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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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Asbury Center at Johnson City, |
DATE: August 9, 2001 |
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Centers for Medicare & Medicaid
Services
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Docket No.C-01-023
Decision No. CR807 |
| DECISION | |
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DECISION Petitioner, Asbury Center of Johnson City (hereafter "Petitioner"
or "facility") is a nursing facility certified to participate in the Medicare
and Medicaid programs as a provider of services. Petitioner challenges
the Centers for Medicare & Medicaid Services' (CMS) determinations
that from June 29 through July 26, 2000, and from September 10 through
October 9, 2000, it was not in substantial compliance with Medicare requirements
and that its deficiencies posed immediate jeopardy to resident health
and safety. For the reasons set forth below, I conclude that from June
29 through July 26, 2000, and from September 10 through October 9, 2000,
the facility was out of compliance with the program participation requirements
for Quality of Care and Administration and that from September 10 through
October 9, 2000, the facility was out of compliance with the program requirements
for Physical Environment. The facility's deficiencies posed immediate
jeopardy to resident health and safety, and the amount of the civil money
penalty (CMP) imposed - $5,000 per day from June 29 through July 26, 2000,
and $7,500 per day from September 10 through October 9, 2000 - is reasonable. BACKGROUND On June 29, 2000, Resident #1, who was restrained in a
wheelchair, fell down a flight of stairs and sustained injuries that resulted
in her death. June 29, 2000 Incident Stipulations 4, 5. Responding to
the facility's report of this incident, the Tennessee Department of Health
(hereafter "State Agency") conducted a complaint investigation survey
on July 6, 2000 and a partial extended survey on July 10, 2000. Transcript
(Tr.) 20, 64; Joint Exhibit (J. Ex.) 7. Following the survey, the State
Agency cited two areas of deficiency: Quality of Care, 42 C.F.R. § 483.25(h)(2)
(Tag F-324), and Administration, 42 C.F.R. § 483.75 (Tag F-490). J. Ex.
7. By letter dated July 13, 2000, CMS advised Petitioner
that conditions in the facility constituted immediate jeopardy to resident
health and safety, and that CMS was therefore imposing a CMP of $5,000
per day, effective June 29, 2000, which would remain in effect until the
facility achieved substantial compliance with program requirements or
was terminated. J. Ex. 11. The facility responded with a plan of correction
dated July 19, 2000. J. Ex. 14. In response, the State Agency conducted
an unannounced follow-up survey on July 27, 2000, and, by letter dated
July 27, 2000, advised the facility that it had achieved and maintained
compliance. J. Ex. 31, at 3. On September 10, 2000, a second resident fell down a flight
of stairs while restrained in her wheelchair. September 10, 2000 Incident
Stipulations 7, 8. She sustained injuries, including a scalp laceration
that required sutures. Id. at 9. On September 18, 2000, the facility
advised the State Agency of the incident. J. Ex. 32. On September 20 and
28, 2000, the State Agency sent a survey team to investigate. J. Exs.
53, 54. Following the survey, the State Agency cited three areas of deficiency:
Quality of Care, 42 C.F.R. § 483.25(h)(2) (Tag F-324); Physical Environment,
42 C.F.R. § 483.70(c)(2) (Tag F-456); and Administration, 42 C.F.R. §
483.75 (Tag F-490). J. Ex. 37. CMS reviewed the State Agency findings and, by letter
dated October 4, 2000, advised the facility that it was not in substantial
compliance with program requirements, and that conditions in the facility
constituted immediate jeopardy to resident health and safety. J. Ex. 38.
CMS imposed a CMP in the amount of $7,500 per day, effective September
10, 2000, and indicated that it would terminate the provider agreement
effective October 21, 2000. Id. However, following a revisit to
the facility on October 10, 2000, the State Agency determined that the
facility had achieved and maintained compliance, so the pending denial
of payment for new admissions and the pending termination were canceled.
J. Exs. 58-60. The total amount of the CMP imposed by HCFA against the
facility is $365,000 ($5,000 per day for 28 days=$140,000; $7,500 per
day for 30 days=$225,000). Petitioner timely requested hearings to challenge CMS'
determinations, and those appeals, captioned Docket Nos. C-00-856 and
C-01-023, have been consolidated as Docket No. C-01-023.
A hearing was held before me on March 7, 2001, in Knoxville,
Tennessee. Mr. William M. Barrick and Ms. Marie C. Infante appeared on
behalf of Petitioner. Ms. Michelle A. Gilliam and Ms. Erica C. Daniel
appeared on behalf of CMS. J. Exs. 1 through 60 and Petitioners Exhibits
(P. Ex.) 61 through 65, 67, and 70 through 75 were admitted into evidence.
