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Department of Health and Human Services DEPARTMENTAL APPEALS BOARD Civil Remedies Division |
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Arcadia Acres, Inc., |
DATE: April 12, 2002 |
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Centers for Medicare & Medicaid Services
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Docket No.C-00-191
Decision No. CR887 |
| DECISION | |
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DECISION I sustain the
determination of the Centers for Medicare and Medicaid Services
(1) (CMS) to impose remedies against Petitioner, Arcadia Acres,
Inc., for failure to comply substantially with federal requirements governing
participation of long-term care facilities in Medicare and State Medicaid
programs. These remedies include an immediate jeopardy civil money penalty
(CMP) of $3,050.00 per day from October 8, 1998 through October 16, 1998,
a reduced CMP at a less than immediate jeopardy level of $50.00 per day
from October 17, 1998, until November 2, 1998, and denial of payment for
new admissions beginning October 31, 1988 and ending November 2, 1998. I.
Background This case came
before me pursuant to a request for hearing filed by Petitioner, Arcadia
Acres, Inc. on December 30, 1998, in accordance with section 1128A(c)(2)
of the Social Security Act ("Act") and 42 C.F.R. §§ 488.408(g), 498.40. On October
28, 1998, CMS informed Petitioner that it was imposing selected remedies
due to its failure to be in substantial compliance with the applicable
federal requirements for nursing homes participants. The survey,
conducted in October 1998, found the most serious deficiency to be a pattern
of deficiencies that constituted immediate jeopardy. In addition, the
deficiency cited at 42 C.F.R. § 483.25 was found to constitute substandard
quality of care. CMS concurred
with the State recommendation and imposed the following remedies:
On October
27, 1999, CMS sent Petitioner a revised notice reducing the number of
days for which a CMP of $3,050.00 per day was being imposed from 25 days
to 9 days. The revision provided for a CMP at the immediate jeopardy level
to begin on October 8, 1998, and end on October 16, 1998. After abatement
of the immediate jeopardy, but prior to attaining substantial compliance
on November 3, 1998, a CMP of $50.00 per day was imposed beginning October
17, 1998. CMS Ex. 71. During the course of a telephone prehearing conference held on July 30, 2001, CMS noted that the witness who would address deficiency examples regarding resident 16, under Tag 324, would not be available to testify at the upcoming hearing to commence on August 7, 2001. The witness, surveyor April Stine, was scheduled to attend training in Denver, Colorado. This surveyor's training was so important, according to CMS, that it took precedence over her appearance as a witness at the hearing. CMS added that in order for Ms. Stine to be available as a witness a postponement would have to be granted. In view of
the fact that the events leading up to these proceedings date back to
1998, and the case had been set for hearing in February 2001, I declined
to agree to a continuance. CMS chose to proceed with the hearing without
the testimony of Ms. Stine. Consequently, Respondent indicated that Ms.
Tanya Crouse, a surveyor, would testify to the findings that she had identified
as deficiencies under Tags 324 and 441. Petitioner withdrew the exhibits
it had previously offered with respect to resident 16, as these were no
longer necessary. At the hearing CMS offered these same withdrawn exhibits,
and pursuant to objection by Petitioner, I denied admission. CMS proposed
admission of those documents in order to file a post hearing motion for
partial summary judgment. I ruled against CMS' proposal as untimely. Tr.
at 165 - 167. A hearing was
held before me in Columbus, Ohio, on August 7 and 8, 2001. CMS originally
proposed 75 exhibits. However, some were later withdrawn, and others excluded
upon objection by Petitioner. The remaining following CMS exhibits were
admitted into evidence without objection: CMS Exhibits (CMS Exs.) 1 -
16, 18, 19, 21 - 41, 48 - 56, 61, 63 - 65, 69, 71, 73 (except for references
to Resident No. 16), and 74. Petitioner proffered two exhibits. These
were admitted into the record without objection as Petitioner's Exhibits
(P. Exs.) 1 and 2. Based on the
testimony offered at the hearing, the documentary evidence, the arguments
of the parties, and the applicable law and regulations, I find that from
October 8,1998 through October 16, 1998, Petitioner was not in substantial
compliance with Medicare participation requirements at the immediate jeopardy
level. A CMP of $3,050.00 per day for that period is appropriate. I further
find that CMS is authorized to impose a CMP against Petitioner at the
rate of $50.00 per day from October 17, 1998, through November 2, 1998.
CMS is also authorized to impose a denial of payment for new admissions
from October 31, 1998 through November 2, 1998. II.
Applicable Law and Regulations Petitioner
is considered a long-term care facility under the Act and regulations
promulgated by the Secretary of Health and Human Services (Secretary).
The statutory requirements for participation by a long-term care facility
are found at sections 1819 and 1919 of the Act and at Title 42 C.F.R.
Part 483. Sections 1819
and 1919 of the Act invest the Secretary with authority to impose CMPs
and denial of payment for new admissions against a long-term care facility
for failure to comply substantially with federal participation requirements. Pursuant to
the Act, the Secretary has delegated to CMS and the States the authority
to impose remedies against a long-term care facility that is not complying
substantially with federal participation requirements. 42 C.F.R. Part
488 provides that facilities which participate in Medicare may be surveyed
on behalf of CMS by State survey agencies in order to ascertain whether
the facilities are complying with federal participation requirements.
