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Department of Health and Human Services DEPARTMENTAL APPEALS BOARD Civil Remedies Division |
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Odd Fellow and Rebekah Health Care Facility, |
DATE: February 19, 2002 |
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Centers for Medicare & Medicaid
Services
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Docket No.C-99-701
Decision No. CR873 |
| DECISION | |
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DECISION I find that Odd Fellow and Rebekah Health Care Facility,
Petitioner, was not in substantial compliance with federal participation
requirements for Medicare and Medicaid based on a survey conducted on
May 20 - 21, 1999. I. Background On May 20 - 21, 1999, the New York Department of Health (NYDOH) conducted a survey at Petitioner's facility. By letter dated May 25, 1999, Petitioner was advised that it had been cited for immediate jeopardy deficiencies.(1) By letter dated July 23, 1999, Petitioner filed a request for hearing. This case was originally assigned to Administrative Law Judge Jill Clifton. Subsequently, this case was reassigned to me. By letter dated October 20, 2000, the parties agreed that
this case would be decided on written submissions in lieu of an in-person
hearing and accordingly filed briefs. Both parties submitted exhibits.
Petitioner initially submitted 66 exhibits (P. Exs. 1 - 60, P. Supplemental
Ex. 60, P. Exs. 61 - 65). CMS initially submitted 39 exhibits (CMS Exs.
1 - 39). Under separate cover, Petitioner submitted an affidavit, which
I have labeled P. Ex. 66. Subsequently, Petitioner submitted an exhibit
labeled Exhibit A with its initial brief, which I have renamed P. Ex.
67. In addition, Petitioner submitted another exhibit with its sur-reply
brief, also labeled Exhibit A, which I have renamed P.
Ex. 68. CMS submitted an attachment with its initial brief, which I have
labeled CMS Ex. 40, and an attachment with its sur-reply brief which I
have labeled CMS Ex. 41. Additionally, the parties submitted a Stipulation
of Facts (SOF). No objections were made to any of the exhibits and I receive
into evidence the SOF, P. Exs. 1 - 60, P. Supplemental
Ex. 60, P. Exs. 61 - 68, and CMS Exs. 1 - 41. The SOF reflects the facts set out below concerning Resident
1. Resident 1 was non-ambulatory and confined to a wheelchair. SOF 1.
The care plan indicated that he had poor vision and did not use his glasses
due to cataracts. Id. On March 5, 1999, the date of Resident
1's admission, he was alert, but confused at times, forgetful at times
and depressed, and, at times, had impaired judgment, hallucinated, and
wandered in his wheelchair. SOF 2. Neither his care plan nor
his physician's assessment indicated that one on one care or constant
supervision was required, nor did it indicate that Resident 1 was in need
of restraints. He was described as "alert and oriented x3" on January
5, 1999, and described as "oriented to self and place" on March 8, 1999.
SOF 3. On May, 19, 1999, the day of the accident, Resident 1
was evaluated, in a transfer summary, as sometimes oriented and forgetful
and always with impaired judgment, but always alert and never had hallucinations.
SOF 4. The transfer summary also noted the he never
wandered. Id. The transfer summary did not indicate that
Resident 1 needed one on one care or that he needed restraints. Id. At approximately 3:12 p.m. on May 19, 1999, Resident 1
entered into Room 67, which was being renovated, and fell through a hole
in the floor to the basement floor, 10 feet below. SOF 5. He was transferred
to a hospital and died approximately five hours later. He died of an acute
heart attack precipitated by the fracture of multiple bones sustained
from a fall with a contributory factor of death being an old cerebral
infarct (stroke). Id. Resident 1 was seen approximately 17 - 20 minutes prior
to the accident by a nurse, Ms. Wascovich, who moved him to a small lounge
area near the nurse's station about seven or eight rooms away from the
room where the accident happened. SOF 6. He was also seen by another nurse,
Ms. Turk, sitting in his wheelchair by the nurse's station about 16 minutes
before the accident. SOF 7. On May 17, 1999, Boxhorn, a subcontractor, began to cut
a hole in the concrete floor of Room 67. On May 18, 1999, the work description
for Room 67 on the Daily Manpower Report of Boxhorn noted "removed metal
plate from floor penetrating room 67, secured room, and installed ribbons
and sign." It also noted "clean all areas" and that the room was turned
over to Mollenburg-Betz, a subcontractor, at a foreman's meeting. SOF
8. The facts surrounding the placement of the hole in Room
67 are the following. The hole Boxhorn cut in Room 67 on May 18, 1999,
was 29 inches by 57 inches. Id. The floor opening was created so
that a fresh air duct could be installed from the new basement boilers.
