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Department of Health and Human Services DEPARTMENTAL APPEALS BOARD Civil Remedies Division |
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| IN THE CASE OF | |
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Fairfax Nursing Home, |
DATE: March 22, 2001 |
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Health Care Financing Administration.
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Docket No.C-97-406
Decision No. CR753 |
| DECISION | |
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Fairfax Nursing Home (Petitioner) requested a hearing
in this case on May 8, 1997, pursuant to section 1128A(c)(2) of the Social
Security Act (Act) and 42 C.F.R. §§ 488.408(g), 498.3(b)(12),(13).(1) Petitioner is a skilled nursing facility participating
in Medicare and Medicaid. On April 8, 1997, the Illinois Department of
Public Health (IDPH) completed standard, extended, and Life Safety Code
surveys at Petitioner to determine if it was in compliance with the federal
requirements for nursing homes participating in Medicare and Medicaid. That visit resulted in a finding that Petitioner was not
in substantial compliance with participation requirements, and that the
conditions in Petitioner's facility constituted immediate jeopardy to
resident health and safety. As a result, IDPH notified Petitioner that
it would recommend to the Health Care Financing Administration (HCFA)
that it impose specific remedies. HCFA concurred
with the recommendation and, on May 7, 1997, it imposed the following
remedies:
HCFA subsequently determined that Petitioner was back
in substantial compliance on May 15, 1997. HCFA imposed a CMP totaling
$322,300, calculated as follows: a daily fine of
$3,050 from December 20, 1996 through April 3, 1997 (a total of $320,250);
and a daily fine of $50 from April 4, 1997 through May 14, 1997 (a total
of $2,050). Petitioner does not contest any of the deficiencies which
were the basis of the $2,050 CMP from April 4, 1997 through May 14, 1997.
Petitioner's Readiness Report at 1. At issue is HCFA's finding of immediate
jeopardy, which is the basis of the CMP imposed from December 20, 1996
through April 3, 1997. A hearing was held before me in Chicago, Illinois, from
May 31 through June 2, 2000. At the hearing HCFA offered 21 exhibits identified
as HCFA Ex. 1 - 21. Petitioner did not object to HCFA Ex. 1 - 20, and
I admitted them into evidence. Petitioner objected to HCFA Ex. 21. I overruled
Petitioner's objection, and admitted HCFA Ex. 21 into evidence. Petitioner
offered 20 exhibits identified as P. Ex. 1 - 20. HCFA did not object to
P. Ex. 1 - 20, and I admitted them into evidence. HCFA subsequently submitted a posthearing brief (HCFA
Brief). Petitioner submitted a response brief (P. Response). Attached
to Petitioner's response brief is a May 26, 1998 final order and decision
issued by IDPH. I identify this document as P. Attachment 1. Petitioner
argues that the IDPH decision is instructive because it shows that the
facts of this case "did not rise to the state equivalent of an immediate
jeopardy." P. Response at 20. HCFA submitted a reply brief (HCFA Reply). Attached to
HCFA's reply brief is a November 7, 2000 ruling issued by an Administrative
Law Judge of this office. I identify this document as HCFA Attachment
1. HCFA argues that reliance on the IDPH decision would be misplaced,
and it cites the attached ruling as support for the proposition that I
should refuse to defer to State administrative findings made in State
proceedings where HCFA was not a party. The IDPH decision is not binding on me, and I accord it
little weight. As HCFA points out, HCFA was never a party to the State
proceedings and the State decision is the product of a different evidentiary
record as well as different legal standards. Based on the testimony offered at the hearing, the documentary
evidence, the arguments of the parties, and the applicable law and regulations,
I find that from December 20, 1996 through April 3, 1997, Petitioner was
not in substantial compliance at the immediate jeopardy level. Thereafter,
and continuing through May 14, 1997, Petitioner admits that it was not
in substantial compliance at less than the immediate jeopardy level of
severity. I find further that HCFA is authorized to impose CMPs against
Petitioner at the rate of $3,050 per day from December 20, 1996 through
April 3, 1997, and at $50 per day from April 4, 1997 through May 14, 1997.
Applicable Law and Regulations Petitioner is considered to be a long-term care facility
under the Act and regulations promulgated by the Secretary of the United
States Department of Health and Human Services (Secretary). The statutory
requirements for participation by a long-term care facility are found
at sections 1819 and 1919 of the Act. The regulatory requirements are
found at 42 C.F.R. Part 483. Sections 1819 and 1919 of the Act invest the Secretary
with the authority to impose CMPs against a long-term care facility for
failure by the facility to comply substantially with participation requirements. Pursuant to the Act, the Secretary has delegated to HCFA
and the States the authority to impose remedies against a long-term care
facility that is not complying substantially with federal participation
requirements. 42 C.F.R. Part 488 provides that facilities which participate
in Medicare may be surveyed on behalf of HCFA by State survey agencies
in order to ascertain whether the facilities are complying with participation
requirements. 42 C.F.R. §§ 488.10 - 488.28. The regulations contain special
survey provisions for long-term care facilities. 42 C.F.R. §§ 488.300
- 488.325. Under Part 488, a State or HCFA may impose a CMP against a
long-term care facility where a State survey agency ascertains that the
facility is not complying substantially with participation requirements.
42 C.F.R. §§ 488.406, 488.408, 488.430. The penalty may start accruing
as early as the date that the facility was first out of compliance and
continue until the date substantial compliance is achieved or the provider
agreement is terminated. The regulations specify that a CMP that is imposed against a facility will fall into one of two broad ranges of penalties. 42 C.F.R. §§ 488.408, 488.438. The upper range of CMPs, of from $3,050 per day to $10,000 per day, is reserved for deficiencies that constitute immediate jeopardy to a facility's residents, and, in some circumstances, for repeated deficiencies. 42 C.F.R. §§ 488.438(a)(1), (d)(2). The lower range of CMPs, of from $50 per day to $3,000 per day, is reserved for deficiencies that do not constitute immediate jeopardy, but either cause actual harm to residents, or cause no actual harm, but have the potential for causing more than minimal harm. 42 C.F.R. § 488.438(a)(2). The terms "substantial compliance" and "immediate jeopardy" are defined terms in the regulations which govern participation of long-term care facilities in Medicare. "Substantial compliance" is defined to mean:
42 C.F.R. § 488.301. "Immediate jeopardy" is defined to mean:
Id. There are additional factors which the State and HCFA consider in determining where within a range of penalties, once the range is established, the amount of a CMP should be. These include the facility's:
42 C.F.R. § 488.438(f). Additionally, the State and HCFA
may consider factors specified in 42 C.F.R. § 488.404. These include the
relationship that a deficiency may have to other deficiencies and a facility's
prior history of deficiencies. The applicable burden of proof in a CMP case requires
HCFA to prove a prima facie case that the facility has failed to comply
substantially with one or more participation requirements. To prevail,
a facility must overcome HCFA's showing by a preponderance of the evidence.
