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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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San Angelo Regency House, |
DATE: August 3, 2001 |
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Centers for Medicare & Medicaid
Services
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Docket No.C-00-692
Decision No. CR806 |
| DECISION | |
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DECISION This case came before me pursuant to a request for hearing
filed by Petitioner, San Angelo Regency House on July 14, 2000, in accordance
with section 1128A(c)(2) of the Social Security Act (Act) and 42 C.F.R.
§§ 488.408(g), 498.40.(1) Petitioner is a skilled nursing facility participating
in the Medicare/Medicaid programs. On March 2, 2000 and April 27, 2000,
the Texas Department of Human Services (TDHS) conducted inspections to
determine if the facility was in compliance with federal requirements
for nursing homes participants. Those visits resulted in a finding that
Petitioner was not in substantial compliance. The surveys found deficiencies
that constituted actual harm that was not immediate jeopardy. A civil
money penalty (CMP) was assessed at $250.00 a day for 22 days commencing
on April 27, 2000. A hearing was held before me in San Angelo, Texas, commencing
February 28, 2001 through March 1, 2001. The Centers for Medicare &
Medicaid Services (CMS)(2) offered 35 exhibits
identified as CMS Exhibits (CMS Exs.) 1-35.(3)
Petitioner offered 32 exhibits. These were admitted into the record as
Petitioner's Exhibits (P. Exs.) 1-32, without objection. I also admitted
into evidence Administrative Law Judge Exhibit (ALJ Ex.) 1. 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 April 27, 2000 through May 18, 2000, Petitioner was not
in substantial compliance with Medicare participation requirements. I
further find that CMS is authorized to impose a CMP against Petitioner
at the rate of $250.00 per day from April 27, 2000 through May 18, 2000. I. Applicable law and regulations Petitioner is considered a long-term care facility under
the Act and regulations promulgated by the Secretary 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
and at Title 42 C.F.R. Part 483. Sections 1819 and 1919 of the Act invest the Secretary
with authority to impose CMPs against a long-term care facility for failure
to comply substantially with participation requirements. Pursuant to the Act, the Secretary has delegated to CMS
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 483 provides that facilities which participate
in Medicare may be surveyed on behalf of CMS 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 conditions for long-term care facilities. 42 C.F.R. §§ 488.300-488.335.
Under Part 488, a state or CMS 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 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 regulations define the term "substantial compliance" to mean:
42 C.F.R. § 488.301. In determining the amount of the CMP, the following factors specified at 42 C.F.R. § 488.438(f) must be considered:
In a CMP case, CMS must make a prima facie case that the
facility has failed to comply substantially with participation requirements.
To prevail, a long-term care facility must overcome CMS's showing by a
preponderance of the evidence. Hillman Rehabilitation Center, DAB
No. 1611 (1997). The Act and regulations make a hearing available before
an administrative law judge to a long-term facility against whom CMS has
determined to impose a CMP. Act, section 1128A(c)(2); 42 C.F.R. §§ 488.408(g),
498.3(b)(12), (13). The hearing before an administrative law judge is
de novo proceeding. Anesthesiologists Affiliated, et al.,
DAB CR65 (1990), aff'd, 941 F.2d 678 (8th Cir. 1991). II. Issues 1. Whether the facility was complying substantially with
federal participation requirements on the dates CMS determined to impose
a CMP. 2. Whether there is a basis for the imposition of remedies
against Petitioner. 3. Whether the amount of the penalty imposed by CMS is
reasonable, if non-compliance is established. III. Finding and discussion The finding of fact and conclusions of law noted below in italics is followed by a discussion of each finding.
The applicable regulation at 42 C.F.R. § 483.25, entitled "Quality of care," provides:
Consistent with that requirement, 42 C.F.R. § 483.25(h)(2) provides that the facility must ensure that each resident receives adequate supervision and assistance devices to prevent accidents.
