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Department of Health and Human Services DEPARTMENTAL APPEALS BOARD Civil Remedies Division |
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Rose Care Center of Little Rock, |
DATE: September 4, 2001 |
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Centers for Medicare & Medicaid
Services
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Docket No.C-98-369
Decision No. CR814 |
| DECISION | |
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AMENDED DECISION
Rose Care Center of Little Rock (Petitioner) requested
a hearing to challenge various remedies imposed against it by the Centers
for Medicare & Medicaid Services (CMS), including a denial of payments
for all new Medicare and Medicaid admissions, civil money penalties (CMP)
of $49,000, and termination of Petitioner's provider agreement from the
Medicare program. For the reasons set out in detail below in my findings
and conclusions, I decide that CMS had the authority to impose all three
remedies because Petitioner was not in substantial compliance with 42
C.F.R § 483.25(e)(2) [F-tag 318] during the period from March 24, 1998
through and including May 11, 1998. I also conclude that the CMP of $1,000
per day imposed by CMS for the specified period was unreasonable and that
a CMP of $700 per day is reasonable for the period of Petitioner's noncompliance
with participation requirements. I. Background The facts that I recite in this section are not disputed
by the parties. Petitioner, is a long-term care facility that participates
in the Medicare and Medicaid program, and is located in Little Rock, Arkansas.
CMS initially found that Petitioner was not in substantial compliance
with Medicare and Medicaid participation requirements based on a March
23, 1998 survey (March 1998 survey) by the Arkansas Department of Human
Services (State survey agency). Based on CMS= finding of immediate jeopardy,
CMS notified Petitioner, in a letter dated March 27, 1998, of its determination
to impose a CMP against Petitioner in the amount of $10,000 for one day,
retroactive to March 23, 1998. CMS also imposed a denial of payment for
all new Medicare and Medicaid admissions effective March 29, 1998. In
a letter dated April 3, 1998, CMS provided Petitioner with a complete
list of the Medicare participation requirements with which Petitioner
was determined to be not in substantial compliance. Subsequently, CMS
found that Petitioner remained out of compliance with Medicare participation
requirements following an April 16, 1998 revisit survey (April 1998 survey).
In a letter dated April 27, 1998, CMS reiterated the remedies imposed
based on the March 1998 survey, and notified Petitioner of its determination
to impose a CMP against Petitioner in the amount of $1,000 per day from
March 24, 1998, up to and including May 11, 1998. Additionally, CMS cited
$59,000 as the total amount of CMPs potentially due for the 50-day period
of non-compliance, and stated that Petitioner=s provider agreement would
terminate on May 12, 1998. In a letter dated May 26, 1998, Petitioner
requested a hearing to challenge CMS= determination. On March 24, 2000, I conducted a pre-hearing telephone
conference with counsel for the parties to notify them that this case
had been reassigned to me for a hearing and decision. Tr. at
21. During the conference, I ruled in favor of CMS's motion to supplement
the record to include Dale Davis, R.N., as a witness, but only to the
extent that Mr. Davis would testify to his findings and observations during
the April 1998 survey. Id.(1)
I also granted the parties' request to submit their amended exhibits at
the hearing. The parties discussed additional matters during the conference
pertaining to the F-tags CMS planned to present at the hearing. Petitioner
requested that CMS issue a new Statement of Deficiencies (Form 2567) containing
only the F-tags CMS intended to litigate. Id. at 21-22.(2)
I later reconvened the conference after conducting some research. I informed
the parties that I lacked the authority to order CMS to issue another
Form 2567. However, I ruled that the F-tags that CMS elected not to contest
at the hearing remained unproven allegations that had been abandoned by
CMS and that it was CMS's tactical decision to proceed on a limited number
of F-tags at the hearing. Id. at 22. I held a hearing in Little
Rock, Arkansas, on March 27-29, 2000. During the hearing, the parties stipulated that they settled
the enforcement action resulting from the March 1998 survey, and that
the March 1998 survey is no longer at issue in this case. Tr.
at 23-24. CMS= posthearing brief, at 1, n.1; CMS= List of Respondent=s
Exhibits and Witnesses, and Stipulations of the Parties, at 3; Petitioner=s
Revised Witness, Exhibits, and Stipulation of the Parties, at
5. Therefore, I find that the March 1998 survey and the $10,000 CMP
imposed by CMS based on the March 1998 survey are no longer in dispute
and before me for adjudication in this case. The parties also stipulated at the hearing that: (1) if
Petitioner prevails on its challenges to CMS=s findings during the April
1998 survey, CMS will rescind the remedies of termination and denial of
payment for all residents, effective April 4, 1998 through May 12, 1998;
and (2) based on the April 1998 survey, CMS withdraws F-tags 309, 316,
366, 367, 490, and 521; findings number 5 and 7 under F-tag 314, and findings
number 4, 5, and 6 under F-tag 318. Tr. at 306-308. CMS= posthearing
brief (CMS Br.), at 1, n.1; CMS's List of Respondent=s Exhibits and
Witnesses, and Stipulations of the Parties, at 3-4; Petitioner=s
Revised Witness, Exhibits, and Stipulation of the Parties, at 5-6.
In accordance with the parties stipulations, I am dismissing F-tags 309,
316, 366, 367, 490, and 521; findings number 5 and 7 under F-tag 314,
and findings number 4, 5, and 6 under F-tag 318 related to the April 1998
survey. At the hearing, I ordered that the official record be
sealed to protect the privacy interests of the residents involved in the
April 1998 survey, and stated that the record would be available by my
order if someone other than the parties requested to review the record.
Tr. at 19. CMS offered into evidence exhibits (Exs.) consisting
of: 3, at 3-12; 4; 6; 9; 22, at 54-75; 23-25; and 31-32.(3)
I received these exhibits into evidence. Petitioner offered into evidence
exhibits consisting of P. Exs. 3-10; 13; 14; and 18-29.(4)
I received these exhibits into evidence. At the close of the hearing,
I established a schedule for the parties to submit posthearing briefs,
posthearing reply briefs (if any), to resubmit their exhibit and witness
lists, and to submit a document specifying their stipulations. Tr.
at 483. The parties have complied with this briefing schedule. The following witnesses were called to testify by CMS:
The following witnesses were called to testify by Petitioner:
During the hearing, I overruled CMS counsel's objection to Ms. Hutcheson remaining in the courtroom during the testimony of Petitioner's other witnesses. Tr. at 309. I allowed Ms. Hutcheson to stay in the courtroom because she is the Administrator of the facility, who is also serving as its representative at the hearing. Tr. at 309-310. II. Issues The issues in this case are: (1) Whether Petitioner was in substantial compliance with
the Medicare participation requirements stated in 42 C.F.R. §§ 483.25(c)
and 483.25(e)(2) during the April 16, 1998 revisit survey? (2) Whether the CMP imposed by CMS are reasonable? III. Burden of Proof The burden of proof in this case is governed by the decision
of the appellate panel in Hillman Rehabilitation Center, DAB No.
1611 (1997), aff'd, Hillman Rehabilitation Center v. U.S.
Dep't of Health and Human Services, No. 98-3789 (GEV), at 21-38 (D.N.J.,
May 13, 1999). In accordance with Hillman, CMS bears the burden
of coming forward with evidence sufficient to establish a prima facie
case that Petitioner was not in substantial compliance with the participation
requirements at issue. Once CMS has established a prima facie case, Petitioner
has the ultimate burden of persuasion. To prevail, Petitioner must prove
by a preponderance of the evidence on the record as a whole that it is
in substantial compliance with the relevant regulatory requirements at
issue. IV. Findings of fact and conclusions of law I make findings of fact and conclusions of law (Findings) to support my decision in this case. I set forth each Finding below as a separate heading. I explain each Finding in detail. Finding 6 addresses the issue of whether Petitioner was in substantial compliance with the Medicare participation requirements stated in 42 C.F.R. §§ 483.25(c) and 483.25(e)(2) during the April 16, 1998 revisit survey. Findings 7 and 8 address the CMP issue and other remedies imposed in this case.
Petitioner argues that CMS= April 1998 survey findings
lack credibility because the State survey agency lacked internal management
structure and oversight during the time period of the survey. Tr.
at 249. Petitioner further asserts that the April 1998 survey was conducted
in a manner inconsistent with federal regulations. Id. at 251,
252. In support of its argument, Petitioner contends that based on an
April 1, 1998 FBI criminal investigation of the State survey agency=s
office, the top five management officials of the State survey agency were
removed from their positions and unable to oversee the survey process.
Id. at 247, 248, 254, 255. In essence, Petitioner insinuates
that the removal of these management officials tainted the survey process
and the State survey agency's recommendations to CMS, which subsequently
led to CMS's final determination.(5) Petitioner
also implies that CMS's April 1998 survey findings lack credibility because
they were written on a "draft" abbreviated Form 2567 as opposed to a "final"
Form 2567.(6) CMS argues that Petitioner
offers no evidence that the survey process was improperly conducted and
that the FBI investigation had any bearing on CMS's April 1998 survey
findings. Additionally, CMS asserts that the competency of its reviewer
and surveyors involved in the April 1998 survey findings was never a concern
of CMS and that their survey findings were supportable. Id. at
271. CMS further contends that the "draft" abbreviated Form 2567 is a
valid document that was properly issued to Petitioner, based on the standard
practice of the CMS's Region VI Office to issue a "draft" abbreviated
Form 2567 when a facility was to be terminated from the Medicare program
for failure to achieve substantial compliance.(7)
Id. at 300-302. CMS relies on the witness testimony of Theresa
Bennett in support of its arguments. Tr. at 265, 268, 269, 277,
279, 300-302. CMS also cites Golden State Manor and Rehabilitation
Center, DAB No. 1597 (1996) in support of its argument that the April
1998 survey findings are valid and relevant irrespective of the particular
process or protocol followed to compile evidence and make its determination. I do not have authority to hear and decide Petitioner's affirmative argument. During the hearing, I sustained CMS counsel's objection regarding Petitioner counsel's line of questioning, during cross-examination of Ms. Bennett, pertaining to the FBI criminal investigation of the State survey agency. Tr. at 251. My authority in cases involving CMS is limited to hearing and deciding issues that the Secretary of DHHS has delegated authority for me to hear and decide. That authority is delegated in 42 C.F.R. §§ 498.3 and 498.5. The federal regulations authorize me to only hear and decide cases involving specific initial determinations by CMS. 42 C.F.R. § 498.3(b). The federal regulations provide me with the authority to hear and decide whether CMS's determination to impose remedies against Petitioner and CMS's determination to terminate Petitioner's provider agreement for noncompliance with regulatory requirements were made correctly. 42 C.F.R. §§ 498.3(b)(7) and 498.3(b)(12). As stated beforehand, the scope of my review as an administrative law judge in this case is to determine whether Petitioner was in substantial compliance with the Medicare participation requirements stated in 42 C.F.R. §§ 483.25(c) and 483.25(e)(2), during the April 16, 1998 revisit survey, and whether the CMP imposed by CMS are reasonable. In reaching my decision, I have the authority to decide whether CMS correctly applied regulations and interpretations of law to the facts of this case. I may also determine whether CMS's interpretation of a regulation is correct or incorrect. However, I lack the authority to decide ancillary matters concerning a State agency that helps CMS administer the Medicare program. The FBI criminal investigation of the State survey agency is an ancillary matter and not pertinent to the issues before me in this case. Thus, I lack the authority to decide whether the FBI criminal investigation of the State survey agency impacted the survey and review process which led to the April 1998 survey.
Petitioner challenges the credibility of the April 1998
survey based on the CMS Regional Administrator's concern that the survey
staff needed greater knowledge of the State Operations Manual and the
survey process in order to conduct surveys adequately. Tr. at
266. In support of its argument, Petitioner relies upon a June 24, 1998
letter from Andrew Perez, CMS Associate Regional Administrator for the
Division of Medicaid and State Operations, to Ray Hanley, Director for
the Division of Medical Services, Arkansas Department of Human Services.