Hillman Rehabilitation Center, DAB No. 1611 (1997); aff'd
Hillman Rehabilitation Center v. United States, No. 98-3789 (GEB)
(D.N.J. May 13, 1999). HCFA's determination that a deficiency constituted
immediate jeopardy must be upheld unless the facility proves that the
determination was clearly erroneous. 42 C.F.R. § 498.60(c)(2); Woodstock
Care Center, DAB No. 1726, at 9 (2000). The Act and regulations make a hearing before an Administrative
Law Judge available to a long-term care facility against whom HCFA has
determined to impose a CMP. Act, section 1128A(c); 42 C.F.R. §§ 488.408(g),
498.3(b)(12), (13). The hearing before an Administrative Law Judge is
a de novo proceeding. Anesthesiologists Affiliated, et al., 941
F.2d 678 (8th Cir. 1991).
Issues 1. Whether Petitioner was complying substantially with
federal participation requirements on the dates HCFA determined to impose
a CMP. 2. If it is established that Petitioner was not complying
substantially with federal participation requirements, what was the level
of non-compliance. 3. If non-compliance is established, whether the amount
of the penalty imposed by HCFA is reasonable.
Findings and Discussion Findings of fact and conclusions of law are stated below
in italics. They are followed by a discussion of each finding.
The applicable regulation at 42 C.F.R. § 483.25, entitled
"Quality of care," provides:
As a corollary to this overarching requirement, 42 C.F.R. § 483.25(k) provides that the facility "must ensure" that residents receive proper treatment and care for "special services," including:
Below, I will discuss examples of failures by Petitioner
to comply with the pertinent regulatory requirements mentioned above.
Resident number 10 (R10)
State surveyor findings The findings of the State surveyors are set forth in a
HCFA Form 2567. HCFA Ex. 1. In essence, the State surveyors found that
the staff caring for R10 "did not follow guidelines/procedures/protocols
in the provision of respiratory care, and that lack of adherence directly
caused the death of R10." HCFA Ex. 1 at 21. Discussion The record shows that on December 20, 1996, R10 experienced
an episode of respiratory distress and required care. Transcript (Tr.)
at 135. She was completely dependent on a ventilator for breathing, as
she could not do so on her own. Tr. at 138. Respiratory therapists administered oxygen to the resident
using a device known as an ambu-bag. This device allows an operator to
manually force air into the lungs in order to promptly raise the oxygen
saturation level of a resident to normal. During the process of "ambu-bagging,"
a respiratory technician disconnected the resident from the ventilator,
and turned the machine off.(2) After manually
elevating the resident's oxygen saturation level, the therapist reconnected
R10 to the ventilator, but did not turn the machine back on. This left
the resident without any oxygen supply. She died as a direct result. Tr.
at 135 - 138; HCFA Ex. 12. Ms. Patricia Benda, the Director of Nursing (DON), was
notified at home that R10 had died under questionable circumstances. Tr.
at 479 - 480. She went to the facility and inquired as to the facts surrounding
the death of R10, and learned that the ventilator had been turned off
when R10 was being administered respiratory therapy. Ms. Benda was unable
to obtain information as to who turned the ventilator off from the two
attending respiratory therapists, Brenda Harris and Michael Anderson.
The latter, who was the last person in the room with the resident, initially
denied turning off the ventilator. Tr. at 480 - 482. The police were alerted and they came and took Mr. Anderson
into custody. Under police interrogation, he stated that he "unconsciously"
turned the ventilator off to silence its alarm while Ms. Harris was in
the process of giving the resident manual respiratory therapy with an
ambu-bag. The resident was returned to stable condition and everyone left
the room. He was the last one out, and forgot to turn the ventilator back
on. HCFA Ex. 12 at 7.(3) Ms. Benda testified that Petitioner had a policy to the
effect that the ventilator was never to be turned off unless the resident
had been pronounced dead by a physician, or two registered nurses, or
transferred to a hospital. Tr. at 484. If such a policy did exist, it
appears to be an unwritten policy because no document containing that
policy was produced at the hearing. It was not until February 1997 that Petitioner developed
a written policy for the care and treatment of ventilator dependent residents
in respiratory distress; and it was not until the beginning of March 1997
that, after much deliberation, the policy was implemented. That policy,
entitled "Nursing Guidelines for Ventilator Dependent Residents in Respiratory
Distress," was developed in the aftermath of the tragic events of December
20, 1996, involving R10. P. Ex. 10; Tr. at 491 - 492. The main purpose of those new guidelines was not only
to ensure proper care and treatment for ventilator dependent residents
who experienced respiratory distress, but also to provide monitoring for
those whose respiratory distress symptoms had been relieved. Tr. at 510;
P. Ex. 10. Stabilized ventilator dependent residents were to be observed
by a nurse and charted every fifteen minutes for up to an hour. The documentation
would include vital signs, respiratory status, oxygen saturation levels,
lung sounds, ventilator settings, level of consciousness, odor, color,
and consistency of secretions, and comfort level of the resident. Any
further respiratory distress noted during the monitoring period would
warrant an immediate call to the attending physician, and continued observation
and documentation throughout the shift, or until the resident stabilized
or was transferred to a hospital. P. Ex. 10. Ms. Benda, the DON, agreed that the policy adopted by
the facility after the incident of December 20, 1996 embodied good nursing
practices, and that R10 should have been monitored after apparently having
been stabilized. Tr. at 502. It is unequivocal, from the facts of this case, that Petitioner's
carelessness was the direct cause of R10's death. Tr. at 489. The lack
of due care is first evident from the act of turning the resident's ventilator
off, and then from not monitoring the resident after she apparently had
been stabilized. As stated by Ms. Benda in her testimony, such monitoring
is good nursing practice. She testified that it "should be done on every
resident that goes into any type of distress." Tr. at 502. Furthermore,
Petitioner did not have a written policy for the protection of ventilator
dependent residents in respiratory distress. It is evident that whatever
non-written guidelines existed were either improperly communicated to
the attending staff or were not diligently applied. Resident number 126 (R126)
State surveyor findings On March 2, 1997, R126 was noted with an oxygen saturation
level (SAO2)(4) of 80%, a temperature of
100.9, a pulse of 100, and respirations of 40. The treating physician
was called, and treatment was prescribed for immediate administration.