J. Ex. 44 consists of multiple documents - J. Ex. 44A through 44D. ISSUES
STATUTORY AND REGULATORY BACKGROUND The Social Security Act ("Act") sets forth requirements
for skilled nursing facility and nursing facility ("nursing facility")
participation in the Medicare and Medicaid programs, and authorizes the
Secretary of Health and Human Services to promulgate regulations implementing
the statutory provisions. Act, sections 1819 and 1919. The Secretary's
regulations governing nursing facility participation in the Medicare program
are found at 42 C.F.R. Part 483. To participate in the Medicare program, a nursing facility
must maintain substantial compliance with program requirements. To be
in substantial compliance, a facility's deficiencies may pose no greater
risk to resident health and safety than "the potential for causing minimal
harm." 42 C.F.R. § 488.301. A facility's noncompliance constitutes immediate
jeopardy if it has caused or is likely to cause "serious injury, harm,
impairment, or death to a resident." Id. Under the "quality of care" requirement, each resident
must receive and a facility must provide the necessary care and services
to attain or maintain the highest practicable physical, mental, and psychosocial
well-being, in accordance with the resident's comprehensive assessment
and plan of care. 42 C.F.R. § 483.25. Specifically, a facility must ensure
that: 1) the resident environment remains as free of accident hazards
as possible; and 2) each resident receives adequate supervision and assistance
devices to prevent accidents. 42 C.F.R. § 483.25(h). Under the "administration" requirement, the facility must
be administered in a manner that enables it to use its resources effectively
and efficiently to attain or maintain the highest practicable physical,
mental, and psychosocial well-being of each resident. 42 C.F.R. § 483.75. Under the "physical environment" requirement, a facility
must maintain all essential mechanical, electrical, and patient care equipment
in safe operating condition. 42 C.F.R. § 483.70(c)(2). If a facility is not in substantial compliance with program
requirements, CMS has the authority to impose one or more of the enforcement
remedies listed in 42 C.F.R. § 488.406, which include imposing a CMP.
See Act, section 1819(h). CMS may impose a CMP for the number of
days that the facility is not in substantial compliance with one or more
program requirements. 42 C.F.R. § 488.430(a). In situations where the deficiencies do not constitute
immediate jeopardy, but have caused actual harm or have the potential
for causing more than minimal harm, CMS may impose a CMP in the lower
range of $50 to $3,000 per day. Penalties in the range of $3,050 to $10,000
per day are imposed for deficiencies constituting immediate jeopardy.
CMS increases the per day penalty amount for any repeated deficiencies
for which a lower level penalty amount was previously imposed. 42 C.F.R.
§ 488.438. In setting the amount of the CMP, CMS considers: 1) the
facility's history of noncompliance; 2) the facility's financial condition;
3) the factors specified in 42 C.F.R. § 488.404; and 4) the facility's
degree of culpability, which includes neglect, indifference, or disregard
for resident care, comfort, or safety. The absence of culpability is not
a mitigating factor. 42 C.F.R. § 488.438(f). The factors found at 42 C.F.R. § 488.404 include: 1) the
scope and severity of the deficiency; 2) the relationship of the deficiency
to other deficiencies resulting in noncompliance; and 3) the facility's
prior history of noncompliance in general, specifically with reference
to the cited deficiencies. DISCUSSION In reviewing HCFA's determinations here, I must answer
two questions: 1) Was the facility in substantial compliance with the
cited regulatory provisions? CMS must present a prima facie case with
evidence that, if credible and unrebutted, would constitute proof that
the facility was not in substantial compliance. The facility then has
the ultimate burden of showing, by a preponderance of the evidence, its
substantial compliance with each cited provision. Koester Pavilion,
DAB No. 1750, at 7-8 (2000). 2) If I conclude that the facility was not in substantial
compliance, I next consider whether the level of non-compliance posed
immediate jeopardy to resident health and safety. CMS' determination as
to immediate jeopardy must be upheld unless clearly erroneous, 42 C.F.R.
§ 498.60(c)(2), and the level of noncompliance is subject to review only
if a successful challenge would affect the range of the CMP amounts that
HCFA could impose. 42 C.F.R. § 498.3(b)(14)(i). I make findings of fact and conclusions of law ("Findings")
to support my decision in this case. I set forth each Finding, below,
in italics, and as a separately numbered heading. I discuss each Finding
in detail.
In order to meet the overall quality of care requirement
that it provide what is necessary for each resident to attain or maintain
the highest practicable physical, mental, and psychosocial well-being,
the facility must ensure that its supervision is adequate to prevent accidents.
This requirement does not amount to strict liability or require absolute
success in an obviously difficult task. Using an outcome-oriented approach,
facilities have the flexibility to use a variety of methods and approaches,
but they are responsible for achieving the required
results. In ensuring adequate supervision, the facility is not required
to do the impossible or be a guarantor against unforeseeable occurrence,
but it "is required to do everything in its power to prevent accidents."
(emphasis added) 42 C.F.R. § 483.25(h); Koester, DAB No. 1750,
at 25-26; Woodstock Care Center, DAB No. 1726, at 25 (2000). The facility has three resident floors - the second, third,
and fourth. Tr. 48-49. (See P. Ex. 67 for floor plans for the third
and fourth floors). In June-July 2000, 44 residents lived on the 3d floor,
which is an intermediate care floor. Tr. 138-139. Their skills ranged
from total dependency to fairly independent. Most got out of bed daily,
and were mobile with wheelchairs, independently ambulatory, or ambulatory
with some assistance. Tr. 139-140. The floor is L-shaped, with a south
corridor and a west corridor. The nurses' station sits at the juncture
of the two corridors, and exit doors are at each end of each corridor.