P. Ex. 28. The letter mentions CMS's concern about the ability of the
State survey agency to meet its contractual agreement with CMS due to
the loss of seven management staff members that were placed on indefinite
leave. Id. at 1. The letter also references to CMS's concerns
about the survey staff's knowledge of the survey process and that the
majority of 2567s written by surveyors require extensive changes by the
review staff before the final document is sent to the provider. Id.
at 1, 2. Petitioner implies that CMS's concerns signify that either the
April 1998 survey findings were incorrect or questionable. Tr.
at 275. I am not persuaded by Petitioner's affirmative argument. During the hearing, I afforded Petitioner's counsel latitude
in exploring Ms. Bennett's role as the State Regional Liaison to the State
survey agency during the time period of the April 1998 survey. Tr.
at 251-254. Ms. Bennett testified that her role included evaluating the
extent to which CMS was receiving competent services from its contracted
State survey agency and determining if the State survey agency was meeting
its obligations to conduct surveys adequately. Id. at 263. She
further stated that after the FBI criminal investigation, she visited
the State survey agency for approximately three months to determine if
its survey and review process was functioning properly. Tr. at
262-265. Ms. Bennett also indicated that although she made recommendations
for the State survey agency to make improvements, the survey and review
process was not suspect. Id. at 268. Additionally, she testified
that the recommendations she made to the CMS Associate Regional Administrator
did not involve the April 1998 survey or any of the surveyors and reviewers
involved in that survey. Id. at 270, 271. Ms. Bennett further
stated that she had confidence in the abilities of the reviewer and surveyors
conducting the April 1998 survey. Id. at 276, 277. I find Ms.
Bennett's testimony to be credible and give it more weight than the June
24, 1998 letter offered by Petitioner. Furthermore, Petitioner has not
offered any additional evidence to rebut Ms. Bennett's testimony. I am also not persuaded by Petitioner's affirmative argument that the April 1998 survey findings lack credibility because they were written on the "draft" abbreviated Form 2567. When questioned about the "draft" abbreviated Form 2567, Ms. Bennett testified that CMS's standard practice is to use a "draft" abbreviated Form 2567 when a final revisit of the facility by the State surveyors has been conducted, there will be no opportunity for the facility to submit a Plan of Correction, and CMS has decided to terminate the facility from the Medicare program for failure to comply with regulatory requirements. Tr. at 279, 300, 301. She also indicated that although she was not satisfied with the way the Form 2567 was written in its final form, her concern had nothing to do with the survey findings, survey notes and worksheets, or the final document. Id. at 278, 279. As previously noted, Petitioner has offered no evidence to rebut Ms. Bennett's testimony. Additionally, Petitioner has not offered any evidence to challenge the purpose of CMS's "draft" abbreviated Form 2567 or CMS's standard practice of using said Form. Therefore, I reject Petitioner's affirmative argument.
Petitioner asserts that CMS's failure to disclose the identities of the facility's staff members when Debbie Mack, state surveyor, questioned and observed as they were administering care to the residents at issue, constitutes a violation of its due process rights. Petitioner also contends that CMS's findings supported by Ms. Mack's statements and observations should be afforded no weight in deciding whether Petitioner complied with the regulatory requirements. In support of its argument, Petitioner relies upon Beverly Health Rehabilitation Center, DAB CR553 (1998), aff'd, DAB No. 1696 (1999). In Beverly Health Rehabilitation Center, the ALJ rejected statements of anonymous residents relied upon by CMS and the State surveyors to prove that the petitioner failed to implement policies or procedures to prevent neglect of residents under 42 C.F.R. § 483.13(c)(1)(i). Beverly Health Rehabilitation Center, DAB CR553 at 34-37. Here, Petitioner does not indicate which particular anonymous statements CMS relies upon in support of CMS's deficiency findings against Petitioner. However, according to the record, CMS relied upon two anonymous statements allegedly made by Petitioner's staff members to support its deficiency findings against Petitioner pertaining to Residents # 7 and # 11. According to CMS's "draft" abbreviated Form 2567, on April 14, 1998, the State surveyor reported:
CMS Ex. 3, at 5. Additionally, the State surveyor reported:
Id. at 8. I find that the anonymous statements quoted above are hearsay assertions. I further find these anonymous statements lack probative value because these statements by themselves place Petitioner at a distinct disadvantage, making it difficult for Petitioner to identify the declarants and test the credibility of the declarants. Therefore, I find that the anonymous statements relied upon by CMS and the State surveyors to prove deficiency findings pertaining to Resident # 7 and # 11 lack credibility.
The surveyors conducting the April 1998 survey allege
at F-tag 314 of CMS's "draft" abbreviated Form 2567 that Petitioner failed
to comply with the requirements of 42 C.F.R. ' 483.25(c). CMS Ex. 3, at
3-6. This regulation states: Based on the comprehensive assessment of a resident, the facility must ensure that -
Petitioner asserts that although the federal regulations
indicate what services and treatment a facility must provide to residents
with pressure sores, the regulations do not specify the applicable standard
of care. Petitioner argues that CMS has not established a prima facie
case because CMS failed to establish the applicable standard of care for
F-tag 314. In essence, Petitioner insinuates that CMS is using Petitioner's
Care Plan as the applicable standard of care for F-tag 314 and that the
federal regulations [42 C.F.R. § 483.25(c)], require CMS to establish
the applicable standard of care. I reject Petitioner's argument. Recently, an appellate panel clarified the applicable standard of care for a facility's treatment of pressure sores in Koester Pavilion, DAB No. 1750 (2000). In that case, the petitioner challenged a $5,550 CMP imposed by CMS based on a July-August 1997 survey. Id. at 1. The state surveyor team cited the Petitioner for three deficiencies, including one deficiency related to treatment of pressure sores of four residents.(8) Id. at 2, 3. The ALJ found the Petitioner was in compliance with the regulations in issue including 42 C.F.R. § 483.25(c), and concluded that CMS was not authorized to impose any CMP on the petitioner. Koester, DAB No. 1750 at 1. The appellate panel held that the ALJ's findings regarding the pressure sores developed by three of the residents were not supported by substantial evidence and were based on an erroneous interpretation of the regulatory requirements. Id. at 31.(9) The standard applied by the ALJ to determine that the petitioner was in substantial compliance with 42 C.F.R. § 483.25(c) was based on whether the petitioner had done everything in reason to treat the residents' pressure sores. Id. at 32. The appellate panel held that the correct interpretation of the standard of care under 42 C.F.R. § 483.25(c) is that a facility should always furnish what is necessary to prevent new pressure sores unless clinically unavoidable, and to treat existing pressure sores as needed. Id. at 31. Therefore, the regulations do specify the required standard of care for a facility's treatment of a resident's pressure sore. This standard of care is based on 42 C.F.R. § 483.25(c), not a facility's Care Plan. Additionally, 42 C.F.R. § 483.25(c) does not place the responsibility on CMS to establish the standard of care, but instead places the burden on a facility to take the necessary measures to prevent and treat a resident's pressure sore. Petitioner also relies upon the Lake City Extended
Care Center decision, DAB No. 1658 (1998), in support of its argument
that CMS failed to establish the applicable standard of care for F-tag
314. Petitioner's legal interpretation of Lake City is misguided.
In that case, the petitioner challenged a $7,500 CMP imposed by CMS based
on a November 20-21, 1995 follow-up survey of the facility.(10)
Lake City, DAB No. 1658 at 3, 4. The ALJ held that the petitioner
complied substantially with 42 C.F.R. § 483.25 and that CMS had no authority
to impose the $7,500 per day CMP. Id. at 2. Two issues in that
case concerned the applicable standard of care for reporting a resident's
fever and whether the petitioner's protocol constituted proof of the applicable
standard of care. The ALJ concluded that the implied requirement under 42
C.F.R. § 483.25 that a facility monitor and, when medically indicated,
report a resident's fever to the resident's treating physician, does not
require a facility to report a resident's fever to the resident's physician
whenever the fever exceeds 101 degrees Fahrenheit. Lake City at
4. The ALJ further held that the temperature reporting requirement incorporated
in 42 C.F.R. § 483.25 is the professionally recognized standard of care
that a nursing home's professional staff report to a resident's treating
physician any change in the resident's temperature that indicates a medically
significant deterioration in the resident's condition. Id. The
ALJ also found that the petitioner's protocol, instructing the facility's
professional staff to contact the treating physician if a resident's fever
exceeded 101 degrees Fahrenheit, was insufficient evidence of the applicable
standard of care. Id. at 8. On appeal, CMS challenged the ALJ's findings. The appellate
panel held that substantial evidence existed in the record to support
the ALJ's finding as to the applicable standard of care for reporting
a resident's fever to the treating physician. Id. at 9. The appellate
panel also concurred with the ALJ's finding that the petitioner's failure
to comply with its protocol didn't violate 42 C.F.R. § 483.25 due to the
fact that, in this instance, the protocol did not comport with
the applicable standard of care nor did 42 C.F.R. § 483.25 require the
petitioner to follow its protocol. Id. at 8. Here, Petitioner contends that Lake City stands
for the proposition that CMS cannot rely on its Care Plan as the applicable
standard of care for treating a resident's pressure sores. I find that
Petitioner misconstrues Lake City. The legal issues involved in
Lake City and the case at hand are distinguishable. One of the
legal issues in Lake City involved the standard of care, as interpreted
under 42 C.F.R. § 483.25, for a facility's staff members to monitor and
report a resident's fever to the resident's treating physician. Additionally,
Lake City focused on whether petitioner's protocol constituted
proof of the applicable standard of care. Two major issues in the present
case involve: (1) the applicable standard of care for a facility to treat
a resident's pressure sore, and (2) whether Petitioner complied with 42
C.F.R. § 483.25(c) in treating residents at risk for pressure sores or
residents having actual pressure sores. Here, CMS is challenging the way
in which Petitioner administered care to its residents. Tr. at
88, 89. A Care Plan is the main document that determines the care a resident
receives. CMS, as a part of its tactical decision, may elect to prove
that Petitioner failed to comply with 42 C.F.R. § 483.25(c) by providing
evidence that Petitioner did not follow the instructions contained in
its Care Plan. Thus, I find Petitioner's assertions concerning Lake
City unpersuasive. Petitioner further contends that the decision in Haverhill
Care Center, DAB CR522 (1998), confirms its argument that CMS is prohibited
from relying on a facility's failure to follow its own policy or standard
because a facility's policy or standard may exceed the regulatory requirements
and professionally recognized standard of care. I find Petitioner's argument
unpersuasive. In Haverhill, CMS argued, among other things, that
the petitioner violated 42 C.F.R. § 483.13(c), by failing to notify a
resident's physician of changes in the resident's condition. Haverhill,
DAB CR522, at 4. The petitioner had a policy requiring a resident's
physician and family member to be timely notified in the event of an incident
to a resident. Id. at 5. The ALJ found that although the petitioner
failed to follow one aspect of its policy, this did not constitute a deficiency.
Id. at 6. In making her determination, the ALJ was more persuaded
by the testimony of petitioner's registered nurse that a change in the
resident's condition had not occurred such that the resident's physician
needed to be notified. Id. Here, the issues in this case involve 42 C.F.R. § 483.25(c),
not 42 C.F.R. § 483.13(c), as in Haverhill. Petitioner has not
provided any evidence to show that its Care Plan exceeds the applicable
standard of care contained in the regulation. As previously stated, CMS
is entitled to present evidence pertaining to Petitioner's Care Plan to
establish its prima facie case that Petitioner failed to comply with the
applicable standard of care. Therefore, Petitioner's reliance on Haverhill
lacks merit. Next, Petitioner asserts that CMS has failed to establish
a prima facie case under F-tag 314, because F-tag 314 does not apply to
Residents # 3, # 5, and # 7. Petitioner argues that residents without
pressure sores are outside the scope of F-tag 314 based on the plain wording
of 42 C.F.R. § 483.25(c). Additionally, Petitioner contends that since
Residents # 3, # 5, and # 7 did not possess pressure sores at the time
of the April 1998 survey, it is not in violation of 42 C.F.R. § 483.25(c).
