CASE | DECISION | JUDGE

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


SUBJECT:

Community Nursing Home,

Petitioner,

DATE: May 2, 2001
                                          
             - v -

 

Health Care Financing Administration

 

Docket No. C-99-524
Decision No. CR770
DECISION
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DECISION

I find that the Health Care Financing Administration (HCFA) is authorized to impose remedies against Petitioner, Community Nursing & Rehabilitation Center, based on Petitioner's failure to comply substantially with federal requirements governing participation of long term care facilities in Medicare and State Medicaid programs. I sustain imposition against Petitioner of the following remedies: civil money penalties in the amount of $3,050 per day for each day of a period that began on March 12, 1999 and which ran through April 1, 1999; civil money penalties in the amount of $1,000 per day for each day of a period that began on April 2, 1999 and which ran through May 6, 1999, and; denial of payment for new admissions for each day of the April 2 - May 6, 1999 period.

I. Background

Petitioner is a long-term care facility that is located in Stephenville, Texas. Petitioner participates in the Medicare program and in the Texas Medicaid program. Petitioner's participation in these programs is subject to the requirements that are set forth in statutes at sections 1819, 1919, and 1866 of the Social Security Act (Act) and in regulations at 42 C.F.R. Parts 483, 488, and 498. Among other things these requirements give HCFA the authority to make determinations whether long-term care facilities are complying with the Act and regulations and to impose remedies, including civil money penalties, on those that it finds not to be complying substantially with participation requirements.

Petitioner was surveyed in March 1999 (March 1999 survey) on behalf of HCFA by representatives of the Texas Department of Human Services (Texas State survey agency). At the March 1999 survey the surveyors found that Petitioner was not complying substantially with 11 Medicare participation requirements. In three of these 11 deficiency findings the surveyors concluded that Petitioner's noncompliance was so serious as to constitute immediate jeopardy for residents of Petitioner. An immediate jeopardy level deficiency is defined by regulation to be a situation in which a long term care provider's noncompliance with a participation requirement has caused, or is likely to cause, serious injury, harm, impairment, or death to a resident. 42 C.F.R. § 488.301.

Petitioner submitted to HCFA a plan of correction in which it asserted that it had attained compliance with all participation requirements effective April 1, 1999. The Texas State survey agency responded to these allegations of compliance by scheduling a resurvey of Petitioner's facility. It completed the resurvey on April 13, 1999 (April 1999 resurvey). At the April 1999 resurvey the surveyors found that there were no deficiencies that remained at the immediate jeopardy level of noncompliance. But, they found that Petitioner continued not to be complying substantially with three participation requirements, albeit at a level of seriousness that was not at the immediate jeopardy level.

The Texas State survey agency surveyors returned to Petitioner's facility for a second resurvey which they completed on May 7, 1999 (May 1999 resurvey). At the May 1999 resurvey they concluded that Petitioner had attained substantial compliance with all participation requirements.

The Texas State survey agency recommended to HCFA that remedies be imposed against Petitioner that were based on the findings of noncompliance that were made at the March 1999 survey and at the April 1999 resurvey. These included: civil money penalties in the amount of $3,050 per day for each day of the period which began on March 12, 1999 and which ran through April 1, 1999; civil money penalties in the amount of $1,000 per day for each day of the period which began on April 2, 1999 and which ran through May 6, 1999, and; denial of payments for new admissions for each day of the April 2 - May 6, 1999 period. HCFA concurred with these recommendations and sent Petitioner a notice in which it advised Petitioner that it was imposing the remedies.

Petitioner requested a hearing. The case originally was assigned to another administrative law judge and then was reassigned to me. HCFA moved for partial summary disposition. Petitioner opposed the motion. On April 25, 2000 I issued a ruling in which I granted partial summary disposition to HCFA. Ruling Granting Partial Summary Disposition to Health Care Financing Administration. I am reaffirming my ruling here. The most significant aspects of my ruling are as follows:

• HCFA is authorized to impose immediate jeopardy level civil money penalties against Petitioner for each day of the period that began on March 12, 1999 and which ran through April 1, 1999 inasmuch as Petitioner did not challenge the three findings of immediate jeopardy level deficiencies that were made at the March 1999 survey. Id. at 6.