42 C.F.R. §§ 488.10 - 488.28. The regulations contain special survey conditions
for long-term care facilities. 42 C.F.R. §§ 488.300 - 488.335. Under Part
488, a State or CMS may impose a CMP against a long-term care facility
where a State survey agency ascertains that the facility is not complying
substantially with federal participation requirements. 42 C.F.R. §§ 488.406,
488.408, 488.430. The penalty may start accruing as early as the date
that the facility was first out of compliance until the date substantial
compliance is achieved or the provider agreement is terminated. The regulations
specify that a CMP that is imposed against a facility will fall into one
of two broad ranges of penalties. 42 C.F.R. §§ 488.408, 488.438. The upper
range of CMPs, of from $3,050 per day to $10,000 per day, is reserved
for deficiencies that constitute immediate jeopardy to a facility's residents,
and in some circumstances, for repeated deficiencies. 42 C.F.R. §§ 488.438(a)(1),
(d)(2). The lower range of CMPs, of from $50 per day to $3,000 per day,
is reserved for deficiencies that do not constitute immediate jeopardy,
but either cause actual harm to residents, or cause no actual harm, but
have the potential for causing more than minimal harm. 42 C.F.R. § 488.438(a)(2). The regulations
define the term "substantial compliance" to mean "a level of compliance
with the requirements of participation such that 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. "Immediate
jeopardy" is defined to mean "a situation in which the provider's non
compliance with one or more requirements of participation has caused,
or is likely to cause, serious injury, harm, impairment, or death to a
resident." Id. In determining the amount of the CMP, the following factors specified at 42 C.F.R. § 488.438(f) must be considered:
When a CMP
is imposed, CMS must make a prima facie case that the facility has failed
to comply substantially with federal participation requirements. To prevail,
a long-term care facility must overcome CMS' showing by a preponderance
of the evidence. Hillman Rehabilitation
Center, DAB No. 1611 (1997); aff'd,
Hillman Rehabilitation Center
v. United States, No. 98-3789 (GEB) (D.N.J. 1999). The Act and
regulations make a hearing before an Administrative Law Judge available
to a long-term facility against whom CMS has determined to impose a CMP.
Act, sections 1128A(c)(2); 42 C.F.R. §§ 488.408(g), 498.3(b)(12), (13).
The hearing before an Administrative Law Judge is a de novo proceeding.
Anesthesiologists Affiliated,
et al, DAB CR65 (1990), aff'd,
941 F2d. 678 (8th Cir. 1991). III.
Issues A. Whether
there is a basis for the imposition of remedies against Petitioner. B. Whether
the amount of the penalty imposed by CMS is reasonable, if noncompliance
is established. IV.
Findings and Discussion The findings of fact and conclusions of law noted below are followed by a discussion of each finding.
The applicable
regulation at 42 C.F.R § 483.25(h)(2), entitled "Quality of care," provides: The facility must ensure that each resident receives adequate supervision and assistance devices to prevent accidents.
Based on interviews
and record reviews during the course of a standard, extended Life and
Safety Code survey, the State agency determined that a fall risk assessment
completed on December 10, 1997, indicated that R42 was at high risk for
falls due to confusion, a history of repeated falls, poor vision, balance
problems, and being chair-bound. He required extensive assistance from
staff for transfers and ambulation. From January
17, 1998 to October 10, 1998, R42 experienced multiple falls. There were
occasions when he was found on the floor without injury. On several occasions,
however, he received injuries consisting of frank bleeding with a raised
area and a laceration on the head, a bump on the head with a laceration,
a lump on the forehead, a skin tear on the nose, bruise to the left shoulder,
a cut on the right eyelid requiring two sutures, and a laceration on the
buttock resulting in five sutures. It was confirmed that side rails were
not utilized for this resident. An interview
with the administrator on October 9, 1998 revealed that prior to 1998,
R42 had a personal alarm implemented which was to be used at all times
to prevent falls. There was no evidence in the nurse's notes at the time
of the falls or episodes of being found on the floor to indicate whether
the resident's personal alarm was in place and operational. The surveyor
also ascertained from dialog with the administrator that from June 25,
1998 to October 8, 1998, there were no changes in the interventions in
the case of R42 to prevent falls or accidents. The care plan was silent
as to interventions mentioned by the facility such as the placement of
a seat alarm. The administrator stated that on June 18, 1998, the resident
destroyed the seat alarm and it was no longer utilized. However, it was
used again. On October
8, 1998, the administrator reported that on June 25, 1998, a bean bag
was used as an intervention to prevent injury by sliding out of the wheelchair
or falling when the resident was not at meals or in bed. The wheelchair
was to be used only at mealtime. During breakfast, this would be from
7:30 a.m. to 8:30 a.m. Nonetheless, on October 8, 1998 at 9:45 a.m. R42
was observed entering the elevator on the second floor without staff assistance
and riding to the first floor. Tr. at 45, 46, 128, 129; CMS Ex. 8 at 15,
17, 22. An interview
with the administrator on October 8, 1998, confirmed that no additional
interventions were deployed after June 25, 1998, in spite of the fact
that R42 continued to experience falls resulting in injuries. Tr. at 45;
CMS Ex. 8 at 15. The administrator
was interviewed again on October 9, 1998, and he revealed that the facility
had no system in place to monitor if other residents who utilized personal
alarms had them in place and if they were operational. Ms. Tanya Crouse,
a surveyor with the Ohio Department of Health, testified that she conducted
annual certification and annual State licensure surveys from October 6,
1998 to October 10, 1998. Tr. at 19, 20. She identified an immediate jeopardy
violation on October 8, 1998 based on the number of falls and the accidents
that were experienced by the residents, the length of time over which
the accidents occurred, the number of serious injuries to the residents,
and the likelihood of recurrence. Tr. at 22, 26. The surveyor
noted with concern approximately 40 episodes of falls or being found on
the floor by R42. This resident was cognitively impaired with a diagnosis
of dementia. He also suffered from syncopes, glaucoma, and cataracts.
Resident Number 42 required extensive assistance from staff for transfers
and ambulation. Tr. at 27. As an aggravating risk factor for falls, was
this resident's proclivity for attempting to get up as well as reaching
out for things without requesting staff assistance. Tr. at 28. Ms. Crouse
summarized R42's falls where he suffered injuries, from January 1998 to
October 1998, as follows:
The surveyor
also referred to other instances when the resident fell but no apparent
injuries were discernible:
The surveyor
offered a final example where R42 suffered injury attempting to reach
for items without seeking assistance. In this regard Ms. Crouse stated
that on May 12, 1998, R42 bent over in his wheelchair to pick up a wash
cloth and hit his nose on the corner of his table. The resulting bleeding
laceration was treated with sterile strips. However, shortly thereafter,
he leaned over again and hit the same area of his nose on the night table
a second time. On this occasion he fractured his nose and the sutures
he had previously received to his buttocks on May 10, 1998, came open.