As stated beforehand, 42 C.F.R. § 483.25(c) consists of
two requirements (prongs). The first prong requires a facility to ensure
that a resident entering a facility without pressure sores does not develop
pressure sores, unless the facility (based on the resident's clinical
condition) demonstrates that the resident's pressure sores are unavoidable.
The second prong requires a facility to ensure that a resident possessing
pressure sores receives necessary treatment and services to promote healing,
prevent infection, and prevent new sores from developing. Thus, to establish
that Petitioner violated 42 C.F.R. § 483.25(c)(1), CMS must prove that
Residents # 3, # 5, and #7 entered the facility without pressure sores
and subsequently developed pressure sores that were avoidable. To establish
that Petitioner violated 42 C.F.R. § 483.25(c)(2), CMS must, at the outset,
prove that Residents # 3, # 5, and # 7 had pressure sores at the time
of the April 1998 survey. Additionally, CMS must prove that Petitioner
failed to furnish necessary treatment and services to these residents
in order to promote healing of their pressure sores, prevent infection
of their pressure sores, and prevent these residents from developing new
pressure sores. During cross-examination, Ms. Mack testified that she did not know if Residents # 3, #5, and #7 entered the facility without pressure sores. Tr. at 97, 98. Ms. Mack also testified that Residents # 3, # 5, and # 7 did not possess actual pressure sores at the time of the April 1998 survey, but instead were at risk for skin breakdown. Id. at 92; CMS Ex. 3. It is quite clear on the face of 42 C.F.R. § 483.25(c) that proof of a resident having actual pressure sores is a prerequisite to establish a violation. The plain language of 42 C.F.R. § 483.25(c) does not encompass violations against a facility for residents "at risk" for pressure sores. CMS has not presented any evidence to establish that Residents # 3, # 5, and # 7 possessed actual pressure sores during the April 1998 survey. Therefore, CMS has failed to establish a prima facie case that Petitioner was not in substantial compliance with 42 C.F.R. § 483.25(c) for Residents # 3, #5, and # 7.
Petitioner argues that CMS failed to establish a prima
facie case for Residents # 8 and # 11 and that the facility provided appropriate
treatment to the pressure sores of both residents in compliance with 42
C.F.R. § 483.25(c). CMS asserts that Petitioner violated F-tag 314 because
Petitioner failed to implement the interventions listed in the residents'
Care Plans to ensure that the condition of both residents' pressure sores
did not worsen or result in the development of new pressure sores. Yet,
it is unclear from CMS's posthearing brief whether
CMS is contending that Petitioner violated one or both prongs of 42 C.F.R.
§ 483.25(c). Therefore, it is necessary to examine both prongs of this
federal regulation. During cross-examination, Ms. Mack testified that she
did not know if Residents # 8 and # 11 entered the facility without pressure
sores. Tr. at 97, 98. CMS has submitted no evidence to establish
that Residents # 8 and # 11 entered the facility without pressure sores
and subsequently developed pressure sores. Therefore, I find that Petitioner
has not violated 42 C.F.R. § 483.25(c)(1). The parties do not dispute that Residents # 8 and # 11
both possessed actual pressure sores at the time of the April 1998 survey.
Petitioner acknowledges in its posthearing brief that Residents # 8 and
# 11 already possessed pressure sores during the April 1998 survey. Further,
Ms. Mack testified on CMS's behalf at the hearing that Residents # 8 and
# 11 had actual pressure sores during the April 1998 survey. Tr. at
92. Ms. Mack testified during cross-examination that the State
surveyor team did not find any evidence that the pressure sores that Residents
# 8 and # 11 possessed had developed any infection at the time of the
April 1998 survey. Tr. at 100, 101. She also indicated that neither
resident developed new pressure sores during the April 1998 survey.
Id. at 98-100. Ms. Mack further testified that the surveyor team
looked at the facility's weekly documentation to determine that Petitioner
failed to provide necessary treatment and services to Residents # 8 and
# 11 in order to promote healing of their pressure sores. Id. at
101, 102. Therefore, CMS is alleging that Petitioner failed to provide
necessary treatment to promote healing regarding the pressure sores of
Residents # 8 and # 11 in violation of 42 C.F.R. § 483.25(c)(2). Resident # 8 Resident # 8 had a diagnosis of Anemia and a Stage II pressure sore on the coccyx.(11) CMS Ex. 3 at 3. Petitioner's March 17, 1998 Minimum Data Sheet (MDS) indicated that Resident # 8 was incontinent of bowel and bladder, and totally dependent on staff for activities of daily living (ADLs), except for eating.(12) Id. Petitioner's April 13, 1998 Composite Pressure Sore/Skin Report documented a Stage II pressure sore on the coccyx which measured .3 cm. CMS Exs. 3 at 3; 24 at 10; P. Ex. 10 at 3. Resident #8's March 23, 1998 Care Plan stated that the resident was to be turned and repositioned every two hours while in a wheelchair or bed, that a pressure relieving device was to be placed on the bed/chair, and Resident # 8 was to be kept clean and dry at all times. CMS Ex. 3 at 3. On April 14, 1998, Ms. Debbie Mack, a State surveyor,
found that Resident # 8's pressure sore on her coccyx had increased to
approximately 2.0 cm in diameter with white drainage present. P. Ex #
13 at 19. The surveyor also documented on April 14, 1998 at 8:20 a.m.
that Resident # 8 was in a wheelchair without a pressure relieving device
in use, and marked her position. CMS Ex. 3 at 3, 4. On April 14, 1998
at 1:45 p.m., the surveyor reported that Resident # 8's incontinent brief
was saturated with urine and soiled with fecal matter. Id. at
4. Additionally, at that same time, Ms. Mack found reddened areas on her
right inner thigh approximately two inches long and 1/4 inch wide, and
on her left hip approximately 2.5 cm in diameter. Id; P. Ex.
13 at 19. The surveyor indicated that feces remained smeared across both
of Resident # 8's inner buttocks and around her anal area, and that no
peri-care for this resident had been performed by Petitioner. CMS Ex.
3 at 4. On April 16, 1998, the surveyor documented her findings on the
CMS "draft" abbreviated Form 2567. Id. at 3, 4. CMS asserts that
Petitioner violated F-tag 314 for Resident # 8 because Petitioner failed
to implement the interventions listed within its Care Plan to ensure the
promotion of healing for Resident # 8's pressure sore. I find that CMS has failed to establish a prima facie
case that Petitioner violated 42 C.F.R. § 483.25(c)(2) based on the State
surveyor's finding of the reddened areas on Resident # 8's right inner
thigh and left hip. Petitioner argues that the "reddened areas" found
by the State surveyor on Resident # 8's right inner thigh and left hip
were not the beginning of a pressure sore and do not constitute a deficient
practice by the facility. Ms. Mack's testimony concerning the reddened
areas is unconvincing. When questioned on cross-examination about the
reddened areas on Resident # 8's right inner thigh and left hip, Ms. Mack
admitted that she failed to perform a blanchable test to determine if
the reddened areas were the start of a pressure sore.(13)
Tr. at 123, 124. I find it troublesome that Ms. Mack and other
State surveyors failed to conduct a Blanchable test on the reddened areas
of Resident # 8's skin. Ms. Mack also admitted that the surveyor failed
to return to observe Resident # 8 an hour later to determine if the reddened
areas were the beginning of a pressure sore. Id. CMS's exhibits
and witness testimony fail to establish that the reddened areas on Resident
#8 's right inner thigh and left hip skin caused further harm to her pressure
sore or formed any new pressure sores. A finding of reddened areas by
itself does not establish a violation under 42 C.F.R. § 483.25(c)(2).
Therefore, I find no deficient practice by Petitioner regarding the surveyor's
finding of reddened areas on Petitioner's right inner thigh and left hip.
The remainder of the April 1998 survey findings constitute are sufficient
documentary evidence to establish that CMS has met its prima facie case
for F-tag 314 regarding Resident # 8. Next, I consider whether Petitioner presented sufficient
evidence to rebut CMS's evidence. Petitioner asserts that it provided
healing of Resident # 8 Stage II pressure sore in accordance with 42 C.F.R.
§ 483.25(c)(2). Petitioner contends that Resident # 8's pressure sore
was not a deficiency because it had already been noted and was being treated
by the facility. Petitioner argues that the "open area" on Resident #
8's coccyx was not a pressure sore, but instead a calloused area on the
coccyx near the .3 cm pressure sore that the facility had already documented.
Petitioner contends that the "white drainage" was the natural residue
from the Duoderm (an ointment) medication which leaves a white residue. In response to CMS's deficiency finding that Resident
# 8 was in a wheelchair without a pressure relieving device in use, Petitioner
argues that a pressure relieving device was in Resident # 8's wheelchair
and that Debbie Mack admitted during cross-examination that she could
not remember if she felt down behind the resident to see if a pressure
relieving device was in the resident's wheelchair. Petitioner also challenges
CMS's finding that Resident # 8 was in the same marked position in her
wheelchair and not turned and repositioned every two hours. Petitioner
argues that Ms. Mack admitted that she was not certain if the marked paper
used by the State surveyor to determine if Resident #8 was being turned
and repositioned within two hours was placed in the same marked position
after the facility's staff turned and repositioned Resident # 8 in her
wheelchair. Petitioner further contends that Resident # 8 was turned and
repositioned within two hours based on the fact that this resident wore
a restraint, and the facility was required to release the restraint and
move the resident every two hours. Further, Ms. Mack indicated that Petitioner
had not been cited for failing to release the restraint every two hours. In response to CMS's deficiency finding that Petitioner
failed to administer peri-care to Resident # 8 immediately after the resident's
brief was removed, Petitioner asserts that the CNA covered Resident #
8 and left her room to obtain peri-care supplies. Ms. Mack admitted that
federal regulations require that peri-care supplies not be kept in a resident's
room, and that CNA would have violated Resident # 8's privacy rights if
she didn't cover her when leaving her room. Petitioner also contends that
Ms. Mack admitted that she could not recall if she ordered a body audit
for Resident # 8 when she was observing the CNA with Resident # 8. Additionally,
Petitioner argues that Ms. Mack admitted that she did not stay after Resident
# 8's body audit and the CNA returned to Resident # 8's room with the
peri-care supplies, to see if the CNA administered peri-care to
Resident # 8. The evidence presented by Petitioner is credible and establishes
that Petitioner furnished the necessary treatment and services to promote
healing of Resident # 8's pressure sore in compliance with 42 C.F.R. §
483.25(c)(2). Petitioner's treatment records document that Resident #
8 was receiving Duoderm to treatment her pressure sore. Petitioner's Weekly
Skin Audit Report highlights that Petitioner's staff was using Duoderm
before and after the April 1998 survey to treat Resident # 8's pressure
sore. P. Ex.10 at 2, 3. The physician's order also documents
that Duoderm was being used to treat Resident # 8's pressure sore. Id.
at 1. Ms. Mack and Ms. Hutcheson both testified at the hearing that the
physician's order is considered a component of Petitioner's Care Plan.