• Civil money penalties of $3,050 per day for each day of the March 12 - April 1, 1999 period are reasonable inasmuch as they are the minimum penalties that may be imposed for immediate jeopardy level deficiencies. Id. at 7.

• Although Petitioner challenged some of the alleged non-immediate jeopardy level deficiencies that were identified at the March 1999 survey these challenges are moot for purposes of whether immediate jeopardy level civil money penalties may be imposed against Petitioner. Id. at 7.

• Petitioner challenged only two of the three alleged deficiencies that were identified at the April 1999 resurvey. The report of that survey listed alleged deficiencies at Tags 157, 253, and 309. Petitioner challenged the alleged deficiencies only at Tags 253 and 309. Id. at 6.

• HCFA is authorized to impose civil money penalties against Petitioner for each day of the April 2 - May 12, 1999 period inasmuch as Petitioner did not challenge all of the deficiency findings that were made at the April 1999 resurvey. Id. at 7 - 8. However, the amount of these civil money penalties remains at issue. Id.

After I issued my ruling the parties advised me that they wished to have the remaining contested matters heard and decided based on their written submissions in lieu of an in-person hearing. I established a schedule for the parties to offer briefs and proposed exhibits. HCFA offered 16 proposed exhibits (HCFA Ex. 1 - HCFA Ex. 16) as part of its initial submission. Petitioner offered 6 proposed exhibits (P. Ex. 1 - P. Ex. 6) as part of its initial submission. Neither party objected to my receiving the other party's proposed exhibits into evidence. Therefore, I receive into evidence HCFA Ex. 1 - HCFA Ex. 16 and P. Ex. 1 - P. Ex. 6.

On March 21, 2001 the parties submitted reply briefs. The parties submitted additional proposed exhibits with their reply briefs. My rulings as to the admissibility into evidence of these proposed exhibits are as follows.

A. Ruling on admissibility of Petitioner's proposed additional exhibits

Petitioner's proposed additional exhibits consist of documents that Petitioner designated as P. Ex. 7, P. Ex. 8, P. Ex. 9, and P. Ex. 10. These proposed additional exhibits consist of the following documents:

• P. Ex. 7 is an affidavit from June Carithers, a licensed vocational nurse (LVN), who is employed as Petitioner's assistant director of nursing.

• P. Ex. 8 is an affidavit from Inge Easterling, LVN, who is employed as a LVN at Petitioner.

• P. Ex. 9 contains excerpts from nurse's notes, mental health therapy progress notes, and social service progress notes concerning a resident who is identified as Resident # 2 in the report of the April 1999 resurvey.

• P. Ex. 10 consists of financial data, including income and expense data, and balance sheets, for Petitioner.

Petitioner is offering P.Ex. 7, P. Ex. 8, and P. Ex. 9 in response to allegations that are made at Tag 309 of the report of the April 1999 resurvey. HCFA Ex. 4 at 6 - 10. The report of the April 1999 resurvey alleges at Tag 309 that Petitioner failed to provide or obtain needed medical services for a resident who is identified as Resident # 2. The principal allegations are that Petitioner: failed to assess the resident's complaints of pain after the resident sustained a fall on April 10, 1999, and; failed to communicate to the resident's physician the resident's escalating complaints of pain and signs of injury.

I decline to receive into evidence P. Ex. 7, P. Ex. 8, and P. Ex. 9. These exhibits are being offered by Petitioner to address contentions of fact relating to the allegations made under Tag 309 that Petitioner never made prior to filing its reply brief. Petitioner was given ample opportunity to make these contentions at a time when HCFA could have replied to them. It did not do so and may not do so at this late stage of the case.