P. Ex. 67, at 2. No particular efforts were made to secure this floor.
An ancient buzzer alarm system was still in place on the exit doors, which
generally went off when someone opened the door. According to the Director
of Nurses ("DON"), Eugene Carrier, the system was not considered a detection
system, and no one was expected to investigate when the buzzer went off.(2)
Tr. 142-145. Resident #1 resided on the third floor. Tr. 27. She was
a very old woman(3) who had long and short-term
memory problems. According to her care plan, she had the potential for
injury because of poor balance. She was not aware of her limitations.
The facility characterized her decision-making ability as "severely impaired,"
and reported that she "wandered." She had impaired vision even with glasses.
J. Ex. 26. She required total care for dressing, toileting, personal hygiene
and bathing. According to the facility documents, she also required "total
care for locomotion on [and] off [the] unit in [a] wheelchair." Id.,
at 5, 7. According to the State surveyor's review of the records, the
resident lacked "safety awareness." Tr. 23; See J. Ex. 20. Having identified these problems, the facility appropriately
addressed them in the resident's plan of care: when she was out of bed
in her wheelchair, staff were to observe her frequently, and place her
in a supervised area; when in the wheelchair, they were to apply a lap
cushion as ordered by her physician; because the lap cushion is a restraint,
they were to check it every 30 minutes and release her from it every 2
hours. Id., at 15, 17, 19. According to DON Carrier, Resident #1 spent a considerable
amount of time rolling up and down the hallways and entering open doors.
Tr. 146. She was hard of hearing. Tr. 147. She was feeble. Tr. 147-148.
Her gait was unsteady. Id. Her upper extremity strength was good,
but she was losing strength in her legs. Tr. 148. Linda Jennings, the
facility Administrator, described Resident #1's wandering behavior: "up
and down the halls . . . in and out of patient rooms . . . in and out
of the nurses station . . . in and out of the dining room." Tr. 249.
On June 29, 2000, the facility was having its annual picnic. About 400 visitors were about the facility and its grounds. Tr. 28. DON Carrier described "in excess of 400 family members at the picnic that night." Tr. 166.
Tr. 167. According to Petitioner, three people ordinarily staff
the third floor on the evening shift, but, because of the picnic, two
additional staff were added. Tr. 167. The facility presented no witnesses
who were actually working on the third floor the night that Resident #1
tumbled down the stairs. The record contains gaps in time, discrepancies
in the time line, and does not fully account for all of the employee whereabouts
during the critical times. Nevertheless, the more reliable evidence establishes the
following facts: three of the staff assigned to the third floor, Linda
Couch, LPN, Theresa McLaughlin, CNA,(4)
and Susan Murray, CNA, reported that they last observed Resident #1 at
4:00 P.M.(5) At that time, as they went
off to begin their rounds, CNAs McLaughlin and Murray saw Resident #1
sitting in her wheelchair at the nurses' station. J. Ex. 25, at 3, 4.
In a written statement dated June 29, 2000, at 5:00 P.M., and in an interview
with the State surveyor, LPN Couch said that she last saw Resident #1
at 4:00 P.M. rolling around the south corridor in her wheelchair. LPN
Couch then went off to distribute medications. Id., at 5; J. Ex.
20, at 7. When Resident #1 fell down the south corridor stairwell (Tr.
209), all staff were either in resident rooms on the west corridor, or
one CNA may have been in a resident room on the south corridor. LPN Couch
was distributing medications in Room 3124, and most of the CNAs were assisting
a resident in Room 3119. See P. Ex. 67; Tr. 165. CNA Oaks may have
been feeding another resident in a room in either the south or west corridor,
although, as noted below, the record is sketchy as to her whereabouts. In an interview dated July 6, 2000, Judy Jeffers, CNA, told State surveyor Carol Lunsford that, on the day of the incident, she had remained at the facility after her usual day shift in order to help feed residents. Prior to the accident, she last saw Resident #1 sitting in her wheelchair in front of the nurses' station at between 4:15 P.M. and 4:30 P.M. J. Ex. 20, at 2, 5; see also J. Ex. 9. In another statement, written but undated, CNA Jeffers reports that she saw Resident #1 when she
(sic) P. Ex. 65, at 4. In an affidavit dated January 31,
2001, CNA Jeffers states that she last saw Resident #1 between 4:15 P.M.