Tr. at 208, 477. This factor is significant because CMS primarily
relied upon the treatment outlined in the resident's Care Plan to determine
that Petitioner failed to comply with 42 C.F.R. § 483.25(c)(2). I am also
persuaded by the testimony of Ms. Childress concerning the source of the
white drainage. Ms. Childress testified at the hearing that when Duoderm
is applied to a resident's skin, it creates moisture and the skin area
turns white over a period of time. Tr. at 327. Ms. Mack's testimony
is contradictory. When questioned about the white drainage on Resident
# 8's pressure sore during cross-examination, Ms. Mack testified that
she didn't know what the white drainage was on Resident # 8's pressure
sore. Id. at 125-126. Ms. Mack also stated that she didn't recall
if she checked Resident # 8's treatment records to determine if the Duroderm
was ordered to treat her pressure sore. Id. at 126. Yet, the
State surveyor's notes for Resident # 8 indicate that this resident's
pressure sore was being treated with Duoderm. CMS Ex. 24 at 3. Additionally,
Ms. Mack testified that the State survey team reviewed the facility's
weekly documentation to determine that the facility failed to provide
necessary services and treatment to Resident # 8 to promote healing of
her pressure sore. Tr. 101, 102. However, Petitioner's Weekly
Skin Audit Report indicates the size and stage of Resident # 8's pressure
sore at the time of the April 1998 survey, not the healing status of her
pressure sore. P. Ex. 10 at 2. Dr. Stewart testified at the hearing that
debriding a pressure sore will cause the sore to increase in size as dead
skin is removed. Tr. at 361. I am persuaded by Dr. Stewart's
explanation that the application of Duoderm can increase the size of a
pressure sore. Id. at 362. Thus, the fact that Resident # 8's
pressure sore increased in size, by itself, does not establish that Petitioner
failed to promote healing of her pressure sore. I reject CMS's argument that the marking paper placed
under Resident # 8's right thigh proves Petitioner failed to turn and
reposition her within two hours. Ms. Mack's testimony highlights her uncertainty
of whether the marked paper used by the State surveyor on April 14, 1998
at 8:20 a.m. was in the same position when the surveyor observed this
resident later that same day at 1:45 p.m. Ms. Mack admitted that the marking
paper didn't substantiate that Petitioner's staff failed to turn and reposition
Resident # 8. Tr. at 119. The fact that CMS did not cite
Petitioner deficient for failing to release Resident # 8's restraint every
two hours further supports the likelihood that Petitioner turned and repositioned
Resident # 8 within two hours. Additionally, assuming arguendo that Petitioner
failed to turn and reposition Resident # 8 every two hours, CMS has presented
no evidence to establish that this resident's pressure sore worsened on
account of a failure to turn and reposition her. Dr. Stewart testified
at the hearing that even though every two hours is the professional medical
standard for turning and repositioning a resident with pressure sores,
this standard is flexible and allows a resident to be moved both before
and after the two-hour interval. Id. at 359, 360. He also testified
that it is important to consider other factors (e.g., nutrition) besides
whether a resident is turned and repositioned, that could lead to development
of a pressure sore. Id. at 361. I am not persuaded by CMS's assertion that Resident #
8 was in a wheelchair without a pressure relieving device in use. Ms.
Mack admitted that it is necessary to check behind a resident to determine
if a pressure relieving device is being used, because it is sometimes
difficult to see a pressure relief device. Tr. at 117.
Ms. Mack admitted at the hearing that the surveyor notes for Resident
# 8 fail to indicate that this resident was without a pressure relieving
device. Id. She also testified that she had no documentation
as to how she determined that Resident # 8 lacked a pressure relieving
device. Id. Ms. Mack's testimony creates doubt as to whether
she checked behind Resident # 8 to see if a pressure relieving
device was in this resident's wheelchair. CMS's contention that Petitioner failed to provide peri-care
to Resident # 8 according to Petitioner's Care Plan is unconvincing. Based
on Ms. Mack's testimony, the marking paper used by the surveyor to assess
whether Resident # 8 was moved and provided with peri-care is unreliable.
Besides the marking paper, CMS relies on the surveyor's observations of
Resident #8 to support its claim that Petitioner failed to provide peri-care
to Resident # 8. As stated beforehand, the surveyor observed on April
14, 1998 at 1:45 p.m. that Resident # 8's incontinent brief was saturated
with urine and soiled with fecal matter and that feces remained smeared
across Resident # 8's inner buttocks and anal area. CMS Ex. 3 at 4. It
is unclear whether Petitioner is denying these findings. Nevertheless,
Petitioner insinuates that peri-care was provided to Resident # 8 based
on the fact that Ms. Mack failed to remain in her room to see if
the Petitioner's CNA conducted peri-care. Petitioner also indicates that
Ms. Mack's failure to recall if she requested a body audit of Resident
# 8 bolsters its argument. Although, the surveyor observed the urine and
fecal matter on Resident # 8, it does not amount to a violation under
42 C.F.R. § 483.25(c)(2). First, Ms. Mack's testimony does not rule out
the possibility that Petitioner provided peri-care to Resident # 8 in
between the time period (on April 14, 1998 at 8:20 a.m.) the surveyor
placed the marking paper under this resident and the time period of Ms.
Mack's observation (at 1:45 p.m. later that day). Second, although the
resident's Care Plan required the facility to keep Resident # 8 clean
and dry at "all times," Ms. Mack acknowledged at the hearing that this
is an unreasonable standard. Tr. at 159. Yet, she fails to articulate
the applicable standard of care required by the facility in accordance
with federal regulations. The applicable standard of care is not based
on the content of the resident's Care Plan, but instead the federal regulations.
As stated beforehand, 42 C.F.R. § 483.25(c)(2) obligates a facility to
furnish what is necessary to treat a resident's existing pressure sore
and to prevent new pressure sores unless clinically unavoidable. CMS fails
to demonstrate how Petitioner failed to meet the applicable standard of
care under 42 C.F.R. § 483.25(c)(2),in terms of the peri-care of Resident
# 8 for treatment of her pressure sore. For example, CMS could have provided
evidence to show that the urine and fecal matter directly resulted in
increasing the size of Resident # 8's pressure sore. CMS's assertion that peri-care was not administered to
Resident # 8 seems to hinge upon Ms. Mack's interpretation of Petitioner's
CNA covering of Resident # 8 before she left her room. Ms. Mack testified
she believed that the CNA intentionally provided no peri-care while Ms.
Mack observed Resident # 8 because the CNA redressed this resident. Tr.
at 127. Petitioner argues that its CNA covered Petitioner to avoid a privacy
violation and the CNA left the room to obtain peri-care supplies. I am
not persuaded that the CNA would deliberately fail to provide peri-care
when Ms. Mack was observing the CNA administering care to Resident # 8.
Nor does Ms. Mack's testimony rebut Petitioner's explanation that the
CNA left this resident's room to obtain peri-care supplies, which are
stored outside a resident's room as required by federal regulations. Additionally,
Ms. Mack testified she failed to stay in Resident # 8's room after this
resident's body audit to determine if Petitioner's CNA administered peri-care.
Id. at 129. If Ms. Mack had remained in Resident #8's room,
she would have known with certainty whether the CNA administered peri-care.
Therefore, I find no violation of 42 C.F.R. § 483.25(c)(2) by Petitioner
based on CMS's findings related to the administration of peri-care to
Resident # 8. Resident # 11 Resident # 11 had a diagnosis of diabetes mellitus, edema,
anemia, poor appetite, and decubitus. CMS Ex. 3 at 4. The MDS indicated
she was totally dependent for all ADLs. Id. Resident # 11 was
also incontinent of bowel and bladder. Id. Petitioner's April
13, 1998 Composite Pressure Sore/Skin Report documented three Stage IV
pressure sores on Resident # 11's right upper back, right lower back,
and left shoulder.(14) Id.;CMS
Ex. 22 at 56, 72. The resident's February 6, 1998 Care Plan stated that
Resident # 11 was to be kept clean and dry at all times. CMS Ex. 3 at
4. The Care Plan also indicated that peri-care was to be provided with
each incontinent episode. Id. On April 14, 1998 at 8:30 a.m., the State surveyor reported
that Resident # 11 was moved from bed B to bed A. CMS Ex. 3 at 4.
The surveyor documented that the Spenco mattress that the resident was
lifted from had a damp amber-colored area of approximately 18 inches with
a dark amber ring on the outside, and lighter-colored area in the center
where this resident's buttocks had been. Id. That same day at
11:30 a.m., the surveyor reported that Resident # 11's incontinent pad
was wet in a four-inch diameter area of the pad. Id. The surveyor
indicated that the facility's CNA performed no peri-care on this resident
nor checked or changed her incontinent pad. Id. The surveyor
marked Resident # 11's incontinent pad at that time. Tr. at 43.
Later that day at 1:12 p.m., the surveyor documented that the marked incontinent
pad under Resident # 11 had a circle of urine approximately 12 inches
in diameter, with edges drying a darker amber color. CMS Ex. 3 at 4. The
surveyor stated that at 1:35 p.m. that day, the urine had soaked through
Resident # 11's draw sheet over her incontinent pad to the draw sheet
under the incontinent pad. Id. The surveyor reported that the
ring on the outside of the circle of urine was amber and darker than the
center. Id. On April 15, 1998 at 6:15 a.m., the surveyor reported
that the CNA gave the resident a bed bath using Palmolive dish soap on
a wet washcloth without rinsing the Resident # 11's areas afterward. CMS
Ex. 3 at 4. The surveyor documented that the incontinent pad under this
resident was wet with light and dark amber-colored areas, and the draw
sheet was wet underneath the incontinent pad. Id. at 4, 5. The
surveyor indicated that there was a smear of fecal material on the inside
of Resident # 11's buttocks and that no peri-care was given at that time.
Id. at 5. The surveyor stated that the CNA replaced the top sheet,
but did not replace Resident # 11's incontinent pad or the draw sheet.
Id. That same day at 6:30 a.m., the surveyor reported that different
staff member of the facility conducted a skin assessment, and the fecal
material was still smeared on the inside of Resident 11's buttocks. Id. CMS argues that Petitioner violated F-tag 314 for Resident
# 11 because the facility failed to administer peri-care and to keep this
resident clean and dry at all times as outlined in its Care Plan. CMS
asserts that Debbie Mack's testimony supports its finding of actual harm
to Resident # 11's health and safety. Ms. Mack testified at the hearing
that when a resident's skin is exposed to urine for a long period of time,
the skin cells become hydrated, swell, and soften. Tr. at 43.
Ms. Mack indicated that long term exposure to urine can result in trauma
and wounds on a resident's skin. Id. Ms. Mack also stated that
urine becomes more caustic to the skin the longer it remains on the skin
because the urine breaks down into ammonia, changes the PH level of the
skin, and causes bacteria to flourish and infect the resident's skin.
Id. Based on the April 16, 1998 CMS "draft" abbreviated Form
2567 and the State surveyor's notes presented by CMS, I find that CMS
has met its initial burden of establishing a prima facie case that Petitioner
violated 42 C.F.R. § 483.25(c)(2). Petitioner argues that CMS's allegations concerning Resident
# 11 fail to establish a deficient practice in violation of 42 C.F.R.
§ 483.25(c). Petitioner asserts that on April 14, 1998, Resident # 11
was turned and repositioned in accordance with the facility's Care Plan,
and incontinent care was provided for this resident. To support its argument,
Petitioner indicates that Debbie Mack admitted that on April 14, 1998,
Resident # 11 was moved from bed B to bed A at 9:15 a.m., instead of 8:30
a.m. as listed in the CMS "draft" abbreviated Form 2567. Tr.
at 135-136. Petitioner also argues that Ms. Mack acknowledged the possibility
that Resident # 11 was moved back to bed B, and that such a movement was
a turning and repositioning. Id. at 135. Furthermore, Petitioner
asserts that Ms. Mack admitted during the hearing that she did not
know if Resident # 11 was turned and repositioned between 10:17 a.m. and
11:30 a.m. Id. at 137. Petitioner argues that CMS's finding regarding the facility's
alleged use of Palmolive dish soap in administrating peri-care to Resident
# 11 is unfounded. Petitioner states that Ms. Mack admitted during the
hearing that she never asked the staff member attending to Resident #
11 if such soap was in her bottle. Tr. at 139, 142. Petitioner
contends that during the hearing, Ms. Mack failed to identify the staff
member she saw with the bottle and admitted she never saw any other staff
members use a Palmolive bottle while at the facility. Id. at
141, 142. Petitioner also argues the Ms. Mack's notes document that
the facility's administrator and another staff member were in Resident
# 11's room at 6:25 a.m. to turn and reposition this resident. P. Ex.
13 at 8; CMS Ex. 22 at 75; Tr. at 143, 144. Petitioner further
contends that Ms. Mack admitted at the hearing that she requested a body
audit during that morning and that peri-care was done at 6:45 a.m. Id.;
Tr. at 146, 147. Petitioner also argues that healing was occurring for
Resident # 11's pressure sores at the time of the April 1998 survey. Petitioner
contends that the physician's order for Resident # 11instructed that Santyl
ointment be used to treat Resident # 11's pressure sores. Petitioner also
argues that Ms. Mack admitted during the hearing that she failed to review
the treatment records for Resident # 11's pressure sores, and that debriding
a pressure sore will cause the sore to increase in size as dead skin is
removed. Tr. at 96, 131, 132. Petitioner further claims that
the testimony of Ms. Childress and Dr. Stewart confirm that debridement
will cause the size of a pressure sore to increase. Id. at 330,
361. CMS's documentary evidence and Ms. Mack's testimony fail
to establish that Petitioner failed to furnish the necessary treatment
to promote healing of Resident # 11's three pressure sores, in light of
the peri-care administered to this resident by Petitioner. I view Ms.
