SUBJECT:

Lineville Nursing Facility,

Petitioner,

Centers for Medicare & Medicaid Services

DECISION

For the reasons stated below, I conclude that Lineville Nursing Facility (Petitioner) was not in substantial compliance with Medicare conditions of participation governing nursing home facilities during a revisit survey of November 2 - 5, 1999. ⁽¹⁾ Accordingly, I sustain the imposition of penalties imposed by the Centers for Medicare and Medicaid Services (CMS) of civil money penalties (CMPs) and denial of payment for new admissions (DPNA).

A. The procedural background

Petitioner is a nursing home located in Lineville, Alabama. The Alabama Department of Public Health (State agency) conducted a survey of Lineville on September 14 - 16, 1999. The State agency cited Petitioner for nine deficiencies, which are not in dispute in this case. On October 13, 1999, Petitioner submitted a plan of correction alleging it had corrected the deficiencies cited during the September 16, 1999 survey. On November 2-5, 1999, the State agency conducted a revisit survey of Petitioner. The State agency cited Petitioner for six alleged deficiencies, none of which were categorized as immediate jeopardy.

On November 29, 1999, the State agency notified Petitioner that the State agency was recommending to CMS that certain remedies be imposed against Petitioner, including DPNA and CMPs. By letter dated December 9, 1999, CMS notified Petitioner it was imposing the following remedies against Petitioner:

1. DPNA, effective December 24, 1999;

2. CMPs of $50 per day for the period from September 16, 1999 through November 4, 1999; and

3. CMPs of $100 per day for the period from November 5, 1999 until Petitioner achieved substantial compliance.

Petitioner did not file a request for hearing with respect to the September 16, 1999 survey.

The State agency conducted another revisit survey of Petitioner on January 19-20, 2000 and again cited Petitioner for alleged deficiencies. On February 4, 2000, Petitioner timely filed a request for hearing to appeal the deficiencies cited during the November 5, 1999 survey. After another survey, Petitioner was found to be in substantial compliance as of February 22, 2000. Therefore, CMS imposed a DPNA from December 24, 1999 until February 22, 2000 and imposed total CMPs in the amount of $13,500.

Although Petitioner originally also appealed the findings from the January 20, 2000 survey, Petitioner withdrew its appeal of the January 20, 2000 survey and continued to contest only the deficiency findings from the November 5, 1999 survey. ⁽²⁾

A hearing was held before me in Birmingham, Alabama, on February 5 - 6, 2002. CMS originally proposed 26 exhibits. During a prehearing telephone conference, CMS withdrew some exhibits and some were excluded upon objection by Petitioner. The following CMS exhibits (CMS Exs.) were admitted: CMS Exs. 1 - 10, 19 - 21, and 23 -26. Petitioner proffered 31 exhibits. These were admitted into the record without objection as Petitioner's exhibits (P. Exs.) 1 - 33.

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 September 16, 1999 until February 22, 2000, Petitioner was not in substantial compliance with Medicare participation requirements in a way that created a potential for more than minimal harm but not immediate jeopardy to its residents. Accordingly, CMS is authorized to impose a CMP at the rate of $50 per day from September 16, 1999 to November 4, 1999; $100 per day for the period from November 5, 1999 until February 22, 2000; and a DPNA from December 24, 1999 to February 22, 2000.

B. Applicable law and regulations

Petitioner is considered a long-term care facility under the Social Security Act (Act) and regulations promulgated by the Secretary of Health and Human Services (Secretary). The statutory and regulatory requirements for participation by a long-term care facility are found at sections 1819 and 1919 of the Act and at 42 C.F.R. Part 483.

Sections 1819 and 1919 of the Act invest the Secretary with authority to impose CMPs and a DPNA 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 per instance or per day 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 regulations in 42 C.F.R. § 488 give CMS a number of different remedies that can be imposed if the facility is not in compliance with Medicare requirements. CMS may apply any of the following remedies against any deficiency that is not immediate jeopardy: a DPNA; denial of payment for all individuals; CMPs of $50 to $3000 per day; or a per instance CMP of $1000 to $10,000. 42 C.F.R. § 488.408 (d)(3).