and 4:30 P.M., but did not see her at any other time, and that, at the
time of the incident, she was in a resident room with other nursing staff
"helping get that resident back into a wheelchair." P. Ex. 71. This would
put her in Room 3119 with CNAs McLaughlin and Murray at the time of the
incident, which is consistent with their statements and with DON Carrier's
testimony. See J. Ex. 25, at 3, 4. DON Carrier, basing his testimony on his conversations
with staff, concluded that, prior to the incident, CNA Jeffers was in
an alcove off the bathing area feeding a resident. Tr. 163, 169. Two care
givers, CNA McLaughlin and CNA Murray, were in a room on the west corridor
helping a resident prepare for the picnic. They were having difficulties,
so they asked the CNA who had been in the alcove (CNA Jeffers) to help
them. They were all in Room 3119 on the west corridor. The LPN was administering
medications and was in another of the rooms on the west corridor, probably
3124. Tr. 165, 169. See also Tr. 27. The record is not clear as to when CNA Jeffers left the
alcove to help in Room 3119. In their statements, CNAs McLaughlin and
Murray report that "at approximately 5 P.M." CNA Murray "told another
CNA who was feeding a patient that we needed help. She followed me back
into [the resident's] room to assist us." J. Ex. 25, at 4. That estimate
of time must be incorrect, because, according to the facility Administrator,
staff called the 911 emergency number at 4:52 P.M. We can only surmise
that CNA Jeffers left the alcove some time after 4:15 P.M. but before
about 4:50 P.M. In a written statement dated July 3, 2000, Cindy Sturgill,
Assistant Director of Nursing ("ADON"), said that she made rounds on the
floor at approximately 4:15 P.M. to 4:30 P.M., did not see Resident #1,
and walked through the stairwell door, down to the second floor, and the
door was closed when she left. J. Ex. 25, at 2.(6)
Administrator Jennings testified that according to the statements she
got, the last time anyone actually remembered seeing the resident was
between 4:15 P.M. and 4:20 P.M. Tr. 232. ADON Sturgill was walking through
the floors right after that and does not remember seeing her, but said
that things were quiet on the third floor or she would not have left.
Tr. 232. Where the fifth staff member was during this time is a
mystery. The facility identifies her as Rebecca Oaks. P. Ex. 63.(7)
Although the record contains written statements dated June 29, 2000, from
the other staff who were identified as working on the third floor on June
29 (McLaughlin, Murray, and Couch), and statements from ADON Sturgill,
who walked through the floor, the record contains no contemporaneous written
statement from CNA Oaks. J. Ex. 25. None of the other staff mention her
in any of their written statements. In her time line, Administrator Jennings
lists her, along with CNA Jeffers, as having observed Resident #1 between
4:15 P.M. and 4:20 P.M., but provides no statements nor any other support
for this, and I do not accept this as reliable. P. Ex. 65, at 1. In his
testimony DON Carrier mentioned her only briefly as in a room feeding
a resident, but provided no specifics, and it is unclear even which corridor
the room was on. Tr. 170. Administrator Jennings testified, inaccurately, that,
Tr. 240-241. In its brief, Petitioner also inaccurately
asserts that between 4:15 P.M. and 4:52 P.M. "Judy Jeffers, a Certified
Nursing Assistant ("CNA"), was in the hallway assisting a resident with
the evening meal." P. Brief at 8. In fact, DON Carrier's testimony and
CNA Jeffers' own statements establish that she was feeding a resident
in an alcove off the bathing area, located at the intersection of the
corridors, until she went with other staff to Room 3119 in the west corridor.
Moreover, if Petitioner meant to convey that CNA Jeffers was monitoring
resident and other activities in the south corridor, the evidence overwhelmingly
contradicts that. CNA Jeffers saw Resident #1 in passing, when she came
down to feed another resident. She then was occupied in the alcove, where
she could not see down the south corridor, and then was called away to
help in room 3119 on the west corridor. Petitioner also gratuitously asserts that "the fifth staff
member was on the south hall assisting her resident with the evening meal."
P. Brief at 9. Petitioner offers no citation to the record, and, in fact,
the record contains no support for this. Its few references to the fifth
staff member place her in a room, but the record is silent as to which
corridor that room was on. Tr. 170. Thus, at the time of the accident, the entire staff were
either in rooms on the west corridor or CNA Oaks was inside a room on
the south corridor. Resident #1, identified as a wanderer who was supposed
to be in a supervised area, was left alone and found her way through the
exit door. Exactly how long she was left alone and unsupervised is an
unanswered question. The reports and staff consistently place the time
of her fall as "approximately 5:00 P.M." J. Ex. 8; J. Ex. 25, at 5. The
nurses' notes specifically place the time of the incident at 5:00 P.M.
J. Ex. 27, at 6. Nevertheless, Administrator Jennings asserts that "[a]ccording
to the 911 dispatcher, the call from Asbury concerning [Resident #1] was
registered at 4:52 P.M." P. Ex. 65, at 6. Such double hearsay is not as
reliable as the actual records from Emergency Medical Services would have
been, but, assuming the 4:52 P.M. time is accurate, the evidence establishes
that no one saw Resident #1 for at least 20 minutes (4:30 P.M. until 4:50
P.M.), and maybe for as long as 35 minutes (4:15 P.M. until 4:50 P.M.)
or more. Resident #1 was unattended long enough for her to get through
the exit door unnoticed. During this time, no staff were at the nurses'
station, and none were in the corridors. How Resident #1 got through the door is another unanswered
question. The record reliably establishes that, from the west corridor,
LPN Couch heard a big "thump" and ran down the hall to the south corridor
exit. The exit door was standing open, and LPN Couch found Resident #1
lying on the landing with her wheelchair on top of her, yelling for help.