HCFA Ex. 1 at 22. The doctor ordered a chest x-ray,(5)
start IV and antibiotics, instill blue dye into the tube feeding,(6)
and elevate the head of the bed 45 degrees. There is no indication in
the medical chart that these orders were carried out, nor is there a complete
assessment of R126 as per facility guidelines. HCFA Ex. 1 at 22 - 23. Discussion Petitioner argues that R126 was admitted to the facility
in a vegetative state, and that it is reasonable to conclude that his
death was attributable to his very precarious condition. Tr. at 760. Specifically,
it asserts that when the charge nurse noticed changes in the resident's
condition she proceeded to take proper action. She began to monitor the
resident and called the treating physician, who prescribed a course of
treatment over the phone. Petitioner alleges that all of the doctor's
orders were complied with, even though they were not charted. Finally,
Petitioner contends that the issue of whether the antibiotic, Timentin,(7)
was administered is specious, inasmuch as Dr. John Hardek, the treating
physician, testified that it takes 24 hours for that medication to take
effect. Tr. at 761 - 762. Contrary to Petitioner's assertions, Dr. Hardek testified
that in his opinion the resident died of pneumonia (Tr. at 47) and that,
with treatment, the resident may have recovered from the pulmonary condition.
Tr. at 35. It is Dr. Hardek's testimony that it would take time for the
antibiotic to start working. Tr. at 47. However, this fact, rather than
justifying a failure to administer it, serves to underscore the need for
its prompt administration so that its therapeutic effects could be felt
as soon as possible. For the reasons set forth below, I find that Petitioner
was woefully inadequate in the treatment and care of R126, in violation
of 42 C.F.R. § 483.25(k). Such conduct caused or was likely to cause serious
injury, harm, impairment or death to the resident. The treatment and care charts for R126 do not reflect
that any of Dr. Hardek's orders, telephonically relayed on March 2, 1997,
were carried out. P. Ex. 9. It is unknown how much time transpired from
when Dr. Hardek gave his instructions over the phone to when the resident
passed away. From the totality of the record, it is reasonable to conclude
that several hours passed. There is an indication in the record that the
treating physician gave his orders during the morning portion of the nurse's
7:00 a.m. to 3:00 p.m. shift. Tr. at 335, 337. The progress notes have
a "12 noon" insertion as to when the resident was found dead, but that
entry is unreliable. P. Ex. 9 at 5. That insertion appears to have been
made after the fact at some unknown date and time by the charge nurse,
Ms. Tamilyn Lawrence, whose testimony, as will be seen below, was vague
and replete with generalities. As charge nurse, it was Ms. Lawrence's duty to follow through with Dr. Hardek's orders. She testified that she carried these out in the following way:
Tr. at 342. She allegedly asked her Assistant Director of Nursing (ADON) to help her with the IV antibiotic, because:
Tr. at 342 - 343. Additionally, she "probably" asked the respiratory therapist
to take samples for a sputum culture. Tr. at 364.(8) Of all the orders given by Dr. Hardek, the only one Ms.
Lawrence claimed that she did herself was the insertion of the blue dye
in the feeding tube. Surprisingly, she could not say what the results
were, nor did she make a record of it. Tr. at 343 - 344. She claimed that
she was too busy to be able to provide for the needs of R126, but she
made no specific mention of any particular task that took precedence over
the care and treatment he required at that critical moment. Although Ms.
Lawrence allegedly asked others for help, she could not say for certain
whether the sputum samples were taken or whether the antibiotic was given.
If Ms. Lawrence had carried out all of the treating physician's
orders herself, and had stayed by the resident's bedside monitoring him
throughout his crisis, I might be more persuaded that there was an excuse
for not documenting the medical charts. However, the only entry required
of her was that of the administration of the blue dye test. The ADON,
who allegedly administered the antibiotic, also failed to make an entry
to that effect. Likewise, the respiratory therapist, who supposedly took
the sputum sample, also failed to record the event. It would have been
very easy for Petitioner to produce the results of the sputum tests and
x-rays, the findings of the blue dye test, or an entry showing the dispensing
of the antibiotic. Because it did not do any of these things, too many
factors converge to detract from Petitioner's credibility regarding compliance
with Dr. Hardek's orders. Petitioner's argument that, even if it had fully complied
with the treating physician's orders immediately the resident would still
have died, is unavailing. A finding of immediate jeopardy does not hinge
on a showing of a direct causal relationship between the facility's failure
to carry out the treating physician's orders and the death of the resident.
Petitioner cannot argue that it did not immediately carry out the treatment
and care prescribed for R126 because it knew that he would soon die. It
is true that Petitioner was aware that R126 was extremely fragile and
vulnerable, but that knowledge should have served as a catalyst for prompt
and urgent action. The record presents a picture of a lackadaisical staff,
rather than a staff aggressively treating a pneumonia that was further
aggravating the resident's already compromised health. Even if the physician's orders had been carried out and
not charted, that alone would have placed the resident at great risk,
inasmuch as responsible and meaningful follow-up treatment would have
been at peril, absent such vital information. Matters are much worse here,
however, in that there is not a shred of credible evidence that R126 was
administered the treatment prescribed by his physician. That treatment
was intended to treat a pneumonia, and as stated earlier, his treating
physician identified that condition as the cause of death. It is irrelevant,
as Petitioner argues, that R126 would have expired in spite of treatment.
Petitioner had a duty with respect to R126 to administer the necessary
care and treatment that would further R126's well being. Far from satisfying
this requirement, Petitioner's actions, or lack thereof, had the potential
to cause serious injury, harm, impairment, or death to the resident. I also note that although R126 had a dangerously low SAO2
level at 80%, there is no documentation that he was suctioned or received
respiratory therapy to increase his oxygen level. Ms. Lawrence testified
that she recalled that R126 was suctioned, but had no recollection that
ambu-bagging occurred or whether the oxygen levels on the ventilator were
increased. Treatment or monitoring would be reflected in the progress
notes or respiratory flow sheets, she said. Yet, she admits that the records
fail to show that efforts were directed at increasing R126's SAO2 level.
Tr. at 382 - 386. Resident number 127 (R127)
State surveyor findings The State surveyors determined that on March 5, 1997,
at 10:00 p.m., R127 was found pale, with mottled extremities, and an SAO2
of only 75%. There was no complete assessment of the resident, no vital
signs were taken, no follow-up assessments every 15 minutes were done,
and no physician was notified. HCFA Ex. 1 at 23. On March 7, 1997, at an unknown time during the 7:00 a.m.
to 3:00 p.m shift, R127 was found cyanotic, requiring emergency ambu-bagging
for five minutes. Nursing charted four follow-up notes, but only assessed
R127's color and SAO2 levels. No vital signs or complete assessment were
noted in the resident's record, as required by the guidelines. HCFA Ex.