Mack's testimony as a general assertion of how a resident's skin can be
affected by a lack of peri-care. Her testimony and observations (pertaining
to the dark amber color and wetness of Resident # 11's mattress, draw
sheets, and incontinent pads on April 14-15, 1998) does not establish
that the condition of Resident # 11's pressure sores worsened based on
the peri-care administered to this resident by Petitioner's nursing staff.
I am not persuaded by Ms. Mack's testimony that the bottle Petitioner's
nursing staff used to treat Resident # 11 at 6:15 a.m. on April 15, 1998
contained Palmolive dish soap. Ms. Mack failed to verify what was contained
in the bottle by either asking the staff member attending to this resident
or requesting another staff member to give her the bottle and then personally
review the specific contents in the bottle. Ms. Mack has also not provided
any evidence to establish that the facility had a practice or policy of
using Palmolive dish soap when administering peri-care to its residents.
Ms. Hutcheson testified at the hearing that one of the types of peri-care
wash used by the facility had a green color. Tr. at 467. She
also indicated that she learned after the April 1998 survey that some
of the nursing staff were using Palmolive dish soap bottles to store the
peri-care was due to a shortage of containers. Id. at 465, 466.
Ms. Hutcheson further stated that she ordered new bottles, questioned
the CNA treating Resident # 11 on April 15, 1998, and determined that
there was no Palmolive dish soap in the bottle used by the CNA. Id.
at 466, 467. I find Ms. Hutcheson's testimony more credible than Ms. Mack's
testimony. The evidence presented by Petitioner establishes that
the facility's administrator and another staff member were in Resident
# 11's room at 6:25 a.m. on April 15, 1998, to turn and reposition this
resident. P. Ex.13 at 8; CMS Ex. 22 at 75; Tr. at 143, 144. Ms.
Mack also acknowledged during the hearing that peri-care was administered
to this resident at 6:45 a.m. Tr. at 146-147. These two factors
illustrate that Petitioner was in the process of promoting healing of
Resident # 11's pressure sores. I reject CMS's argument that Petitioner
was obligated to keep Resident # 11 clean and dry at "all times" as stated
in the resident's Care Plan. As mentioned earlier, Ms. Mack's testimony
supports Petitioner's view that requiring a facility to keep a resident
clean and dry at "all times" is an unreasonable standard. Id. at
159. Nor is this standard implicit within 42 C.F.R. § 483.25(c)(2). As
previously expressed, 42 C.F.R. § 483.25(c)(2) requires a facility to
furnish the necessary care to treat a resident's pressure sores. The fact
that Petitioner's nursing staff conducted peri-care on April 15, 1998
at 6:45 a.m. instead of 6:15 a.m. does not establish a violation of 42
C.F.R. § 483.25(c)(2). Ms. Mack's surveyor notes contradict her testimony regarding
the turning and repositioning of Resident # 11. Ms. Mack reported that
Resident # 11 was moved from bed B to bed A at 8:30 a.m. on April 14,
1998. CMS Ex. 3 at 4. However, during the hearing she admitted that Resident
# 11 was moved at 9:15 a.m. instead of 8:30 a.m. on that day. Tr.
at 135, 136. Based on Ms. Mack's admission and CMS's reliance on
the instructions in the resident's Care Plan, turning and repositioning
of Resident # 11 was expected to occur within the vicinity of 11:15 a.m.
Ms. Mack testified that Resident # 11 was turned and repositioned by Petitioner's
nursing staff at 11:30 a.m. that day. Id. at 136, 137. I am uncertain
from the evidence presented by the parties whether Petitioner turned and
repositioned Resident # 11 between 10:17 a.m. and 11:30 a.m. or at 11:30
a.m. Nevertheless, the fact that Petitioner may have turned and repositioned
Resident # 11 15 minutes after the two-hour interval stated in the Care
Plan does not constitute a violation of 42 C.F.R. § 483.25(c)(2). As stated
beforehand by Dr. Stewart, the professional medical standard for turning
and repositioning a resident with pressure sores is a flexible standard,
allowing a resident to be moved either before or after a two-hour interval.
Tr. at 359, 360. Furthermore, CMS has failed to rebut Dr. Stewart's
testimony concerning this point. Nor has CMS articulated how turning and
repositioning Resident # 11 15 minutes after the two-hour interval negatively
impacted Resident # 11's pressure sores. I concur with Petitioner's assertion that healing was occurring for Resident # 11's pressure sores at the time of the April 1998 survey. Ms. Mack admitted during the hearing that she failed to review the treatment records for Resident # 11's pressure sores, but that the facility was providing treating her pressure sores with Santyl ointment based on the physician's order. Tr. at 131, 132. The physician's order for Resident # 11 indicates that Santyl ointment was being used to treat this resident's pressure sores. CMS Ex. 22 at 67, 68, 70. Ms. Mack admitted during the hearing that debriding a pressure sore will cause the sore to increase in size as dead skin is removed. Tr. at 96, 131, 132. Ms. Childress and Dr. Stewart also confirm that debridement treatment for pressure sores will cause their size to increase. Id. at 330, 361. I conclude that Petitioner was using the Santyl ointment to promote healing of Resident # 11's three Stage IV pressure sores, and the size increase of her pressure sores resulted from the facility's use of this ointment to treat her pressure sores. In considering the totality of the evidence presented by Petitioner, I find that Petitioner has rebutted CMS's evidence and established that it complied with 42 C.F.R. § 483.25(c)(2) for Resident # 11 during the April 1998 survey.
The surveyors conducting the April 1998 survey alleged at F-tag 318 of CMS's "draft" abbreviated Form 2567 that Petitioner failed to comply with the requirements of 42 C.F.R. § 483.25(e)(2). CMS Ex. 3 at 8, 9. This regulation states:
Petitioner asserts that CMS has failed to meet its initial burden of proof because CMS incorrectly implies that the standard of care for F-tag 318 is established by Petitioner's Care Plan. Petitioner also argues that CMS is required to specify the applicable standard of care for F-tag 318 and that 42 C.F.R. § 483.25(e)(2) does not specify the standard of care. I reject Petitioner's arguments. As I have previously indicated, CMS may present evidence
pertaining to Petitioner's Care Plan to establish its prima facie case;
however, the applicable standard of care that a facility must ensure for
treatment of a resident with a limited range of motion (ROM) is specified
in 42 C.F.R. § 483.25(e)(2). This regulation does not require CMS to establish
the standard of care. Instead, this regulation requires a facility to
provide treatment and services to a resident with a limited range of motion
that increases that resident's ROM and/or prevent a further decrease in
that resident's ROM. Therefore, a violation by a facility under this regulation
will occur when the care a facility administers to a resident fails to
increase a resident's ROM and/or further decreases a resident's ROM. Resident # 3 Resident # 3's January 28, 1998 MDS indicated a partial
loss of voluntary movement of the arms, hands, legs, and feet. CMS Ex.
# 3 at 9. Resident # 3's January 28, 1998 Care Plan indicated that she
was at risk for contractures related to voluntary movement and left hemiparesis.
Id. Her Care Plan indicated that passive ROM to all extremities
should be performed while giving routine care. The Care Plan further provided
that a hand roll should be used in the left hand at all times, except
while cleansing with soap and water on a daily basis. Id. On
April 14, 1998 at 11:30 a.m., 12:45 p.m., 1:18 p.m. and 2:10 p.m. the
State surveyor reported that Resident # 3 did not have a hand roll
in her left hand. Id. The surveyor also documented no hand roll
in her left hand on April 15, 1998 at 6:45 a.m., 8:40 a.m., 9:40 a.m.,
10:15 a.m., and 12:30 p.m. Id. CMS contends that since the resident's
care plan indicated that Resident # 3 had a partially contracted left
hand, a hand roll was required to be used in her left hand at all times.
CMS asserts that Petitioner was cited for a deficient practice because
the facility failed to utilize the hand rolls for Resident # 3 at the
time of the survey, and that the failure to use hand rolls represents
a potential for more than minimal harm to Resident # 3's health and safety. Petitioner claims that the fact that Resident # 3 did
not use a hand roll in her left hand at the specified times on April 14-15,
1998, does not constitute a deficient practice by the facility. Petitioner argues that the MDS for Resident # 3 indicates
that the facility had to alter its treatment of this resident daily because
her condition fluctuated from day-to-day. Tr. at 197; P. Ex.
8 at 72, 73. Petitioner asserts that Ms. Mack admitted at the hearing
that she reviewed Resident # 3's MDS, and that Ms. Mack should have asked
a member of the facility why Resident # 3 did not have hand rolls at the
times in question on April 14-15, 1998. I am not persuaded by Petitioner's
argument. Petitioner's argument focuses on what it believes the
surveyor should have done to determine whether it was providing appropriate
care for Resident # 3. Ms. Mack testified that typically surveyors ask
members of the facility questions about the treatment of the residents
while conducting surveys, but surveyors are under time constraints to
look at particular deficiencies during a revisit survey. Tr.
at 201. Although Ms. Mack stated she was uncertain if she had questioned
facility staff members about Resident # 3's condition and had not documented
any conversations, the federal regulations do not place a requirement
upon State surveyors to directly question staff members. Surveyors assess
a facility's treatment of a resident based on standards contained in the
federal regulations. Resident # 3's Care Plan indicated that hand rolls
were to be used by this resident in her left hand at all times, except
while cleansing with soap and water daily. CMS Ex. 3 at 9. Ms. Mack's
reliance on the Care Plan to assess the facility's treatment of Resident
# 3 was not unreasonable considering the fact that the Care Plan is the
key document that outlines the treatment administered to residents. Additionally,
Petitioner should have known that the April 1998 revisit survey would
focus on F-tag 318. Petitioner could have advised Ms. Mack that it was
fluctuating treatment for Resident # 3 based on changes in her condition,
but it chose not to do so. Petitioner contends that the surveyor's notes indicate
that Ms. Mack observed no hand rolls in Resident # 3's hands at 12:45
p.m. on April 14, 1998 and that this resident was feeding herself with
assistance. CMS Ex. 25 at 25. Petitioner also asserts that Ms. Mack's
notes fail to document which hand Resident # 3 was using to eat lunch.
Id.; Tr. at 203. Since Ms. Mack's surveyor notes fail to indicate which
hand Resident # 3 was using to eat lunch, I find no deficient practice
by Petitioner in its treatment of this resident on April 14, 1998 at 12:45
p.m. However, Petitioner's argument does not negate the other time periods
on April 14-15, 1998 that Ms. Mack observed Resident # 3 without a hand
roll in her left hand. Additionally, there is no indication in Ms. Mack's
surveyor notes that Resident # 3 was eating at the other time periods
in which she found the facility deficient concerning its treatment of
Resident # 3. Petitioner further argues that generally hand rolls are
not used by a resident at all times. In support of its argument, Petitioner
relies on Dr. Stewart's testimony. At the hearing, Dr. Stewart indicated
that hand rolls are not to be used by a resident at all times because
hand rolls are uncomfortable and intrusive. Tr. at 365, 366.