After the floor opening was cut by Boxhorn, three strips of yellow construction
warning tape were fastened "from wall to wall in front of the hole" and
were in place at the time of the incident. SOF 21. On May 19, 1999, Room
67 was assigned to Martin Henry of Elmwood Plumbing, a subcontractor.
SOF 9. The foreman's meeting on the morning of May 18, 1999, was attended
by David Pope, who was the Project Supervisor from Ciminelli-Cowper (Ciminelli),
the construction project manager, and the following subcontractors: John
Curry, IPL; Peter Mychajluk, Elmwood Plumbing; and representatives from
Boxhorn and Mollenberg-Betz among others. SOF 8. Mr. Henry began working on Room 67 at approximately 10
a.m. on May 19, 1999. At the time of the incident, a plastic dust barrier
hung from the ceiling in front of Room 67 and was secured by duct tape
to the corridor walls. SOF 12. The barrier was in place pursuant to a
Plan of Correction (POC) approved by the NYDOH as a result of a survey
conducted on April 1, 1999. SOF 11. A lock was placed on the door to Room
67. Petitioner's maintenance staff and Ciminelli were provided with keys
to the room. SOF 12. During an interview with the Lockport Police Department
on the day after the incident, Mr. Henry stated that he did not have a
key to Room 67 and had no instructions to secure the room. SOF 13. Mr.
Henry stated that he was not advised to secure the door when leaving and
left the door unlocked when he left at approximately 3:05 p.m. after finishing
his work. Id. However, Mr. Henry did make sure that the
door was closed behind him when he left Room 67. Id. Mr.
Henry also stated that "duct tape was holding yellow caution tape to the
wall in front of the hole" and that he knew there was "yellow caution
tape on the door as well as a sign on the door which advised of a hole
in the floor." Id. The policy of Ciminelli was to open the door at the beginning
of the day to allow access by tradesmen and to lock the door at the end
of the day. SOF 14. Specifically, according to police notes, Paul Neureuter,
Vice President of Ciminelli, stated that the policy was to unlock the
doors where work was performed and to ensure that the doors were locked
at the end of the work day. Id. The facility's policy
was for Timothy Ewald, Petitioner's Director of Maintenance (DOM), to
check doors on a daily basis after the construction crews left. SOF 15. The door to Room 67 was unlocked for the plumber by David Pope, the Ciminelli project supervisor, around 10 a.m. on the morning of the incident. SOF 16. The door was closed, but not locked, immediately before the incident when Mr. Henry left at approximately 3:05 p.m. At approximately 3:12 p.m., Resident 1 broke through the dust barrier and entered the construction site by propelling himself in his wheelchair using his legs. SOF 5, 17. The door had a sign stating "DANGER! BIG HOLE IN FLOOR" posted at about five feet from the floor at the center of the door in black magic marker in large printed capital letters. SOF 18. In addition, there were bright yellow strips of construction duct tape across the door itself. Id. The location of the hole was at the rear corner of the room. SOF 19. Resident 1 propelled his wheelchair toward the hole at the rear of the room and fell through the warning tape and the hole approximately 10 feet to the basement. SOF 22. He landed on multiple bags of salt substance and was transferred to the hospital. SOF 23. Petitioner's construction contract with the general contractor
required each subcontractor to comply with all applicable laws as they
apply to maintaining a safe construction site. CMS Ex. 22. Each subcontractor
had a policy in place regarding floor openings and holes. Specifically,
the General Construction Project Manual for Additions and Alterations
to Odd Fellow and Rebekah Health Care Facility included the following:
P. Supplemental Ex. 60. In addition, the Project Manual of Ciminelli included at the beginning of the "Safety" portion the following statement:
Id. Furthermore, there was a "Special Conditions" section
to the construction contract that mandated that floor openings and holes
be sealed or covered with a rigid fire-rated cover plate. P. Ex. 60. II. Applicable law Petitioner was found to be out of substantial compliance
with Medicare and Medicaid requirements during the survey of May 20 and
21, 1999. Among others deficiencies, Petitioner was determined to have
failed to comply with:
42 C.F.R. § 483.25(h).
42 C.F.R. § 483.75.
42 C.F.R. § 483.75(d)(1). III. Discussion I make the following numbered findings of fact and conclusions of law (Findings) to support my decision that Petitioner was not in substantial compliance with federal participation requirements for Medicare and Medicaid based on a survey conducted on May 20 - 21, 1999. I discuss my Findings in detail, below.
Petitioner contends that the facility did all that was
possible to ensure that the environment was free of accident hazards and
that it was the contractor's and subcontractors' negligence that caused
Resident 1's accident. CMS admits that Petitioner hired a construction
manager with extensive experience working with hospitals and skilled nursing
homes and that there were policy and contractual provisions relating to
safety between Petitioner, the general contractor and the subcontractors.
CMS Br. at 11 - 12. However, these provisions cannot insulate Petitioner
from complying with Medicare and Medicaid regulations. The regulation
cited requires that the facility "ensure" that the resident environment
remain as free as possible of accidental hazards. This places an affirmative
duty on the facility to ensure such an environment for its residents that
cannot be contracted away to someone else. At most, Petitioner might have
a right of action against the contractor and subcontractor, but this is
not relevant to the case before me. CMS also admits that members of Petitioner's administration
attended regular meetings with construction personnel and attended project
progress meetings at which progress and safety issues were addressed.
Other safety meetings were held and minutes were provided to the facility.
Petitioner hosted a work training program on April 19, 1999, addressing
keeping residents and staff safe during the work in progress. P. Ex. 41.
In spite of all these meetings, Petitioner admits that there was no plywood
in Room 67 to use as a hole cover, nor any handrail or other evidence
of a barrier immediately surrounding the hole, contrary to the requirements
of the Occupational Safety and Health Act (OSHA)(2)
regulations to which the construction manager and subcontractor were contractually
obliged to comply. CMS Exs. 2, 12, and 24. Ciminelli was cited by OSHA
for violations and found that, "on this site, the on-site management failed
to implement all elements of the company program" in spite of it ordinarily
being a company with a good safety program in place. CMS Ex. 39. The OSHA
investigators found that the hole cut in the floor by Boxhorn on Tuesday,
May 18, 1999, was left uncovered for two days. Id. OSHA
investigators recommended citations be issued to Boxhorn and Elmwood Plumbing,
as well as to Ciminelli. Id. In summary, all Petitioner had in place was a particle
dust barrier, a closed, but unlocked door, a warning sign on the door,
and construction tape fastened from wall to wall in front of an uncovered
and unguarded two and one half foot by five foot hole in the floor that
was over a ten foot drop to the floor below. This hole was in the floor
of a room accessible to residents that was off a hallway used by residents
in this nursing unit. These measures were completely ineffective to keep
safe a resident who had impaired judgment and poor vision. In addition,
this resident sometimes was known to wander in his wheelchair, was also
sometimes confused, and was sometimes known to have been hallucinating.
Given the specific condition of this resident in particular, and of the
general vulnerable condition of residents in nursing homes, the safety
measures actually taken were inadequate to protect any of the mobile residents
in this nursing unit. Petitioner argues that this incident was completely unforeseeable
and that it should not be held responsible. Petitioner claims that it
did everything that it could to provide a safe environment for its residents.
