of failures by Petitioner's staff to administer nutrition and water consistent with the orders given by the resident's physician. This allegation was not made explicit in the report of the November 1999 survey. Petitioner was not given adequate notice that HCFA intended to assert that the resident's problems were the result of the way in which Petitioner administered nutrition and water to the resident. Indeed, the scope and severity rating of "D" that the State survey agency surveyors ascribed to the alleged deficiency at Tag 322 is based on findings that Petitioner's allegedly deficient conduct posed a potential for harm to the resident and not on findings that the conduct actually caused the resident to experience harm. Furthermore, the evidence shows that Petitioner actually administered nutrition and water to the resident consistent with what was prescribed for the resident.

Moreover, the resident's medical problems can be explained by the resident's overall medical condition. Shortly prior to the time period at issue the resident had been hospitalized for an acute illness. He was convalescing from that illness during the period in question. His condition during that period improved markedly after a change was made in the antibiotic that was being administered to him. Tr. at 952. The resident's dark colored urine can be explained by the fact that he had blood in his urine. P. Ex. 55 at 42, 65.

c. Tag 325


The report of the November 1999 survey alleges that Petitioner failed to comply substantially with the requirements of 42 C.F.R. § 483.25(i)(1). HCFA Ex. 49 at 17 - 25. This regulation requires that a facility, based on a comprehensive assessment of a resident, ensure that the resident maintains acceptable parameters of nutritional status, such as body weight and protein levels, unless the resident's clinical condition demonstrates that this is not possible.

The survey report alleges that Petitioner failed to comply with the requirements of the regulation in providing care to a resident who is identified as Resident # 5. The principal allegations are that Petitioner: (1) allowed the resident to sustain a "significant weight loss" during a period that began on October 5, 1999, the date of the resident's admission to Petitioner's facility and which ran through the date of the survey; (2) failed to monitor the resident's allegedly significant weight loss; (3) failed to undertake interventions to address the resident's allegedly significant weight loss; and (4) failed to refer the resident to its Weight Variance Committee for assessment of the resident's weight loss. HCFA Ex. 49 at 17 - 25; HCFA's posthearing brief at 7 - 9.

HCFA's allegations notwithstanding, the preponderance of the evidence establishes that Petitioner maintained adequate parameters of nutritional status for Resident # 5. I find that Petitioner complied substantially with the requirements of 42 C.F.R. § 483.25(i)(1).

The survey report and HCFA's assertions concerning Petitioner's alleged noncompliance with the regulation focus on the weight loss allegedly sustained by Resident # 5 during the resident's stay at Petitioner's facility. During the period between October 5, 1999, the date of the resident's admission, and November 17, 1999, the resident's weight declined from 162 pounds to 146 pounds, for a net loss of 16 pounds. HCFA Ex. 49 at 17 - 25; HCFA Ex. 56. HCFA places great significance on this weight loss as an indicator that Petitioner failed to supply the resident with adequate nutrition.

Weight loss by a resident does not establish per se a failure by a facility to comply with the requirements of 42 C.F.R. § 483.25(i)(1). Weight loss may be an important indicator of inadequate nutrition but weight loss in an individual case does not mean necessarily that a resident received inadequate nutrition. Weight loss may be explained by factors other than nutrition. Moreover, 42 C.F.R. § 483.25(i)(1) does not require a facility to prevent each of its residents from losing weight. All that the regulation requires is that a facility provide each of its residents with adequate nutrition. If a facility provides adequate nutrition to a resident it is complying with the requirements of the regulation even if the resident loses weight despite the nutrition that is being supplied to that resident.

Here, the evidence shows that Resident # 5 lost weight, but it does not establish that the weight loss was due to Petitioner's inadequate supply of nutrition to the resident. Nor does it demonstrate that Petitioner paid inadequate attention to the resident's nutrition needs or failed to address the resident's weight loss in its assessments of the resident or in the care that it prescribed for the resident.

Petitioner cannot be held responsible for the nutrition that the resident received or the weight loss that the resident sustained while the resident was not residing at Petitioner's facility. Nearly one half of the weight loss sustained by the resident between October 5, 1999 to November 17, 1999, happened while the resident was not at Petitioner's facility. The resident was hospitalized between November 3 - 8, 1999, for assessment of the resident's behavior. During that five-day period the resident lost seven pounds. HCFA Ex. 49 at 21.

The assertion that Petitioner failed to monitor the resident's weight is incorrect. Petitioner's staff weighed the resident regularly between October 5, 1999 and November 17, 1999. HCFA Ex. 56 at 13. HCFA asserts in its posthearing brief that Petitioner failed, in weighing the resident, to take into account that a cast worn by the resident was changed during the resident's stay at the facility, potentially changing the resident's weight. However, the survey report fails to make this allegation. Moreover, HCFA introduced no evidence to show that the variation in weight caused by changing casts on the resident was so significant that it was necessary for the facility to ascertain the weights of the casts that the resident wore during her stay at the facility.

Nor is it correct to say that Petitioner's staff failed to undertake interventions to address the resident's weight. The resident was, in fact, assessed regularly by Petitioner's dietician and the dietician introduced changes in the resident's diet as a consequence of those assessments. HCFA Ex. 56 at 7 - 8, 11. The resident's treatment records show that the dietician reviewed the resident's case on the average of about once per week between the resident's admission and the date of the survey. Id. On two occasions during that period the dietician adjusted the resident's diet. Id.

HCFA has offered no evidence to show that the diet that was prescribed for the resident was inadequate or that the dietician's assessments of the resident were incorrect. Nor has HCFA shown that the resident demonstrated any metabolic changes to indicate malnutrition. In fact, the resident's rising serum albumin levels demonstrate that the resident was adequately nourished. Tr. at 1110. During the resident's entire stay at Petitioner's facility, the resident's weight remained substantially above her ideal body weight of 100 pounds. At the hearing, HCFA argued, for the first time that Petitioner should have tracked the resident's weight using the resident's usual body weight and not the resident's ideal body weight as a baseline standard. HCFA's posthearing brief at 8. I find this assertion to be irrelevant, inasmuch as HCFA failed to give Petitioner notice that it intended to raise this issue at any time between the November 1999 survey and the hearing. Petitioner was not given reasonable notice of the assertion.

I do not find that Petitioner's failure to refer Resident # 5 to Petitioner's Weight Variance Committee for evaluation of the resident's weight loss is a failure by Petitioner to comply with the requirements of 42 C.F.R. § 483.25(i)(1). The regulation does not require a facility to undertake specific assessment or treatment regimes for weight loss. Moreover, the evidence establishes that Petitioner was providing adequate interventions to address the resident's weight.

Finally, the evidence strongly indicates that the resident's weight loss was due to other factors besides inadequate nutrition. Petitioner's expert, Dr. Dennis Stone, who specializes in geriatric medicine, testified credibly that the resident received adequate nutrition. Tr. at 1110. The resident was receiving Lasix, a diuretic. Weight loss is a consequence of the administration of Lasix. HCFA Ex. 56 at 11; see Tr. at 1109. The resident was demented and markedly agitated. Tr. at 1109. Indeed, this resident was so agitated that she was hospitalized for evaluation of her agitation. Agitation may cause an individual to burn calories and may contribute to weight loss despite adequate nutrition. Id.

2. The report of the May 1999 survey alleges at Tags 224 and 353 that Petitioner failed to comply with two participation requirements to the extent that residents of Petitioner were placed in immediate jeopardy. In fact, Petitioner complied substantially with these participation requirements.

The report of the May 1999 survey asserts that in two instances Petitioner's alleged noncompliance with participation requirements was so egregious as to place residents of Petitioner in immediate jeopardy. An "immediate jeopardy" level deficiency is one that causes or is likely to cause serious injury, harm, impairment, or death to residents. 42 C.F.R. § 488.301. The two alleged immediate jeopardy deficiencies are cited at Tags 224 and 353 of the report of the May 1999 survey. HCFA Ex. 1 at 2 - 10, 52 - 55.

Petitioner complied substantially with the participation requirements that are cited at Tags 224 and 353. Not only is there no persuasive evidence of immediate jeopardy but the preponderance of the evidence shows that Petitioner was in compliance with the requirements that are the basis for the immediate jeopardy tags.

I stress that I do not make findings here whether HCFA's immediate jeopardy level assessments were clearly erroneous. A finding as to the level of Petitioner's noncompliance under Tags 224 or 353 would only be appropriate if I were to conclude that Petitioner had, in fact, not complied substantially with the participation requirement on which either of the tags is based. In that event, I would conclude that HCFA's assessment of immediate jeopardy level deficiencies was incorrect only if I were to find the assessment to be clearly erroneous. See 42 C.F.R. § 498.60(c)(2). But, it is unnecessary for me to address that issue where, as I find here, I conclude that there is no basis for finding any deficiency.

a. Tag 224

This is one of the two immediate jeopardy level deficiencies that were cited in the report of the May 1999 survey. The report alleges that Petitioner failed to comply substantially with the requirements of 42 C.F.R. § 483.13(c)(1)(i). HCFA Ex. 1 at 2 - 10. The regulation states as follows:

© Staff treatment of residents. The facility must develop and implement written policies and procedures that prohibit mistreatment, neglect, and abuse of residents and misappropriation of resident property.

(1) The facility must -

(i) Not use verbal, mental, sexual, or physical abuse, corporal punishment, or involuntary seclusion; . . . .

The survey report asserts that Petitioner failed to comply with the requirements of the regulation because Petitioner allegedly failed to ensure that 15 of its residents were not neglected. The report cites examples of alleged neglect of residents by Petitioner's staff as evidence to support the report's conclusion that Petitioner failed to comply with the regulation. It is unclear why the survey report cites subpart (i) of the regulation. The report makes no allegations that Petitioner abused, punished, or secluded any of its residents.

Petitioner argues that the allegations of deficiency do not actually state a finding that Petitioner was not complying with 42 C.F.R. § 483.13(c)(1)(i). According to Petitioner, that is because the report fails to address whether Petitioner developed or implemented policies and procedures that prohibited neglect. Petitioner asserts that the report contains only evidence of isolated examples of neglect which do not address the issue of whether Petitioner developed and implemented policies to prevent neglect. I agree with Petitioner's analysis of the regulation that the regulation focuses on a facility's development and implementation of an anti-neglect policy. However, I conclude that it is possible to infer a failure by a facility to implement its policy if sufficient examples of neglect at a facility establish a systemic failure by the facility to do so. Therefore, I conclude that the allegation of noncompliance under Tag 224 is not defective on its face.

However, there is no persuasive evidence that Petitioner failed to protect its residents from neglect. To a large extent HCFA did not establish even a prima facie case that Petitioner failed to comply with the requirements of 42 C.F.R. § 483.13(c)(1). Petitioner rebutted by a preponderance of the evidence those few instances where HCFA offered prima facie evidence of noncompliance.

The survey report cites 11 examples of alleged failure by Petitioner to prevent its residents from neglect. These consist of the following:

• An unidentified resident allegedly complained that he or she had requested on more than one occasion to be taken to the bathroom. However, female nursing assistants employed by Petitioner allegedly had refused to do so and allegedly had told the resident to "go to the bathroom in . . . [his or her] bed linens." HCFA Ex. 1 at 4.