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. CMS must impose a DPNA when the facility is not in substantial compliance, as defined in § 488.401, three months after the last day of the survey identifying noncompliance; or when the state agency has cited a facility with substandard quality of care on the last three consecutive standard surveys. 42 C.F.R. § 488.417(b).

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.

When a penalty 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's showing by a preponderance of the evidence. Hillman Rehabilitation Center, DAB No. 1611 (1997); aff'd, Hillman Rehabilitation Center v. HHS, No. 98-3789 (GEB) (D.N.J. May 13, 1999). Under Hillman, CMS bears the burden of coming forward with evidence sufficient to establish a prima facie case that Petitioner failed to comply with participation requirements. Once CMS has established a prima facie case of noncompliance, Petitioner has the burden of proving, by a preponderance of the evidence, that it complied substantially with participation requirements. Hillman, at 3-8.

In determining whether CMS has met its burden of establishing a prima facie case, I may consider rebuttal evidence offered by Petitioner that CMS's evidence is neither credible nor relevant to the issue of Petitioner's compliance with participation requirements or that the weight of the evidence establishes that the regulatory deficiency alleged by CMS did not occur. If I find that the preponderance of the evidence establishes that such circumstances exist, then I will find that CMS has not met its burden of establishing a prima facie case (but, rather, that its case is based on unsubstantiated allegations) and Petitioner will not be obligated to prove that it was substantially complying with participation requirements. ⁽³⁾

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 (8^th Cir. 1991).

II. Issue

Whether there is a basis for the imposition of remedies against Petitioner. ⁽⁴⁾

III. Findings of fact and conclusions of law

I have examined closely all of the evidence of record to determine whether Petitioner was complying with participation requirements and to decide whether a DPNA or CMPs may be imposed against Petitioner. Petitioner was cited for having failed to meet six requirements for participation in the Medicare program. These deficiencies were identified as "Tags" and refer to particular regulatory requirements as follows:

1. F241 - Quality of Life, 42 C.F.R. § 483.15

2. F248 - Quality of Life

3. F314 - Quality of Care, 42 C.F.R. § 483.25

4. F324 - Quality of Care

5. F498 - Administration, 42 C.F.R. § 483.75

6. F514 - Administration

In summary, I find that Petitioner was not in substantial compliance as of November 5, 1999, as stated in the following cited deficiency tags: F248 with respect to Resident 5; and F314 with respect to Resident 9 . I find that for the remainder of the cited deficiencies, CMS did not prove that Petitioner was out of substantial compliance.

Below, I discuss my Findings with respect to each Tag, including the results of the survey, whether the results are supported by the evidence of record, and whether Petitioner has met its burden to overcome the findings the surveyors made.

1. Petitioner failed to show by a preponderance of the evidence that it had provided an ongoing program of activities designed to meet the interests and the physical, mental, and psycho-social well-being of each resident.

The regulatory requirements relating to "Quality of Life" are contained in 42 C.F.R. § 483.15. In pertinent part, the regulations require the facility to provide "for an ongoing program of activities designed to meet, in accordance with the comprehensive assessment, the interests and the physical, mental, and psycho-social well-being of each resident." 42 C.F.R. § 483.15 (f).

Resident 5 had been readmitted to Petitioner's facility on February 12, 1999, with diagnoses of diabetes, dementia, seizure disorder, depression, and a right leg above-knee amputation. CMS Ex. 4, at 64. A nursing facility must prepare a minimum data set (MDS) for each resident which shows the resident's abilities. Resident 5's MDS specified that he had severely impaired cognitive skills. Id. at 61. He was, however, able to communicate; his speech was clear and he was sometimes able to make himself understood and to understand others. As he was bed-bound, Resident 5 was dependent on Petitioner's staff for bed mobility. CMS Ex. 4, at 62 - 63. The resident's activities assessment also established that Resident 5 was available to participate in activities as many as 7.70 hours per day. Tr. 331 - 32; CMS Ex. 4, at 14. An MDS dated September 22, 1999 established that Resident 5 experienced periods of restlessness, including calling out verbally. The calling-out behaviors were classified as indicators of depression, anxiety and sad moods. CMS Ex. 4, at 62.