1 at 23. Respiratory Care made a note on March 7, 1997, during the 7:00 a.m. to 3:00 p.m shift, that R127 had a total of three episodes in which the resident required emergency bagging for 10-15 minutes and experienced twitching and turning of her head back and forth. Her SAO2 dropped to 82%. There is no indication that the
treating physician was notified of the multiple episodes of respiratory
distress. HCFA Ex. 1 at 23 - 24. Again on March 10, 1997, there is a note by Respiratory
Care, during the 7:00 a.m. to 3:00 p.m. shift, that R127 had another episode
of turning blue, yet there is no nursing entry addressing respiratory
distress and no vital signs or assessments were charted. HCFA Ex. 1 at
24. On March 21, 1997, at an unknown time during the 7:00
a.m. - 3:00 p.m. shift, R127 was found with mottled legs, shaking, and
SAO2 of 74%. The physician was there and she was ambu-bagged and given
Valium. No complete assessments were done and follow-up was not carried
out as per the guidelines. HCFA Ex. 1 at 24. On March 25, 1997, R127 was found to have MRSA (methicillin-resistant
staph aureus) in the sputum. R127 was found dead at approximately 7:45
p.m. on March 27, 1997. HCFA Ex. 1 at 24. Discussion Dr. Alberto Saltiel, R127's treating physician and Petitioner's
medical director at the relevant time (Tr. at 62, 79), diagnosed R127
with pneumonia, and noted that she had been experiencing episodes of respiratory
distress and convulsions. During the period preceding her death, he gave
orders aimed at making the resident comfortable. This, he said, entailed
raising the oxygen saturation level and stopping the seizures. Specifically,
Dr. Saltiel stated that he directed that she be given respiratory therapy,
Valium, and Dilantin. Nothing was prescribed for her pneumonia in view
of her do not resuscitate (DNR) status.(9)
Tr. at 65 - 73. Doctor Saltiel testified that R127 was admitted to Petitioner
after surgical removal of an esophageal diverticulum. Allegedly, she was
also suffering from chronic obstructive pulmonary disease (COPD) which,
in the treating physician's opinion, was terminal.(10)
Doctor Saltiel further stated that the resident's family placed her in
the nursing home for the purpose of receiving comfort care, and that nothing
was to be done to prolong her life. In spite of that, it was Doctor Saltiel's
opinion that R127 had lived beyond expectation.(11)
Tr. at 64, 66. Petitioner has presented no evidence to rebut HCFA's assertions
that it failed to follow its own policy regarding the care and treatment
of ventilator dependent residents in respiratory distress. In this respect,
Dr. Saltiel's testimony not only confirmed the wisdom of the policy,(12)
but also highlighted its ineffectual application. For example, on March
5, 1997, R127 was noted to have a pale color, mottled extremities, and
an SAO2 of 75%.(13) The progress notes
show that she was ambu-bagged for five minutes and her SAO2 increased
to 97%. The attending nurse noted that monitoring would continue. The
record does not indicate how the monitoring would be done, nor is there
documentation evidencing that monitoring was performed. P. Ex. 11 at 2. Dr. Saltiel conceded that a resident who has experienced
respiratory distress should be stabilized and monitored to ensure that
return to normal functioning has in fact occurred. He also agreed that
the guidelines for care and treatment of respiratory distress residents
adopted by Petitioner called for monitoring every 15 minutes for a total
of one hour. Tr. at 114 - 115. Such monitoring, as per the policy, encompasses
vital signs, respiratory status, oxygen saturation level, lung sounds,
ventilator settings, level of consciousness, odor, color, and consistency
of secretions, and comfort level of the resident. P. Ex. 10. Such charting
is absent from the progress notes of R127 during the various respiratory
distress events mentioned by the surveyors in the findings noted above. Although Dr. Saltiel appeared to recognize the virtues
of the respiratory distress guidelines, he seemed confused regarding its
application. Pertinent to this is his distorted understanding of the requirement
to monitor a resident at 15-minute intervals for up to an hour after a
respiratory distress event. When asked by counsel for HCFA whether or
not the facility should have monitored R127 every 15 minutes on March
5, 1997, Dr. Saltiel responded that the resident was monitored more often
than every 15 minutes. He added that just because the guidelines say that
monitoring should be done every 15 minutes, it does not mean that it can't
be done more often. In support of this statement, he referred to the entry
at page 2 of P. Ex. 11, where it says that the resident was ambu-bagged
for five minutes when she was found with an SAO2 of 75%. Tr. at 115 -
116. Clearly, the intent of the guidelines is that, after being properly
stabilized, a resident should then be monitored every 15 minutes for up
to an hour. The number of minutes during which the resident is initially
oxygenated bears no connection to the 15-minute interval monitoring after
stabilization. The logic behind the conclusion that ambu-bagging for five
minutes constitutes monitoring at less than the 15 minute interval called
for in the policy escapes me. Elsewhere, Dr. Saltiel testified that multiple crises of respiratory distress do not warrant notification of the treating physician as per the guidelines. On a personal level, he thought it would be a matter that he would like to be informed about. Tr. at 119. In saying this, he overlooked the language of the Nursing Guidelines for Ventilator Dependent Residents in Respiratory Distress. The last paragraph of page 1 of that document states as follows:
P. Ex. 10 at 1. Dr. Saltiel, as well as Ms. Carolyn Nealy, the respiratory
therapist, acknowledged that R127 experienced multiple episodes of respiratory
distress on March 7, 1997. Tr. at 117, 455 - 456. Notwithstanding the
unequivocal requirement of the guidelines, Dr. Saltiel seemed unfazed
by the fact that R127, his patient, had experienced a series of respiratory
distress events on March 7, 1997, and he was not notified. P. Ex. 11 at
3. It is not clear whether R127 experienced respiratory distress
on March 10, but she did have such an event on March 21, 1997. P. Ex.
11 at 3 - 4. As with respect to the earlier dates of March 5 and 7, no
proper charting or monitoring, as required by the guidelines for respiratory
distress residents, was performed. It is noteworthy that the progress
notes show that on March 21, when R127 went into respiratory distress
with an SAO2 of 74%, she was ambu-bagged by the therapist. P. Ex. 11 at
4. However, the therapist, Ms. Carolyn Nealy, testified that when she
began to ambu-bag R127, Dr. Saltiel ordered her to stop because the resident
was twitching and Dr. Saltiel said that the ambu-bagging would not relieve
the twitching. Tr. at 462. That reasoning leaves me aghast since the therapist
was not providing relief for the twitching, but for the respiratory distress.