• Another resident - who requested to remain anonymous - allegedly complained that he or she had been told to use his or her bed linens in lieu of being taken to the bathroom. HCFA Ex. 1 at 4 - 5.

• A resident who is identified as Resident # 7 allegedly complained that staff sometimes takes "forever" to provide assistance in using the bathroom. He allegedly asserted that on an evening shortly prior to the survey he had asked for assistance and that two female aids had came to his room, giggled, and left. As a consequence, the resident allegedly told the surveyor that he was incontinent in his bed. This resident also allegedly stated that, in desperation, he had requested that staff diaper him. The resident's wife allegedly stated that she had witnessed Petitioner's staff respond to a call light by turning the light off, leaving with the promise to return shortly, but not returning. HCFA Ex. 1 at 5 - 6.

• A surveyor heard a resident who was identified as resident # 6, yelling for help to use the bathroom. The resident was documented as incontinent, needing help with ambulation, and having highly impaired vision. The resident's request was not responded to by Petitioner's staff for 15 minutes. HCFA Ex. 1 at 6 - 7.

• An unidentified resident who participated in a group meeting allegedly complained that Petitioner is short staffed and that her roommate had to wait all night in wet diapers before she was changed. HCFA Ex. 1 at 7.

• Six unidentified residents allegedly complained at a group meeting that their call lights were not being answered timely. HCFA Ex. 1 at 7.

• Three unidentified residents allegedly stated at a group meeting that they feared that they would experience "repercussions" from Petitioner's staff if they complained. HCFA Ex. 1 at 8.

• An unidentified family member of a resident who is identified as Resident # 1 allegedly asserted that the resident had a lot of diarrhea and complained that Petitioner's staff was slow in dealing with it. HCFA Ex. 1 at 8.

• An unidentified family member of a resident, apparently Resident # 1, allegedly stated at an interview that Petitioner's staff had not helped the resident with the resident's bowel and bladder needs. HCFA Ex. 1 at 9.

• A review of the clinical record of a resident who is identified as Resident # 8, who was first admitted to Petitioner's facility on May 10, 1999, established that, as of May 18, 1999, the resident's personal property inventory list form had not been filled out. Petitioner's policies concerning maintaining an inventory of its residents' personal property allegedly require that the form be completed at the time of each resident's admission. HCFA Ex. 1 at 9 - 10.

• An unidentified resident who was interviewed on May 19, 1999, allegedly stated that Petitioner's staff became disgusted with the residents because the residents needed so much help. The resident allegedly said that staff could tell when residents had to use the bathroom but that residents couldn't get necessary help from the staff in time to make use of the bathroom facilities. HCFA Ex. 1 at 10.

What is evident on review of these examples of alleged noncompliance by Petitioner is that nearly all of the examples rest on hearsay. Not only are most of the allegations hearsay, but a very large proportion of them are attributed to unidentified individuals.

The hearsay that HCFA relies on to support the findings made under Tag 224 is highly unreliable and of no probative value. For the most part, there is no way to test either the accuracy of the statements that the survey report attributes to various residents or family members of residents nor is there any way to test the credibility of those statements.

The probative value problems created by hearsay are worsened by the fact that most of the hearsay that HCFA relies on is attributed to anonymous sources. A facility that is the target of anonymous hearsay complaints cannot reasonably be expected to be able to respond to those complaints. In this case HCFA waited until the last possible moment to reveal the sources of the anonymous hearsay complaints that are cited in the survey report. On June 7, 2000, HCFA, for the first time and more than a year after completion of the May 1999 survey, provided Petitioner with information to identify the residents whose alleged statements were reported as anonymous complaints in survey reports. Previously, I ruled that such information must be excluded from the record of the hearing. See Rulings on Parties' Motions, Requests, and Objections (June 9, 2000). I concluded that Petitioner would be prejudiced if I allowed HCFA to identify these residents for the first time so close to the scheduled June 26, 2000 start of the hearing. But, even had I allowed the residents to be identified on the record at the hearing, their identification would not have changed the fact that all of the allegations that are attributed to these residents are hearsay, and HCFA failed to corroborate the allegations.

The surveyors who conducted the May 1999 survey could have made efforts to verify the allegations that were attributed to residents and family members. For example, they could have tested the assertions that residents were not being assisted in using the bathroom by inspecting the residents and their bed linens. However, HCFA offered no evidence to show that the surveyors made such an inspection or that they found any examples of residents lying in soiled linens. The surveyors could have looked for other physical evidence that supported the allegations that were attributed to residents or family members, such as accumulations of urine or feces at the facility. However, HCFA offered no evidence to show that the surveyors searched for such evidence or that they found it.

Furthermore, HCFA offered no evidence to demonstrate the presence of any of the consequences that one might expect if, in fact, the staff had neglected to attend to the residents' bowel and bladder needs. It offered no evidence to show, for example, that residents suffered pressure sores as a consequence of neglect of residents' bowel and bladder needs by staff, or that there was an elevated rate of urinary tract infections at Petitioner's facility.

Some of the allegations that are made under Tag 224 are based on personal observations by surveyors or on their review of Petitioner's records. These consist of the observations that were made concerning Resident # 6's demands to be assisted to the bathroom and the review of Resident # 8's records which established that the resident's personal property inventory form had not been completed. However, while these observations may have been accurate, they failed to produce evidence that the potential for even minimal harm existed in the manner in which Petitioner's staff dealt with Resident # 6 or Resident # 8.

In the case of Resident # 6, 15 minutes was the total amount of time that elapsed between the resident's initial request to be assisted to the bathroom and the staff's provision of assistance to the resident. There is no evidence that the resident was incontinent during that brief period. Moreover, the weight of the evidence proves that Resident # 6 was a demented individual who chronically cried out for help from Petitioner's staff as an attention-getting device. P. Ex. 31 at 143 - 144. It is not clear that the resident had a legitimate need that Petitioner's staff was late in meeting. Indeed, Petitioner's staff would be acting inappropriately if it rushed to aid this resident every time she cried out for help in light of her dementia and the fact that the resident cried out for help as an attention-getting device.

With respect to Resident # 8, I do not find that the failure of Petitioner's staff to complete a property inventory form for the resident at the time of the resident's admission to Petitioner's facility posed a potential for more than minimal harm to the resident. The resident had barely resided in the facility for a week. HCFA offered no evidence to show that any items had been taken from the resident or that the resident or the resident's family had complained that items were stolen.

b. Tag 353

Tag 353 is the other immediate jeopardy level deficiency citation in the report of the May 1999 survey. The report alleges that Petitioner failed to comply with the requirements of 42 C.F.R. § 483.30(a)(1) and (2). The regulatory language in question states as follows:

(a) Sufficient staff. (1) The facility must provide services by sufficient numbers of each of the following types of personnel on a 24-hour basis to provide nursing care to all residents in accordance with resident care plans:

(i) Except when waived under paragraph © of this section, licensed nurses; and

(ii) Other nursing personnel.

(2) Except when waived under paragraph © of this section, the facility must designate a licensed nurse to serve as a charge nurse on each tour of duty. . . .

The survey report alleges that, based on interviews with residents, family members, and facility staff, "the facility failed to provide adequate nursing staff to provide services to help the residents attain or maintain their highest practicable physical, mental and psychosocial well-being." HCFA Ex. 1 at 52 - 53. The report contains no allegation that Petitioner failed to designate a licensed nurse to serve as a charge nurse on each tour of duty.

The report cites five examples of the alleged failure of Petitioner to provide adequate nursing staff. These consist of the following:

• Interviews with unidentified residents and family members allegedly revealed that residents were not getting necessary help for their need to use the bathroom. HCFA Ex. 1 at 53.

• An unidentified resident is alleged to have complained that nurses who are busy providing care will not assist residents but will make residents wait for other nurses to provide care. HCFA Ex. 1 at 53.

• An unidentified family member of a resident allegedly stated that a nursing assistant was observed to attempt to clean fecal matter from a resident by using a dry towel. HCFA Ex. 1 at 54.

• Nursing assistants allegedly were unfamiliar with the names of the residents to whom they were assigned to provide care. HCFA Ex. 1 at 54.

• Petitioner allegedly obtained the services of a licensed nurse to provide care to Petitioner's residents. The nurse allegedly was not given orientation and was not familiar with the care needs of the resident to whom the nurse was assigned. HCFA Ex. 1 at 54 - 55.

The allegations in the survey report do not make out a prima facie case that Petitioner failed to comply with the requirements of 42 C.F.R. § 483.30(a)(1) and (2). The allegations rest almost exclusively on hearsay that is attributed to anonymous sources. I do not find these allegations to be credible for reasons that I have discussed in detail elsewhere in this decision. More important, even if the allegations are true, they do not describe a failure by Petitioner to comply with the requirements of the regulation.

The regulation which is the basis for the deficiency citation made at Tag 353 requires that a facility provide services to its residents "by sufficient numbers" of designated nursing staff. 42 C.F.R. § 483.30(a)(1) (emphasis added). The regulation is aimed at assuring that a facility maintain adequate numbers of staff. It does not directly address quality of care or quality of life in a facility although, obviously, it assumes that a facility that has inadequate numbers of staff on hand may not be able to provide a good quality of care or life to its residents. Life Care Center of Hendersonville, DAB CR542, at 43 (1998). Quality of care and life issues are addressed by other regulations. Id.

In the Life Care Center of Hendersonville case, I addressed specifically the issue of what evidence is relevant to establishing whether a facility maintains inadequate numbers of staff. I held that:

[t]he staffing at a facility must be looked at directly in order to decide whether staffing is adequate. The issue of whether a facility has adequate numbers of care-givers on its staff may not be decided by looking only at the quality of care provided by the staff or at the quality of life that is given to residents. That is because there may be more than one explanation for a facility's not providing care of a good quality or an acceptable quality of life to its residents. A facility may have adequate numbers of staff on board and may be providing inadequate care and an inadequate quality of life. By the same token, a facility may have inadequate numbers of staff on board and these individuals may be providing an excellent quality of care and life to the facility's residents.

DAB CR542, at 43

The allegations in the survey report exclusively address the quality of care or life at Petitioner's facility. The survey report alludes to no direct evidence to show that Petitioner maintained inadequate numbers of nursing staff. For this reason the allegations in the report, even assuming them to be true, do not make out a prima facie case of noncompliance by Petitioner with the staffing regulation.

HCFA now argues that data supplied by Petitioner to HCFA shows that Petitioner maintained inadequate staffing levels especially when staffing levels are evaluated in terms of the needs of Petitioners' residents. HCFA's posthearing brief at 39 - 40; see HCFA Ex. 28 at 3. HCFA now asserts that Petitioner required a higher than average rate of staffing to deal with an extremely dependent population of residents who suffered from incontinence problems. Id. It contends that Petitioner failed to provide adequate staffing to meet these alleged needs and argues, moreover, that Petitioner's staffing was low when measured against the standards that are followed by other nursing facilities in California. Id.