Petitioner's Director of Nursing, Susan Reynolds (DON Reynolds), described Resident 5 in her testimony as a very lonely old man who wanted a lot of attention. Tr. 272. He was difficult for staff members because he was combative when they tried to care for him. He would holler and use foul language. He did not have immediate family. He had distant relatives that visited him. Tr. 272 - 73, 276.

Petitioner's activities staff planned to: (a) provide two group activities per week (church services, large parties for socialization); (b) provide two in-room visits per week for games, gospel music, reading the Bible and socializing; (c) provide a television and videocassette recorder weekly for entertainment; and (d) provide radio/gospel music at bedside. Petitioner's staff was also to provide visits. Petitioner's care plan was completed on October 11, 1999. Tr. 277.

Between the adoption of the care plan and the November 5, 1999 survey, the following activities were provided to Resident 5: a movie in his room on October 13; a religious service at the facility on October 18; a religious program by church youth on October 21; a religious service on October 25; a television in his room on October 28; a religious service on November 1; in-room radio or television on November 3; and a religious program by church youth on November 4.

DON Reynolds testified that additionally the staff talked to Resident 5 about the painting on the ceiling above his bed when they came to his room to care for him every one or two hours and a social worker was to visit him once a week. Volunteers helping with the religious services also visit the residents on Sunday. She further testified Resident 5 could not participate in large group activities because, if there was too much stimuli, Resident 5 became agitated and hollered. Tr. 278 - 287.

The facility's "activity progress notes" report the following with respect to Resident 5's behavior at social events:

After being rolled to the front porch, he was talking to all the other residents about the cars and trucks that went by. 8/4/99.

His bed was rolled to the dining room for staff fun day and he was smiling and said he had a good time. 8/13/99.

His bed was rolled to church services. His participation at church service was active and he said he enjoyed the services. 9/20/99.

A quarterly report said that when he was at porch social activities, his participation was active and he wasn't yelling out. "Smiling and looking around at other staff member/residents."

CMS Ex. 4, at 18 - 25.

Lucinda Ashley, a registered nurse and surveyor with the State agency (Surveyor Ashley) testified at the hearing. ⁽⁵⁾ According to her testimony, during the November 5, 1999 survey, Resident 5 sought the attention of Surveyor Ashley by yelling from his room, "y'all come in here." Tr. 180 - 81. Surveyor Ashley testified that in her opinion, this calling-out behavior meant Resident 5 wanted someone to come into his room and provide more social stimulation than he was receiving. Petitioner's staff noted also that Resident 5's yelling often involved his attempting to get people to visit him in his room. Tr. 328 - 39; CMS Ex. 4, at 12.

Surveyor Ashley also reported that Resident 5 was lying in his bed with solid, foam-padded side rail protectors placed inside his bed's side rails and extending 7.5 inches above the rails, and, as a result, Petitioner was completely blocked from viewing anything outside his bed area. Petitioner's DON responded that Resident 5's head was always elevated somewhat because he was on tube feeding and could always see out to the hallway. Surveyor Ashley credibly testified, however, that she could only see the top of Resident 5's head over the side rail pads. On November 5, 1999, after the surveyor's criticism, Petitioner replaced these side rail pads with tubular padding to permit Resident 5 to see the hallway. Tr. 43.