J. Ex. 25, at 5; J. Ex. 8; Tr. 168-169. The facility attributes the incident
to an unforeseeable problem with the door: some of the screws in the top
hinge were stripped and some in the middle hinge were loose, so, although
the door would close if opened less than halfway, when more than halfway
open it dragged on the floor and did not close.
Tr. 210. The screws were immediately repaired. Tr. 210-211; J. Ex. 13.
No one can explain how the door was pushed open.(8) Petitioner now suggests that Resident #1 had freely wandered
for years without incident, and, thus, the accident was unforeseeable.
P. Brief at 15. Facility records show otherwise. Nurses' notes dated August
1999 describe Resident #1 as "wandering room to room, hitting other residents
[with] [wheelchair]." J. Ex. 27, at 1. An entry from May 2000 describes
an incident similar to her fatal accident, although with less serious
consequences: Resident #1 had been rolling up and down the hall in her
wheelchair; staff heard a noise, and found her lying on her back in the
chair, with a small red area to the back of her head. J. Ex. 27, at 5. Resident #1's wandering behavior was well-documented,
and the facility recognized the risk of leaving her unsupervised, hence,
her plan of care called for frequent observation and supervision. HCFA
suggests that she should have been transferred to a secured floor; the
facility argues that its only alternative would have been to restrain
her in one place. Tr. 229. I reject both positions. Using an outcome-oriented
approach, facilities have the flexibility to use a variety of methods
and approaches, but they are responsible for achieving the required results.
Koester, DAB No. 1750, at 26. The facility was not required to
place Resident #1 on a secure floor, but it was required to protect her. I do not consider adequate, or comporting with her care plan, that "at least every 30 minutes to an hour somebody would see her in passing," as advocated by DON Carrier. Tr. 156. I also consider deficient Administrator Jennings' suggestion that, short of restraining her in a regular chair, the facility was powerless to control her wanderings:
Tr. 228-229. Allowing residents as much freedom as possible
is a commendable goal (and required by the regulations), but it does not
relieve the facility of its duty to protect its residents. "The problem
is not that [the facility's] supervision fell short of an unattainable
perfection but that it fell far short of what could reasonably be considered
adequate supervision under the circumstances." Woodstock, DAB 1726,
at 28. At a minimum, "adequate supervision under the circumstances" requires
that entire corridors not be left unsupervised for indefinite periods
of time, particularly when occupied by a resident whose wandering behavior
presents known safety hazards to herself and others. Petitioner recognized that Resident #1 was likely to go
through an open door, and this presents a significant safety risk to herself
and to the other residents. The facility seems to have recognized this
in its care plan, but not consistently in its practices. Although the
care plan directed frequent observation in a supervised area, the facility
had no means of assuring that the strategy was implemented. The nurses'
notes occasionally reflect staff observations, but those are very occasional,
and no notes were entered between June 26, 2000 and the time of Resident
#1's accident at 5:00 P.M. on June 29, 2000. J. Ex. 27, at 6. In her plan of care, the facility devised a strategy that should have protected Resident #1 without restraining her in one place, but the facility then ignored that strategy. Indeed, through DON Carrier's testimony, Petitioner now suggests that because Resident #1 could not open a closed door, allowing her to wander unobserved constituted adequate supervision.
Tr. 172. Resident #1 may not have been capable of opening
a door, but she was assessed as in danger if unattended.(9) On the evening of June 29, 2000, no one was monitoring
Resident #1 and no one was monitoring the corridors as all the CNAs and
the LPN were in resident rooms. In the amount of time the corridors were
left unsupervised, anything could have happened, particularly on a day
in which so many strangers were on the grounds and had access to the facility.(10)
I consider that leaving a floor unmonitored under those circumstances
is dangerous. I consider that leaving Resident #1 to wander without anyone
paying attention was dangerous. Such practice does not fall within the
standard of doing "everything in [the facility's] power to prevent accidents." Based on all of this, I conclude that the facility did
not ensure that the resident environment was as free of accident hazards
as possible, nor that each resident received adequate supervision and
assistance devices to prevent accidents, as required by 42 C.F.R. § 483.25(h)(2).
I also conclude that the facility was not administered in a manner that
used its resources effectively to attain the highest practicable physical,
mental, and psychosocial well-being of each resident, as required by 42
C.F.R. § 483.75. The administration deficiency is a derivative deficiency
based on findings of other deficiencies. Cross Creek Health Care Center,
DAB No. 1665, at 19 (1998). Here, Petitioner's failure to carry out fully
the supervisory aspects of Resident #1's care plan establish that Petitioner
was deficient in meeting the administration requirement in terms of carrying
out the requirement for adequate supervision to prevent accidents, which
means using reasonable and practicable means for preventing foreseeable
accidents such as Resident #1's. Osceola Nursing & Rehabilitation,
DAB CR775, at 17 (2001). Thus, the facility was not in substantial compliance
with program requirements at either 42 C.F.R. § 483.25(h)(2) or 483.75. I next consider whether CMS' immediate jeopardy finding is "clearly erroneous." 42 C.F.R. 498.60(c)(2). "Immediate jeopardy" is defined as "a situation in which the provider's noncompliance with one or more requirements of participation has caused, or is likely to cause, serious injury, harm, impairment, or death to a resident." 42 C.F.R. 488.301. Although Petitioner strenuously argued its compliance with program requirements, it presented no alternative argument as to the immediate jeopardy finding. In light of the facility's noncompliance, Resident #1's death compels the immediate jeopardy finding. I therefore conclude that the facility's level of noncompliance posed immediate jeopardy to resident health and safety.