At the hearing, I allowed HCFA some leeway to make its case. However, I now find HCFA's evidence, and arguments that it makes in its post hearing brief that Petitioner had inadequate staffing levels as of the May 1999 survey, to be irrelevant. I do not find HCFA's arguments to be relevant because to accept them at this late date would irreparably prejudice Petitioner. HCFA gave Petitioner no notice that it intended to argue that Petitioner's residents had unique needs which required Petitioner to maintain higher than average levels of nursing staff. Nor did HCFA give Petitioner notice of its contention that Petitioner's staffing was low by California standards. These arguments were raised by HCFA for the first time on the record of the hearing that commenced on June 26, 2000. There is nothing in the report of the May 1999 survey which asserts HCFA's arguments. Nor did HCFA make them at any time between the survey and the hearing which commenced on June 26, 2000. HCFA did not tell Petitioner that Dr. John Schnelle, the expert on whose testimony HCFA relied to assert that Petitioner's staffing was inadequate, would be testifying about that subject. HCFA's Final List of Proposed Witnesses at 2 - 3. Petitioner was not given any opportunity to prepare a defense to HCFA's arguments.

Although it was not necessary for Petitioner to rebut HCFA's last-minute arguments concerning the adequacy of Petitioner's staffing, I conclude that the weight of the evidence establishes that Petitioner, in fact, had adequate numbers of nursing staff at its facility when measured by the requirements of California law. First, Petitioner demonstrated that the analysis that Dr. Schnelle employed to conclude that Petitioner's staffing was inadequate was flawed in significant respects. In particular, Dr. Schnelle calculated Petitioner's staffing ratios by assuming, erroneously, that Petitioner segregated its patients as Medicare patients and other patients and allocated its staffing accordingly. See Tr. at 613. This incorrect assumption led him to allocate disproportionate amounts of Petitioner's staff time to Medicare residents and to conclude that Petitioner was "understaffed" with respect to its non-Medicare residents.

Second, Petitioner demonstrated that its staffing actually complied with the requirements of California State law. The federal staffing regulation does not provide any numeric standard by which the adequacy of the numbers of a nursing facility's staff may be judged. 42 C.F.R. § 483.30(a)(1) and (2). I find that, in the absence of an explicit standard in the regulation, it is reasonable to assume that facilities which comply with applicable State standards are complying with the staffing requirements of the regulation. See Life Care at Hendersonville, DAB CR542, at 46. California State law requires a facility to provide 3.2 hours of staff time per patient per day. Cal. Health & Safety Code § 1276.5 (West's 1999). Petitioner demonstrated that it exceeded the requirements imposed by California law. Tr. at 761; P. Ex. 74; P. Ex. 75.

3. As of the May 1999, survey Petitioner manifested four non-immediate jeopardy level deficiencies.

I find that, as of the May 1999 survey, Petitioner was not complying substantially with four of the thirteen participation requirements which are cited under non-immediate jeopardy level deficiency tags. These deficiencies are described at Tags 250, 309, 319, and 324 in the report of the May 1999 survey. In all other respects, either HCFA failed to establish a prima facie case of noncompliance or Petitioner proved by the preponderance of the evidence that it was complying with participation requirements.

a. Tag 171

The report of the May 1999 survey alleges that Petitioner failed to comply substantially with the requirements of 42 C.F.R. § 483.10(n). HCFA Ex. 1 at 1 - 2. The regulation provides that an individual resident of a facility may self-administer drugs if a facility's interdisciplinary team has determined that it is safe for the resident to do so. The survey report alleges that, in one instance, a resident of Petitioner's facility was permitted to self-administer drugs without there being any documentation that Petitioner's interdisciplinary team had determined that it was safe for the resident to do so.

The specific allegation that is made in the survey report is that one of Petitioner's residents, identified as Resident # 21, had a bottle of Robitussin honey cough syrup at her bedside. HCFA Ex. 1 at 2. The resident allegedly stated that she had the medicine for two months, which she took when she needed it, and that Petitioner's staff was aware of her use of the medicine. Review of the resident's records allegedly showed no evidence that Petitioner's interdisciplinary team had determined that it was safe for the resident to self-administer medication. Id.

There is no persuasive evidence that Petitioner failed to comply substantially with the requirements of 42 C.F.R. § 483.10(n). The statement that is attributed to Resident # 21, that Petitioner's staff knew that the resident had a bottle of cough syrup, is hearsay and is not verified by additional evidence. Petitioner would not have a duty to have its interdisciplinary team review the resident's use of cough syrup if its staff was unaware that the resident was using cough syrup. But, more important, there is no evidence that the resident's use of cough syrup, assuming that its use was known to Petitioner's staff, posed even the threat of minimal harm to the resident. HCFA offered no evidence to make out even a prima facie case that Robitussin contains ingredients that might be harmful to an individual if misused by that individual. Petitioner's expert, Dr. Stone, testified credibly that a resident could have consumed the entire bottle of Robitussin without experiencing harm. Tr. at 1114.

b. Tag 225

The report of the May 1999 survey alleges that Petitioner failed to comply substantially with the requirements of 42 C.F.R. § 483.13(c)(1)(ii). HCFA Ex. 1 at 10 - 16. In fact, the allegations of noncompliance in the survey report all address alleged failures by Petitioner to comply with other subsections of the regulations at 42 C.F.R. § 483.13(c)(2), (3), and (4). These subsections require that a facility must:

• ensure that all alleged violations involving mistreatment, neglect, or abuse, including injuries of unknown source, and misappropriation of resident property, are reported immediately to the facility's administrator and to other officials in accordance with applicable State law;

• have evidence that all alleged violations are thoroughly investigated and must prevent further potential abuse while an investigation is in progress, and;

• report the results of all investigations to the facility's administrator and other appropriate officials within five working days of an incident and take appropriate corrective action if a violation is verified.

The survey report alleges that, in five specific instances, Petitioner failed to "ensure all allegations of neglect, injuries of unknown origin and misappropriation of resident property were reported to the administrator and were thoroughly investigated." HCFA Ex. 1 at 11 - 12. The report cites five alleged incidents of noncompliance by Petitioner. These consist of the following:

• During a staff interview it was allegedly reported that an unidentified resident had complained to a nursing assistant that another nursing assistant had refused to take the resident to the bathroom. HCFA Ex. 1 at 12. An interview with "the nursing assistant" revealed that "they" recalled the incident and recalled informing the nurse in charge. However, "they" could not recall what day "this" had occurred. Id. Petitioner's administrative staff had no record of the resident's complaint nor did it have any documented evidence that an investigation had been conducted or that the staff had been counseled.

• A resident who is identified in the survey report as Resident # 1 developed abrasions to his shins. Allegedly, there is no documentation in the resident's treatment record of the cause of the abrasions. Petitioner is alleged not to have investigated the cause of the resident's abrasions. However, a "corporate" member of Petitioner's staff allegedly asserted that the abrasions were due to the resident's removing his clothing. HCFA Ex. 1 at 13.

• A resident who is identified in the survey report as Resident # 13 gave her dentures to a dentist so that they could be repaired. The dentist documented returning the dentures. However, on the following day, the social services designee reported that the dentures were missing. The resident allegedly told the surveyors that she lost her dentures but that she did not remember exactly when the loss occurred. Allegedly, Petitioner failed to investigate the loss of dentures by Resident # 13. HCFA Ex. 1 at 14 - 15.

• A resident who is identified in the survey report as Resident # 30 allegedly asserted that she had been given a sweater but that it was missing. Allegedly, this resident reported the loss to Petitioner's staff but Petitioner had done nothing about it. There was no documentation to show that Petitioner had investigated the alleged loss of the sweater. HCFA Ex. 1 at 15.

• A resident who is identified in the survey report as Resident # 21 allegedly stated that she had lost her eye glasses and an eyeglass case containing $20. Petitioner's theft and loss record recorded that the resident had lost her eyeglasses but failed to mention a loss of $20. There was no recorded resolution of the incident.

The purpose of the governing regulation is to assure that a facility protects its residents from abuse, neglect, mistreatment, and theft of property. The regulation does not require a facility to treat every minor accident or injury that is suffered by a resident as abuse, neglect, or mistreatment, or to investigate closely the possible causes of an injury where there is a reasonable basis for identifying the cause of that injury. Nor does the regulation require that a facility treat every loss or misplacement of property by a resident as a misappropriation or theft necessitating a full-fledged investigation.

The preponderance of the evidence establishes that Petitioner complied substantially with the requirements of 42 C.F.R. § 483.13(c)(2), (3), and (4). The examples cited by the survey report fail to establish incidents which triggered the investigation and reporting requirements of the regulation.

I do not find that Petitioner failed to discharge a duty to investigate the allegations concerning refusal to take the unidentified resident to the bathroom because it is impossible to verify whether the complaints were ever made or reported at the time of the alleged incident. The entire account of the asserted incident in the survey report is based on hearsay statements that are attributed to a resident and to employees of Petitioner. For that reason alone I find the account not to be probative. The problem of hearsay is compounded by the fact that the survey report identifies none of the declarants whose alleged statements are the basis for the allegation of noncompliance. At the hearing, held more than a year after completion of the May 1999 survey, a witness for HCFA sought to identify the resident and the employees of Petitioner who are mentioned in the survey report. Such belated identification is highly prejudicial to Petitioner. For that reason I ruled that it was too late to identify the resident. Tr. at 463. Similarly, it is too late now to identify the employees who were referred to without identification in the survey report.

There was no necessity for Petitioner to investigate the skin abrasions that Resident # 1 sustained because they were not injuries of an unknown origin. The record establishes that Petitioner had identified a reasonably likely cause for the skin abrasions. The resident was a demented and highly agitated individual who was constantly disrobing. It was reasonable for Petitioner's staff to conclude that the abrasions were caused by the resident's disrobing. Tr. at 896. HCFA argues that the cause of the resident's abrasions is not documented in the resident's treatment record. However, 42 C.F.R. § 483.13(c)(2), (3), and (4) does not require that a facility document in a resident's treatment record the cause of every injury if the staff of the facility has determined that cause.

HCFA now argues that Petitioner should have taken affirmative steps to prevent the resident from abrading himself. HCFA's posthearing brief at 13. The allegation that Petitioner failed to protect the resident is a new allegation that was not made in the survey report or at any time prior to the hearing. For that reason, I find it to be without merit.

The survey report does not document any reason for Petitioner's staff to investigate the loss of dentures by Resident # 13. There is no evidence that the dentures were misappropriated and Petitioner was not obligated to assume that they were misappropriated.

Nor did the survey report document any reason for Petitioner's staff to investigate the alleged loss of an eyeglass case or $20 by Resident # 21. First, the allegations in the survey report are hearsay and are unverifiable. There is no credible evidence in the record to show that Resident # 21 reported the loss of her eyeglass case or $20 to anyone. Moreover, there is no evidence to show that the resident's eyeglasses, the case, or the $20 were misappropriated.