CMS Ex. 4. Based on interviews and record reviews during the course
of a complaint investigation the surveyors found that on January 4, 2000,
R1 fell to the left when walking and was caught by a nurse. She was taken
to the hospital emergency room and returned four hours later with a diagnosis
of transient ischemic attacks (TIA). On January 8, 2000, the resident fell out of her bed and
hit her head on a piece of furniture. The nurse found a "raised bump,
tender to touch" on the left side of the back of the head. The care plan
was revised to implement the use of side rails to prevent the resident
from falling out of bed. Despite the side rails, the resident continued
to get out of bed and fall. On January 9, 2000, R1 was found sitting on
the floor next to her bed, banging on it, and crying for help. The resident
was observed climbing over the rails to get back into bed after getting
up to go to the bathroom. Notwithstanding the potential for falls, the
Director of Nursing (DON) confirmed that no other supervision or assistance
devices were implemented to reduce the risk of falls. Interdisciplinary progress notes of January 15, 2000 revealed
that, at 1:00 a.m., R1 was found sitting on the floor next to her bed.
When interviewed, the registered nurse, licensed vocational nurse, and
certified nursing assistant responsible for the care of R1 said they could
each recall several times during the nights prior to the fall when the
resident climbed over the side rails or out of the end of the bed. However,
the staff gave conflicting versions as to the position of the rails, when
the resident fell on January 15, 2000. The surveyors further found that the facility failed to
complete the neurological assessment, contrary to the facility's own procedures. When taken to the hospital at 11:00 a.m. on January 15,
2000, it was found that the resident had suffered a fracture of the femoral
neck, and required surgery for total hip replacement.
Discussion Subsequent to the release of R1from the hospital with
a diagnosis of TIA, the care plan was revised on January 8, 2000, to include
"physical restraints" consisting of two side rails to "prevent the resident
from falling out of bed". This action appears to have been prompted by
a fall suffered by the resident at 5:10 a.m. on that same day, sustaining
injury to her head. CMS Ex. 4, at 2; See also ALJ Ex. 1,
at 2, ¶ 5. Despite the side rails, the resident continued to get out of
bed and fall. The Incident Report of January 9, 2000 revealed that the
resident was found that day at 3:00 a.m. on the floor next to her bed
crying for help. Additionally, the Interdisciplinary Progress Notes dated
January 10, 2000 showed that on that day the resident was found climbing
over the side rails to get back into bed after going to the bathroom.
Other attempts by the resident to get out of bed in the early hours of
January 10th were also recorded. CMS Ex. 4, at 3; ALJ Ex. 1,
at 2, ¶ 7. In his testimony the State surveyor, Mr. William Henry Vanoss,
stated that it was at that moment, that the facility should have been
alerted to the inefficacy of the side rails. Tr. at 27-28; See
also ALJ Ex. 1, at 2, ¶ 5. He added that a substantial change to
the care plan should have been forthcoming when it became evident that
the side rails were not an effective measure to keep the resident from
getting up and falling. Tr. at 36. Mr. Vanoss further testified that on several occasions
on January 11, 2000, the resident was found wandering in the hallway,
in another resident's room and by the nurse's station. According to him,
during those incidents, facility supervision merely consisted of finding
the resident and returning her to bed. Tr. at 38, 39; CMS Ex. 23, at 6.
Mr. Vanoss perceived R1 as being exposed to dangerous situations not only
because she was at risk of falling while wandering around the facility
due to her TIA's, but also because of the potential for injury from falling
when attempting to climb over the side rails, which are higher than the
bed. Tr. at 40. According to Mr. Vanoss, the resident was found on the
floor by her bed at 1:00 a.m. on January 15, 2000. He could not ascertain
whether at that time the side rails were up or down. He obtained contradictory
information from the staff in that regard. However, such determination
is not vital in resolving the ultimate issues in this case. Tr. at 50.
What is significant is that R1 suffered serious injury to her left lower
extremity. Such was evident when she attempted to stand on the morning
of January 15th and experienced excruciating pain. The resident
was thereafter taken to the hospital where diagnostic testing revealed
a left femoral neck fracture requiring hip replacement. Tr. at 59-60.
Mr. Vanoss also stated that the facility staff failed
to comply with its policy to do neurological checks when a resident's
fall is unwitnessed and injury to the head may have occurred. He testified
that a neurocheck was done when the resident was initially discovered
on the floor and again at approximately 7:00 a.m. No other neurological
assessments were performed. Tr. at 58. Finally, Mr. Vanoss noted that the facility had at its disposal safety measures and interventions that it could implement in order to avoid placing the resident at risk of injury from falls. From the Nursing Safety Action List, found at CMS Exhibit 9, he considered the following as relevant to R1's situation: Preventive Safety Measures
Nursing Safety Interventions.