The purpose of a reply brief is to respond to arguments that a party's adversary makes in its opening brief. A reply brief is not to be used to raise new arguments and issues of fact and law. Therefore, the fact that I allowed the parties the opportunity to file replies in this case does not give the parties carte blanche to raise new contentions of fact or arguments in their replies.

Petitioner offers P. Ex. 7, the affidavit of Ms. Carithers, as support for an allegation that it makes for the first time in its reply brief that it had scheduled Resident # 2 to be seen by a nurse practitioner on April 13, 1999. The exhibit is offered to rebut a specific allegation of fact that is made in the report of the April 1999 resurvey:

An interview with the nurse practitioner revealed that she was not planning on seeing Resident # 2 on . . . [April 13, 1999], stating that she was not aware that the resident was having a problem and that no one had asked her to evaluate the resident.

HCFA Ex. 4 at 9. I find the exhibit to be untimely and I am not receiving it for that reason. The allegation that the nurse practitioner was unaware of Resident # 2's problems is not something that HCFA raised for the first time in its opening brief and which surprised Petitioner. Petitioner had notice of this allegation for nearly two years before filing its reply brief. Yet, Petitioner waited until March 21, 2001, the date that it filed its reply brief, to obtain an affidavit from Ms. Carithers to refute the allegation. See P. Ex. 7.

Petitioner offers P. Ex. 8 and P. Ex. 9 as support for its contention that Resident # 2 suffered from emotional problems that she manifested with frequent vocal outbursts and yelling. Petitioner argues in its reply brief, for the first time, that members of its staff might not have understood the resident's complaints as being legitimately voiced complaints of pain which required more intensive medical intervention than the staff decided to give to the resident. As is the case with P. Ex. 7 I find Petitioner's submission of P. Ex. 8 and P. Ex. 9 to be untimely. Petitioner had nearly two years from its receipt of the report of the April 1999 resurvey to articulate an argument that its staff did not understand Resident # 2's complaints of pain to be serious in light of the resident's emotional problems and habit of vocalizing her complaints. Yet, it failed to raise this argument until its final filing.

I also decline to receive into evidence P. Ex. 10 on the ground that Petitioner submitted this exhibit and made arguments relating to it untimely. The exhibit addresses an argument that Petitioner never made at any time prior to submitting its reply brief. That is that Petitioner lacks the wherewithal to pay the civil money penalties that HCFA determined to impose. A long term care facility's financial condition is one of the elements that may be considered in determining the amount of civil money penalties to be imposed. 42 C.F.R. § 488.438(f)(2). Petitioner knew or should have known that it could have raised this issue during the more than two years that this case has been pending. It is obvious from a review of P. Ex. 10 that the information contained in the exhibit is not something that Petitioner was denied access to until the last moment. Much of the financial information that is contained in the exhibit relates to Petitioner's 1999 income and expenditures. Yet, Petitioner waited until the last possible moment in the case to offer the exhibit and to make arguments relating to it.

B. Ruling on admissibility of HCFA's proposed additional exhibit

HCFA offered HCFA Ex. 17 with its reply brief. This exhibit consists of a surveyor's notes which HCFA offers to corroborate the statement that I cite above at page 9 of the report of the April 1999 resurvey. I am declining to receive this exhibit into evidence inasmuch as HCFA plainly could have offered the exhibit along with its initial brief in the case and has provided no explanation as to why it failed to do so.