Tr. at 36, 37; CMS Ex. 22 at 20; P. Ex. 1 at 128. According to
Ms. Crouse, in spite of all the incidents in which R42 suffered injuries,
as well as those occasions when he fell, but there was no visible sign
of injury, the facility did very little to prevent the type of accident
repeatedly experienced by the resident. From January 1998 to May 1998
no new interventions were implemented. From May 28, 1998 to June 25, 1998,
R42 received physical therapy for one month and grab bars were installed
beside the commode. Ms. Crouse indicated that although the administrator
stated in an interview that different ways of attaching the personal alarm
were attempted, there was no mention of that in the care plan. On June
25, 1998, a bean bag was ordered for R42 for when he was not in bed or
at meals. However, on October 8, 1998, at 9:45 a.m., the resident was
observed in his wheelchair and riding on the elevator by himself. The
failure of the facility staff to assist the resident in his desire to
visit another floor exemplifies its disregard for his safety. Ms. Crouse
was of the opinion that there were measures that the facility could have
undertaken to protect R42 from accidents, but failed to do so. She suggested
that the facility could have taken the following actions:
Petitioner
admits that although R42 was at risk for falls and needed extensive assistance
from staff for transfer and ambulation, he was allowed to move about freely
in his wheelchair. P. Br. at 16. This is underscored by Ms. Crouse's observation
of the resident's unassisted entry into the elevator on October 8, 1998,
at a time when according to the care plan, he should have been in a bean
bag provided for use when not in bed or at meals. Petitioner argues that
by referencing that incident, Ms. Crouse incorrectly implied that the
bean bag chair provided to R42 was ineffective. Petitioner fails to see
the import of the surveyor's testimony on this point. Ms. Crouse's testimony
did not highlight the inefficacy of the bean bag as an intervention, but
rather, the inefficacy of the facility's supervision. If the facility
was unable to persuade R42 to remain in his bean bag chair during the
prescribed periods, close supervision should have been brought to bear
while he was in his wheelchair wandering about the facility. As Ms. Crouse
stated, there was nothing wrong with the resident conveying himself down
the hall to the elevator in his wheelchair. Tr. at 127. It was wrong,
however, for the facility to allow the resident to roam the facility without
adequate assistance and supervision. The frequent falls and serious injuries
suffered by R42 outweighed whatever desire he may have had to roam the
facility unassisted. Petitioner
points out that the surveyor never considered it an issue that the medications
that R42 was taking might have side effects causing his injuries. P. Br.
at 16. But, why would she? At the time of the survey, the facility had
not suggested medication side effects as a possible reason for the resident's
frequent falls. At the hearing, Petitioner advanced the theory that medication
side effects may account for the resident's falls, but failed to present
credible evidence in support thereof. (2)
Petitioner's dissertation on the clinical manifestations of syncopes is
mere conjecture, at best. P. Br. at 2 - 24. There is no indication in
the medical charts or by way of credible testimony that R42 was experiencing
frequent falls due to recurring episodes of syncope. However, even if
the two factors theorized by Petitioner played a role in the resident's
recurrent accidents, that should have placed the facility on heightened
alert as to the resident's safety. Petitioner places itself in a very
poor light by attributing R42's falls to medication effects and syncopes
in the face of a record that is silent as to measures taken by the facility
to address falls due to those factors. It is Petitioner's additional contention that neither R42 nor his family favored the use of restraints. The argument has a hollow ring inasmuch as the surveyors did not cite the facility for failure to use restraints. P. Br. at 16. Moreover, Petitioner acknowledges at page 18 of its brief that Ms. Crouse did not suggest restraints as a viable intervention. Ms. Crouse
did mention that the facility failed to monitor the use of the personal
alarm. As stated earlier, the administrator admitted that the facility
had no system in place to monitor the use and proper operation of personal
alarms. She also suggested closer supervision. This could have been accomplished
by more frequent checks or by moving the resident to a room closer to
a nurses station. The latter would have provided closer surveillance without
the possible need for one-on-one supervision. Initially, the facility
had R42 on a two-hour schedule. Tr. at 273. As will be noted later, the
periodic checks by staff became more frequent after the survey commenced. Ms. Crouse
also suggested that a low bed would help prevent falls. It had been Petitioner's
view that staff did not want the resident "to fall trying to get up and
out from a low bed, particularly since it would be easier to get into
his wheelchair from the [regular] bed than to crawl into it or try to
pull up from the floor." P. Br. at 18, f.n. 10. That view is unconvincing
because it was incumbent upon the facility to provide extensive assistance
and supervision to R42 for transfers and ambulation. CMS Ex. 8 at 12.
Thus, there was no need for the resident to exert the effort described
by Petitioner in order to accomplish an unassisted transfer. Petitioner's
argument here, is an implied acknowledgment of its failure to provide
the resident extensive assistance with transfers and ambulation. That
explains why, at times, the resident suffered injuries while attempting
to negotiate his way to the bathroom unassisted. In light of the facility's
failure to provide timely assistance for toileting, R42 had to fend for
himself. I have already referenced instances where he was found either
in his room or bathroom floor sitting in urine or blood. Additionally,
these instances and others where the resident was seriously injured to
the point of requiring sutures cannot be taken idly or ignored by the
simplistic explanation that R42 liked being on the floor.
(3) That argument does nothing to explain the multiple instances
where the resident was found on the floor with lacerations, bruises, bumps,
gashes, and cuts. The only reasonable inference that I can draw is that
on those occasions the resident fell. Moreover,
I find that the facility failed to provide assistance devices and have
a system to put these devices in place, resulting in harm and serious
injury to R42. Throughout
the period at issue, Petitioner attempted to encourage R42 to use the
call light for assistance, but without success. Although Ms. Crouse was
unable to testify regarding the resident's cognitive ability to make use
of the call light, from the evidence of record as a whole, it is questionable
that he was able to do so. Tr. at 40, 41. Petitioner acknowledges that
R42 suffered from organic brain syndrome and dementia. P. Br. at 16. Furthermore,
the facility documented moments of forgetfulness and confusion. CMS Ex.