Finally, the survey report failed to document any reason for Petitioner's staff to investigate the alleged loss of a sweater by Resident # 30. As with the case of Resident # 21, the alleged complaints by Resident # 30 are unverifiable hearsay. There is no evidence that the resident ever complained to Petitioner's staff about the loss of the sweater. And, there is no evidence to show that the sweater was misappropriated as opposed to being lost.

c. Tag 241

The report of the May 1999 survey alleges that Petitioner failed to comply substantially with the requirements of 42 C.F.R. § 483.15(a). HCFA Ex. 1 at 16 - 19. This regulation requires a facility to promote care for its residents in a manner and in an environment that maintains or enhances each resident's dignity and respect in full recognition of his or her individuality. The survey report cites several examples of Petitioner's alleged failure to comply with the requirements of the regulation. These consist of the following:

• The report asserts that "it was learned that" there were three instances in which unidentified residents requested to be assisted to the bathroom. Allegedly, Petitioner's staff told the residents to soil themselves or to use their bed linens. HCFA Ex. 1 at 16 - 17.

• During a resident group meeting, five of the 15 unidentified residents in attendance allegedly complained that Petitioner's staff spoke in foreign languages while providing care to residents. HCFA Ex. 1 at 17.

• Two unidentified residents allegedly complained during individual interviews that staff members speak in foreign languages while giving them care. HCFA Ex. 1 at 17

• During a group meeting two unidentified residents allegedly asserted that nursing assistants went through the residents' dresser drawers without first obtaining the residents' permission to do so. HCFA Ex. 1 at 17.

• Resident # 8 was observed to be wearing a green dress. Unidentified relatives of the resident allegedly complained that the dress was not the resident's dress and that clothing was missing from the resident's closet. HCFA Ex. 1 at 18.

• During a group meeting four unidentified residents allegedly complained that a resident who is identified in the survey report as Resident # 27 entered the residents' rooms and attempted to get in their beds. One unidentified resident allegedly complained that Resident # 27 frequently attempted to use the resident's bathroom and had urinated on the floor in the resident's room. HCFA Ex. 1 at 19.

I find the allegations fail to establish a prima facie case of noncompliance by Petitioner with the requirements of 42 C.F.R. § 483.15(a). Most of these allegations are based on unverified hearsay. It is not possible to ascertain whether any of the complaints that are recited in these allegations are reported accurately or whether they are true. Many of the allegations rest on anonymous hearsay complaints thereby further eroding their credibility.

Furthermore, I am not persuaded that many of the allegations in the survey report, even assuming that they are true, state a prima facie case that Petitioner failed to respect the dignity of its residents. There is evidence in the record, which I discuss below at Finding 3.i. (Tag 319 in the report of the May 1999 survey), which shows that surveyors observed Resident # 27 wandering into another resident's room. HCFA Ex. 1 at 46 - 47. To some extent the surveyors' observations corroborate the allegations of the unidentified residents. However, I am not persuaded that evidence of Resident # 27's wandering behavior is sufficient to establish that Petitioner failed to respect the dignity of its residents. There is no evidence that residents vocalized their complaints to Petitioner's staff or that Petitioner's staff had been less than attentive in responding to any complaints that it may have received concerning the behavior of Resident # 27.

I also do not find that the allegations that employees of Petitioner spoke foreign languages to each other while providing care to residents establish any affront to the residents' dignity. The mere fact that employees spoke in a language other than English does not in and of itself establish any disrespect for Petitioner's residents. Arguably, a resident's dignity might be affronted if the resident asked an employee to speak English in the resident's presence while providing care to the resident and the employee refused to do so. But, there is no allegation that any employee of Petitioner ever refused to speak English when a resident requested the employee to do so.

d. Tag 246

The report of the May 1999 survey alleges that Petitioner failed to comply substantially with the requirements of 42 C.F.R. § 483.15(e)(1). HCFA Ex. 1 at 19 - 25. The regulation states that a resident has a right to reside and receive services in a facility with reasonable accommodation of the resident's individual needs and preferences except when the health and safety of the resident or other residents would be endangered. The survey report alleges that Petitioner failed to accommodate residents' individual needs and preferences.

The survey report cites several incidents as support for its conclusion that Petitioner failed to accommodate residents' individual needs and preferences. These consist of the following:

• During a group interview, eight unidentified residents allegedly complained that food was served cold at all meals. These residents allegedly asserted that food was left standing in the hallways for at least 45 minutes before being served. The survey report also concluded, based on an interview with an unidentified member of Petitioner's staff, that a tray of food sat on a cart for at least 35 minutes before it was served to a resident. HCFA Ex. 1 at 19 - 20.

• Petitioner allegedly failed to insure that a resident who is identified in the survey report as Resident # 19 was provided sufficient education and preparation for monitoring her blood sugar and administering insulin to care for her "newly diagnosed" insulin dependent diabetes. HCFA Ex. 1 at 20 - 23.

• The treatment records of a resident who is identified in the survey report as Resident # 6 established that the resident had visual problems. The resident's care plan provided that Petitioner's staff would assist the resident with cuing and the use of a plate guard in order to prevent a loss of the resident's self-feeding skills. A surveyor observed the resident being fed. The plate guard was in place but staff did not encourage the resident to feed herself. HCFA Ex. 1 at 23.

• An unidentified member of the family of a resident who is identified in the survey report as Resident # 11 became upset because a nursing assistant who was providing care for the resident apparently didn't know the resident's name. HCFA Ex. 1 at 23 - 24.

• An unidentified treatment nurse incorrectly told a surveyor that a resident had two pressure sores when, in fact, the resident had three pressure sores. The treatment nurse explained that the day in question, May 19, 1999, was the nurse's first day of employment at Petitioner's facility and that he was customarily employed at Petitioner's "sister" facility. HCFA Ex. 1 at 24 - 25.

The preponderance of the evidence establishes that Petitioner complied with the requirements of 42 C.F.R. § 483.15(e)(1). The allegations that residents received cold food are based on hearsay which I find not to be credible for reasons which I have explained in detail previously. The surveyors could easily have ascertained whether these allegations were credible. All that they had to do was to test the temperature of the food that was served to Petitioner's residents. Yet, they failed to do that. Petitioner offered credible evidence to establish that it uses a plate warming device which keeps food hot for at least 70 minutes. Tr. at 785, 878 - 879.

The allegations that Petitioner's staff failed to train Resident # 19 to manage her diabetes rest in some measure on a faulty premise that the resident had "newly diagnosed" diabetes. In fact, the resident had a history of diabetes that predated her stay at Petitioner's facility. P. Ex. 39 at 49. More, important, however, is that the allegation concerning Petitioner's alleged failure to train this resident assumes that, pursuant to 42 C.F.R. § 483.15(e)(1), Petitioner had an obligation to assure that the resident was able to manage her diabetes successfully prior to discharge from Petitioner's facility. I do not find that the requirement that a facility accommodate a resident's needs may be read so expansively.

Petitioner was under an obligation to make a reasonable effort to prepare the resident for discharge. That obligation included giving the resident training so that the resident could learn to manage her diabetes. That obligation did not include assuring that the resident would be able to self-manage her diabetes. And, what training was provided to the resident had to take into account the resident's limitations. As is evident from the nursing notes that were generated during the course of the resident's stay at Petitioner's facility, this resident was alert and able to make her needs known. HCFA Ex. 15 at 7. On the other hand, this resident also plainly was ill with pneumonia and her illness included a loss of interest in activities. As late as May 16, 1999, only two days prior to the resident's discharge from Petitioner's facility, the treating nurse noted that the resident was encouraged to attend activities but preferred to remain in bed. HCFA Ex. 15 at 13. The nurses notes show that the resident's ability to engage in activities was markedly restricted prior to that date. For example, on May 15, 1999, the treating nurse noted that the resident's respiration was slightly labored and that the resident could ambulate only about 10 feet. Id. at 14.

I do not find that whatever inability the resident may have had to completely manage her diabetes at the time of her discharge was the fault of Petitioner's staff. I am satisfied, given the nature of Resident # 19's illness, that Petitioner's staff provided adequate accommodation of the resident's needs. Tr. at 1117 - 1118. The resident's record establishes that she did receive training, both on the 17th and 18th of May 1999, in the use of an accucheck for measuring blood sugar. It would have been unlikely that the staff would have been able to do much more for the resident given the state of the resident's illness and her inactivity prior to the 17th of May.

The allegations that Petitioner's staff failed to accommodate the needs of resident # 6 are not supported by the preponderance of the evidence. This resident suffered from significant cognitive impairment. P. Ex. 31 at 55. The resident needed extensive assistance to perform activities. Id. At times the resident could eat without assistance, at other times the resident had to be physically assisted to eat. Tr. at 894. Therefore, the fact that the resident was observed to be fed on one occasion without being cued does not mean that Petitioner's staff failed to accommodate the resident's needs.

Finally, I am not persuaded that the failure of a nursing assistant to know the name of a resident or the fact that a nurse, on the nurse's first day of employment at Petitioner's facility, was unfamiliar with the particulars of a resident's case establishes that Petitioner's staff was not accommodating the needs of residents. These incidents, assuming their truth, say nothing about the quality of care provided by the staff or the attentiveness of staff to residents' needs.

e. Tag 250

The report of the May 1999 survey finds that Petitioner failed to comply substantially with the requirements of 42 C.F.R. § 483.15(g). HCFA Ex. 1 at 25 - 31. The regulation requires that a facility provide its residents with medically-related social services in order to enable residents to maintain the highest practicable levels of physical, mental, and psychosocial well-being. The survey report recites several examples of Petitioner's alleged failure to comply with the regulation. These include the following allegations:

• Resident # 13 had lost her dentures. On April 27, 1999, Petitioner's social service designee noted that if the dentures were not found he would contact the resident's dentist. However, as of May 18, 1999, the social service designee had not followed up in order to assist the resident in getting the dentures replaced. HCFA Ex. 1 at 25.

• Resident # 16 had a problem with missing teeth that interfered with her ability to chew. This problem was first documented on April 2, 1999. A dentist became aware of the problem on April 21, 1999 and recommended treatment. However, as of May 20, 1999, there was no documentation to indicate that the problem had been resolved. HCFA Ex. 1 at 26 - 27.

• Resident # 5 had lost a son recently and had been treated for depression. However, the last documented visit to the resident by Petitioner's social service representative was on March 4, 1999. HCFA Ex. 1 at 27 - 28.

• Resident # 27 had documented hearing problems. However, there was no documentation that Petitioner's staff had followed up on recommendations for care that had been made by an audiologist or that efforts had been made to find or replace a hearing aid that had been misplaced. HCFA Ex. 1 at 28 - 30.

• Resident # 27 manifested psychological problems which included confusion and inappropriate behavior. However, there was no evidence that, between March 20, 1999 and May 20, 1999, Petitioner's staff assessed the resident's psychosocial needs. HCFA Ex. 1 at 30 - 31.

I find that the allegations made under Tag 250 state a prima facie case of noncompliance with participation requirements that Petitioner failed to rebut by the preponderance of the evidence. The evidence establishes that Petitioner was remiss in attending to the psychosocial needs of some of its residents and was deficient in complying with the requirements of 42 C.F.R. § 483.15(g).