II. Issue, findings of fact and conclusions of law

A. Issue

The sole remaining issue in this case is whether the remedies that HFCA imposed against Petitioner based on the findings that were made at the April 1999 resurvey - including civil money penalties of $1,000 per day and denial of payment for new admissions for the April 2 - May 6, 1999 period - are reasonable. The issue of whether the $3,050 per day civil money penalties that HCFA imposed for each day of the March 12 - April 1, 1999 period are reasonable is no longer before me inasmuch as I have granted summary disposition in HCFA's favor on that issue based on Petitioner's failure to challenge the findings of immediate jeopardy level deficiencies that were made at the March 1999 survey. Nor does any issue remain as to whether HCFA is authorized to impose civil money penalties or other remedies based on the deficiency findings that were made at the April 1999 resurvey. I have entered summary disposition in HCFA's favor on that issue based on Petitioner's failure to challenge all of the deficiency findings that were made at that survey.

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 separately numbered heading. I discuss each Finding in detail.

1. Civil money penalties of $1,000 per day are reasonable for each day of the April 2 - May 6, 1999 period based on the seriousness of the deficiencies that Petitioner manifested at the April 1999 resurvey.

HCFA is authorized to impose civil money penalties in amounts which range from $50 to $3,000 per day for each day of a long term care facility's failure to comply substantially with participation requirements at a level of seriousness that is less than the immediate jeopardy level. 42 C.F.R. § 488.438(a)(1)(ii). Regulations establish criteria for deciding what penalty amounts are reasonable within the $50 - $3,000 per day range. 42 C.F.R. §§ 488.438(f); 488.404 (incorporated by reference into 42 C.F.R. § 488.438(f)(3)). These factors may include the seriousness of a facility's deficiencies. 42 C.F.R. § 488.404(a), (b). They may also include: the relationship that deficiencies have to each other; a facility's history of noncompliance with participation requirements; its culpability for noncompliance, and; its financial condition. 42 C.F.R. §§ 488.438(f)(1) - (3); 488.404.

The seriousness of the deficiencies that Petitioner manifested at the April 1999 resurvey is sufficient to justify imposition against it of civil money penalties of $1,000 per day for each day of the April 2 - May 12, 1999 period. There were three deficiencies identified at this survey, and as I discuss below, Petitioner failed to prove that they were not established. These deficiencies were serious deficiencies and some of them caused actual harm to residents of Petitioner.

I have not considered Petitioner's compliance history in deciding whether penalties of $1,000 per day are justified because it is not necessary for me to do so. The penalties are justified based solely on the seriousness of Petitioner's deficiencies. A poor compliance history or evidence of repeated deficiencies might be additional support for my conclusion that penalties of $1,000 per day are justified but such a finding is not necessary for me to reach this conclusion. Furthermore, I note that Petitioner did challenge some of the non-immediate jeopardy level deficiencies that were found at the March 1999 survey and which are allegedly repeated at the April 1999 resurvey. In order to find "repeat" deficiencies as of April 1999 I would have to make specific findings about the deficiencies that were identified in March 1999. There is no need that I make these findings inasmuch as it is not necessary for me to find repeat deficiencies in order to sustain $1,000 per day civil money penalties.

I make no finding about Petitioner's financial condition. As I discuss above, at Part I.A. of this decision, I decline to admit into evidence P. Ex. 10, which addresses Petitioner's ability to pay civil money penalties. Petitioner did not assert in its hearing request or at any time thereafter up until filing its reply brief that it lacked the financial wherewithal to pay the civil money penalties that HCFA determined to impose against Petitioner. I find this argument and the evidence contained in P. Ex. 10 to be untimely and I do not consider either the argument or the supporting exhibit.

a. Petitioner manifested three failures to comply substantially with participation requirements as of the April 1999 resurvey.

The report of the April 1999 resurvey identified three alleged failures by Petitioner to comply substantially with participation requirements. These findings of noncompliance are stated at Tags 157, 253, and 309 in the survey report. HCFA Ex. 4.

i. Petitioner did not comply substantially with the participation requirement that is stated at 42 C.F.R. § 483.10(b)(11).