Because the facility building is located in a high-traffic
area, Petitioner could not assure patient safety for its wandering residents,
so, several years ago, it installed a security system on the fourth floor,
and residents identified as at risk for elopement were transferred there.
The fourth floor has 31 beds, and is smaller than the other floors. Tr.
140; P. Ex. 67, at 1. Of the approximately 30 residents who resided there
in September 2000, 21 had been so identified. Tr. 141.(11)
Using the WatchMate system, staff attached bracelet transmitters to resident
wrists or ankles, which are designed to set off a door pack alarm if the
resident approaches an exit door and to keep an elevator from moving if
a resident attempts to board. Tr. 72-73; J. Ex. 43, at 6; J. Ex. 46, at
2. Resident #2 was admitted to the facility in August 2000.(12)
At the time of the accident, she was at least 85 years old,(13)
and her diagnoses included dementia, osteoporosis, and anxiety disorder.
She had a history of falls. She had a partial loss of voluntary movement
in her lower extremities. J. Ex. 46. She was actively trying to leave
the facility, opening doors, going to door wells, trying to get out door
wells, and getting on elevators. After a few days, the facility identified
her as an elopement risk, moved her to the fourth floor, and equipped
her with a WatchMate transmitter to "help eliminate the possibility of
her getting in an outside area or in the stairwells." Tr. 181; J. Ex.
43, at 6. On September 10, 2000, at 8:45 P.M., Resident #2, restrained
in a wheelchair, fell down a flight of stairs, sustaining injuries, including
a head laceration that required sutures. J. Ex. 50; J. Ex. 43, at 8; J.
Ex. 46, at 32-33. Again, no one is sure precisely what happened. One LPN, Frieda Hall, and two CNAs, Mary Gunn and Amy
May, were assigned to the fourth floor that evening. J. Ex. 54. Throughout
the evening, residents were wandering the halls. Resident #2, in particular,
was agitated and restless, getting into things and attempting to leave
the floor. Staff twice pulled her away from the elevator area because
her security bracelet prevented the elevators from leaving the floor.
J. Ex. 37, at 1-2; J. Ex. 46, at 32-33; Tr. 128-129. At about 8:35 P.M.,
the two CNAs left the floor by elevator, taking the floor's linen and
garbage downstairs, leaving only the LPN to monitor the floor. Tr. 67-68,
129. This was apparently standard facility practice. Tr. 91, 128-131;
J. Ex. 37. The CNAs were responsible for taking out the linen and trash,
and, because they had to take the trash outside after dark, two were supposed
to go together as a safety precaution. Id. LPN Hall testified that after she pulled Resident #2 away
from the elevator so that the CNAs could leave the floor, she sat at the
nurses' station to chart. Tr. 129. From there, she observed Resident #2
next to the window near the exit door. Id.; see P. Ex. 67,
at 1. From the nurses' desk, the window is visible, although the elevator
and exit door would have been out of her line of vision. Tr. 77, 81. According
to LPN Hall, she heard a clatter, but did not know what it was. She looked
around the station, looked in the utility room and the nurses' lounge,
eventually going to the stairwell. In the meantime, third floor staff,
having heard a noise, went to investigate and found Resident #2, bleeding
from the head and still restrained in her wheelchair, which wheelchair
was lying on its side at the bottom of the stairs. Tr. 69, 83, 128-130;
See J. Ex. 37; J. Ex. 54, at 3. The CNAs told the State surveyor
that they were gone from the floor for about 10 minutes when someone came
to them in the parking lot and told them about the accident. Tr. 82. There seems no dispute that the audible alarm and door
lock did not activate, and much has been made of the system's failure. Both the Administrator and the DON testified that, after
the incident, they tested and were able to foil the system. DON Carrier
testified that, although the bracelet battery and signal transmission
were fine, when he checked it with the door pack "there were many occasions
that it allowed us to go through the doors without activating the pack."
Tr. 184. Administrator Jennings "got in the wheelchair and made it happen."
Tr. 237. "But that night, and I got in her wheelchair, that night in her
wheelchair, I made it happen. I could do it, and I did it in just a few
seconds." Tr. 239. She also testified that another resident had figured
out a way to make the elevator go even wearing the bracelet. Tr. 253. CMS points out that the facility failed to test the system as required. Facility policy mandated testing the WatchMate system weekly. However, the facility did not test it between September 1 and 10, 2000. Tr. 102. DON Carrier acknowledged that he normally checked the system every Friday, but had neglected to do so the Friday before the incident. He and Petitioner argue, however, that according to the manufacturer, monthly checks are adequate and his failure to check "had nothing to do with the transmitter defaulting and not setting the alarms off and shutting the system down." Tr. 183. In fact, the WatchMate Transmitter instructions provide:
(emphasis added) J. Ex. 54, at 14; J. Ex. 55, at 4. Whether the failure of the security system is attributable
to inadequate or improper testing is another question that cannot be answered.