74, at 8, 9, 10, 14. The resident repeatedly got out of bed or his wheelchair
unnoticed and unassisted, yet Petitioner failed to consider whether its
reliance on R42's ability to use the call light was mere illusion. After R42 fell
from his bed on October 3, 1998 and required sutures in the right eyelid,
the facility began to implement the interventions recommended by the surveyor.
This change in direction occurred on October 9, 1998, when the facility
began to employ specific safety measures to protect the resident from
additional accidents. The nurses' notes for that date reflect that a low
mattress with a defined perimeter was deployed, and proper monitoring
of the personal alarm was instituted. CMS Ex. 74 at 16. On October 12,
1998, the facility began closer supervision by conducting hourly checks
instead of at two hour intervals as had been the case previously. Tr.
at 273. Closer supervision was also facilitated by moving R42 to a room
near the nurses station. CMS Ex. 74 at 18. The implementation
of the previously mentioned interventions proved to be effective. Pertinent
to this is the fact that from the time of the October 1998 survey, the
resident experienced no more falls or incidents of being found on the
floor. Tr. at 56. Conversely, other interventions attempted prior to the
October 1998 survey proved to be ineffective. From May 28 to June 25,
1998 (4), R42 underwent physical therapy
evaluation and received physical therapy for one month. The facility administrator
indicated that during that same period different ways of attaching the
personal alarm were attempted, however, there was no evidence of that
in the care plan. Tr. at 44. Also in the month of June, grab bars were
installed beside the commode, and a bean bag chair was ordered to be used
by R42 when he was not in bed or at meals. A chair sensor alarm that had
been obtained for the resident was no longer in use because it was destroyed
by the resident. Thereafter, the facility implemented the use of a personal
alarm. After these interventions were attempted, R42 continued to experience
falls, and the facility took no other measures until after the October
1998 survey. The results of implementing the interventions recommended
by the surveyor became very obvious after the survey. Not only did the
resident not suffer additional falls, but was also responsive to closer
monitoring. For example, on October 27, 1998 at 6:30 a.m., when he pulled
the wires out of the chair alarm, the staff put on a different chair alarm
and instituted 15 minute checks. The resident did not interfere with the
use of the alarm again, and the staff continued to closely monitor its
proper functioning. This is in stark contrast with the facility's approach
in June 1998. At that time when the resident destroyed the chair alarm,
they simply discontinued its use. In the absence
of a fall prevention program, the facility staff appeared oblivious to
proper interventions that would have provided assistance and supervision
to R42 . This failure was acknowledged by the facility administrator.
CMS Ex. 8 at 16. Through testimonial
and documentary evidence CMS established a prima facie case of Petitioner's
noncompliance with federal participation requirements for nursing homes
under Medicare and Medicaid. Specifically, CMS clearly demonstrated that
Petitioner failed to ensure that each resident receives adequate supervision
and assistance devices to prevent accidents as mandated by 42 C.F.R. §
483.25(h)(2). Petitioiner, on the other hand, has not met its burden of
overcoming Respondent's showing by a preponderance of the evidence. From the foregoing discussion, I conclude that Petitioner's actions not only were likely to cause serious injury, harm, impairment, or death to R42, but in fact resulted in serious injury and harm. This constitutes immediate jeopardy.
State
surveyor findings, CMS Ex. 8 at 16 - 19. Record review revealed that R24 had long and short term memory impairments. A fall risk assessment completed on April 10, 1998, identified this resident as high risk for falls. A review of
the nurse's notes showed that on August 9,1998, at 2:45 a.m. R24 was observed
sitting on the floor of her room with no apparent injury, and the floor
was wet with urine. No assessment was made of the fall nor was a change
made in the care plan. On August 26,
1998, at 2:00 a.m., R24 was observed on the floor next to her bed crying
for help. She was incontinent of urine and stool, and complained of pain
in the right hip and stomach, although no discernible injury was noted.
The following day a physical therapy screening was done, but no recommendation
for evaluation was made due to her cognitive status. The administrator
reported on October 8, 1998, that on August 28, 1998, the resident had
been moved from the first floor to a room on the second floor where she
could be closer to the nurses station, and where her roommate could call
for help if she attempted to get up. The new room was about 75 feet from
the nurses station. CMS Ex. 14; Tr. at 69. No further aggressive interventions
were taken. At 2:00 a.m.
on September 8, 1998, R24 was found sitting in the hallway in a puddle
of urine. Tr. at 70 - 71. There was evidence of edema on her right foot,
and she complained of pain in the right wrist. X-rays revealed a fracture
of two bones in the right wrist. P. Ex. 2 at 28. The administrator reported
on October 8, 1998, that as a result of this fall a personal alarm was
to be obtained to be used by the resident when she was in bed. The alarm
had to be ordered because, the facility did not have them in stock, and
it was received on September 14, 1998. No mention of this intervention
was made in the care plan. The administrator further indicated on that
same date that the facility had no system in place to ensure that the
personal alarm was being utilized and was operational. Tr. at 73. It was also
noted that the Minimum Data Set of July 15, 1998, indicated that R24 wore
glasses. The care plan provided for reminders to the resident to wear
her glasses to prevent injury related to visual problems. The State agency
concluded that the failure of the facility to supervise R24 and to ensure
that needed assistive devices were implemented and revised contributed
to falls resulting in a fractured wrist. Discussion Ms. Tanya Crouse
testified that R24 was cognitively impaired due to dementia.