The surveyors found at Tag 157 of the report of the April 1999 resurvey that Petitioner was not complying substantially with the requirements of 42 C.F.R. § 483.10(b)(11). HCFA Ex. 4 at 1 - 3. Among other things this regulation requires a long-term care facility immediately to inform a resident's physician of any significant change in the resident's physical, mental, or psychosocial status. The surveyors who conducted the April 1999 resurvey concluded that Petitioner failed to satisfy this requirement in that Petitioner's staff failed to notify immediately a resident's physician of the consequences of a fall sustained by the resident. Id.

Petitioner argued in its brief that the preponderance of the evidence establishes that it did, in fact, comply with the requirements of 42 C.F.R. § 483.10(b)(11). Petitioner's Memorandum of Law Regarding the April 13, 1999 Survey of Community Nursing & Rehabilitation Center (Petitioner's brief) at 1 - 4. However, Petitioner did not challenge the deficiency finding at Tag 157 in its hearing request and I entered summary disposition in favor of HCFA as to this finding. Ruling Granting Partial Summary Disposition to Health Care Financing Administration at 6. Consequently, Petitioner may not now challenge the deficiency finding at Tag 157 and it is unnecessary that I consider the merits of the surveyors' conclusions or Petitioner's arguments about those conclusions in this decision.

I note, however, that the allegations of noncompliance that the surveyors made at Tag 157 in many respects duplicate the allegations that they made at Tag 309 of the report of the April 1999 resurvey. See HCFA Ex. 4 at 6 - 10. At part a.iii. of this Finding I sustain the findings of noncompliance that were made at Tag 309.

ii. Petitioner did not comply substantially with the participation requirement that is stated at 42 C.F.R. § 483.15(h)(2).

The surveyors found at Tag 253 of the report of the April 1999 resurvey that Petitioner was not complying substantially with the requirements of 42 C.F.R. § 483.15(h)(2). HCFA Ex. 4 at 3 - 6. The regulation requires that a facility must provide housekeeping and maintenance services necessary to maintain a sanitary, orderly, and comfortable interior. The surveyors cited numerous instances in which they found, based on their personal observations, that Petitioner failed to maintain a sanitary facility. The surveyors' observations included findings that there were many fecal stains present in several of the residents' rooms. Id. Petitioner has not offered any meaningful defense to these allegations. Petitioner, in effect, concedes that its staff was overworked. Petitioner's brief at 5.

The allegations of deficiency that the surveyors made at Tag 253 are substantiated. I find the observations of the surveyors as are recorded in the report of the April 1999 resurvey to be credible in the absence of any evidence by Petitioner which undercuts or refutes their findings.

iii. Petitioner failed to comply substantially with the participation requirement that is stated at 42 C.F.R. § 483.25.

The surveyors found at Tag 309 of the report of the April 1999 resurvey that Petitioner was not complying substantially with the requirements of 42 C.F.R. § 483.25. HCFA Ex. 4 at 6 - 10. The regulation requires that a long term care facility provide each resident with the necessary care and services to attain or maintain the resident's highest practicable physical, mental, and psychosocial well-being, in accordance with that resident's comprehensive assessment and plan of care.

The surveyors charged that Petitioner failed to comply with the requirements of the regulation in that it failed to obtain or provide needed medical services for a resident who is identified in the survey report as Resident # 2. The report of the April 1999 resurvey addresses the care that the resident received from Petitioner's staff after the resident sustained a fall on April 10, 1999. HCFA Ex. 4 at 7 - 8. The report alleges that Petitioner's staff failed to provide ongoing assessment and intervention for the resident after the resident sustained the fall. Id. at 9. It alleges further that Petitioner's staff failed to ensure intervention by a physician to address complaints of pain that the resident vocalized after the resident sustained the fall. Id. It alleges that Petitioner's asserted failures to provide care for Resident # 2 contributed directly to the resident experiencing three days of unnecessary pain before being hospitalized for treatment of a fractured hip. Id. at 9 - 10.