Tr. at 63-66. Petitioner contends that prior to January 15, 2000, R1
was very mobile and assertively protective of her independence. Tr. at
239-240. She was able to get around with a walker and could walk to the
dining room. Tr. at 242. Consequently, the facility was loathe to employ
restraints or devices that may impinge on her wishes and those of the
family. P. Ex. 4, at 1. In this regard Ms. Charlotte Matschek, Director
of Nursing, testified that freedom of movement promotes maintenance of
lower extremity strength and serves as a deterrent against depression.
Tr. at 239; See also P. Br. at 20. Pertinent to
this is Petitioner's claim that the use of side rails implemented on January
8, 2000, after R1 fell from her bed was not intended as a restraint. Tr.
at 247. This assertion is more particularly articulated in the affidavit
of Annie Ward, R1's daughter, prepared with assistance from the facility
social worker. Where pertinent, the affidavit reads as follows:
P. Ex. 4 at 1.(5) Ms. Matschek testified that in addition to employing side
rails as a positioning device, the facility implemented other interventions
to protect the resident from risk of falls. From the Safety Action List
at CMS Exhibit 9, she noted implementation of the following: Preventive Safety Measures
Nursing safety interventions
As has been stated earlier, the facility revised the comprehensive
plan of care on January 8, 2000, to include physical restraints consisting
of double side rails due to weakness to left side and impaired mobility
resulting from TIA. CMS Ex. 17, at 10. This fact was stipulated to by
Petitioner at page 2, paragraph 4 of ALJ Exhibit 1. I am puzzled by Petitioner's
insistence that the side rails were implemented as a mere repositioning
device. See Tr. at 247, 248; P. Ex. 4. I find that Petitioner employed
side rails as a restraint in an attempt to prevent R1 from falling out
of bed. Petitioner failed to consider the consequences of the resident's
attempts to get out of or into her bed by either sliding or climbing over
the rails. Petitioner's progress notes record an incident where the resident
was found climbing over the rails on January 10, 2000. CMS Ex. 23, at
6. In spite of being aware of R1's continued practice of climbing in and
out of bed without assistance and of wandering around the facility, Petitioner
failed to devise a comprehensive care plan that provided adequate supervision
and assistance to prevent accidents. In her testimony, the DON made a
feeble attempt to explain the facility's safety measures to prevent R1
from having accidents, but to a significant degree these were of no substance.
Tr. at 265, et. seq. Those interventions that could have provided a measure
of protection for the resident were not implemented, notwithstanding Petitioner's
claim to the contrary. Most of the preventive safety measures implemented
by Petitioner are initiatives that are routinely put into practice in
nursing homes regardless of the resident's particular circumstances. For
example, pathways should always be kept clear, bed wheels should be locked,
residents should always be approached in a calm manner, and, in appropriate
cases, be provided verbal instructions. However, Petitioner did not employ
preventive safety measures of a more significant nature in keeping with
the needs of R1. It must be noted in this regard, that Petitioner cannot
take credit for allowing R1 to be up at NOC with supervision nor for providing
assistance with ambulation and transfers. On the early morning of January 11, 2000, R1 was brought
to the nurses' station and allowed to remain there until 2:30 a.m. CMS
Ex. 23, at 6. She was then assisted to bed by staff, and rested well thereafter.
The following two nights, the resident exhibited confusion and restlessness,
yet she was not brought to the nurses' station where she could be kept
under close supervision. Id. at 7, 8. Petitioner's claim that it provided assistance with ambulation
and transfers is also unsupported by the evidence of record. The Interdisciplinary
Progress Notes are replete with references to the resident getting out
of bed unassisted and wandering around the facility by herself. Id.
at 3, 4, 6, 9; Tr. at 65. The facility's DON admitted that when R1 was
agitated and walked up to the nurses' station without assistance, the
charge nurse would assist her back into her room, and would instruct her
to use the call light. Tr. at 269-270. Assisting the resident back to
her room after she had gotten out of bed by either
sliding off or climbing over the rail(6)
falls short of complying with the requirement to provide the resident
with adequate supervision and assistance devices to prevent accidents.
By that time significant exposure to injury from falling had already occurred.
Additionally, Petitioner failed to perceive the
uselessness of attempting to instruct R1 on the use of the call light.