The incident is particularly disturbing in light of Dr. Saltiel's testimony
that the respiratory distress caused oxygen decrease in the brain, and
that, in turn, produced the convulsive reaction. Tr. at 68. It would appear
logical, then, that the convulsions or twitching could be relieved by
restoring oxygen to the brain through ambu-bagging. At one point in his
testimony, Dr. Saltiel stated that on March 21, 1997, R127 was treated
according to the guidelines by improving her oxygen level. That, he said,
would provide comfort for the resident. Tr. at 73. Ms. Nealy's testimony,
which I believe to be true, establishes that what Dr. Saltiel did was
make R127 suffer from lack of oxygen. I find Dr. Saltiel's testimony at
pages 68 and 69 of the transcript, to the effect that his orders were
directed at stopping the seizures with Valium and
Dilantin, consistent with Ms. Nealy's testimony that the physician did
not allow her to provide emergency oxygen to the resident. If the medical director had a flawed understanding of
the application of the guidelines for handling respiratory distress residents,
I am not surprised that the nurses and respiratory therapists displayed
the kind of ignorance as to those same matters that permeate the record
of this case. I find the testimony of Ms. Joella Daniel, a surveyor,
persuasive that Petitioner failed to monitor R127 during and after episodes
of respiratory distress. This is particularly true on March 5, 7, and
21, 1997. From Ms. Daniels' testimony, I conclude that monitoring after
ambu-bagging at successive intervals is crucial because an elevated SAO2
level immediately after oxygenation does not tell the true story of oxygen
levels in the blood. The pulse, respiration, blood pressure, and temperature
readings are some of the indicators of true stabilization. A resident's
elevated SAO2 level immediately after ambu-bagging could be misleading.
Thus, there is a need to continue close observation and scrutiny at successive
intervals. Accurate recording in the progress notes of indicators such
as those mentioned above will provide medical personnel vital information
for the proper care and treatment of a respiratory distressed resident.
On the other hand, the absence of such monitoring and charting of critical
data regarding a respiratory distressed resident places that individual
at risk for serious harm or death. Tr. at 171 - 175. Also damaging to a resident could be the failure to notify
the treating physician of such abnormalities as repeated episodes of respiratory
distress. That is precisely what occurred on March 7, 1997. Petitioner's
own policy states that more than one episode of respiratory distress warrants
an "immediate call" to the treating physician. P. Ex. 10. In view of this,
I do not give credence to Dr. Saltiel's testimony that repeated episodes
of respiratory distress are not unusual, and therefore, impliedly of no
serious concern. Tr. at 118 - 119. Ms. Daniels, on the contrary, considered
that three episodes in one shift was significant and should have triggered
notification of the treating physician. Tr. at 182 - 183. Likewise, Ms.
Tamilyn Lawrence, one of Petitioner's nurses who had worked at Petitioner's
facility since 1989, was of the opinion that three episodes in one shift
requiring emergency respiratory care is not a common occurrence. She went
on to agree that such a serious situation mandated adherence to the facility's
respiratory distress protocol. Tr. at 392. On cross-examination of Ms. Daniels, counsel for Petitioner
tried to highlight that the record reflected that on those occasions in
March 1997 when R127 went into respiratory distress, the treatment given
brought about improvement in her condition. Tr. at 244 - 247. However,
those references in the record indicating a positive response to treatment
are not evidence that Petitioner carried out the assessments and monitoring
at 15-minute intervals required by the guidelines. By failing to address
the issue squarely, and pointing to irrelevant matters, Petitioner implicitly
concedes that it ignored the application of its own policy. As stated
earlier, its witnesses extolled the virtues of the policy, but few, if
any, would live by it. Lip service falls far too short of the requirements. I find that Petitioner's failure to properly assess and
monitor R127 during and after episodes of respiratory distress, as well
as the failure to notify the treating physician regarding repeated episodes
of respiratory distress, exposed the resident to risk of serious injury,
harm, impairment, or death. Residents 83 and 68 (R83 & R68))
State surveyor findings (R83) On March 23, 1997, at 8:30 a.m., R83 was found non-responsive.
SAO2 was only 75% and vital signs were as follows: blood pressure 60/-
(systolic only shown); pulse 100; respirations 12; and temperature 98.6.
R83 was ambu-bagged and suctioned, with a large amount of thick, green-yellow
sputum received, and the treating physician was called. The next entry
was at 9:30 a.m., an hour later, noting that R83 was responding. This
entry noted blood pressure, pulse, SAO2 level, and that an IV was started.
The next and final follow-up entry was not made until 12:00 p.m., and
it only noted blood pressure, pulse, and SAO2 level. HCFA Ex. 1 at 25
- 26. Discussion Ms. Daniels testified that on March 23, 1997, at 8:30
a.m., R83 was non-responsive to any verbal stimuli. The blood pressure
reading only registered a systolic of 60, and the diastolic was so low
that it was unobtainable. That would be indicative, she said, of a semi-shock
state, where oxygen may not profuse throughout the body. She added that
the pulse rate was 100 and the respirations were 12. The increased heart
rate was the body's response to the lack of oxygen. She explained that,
by pumping harder and faster, the heart tries to bring oxygen to the tissues.
Tr. at 193 - 196. The progress notes show that R83 had an SAO2 of 75%. From
earlier references, it is known that this level of oxygen placed the resident
at great risk. He was ambu-bagged and suctioned. The suctioning was productive
of a large amount of green-yellow sputum. HCFA Ex. 16 at 2. The treating
physician was called and orders were received. However, the charge nurse
failed to specify what those orders were. The clinical picture presented by R83 is obviously that
of a resident in respiratory distress. The situation should have triggered
the application of the guidelines for respiratory distressed residents.
Those guidelines had been adopted in early March 1997, and it is evident
that, on March 23, the charge nurse continued to ignore its application.
After R83 was ambu-bagged and suctioned at 8:30 a.m., no further clinical
observations were recorded until 9:30 a.m. There was no monitoring at
15-minute intervals, as required by the guidelines for ventilator dependent
residents in respiratory distress. Again, Petitioner does not address its failure to apply
the guidelines for ventilator dependent residents in respiratory distress.
Those guidelines were intended to secure the best possible treatment for
residents such as R83. Although his condition was extremely critical,
and every minute counted, he remained unattended for an hour. It was not
until 9:30 a.m. that he was treated with an IV. At that time his SAO2
had increased to normal or near normal range, and his blood pressure increased
to 110/60. HCFA Ex. 16 at 2. The fact that he showed improvement does
not excuse Petitioner's failure to follow the guidelines. That R83 survived Petitioner's incompetent care and treatment
does not excuse the fact that he was placed at risk of serious injury,
harm, impairment, or death. State surveyor findings (R68) On April 3, 1997 at 8:15 p.m., R68 became cyanotic with
an SAO2 of 75%, requiring emergency ambu-bagging and increasing the FIO2
(fraction of inspired oxygen) on the ventilator to 40%. Nursing failed
to make complete assessments and vital signs as indicated in the new guidelines.