(5) Her other diagnoses included high blood pressure, diabetes
mellitus, coronary artery disease, peripheral vascular disease, congestive
heart failure, syncope, and visual impairments. Consequently, the facility
deemed her to be at high risk for falls and in need of assistance for
ambulation. Tr. at 60, 61. The surveyor
noted that the facility implemented interventions that centered around
making a call light available to the resident, and encouraging her to
ask for assistance. Tr. at 65. No additional interventions were put in
place in spite of the resident's fall on August 9, 1998. The surveyor
stated that on October 8, 1998, the facility administrator acknowledged
that no change was made to the care plan nor were new interventions undertaken
to prevent falls. Tr. at 66. Ms. Crouse noted that when the resident was found on the bedroom floor crying for help and incontinent of urine on August 26, 1998, the facility did a physical therapy screening. However, no recommendations were made due to her cognitive impairment. Tr. at 67; P. Ex. 2 at
22. Thus, physical therapy resulted in an ineffective intervention. As an additional
intervention, the facility moved the resident from the first floor to
the second floor so that she could be more closely monitored by staff
at the nurses' station. Tr. at 68. Ms. Crouse deemed this latter intervention
to be ineffective because the resident was assigned a room approximately
75 feet from the nurses station. Tr. at 69. The surveyor also found that
it was inappropriate for the facility to depend on a roommate to alert
staff if R24 attempted to get up without assistance. Tr. at 70. Ms. Crouse
further testified that when R24 fell on September 8, 1998, and fractured
her right wrist, the only new intervention was that of toileting every
two hours. The facility also intended to employ a personal alarm device,
but one did not become available until the 14th of September.
The personal alarm was not an effective intervention, however, until the
facility put a monitoring system in place. Tr. at 72. Ms. Crouse
observed that on October 8, 1998, she perceived a pattern that revealed
that the resident's falls occurred around 2:00 a.m. and on each occasion
R24 had been incontinent. The surveyor also noted that the resident was
not wearing her glasses. In this regard, Ms. Crouse testified that the
nursing assistant working on that unit expressed unawareness that the
resident had glasses. Additionally, the social services person did not
know where the resident's glasses were. Petitioner's contention that R24
needed glasses for small print when reading does not establish that she
did not also need them for better general visual acuity. The facility
also failed to provide a reasonable explanation for not ensuring that
the resident had her glasses with her as required by the care plan, regardless
of what she needed them for. As noted earlier, the staff could not account
for the whereabouts of the resident's glasses when approached on the matter
nor did staff even appear to be aware that R24 had glasses. Tr. at 74. Petitioner
claims that there is no evidence that R24 fell on any of the occasions
referred to in the statement of deficiencies. Pertinent to this is the
testimony of the facility administrator, Ms. Dina Riley, who stated with
respect to the incident of August 9, 1998, that because the resident had
dementia and it was the middle of the night, she may have decided to sit
on the floor. Tr. at 246. (6) Ms. Riley
was also of the opinion that the absence of bruises or other discernible
evidence of injury detracted from the conclusion that R24 fell on August
9, 1998. Tr. at 247. Ms. Riley added
that at the time of R24's fall on August 9, 1998, it was determined that
the resident had a urinary tract infection (UTI). In her estimation that
was significant because the pain and discomfort produced by that condition
is so severe so as to be crippling. She cited her own experience of crawling
on the floor for a few days when afflicted with UTI. Tr. at 246, 247;
see also
P. Reply Br. at 4. Though not going so far as to conclude that R24 fell
due to pain and discomfort from the UTI, she insinuated the possibility
of a connection between the infection and the fall. She failed, however,
to point to evidence in the record that showed complaints by R24 of crippling
pain. Elsewhere Petitioner
attributed the falls suffered by R24 to side effects from medication and
syncope. P. Reply Br. at 4. I am not persuaded
that R24 chose to sit by a puddle of urine at 2:00 a.m. on August 9, 1998.
The fact that she had dementia is not a valid argument in support of the
exercise of such will. This conclusion is further reinforced by the fact
that when she was found on the floor under similar conditions at 2:00
a.m. on August 26, 1998, she was screaming for help. Petitioner's argument
that CMS did not show that the fracture suffered by R24 occurred as a
result of the fall on September 8, 1998, is also misplaced. I find that
when the resident was found on the floor at 2:00 a.m. on September 8,
1998 in a puddle of urine complaining of pain in the right wrist and exhibiting
an edema of the right foot she had experienced a fall. The record is silent
as to any complaint on the part of R24 regarding pain in her wrist prior
to that incident. Furthermore, it is only in the wake of the September
8, 1998 fall that she was found to have a fracture of the right wrist.
The indication by the radiologist that the fracture was of unknown age
is not sufficient evidence upon which to conclude that it could not have
occurred on September 8, 1998. However, it would be irrelevant even if
actual harm did not occur. Immediate jeopardy encompasses situations where
there is a likelihood of serious harm. Fairfax
Nursing Home, Inc., DAB No.1794, at 14 (2001). Interestingly
enough, Petitioner seeks to explain the falls suffered by R24 by saying
that she did not fall at all or that if she did fall it was due to her
medical condition or side effects of medication. P. Reply Br. at 4. The
issue under consideration here is so simple, however, that Petitioner
is blinded by its sheer simplicity. The question is not so much why the
resident fell. The crucial matter is what preventive measures were undertaken
by Petitioner to prevent R24 from falling. Petitioner may be absolved
of any deficiency if it can show that it deployed appropriate interventions
in order to provide the resident with adequate supervision and assistance. Petitioner
knew that R24 had diagnoses that made her vulnerable to falls. It had
noted in the care plan that R24 was at risk for falls as evidenced by
loss of balance and unsteady gait. P. Ex. 2 at 13. Nonetheless, Petitioner
was lacking in aggressive measures in order to provide the resident with
a safe environment. CMS has clearly
established a prima facie case that Petitioner failed to provide R24 with
adequate supervision and assistance devices to prevent accidents. Petitioner
has made but feeble attempts to overcome the burden met by CMS. This is
exemplified by Petitioner's attempt to show through Ms. Riley's testimony
that R24's move to room 202 was an effective intervention. In support
of this argument, the facility offered the following reasons:
Admittedly,
the facility only had two staff members on the second level during the
night shift. Tr. at 250. These two nurse aides, according to Ms. Riley,
were doing laundry all night long. In addition, they were assigned the
care of the men in the far end of the wing, in the portion of the second
level most distant from room 202. Some of the male residents required
frequent visits at night for such treatment as respiratory therapy. Tr.
at 273. In view of all those chores, it would not appear that the two
night shift aides assigned to the second level had much time left to make
the 12 to 15 visits to care for R24's roommate. Moreover, I find the hit
or miss approach taken by Petitioner to the care of R24 highly deficient.