I disagree. In short, a large hole in the floor of a room left uncovered
for two days where that room was off a hallway that residents have access
to, a hole over a 10 foot drop, and behind an unlocked door, leads one
to the very foreseeable possibility, especially given the nature of a
nursing home population, that there is a danger of a fall that would possibly
lead to very significant injuries or death. This conclusion is so self
evident to me that I feel that nothing further need be said about Petitioner's
argument. Petitioner cannot rely on the contractor or subcontractor
being contractually bound to follow OSHA regulations to ensure the safety
of the residents in its care. OSHA investigators found that the hole cut
in the floor by Boxborn on Tuesday, May 18, 1999 was left uncovered for
two days and that Ciminelli failed to implement all the elements of its
company safety program. A contractor or subcontractor's duty to provide
a safe work place environment for its employees under OSHA cannot be extended
to protect Petitioner's residents who are not employees. That duty is
Petitioner's affirmative duty under federal regulations. In addition,
even if OSHA requirements had been followed, Petitioner's residents would
not necessarily have been provided with a safe environment. OSHA regulations
specifically allow employers to provide employees with personal fall arrest
systems to arrest a fall. 29 C.F.R. § 1926.501(b)(4)(i). This would have
protected any employee, but obviously would have left the hole uncovered
and a danger to any resident in the area. Also, Petitioner cannot rely on either the "Special Conditions"
section of the construction contract that mandated that floor openings
and holes be sealed or covered with a rigid fire-rated cover plate (P.
Ex. 60) or the "General Construction Project Manual for Additions and
Alterations to Odd Fellow and Rebekah Health Care Facility" which concerns
sealing all openings made in floors and the possibility that a subcontractor
would fail to seal an opening (P. Supplemental Ex. 60). Petitioner must,
after reading this part of the project manual and the "Special Conditions"
section of the contract, admit that the possibility of a hole being left
uncovered was considered and provided for between the contractors. Therefore,
it was Petitioner's duty to protect its residents against this possibility. Petitioner argues that the plastic dust barrier and the
closed door were part of a plan of correction (POC) that was accepted
and submitted in response to a previous survey on April 1, 1999. The previous
survey concerned dust and construction debris and materials that were
found to be left in accessible rooms, not large holes in the floor over
a 10 foot drop. Petitioner cannot rely on a POC that concerns a different
hazard than is at issue here. As hazards change,
the precautions needed must also change to ensure an accident free environment. Even had the hazard remained the same, Petitioner cannot rely on compliance with a POC. The standard is actual compliance with federal regulations, not compliance with a POC because "[o]therwise, the effect would be to replace federal participation requirements with the terms of a POC." William N. Barr Pavilion of Illinois Masonic Medical Center, DAB No. 1705, at 6 (1999). The facility must establish that substantial compliance had in fact been achieved. In the preamble of the regulations adopting the current enforcement scheme, CMS stated that:
Id. (citing 59 Fed. Reg. 56,203 (Nov. 10, 1994). This same reasoning underlies my conclusion that the surveyors in this case properly looked at actual compliance, not just compliance with the terms of the POC. More importantly, the POC cannot be relied on because the excavation hazard at issue here did not exist at the time the room was surveyed. The POC was generated as a result of a survey dated April 1, 1999, while the hole in Room 67 was not cut until May 17, 1999. Additionally, the POC was not completely followed. The
April 30, 1999 POC required that the facility construction "be reviewed
with the Director of Maintenance [DOM] and nursing staff on a daily basis
by the site Project Supervisor . . . The Director of Maintenance and the
Site Supervisor shall make rounds on a regular basis to ensure areas are
safe and secure." P. Exs. 39, 48. However, these procedures described
in the POC were not followed. The project supervisor was David Pope and
the DOM was Timothy Ewald. Mr. Pope was on vacation until May 18, 1999,
and he did not know whether the Project Manager, Mr. Zachar, inspected
Room 67 in his absence on May 17, 1999, when the hole was first cut. With
respect to May 18, 1999, Mr. Pope could only recall checking the lock
at the door at the end of the day. Mr. Pope only inspected Room 67 once
on May 19, 1999, at approximately 7 a.m., and all he did was to check
to see if the door was locked. SOF 67. The DOM inspected the doors daily
to see if the doors were locked after construction crews left for the
day, usually around 3 p.m; however, this was not done on the day of the
incident. In addition, the nursing staff assigned to the unit where
Room 67 is located did not know that a hole had been cut into the floor
and were never informed of the existence of the hole by either the contractor
or the subcontractors. CMS Ex. 22. Ciminelli informed the DOM, prior to May 19, 1999, that
construction would be done in Room 67 which would involve cutting a hole
in the floor. Ciminelli did not communicate to Petitioner the time period
or the time frame when a hole would be cut. Since Petitioner knew that
a large hole would be cut, it should have informed the staff of this fact
and should have kept the area safe for the residents. Had the POC been
followed, the DOM kept informed of construction progress on a daily basis,
and rounds made to ensure safety, then Petitioner would have known of
the hole's existence two days before the incident. Measures could have
been taken to ensure safety and the nursing staff could have provided
additional supervision. Petitioner admits that the DOM was to check the doors
after the construction crews left daily to see if the doors were locked
at approximately 3:00 p.m. P. Reply Br. at 6. The plumber left Room 67
at approximately 3:05 p.m. The incident occurred at approximately 3:12
p.m. The door was unlocked. The DOM had not yet checked the door to see
if it was locked. In fact, the door was unlocked the entire day from approximately
10:00 a.m when the plumber was let into Room 67 until after the incident
to allow access to tradesmen and subcontractors. It was just fortuitous
that such an incident had not occurred earlier that day when the door
was unlocked and the hole uncovered or on the day before during the time
the room was left unlocked. In the two days since the hole was cut, Room
67 had been left unlocked for portions of each day. It is undisputed that
the room was unlocked at 10:00 a.m. on May 19, 1999, the day of the incident.