Time after time R1 would get out bed unnoticed and unassisted, yet Petitioner
operated under the illusion that R1 had the cognitive ability to call
for help for transfer and ambulation. R1 was often confused (CMS Ex. 23,
at 4, 5, 6), and had impaired short term memory due to cognitive loss
(CMS Ex. 20, at 20). Mr. Vanoss suggested several interventions that would
have given R1 adequate protection from risk of falls. Some of these interventions
included providing R1 with a low bed, a sensory alarm, one-on-one supervision,
and placement of floor pads near the bed. During her testimony, the DON
made excuses of little substance for not making a low bed available to
the resident. In the end however, she agreed that a fall from a regular
bed posed greater risk of injury than a low bed. Tr. at 273-276. The thrust
of Petitioner's argument is that a low bed would not have been appropriate
for R1 because of her ability to get up and walk. Tr. at 272. That argument
is unpersuasive for several reasons. First, Petitioner overlooks its duty
to provide assistance with ambulation and transfers to R1. Therefore,
in the event that R1 needed to get up from her bed, staff should have
been there to assist. The requirement to provide assistance at all times
with ambulation and transfers is consistent with Mr. Vanoss' suggestion
that the facility could have considered one on one supervision. Secondly,
Petitioner ignores the fact that the record, as discussed earlier, establishes
that it is reasonable to conclude that the falls suffered by R1 occurred
in the process of either climbing in or out of her bed. That inference
is supported by the fact that whenever the resident was found on the floor,
it was beside the bed. Consequently the focus, in the first instance,
had to be on preventing accidents resulting from falls from the bed. Once
that problem was addressed (and it could have been done with a low bed),
it behooved Petitioner to ensure adequate supervision to R1 with ambulation.
Petitioner's other contention that placing pads on the floor would constitute
a hazard for R1 also ignores its duty to provide assistance with transfers
and ambulation. Tr. at 291. Petitioner could have taken an additional precautionary
measure by using a sensory alarm. The DON testified that a sensory alarm
was provided to the resident a few days after January 9, 2000, at a time
when she could no longer verbalize her understanding of the call light.
Tr. at 279. The use of the sensory alarm as an intervention to address
R1's risk of falls, presumably came after she underwent hip replacement
and had experienced a cerebrovascular accident. By that time the resident
was bedridden and unable to rise from her bed. Petitioner contends that
it did not employ such a device previously because of the resident's resistance.
Allegedly, R1 found the alarm annoying, and her daughter agreed. Tr. at
281; P. Ex. 4. There is no documentation in the record, however, that
the resident resisted the use of the sensory alarm or that the matter
was discussed with the resident's daughter. Tr. at 283-284. At any rate,
the risk of harm to the resident
in this particular case, outweighed the annoyance the resident would have
to contend with. Moreover, I agree with CMS that if the resident was annoyed
by the sound of the alarm, that in itself could serve as an additional
deterrent to her proclivity for wandering. HCFA's Post Hearing Brief (HCFA's
Post Br.) at 12. CMS further contends that Petitioner failed to complete
neurological assessments every 15 minutes in accordance with the facility's
Protocol for Falls/Suspected Falls, on January 15, 2000. CMS Ex. 4, at
4. The facility's protocol regarding the procedures to follow in the case
of unwitnessed falls does require neuro-checks for 72 hours after the
incident, yet is silent as to the alleged requirement to perform assessments
at 15 minute intervals. See CMS Ex. 12. Although a Disciplinary
Warning Notice was issued by the DON to Jan Robbins
for failure "to follow facility protocols regarding falls," I find that
to be insufficient evidence upon which to premise a lack of compliance
on Petitioner's part with an assumed requirement to complete neurological
assessments every 15 minutes. CMS Ex. 13. In view of the foregoing, I find that CMS has established a prima facie case that Petitioner failed to provide adequate supervision and assistance to R1, and that such failure resulted in actual harm. The resident did suffer falls resulting in injuries, most notably, she fell on January 15, 2000, and fractured her left femoral neck, requiring a total hip replacement. Petitioner presented no persuasive evidence to rebut CMS's prima facie case. The surveyor, Mr. William Henry Vanoss, testified to several interventions that Petitioner may have undertaken, but Petitioner chose not to do so for no persuasive reason. The attempts by Petitioner to provide supervision and assistance to R1 were feeble, at best. In spite of being aware that the resident was climbing into and out bed without assistance, and wandering around the facility without the required assistance and supervision for ambulation and transfers, Petitioner undertook no meaningful interventions to protect her from harm.