Instead of planning an aggressive supervision of R24 to prevent accidents,
Petitioner relied on the possibility of staff catching a glimpse of the
resident when staff went to her room for the purpose of caring for her
roommate. Petitioner had R24 on a two hour check, but made up to 15 visits
a night to her roommate for such matters as toileting, moving her feet,
and covering her head. I also note that while the aides were in the laundry or in the men's wing, they were not in view of room 202. In fact, the laundry is a good distance from room 202, and according to the facility floor plan, offered no view to any of the rooms in that wing. CMS Ex. 14. It is worthy
of mention that Petitioner deemed R24 to be an elopement risk when she
was awakened at night for administration of antibiotics. Because she was
observed wandering around the facility quite frequently at night, a Wanderguard
was applied. (7) This device, however,
may not be considered a fall prevention intervention. Furthermore, its
use raises the concern that the facility was allowing the resident to
ambulate freely without assistance in spite of the fact that she had been
determined to be at high risk for falls. In that regard, I infer that
if staff were to enter room 202 to provide care for the other resident,
and did not see R24, it would not be cause for alarm inasmuch as the facility
felt she was safe enough wandering inside, and protected from elopement
by the Wanderguard. A final example
of Petitioner's misplaced attempt to overcome CMS's prima facie case regards
Ms. Riley's testimony to the effect that when R24 was found on the floor
on August 9, 1998, UTI was suspected as a cause and urine testing was
ordered, and antibiotics administered. Tr. at 247. However, as respondent
correctly points out, urine test for suspected UTI had been ordered on
August 5, several days prior to the resident's fall. CMS Reply Br. at
8. Inasmuch as the action taken to treat the resident's UTI was totally
unrelated to her being found on the floor, it is disingenuous of Petitioner
to say that "we decided to do labs and find out if she did have a urinary
tract infection". Tr. at 247; see
also P. Ex. 2 at 40. Petitioner
fails to see that if UTI is such a crippling condition as it claims, and
there was evidence of its possible existence prior to August 9, 1998,
the facility should have provided for the care of R24 with a heightened
sense of alertness. Sadly, such was not the case. It was not
until the monitoring visit of October 17, 1998, that Ms. Crouse was able
to verify that the facility was properly monitoring the use of the personal
alarm. Tr. at 74. In view of the foregoing, I find that CMS has established a prima facie case of noncompliance, and Petitioner has not come forward with persuasive evidence to overcome CMS' showing. Moreover, Petitioner's actions not only were likely to cause serious injury, harm, impairment, or death to R24, but in fact resulted in serious injury and harm. This constitutes immediate jeopardy.
I have concluded
that Petitioner was not in substantial compliance with 42 C.F.R. § 483.25(h)(2).
See also
42 C.F.R. § 498.60(c)(2). Koester
Pavilion, DAB No. 1750 (2000). It has been unequivocally established
that Petitioner failed to provide adequate supervision and assistance
devices to Residents 42 and 24 to prevent accidents. R42 had been
determined by the facility to be at high risk for falls due to confusion,
poor vision and imbalance problems. Consequently, extensive assistance
from staff for transfers and ambulation was necessary. Nonetheless, R42
suffered multiple falls from January 1998 to October 1998, resulting in
serious injuries. I had previously
mentioned the absence of interventions from June 25, 1998 to October 8,
1998. Moreover, those interventions that were applied from January 1998
until June 25, 1998 were ineffective. The facility's inability to protect
its residents from falls is not surprising in the absence of a fall prevention
program. The failure to have such a program was acknowledged by the administrator
on October 9, 1998. She also acknowledged that the facility had no system
to monitor if personal alarms being used were in place and operational.
CMS Ex. 8 at 16. It was not
until October 10, 1998, that Petitioner put into effect a fall prevention
program. The staff was in-serviced on theses new procedures on October
14, 1998. CMS Ex. 69; P. Br. at 20. In the newly
adopted fall prevention program, Petitioner finally appeared to show a
greater measure of insight when dealing with cognitively impaired individuals.
Pertinent to this is the language found in Petitioner's new fall prevention
program:
CMS Ex. 69
at 2. Consistent
with the new approach, Petitioner took on a more earnest view of fall
prevention measures commencing on October 9, 1998. This is evident from
the nurses notes regarding R42 at CMS Ex. 74, page 16 and following. As
stated earlier, at that time Petitioner took heed of the surveyor's recommendation
to provide R42 with a low bed, and increased supervision with more frequent
checks. Enhanced supervision was also achieved by moving R42 close to
the nurses station, and monitoring personal alarms. Prior to those effective
measures, the facility appeared to be unconcerned with its resident's
safety. This attitude is exemplified by its denial throughout these proceedings
that R42 ever fell; contending that if the resident was found on the floor,
it was reflective of a chosen lifestyle. I cannot reconcile such a posture
with the recurrent bruises, cuts, lacerations, bumps, fractures, and bloodletting
experienced by R42. Petitioner's alternative explanation that if R42 fell,
it was due to his medical condition or side effects from medication is
also unavailing in the absence of a showing that it took aggressive action
to prevent the resident from falling because of those reasons. Having
said that, I should also note that the record contains no credible medical
evidence to substantiate Petitioner's claim. Resident 24
was also identified as being at high risk for falls. CMS Ex. 8 at 16.