I am not convinced by Dr. Stewart's testimony. There is
no evidence in the record that Resident # 3 complained that the hand roll
in her left hand was uncomfortable or intrusive. Additionally, Resident
# 3's Care Plan instructed for her to use a hand roll in her left hand
at all times, except while cleansing daily. CMS Ex. 3 at 9. Petitioner also relies upon Ms. Rhine's testimony to support
its argument that it did not violate 42 C.F.R. § 483.25(e)(2). Ms. Rhine
testified that when she conducted a reassessment for Resident # 3, she
noted that Resident # 3 did not have contractures in her left hand. Tr.
at 427, 428; P. Ex. 20 at 5. Ms. Rhine indicated that when she performed
passive ROM exercises on Resident # 3's left hand, her left hand remained
in the same position. Tr. at 428. Therefore, Ms. Rhine listed
the use of a hand roll in Resident # 3's left hand as a treatment on her
Care Plan, believing that it would be helpful to Resident # 3. Id. Ms. Rhine further testified that she didn't believe her
notation on this resident's Care Plan was a permanent indication of treatment
for Resident # 3. Tr. at 429. Instead, she viewed it as a step
in assisting Resident # 3 to achieve her highest functional status. Id.
Ms. Rhine stated that Resident # 3's condition was better during April
1998 and that she didn't need to use the hand roll in her left hand. Id.
at 429, 432. Ms. Rhine indicated that when the hand roll was placed in
Resident # 3's left hand, it would fall out, because there was no contracture
to hold it in place. Id. Ms. Rhine also testified that at the
time of the April 1998 survey, Resident # 3 did not have a contracture
in her left hand, and the next quarterly assessment for this resident
was to be completed on April 28, 1998. Id. at 430. Ms. Rhine
indicated that she listed that Resident # 3 did not need to use a hand
roll in her left hand on the CNA Care Sheet (hereinafter referred to as
"Nursing Care Sheet"). Id. at 432. She further testified that
this information was not stated on Resident # 3's Care Plan because Resident
# 3 was not stabilized yet. Id. at 433.(15) I concur with CMS's assertion that Ms. Rhine's testimony is not credible. During the cross-examination, Ms. Rhine contradicted the testimony she made on direct examination. She admitted that the hand roll box was checked off on the Nursing Care Sheet (under the Patient and Devices category) for Resident # 3. Tr. at 444; P. Ex. 20 at 7. This factor is significant because a surveyor reviewing it (as well as a staff member of the facility) could reasonably construe that a hand roll was to be used in Resident # 3's left hand. Ms. Rhine even admitted at the hearing that the Nursing Care Sheet does not clarify that the facility was not required to use a hand roll in Resident # 3's left hand. Tr. at 444. I am not persuaded by Ms. Rhine's assertion that the facility used other treating methods for Resident # 3 in place of hand rolls. Id. That may be true, but it doesn't prove that the facility was no longer required to use a hand roll in Resident # 3's left hand. Additionally, I am not persuaded by Ms. Rhine's contentions that Resident # 3 did not need hand rolls because she did not have a contracture in her left hand and that the hand roll would fall out when she placed it in Resident # 3's left hand. Resident # 3's Care Plan indicated that this resident was at risk for contracture related to voluntary loss of movement and left hemiparesis. Ms. Rhine acknowledged that Resident # 3's condition fluctuated day-to-day. Thus, the lack of a contracture by itself does not convince me that hand rolls were no longer necessary for treatment of Resident # 3, who remained at risk for contractures and possessed a loss of voluntary movement on her left side. Additionally, if the hand roll fell out when placed in Resident # 3's left hand, Ms. Rhine should have at least noted it on the Nursing Care Sheet. As stated beforehand, there is no documentary evidence in the record indicating that Resident # 3 had issues with using the hand roll in her left hand. Based on the instructions contained in Resident # 3's
Care Plan and the Nursing Care Sheet, I conclude that the facility should
have treated Resident # 3 by using a hand roll in her left hand. Petitioner's
failure to use hand rolls for treatment of Resident # 3 on April 14-15,
1998 at the specified times, except at 12:45 p.m. on April 14, 1998, violates
42 C.F.R. § 483.25(e)(2). Resident # 7 Resident # 7's February 4, 1998 MDS indicated a loss of
voluntary movement. CMS Ex. # 3 at 8. The Care Plan indicated that this
resident was at risk for contractures related to a semi-fetal position,
contractures in all extremities, hands, feet, shoulders, and knees.
Id. The Care Plan for this resident required the application of bilateral
splints daily from 7 a.m. to 3 p.m. with a small pillow placed between
the shoulders and elbows to rest the splints on. Id. The Restorative
Nursing Assistant (RNA) documentation had the instruction to check for
usage of splints on both hands every Monday through Friday for six to
eight hours. Id. The RNA signed that the splints were used on
4/13/98 and 4/14/98. Id. The RNA only worked day shifts from
Monday through Friday. Id. On April 13, 1998 at 11:15 a.m. and
2:00 p.m., the State surveyor reported no hand rolls or splints were in
either hand of Resident # 7. Id. On April 14, 1998 from 8:10
a.m. until 2:00 p.m., and April 15, 1998 from 6:50 a.m. until 9:15 a.m.
and at 1:15 p.m., the surveyor documented that Resident # 7 had hand rolls
in both hands, but no hand splints in either hand. Id. CMS argues
that Petitioner violated 42 C.F.R. § 483.25(e)(2) because the facility
failed to use hand splints in its treatment of Resident # 7 as stated
in its Care Plan. CMS further states that the failure to use hand splints
for Resident # 7 represents a potential for more than minimal harm to
Resident # 7's health and safety, and could cause further decrease in
this resident's voluntary movement. Petitioner argues that no violation occurred because the use of hand rolls and hand splints are interchangeable. In support of its argument, Petitioner relies on Ms. Rhine's and Dr. Stewart's testimony. Ms. Rhine testified that the training she received from Lisa Fite, the facility's Licensed Physical Therapy Assistant, instructed that hand rolls are interchangeable for hand splints. Tr. at 420. She stated that Resident # 7 was treated with hand splints, not to straighten any of her extremities, but instead to prevent her finger nails from digging into her hand. Tr. at 415. Ms. Rhine also indicated that the previous use of hand splints for this resident had caused an abrasion or sore on her arm. Id. at 413. She testified that the Restorative CNA Order for Resident # 7 instructed the RNA to determine if Resident # 7 could tolerate hand splints, and therefore using hand splints for Resident # 7 was an option, not a mandatory requirement. Id. at 413, 414. Dr. Stewart testified that hand rolls and hand splints are interchangeable. Tr. at 365. Dr. Stewart also contended that he generally relies upon the physical therapist's advice regarding whether to treat a resident with hand rolls or hand splints. Id. at 369, 370. In summary, Petitioner basically argues that it did not violate said regulation because it used both hand rolls and hand splints interchangeably to treat Resident # 7. Therefore, Petitioner contends that the fact that it treated Resident # 7 with hand rolls at the times in question on April 14-15, 1998 instead of hand splints does not amount to a violation of the federal regulations. I disagree. I reject Ms. Rhine's view that using hand splints for
Resident # 7 was only an option based on the fact that Petitioner's Restorative
CNA Order for Resident # 7 instructed the RNA to determine if Resident
# 7 could tolerate hand splints. Resident # 7's Care Plan instructs that
she be given bilateral hand splints from 7a.m.-3 p.m. daily. CMS Ex. 3
at 8. Petitioner's Restorative CNA Order highlights the physician's instructions
to discontinue the original instructions in Resident # 7's Care Plan,
effective April 9, 1998. CMS Ex. 23 at 3; P. Ex. 9 at 8. As of April 9,
1998, the facility's nursing staff was instructed to check for usage of
splints on both of Resident # 7's hands for six to eight hours from Monday
through Friday. The written instructions on the Order do not imply that
the facility can use hand rolls or hand splints interchangeably. An order
to check for usage of hand splints creates a presumption that hand splints
are already being used by a resident. The fact that hand rolls were discontinued
for Resident # 7 further convinces me that the use of hand splints remained
the appropriate treatment for this resident based on her lack of voluntary
movement and the fact that she had contractures. Tr. at 406;CMS
Ex. 3 at 8. Petitioner contended at the hearing that Ms. Fite's April
28, 1998 note supports its view that hand rolls and hand splints are interchangeable.
P. Ex. 25 at 3. The contents of the note indicates that Ms. Fite advised
an employee of the Arkansas Department of Human Services for Long Term
Care that a hand roll was substituted for a hand splint for treatment
of Resident # 10 because this resident was not tolerant of the hand splint
and the hand roll was performing the same job of keeping her fingers open
as the hand splint. Id. Petitioner argued at the hearing that
this letter stands for the proposition that the interchangeability of
hand rolls and hand splints are applicable to other residents of the facility,
including Resident # 7. Tr. at 419. The argument is not persuasive.
Ms. Fite's letter is applicable to only the treatment of Resident # 10,
whose treatment by the facility is not at issue in this case. Ms. Fite
also fails to identify the employee to which she refers in her letter. Ms. Mack's testimony concerning the use of hand rolls
and hand splints is more credible than the testimony of Ms. Rhine and
Dr. Stewart. During the hearing, Ms. Mack testified that hand rolls and
hand splints have a different purpose. She indicated that hand rolls are
typically used for residents with contractures of the hands, where a resident's
hand is closed in a fist. Tr. at 61. Ms. Mack stated that hand
rolls are usually fabricated by occupational therapists and applied to
prevent pressure sores and open areas on a resident's skin, resulting
from skin perspiration and moisture. Id. She further testified
that hand splints are usually used on a resident's wrist or elbow to reduce
contractures. Id. The purpose of hand splints is to increase
a resident's ROM. Id. Ms. Rhine's assertion that hand rolls and
hand splints are interchangeable is based on training she received from
Ms. Fite. I do not find her reliance on Ms. Fite's training credible.
There is no evidence in the record that Ms. Fite instructed Ms. Rhine
or other facility nursing staff members to treat Resident # 7's contractures
by using hand rolls and hand splints interchangeably. Nor has Petitioner
presented any documentary evidence that Resident # 7 was not tolerating
her hand splints. I am not persuaded by Dr. Stewart's testimony, since
he mainly relies on the physical therapist to decide whether to treat
a resident with hand rolls versus hand splints. Petitioner further contends that Ms. Mack's testimony
lacks credibility because she did not personally observe Resident # 7
during the April 1998 survey nor speak to the facility's physical therapist
or RNA concerning the care administered to this resident. Tr.
at 191. Yet, 42 C.F.R. § 483.25(e)(2) does not place these types of obligations
upon a State surveyor. Ms. Rosemary Kerr observed Resident # 7 on April
13, 1998. CMS Ex. 23 at 1. Ms. Mack did observe Resident # 7 on April
14-15, 1998. State surveyors quite often conduct surveys in teams. The
fact that Ms. Kerr observed Resident # 7 on April 13, 1998 instead of
Ms. Mack does not negate Ms. Mack's testimony nor Ms. Kerr's findings
on that date. Additionally, the Care Plan is the main document that determines
the treatment for residents. Dr. Stewart's testimony supports this point.
Tr. at 374, 375. Although a State surveyor may elect to review
additional documentation and interview staff members concerning the care
of residents beyond the contents of a resident's Care Plan, the regulations
do not place a mandatory requirement on a State surveyor to do so. On April 13, 1998 at 11:15 a.m. and 2:00 p.m., the State
surveyor reported that Resident # 7 did not have either hand rolls or
hand splints in either hand. CMS Ex. 3 at 8. Petitioner does not deny
this finding. On April 14, 1998 from 8:10 a.m. until 2:00 p.m., and April
15, 1998 from 6:50 a.m. until 9:15 a.m. and at 1:15 p.m., the State surveyor
documented that Resident # 7 lacked hand splints in both hands. Id.