On April 4, 1997, Respiratory Care made a note that R68 was too unstable
to perform routine tracheostomy change. HCFA Ex. 1 at 25. Discussion Petitioner's ventilator flow sheet for R68 reflects that
on April 3, 1997, at 7:15 p.m., the resident was cyanotic and had an SAO2
of 71%. P. Ex. 12 at 8. The therapist ambu-bagged R68 with oxygen, but
there is no indication that R68 was monitored thereafter in accordance
with Petitioner's respiratory guidelines. Tr. at 229. Petitioner's records
do not indicate whether R68's SAO2 level returned to normal after ambu-bagging
or whether R68 was stabilized. The next record reference to R68 was not
made until 8:15 p.m., an hour later. At that time, a nurse noted that
R68 was again cyanotic with an SAO2 of 75%. Ambu-bagging was again performed.
P. Ex. 12 at 3. While R68 was monitored at 15-minute intervals beginning
at 8:15 p.m., the assessments omitted some vital sign information and
other required evaluation data. The record shows that, notwithstanding R68's extreme fragility,
he did not have the benefit of care and treatment required for ventilator
dependent residents in respiratory distress. Ms. Daniels testified that
it was "pretty lucky" that nothing serious happened to R68, because, in
a matter of minutes, brain damage could be sustained from lack of oxygen.
Tr. at 230. Petitioner's duty to provide appropriate respiratory care
to its ventilator dependent residents cannot be a matter of chance. It
has to assure a resident the necessary care and services to attain or
maintain the highest practicable physical, mental, and psychosocial well-being
in accordance with the comprehensive assessment and plan of care. 42 C.F.R.
§ 483.25. I note, however, that the inability to perform routine
tracheostomy care on R68 on April 4, 1997, is not indicative of a deficiency
on the part of Petitioner. Residents 6 and 11 (R6 & R11)
State surveyor findings On April 2, 1997, the surveyor observed an employee at Petitioner's facility perform tracheostomy care on R6 And R11 without using sterile procedures and without hyper-oxygenating(14) the residents prior to or after suctioning. HCFA Ex. 1 at 26 - 27. Discussion HCFA contends that the failure to apply sterile suctioning
procedures runs counter to Petitioner's own policy. HCFA Ex. 21; Tr. at
734. Specifically, Ms. Benton-Babatunde, a surveyor, testified that the
employee providing tracheostomy care to R6 and R11 used an improper solution
to clean the trachea prior to initiating suctioning procedure. The employee
used the same solution to clear the catheter after suctioning as well
as during the process. By using the same solution to clear the suctioning
tubing as well as to clean the area around the tracheostomy site, the
affected resident is put at great risk of having bacteria introduced into
the trachea and lungs. The result, stated Ms. Babatunde, could be pneumonia
or sepsis, where the bacteria traveling through the circulatory system
causes generalized body infection. Tr. at 297 - 298. Proper hygiene is especially critical in the case of nursing
home residents, due to their high level of susceptibility to pneumonia
and other infections. More significantly, they are more vulnerable to
the more virulent types of pneumonia. Tr. at 55, 298.
The surveyor's findings also indicated that the employee
providing tracheostomy care to R6 and R11 failed to hyper-oxygenate the
residents prior to or after suctioning. Petitioner addressed this with
the testimony of Ms. Joyce Casares, a nurse. She testified that hyper-oxygenation
of the resident is not necessary because the facility has a "closed system"
of respiratory therapy. With that system it is not required to remove
the resident from the ventilator during suctioning. Tr. at 415 - 416.
At a later point in her testimony, however, she conceded that during suctioning
no air would be able to enter the lungs. In that case, even in the presence
of a "closed system," the oxygen deprivation would appear to justify hyper-oxygenation.
Tr. at 428 - 429. This testimony was contradicted by another of Petitioner's
witnesses, Ms. Benda. Ms. Benda indicated that in a "closed system" the
ventilator dependent resident is not deprived of oxygen at any time during
suctioning. Tr. at 497 - 498. In addition to the above, there is another inconsistency
noted between the testimonies of Ms. Benda and Ms. Casares. Whereas Ms.
Casares (who worked at Petitioner's facility for 27 years), stated that
the so called "closed vent system" had been in place at the facility since
"almost the very beginning" (Tr. at 415), Ms. Benda stated that at the
time of the incidents leading up to this case, the "closed system" was
fairly new to the field of respiratory therapy. Tr. at 496. In rebuttal, HCFA recalled Ms. Benton-Babatunde to the
stand. She stated that during the survey of the facility, Petitioner presented
her with a policy titled "Sterile Suctioning of a Tracheostomy Tube."
HCFA Ex. 21; Tr. at 734. That policy addressed the kind of suctioning
procedure performed with the equipment observed by Ms. Benton-Babatunde
on April 2, 1997. That policy did not refer at all to the "closed system"
suctioning method mentioned by Ms. Casares and Ms. Benda. More importantly,
the guidelines made available to the surveyor went to great lengths to
explain the proper way to perform sterile suctioning and how to properly
hyper-oxygenate a resident. If, as Ms. Benda testified, the closed system was new,
it could not have been in place since "almost the very beginning," as
alleged by Ms. Casares. On the other hand, if it was new, it was not yet
in use at the time of the survey in question. At best, it could have been
in the process of being phased in, but on the day of the survey, Ms. Benton-Babatunde
did not see that "new" system. She only saw the method that requires hyper-oxygenation,
and Petitioner gave her the policy that applied to that type of suctioning
procedure. Moreover, Mr. Jesus Rodriguez, the director of respiratory
care, testified that staff would hyper-oxygenate a resident if it were
deemed to be needed. It was a clinical judgment, he said. Tr. at 556.
He appeared to recognize the existence of a suctioning method that could
call for hyper-oxygenation, even though his testimony was a departure
from the suctioning protocol adopted by the facility that mandated hyper-oxygenation.
This evinces Petitioner's poor dissemination of its policies to the staff.
It is particularly disconcerting that those in supervisory positions were
so ill-informed. In view of the foregoing, I find Ms. Benda's and Ms. Casares'
testimony regarding the suctioning method employed at Petitioner on April
2, 1997, not credible. Ms. Benton-Babatunde's testimony is more consistent
with the evidence of record and deserving of probative value. In reaching
this conclusion, I must also say that Petitioner presented no reliable
evidence to discredit the surveyor's testimony that in the tracheostomy
care of R6 and R11, it failed to apply proper sterile suctioning technique
and it did not ventilate the residents with enriched oxygen, as required
by its own policy guidelines. HCFA Ex. 21. The deficient tracheostomy care provided to R6 and R11
placed them at risk of serious injury, harm, impairment, or death. Resident Number 130 (R130)
State surveyor findings On March 17, 1997, at 1:00 a.m., R130 complained of a
swollen neck and difficulty breathing. The respiratory therapist attempted
suctioning, but the results were unproductive. Respiratory treatment was
then given, along with Ativan, as needed. No complete assessment was done,
nor were vital signs taken. HCFA Ex. 1 at 25. Discussion I note from the record that R130 had an SAO2 of 96% at
1:00 a.m. on March 17, 1997, and was not in respiratory distress. P. Ex.