I am not persuaded that Petitioner was completely negligent, as is alleged in the survey report. In the case of Resident # 5, the evidence shows that Petitioner's staff - especially Petitioner's nursing staff - was attentive to the resident's emotional and psychological needs. However, the failure of Petitioner's social services staff to follow up on the complaints and problems of some of Petitioner's residents is sufficient to establish a deficiency under Tag 250. The evidence shows that, on more than one occasion, Petitioner's staff identified a problem that a resident was experiencing and failed to follow up on that problem timely. That is evident in the cases of Residents #s 13, 16, and 27. In each case, Petitioner's staff became aware that the resident was experiencing a medically related problem. Yet, in each case, there was a substantial delay in attending to that problem.

f. Tag 281

The report of the May 1999 survey alleges that Petitioner failed to comply with the requirements of 42 C.F.R. § 483.20(d)(3)(i). HCFA Ex. 1 at 31 - 35. The section of the regulations that the survey report cites to was revised effective October 1998 and is currently codified as 42 C.F.R. § 483.30(k)(3)(i). Both the former and current versions of the regulation require that services provided by a facility must meet professional standards of quality.

The survey report contains the following allegations of Petitioner's alleged failure to provide services that met professionally recognized standards of quality:

• There was no documentation in the treatment records of Resident # 19, a "newly diagnosed insulin dependent diabetic resident[,]" that a registered dietician had assessed the resident's dietary needs. HCFA Ex. 1 at 32.

• Petitioner allegedly failed to clean or empty the contents of a resident's suction machine canister. HCFA Ex. 1 at 32 - 33

• Petitioner allegedly failed to notify the treating physician of a diabetic resident, who is identified as Resident # 5, of the resident's refusal to accept administration of insulin. HCFA Ex. 1 at 33 - 35.

The weight of the evidence establishes that Petitioner complied with the requirements of 42 C.F.R. § 483.20(d)(3)(i) (42 C.F.R. § 483.20(k)(3)(i)). There is no persuasive evidence that Petitioner failed to comply with professional standards of quality in providing care to the three residents whose cases are cited in the survey report.

The premise of the allegations concerning Resident # 19 is that Petitioner's staff should have addressed the resident's "newly diagnosed" diabetes by assessing the resident's diet and recommending changes as were determined to be necessary. However, as I discuss above, at Finding 3.d., Resident # 19 is not a "newly diagnosed" diabetic. Resident # 19 has a history of diabetes. P. Ex. 39 at 49. Moreover, Resident # 19's diet had been assessed previously. The resident was receiving a 1500 calorie a day diet. HCFA Ex. 1 at 32. HCFA has not made a prima facie showing why, given the fact that the resident's diabetes was not newly diagnosed, and given further that the resident's diet had been assessed and adjusted previously, additional involvement by a dietician was necessary.

The allegations that Petitioner's staff failed to clean or empty a resident's suction machine canister are rebutted by the preponderance of the evidence. The surveyors who conducted the May 1999 survey did not make continuous observations of the canister. They observed the canister at various times. HCFA Ex. 1 at 32 - 33. At each observation the surveyors noted that the canister contained cloudy whitish liquid. Id. These observations are not consistent with failure to empty or clean the canister. To the contrary, they suggest that the canister was emptied and cleaned. Tr. at 1127. Moreover, the allegations - assuming their truth - fail to establish a potential for even minimal harm to the resident. HCFA offered no persuasive evidence to show that failure to empty or clean the canister could harm the resident. In fact, the suction system is a one-way system which prevents secretions from flowing backwards. Tr. at 1126 - 1127.

The evidence establishes that Resident # 5 more or less regularly refused to accept insulin. His refusal to do so was not an isolated episode which represented a departure from the resident's past behavior. P. Ex. 30 at 350. The resident's treating physician was aware of the resident's behavior. Thus, there was no need to notify the physician of each instance in which the resident refused to accept insulin. Tr. at 1121 - 1122. There was no potential for harm to the resident in failing to notify the resident's physician of each episode in which the resident refused to accept insulin in light of the fact that the resident's refusal to accept insulin was documented and well known.

g. Tag 309

The report of the May 1999 survey alleges that Petitioner failed to comply with the requirements of 42 C.F.R. § 483.25. HCFA Ex. 1 at 35 - 42. This regulation provides that a facility must provide the necessary care and services to each of its residents so that the resident may attain or maintain the highest practicable physical, mental, and psychosocial well-being, in accordance with the resident's comprehensive assessment and plan of care.

The survey report alleges that Petitioner failed to provide care for a resident, identified in the report as Resident # 7, in a manner that is consistent with the requirements of 42 C.F.R. § 483.25. The report documents several alleged incidents of noncompliance with the regulation. These consist of the following:

• The resident's wife was observed to be changing a dressing on the resident's leg wound. There was no evidence to show that the wife had received training from Petitioner's staff to maintain asepsis. HCFA Ex. 1 at 36 - 37.

• The resident was suffering from constipation. A member of Petitioner's licensed staff gave the resident a laxative (Milk of Magnesia) without first obtaining a physician's prescription for the medication. Additionally, a nursing assistant manually removed stool from the resident, but the episode was not documented in the resident's treatment records. HCFA Ex. 1 at 38 - 39.

• The resident had a physician's order for strict input and output measurements. Petitioner's staff failed to follow the physician's order. HCFA Ex. 1 at 39 - 41.

• The resident had a physician's order to check daily his pulse oximetry reading. Petitioner's staff failed to follow this order consistently. HCFA Ex. 1 at 41 - 42.

HCFA established a prima facie case of noncompliance with the requirements of 42 C.F.R. § 483.25, which Petitioner did not rebut by the preponderance of the evidence. I find that Petitioner was deficient under Tag 309.

The evidence shows that Resident # 7's wife had assumed some of the duties of caring for that resident. That is not objectionable and may even be desirable. But, under the circumstances, Petitioner's staff had a duty to train the wife to assure that she could provide care that was consistent with the resident's best interests. Petitioner did not establish that it provided the requisite training. Petitioner argues that the wife had been trained sufficiently at an acute care hospital to provide wound care to the resident. P. Ex. 32 at 95. The record shows that the resident or his wife received instructions for wound care. However, it does not show that the wife was competent in providing such care. Petitioner's staff should have made certain that the wife knew how to care for the resident's wound so long as she was providing such care.

I do not find that Petitioner's staff did anything improper in manually removing the resident's stool. Contrary to the suggestions made in the survey report and at the hearing there is no evidence that a nursing assistant performed a digital rectal examination of the resident. However, I conclude that the staff should have consulted with the resident's physician concerning the resident's constipation and, certainly, before giving the resident Milk of Magnesia.

Petitioner asserts that there was no harm in the staff's failure to follow strict input and output measurement requirements inasmuch as the resident's condition had improved and the resident was due shortly to be discharged. That may be so. However, the record shows that the staff had failed for nearly a month prior to the survey to follow strict input and output measurement requirements. HCFA Ex. 6 at 28 - 32. This failure plainly was inconsistent with the physician's orders and posed the potential for more than minimal harm to the resident.

Petitioner argues that its staff's failure to follow strictly the physician's order for monitoring pulse oximetry readings was essentially harmless error inasmuch as the resident improved and, ultimately, was discharged. I agree that the resident suffered no harm from failure to follow the physician's order. But, I conclude that the failure to follow the order posed a potential for more than minimal harm to the resident. The physician had ordered that the resident be given oxygen if the resident's oxygen saturation level was at less than 92 percent. HCFA Ex. 1 at 41. Failure to note oxygen saturation levels on several days meant that the resident may not have received a treatment that the physician determined was necessary for the resident's health.

h. Tag 316

The report of the May 1999 survey alleges that Petitioner failed to comply with the requirements of 42 C.F.R. § 483.25(d)(2). HCFA Ex. 1 at 42 - 45. The regulation requires that a facility provide a resident who is incontinent of bladder with appropriate treatment and services to prevent the resident from developing a urinary tract infection. Under this regulation the facility is also required to restore as much of a resident's normal bladder function as possible.

The survey report alleges that Petitioner failed in two respects to comply with the requirements of the regulation. These alleged failures consist of the following:

• A bowel and bladder assessment was completed for a resident who is identified in the survey report as Resident # 25. The assessment indicated that the resident was able to participate in a bowel and bladder retraining program. However, as of the date of the resident's discharge, February 23, 1999, the resident was incontinent and there was nothing in the resident's records to indicate that the resident had been placed in a bowel and bladder retraining program. HCFA Ex. 1 at 43 - 44.

• Resident # 6 was admitted to the facility on December 25, 1996. On two occasions subsequent to her admission the resident was assessed as continent of bowel and bladder. However, as of the survey, Petitioner's staff allegedly stated that the resident was largely incontinent. There was no documented evidence that the resident had been reassessed for the ability to restore normal bladder function. HCFA Ex. 1 at 44 - 45.

I find no basis to conclude that Petitioner failed to comply with the requirements of 42 C.F.R. § 483.25(d)(2). The preponderance of the evidence establishes that bowel and bladder retraining would have been futile in the cases of both of the residents whose care is discussed under Tag 316 of the May 1999 survey report. Consequently, there was not the potential for more than minimal harm to the residents in the manner in which Petitioner cared for them.

In light of resident # 25's medical condition, I find no potential for harm in Petitioner's failure to enroll the resident in a bowel and bladder retraining program. Resident # 25 was terminally ill with pancreatic cancer and was suffering from severe pain. Tr. at 566. The resident was receiving hospice care and was soon to be discharged from the facility to return home. It is true that the resident was assessed initially as a candidate for bowel and bladder retraining. However, it became apparent with the passage of time that retraining was not suitable therapy for the resident given the resident's medical condition. Tr. at 932 - 933. Petitioner's staff assisted the resident with use of the bathroom whenever the resident requested assistance. Id. at 933. Attempting to retrain the resident would have been cruel under the circumstances. Id.

Petitioner did not act unreasonably in failing to enroll Resident # 6 in a bowel and bladder retraining program. The resident lacks the cognitive ability to participate in such a program. Tr. at 855. Resident # 6 was a demented individual. The resident's treatment records show that the resident suffered from psychosis and depression. P. Ex. 31 at 92. This resident constantly requested staff to assist her with use of the bathroom regardless whether the resident actually needed to use the bathroom. Tr. at 933 - 934.

i. Tag 319

The report of the May 1999 survey alleges that Petitioner failed to comply with the requirements of 42 C.F.R. § 483.25(f)(1). HCFA Ex. 1 at 45 - 48. This regulation requires that, based on a resident's comprehensive assessment, a facility must ensure that a resident who displays mental or psychosocial adjustment difficulty receives appropriate treatment and services to correct his or her problems.

The survey report's allegation that Petitioner did not comply with the requirements of the regulation centers around the care that Petitioner provided to Resident # 27. This demented resident was easily annoyed, could become verbally abusive, and wandered into other resident's rooms. HCFA Ex. 1 at 47 - 48. On March 30, 1999, a care plan was prepared for the resident which detailed a variety of approaches that were designed to address the resident's wandering behavior. Id. at 48. The survey report alleges that the resident continued to wander after March 30, 1999, but that Petitioner failed to reassess the resident's condition or to modify the resident's plan of care to address the resident's wandering problems.