CMS Ex. 26, at 4. Record review of R3's Incident Report, dated April 17,
2000, revealed that she was found lying on the floor in front of a chair.
The resident complained of pain to the back of the head and soreness to
the back. An interview with staff on April 27, 2000, regarding R3's
fall on April 17th revealed that the resident had been transferred
by two nurse aides to the bedside commode. Staff reported that the resident
was left on the commode as the aides stood by the door, to provide privacy.
Both aides left the room without transferring the resident back to bed
or to a chair. According to the Interdisciplinary Progress Notes dated
April 17, 2000, the resident was found on the floor by a maintenance man.
She suffered injury to her head and back resulting in pain and discomfort. The State surveyor noted that R3's Nursing Care Instructions,
dated January 6, 2000 and revised on April 14, 2000, required total assistance
with toileting. Those instructions called for a sensory alarm on the chair
and bed, to alert the staff of any attempts to get up without assistance.
Additionally, the Monthly Assessment and Care Summary dated March 7, 2000
revealed that R3 could not be left alone during toileting.
Discussion Ms. Juanita Stemen, the State surveyor, testified that
on April 27, 2000, she participated in the follow-up survey to the one
conducted on March 2, 2000. Tr. at 116. Through record review and staff
interviews, Ms. Stemen was able to establish that on April 17, 2000, two
nurse's aides assisted R3 to a bedside commode in her room. One of the
aides reported that because the resident wanted a little privacy, they
stepped outside in the hall right outside her room. While the aides waited,
one of them was called by a charge nurse to assist with another resident.
The other aide eventually left, and R3 remained alone and unattended on
the bedside commode. Thus, when the resident attempted to transfer herself,
she fell to the floor and was found there by other staff personnel. Tr.
at 119. The surveyor further explained that R3 was assessed by
the facility as an elderly female weighing over 200 pounds who required
assistance for mobility due to weakness and cognitive deficits that impaired
her ability to make appropriate judgments concerning her personal care.
Tr. at 120.(7) The parties also stipulated
that R3 nursing care instructions directed nurse's
aides to provide her with total assistance with toileting . It was also
stipulated that R3's Monthly Assessment and Care Summary, dated March
7, 2000, stated that she could not be left alone during toileting. ALJ
Ex. 1, at 2, 3. CMS argues that Petitioner failed to effectively communicate
the specific care needs of R3 to its Certified Nursing Assistants (CNAs)
and that such confusion was compounded by the charge nurse breaking with
facility protocol and calling away one CNA when she knew that resident
was at risk of falls, and required a two person assistance for transfer
and needed constant supervision with toileting. HCFA's Post Br. at 21,
22. Petitioner contends that CMS did not allege in the statement
of deficiencies (Form 2567) that the basis for the finding of noncompliance
was a failure to supervise nurse aides, and that it should not be held
liable for the misdeeds of a rogue aide. Furthermore, argues Petitioner,
the charge nurse called away only one aide, and left another to supervise
the resident. Thus, it is Petitioner's conclusion that it did everything
it could to prevent the accident experienced by R3 on April 17, 2000. I agree with Petitioner that CMS's basis for a finding
of noncompliance, as reflected in the Form 2567 statement of deficiencies,
is grounded in the failure to supervise R1, and not in the failure to
supervise nurse aides. However, it is also true that the charge nurse
placed the resident at risk for fall and injury by removing one of the
nurse aides attending to R3. Even if I were to accept that the so called
"rogue aide" acted contrary to directives and training provided by the
facility, it is inexcusable for the supervisory charge nurse to draw one
aide away from a resident that requires two aides for transfers. See
CMS Ex. 34, at 1. There is no evidence that the charge nurse inquired
as to the needs of R3 before calling one of the aides away, nor that she
was assured that the aide returned to assist R3. In fact, the evidence
of record reveals that the aide that was summoned away by the charge nurse
never returned to the resident's room. She knew or should have known that
R3 required two people to transfer her from the commode. Likewise, the
charge nurse knew or should have known that when R3 was ready for a transfer
the one remaining aide would be unable to assist her alone. I cannot agree with Petitioner that the abandonment and fall of R3 is the sole result of one rogue aide. R3 suffered a fall and injury not only because one nurse aide left the resident alone of her own accord, but also because a charge nurse removed one of two nurse aides required to provide assistance to R3. The record is unequivocal that R3 required total assistance while toileting, that she was not to be left alone, and that two people had to be present for transferring after she had been toileted. ALJ Ex. 1, at 2, 3; CMS Ex. 34, at 1. Consequently, Petitioner, by the converging
conduct of two nurse aides and one supervisory charge nurse, neglected
R3 and failed to provide her with required supervision and assistance
devices. Petitioner's objectionable conduct resulted in actual harm to
R3. In view of the foregoing, I find that CMS has established a prima facie case of noncompliance, and Petitioner has not come forward with persuasive evidence to overcome CMS's showing.