14 at 5; Tr. at 75, 412. Thus, no lack of compliance may be attributed
to Petitioner regarding the treatment and care of a respiratory distressed
resident arising from its handling of R130.
During the period beginning December 20, 1996 and ending
April 3, 1997, Petitioner failed to comply with the regulatory requirements
of 42 C.F.R. § 483.25 by exposing its residents to risk of serious injury,
harm, impairment, or death. This regulation provides that a long-term
care facility must ensure that residents receive proper treatment and
care for special services, including tracheostomy care, tracheal suctioning,
and respiratory care. The evidence in this case establishes that Petitioner
failed to provide its residents with the necessary care and services to
attain or maintain the highest practicable physical, mental, and psychosocial
well-being. HCFA proved that on December 20, 1996, Petitioner did not
have a written policy to protect its ventilator dependent residents who
went into respiratory distress. Moreover, notwithstanding the absence
of written guidelines, Petitioner's supervisory staff expressed awareness
of the proper procedures for tracheostomy and respiratory care, but did
not communicate these to the nursing staff or to respiratory therapists.
Tr. at 397, 484, 522, 523, 556 - 558. Petitioner claims that the incident that resulted in the
death of R10 was an isolated accident. Tr. at 324. That, Petitioner reasons,
diminishes its level of culpability. I disagree. As stated earlier, the
respiratory therapist attending to R10 did not accidentally turn off her
breathing machine. He deliberately turned it off so as not to be inconvenienced
by the sound of the machine's alarm while another therapist was in the
process of manually elevating the resident's SAO2 level. True, he may
have accidentally left the machine turned off, but such oversight is not
to be taken lightly or ignored. It resulted in the death of a human being.
That is not to say that Mr. Anderson's conduct was criminal in nature,
as Petitioner also claims. P. Response at 17. There is no evidence in
the record that he was held criminally liable for the death of R10. He
was, however, clearly negligent in turning the respirator off so as not
to be bothered by the alarm. By turning it off, he placed himself at risk
of forgetting to turn it back on after manually elevating the resident's
oxygen level. Mr. Anderson's action is more connected with Petitioner's
failure to have clear and written guidelines that were effectively communicated
to its employees than with criminal intent. Petitioner argues also that I should give weight to a
visit made by IDPH surveyor Margaret White shortly after R10's death.
Petitioner argues that Ms. White's failure to find an immediate jeopardy
at that time creates an inference that no immediate jeopardy existed. The record shows that Ms. White visited Petitioner on
January 2, 1997. She was at Petitioner for about two hours and looked
only into the facts concerning R10. Tr. at 621 - 622. Ms. White left that
day without issuing a written statement of deficiencies. Instead, she
indicated that she was still gathering facts. She stated that she had
to wait for the police report and she needed to consult with more people.
Tr. at 622 - 623, 679. Moreover, at the time of Ms. White's visit, a more
thorough annual survey was expected to be conducted. Tr. at 521. That
survey was completed on April 8, 1997. By that time, all of the evidence
concerning R10 was available. In view of the foregoing, I do not accept
Petitioner's claim that Ms. White's failure to make findings in January
1997 invalidates the later finding of immediate jeopardy based on the
more complete information gathered by April 8, 1997. Furthermore, the evidence establishes that Petitioner failed to protect other residents from similar acts until April 4, 1997. It was not until April 4, 1997, that Petitioner had taken adequate steps to train its staff regarding the treatment and care of ventilator dependent residents. The record shows that by April 4, 1997, Petitioner had taken the following the actions:
See HCFA Ex. 1 at 31. From December 20, 1996, until the above abatement actions
were initiated, Petitioner took minor steps to comply with its duty to
care for and protect ventilator dependent residents, but fell short to
the point of continuing to place them at risk of serious injury, harm,
impairment, or death. For example, I note that on December 23, 1996, three
days after the incident involving R10, Petitioner conducted a 20 minute
in-service concerning matters of notification of death in such cases.
On January 8, 1997, Petitioner conducted another in-service regarding
the operation of the respiratory ventilator. P. Ex. 8. These training
sessions fell far too short of satisfying what was required to abate the
immediate jeopardy. Petitioner's additional claim that it took immediate corrective
action on December 20, 1996, by hiring Mr. Jesus Rodriguez, a certified
respiratory therapist, to consult with Petitioner about the care provided
to ventilator dependent residents, is without merit. Basically, all that
action accomplished was to replace the lost services of the former director
of the respiratory care unit, who had left due to medical problems. Tr.
at 676. Besides, Mr. Rodriguez's testimony accentuates the facility's
failure to properly communicate its policies to the staff. As I stated
earlier, the testimony of Mr. Rodriguez regarding sterile suctioning of
a tracheostomy tube highlighted his ignorance in this important area of
resident care. I specifically stated how disturbing it was that those
in supervisory positions were so ill-informed. Thus, no corrective measures
were, in reality, advanced by bringing in a new respiratory care director
or consultant who carried on the facility's history of ignorance concerning
respiratory care. This ignorance is further evidenced by Petitioner's argument at page 19 of its brief. Its fragmented view of the requirements for proper care and treatment of residents in respiratory distress leads to the following faulty reasoning:
P. Brief at 19. This logic overlooks factors such as mentioned by Ms.
Daniels, one of the surveyors, in her testimony. She stated that once
you raise a resident's oxygen level, you cannot rest assured that stability
has been achieved. It is essential to note indicators required by Petitioner's
written policy, such as vital signs and lung sounds. Tr. at 171 - 175.
If the staff had taken R10's respirations, pulse reading, blood pressure,
lung sounds, and other required indicators, they would have surely noted
she was not breathing. This reasoning also ignores the testimony of Ms.
Benda, Petitioner's DON. She agreed that the policy adopted by Petitioner
in early March 1997 for the care and treatment of ventilator dependent
residents in respiratory distress, embodied good nursing practices, and
that R10 should have been monitored after having been apparently stabilized.