Due to incontinence problems she was on a TIAN (toileting in advance of
need) program every two hours. Tr. at 273; P. Ex. 2 at 2. From August
9, 1998 to September 8, 1998, R24 suffered three falls. On each of those
instances she was found incontinent on the floor between 2:00 a.m. and
2:45 a.m. There is no evidence that staff was present at 2:00 a.m. to
assist with toileting. Assuming that the facility was complying with the
TIAN program, there is no indication that adjustments were made after
the first or second falls. This resulted in the third fall on September
8, 1998, where she suffered serious injury consisting of a fractured wrist. After the second
fall by R24 on August 26, 1998, R24 was referred for physical therapy
evaluation, and moved to a room on the second level. None of these interventions
were effective. She could not participate in physical therapy due to her
cognitive deficits and the room she was assigned on the second floor was
too far removed from the nurses station to allow for closer supervision. When R24 fell
and fractured her wrist on September 8, 1998 Petitioner ordered a personal
alarm which was obtained a week later. That also was an ineffective intervention
because the facility did not have a system to ensure that the alarm was
in place and operational. Although the
interdisciplinary care plan called for ensuring that the resident wear
her glasses to prevent injuries related to vision deficits, staff was
unaware that R24 even had glasses. Tr. at 74; P. Ex. 2 at 9. In view of
the foregoing, I find that Petitioner failed to provide its residents
with the necessary care and services to attain or maintain the highest
practicable physical, mental, and psychosocial well-being. 42 C.F.R. §
483.25. Specifically, Petitioner did not have a written fall prevention
program in place that was properly communicated to staff. This contributed
to an unsafe environment lacking in supervision and assistance devices
to prevent accidents. 42 C.F.R. § 483.25(h)(2). The frequency of the falls
and the serious injuries suffered by the residents, coupled with the facility's
lackadaisical attitude are evidence of deficiencies at the immediate jeopardy
level. Furthermore,
the record discloses that Petitioner failed to protect other residents
from accidents similar to the falls experienced by R42 and R24. Pertinent
to this is the facility administrator's report of October 6, 1998, stating
that during the months of June, July, and August 1998, other residents
suffered falls resulting in injuries. The number of falls involving all
residents during that period totaled 36. CMS Ex. 22 at 7. The interventions implemented by the facility after the October 1998 survey began were verified by CMS during the monitoring visit of October 17, 1998. Thus, CMS determined that Petitioner was not in substantial compliance at an immediate jeopardy level from October 8, 1998 until October 16, 1998. Petitioner argues that the immediate jeopardy finding should have ended on October 14, 1998, when the facility conducted in-service of its fall prevention protocol. P. Br. at 20. I disagree. It was appropriate for CMS to find that the immediate jeopardy was abated on October 16, 1998, when it was ascertained that the corrective interventions had not only been applied but also remained in place and operational. CMS' finding of immediate jeopardy is, therefore, not clearly erroneous. 42 C.F.R. § 498.60(c)(2).
CMS has satisfied
the criteria for imposing remedies at the less than immediate jeopardy
level. First CMS established a prima facie case, which Petitioner did
not rebut, that as of October 8, 1998, it was not complying substantially
with the participation requirements at 42 C.F.R. § 483.25(h)(2). Indeed, there
is not only a prima facie case of noncompliance present here, but the
preponderance of the evidence is that Petitioner was not complying substantially
with this requirement. Second, Petitioner did not show that it had eliminated
the noncompliance on any date prior to November 2, 1998. On October
17, 1998, an interview with a registered nurse revealed that R42 was to
have a chair sensor and personal alarm when he was up. However, the surveyor
noted that R42 was in a bean bag chair with a personal alarm, but no chair
sensor. The nursing assistant was under the mistaken impression that the
resident was to have only the personal alarm when he was up. CMS Ex. 27
at 3. Petitioner
contends that there is no basis for a finding of deficiency until November
2, 1998, because the last intervention recommended by the surveyor, was
implemented on October 21, 1998. At that time, says Petitioner, R42 was
provided with non-skid socks while in bed. (8)
Petitioner overlooks that it was not until October 31, 1998, that R24
was moved from room 202 to room 208, which was very close to the nurses
station, and enhanced her supervision. CMS Ex. 34 at 1; CMS Ex. 14. Furthermore,
during the revisit of November 3, 1998, the surveyors verified that subsequent
to the October 17 monitoring visit the facility took corrective action
with respect to other residents that were at risk for falls. Several had
been provided personal alarms, and proper monitoring was verified. The
surveyors also reviewed the morning stand up meetings and interviewed
staff to ascertain correct understanding of the new fall prevention procedures.
They noted that on October 19, 1998 the medical director attended the
meeting and identified the residents that were at risk and needed interventions.
CMS Exs. 34, 35. From the information the surveyors obtained on November
3, 1998, they were persuaded that the facility had returned to substantial
compliance. Consistent with that finding they observed that no additional
falls occurred between October 17, 1998 and November 2, 1998. Thus, it
was their conclusion that although the facility had abated the immediate
jeopardy by October 17, 1998 there still remained deficiencies that posed
a widespread potential for more than minimal harm until November 2, 1998. I find, therefore, CMS may impose a penalty of $50 per day beginning October 17, through November 2, 1998.
State
surveyor findings (CMS Ex. 64 at 25 - 27) 42 C.F.R §
483.65 requires the facility to establish and maintain an infection control
program designed to provide a safe, sanitary, and comfortable environment
and to help prevent the development and transmission of disease and infection.
Part of this regulatory provision requires that staff wash their hands
after each direct resident contact for which hand washing is indicated
by professional practice. 42 C.F.R. § 483.65(b)(3). On October
7, 1998, the State surveyor observed while a nurse rendered care to R9.