There was no evidence presented that the room was ever locked again until
after the incident at approximately 3:12 p.m. Only the maintenance staff
and the project director had keys to the room and no evidence was presented
to show that either of these keys were used to lock the door. The plumber,
Mr. Henry, stated that he did not have a key to Room 67 and had no instruction
to secure the room. Mr. Henry stated that he was not advised to secure
the door when leaving and left the door unlocked when he left at approximately
3:05 p.m. after finishing his work. In those more than six hours, when
the plumber was at lunch, on breaks, or elsewhere getting supplies, the
uncovered hole was an accident waiting to happen and it unfortunately
did with fatal consequences. It is Petitioner's duty to ensure that the resident environment remain as free as possible from accident hazards. It could have done so by making sure that the hole was covered or guarded, that the door to Room 67 was locked at all times, not just at the end of the work day, by keeping the nursing staff informed of the hazard and providing closer supervision of the residents so that no resident would have entered Room 67 in the first place, or just by moving the residents elsewhere during construction hours. Petitioner failed to do any of these things. Petitioner was properly found to be not in compliance with 42 C.F.R. § 483.25(h)(1) at an immediate jeopardy level.
CMS alleges that Petitioner failed to comply with the requirements of 42 C.F.R. § 483.25(h)(2) to the extent that residents of Petitioner's facility were in immediate jeopardy. This regulation provides that a long term care facility must ensure that:
Under 42 C.F.R. § 483.25, a facility is required to give
adequate supervision to prevent accidents. Petitioner argues that it followed
the care plan in place for the resident who died and that Resident 1 did
not require one on one supervision. Petitioner also argues that this incident
was not foreseeable and that the facility could not have modified this
resident's care plan in a manner that would have guarded against his fall
in a room that was under construction. Petitioner misapprehends the requirement of the regulation.
The regulation does not require just the following of a care plan. As
another Administrative Law Judge (ALJ) stated, "Petitioner's obligation
to supervise its residents is defined by 42 C.F.R. § 483.25(h)(2). The
regulation requires that Petitioner provide "adequate" supervision of
its residents to prevent accidents. But, . . . an element of reasonableness
is inherent in the regulation's requirements. The regulation does not
mandate that a facility be accident-free. Nor does it impose a strict
liability standard on a facility for accidents that may occur to residents."
Woodstock Care Center, DAB CR623, at 15 (1999). An appellate panel of the Departmental Appeals Board reviewed the Woodstock case and stated that the ALJ correctly "identified the key issue as 'whether Petitioner failed adequately to supervise residents to prevent their injury from accidental causes.'" Woodstock Care Center, DAB No. 1726, at 17 (2000). A facility has an "affirmative duty" to provide adequate supervision to prevent accidents. Id. at 25; Southridge Nursing and Rehabilitation Center, DAB No. 1778 (2001). There is nothing in this case, however, to suggest that Petitioner gave "adequate" supervision to its residents. The nursing staff was not informed of the hole (it was stipulated that two of the nurses and one of the nurse aides assigned to that unit did not know that a hole in the floor had been cut (SOF 68)). The DOM and the project supervisor failed to inspect the interior of Room 67 for safety, thereby leaving a two and one half by five foot hole uncovered and unguarded. The room was not kept locked at all times; in fact, the room was not even locked immediately after the workmen left for the day. Resident 1 was allowed to enter into the area of construction. Although Resident 1's care plan did not require one on one supervision, in light of the hazardous conditions, closer supervision of all residents, including the resident in question, was required. Clearly, in light of the hazardous conditions, Resident 1 and the other mobile residents on that unit were not provided sufficient supervision adequate to prevent an accident.