Resident # 7 had limited ROM based on the fact that she had a loss of
voluntary movement and as at risk for contractures. Petitioner's Restorative
CNA Order for Resident # 7 stated that hand rolls were to be discontinued
effective April 9, 1998. CMS Ex. 23 at 3; P. Ex. 9 at 8. Hand rolls and
hand splints are not interchangeable. The facility's failure to provide
Resident # 7 with hand splints during the specified time periods on April
13-15, 1998 violates 42 C.F.R. § 483.25(e)(2). Resident # 11 Resident # 11's January 16, 1998 MDS indicated a partial
loss of voluntary movement in her neck and full loss of voluntary movement
in her arms, legs, feet, and hands. CMS Ex. 3 at 8. Resident # 11's February
6, 1998 Care Plan stated that she had contractures of the shoulders, elbows,
hands, knees, hips, and feet. Id. The Care Plan indicated that
Resident # 11 was to receive passive ROM exercises to all of her extremities
while receiving routine care from the facility's nursing staff. Id. Ms. Mack reported that on April 14, 1998 at 1:35 p.m.,
and April 15, 1998 at 6:15 a.m., while she was observing routine care
of Resident # 11 ROM exercises were not performed. CMS Ex. 3 at 8. Ms.
Mack further reported that on April 15, 1998 at 6:30 a.m., the CNA bathing
Resident # 11 stated she tried to do ROM exercises when she had time.
Id. Additionally, the CNA indicated that she comes back to Resident
# 11 after providing routine care to other residents and estimated doing
ROM exercises about once a week for this resident. Id. CMS argues
that Petitioner violated 42 C.F.R. § 483.25(e)(2) because the CNA failed
to perform ROM exercises when administering routine care to Resident
# 11 during the April 1998 survey. CMS also asserts that this alleged
deficiency represents a potential for more than minimal harm to Resident
# 11's safety and health. Petitioner contends that CMS's findings lack legal or
factual evidentiary support. Petitioner argues that Ms. Childress's testimony
during the hearing confirmed that routine care-giving includes passive
ROM exercises with raising and turning of arms and hands. Tr. 345.
Petitioner also asserts that Ms. Mack's testimony concurs with the fact
that the facility determines the method of how ROM exercises will be performed.
Id. at 186-189. Further, Petitioner claims that the remainder
of Ms. Mack's testimony is unreliable because she was not a trained therapist
at the time of the April 1998 survey, she was unable to articulate the
applicable standard for conducting ROM exercises during cross-examination,
and she failed to make her own assessment of ROM treatment and services
performed on Resident # 11 during the April 1998 survey. Id.
at 171, 174, 175. In considering the evidence presented by the parties,
I give no weight to the anonymous statements allegedly made by Petitioner's
CNA to Ms. Mack on April 15, 1998 at 6:30 a.m. while the CNA was bathing
Resident # 11, for the reasons previously stated above under Finding number
3 of this decision. The parties do not dispute that Resident # 11 had
a limited ROM or that Resident # 11's treatment included passive ROM exercises
to all extremities while receiving routine care.(16)
P. Ex. 5 at 149, 150; CMS Ex. 22 at 58, 59. The parties concur that no
specific standard or requirement exists under the federal regulations
pertaining to the number of times a day a facility should engage a resident
in ROM exercises.(17) Tr. at
77-80, 403. However, they differ regarding their interpretation as to
how the ROM exercises are to be performed by Petitioner's nursing staff.
Ms. Mack testified at the hearing that although ROM exercises may occur
when a resident is being bathed, they do not automatically occur when
providing routine care. Tr. at 186. ROM exercises consist of
specific exercise with a resident's joints and limbs. Id. Ms.
Childress and Ms. Rhine testified at the hearing that administering routine
care to a resident automatically incorporates performing passive ROM exercises
because routine care (e.g., bathing, dressing, grooming, and turning)
requires moving a resident's extremities. Id. at 345, 402-404. I make no finding regarding the manner in which Petitioner
performed ROM exercises for Resident # 11. The testimony presented by
both parties does not provide me with further insight on whether there
is an implicit standard under 42 C.F.R. § 483.25(e)(2) pertaining to how
passive ROM exercises are to be performed by a facility. Furthermore,
Resident # 11's Care Plan fails to specify Petitioner's method of performing
passive ROM exercises. CMS's deficiency finding pertaining to the care administered
to Resident # 11 by the facility is not based on the manner in which passive
ROM exercises were performed. Instead, CMS's deficiency finding is based
on the fact that Petitioner failed to perform ROM exercises on April 14,
1998 at 1:35 p.m., and April 15, 1998 at 6:15 a.m. Ms. Mack's testimony
supports the basis of CMS's deficiency finding. Tr. at 58. Resident
# 11 had a partial loss of voluntary movement in her neck and full loss
of voluntary movement in her arms, legs, feet, and hands. CMS Ex. 3 at
8. This resident also possessed contractures of the shoulders, elbows,
hands, knees, hips, and feet. Id. Ms. Mack testified at the hearing
that contractures occur when the joints of the body become stiff and immobile
due to not being moved frequently. Tr. at 57. She further stated
that ROM exercises are important because they keep a resident's joints
and muscles from stiffening to a point of contracture. Id. Ms.
Mack also indicated that Resident # 11 had a loss of voluntary movement
at the time she observed this resident during the April 1998 survey. Id.
at 58. Under 42 C.F.R. § 483.25(e)(2), Petitioner is obligated to provide
treatment and services to increase a resident's range of motion and/or
prevent further decrease in a resident's range of motion. The failure
of a facility to conduct ROM exercises negatively impacts a resident's
voluntary movement and increases a resident's susceptibility to joint
and muscle stiffness, leading to the development of contractures. Based
on Ms. Mack's credible testimony on the issue, I conclude that Petitioner's
failure to perform passive ROM exercises at the above-stated time periods
during the April 1998 survey violates 42 C.F.R. § 483.25(e)(2). Petitioner has provided no evidence to rebut CMS's evidence
and Ms. Mack's testimony. For example, Petitioner could have provided
testimony or documentation to show that its failure to engage Resident
# 11 in passive ROM exercises did not negatively impact this resident's
contractures or voluntary movement of her limbs. Instead, Petitioner makes
general assertions on how it performed passive ROM exercises, and argues
that CMS is bound to how the facility trains its staff to provide passive
ROM exercises because Resident # 11's Care Plan is silent on how these
exercises are to be performed. Tr. at 189. Assuming arguendo
that Petitioner's assertion is correct, it does not negate CMS's deficiency
finding. I am not persuaded by Petitioner's insinuation that its Care
Plan was erroneous and that Ms. Mack should have made her own full assessment
of Resident # 11 (such as interviewing the physician and restorative aide
treating this resident) to determine whether the facility was providing
appropriate treatment and services to increase ROM or prevent further
decrease of ROM for Resident # 11. CMS's deficiency finding is not based
on a failure by Petitioner in the development or implementation of its
Care Plan. Nor do the federal regulations require Ms. Mack to conduct
interviews with staff members concerning the care of residents. Petitioner asserts that CMS concurs with its argument
that several opportunities for routine care exist during a nursing shift.
Tr. at 56, 403. Petitioner states that CMS does not indicate
that Ms. Mack watched each and every episode of routine care administered
by the facility to Resident # 11. I interpret Petitioner's argument to
mean that no deficiency finding exists for Resident # 11 because Petitioner
provided passive ROM exercises to Resident # 11 at other times on April
14-15, 2001, which Ms. Mack failed to observe. Petitioner's argument lacks
merit and fails to rebut CMS's evidence supporting its deficiency finding
for Resident # 11. Petitioner also contends that it administers passive ROM exercises to residents during routine care, and that it did not violate 42 C.F.R. § 483.25(e)(2) since no standard exists under the federal regulations for the amount of time a facility must perform ROM exercises for a resident each day. I concur that 42 C.F.R. § 483.25(e)(2) on its face does not specify how often a facility should perform ROM exercises on a resident with limited ROM. Yet, the relevant issue related to CMS's deficiency finding for Resident # 11 is whether Petitioner provided treatment and services to increase Resident # 11's ROM and/or prevent further decrease of her ROM, not the number of times Petitioner performed ROM exercises for this resident. Petitioner's failure to perform passive ROM exercises for Resident # 11 on two occasions during the April 1998 survey violates 42 C.F.R. § 483.25(e)(2).
Under the federal regulations, CMS and the States have the authority to impose remedies against a skilled nursing facility that is not in compliance with the requirements for participation in the Medicare and Medicaid programs. 42 C.F.R. §§ 488.406, 488.408(b) and (d), 488.430. The federal regulations also authorize CMS and the States to impose a CMP against a skilled nursing care facility that they ascertain is not complying with Medicare and Medicaid participation requirements. Id. The CMP may be imposed for each day that the facility is not in compliance. 42 C.F.R. § 488.430. The beginning date of the penalty may be as early as the date that CMS first determined Petitioner not to be in substantial compliance with participation requirements. 42 C.F.R. § 488.440(a). The end date of the penalty is the date when the facility achieves substantial compliance or CMS terminates Petitioner's participation in Medicare. 42 C.F.R. § 488.440(b). The federal regulations specify two broad ranges (upper range and lower range) for a CMP imposed against a facility. 42 C.F.R. § 488.438. The lower range of CMPs, from $50 to $3,000 per day, is reserved for deficiencies that do not constitute immediate jeopardy, but either caused actual harm to residents, or cause no actual harm, but have the potential for more than minimum harm to residents.(18) 42 C.F.R. § 488.438(a)(ii). In this case, Petitioner in its initial posthearing brief
(P. Br.) requests that the CMP imposed by CMS be rescinded. P. Br. at
20. CMS imposed a CMP against Petitioner in the amount of $1,000 per day
beginning on March 24, 1998 and running through May 11, 1998. CMS Ex.
4 at 5. A penalty of this amount falls in the lower range of penalties.
42 C.F.R. § 488.438(a)(ii). The total amount of the CMP imposed by CMS
for the period of noncompliance is $49,000. There are several factors which CMS and a state must consider
in determining the amount of the penalty. These factors include a facility's:
(1) history of noncompliance, including repeated deficiencies; (2) financial
condition; and (3) degree of culpability. 42 C.F.R. §§ 488.438(f), 488.404.
CMS and the state may also consider the relationship of one deficiency
to other deficiencies resulting in the facility's noncompliance. 42 C.F.R.
§ 488.404. The federal regulations require an ALJ to consider only the
factors contained in 42 C.F.R. §§ 488.404 and 488.438(f) to determine
whether the CMPs imposed by CMS are reasonable. 42 C.F.R. § 488.438(e)(3). I deny the CMP of $1,000 per day beginning on March 24,
1998 and running through May 11, 1998. I hereby reduce the CMP to $700
per day for the period of the penalty imposed by CMS. I base my finding
on the factors proscribed in the federal regulations for determining the
amount of the penalty. I rely on evidence relating to Petitioner's history
of noncompliance and the seriousness of the deficiencies manifested by
Petitioner. The evidence in this case shows that Petitioner had a prior
history of non-compliance. During the hearing, Ms. Bennett testified that
since July 1995, CMS had five enforcement actions against Petitioner that
resulted in CMS imposing remedies. Tr. at 239, 282, 283.(19)
Petitioner does not refute CMS's evidence of Petitioner's past noncompliance
with participation requirements. The evidence in this case further shows the seriousness
of the deficiencies manifested by Petitioner. CMS has established that
Petitioner violated 42 C.F.R. § 483.25(e) in its treatment of Residents
# 3, # 7, and # 11. Finding 6. A CMP is merited by these three deficiencies.
However, I find CMS's determination to impose a $1,000 per day CMP based
on the findings of the April 1998 survey to be unreasonable. My decision
to impose a CMP in this case is tempered by the fact that CMS failed to
establish a prima facie case for three deficiencies related to pressure
sores and Petitioner was in substantial compliance with respect to two
other alleged deficiencies related to pressure sores. Findings 4-5. The
three deficiencies pertaining to ROM have a scope and severity level of
"E," the second to the lowest level of deficiency for which a CMP may
be imposed. It represents a potential for more than minimal harm. Additionally,
there is no evidence that Residents # 3, # 7, and # 11 suffered actual
harm by Petitioner's noncompliance with participation requirements. Therefore,
I conclude that a $700 per day CMP is a reasonable penalty for each day
of Petitioner's noncompliance. I find that Petitioner's evidence pertaining to its financial
condition fails to provide a basis for further reducing the CMP that I
have decided to impose in this case. In making its determination to impose
the CMP, CMS considered Petitioner's financial condition. Ms. Bennett
testified that when CMS considers the financial condition of a provider
it reviews the following: (1) the provider's monthly Medicare payments;
(2) the provider's monthly Medicaid payments; and (3) whether or not the
provider is insolvent. Tr. at 285. She stated that CMS does not
evaluate the provider's profit or loss when considering its financial
condition. Id. Petitioner relies on the testimony of Ms. Hutcheson as
evidence of its financial condition at the time of the April 1998 survey.