The evidence sustains these allegations. Petitioner failed to assess the resident's needs in the face of her deteriorating medical condition. It failed also to communicate promptly or effectively to the resident's treating physician the resident's deteriorating condition and the complaints of pain that were voiced by Resident # 2. The consequence of these failures is that the resident suffered unnecessary pain before being hospitalized.

I premise my conclusion that Petitioner failed to comply with the requirements of 42 C.F.R. § 483.25 on Petitioner's staff's failure to assess the resident's needs and to communicate effectively those needs to the resident's physician. I am not suggesting that Petitioner had a duty to assure that Resident # 2's physician provided appropriate care to the resident. Petitioner would not be at fault if Petitioner's staff had given the physician the necessary information and the physician had failed to respond expeditiously or diligently to that information. Nor am I suggesting that the physician in this case failed to act appropriately.

Resident # 2 displayed escalating signs and symptoms of a serious hip injury after she sustained her fall on April 10, 1999. These signs and symptoms were sufficiently severe that Petitioner's staff noted them in the resident's nurses' notes. The staff attempted, without success, to treat the resident's complaints of pain with pain medication. But, the staff failed to provide needed care to the resident in two important respects. First, although the staff noted the resident's escalating complaints of pain and the associated signs of injury it failed to assess those complaints and signs and failed to develop an effective treatment plan to deal with them. Second, the staff failed to communicate effectively to a physician that the resident was experiencing these escalating signs or symptoms prior to April 13, 1999.

Nurses' notes show that, on April 10, 1999, in the hours that followed the resident's fall, the resident did not complain of pain. HCFA Ex. 10 at 1. However, the same nurses' notes show consistent and escalating complaints of pain by the resident beginning on April 11, 1999. At 9:00 a.m. on April 11 Resident # 2 complained of pain when her left leg was moved. Id. at 2. The resident complained again of leg pain on April 12 and April 13, 1999. Id. at 2 - 3. Petitioner's staff administered pain medication to Resident # 2 on April 12 and 13, 1999 which did not alleviate the resident's pain. Id. at 2 - 3.

The nurses' notes also show that the resident was developing clinical signs in addition to pain which should have alerted Petitioner's staff to the need to obtain intervention by a physician. On April 11, 1999, the nurses' notes show that the resident had sustained a large purple bruise to the outer aspects of her left thigh. HCFA Ex. 10 at 2.

On April 10, 1999 Petitioner's staff notified Resident # 2's physician that the resident had sustained a fall. HCFA Ex. 10 at 1. It appears from the nurses' notes that notification was faxed to the physician at about the time that the resident sustained the fall. Id. At that point, the resident was not complaining of pain. Id. It is unclear from the nurses' notes how much information was communicated to the physician on April 10, 1999 about the resident's condition.

The physician did not respond immediately to this fax and no communications were made between Petitioner's staff and the resident's physician over the next two days. HCFA Ex. 4 at 8; see HCFA Ex. 10. As I have discussed above, during this period the resident manifested increasing signs of a severe injury and made escalating complaints of pain. On April 12, 1999, the physician - evidently reacting only to the information that had been communicated by Petitioner's staff on April 10, 1999 - faxed back a response to Petitioner's staff asking them to continue to monitor the resident. HCFA Ex. 4 at 8. However, by this date the resident's condition had deteriorated. Petitioner's staff did not communicate to the physician that the resident's condition had deteriorated nor did they advise the physician of the possibility that simple monitoring of the resident's condition might be inadequate given the deterioration in the resident's condition.

The evidence plainly reveals a failure by Petitioner's staff to make assessments of the implications of Resident # 2's growing distress. There is nothing in the nurses' notes to suggest that the staff understood that the resident's condition was deteriorating despite the increased complaints of pain, the signs of severe bruising that the resident displayed, and the resident's other problems. Nor is there any evidence that anyone on Petitioner's staff considered the possibility that the information that had been communicated to the resident's physician on April 10, 1999 was inaccurate or misleading in light of subsequent developments. And, as I have discussed, the record establishes a failure by Petitioner's staff to communicate the deterioration in the resident's condition to the resident's physician.