The regulation at 42 C.F.R. § 483.25(h)(2) also requires that the facility ensure that each resident receives assistance devices to prevent accidents. CMS alleged that Resident 11 did not have dycem, a rubber mat which grips the floor and helps prevent falls, on the floor near the resident's bed, as directed in her care plan. Resident 11 had a history of falls, two of which resulted in fractures to her left ankle and right clavicle. CMS Ex. 21. The care plan identified Resident 11 to be at risk for falls, however the care plan was not changed after her first fracture. The surveyors found that the dycem, which was required by her care plan, was not on the floor beside Resident 11's bed. Petitioner alleged that the staff disputed the surveyor's findings, but does not support this argument beyond this statement. P. Reply Br. at 10. Petitioner also claims that Resident 11 was not ambulatory on May 20, 1999, and that she required staff assistance to meet all her activities of daily living (ADL). P. Sur Reply Br. at 20. As support, Petitioner points to an entry dated May 1, 1999, that stated that Resident 11 required staff assistance to meet all her ADLs. However, that entry does not prove what condition Resident 11 was in 19 days later on the day of the survey. Neither party provided me with evidence as to Resident 11's condition on the day of the survey. Since I have already found that Petitioner was not in substantial compliance with 42 C.F.R. § 483.25(h)(2) in Finding 2 above, I find it unnecessary to take further evidence on the condition of Resident 11.
The deficiencies under 42 C.F.R. § 483.25(h)(1) and (2) constitute immediate jeopardy. Falling through an uncovered and unguarded hole of this size to a floor 10 feet below was a danger of immediate jeopardy not only to Resident 1, but also to the 12 other mobile residents on that nursing unit. This hole was in an unlocked room off a hallway used by mobile residents. The regulations define "immediate jeopardy" as follows: "Immediate jeopardy means 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. The situation that existed at this facility was obviously likely to cause serious injury, harm, or impairment and actually did cause the death of a resident. In fact, Petitioner stipulated that an ad hoc quality assurance committee formed by Petitioner on May 20, 1999, determined that all the residents who were able to ambulate or to wheelchair about without assistance who resided on the unit where there was construction would also be at risk. Therefore, even Petitioner agreed that all mobile residents on the unit, which included the resident involved in this incident and 12 others, were at risk. The deficiencies under 42 C.F.R. § 483.25(h)(1) and (2), which were at an immediate jeopardy level, also constitute substandard quality of care, as defined in 42 C.F.R. § 488.301.
The facility must have adequate outside ventilation by
means of windows, or mechanical ventilation, or a combination of the two.
42 C.F.R. § 483.70(h)(2). During the survey, the surveyors determined
through observation and interviews that five semi-private rooms, Rooms
25, 26, 27, 65, and 66, involving 10 residents, had been completely enclosed
by the ongoing new construction. The fresh air supply to these rooms was
to be provided by personal through the wall heating and air conditioning
units (PTAC). There was no other available source of fresh air for these
rooms. The PTAC units are the sole source of fresh air, heat and air conditioning
to these rooms. These rooms were completely enclosed by new construction
and, therefore, the air supply for the PTAC derived completely from the
surrounding construction site. The new construction areas are subject
to such things as drywall dust, construction dust, fumes from sealants,
paints, tile adhesives and plumbing activities. Petitioner's mandatory inservice training program summary, dated June 1, 1999, stated that the rooms in question "did not have ventilation to the outside, they were ventilated from the construction area that could be hazardous to the resident." CMS Ex. 24, at 4. The facilities POC states that "duct work was provided to each heating unit in the identified rooms to meet the fresh air requirement." Id. Petitioner's admission that these rooms were in fact ventilated from the construction area creates a prima facie case that Petitioner did not rebut. Petitioner counters that its contract with Ciminelli-Cowper provided for sufficient air ventilation for the resident's rooms. Petitioner failed to support this argument beyond this bare assertion.