During the hearing, Ms. Hutcheson testified that as of March 29, 1998,
the facility was not receiving payments for the facility's Medicare and
Medicaid residents. Tr. at 468. CMS Ex. 4 at 2, 5. She stated
that despite this factor, the facility continued to administer care to
its residents after it was terminated from the Medicaid and Medicare program
on May 12, 1998. Tr. at 468. Ms. Hutcheson testified that if
payments had not been denied for all of its Medicaid and Medicare patients
from March 29, 1998 through May 12, 1998, the facility would have billed
$218,481.30 to Medicaid and $67,897.04 to Medicare. Id. She also
indicated that the facility made no profit in April 1998 and early May
1998 as it attempted to obtain substantial compliance. Id. at
467. The federal regulations do not explicitly define the meaning
of the term "financial condition." 42 C.F.R. § 488.438(f)(2). The pertinent
issue in reviewing this factor is whether Petitioner's financial condition
is such that imposing a penalty would jeopardize its ability to continue
providing care to its residents. Hearthside Care Center, DAB CR656
(2000), aff'd DAB No. 1741 (2000), at 6. Therefore, a review
of a facility's profit and loss could assist CMS in analyzing this factor.
However, the federal regulations do not mandate that CMS review a facility's
profit or loss when considering the amount of penalty. Here, Petitioner's evidence does not prove that it is unable to pay the penalty imposed by CMS. Nor does its evidence establish that paying the penalty will jeopardize its ability to continue providing care to its residents. Instead, Petitioner's evidence highlights that it has been able to continue providing resident care despite CMS denying it payments for all Medicare and Medicaid residents. Additionally, other than Ms. Hutcheson's testimony, Petitioner has not presented any further evidence of its financial condition, such as records of its cash flow as of the April 1998 survey. I interpret Petitioner's evidence to imply that the penalty in the amounts determined by CMS is burdensome. That may be true, but it does not provide a basis for reducing the CMP that I have decided to impose in this case.
The Act authorizes CMS to terminate a provider's participation
in Medicare whenever the provider is found not to be in substantial compliance
with federal participation requirements. Act, section 1866(b)(2); 42 C.F.R.
§ 488.456(b)(i). See also 42 C.F.R. §§ 488.406(a), 488.412(a).
Federal regulations also authorize CMS to deny payment to a provider for
care its residents. 42 C.F.R. § 488.406(a)(2)(i)(A). In this case, CMS notified Petitioner in an April 27,
1998 letter of its determination to impose a denial of payment for all
new Medicare and Medicaid admissions effective March 29, 1998 and terminate
Petitioner's Medicare and Medicaid agreement effective May 12, 1998, based
upon Petitioner's current (April 1998 survey) and past noncompliance with
Medicare and Medicaid requirements. CMS Ex. 4 at 5. Petitioner argued
at the hearing that CMS's imposition of remedies against Petitioner constituted
an attempt to penalize Petitioner. Tr. at 286. The parties stipulated
at the hearing that if Petitioner prevailed on its challenges to CMS=
findings from the April 1998 survey, CMS would rescind the remedies of
termination and denial of payment for all new admissions, effective April
4, 1998 through May 12, 1998. CMS= List of Respondent=s Exhibits and
Witnesses, and Stipulations of the Parties, at 3; Petitioner=s Revised
Witness, Exhibits, and Stipulation of the Parties, at 5. In its initial posthearing brief, Petitioner contends
that F-tag 314 and 318 should be dismissed, termination of its provider
agreement rescinded, and that the denial of payments for all new admissions
should be removed. P. Br. at 20. In its posthearing reply brief (P. R.
Br.), Petitioner asserts that the imposition of the denial of payments
and termination of its provider agreement were without a legal basis.
P. R. Br. at 5. In its posthearing brief, CMS requests that its determination
to terminate Petitioner's Medicare provider agreement be upheld. CMS Br.
at 28. According to the federal regulations, the purpose of remedies
is to ensure prompt compliance with Medicare program requirements. 42
C.F.R. § 488.402(a). Ms. Bennett testified at the hearing that CMS imposed
remedies against Petitioner to encourage Petitioner to comply with participation
requirements and improve resident care. Tr. at 232, 237. Ms. Bennett's
testimony conforms with the purpose of imposing remedies mandated by the
federal regulations. Thus, I find no merit in Petitioner's assertion that
CMS's purpose in imposing remedies against the facility is to penalize
Petitioner. The parties stipulation pertaining the remedies imposed
by CMS is not applicable based on my Finding that CMS has provided sufficient
evidence to establish that Petitioner was not in substantial compliance
with F-tag 318. Finding 6. The fact that CMS failed to meet its prima
facie case for F-tag 314, does not negate Petitioner's noncompliance with
F-tag 318. A single deficiency finding that poses a risk of more than
minimal harm constitutes noncompliance with Medicare participation requirements
and grounds for termination of a provider's Medicare agreement. Libbie
Convalescent Center, DAB CR589 (1999). 42 C.F.R. § 488.456(b)(i).
See also 42 C.F.R. § 488.301 for the definitions of Noncompliance
and Substantial Compliance. Therefore, I sustain CMS's determination
to deny payment to Petitioner for all new Medicare and Medicaid admissions
effective March 29, 1998, and terminate Petitioner's Medicare and Medicaid
agreement effective May 12, 1998.
Conclusion For the reasons set out in this decision, I find that CMS had the authority to imposed the three remedies it chose in this case because Petitioner was not in substantial compliance with 42 C.F.R. § 483.25 (e)(2) during the period from March 24, 1998 through and including May 11, 1998. I also find that the CMP of $1,000 per day imposed by CMS for the specified timer period was unreasonable and that a CMP of $700 per day is reasonable for the period of Petitioner's noncompliance with participation requirements. Finally, I sustain CMS's determination to deny payment to Petitioner for all new Medicare and Medicaid admissions effective March 29, 1998 and sustain the May 12, 1998 termination of Petitioner's Medicare and Medicaid agreement. |
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| JUDGE | |
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Alfonso J. Montano Administrative Law Judge |
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| FOOTNOTES | |
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1. CMS later elected not to call Mr. Davis to testify as a witness. Tr. at 306. 2. CMS's findings are reported on a standard form (called Form 2567) which notifies a facility of specific deficiency findings and organizes findings under heading numbers called "F-tags." 3. CMS's List of Respondent's Exhibits and Witnesses and Stipulations of the Parties at 2, indicates that CMS Ex. 30 was admitted into evidence. Although I admitted CMS Ex. 30 into evidence on March 27, 2000, CMS later withdrew CMS Ex. 30 on March 28, 2000. Tr. At 13, 14, 306. 4. Petitioner's Revised Witness, Exhibits, and Stipulation of the Parties, at 2, fails to list P. Exs. #3, #28 and #29 as admitted into evidence. During the hearing, I admitted P. Exs. #3, #28, and #29 into evidence. Tr. At 14, 274, and 394. 5. In general, the U.S. Department of Health and Human Services (DHHS) [through CMS] assesses providers' compliance with the requirements for participation in the Medicare program through a survey process. State survey agencies, under agreement with CMS, perform surveys of skilled nursing facilities, like Petitioner, who enter into provider agreements with DHHS for Medicare reimbursement of certain services rendered by providers. State survey agencies also make recommendations to CMS regarding whether such facilities meet federal requirements for Medicare participation. Section 1864(a) of the Social Security Act; 42 C.F.R. §§ 488.10, 488.11, 488.18, 488.20, and 488.26. The results of these surveys serve as CMS's basis for its decisions regarding a facility's initial or continued participation in the Medicare program. 6. As stated beforehand, CMS's findings are reported on the Form 2567. Form 2567 notifies a facility of specific deficiency findings, organizes under F-tags, and contains a section that provides a facility the opportunity to list its proposed plans to correct the deficiencies. Id. At 300. A "draft" abbreviated Form 2567 also notifies a facility of specific deficiency findings. The "draft" abbreviated Form 2567 does not allow a facility to address how it proposes to correct the deficiencies, based on CMS'ss decision to no longer provide a facility an opportunity to correct deficiencies before terminating the facility from the Medicare program. Id. At 300, 301. See also 42 C.F.R. §§ 488.301, 488.305(a), 488.308(c) and (e), and 488.310. 7. Substantial compliance constitutes a level of compliance whereby any identified deficiencies pose no greater risk to resident health or safety than the potential for causing minimal harm. 42 C.F.R. § 488.301. 8. The state survey team found that two residents developed pressure sores while at the facility as a result of wearing inappropriate shoes. Id. At 18. A third resident, who had been wearing a pressure boot, developed a pressure sore on the heel of his foot. Id. The surveyor observed that the third resident had dried substances on the padding of his boot when it was removed. Id. The fourth resident had a pressure sore on her buttocks, and the surveyor observed that this resident had fecal matter in the area of the pressure sore after using the bathroom. Id. 9. The appellate panel upheld the ALJ's finding regarding the pressure sore developed by Resident #3. Id. The administrative law judge found that Resident #3's pressure sore was clinically unavoidable as a result of a disease process which had already caused his other leg to be amputated. Id. at 22. 10. F-tag 309, which corresponds to the state surveyor's findings of a deficiency under 42 C.F.R. § 483.25, was one of the four deficiencies found by the state survey agency. Lake City at 3. 11. A Stage II pressure sore consists of partial thickness skin loss involving the epidermis, dermis, or both. The pressure sore becomes superficial and presents clinically as an abrasion, blister, or shallow crater. CMS Ex. 6 at 3. 12. MDS is an assessment of a resident's medical condition completed by a facility. Tr. at 207. A facility uses the MDS to identify any problems that exist for a resident and to help it develop plans to administer care for a resident. Id. at 208. 13. Blanchable tests are performed by touching the reddened areas of a resident's skin. Tr. at 122. "If the tissue is still viable, the circulation will return, then the area will blanche upon touch, and it will turn white when you remove your finger, and that tells you if the pressure sore actually is permanent or only of a temporary situation." Id. 14. A Stage IV pressure sore consists of full thickness skin loss with extensive destruction, tissue necrosis, or damage to muscle, bone, or supporting structures. During the hearing, Ms. Mack testified that a Stage IV pressure sore goes through the surface layer of the skin, usually erodes subcutaneous tissue, and exposes muscle and/or bone within the wound. Tr. 42. 15. If a facility determines that there is a significant change to a resident's condition, then the facility is required under federal regulations to conduct a comprehensive assessment of the resident within 14 days of the significant change. The facility is required to make a written amendment to the care plan within 14 days after the resident is stabilized. See 42 C.F.R. § 483.20(2)(ii). 16. Passive ROM occurs when a resident is totally dependent on a facility staff member to perform ROM exercises. Tr. at 79, 404. 17. During the hearing, Ms. Mack testified that based on training she received from physical therapists, ROM exercises should be performed until the point of pain for a resident. Tr. at 78. She also stated that a facility should engage a resident in ROM exercises for at least 10 repetitions on each affected area three to five times per week. Id. at 78, 79. Additionally, Ms. Mack acknowledged that this standard was not contained in either the federal regulations or the State Operations Manual. Id. at 78, 80. 18. 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. 19. The five enforcement actions against Petitioner includes the one enforcement action resulting from the April 1998 survey. | |