But, the system was never meant to be fail-safe, and certainly did not
substitute for the presence of adequate staff. Petitioner
acknowledges that the system only "supplements other interventions, such
as supervised unit activities and other measures on an individual's plan
of care that are in place to minimize the risk of a resident eloping from
the floor undetected." P. Brief at 4. Unfortunately, facility staff seem
to have forgotten that the system was a supplement, and relied on it almost
exclusively to protect the health and safety of the fourth floor residents. Both the DON and the Administrator expressed shock that any resident could exit the fourth floor. ("I said that's not possible . . . . And I said, it's just not possible . . . .") Tr. 237. LPN Hall testified that,
Tr. 132. I do not accept that LPN Hall was watching Resident #2 closely. P. Brief at 17. This would require me to believe that LPN Hall sat with Resident #2 in her "direct line of sight" (Id., emphasis added) while this frail elderly woman restrained in a wheelchair managed to open a 48 inch wide, fire rated, "extremely heavy" door (Tr. 178) and then to wheel herself through it, without LPN Hall's noticing that anything was amiss. In describing these doors, DON Carrier asserted, "They can't be opened by frail people in a wheelchair. You can't - it can't be done." Id. Apparently, Resident #2 somehow managed to accomplish this task, but I do not accept that she was closely watched while she did it.I agree with the State surveyor that having all of the
nursing assistants absent from a patient care unit at the same time is
not good practice. Administrator Jennings insisted that leaving one staff
member responsible for 28 residents for 10 to 15 minutes was not a problem.
Tr. 245. In fact, the lapsed time was likely more than 15 minutes, since
the CNAs appear to have been off the floor for 10 minutes while they were
still in the facility parking lot. J. Ex. 43, at 7, 8, 11; J. Ex. 37,
at 2. And, they did this every day, apparently more often than once per
shift. This incident is not unlike the June incident. In each
case, a resident who was identified as in need of supervision was left
unsupervised, with serious consequences. Petitioner maintains that these
were unfortunate, but unavoidable, incidents.(14)
They may have been unforseen, but they were avoidable. The stairwell door
sticking open may have been "unique" (P. Brief at 11); the failure of
the WatchMate System may have been unusual. But, an infinite number of
unique and unusual events occur regularly in nursing facilities, particularly
with residents who have identified problems such as wandering. I therefore conclude that the facility did not ensure
that the resident environment was as free of accident hazards as possible,
nor that each resident received adequate supervision and assistance devices
to prevent accidents, as required by 42 C.F.R. § 483.25(h). I also conclude
that the facility was not administered in a manner that used its resources
effectively to attain the highest practicable physical, mental, and psycho-social
well-being of each resident, as required by 42 C.F.R. § 483.75. Finally,
I conclude that the facility was out of compliance with 42 C.F.R. § 483.70(c)(2),
in that CMS met its burden of establishing a prima facie case that Resident
#2's security bracelet should have been checked between September 1, 2000
and September 10, 2000 (J. Ex. 45, at 4-5) and Petitioner has not adequately
rebutted CMS's case.(15) The facility
was therefore not in substantial compliance with program requirements. I next consider whether CMS' immediate jeopardy finding is "clearly erroneous." 42 C.F.R. 498.60(c)(2). Again, Petitioner presented no argument that specifically addressed the immediate jeopardy finding. In light of the facility's noncompliance, Resident #2's significant injuries compel the immediate jeopardy finding. I therefore conclude that the facility's level of noncompliance posed immediate jeopardy to resident health and safety.
Having found a basis for imposing CMPs, I now consider
whether the amounts imposed are reasonable, applying the four factors
listed in 42 C.F.R. § 488.438(f). CarePlex of Silver Spring, DAB
No. 1683, at 8 (1999); Capitol Hill Community Rehabilitation and Specialty
Care Center, DAB No. 1629 (1997). My "inquiry should be whether the
evidence presented on the record concerning the relevant regulatory factors
supports a finding that the amount of the CMP is at a level reasonably
related to an effort to produce corrective action by a provider with the
kind of deficiencies found and in light of the other factors involved."
CarePlex, DAB No. 1683, at 8. Following the July survey, CMS imposed a penalty of $5,000,
which is at the lower end of the mandatory range ($3,050 to $10,000) for
immediate jeopardy situations. With respect to the factors listed at 42
C.F.R. § 488.438(f), the record suggests that the facility had a fairly
good compliance history, but is silent as to its financial condition.