Petitioner did not adequately address the resident's mental and psychosocial difficulties. Therefore, Petitioner did not comply substantially with the requirements of 42 C.F.R. § 483.25(f)(1), and was deficient under Tag 319. Petitioner does not deny that the resident continued to manifest wandering behavior after March 1999. Petitioner argues that it attempted various interventions with the resident. Including, moving the resident's room to a room next to Petitioner's activities room so that the resident would not have to travel so far to use the bathroom, and other interventions that were described in the plan of care. Petitioner's posthearing brief at 42; Tr. at 906 - 907. However, it is obvious that these interventions were not successful. Petitioner failed to conduct any reassessment of the resident to determine whether additional or other interventions might succeed.

j. Tag 323

The report of the May 1999 survey alleges that Petitioner failed to comply with the requirements of 42 C.F.R. § 483.25(h)(1). HCFA Ex. 1 at 48 - 50. The regulation requires a facility to maintain an environment that is as free as is possible from accident hazards. The survey report alleges that Petitioner failed to comply with the regulation by "leaving a razor" at the bedside of a female resident, identified in the survey report as Resident # 3, who suffered from dementia. HCFA Ex. 1 at 49 - 50.

HCFA failed to establish a prima facie case of noncompliance by Petitioner with the requirements of 42 C.F.R. § 483.25(h)(1). HCFA offered no evidence to prove that Petitioner left a razor at the bedside of Resident # 3. The facts cited in the survey report show only that the resident had a razor which, evidently, she had concealed in a tissue box by her bedside. HCFA Ex. 1 at 49. Petitioner's director of nursing told the surveyors that the razor was of a different color than are those which are supplied by Petitioner. Id.

There is no persuasive evidence that Petitioner failed to prevent accident hazards at its facility. The regulation that is cited under Tab 323 does not impose a strict liability standard on a facility. A facility must prevent accidents where it is possible for the facility to do so. Here, the evidence does not show that the resident's possession of a razor was an event that the facility either knew about or should have known about. Moreover, the only way in which Petitioner could have prevented this resident - or any resident - from having an unauthorized razor would be by systematically searching each resident's possessions. Had Petitioner done so other issues of privacy rights and dignity no doubt would have arisen.

k. Tag 324

The report of the May 1999 survey alleges that Petitioner failed to comply with the requirements of 42 C.F.R. § 483.25(h)(2). HCFA Ex. 1 at 50 - 52. The regulation requires a facility to ensure that each of its residents receives adequate supervision and assistance devices to prevent accidents.

The survey report alleges that Petitioner failed to comply with the requirements of the regulation in providing care to a resident who is identified in the survey report as Resident # 2. This resident used a wheelchair and had a history of falls. On January 25, 1998, a restraint assessment was performed and it was concluded that the resident needed to wear a back release seat belt for safety. HCFA Ex. 1 at 50. On January 24, 1999, the resident sustained a fall from his wheelchair. Petitioner's staff conducted a reassessment of the resident's need for restraints and concluded that the staff needed to continue monitoring the resident for proper use of the seat belt and to place the resident in front of the facility's nursing station so that the resident could be observed and monitored closely. However, on March 30, 1999, the resident sustained another fall from his wheelchair. On that occasion the resident leaned forward to pick up an object from the floor. The belt came loose and the resident fell. Id. at 51. The survey report concluded that: "[a]lthough a recommendation had been made to closely monitor the resident at the nursing station, the resident was left in his room at the time of the fall." Id. at 51 - 52.

I conclude that the evidence cited in the survey report establishes a prima facie case of noncompliance by Petitioner which Petitioner did not rebut with the preponderance of the evidence. Petitioner failed to comply substantially with the requirements of 42 C.F.R. § 483.25(h)(2) and was deficient under Tag 324.

Petitioner argues that there is no evidence that the resident's belt had been applied improperly. Petitioner's posthearing brief at 44. I disagree. The fact that the belt came loose is prima facie evidence that either the belt had been applied improperly, or, it was defective. In either event, close monitoring of the resident consistent with the monitoring plan that had been developed for the resident would have prevented the resident from sustaining a fall.

l. Tag 368

The report of the May 1999 survey alleges that Petitioner failed to comply with the requirements of 42 C.F.R. § 483.35(f)(1) - (3). HCFA Ex. 1 at 55. The regulation provides, at 42 C.F.R. § 483.35(f)(3), that a facility must offer its residents bedtime snacks. The survey report alleges that, at a group interview, eight unidentified residents complained that they were not offered bedtime snacks.

I find that HCFA failed to establish a prima facie case of noncompliance with the regulation. The complaints recited in the survey report are unverified hearsay. There is no evidence that the surveyors made observations which might have verified or refuted these complaints.

m. Tag 514

The report of the May 1999 survey alleges that Petitioner failed to comply with the requirements of 42 C.F.R. § 483.75(l)(1). HCFA Ex. 1 at 59 - 61. The regulation requires that a facility maintain clinical records for each resident in accordance with accepted professional standards and practices that are: complete; accurately documented; readily accessible; and systematically organized.

The report alleges that Petitioner failed to maintain complete records for each of its residents. The alleged lack of completeness lies in failure by nursing assistants in some instances to write the names of residents on the nursing assistant (CNA) sheets that they prepared. The report asserts that, in other instances, CNA sheets were not prepared to document what occurred on given shifts.

I am not persuaded that these allegations establish a prima facie case of noncompliance by Petitioner with the requirements of the regulation. Nor on their face do they establish the potential for more than minimal harm to any resident. The survey report does not allege, nor has HCFA offered any evidence to show, that the failure of nursing assistants to write patients' names on CNA sheets made it impossible or even difficult to identify which residents the nursing assistants were caring for or what the nursing assistants did for the residents. Furthermore, as Petitioner notes, there is no requirement in the regulation that nursing assistants make notes for every resident and every shift. Indeed, there is no specific requirement in the regulations that nursing assistants make notes.

4. As of the July1999 survey, Petitioner manifested four deficiencies.

I find that, as of the July 1999 survey, Petitioner was not complying substantially with four of the eleven participation requirements which are cited in the survey report. These deficiencies are described at Tags 155, 167, 281, and 312 in the report of the July 1999 survey. In all other respects either HCFA failed to establish a prima facie case of noncompliance or Petitioner proved by the preponderance of the evidence that it was complying with participation requirements.

a. Tag 155

The report of the July 1999 survey alleges that Petitioner failed to comply with the requirements of 42 C.F.R. § 483.10(b)(4). HCFA Ex. 29 at 1- 4. The regulation provides that a resident of a facility has a right to refuse treatment.

The survey report cites three specific examples of Petitioner's alleged failure to comply with the requirements of the regulation. In one instance, a resident who is identified as Resident # 5 signed a Preferred Intensity of Care (PIC) form in which the resident stated that he did not wish to have cardiopulmonary resuscitation (CPR). However, as of a month later, Petitioner had not obtained an order from the resident's physician in which the physician prescribed no CPR for the resident. HCFA Ex. 29 at 2. In a second instance, a resident who is identified as Resident # 7 signed a PIC form in which the resident stated that she did not want life to be prolonged. However, she also checked a box indicating that she wanted CPR to be administered to her. The report alleges that Petitioner failed to clarify the alleged inconsistency in the resident's PIC form. In the third instance, a resident who is identified as Resident # 6 indicated in a PIC form that the resident wanted life to be prolonged to the greatest extent possible. However, a physician signed an order for the resident which contained the statement, "no CPR." The report alleges that Petitioner failed to clarify this alleged inconsistency between the PIC form and the physician's order.

Petitioner does not deny these facts. It argues that there is no evidence that Petitioner ever gave a resident care where the resident stated in advance that he or she would refuse the care. Petitioner argues also that there are no real inconsistencies between the residents' PIC forms and their physicians' orders. According to Petitioner, a statement concerning life prolonging measures refers to long-term measures such as tube feeding while a statement concerning CPR refers to a short-term emergency.

Petitioner was deficient under Tag 155. In all three of the instances cited under Tag 155 there are ambiguities in the residents' records which cast doubt on whether Petitioner could have acted consistent with the residents' intent. It may be that Petitioner is correct in saying that CPR and life-prolonging measures are different, with CPR being a short-term measure and life-prolonging measures being used for long-term care. But, it is not clear that Petitioner's residents understood the distinction. Nor did the residents clearly make their wishes known to Petitioner. Petitioner had a duty to make sure that the residents did understand such distinctions and that the residents wishes were reflected accurately in the residents' records.

Implicit in a resident's right to refuse treatment is a requirement that a facility clearly understand the resident's wishes. It is not possible to carry out a resident's wishes with confidence if they are not understood. The consequence of failing to use life-prolonging measures on the mistaken assumption that a resident did not wish to be treated with such measures could be disastrous for the resident. Equally serious would be to employ heroic measures to sustain life where a resident did not want such measures to be employed.

b. Tag 164

The report of the July 1999 survey alleges that Petitioner failed to comply with the requirements of 42 C.F.R. § 483.10(d)(3). HCFA Ex. 29 at 4 - 5. This appears to be a inaccurate citation to the regulation. It appears from the context of the allegations made under the tag that the deficiency allegations are based on 42 C.F.R. § 483.10(e)(1) - (3). This regulation provides that a resident has a right to personal privacy and confidentiality of his or her clinical records.

The survey report alleges that Petitioner violated the personal privacy of its residents in the following respects:

• Allegedly, two staff members "posted themselves" outside of residents' rooms so that they could overhear conversations between residents and surveyors.

• A nursing assistant entered a resident's room while the resident was being interviewed by a surveyor. Although the nursing assistant was told that an interview was in process the assistant stated that she just wanted to check on the status of the resident's roommate. The nursing assistant looked at the roommate and then left the room.

I find these allegations to be without merit. The first allegation lacks merit because HCFA offered no evidence that the employees who allegedly posted themselves outside of residents' rooms had an improper purpose nor did it show that the staff even knew that interviews were in progress. There is no evidence that the residents believed that their privacy was being disturbed or that they wanted the employees to leave. The second allegation lacks merit because there is no evidence that the employee actually disturbed the resident's privacy. The survey report merely shows that an employee momentarily interrupted an interview so that the employee could perform his or her duties.

c. Tag 167

The report of the July 1999 survey alleges that Petitioner failed to comply with the requirements of 42 C.F.R. § 483.10(g)(1). HCFA Ex. 29 at 5 - 7. The regulation provides that a resident of a facility has a right to examine the results of the most recent survey of that facility and any plan of correction that is in effect. It provides further that a facility must make survey results available to residents in a place that is readily accessible and must post a notice of the availability of survey results.

The survey report alleges that Petitioner failed to comply with the requirements of the regulation as of July 1999, in that it had yet not posted the report of the May 1999 survey. The survey report asserts that the report of the May 1999 survey was not on an enclosed bulletin board in Petitioner's facility. Nor was it in a binder labeled "State survey" in Petitioner's resident dining room.