CMS has satisfied the criteria for imposing remedies at the less than immediate jeopardy level. First CMS established a prima facie case, which Petitioner did not rebut, that as of April 27, 2000, it was not complying substantially with the participation requirements at 42 C.F.R. § 483.25(h)(2). Indeed, there is not only a prima facie case of noncompliance present here, but the preponderance of the evidence is that Petitioner was not complying substantially with this requirement. Second, Petitioner did not show that it had eliminated the noncompliance on any date prior to May 18, 2000. Thus, I find that CMS may impose a CMP in the range of from $50 to $3,000 per day beginning April 27, 2000 through May 18, 2000.
CMS imposed $250 per day CMP for the period beginning
April 27, 2000 and ending May 18, 2000. I sustain the penalty imposed.
A penalty of $250 per day falls in low range of penalties which may be
imposed for deficiencies that are at the less than the immediate jeopardy
level of noncompliance. 42 C.F.R. § 488.438(a)(ii). The beginning date
of the penalty is the date that CMS first determined Petitioner not to
be complying substantially with participation requirements. 42 C.F.R.
§ 488.440(a). Ms. Theresa Bennett, a CMS health insurance specialist,
testified that in arriving at a penalty amount she considered the scope
and severity of the deficiencies, the culpability of the facility, and
financial condition of the provider. Ms. Bennett further testified that,
in the Dallas region, CMS has set up a grid that is used where it has
taken the range of the CMP for both immediate jeopardy and non immediate
jeopardy and has broken them out based on the scope and severity of the
highest driving deficiency. In this particular case, Ms. Bennett stated
where a "G" level deficiency is involved, she noted that the range of
CMP used in most cases at that level of noncompliance would be somewhere
between $100 and $300. She chose an amount in the mid range, that is $250.
Although it was considered that the facility up to that time had a good
compliance record, it had been put on notice regarding the deficiency
and failed to make proper correction after the first survey occurred.
Tr. at 196-197. Petitioner has not come forward with evidence to show
that the amount of the CMP imposed by CMS is unreasonable.
The evidence in this case shows the deficiencies to be of a serious nature.
Pertinent to this is the fact that the residents affected by the noncompliance
suffered actual harm. In one case, the resident suffered grievous bodily
harm. Consequently, a CMP of $250 per is not unreasonable. IV. Conclusion I conclude that CMS correctly determined that beginning April 27, 2000 through May 18, 2000, Petitioner was not complying with federal participation requirements in the Medicare program at the less than immediate jeopardy level, and the imposition of a CMP of $250 per day is reasonable. |
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| JUDGE | |
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José A. Anglada Administrative Law Judge |
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| FOOTNOTES | |
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1. This matter was originally assigned to Administrative Law Judge Jill S. Clifton. It was reassigned to me on February 8, 2001, after she transferred to another agency. 2. CMS was formerly known as the Health Care Financing Administration (HCFA). 3. Pursuant to objection by Petitioner, pages 3 and 4 of CMS Ex. 14 were excluded. Petitioner's objection to CMS Ex.# 4, page 4, paragraph 4, was overruled. 4. This refers to the nighttime nurse's station. 5. The precise industry language and defensive flavor of this statement speaks to the heavy hand in the facility's contribution to its authorship. 6. There is evidence that, at least on one occasion, R1 was observed climbing over the rail to get back in bed. CMS Ex. 23, at 6. Since Petitioner did not provide one on one supervision to this resident, it cannot state unequivocally that she did not climb over the rail to get out of bed on any of the several instances she was seen wandering around the facility. 7. The Nursing Care Instructions specifically mentioned, among other things, that R3 suffered from renal failure, anemia, seizures, and legal blindness. CMS Ex. 34, at 1. | |