As I discuss above, at Part I.A. of this decision, I decline to admit evidence from Petitioner which addresses the communications that Petitioner's staff may have attempted to make to a nurse practitioner concerning Resident # 2's condition. I do so because Petitioner only submitted this evidence as an attachment to its reply brief despite having had notice of an allegation in the report of the April 1999 resurvey to the effect that Petitioner had not scheduled the resident to be seen by a nurse practitioner. But, although I am not admitting this evidence neither am I relying on allegations of failure by Petitioner's staff to schedule an appointment for the resident to be seen by a nurse practitioner as a basis for concluding that Petitioner was deficient under Tag 309. Petitioner had an obligation to communicate directly to Resident # 2's physician the deterioration in the resident's condition and her escalating complaints of pain. The failure of Petitioner to communicate effectively with the physician, coupled with Petitioner's failure to assess properly the resident's condition provide sufficient basis to conclude that Petitioner failed to comply substantially with the requirements of 42 C.F.R. § 483.25.

b. Petitioner's failure to comply substantially with participation requirements caused actual harm.

The surveyors who conducted the April 1999 resurvey rated the seriousness of the three deficiencies that they identified. I take notice that, in rating the seriousness of deficiencies, surveyors used a rating system that is based on letters of the alphabet. A deficiency that is rated as an "A," "B," or "C" level deficiency is not so serious as to be a failure by a facility to comply substantially with participation requirements. A deficiency that is rated as a "D," "E," or "F" level deficiency is one in which a facility is found not to have complied substantially with a federal participation requirement but where no actual harm to residents has been established. In the case of a "D," "E," or "F" level deficiency the finding of failure to comply substantially with a participation requirement is based on a potential for causing more than minimal harm. 42 C.F.R. § 488.301. A deficiency that is rated as a "G," "H," or "I" level deficiency is one in which a facility is found to have caused actual harm to a resident or residents. An actual harm level deficiency is at the highest scope and severity level short of an immediate jeopardy level deficiency.

The surveyors rated two of the deficiencies that they identified at the April 1999 resurvey as being "G" level deficiencies. HCFA Ex. 4 at 1, 6. These findings are at Tags 157 and 309. Ids. Thus, in two instances the survey found that Petitioner's noncompliance caused actual harm.

Both of these deficiencies are based on the care that Petitioner gave to Resident # 2. I discuss the care that Petitioner gave to Resident # 2 above at subpart a.iii. of this Finding. The evidence provides ample support for the conclusion that Petitioner's lack of attention to the needs of Resident # 2 harmed the resident. Resident # 2 was in unnecessary pain for nearly three days because Petitioner's staff failed to assess the resident and failed to follow up on its initial communication with the resident's physician about the resident.

c. Civil money penalties in the amounts of $1,000 per day are justified by the seriousness of the deficiencies that Petitioner manifested at the April 1999 survey.

The civil money penalties of $1,000 per day that HCFA determined to impose based on the results of the April 1999 resurvey fall well below the midpoint in the range of penalties of $50 to $3,000 per day that may be imposed as remedies for non-immediate jeopardy level deficiencies. I find the penalty amounts to be well-justified in view of the fact that two of the three deficiencies that Petitioner manifested as of the April 1999 resurvey were deficiencies that caused actual harm to a resident.

d. It is reasonable to conclude that the deficiencies that were identified at the April 1999 resurvey were extant as of April 2, 1999.

Two of the three deficiency tags that were identified at the April 1999 resurvey involved acts or omissions by Petitioner's staff that commenced on April 10, 1999 with the fall by Resident # 2. These are the deficiencies that are identified at Tags 157 and 309 of the report of the resurvey. The third deficiency, which is addressed at Tag 253 of the report of the April 1999 resurvey, is based on observations that the surveyors made during the survey.