Petitioner does not deny that, as of July 1999, it had failed to post the May 1999 survey report on its bulletin board and had failed to place the report in the "State survey" binder. Petitioner asserts that the regulation does not set a deadline by which a facility must post a survey report. It argues that HCFA did not establish any bad faith on Petitioner's part. It argues, moreover, that HCFA did not show that the May 1999 report was not available elsewhere in Petitioner's facility.

Petitioner was deficient under Tag 167. The regulation does not establish a hard deadline for posting a survey report. But, a facility plainly must do so within a reasonable amount of time. As of July 1999, Petitioner had possession of the May 1999 survey report for several weeks. It easily could have posted the report and failed to do so.

d. Tag 176

The report of the July 1999 survey alleges that Petitioner failed to comply substantially with the requirements of 42 C.F.R. § 483.10(n). HCFA Ex. 29 at 7 - 9. I discuss the requirements of this regulation above at Finding 3.a. The survey report alleges that a resident who is identified as Resident # 8 had several medications at her bedside. These include: Vanceril inhaler; two types of eye drops (Refresh and Levobunolol); and antacid tablets. The survey report alleges that Petitioner's interdisciplinary team failed to determine whether Resident # 8 could self-administer these medications safely.

The survey report notes that the resident had prescriptions for both types of eye drops which permitted the resident to keep the medications at her bedside. HCFA Ex. 29 at 8. It also notes that the resident had a prescription for a Vanceril inhaler, but that the prescription did not specifically permit the resident to keep the medication at her bedside. And, the report notes that the facility's staff had conducted an evaluation of the resident's capacity for self-administration of medications, but that the evaluation had not been signed by the resident's physician.

The evidence cited by HCFA establishes that Petitioner's staff failed to complete an interdisciplinary assessment of whether Resident # 8 could self-administer medications. However, the evidence does not establish a prima facie case that Petitioner's omission had a potential for more than minimal harm to the resident. There is no evidence to show that the resident could be harmed by improper self-administration of the medications in question.

The surveyor who observed Resident # 8 testified that there was a possibility that the resident might overuse or underuse medications. Tr. at 702 - 708. This surveyor opined that Petitioner's failure to complete an interdisciplinary assessment of the resident's ability to self-administer medications had the potential for causing more than minimal harm to the resident. Id. However, the surveyor did not offer any opinion as to whether the particular medications at issue (Vanceril, Refresh, or Levobulonol), could have harmful effects if overused or underused. Nor did HCFA offer other evidence to show that overuse or underuse of these medications might have harmful effects.

e. Tag 202

The report of the July 1999 survey alleges that Petitioner did not comply substantially with the requirements of 42 C.F.R. § 483.12(a)(3). HCFA Ex. 29 at 9 - 11. This regulation provides that, when a facility transfers or discharges a resident under certain enumerated circumstances, the transfer must be documented in the resident's clinical record. The regulation provides further that the resident's physician must document the transfer where the transfer or discharge is necessary for the resident's welfare, and the resident's needs cannot be met in the facility, or the resident's health has improved sufficiently so that the resident no longer needs the facility's services.

The survey report alleges that Petitioner failed to comply with the requirements of the regulation in the case of a resident who is identified as Resident # 16. This resident was transferred from Petitioner's facility to another facility after "numerous interactions with the resident's family regarding the facility's attempts to transfer this resident out to another nursing facility." HCFA Ex. 29 at 10 - 11. The report alleges that Petitioner's staff failed to show that the resident's physician was involved in making the decision to transfer the resident or that the physician agreed with that decision.

The preponderance of the evidence establishes that Petitioner complied with the requirements of the regulation. There is documentation in the resident's record to show that the resident's physician was consulted about the transfer and agreed with the decision to transfer the resident. P. Ex. 43 at 5. The treating physician executed a discharge summary in which he checked a box indicating that transfer was necessary for the resident's welfare and because the resident's needs could not be met at Petitioner's facility. The physician added a handwritten statement averring that the resident needed a dementia unit. Id.

HCFA argues that this statement is undated and is, therefore, unreliable evidence of the physician's involvement. I am not persuaded by this argument. The physician did not date his signature. P. Ex. 43 at 5. However, it is plain that the physician executed his statement after he had an opportunity to review and assess all of the pertinent facts relevant to the resident's transfer. The statement records the dates of the resident's stay in Petitioner's facility, which establishes that the physician made his statement at or after the time of discharge. More important, the statement establishes that the physician agreed with the resident's transfer and documented the reasons for the transfer. That is sufficient to comply with the requirements of 42 C.F.R. § 483.12(a)(3).

f. Tag 204

The report of the July 1999 survey alleges that Petitioner failed to comply with the requirements of 42 C.F.R. § 483.12(a)(7). HCFA Ex. 29 at 11 - 17. This regulation requires a facility to provide a resident with sufficient preparation and orientation concerning a transfer or discharge from the facility so as to ensure that the resident experiences a safe and orderly transfer or discharge. The survey report alleges that Petitioner failed to comply substantially with the regulation in its transfer or discharge of two residents who are identified as Resident # 16 and Resident # 15.

HCFA did not establish a prima facie case that Petitioner failed to comply with the requirements of the regulation either in its transfer of Resident # 16 or in its discharge of Resident # 15. The survey report does not even allege specifically that Petitioner failed to prepare or orient Resident # 16 for a transfer. Resident # 16 was a demented individual who was transferred to a facility which provides special services for demented residents. It is unclear what, if any, "orientation" Petitioner could have provided to the resident under the circumstances. Moreover, the survey report fails to state specifically any failure by the facility to provide pre-transfer preparation or to orient Resident # 16 or the resident's family prior to the resident's transfer. The survey report documents exchanges between the resident's daughter and Petitioner's staff concerning the appropriateness of the transfer. Evidently, there was also concern expressed by the daughter as to whether the resident would qualify for Medi-Cal (California's Medicaid program) and whether the receiving facility would accept Medi-Cal reimbursement for the resident's care. But, there is no evidence that Petitioner's staff failed to discuss the transfer with the daughter. Nor is there any evidence that the transfer was not ultimately accepted.

With respect to Resident # 15 the survey report asserts that the facility discharged the resident without documenting that it informed the resident's family concerning any follow-up with the resident's physician or any special precautions that the resident needed to take after discharge. However, the survey report fails to show that any follow-up with the physician was needed or that there were any special precautions that the resident needed to take. The resident visited a hospital shortly prior to his discharge to investigate a tube-like object that appeared on the resident's skin at the level of his rib cage. HCFA Ex. 29 at 15 - 16. In fact, what was apparent on examination of the resident, were surgical bypass clips that did not require any follow-up. Tr. at 1057 - 1058.

g. Tag 241

The report of the July 1999 survey alleges that Petitioner failed to comply substantially with the requirements of 42 C.F.R. § 483.15(a). HCFA Ex. 29 at 17 - 19. I discuss the requirements of this regulation above at Finding 3.c.

The report cites four examples in which Petitioner allegedly failed to promote care for residents in a manner and in an environment that maintained or enhanced each resident's dignity and respect. These examples are as follows.

• At a group interview eight unidentified residents allegedly complained that nursing assistants spoke in foreign languages while providing care to the residents. HCFA Ex. 29 at 17.

• Residents allegedly expressed frustration that nursing assistants did not understand their care needs. As an example, one nursing assistant allegedly gave a resident a cup when the resident had asked for a toothpick. HCFA Ex. 29 at 17 - 18.

• A resident was observed to call out loudly for help. Two nursing assistants passed by the resident's room without responding. Minutes later, two other nursing assistants passed by the resident's room without responding to the request for help. Two nurses were also observed to disregard the requests. Finally, after a total of 10 minutes had elapsed, the nursing assistant who was assigned to the resident answered the resident's request. The resident asserted that her mouth was dry and requested that she be given water. The nursing assistant complied with this request.

• A nursing assistant assisted a wheelchair bound male resident to bed. When the resident's shoes were removed, the surveyor observed that the resident was wearing socks that were labeled with the name of a female resident.

The preponderance of the evidence establishes that Petitioner complied with the requirements of 42 C.F.R. § 483.15(a). The first two alleged examples of noncompliance rest on unverified hearsay and are not credible. Moreover, as I discussed at Finding 3.c. of this decision, there is no evidence that staff refused to speak with the residents in English if the residents requested that they do so. And, there is no reason to conclude that a resident's dignity was affronted because a staff member misunderstood the resident's request.

The resident whose cries for help were allegedly ignored by Petitioner's staff was an individual who cried out constantly for help. Tr. at 846 - 847. Petitioner's staff had care planned this behavior and was checking the resident at reasonable intervals to assure that the resident's needs were met. Id.

There is no persuasive evidence that Petitioner's staff affronted the dignity of the resident who was found to be wearing socks that were labeled with the name of a female resident. It is not alleged in the survey report that the name of the female resident was visible while the resident was wearing shoes. Nor is it alleged that the resident complained about being given the "wrong" pair of socks.

h. Tag 281

The report of the July 1999 survey alleges that Petitioner failed to comply substantially with the requirements of 42 C.F.R. § 483.20(d)(3)(i). HCFA Ex. 29 at 19 - 21. I discussed this regulation, which is now codified at 42 C.F.R. § 483.20(k)(3)(i), above, at Finding 3.f.

The survey report alleges that Petitioner failed to provide services that met professional standards of quality to a resident who is identified as Resident # 6. According to the survey report, Petitioner's staff increased the resident's risk of infection by reconnecting a feeding tube to the resident after the tube had come into contact with the floor of the resident's room. According to the survey report, on July 14, 1999, the feeding tube was observed as having become disconnected. Allegedly, the tube was on the floor of the resident's room along with a large puddle of feeding formula. HCFA Ex. 29 at 20. A licensed nurse was observed to enter the resident's room. On discovering the tube on the floor, the nurse allegedly picked it up, hung it on an IV pole, and directed a nursing assistant to clean up the puddle of formula. Subsequently, the nurse did not replace the feeding tube. Rather, the nurse reconnected the feeding tube to the resident.

Petitioner was deficient under Tag 281. Reinserting a feeding tube that had been in contact with a non-sterile floor deviated from accepted professional standards of care and posed at least the potential of harm to the resident. Tr. at 700 - 701.

Petitioner argues that, in fact, the tube had not come into contact with the floor, asserting that the treating nurse had denied to Petitioner's administrator that the tube had come into contact with the floor. This is hearsay and is self-serving. The direct observation of the surveyor is the more credible evidence of what actually occurred. Additionally, Petitioner argues that the resident's stomach acids would have killed any bacteria that might have adhered to the tube. See Tr. at 1134. However, the issue here is whether there was a potential for harm resulting from the tube coming into contact with the floor. I am not persuaded that there was no potential for harm to Resident # 6 given the resident's highly compromised state and the possibility that the floor might have some contaminants on its surface which included but which were not limited to acid-sensitive bacteria..

i. Tag 312

The report of the July 1999 survey alleges that Petitioner failed to comply substantially with the requirements of 42 C.F.R. § 483.25(a)(3). HCFA Ex. 29 at 21 - 24. This regulation requires that a facility provide necessary services to maintain good nutrition, grooming, and personal and oral hygiene to a resident who is unable to carry out activities of daily living.