Tr. at 502. Those guidelines were developed to ensure that a ventilator
dependent resident who experienced any form of respiratory distress would
be "observed" by the nursing staff and respiratory therapy department
and properly treated and "relieved of her/his respiratory distress and
documented on." P. Ex. 10 at 1. The documentation includes indicators
such as blood pressure, pulse, respiration, temperature, lung sounds,
and breath sounds. These indicators would serve as verification that a
resident in respiratory distress, whose oxygen level has been increased,
has achieved true relief. Once that is accomplished, follow-up assessment
and documentation is mandated every 15 minutes. P. Ex. 10. If this procedure
had been followed with respect to R10, the tragedy that unfolded would
have been prevented. In Petitioner's attempts to immediately address the circumstances
that gave rise to the tragedy of December 20, 1996, involving R10, other
weighty factors, including the adoption of written guidelines for the
treatment and care of ventilator dependent residents in respiratory distress,
were not considered. In this regard, Ms. Daniels testified that, after
R10's demise, the lack of the facility's immediacy in initiating a protocol
to prevent any further problems placed other residents who had episodes
of respiratory distress at severe risk for harm, if not death. This, in
her estimation, constituted immediate jeopardy. Tr. at 232. Petitioner began to take more serious steps to address
its duty to properly treat and care for ventilator dependent residents
in respiratory distress in early March 1997, when it adopted guidelines
for treatment of such residents. Unfortunately, however, no training was
conducted in earnest, and residents continued to be placed at risk of
serious injury, harm, impairment, or death, even after those guidelines
were adopted. This is evident from the previous discussion regarding the
improper treatment and care given to R126, R127, R83 and R68. The treatment
and care given to these residents was contrary to the policy adopted by
Petitioner in early March 1997, for the treatment and care of ventilator
dependent residents in respiratory distress. Thus, they continued to be
placed at risk throughout the month of March and through April 3, 1997.
As already stated, it was not until April 4, 1997, that Petitioner initiated
a comprehensive plan to address and abate the immediate jeopardy. In view of the foregoing, I conclude that there is a basis to impose a CMP against Petitioner in the immediate jeopardy range for the period which begins on December 20, 1996, and which runs through April 3, 1997. HCFA satisfied all of the prerequisites for imposing such a penalty. First, HCFA established a prima facie case, which Petitioner did not rebut, that as of December 20, 1996, Petitioner was not complying substantially with the participation requirement at 42 C.F.R. § 483.25. Indeed, there is not only a prima facie case of noncompliance here, but the preponderance of the evidence is that Petitioner was not complying substantially with this requirement. Second, Petitioner failed to show that HCFA's determination that Petitioner's noncompliance with this requirement was at the immediate jeopardy level was clearly erroneous. In fact, the preponderance of the evidence establishes that Petitioner's deficiency was at the immediate jeopardy level. Third, Petitioner did not prove by the preponderance of the evidence that it had eliminated the immediate jeopardy to its residents on any date prior to April 4, 1997.
HCFA imposed a $3,050 per day CMP for the period beginning
December 20, 1996 and ending April 3, 1997. There is no issue as to the
reasonableness of the daily amount of the penalty inasmuch as $3,050 is
the minimum that may be imposed by HCFA where it is established that the
participating facility has incurred a deficiency that reaches the level
of immediate jeopardy. 42 C.F.R. § 488.438(a)(i). HCFA also imposed a $50 per day CMP for the period beginning
April 4, 1997 and ending May 14, 1997. There is no issue in this case
as to whether a CMP of $50 per day for the period from April 4, 1997 through
May 14, 1997 is reasonable. Petitioner has not contested the presence
at its facility of deficiencies at less than the immediate jeopardy level
during that period. A CMP of $50 per day for deficiencies that posed a
potential for more than minimal harm to residents, but not at the immediate
jeopardy level, is the minimum for such deficiencies. 42 C.F.R. § 488.438(a)(ii).
Conclusion I conclude that HCFA correctly determined that beginning December 20, 1996 through April 3, 1997, Petitioner was not complying with federal participation requirements in the Medicare program at the immediate jeopardy level, and the imposition of a CMP of $3,050 per day is reasonable. I also conclude that from April 4, 1997 through May 14, 1997, HCFA properly assessed a $50 per day CMP for deficiencies that posed a potential for more than minimal harm, but not at the immediate jeopardy level. |
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| JUDGE | |
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Jose A. Anglada Administrative Law Judge
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| FOOTNOTES | |
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1. This matter was originally assigned to Administrative Law Judge Stephen H. Ahlgren. At the parties' request, the case was stayed for an indefinite period so that they could pursue settlement negotiations. On August 11, 1999, after months of inactivity, Judge Ahlgren ordered Petitioner to show cause why this case should not be dismissed for abandonment. In its response, Petitioner stated that it had not abandoned its request for hearing and that it had made several attempts to arrange settlement negotiations. On September 8, 1999, the case was reassigned to me. In the absence of objection, I allowed the case to go forward to hearing. 2. Disconnecting the resident from the ventilator is necessary for the manual administration of oxygen, but as will be discussed later, it is not necessary or desirable to turn the ventilator off. 3. Mr. Anderson submitted his resignation shortly after this unfortunate incident, and before Petitioner took any action against him. Ms. Harris was terminated when it was discovered, several weeks later, that she had falsified her respiratory therapist certificate and credentials. Tr. at 607, 302 - 304. 4. According to the treating physician, an SAO2 ranging from 92% - 100% is considered normal, and an SAO2 of 80% is dangerously low. Tr. at 40. 5. The x-ray was aimed at determining if there were findings consistent with pneumonia, congestive heart failure, pneumothorax, or other abnormal lung conditions. Tr. at 32 - 33. 6. A dye called methylene blue is placed into tube feedings to determine whether food is entering the lungs. Tr. at 35. 7. Timentin is a broad spectrum antibiotic. Tr. at 33. 8. While the HCFA Form 2567 does not specifically mention the sputum culture, the medical chart shows that Dr. Hardek ordered a sputum culture and stain. P. Ex. 9 at 7. The stain allows for immediate detection of bacteria, and the culture is grown in a microbiology laboratory. Tr. at 33. 9. Dr. Saltiel lay great emphasis on R127's DNR status. I would hope that such status is not at the root of the improper care and treatment given to this resident. 10. I note, however, that COPD is not an admitting diagnosis for R127. P. Ex. 11 at 1. 11. Regarding R127's clinical picture, I rely mostly on Dr. Saltiel's testimony inasmuch as the medical charts contain minimal charting by Dr. Saltiel. P. Ex. 11 at 9; Tr. at 63. 12. Dr. Saltiel perceived that the policy for handling respiratory distress residents was good. To a certain extent, however, he deferred to the expertise of Dr. Sabbagh, whose knowledge as a specialist in pulmonary diseases he respected. Dr. Sabbagh was Petitioner's pulmonary specialist and he was instrumental in developing the policy for the care and treatment of respiratory distress residents. Tr. at 121, 491. 13. It should be remembered that Dr. Hardek testified that an SAO2 of 80% was dangerously low. Tr. at 40. 14. Hyper-oxygenation is a procedure whereby the ventilator dependent resident is manually given added oxygen prior to and after suctioning. This makes up for the oxygen deprivation during the suctioning process. Tr. at 294 - 295. | |