The Texas State survey agency surveyors and HCFA concluded that the findings that were made at the survey identified noncompliance by Petitioner at a non-immediate jeopardy level that had begun on April 2, 1999, nearly two weeks prior to the April 1999 resurvey. Although Petitioner has challenged two of the three deficiency findings that were made at the April 1999 resurvey it has not challenged the conclusion that the non-immediate jeopardy level deficiencies that were found at this resurvey were present as of April 2, 1999 assuming that they were extant at all.

I conclude that HCFA established a prima facie case that at least some of the deficiencies that were present as of the April 1999 resurvey had their origins at least as far back as April 2, 1999. Petitioner did not rebut this prima facie case.

The deficiency that was established at Tag 253 addressed the sanitary conditions at Petitioner's facility. It is reasonable to infer from the numerous incidences of noncompliance that were identified under this Tag that the poor sanitation at Petitioner's facility began well in advance of the April 1999 resurvey.

Furthermore, the deficiencies that were established at Tags 157 and 309 addressed more than the failure by Petitioner to provide adequate care for Resident # 2. Also at issue is the question of whether the inadequate care that Petitioner provided to the resident represented some overall failure by Petitioner's staff to understand their responsibilities and obligations. HCFA presented a prima facie case of such a failure which Petitioner did not rebut. What is evident from the way in which Petitioner's staff treated Resident # 2 is that the staff did not understand the need to be assertive with the resident's treating physician about the resident's deteriorating condition and to assure that the physician had the necessary information to make an informed decision about the care that needed to be provided to his or her patient. That failing by the staff is prima facie evidence from which I infer an underlying lack of training and proficiency by the staff that was manifested in the care that was given to Resident # 2.

2. HCFA was authorized to impose civil money penalties of $1,000 per day against Petitioner for each day of a period which began on April 2, 1999 and which ran through May 6, 1999.

HCFA determined that Petitioner remained noncompliant with participation requirements through May 6, 1999. Therefore, it determined to impose civil money penalties against Petitioner for each day of a period that began on April 2, 1999 and which ran through May 6, 1999.

HCFA based its determination that Petitioner attained substantial compliance with participation requirements effective May 7, 1999 on the conclusion by Texas State survey agency surveyors that Petitioner was in compliance as of the May 1999 resurvey which was completed on May 7, 1999. Petitioner has not argued, nor has it offered evidence to prove, that it attained compliance with participation requirements at a date that is earlier than May 7, 1999. Consequently, I sustain HCFA's determination that Petitioner remained deficient from April 2, 1999 through May 6, 1999, and I also sustain the imposition of civil money penalties of $1,000 per day against Petitioner for each day of the April 2 - May 6, 1999 period.

3. HCFA was authorized to impose against Petitioner the remedy of denial of payment for new admissions effective April 2, 1999. I have no authority to decide whether HCFA's imposition against Petitioner of denial of payment for new admissions was an appropriate choice of a remedy.

HCFA imposed the remedy of denial of payment for new admissions against Petitioner effective April 2, 1999. This remedy was imposed by HCFA in addition to the $1,000 per day civil money penalties that HCFA imposed against Petitioner.

Denial of payment for new admissions is one of the remedies that HCFA may impose against a facility where that facility manifests deficiencies that are substantial but which do not constitute immediate jeopardy to residents. 42 C.F.R. § 488.408(d)(2). Imposition of denial of payment for new admissions was authorized in this case inasmuch as Petitioner failed to comply substantially with participation requirements at a non-immediate jeopardy level of noncompliance effective April 2, 1999.

I have no authority to examine the appropriateness of HCFA's determination to impose the remedy of denial of payment for new admissions where a basis exists for HCFA to impose that remedy. A facility does not have a right to a hearing in order to challenge HCFA's choice of a remedy such as denial of payment for new admissions. 42 C.F.R. § 488.408(g)(2).

JUDGE
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Steven T. Kessel

Administrative Law Judge

 

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