The survey report alleges that Petitioner failed in two respects to comply with the requirements of the regulation. Both incidents that are cited in the survey report involve an alleged failure by Petitioner to maintain good oral hygiene for a resident who was unable to provide self-care. The alleged failures are as follows:

• Resident # 6 was observed on two occasions on consecutive days to have a dry and crusty mouth. HCFA Ex. 29 at 21 - 22.

• A resident who is identified in the survey report as Resident # 17 was observed to be eating without her dentures being in place. When asked, the resident stated that she would prefer to be wearing her dentures. The dentures were found lying loose and unprotected in a cabinet drawer next to the resident's bed. The upper denture plate had dried food particles stuck to it. HCFA Ex. 29 at 22 - 24.

Petitioner was deficient under Tag 312. I do not find that Petitioner failed to provide proper oral care for Resident # 6. However, Petitioner was remiss in the care it gave to Resident # 17.

The evidence HCFA offered as to Resident # 6 is unpersuasive. As is noted in the survey report, the resident suffered from a medical condition that was likely to produce a dry and crusted mouth. Such was likely to occur despite the care that Petitioner gave to the resident, which included regular cleaning of the resident's mouth. Tr. at 984; 1135 - 1136.

However, the evidence that HCFA offered as to Resident # 17 persuades me that Petitioner was remiss in providing oral hygiene to the resident. Petitioner argues that the resident might have removed the dentures on her own. But, even assuming that to be true, Petitioner's staff should have found the dentures and cleaned them for the resident.

j. Tag 316

The report of the July 1999 survey alleges that Petitioner failed to comply substantially with the requirements of 42 C.F.R. § 483.25(d)(2). HCFA Ex. 29 at 24 - 30. I discussed the regulation above, at Finding 3.h.

The report cites two examples of alleged failures by Petitioner to comply with the regulation. Although the examples involve different residents, they have common features. The two residents who are cited in the survey report are Resident # 5 and Resident # 10. Petitioner's staff had assessed each of these residents initially as candidates for bladder retraining. Allegedly, neither resident actually received bladder retraining from Petitioner's staff.

Petitioner does not deny that it failed to provide bladder retraining to the residents. It asserts, however, that the initial assessments of the residents were proven incorrect by subsequent developments. Petitioner argues that, in each case, bladder retraining would have been futile. It asserts that Resident # 5 refused bladder retraining when it was offered to the resident. HCFA Ex. 29 at 25. It asserts that Resident # 10 suffered from dementia that prevented successful bladder retraining. Tr. at 854 - 855, 986 - 988.

I do not find Petitioner to have been deficient under Tag 316. The preponderance of the evidence is that, in both instances cited in the survey report, it would have been futile to attempt bladder retraining of the residents. In the case of Resident # 5, the weight of the evidence establishes that the resident refused bladder retraining when it was offered to him. Thus, there was no potential for harm to the resident in Petitioner's failure to implement bladder retraining. In the case of Resident # 10, the weight of the evidence is that the resident was too demented to have benefitted from bladder retraining.

k. Tag 463

The report of the July 1999 survey alleges that Petitioner failed to comply substantially with the requirements of 42 C.F.R. § 483.70(f). HCFA Ex. 29 at 31 - 32. This regulation requires that a facility's nurses's station be equipped to receive resident calls through a communication system that operates from residents' rooms, bathrooms, and bathing facilities.

The survey report alleges that Petitioner failed to comply with the requirements of the regulation in providing care to a Resident who is identified in the survey report as Resident # 2. This resident allegedly complained to a surveyor that her call light did not work. The resident demonstrated by pressing the call light button. The light over the resident's door was not observed to come on nor was a sound triggered at the nurses' station to indicate that a call light had been activated. However, when staff was notified of the allegedly inoperable call light they immediately went to the resident's room and tested the call light button. It worked then, and again, when retested. Petitioner's maintenance personnel agreed to modify the call light button to make it more accessible to the resident.

I would find Petitioner to be deficient under Tag 463 were I to conclude that Resident # 2 had put Petitioner on notice that she was unable to operate the call light and Petitioner had failed to do anything about the complaint. However, the evidence in this case shows that the resident was so argumentative and demanding that Petitioner's staff likely did not understand her assertion that she was unable to operate the call light to be a genuine complaint. Moreover, I infer from the evidence that the resident may have contrived to demonstrate that she could not use the call light when in fact she could. For these reasons I conclude that Petitioner was not deficient under Tag 463.

Resident # 2 had problems interacting with Petitioner's staff and with other residents. HCFA Ex. 40 at 110 - 114. The resident at times was hostile and argumentative. Id. For example, on June 14, 1999, the resident asked a nurse to give her coffee, questioned the medications she was receiving, became argumentative when asked to reduce the volume of her television, and demanded to be showered ahead of schedule. Id. at 114. She preferred to yell out for help rather than to use the call light. On many occasions staff cautioned the resident to use the call light when she needed assistance. Id.

The resident's record shows that on one occasion the resident asserted that the call light did not work. HCFA Ex. 40 at 114. I conclude that Petitioner's staff justifiedly did not treat this complaint seriously. They had counseled the resident on many occasions to use the call light instead of yelling and on those occasions the resident did not attempt to excuse her conduct by asserting that she could not operate the call light. Furthermore, the resident had used the call light successfully on other occasions. Indeed, on the day prior to the date when the resident asserted that she could not use the call light, the nurses notes show that the call light button had been positioned within the resident's reach and that the resident's calls were being answered promptly. Id. at 113.

5. There is a basis to impose civil money penalties against Petitioner for its noncompliance with participation requirements as of the May and July 1999 surveys.

The evidence in this case establishes that Petitioner was not complying substantially with participation requirements as of both the May 1999 and the July 1999 survey of Petitioner. A basis therefore exists to impose civil money penalties against Petitioner for each day of its noncompliance with participation requirements. 42 C.F.R. § 488.406(a)(3).

None of the deficiencies that I find to have existed as of May or July 1999 were at the immediate jeopardy level of noncompliance. Therefore, the range of civil money penalties that may be imposed against Petitioner for each day of its noncompliance is from a minimum of $50 per day to a maximum of $3,000 per day. 42 C.F.R. § 488.438(a)(1)(ii).

6. Civil money penalties in the amount of $100 per day are reasonable for each day of Petitioner's noncompliance with participation requirements.

The evidence in this case establishes that Petitioner did not comply substantially with participation requirements beginning with May 20, 1999, the date of completion of the May 1999 survey, and running through November 17, 1999, the day before the date of the November 1999 survey. Petitioner did not offer persuasive evidence to show that it corrected any of the deficiencies that were present on May 20, 1999, which was prior to the date of the July 1999 survey. Nor did Petitioner offer persuasive evidence to show that it corrected any of the deficiencies that were present at the July 1999 survey prior to November 17, 1999. Petitioner was complying with all participation requirements on November 18, 1999.

HCFA determined to impose civil money penalties against Petitioner consisting of: $5,000 per day beginning with May 20, 1999 and continuing through June 6, 1999; $1,000 per day beginning June 7, 1999 and continuing through July 15, 1999, and; $100 per day for each day beginning with July 16, 1999. HCFA bases its determinations to impose these penalty amounts on the following considerations:

• Petitioner was deficient at the immediate jeopardy level of noncompliance from May 20 through June 6, 1999. Therefore, penalties of $5,000 per day are reasonable for each day of the period.

• From June 7, 1999 until July 15, 1999, the commencement date of the July 1999 survey, Petitioner continued to manifest serious deficiencies which included deficiencies which caused actual harm to residents (Tags 241 and 246 at the May 1999 survey). Therefore, penalties of $1,000 per day are reasonable for each day of the period.

• After July 15, 1999, Petitioner continued to manifest deficiencies. However, these were lower-level deficiencies, which did not cause residents to experience actual harm but posed a potential for harm to residents. Therefore, penalties of $100 per day are reasonable for each day of noncompliance beginning with July 16, 1999.

I find HCFA's determinations to impose $5,000 and $1,000 per day penalties based on the findings that were made at the May 1999 survey to be unreasonable for three reasons. First, there were no immediate jeopardy level deficiencies present as of May 1999. Finding 2. Indeed, the two immediate jeopardy level tags cited in the report of the May 1999 survey (Tags 224 and 353) did not, in fact, demonstrate the presence of any noncompliance by Petitioner with participation requirements.

Second, there were no deficiencies present as of May 1999 which resulted in actual harm being sustained by Petitioner's residents. I find that Petitioner actually complied substantially with the participation requirements that were cited in the report of the May 1999 survey as the basis for deficiencies that caused actual harm to residents. Findings 3.c., 3.d.

Third, the four deficiencies that I find that did exist as of May 1999 were all at scope and severity level "D." That is the lowest level of noncompliance for which a civil money penalty may be imposed. It represents only the potential for more than minimal harm to residents and no actual harm to residents.

I have considered what would be reasonable as civil money penalties for the noncompliance that Petitioner manifested as of May and July 1999 and I conclude that $100 per day is a reasonable penalty for each day of Petitioner's noncompliance. I make my decision based on the factors cited at 42 C.F.R. §§ 488.438(f) and 488.404 (incorporated by reference into 42 C.F.R. § 488.438(f)(3)). I have considered the following:

• Petitioner's history of noncompliance. Neither party offered evidence to show that Petitioner had a history of noncompliance that justified either adjusting the civil money penalties upward or downward.

• Petitioner's financial condition. Neither party established that Petitioner's financial condition was a basis for either sustaining or reducing civil money penalty amounts.

• The factors specified in 42 C.F.R. § 488.404. These include the seriousness of the deficiencies and their relationship to each other. All of the deficiencies that existed as of May and July 1999 were at level "D", meaning the lowest level of deficiency for which a civil money penalty may be imposed. There was no evidence that any resident actually was harmed by Petitioner's noncompliance. The deficiencies were isolated and did not show a pattern of noncompliance by Petitioner with participation requirements.

• Petitioner's culpability for its deficiencies. There was no persuasive evidence to show that Petitioner neglected its residents, or manifested indifference to, or disregard for, resident care, comfort, or safety. Consequently, I find no basis for increasing civil money penalties based on Petitioner's culpability.

When these factors are considered together, they establish that Petitioner manifested only low-level deficiencies that caused no harm to its residents. In consideration of that, I conclude that $100 per day is reasonable. Finally, I note that the deficiencies that Petitioner manifested throughout the May 20 - November 17, 1999 time period are at the same level as HCFA determined the deficiencies to be as of the July survey. HCFA concluded that as of July, the deficiencies that Petitioner manifested justified penalties of only $100 per day. My decision is in accord with that determination, inasmuch as the deficiencies that I find to be present in May 1999 are at the same level as what HCFA found to be present in July 1999.

JUDGE
...TO TOP

 

Steven T. Kessel

Administrative Law Judge

 

CASE | DECISION | JUDGE