However, the seriousness of the deficiencies and the facility culpability
justify the imposition of a penalty above the minimum, and I find CMS's
determination to be reasonable. As discussed above, leaving a floor unmonitored
for an indefinite period, particularly when occupied by a resident whose
wandering behavior presents known safety hazards to herself and others,
seriously disregards resident safety. Unfortunately, in this case, that
disregard had the most severe consequences. With respect to the September survey, I consider the imposition
of a $7,500 per day penalty reasonable. Again, I consider to be serious
disregard for resident safety the facility practice of leaving only one
person responsible for a 30 bed unit housing residents identified as at
risk for elopement. And again, this practice had serious consequences.
Further, in light of the July survey findings, the higher award of $7,500
following the September survey is justified. CONCLUSION For all of the reasons discussed above, I uphold CMS' determinations that from June 29 through July 26, 2000, and from September 10 through October 9, 2000, the facility was out of compliance with the program participation requirements for Quality of Care and Administration and from September 10 through October 9, 2000, the facility was out of compliance with the program participation requirement for physical environment. The facility's deficiencies posed immediate jeopardy to resident health and safety, and the amount of the CMP imposed - $5,000 per day from June 29 through July 26, 2000 and $7,500 per day from September 10 through October 9, 2000 - is reasonable. |
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| JUDGE | |
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Carolyn Cozad Hughes Administrative Law Judge |
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| FOOTNOTES | |
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1. The Health Care Financing Administration has been renamed the Centers for Medicare & Medicaid Services (CMS). 2. Since no one ever responded to the alarm, it was, for all practical purposes, useless, so whether it went off on the night of June 29, 2000 is of no consequence to my decision in the case. 3. She was purported to be 106 years old, although no one was able to verify that age. Tr. 145, 226. 4. The record contains conflicting evidence as to whether Theresa McLaughlin was a CNA or an LPN. Petitioner's brief asserts that on June 29, 2001, Ms. McLaughlin, an LPN, was working as a CNA. Petitioner's (P.) Brief at 8-9; Tr. at 165; P. Ex 63. 5. An undated, typed statement, signed by CNA McLaughlin, states that she last saw Resident #1 "sometime around 4:10." P. Ex. 65. This is inconsistent with CNA McLaughlin's prior statements, including the statement she gave on the night of the incident, and inconsistent with CNA Murray's statements. J. Ex. 25, at 3, 4. The more reliable evidence establishes that she last saw Resident #1 at 4:00. 6. In its Brief, Petitioner makes a number of passing assertions that are not critical to the outcome of the case, but are nevertheless simply not supported by the evidence. Citing J. Ex. 25, at 2, Petitioner asserts that ADON Sturgill "used the central stairwell." P. Brief at 9. Nothing in that exhibit suggests which stairwell she used. Petitioner also cites J. Ex. 20, at 2, and suggests that CNA Jeffers told the State surveyor that, when she walked down to Room 3119, the stairwell door was closed. In fact, the surveyor note says: "last saw resident in front of nsg (sic) station 4:15-4:30 p.m. sitting in front on w.c. calm. Door to hall closed," which suggests that CNA Jeffers told the surveyor that the door was closed at the time she last saw Resident #1, which was when she came down from the fifth floor, well before she went to room 3119. Again, the record is not clear which door they were referring to. 7. In an undated, unattributed document, Petitioner identifies six employees as "on the floor 3:00 P.M.-11:00 P.M. on Thursday, June 29, 2000." P. Ex. 63. I find this claim somewhat misleading. The evidence establishes, for example, that ADON Sturgill merely walked through on rounds, not that she was present from 3:00 P.M. to 11:00 P.M. Judy Jeffers arrived on the floor between 4:15 and 4:30 P.M. Furthermore, the record contains no reliable evidence as to where Rebecca Oaks was working. 8. No one has adequately explained how the door reached this state of disrepair without anyone's noticing. On this issue, CMS met its burden of establishing its prima facie case. That Petitioner has not adequately explained how this occurred could provide another basis for sustaining CMS's action. 9. I note that, in September, another frail, elderly resident, also restrained in a wheelchair, apparently managed to open one of the facility's closed exit doors. See discussion, infra. 10. Indeed, the DON speculates that one of the visitors may have run through leaving the door open, allowing Resident #1 to get through. J. Ex. 20, at 8. Yet, no staff is even aware of whether a stranger was on the floor during this time. 11. Conflicting evidence suggests a resident census of between 27 and 30 on June 29, 2000. Whether there were 27 or 30 residents, however, is immaterial to my decision in this case. 12. To avoid confusion, we refer to this second injured resident as Resident #2, although exhibits from the September survey refer to her as Resident #1. 13. Resident #2's age was not firmly established. Some records indicate that she was born in 1915, others 1906. See J. Ex. 46, at 13, 15. 14. Indeed, these incidents exactly meet the definition of "accident," i.e., "an unexpected, unintended event that can cause a resident bodily injury." Woodstock Care Center, DAB No. 1726, at 4, 19-22 (quoting from the State Operations Manual, Appendix PP, Guidance to Surveyors, Part 2). 15. I note that I would sustain the CMP imposed below even if I had found that Petitioner was in compliance with the physical environment requirement given the other two requirements (quality of care and administration) which I have found to be out of compliance in this case. | |