The nurse put on a pair of gloves and proceeded to administer medications
through the gastrostomy tube. CMS Ex. 64. When she was done, and without
changing her gloves, the nurse hooked up an aerosol treatment to the resident's
tracheotomy. Id. Still
wearing the same gloves, the nurse then applied eye drops to the resident's
eyes. Id. While administering
the medication, she touched the area around the resident's eyes. Id. R9's record
revealed that he had a staph infection in the sputum on July 24, 1998,
August 7, 1998, and September 11, 1998. CMS Ex. 22 at 6; Tr. at 91. An interview
with the director of nursing (DON) confirmed that the nurse should have
changed her gloves and washed her hands after each type of treatment.
Review of the facility's policy confirmed that requirement. Tr. at 92
- 96 Discussion Ms. Tanya Crouse
testified that the facility policy she reviewed concerning tube feedings,
tracheostomy care, and instillation of eye medication required staff to
wash hands before and after all procedures. The failure to comply with
those infection control requirements could result in the transfer of infection
from one part of the body to another. Tr. at 93 - 95; CMS Ex. 65. After
observing the nurse apply treatment to R9 without changing gloves and
washing her hands after each treatment, and having reviewed the facility
policy regarding infection control, Ms. Crouse concluded that the Petitioner
was not ensuring that policies and procedures to prevent the spread of
infection were being implemented by staff. Tr. at 95. Such failure could
result in physical harm to residents due to acquired infections. CMS Ex.
8 at 27. Petitioner
contends that the testimony of the surveyor is based on a mere hypothetical
of potential harm, and that an incident which violates the infection control
program itself is not a violation of the requirement under Tag 441. P.
Reply Br. at 1, 2. Both of these defenses lack merit. It is my conclusion that CMS has established a prima facie case concerning Petitioner's failure to comply with the conditions of participation under Tag 441. Under Hillman, supra, Petitioner bears the onus of overcoming Respondent's showing by a preponderance of the evidence. To accomplish this, Petitioner needs to come forward with sufficient evidence to demonstrate substantial compliance. The regulations define substantial compliance as a level of compliance with the requirements of participation such that 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. Conversely, a prima facie showing by CMS that the deficiency poses a widespread potential for more than minimal harm, even in the absence of actual harm, suffices to establish noncompliance. Petitioner's disregard for the infection control measures included in its treatment protocol placed R9 at risk of more than potential harm. Additionally, such practices also placed other residents at risk for spread of infection. (9)
The $3,050
per day CMP imposed by CMSfor the period beginning October 8,1998 and
ending October 16 1998 is reasonable. There is no issue as to the reasonableness
of the daily amount of the penalty inasmuch as $3,050 is the minimum that
may be imposed by HCFA, where it is established that the participating
facility has incurred in a deficiency that reaches the level of immediate
jeopardy. 42 C.F.R. § 488.438(a)(i). CMS also imposed a $50 per day CMP by for the period beginning October 17, 1998, and ending November 2,1998. There is no issue in this case as to whether a CMP of $50 per day for the period from October 17, 1998 through November 1, 1998 is reasonable. A CMP of $50 per day for deficiencies that posed a potential for more than minimal harm to residents, but not at the immediate jeopardy level, is the minimum for such deficiencies. 42 C.F.R. § 488.438(a)(ii).
As discussed
above, I have found that the facility was not in substantial compliance
with federal participation requirements for nursing homes from October
8, 1998 to November 2, 1998. In its notice of remedies dated October 28,
1998, CMS advised Petitioner that it was imposing a denial of payment
for new admissions effective October 31, 1998. Because the facility did
not demonstrate that it was in substantial compliance at any time that
the denial of payment for new admissions went into effect, I uphold the
denial of payment for new admissions from October 31, 1998 to November
2, 1998. V.
Conclusion I conclude that CMS correctly determined that as of October 8, until October 16, 1998, Petitioner was not complying with federal participation requirements in the Medicare program at the immediate jeopardy level and the imposition of a CMP of $3,050 is reasonable. I also conclude that from October 17, through November 2, 1998, CMS properly assessed a $50 per day CMP for deficiencies that posed a potential for more than minimal harm, but not at the immediate jeopardy level. CMS was also authorized to impose a denial of payment for new admissions from October 31, 1998 to November 2, 1998. |
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| JUDGE | |
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José A. Anglada Administrative Law Judge |
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| FOOTNOTES | |
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1. The Health Care Financing Administration (HCFA) has been renamed the Centers for Medicare and Medicaid Services. Reference to either name shall apply to both names. 2. Ms. Dina Riley, the facility administrator, testified that: "when we were reading the side effects of Amanidine, we determined that maybe that was causing [R42] to get some . . . side effects . . . dizziness." Presumably, Ms. Riley was referring to the Physician's Desk Reference, which she did not have in front her, and therefore, could not be more specific. The Physician's Desk Reference provides a very lengthy number of side effects for listed medications. Some patients, initially or over time, have no side effects at all or may experience some side effects to varying degrees. There is no documented medical assessment in the record as to specific side effects suffered by R42 from Amanidine. Tr. at 266. 3. Petitioner's insinuation at this juncture that R42 liked being on the floor and that his family appeared unconcerned with falls is in contrast with the testimony of Ms. Dina Riley. She stated that R42's wife placed him in the nursing home precisely because of recurrent falls at home and her inability to help prevent such falls. Tr. at 187, 257. 4. There were no interventions from January 1998 to May 1998. 5. The interdisciplinary care plan reflects that the resident had in fact been diagnosed with Alzheimer's Disease. 6. This reasoning is in contrast with Ms. Riley's own testimony to the effect that: "it isn't normal for her [R24] to be on the floor." Tr. at 247. 7. Ms. Riley explained that with the application of a Wanderguard the facility exit door would lock and prevent the resident from going outside. If the resident were to push the door for 15 seconds it would open but the alarm would alert staff of the attempt to elope. 8. The record reflects that R24 was also provided with non-skid socks on October 21, 1998. Additionally she was to wear briefs at all times and have a personal alarm while in bed. CMS Ex. 34 at 1. 9. The deficiency at Tag 441 ended prior to October 17 and runs concurrent with the immediate jeopardy finding. Thus, no additional penalty attaches here. |
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