The facility must meet the applicable provisions of the
Life Safety Code of the National Fire Protection Association (LSC). A
deficiency was found during the May 21, 1999 survey concerning the protection
of vertical openings and the separation of hazardous areas. The LSC requires that a vertical opening between floors
be enclosed with proper construction having a fire-resistance rating of
at least one hour. As previously discussed above, a hole approximately
two and one half feet by five feet was cut into the floor of Room 67 that
opened directly into the boiler room on the floor below. The door to Room
67 opened directly into the corridor and was not self closing. Petitioner
admits that the hole was uncovered and, therefore, admits that it was
not in substantial compliance with this LSC standard. The LSC also requires that hazardous areas are separated by construction providing at least a one-hour fire resistance rating, or protected by an automatic sprinkler system. CMS alleges that construction taking place outside the north unit lounge and the short corridor were not properly separated from resident use areas and corridors in that the windows in these areas are not wired glass or the equivalent and do not provide the required protection. In addition, the door to the lounge is not self closing and the lounge opens into a resident corridor. Following the May 21, 1999 survey, Petitioner noted in its POC that it had placed correction drywall over the windows in the north unit lounge and at the end of the short corridor. CMS Ex. 24. This corrective action establishes prima facie evidence that Petitioner was not in substantial compliance with this requirement. Petitioner has provided no evidence to refute this.
The May 21,1999 survey identified several deficiencies, discussed above. These deficiencies resulted in the death of one resident and also put other residents in immediate jeopardy. These deficiencies affected its ability to provide the highest level of well-being for each resident.
The deficiencies discussed above show that the governing
body did not implement its own POC, and did not ensure that its residents
were in an environment that was as free of accidents as is possible. In
addition, the governing body did not ensure that the requirements of the
LSC were implemented. This amounts to a failure to comply with 42 C.F.R.
§ 483.75(d)(1). IV. Conclusion I find that Petitioner was not in substantial compliance with federal participation requirements for Medicare and Medicaid based on a survey conducted on May 20 - 21, 1999. |
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| JUDGE | |
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Richard J. Smith Administrative Law Judge
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| FOOTNOTES | |
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1. Also by letter dated May 25, 1999, the Centers for Medicare & Medicaid Services (CMS, formerly known as the Health Care Financing Administration), through the NYDOH, imposed a Directed Plan of Correction until Petitioner achieved substantial compliance on July 29, 1999. In addition, Petitioner was cited for substandard quality of care that resulted in the loss of approval of Petitioner's Nurse Aide Training and Certification Evaluation Program (NATCEP) until May 21, 2001. On May 25, 1999, the loss of NATCEP was not an appealable remedy. 42 C.F.R. § 498.3(d)(10)(iii) (1998). Effective July 23, 1999, the regulations were revised and the loss of NATCEP became an appealable sanction, but the new regulations had no retroactive effect. Lakewood Plaza Nursing Home, DAB No. 1767 (2001); 64 Fed. Reg. 39934, 39936 (1999). By letter dated July 2, 1999, CMS notified Petitioner that a denial of payment for new admissions would be imposed effective July 2, 1999. However, this remedy was never actually imposed, although it was never officially rescinded. 2. OSHA regulations require the use of personal fall arrest systems, covers, or guardrail systems erected around holes in the floor to protect employees from falling through holes of more than six feet above lower levels. 29 C.F.R. § 1926.501(b)(4)(i); P. Ex. 10. Contractors and subcontractors are to provide and install all required fall protection systems to protect employees before an employee begins the work that necessitates the fall protection. 29 C.F.R. § 1926.502(a)(2). When guardrails are used at holes, they are erected on all unprotected sides or edges of the hole. 29 C.F.R. § 1926.502(b)(11). Covers for holes in floors shall be capable of supporting at least twice the weight of employees, equipment and materials that may be imposed on the cover at any one time and shall be color coded or marked with the word "Hole" or "Cover" to provide warning of the hazard. 29 C.F.R. § 1926.502(i)(2) and (4). | |