Admittedly, Resident 5 was a difficult resident. He would strike the staff members while they were assisting him in performing normal activities of daily living. Tr. 271 - 73. He would scream and curse at staff members and was particularly abusive toward African-American staff members. Moreover, the resident was very poor and could not afford amenities such as a television in his room. Nonetheless, all of Petitioner's activities-oriented progress notes indicated that Resident 5 enjoyed attending group activities out of his room, he participated happily and actively in the activities, and he interacted appropriately with other residents. Tr. 33, 332 - 37. CMS Ex. 4, at 18 - 22. The records show that Petitioner was available for about 140 hours of activities from October 14, 1999 to November 5, 1999 and he was provided only about five hours of activities during this period. CMS Ex. 4, at 14, 22 - 25.

As stated above, a care plan was implemented for Resident 5 on October 11, 1999, in response to the September 16, 1999 survey. Tr. 115. In the care plan, Petitioner said it would provide this resident with two - four activities a week. Surveyor Ashley questioned whether even two - four weekly activities were sufficient to assist in curtailing Resident 5's acting out behaviors. Tr. 40. ⁽⁶⁾

Petitioner contends that Resident 5 had other separately documented activities such as being visited each week by Petitioner's social services director. Tr. 284. Volunteers came to the facility on Sunday and would visit each resident. Tr. 285. Additionally, Petitioner's staff removed one of the ceiling tiles from above Resident 5's bed and painted a picture on it of a pond with an apple tree and a boy in a truck. Tr. 282 - 84. Petitioner contends the staff would talk with the resident about the picture when they came in to turn him every hour or two or to help him with his normal activities of daily living.

While Petitioner was in the process of increasing the activities of Resident 5, Petitioner was simply not providing sufficient interaction with other people or visual stimulation for Resident 5. I do not find that television provides either the type of interaction or visual stimulation Resident 5 needed, but Resident 5 did not even have television more than a few hours a week. For most of his time awake, he was lying in bed, doing absolutely nothing, with a staff member coming in every "hour or two." Petitioner did not provide any evidence to indicate why Resident 5 could not be wheeled in his bed relatively frequently to common areas where there may have been other residents. Nor did Petitioner provide evidence that Resident 5 was always disruptive in such settings. In fact, Petitioner's progress notes indicate that Resident 5 interacted appropriately with other residents during the group activities he had been provided. Tr. 33, 332 - 337; CMS Ex. 4, at 18 - 22.

Viewing all the evidence relating to this incident, I find that Petitioner did not provide an ongoing program of activities designed to meet, as determined by comprehensive assessments, the interests and the physical, mental and psycho social well-being of this resident and was not in compliance with 42 C.F.R. § 483.15(f)(1).

2. Petitioner failed to ensure that residents with a history of pressure sores received necessary assessments, treatments, and services to promote healing, prevent infection, and prevent new sores from developing.

The applicable regulation requires the facility to assure that a resident who enters the facility without pressure sores does not develop them unless the individual's clinical condition demonstrates they were unavoidable; and the facility must assure a resident who has pressure sores receives necessary treatment and services to promote healing, prevent infection and prevent new sores from developing. 42 C.F.R. § 483.25(c).

Resident 9 was admitted to the Petitioner's facility in August 1997. He had been diagnosed with insulin-dependent diabetes mellitus, vascular insufficiency, carotid artery stenosis, and a large decubitus ulcer on his left heel. CMS Ex. 5, at 5; Tr. 288 - 90. Based on his diagnoses, Petitioner was likely to have very fragile skin subject to skin breakdown. Tr. 194 - 95.

Petitioner successfully treated the pressure sore on Resident 9's left heel that he had on admission, and subsequently created care plans to prevent new pressure sores from developing. Tr. 290; CMS Ex. 5, at 11, 19, 23 - 24. For example, in August 1999, Petitioner assessed Resident 9 and noted that he had pressure sores when he was assessed, had resolved pressure sores, and received preventative and protective foot care, including special shoes, to prevent new pressure sores from developing. CMS Ex. 5, at 28. Resident 9 continued to have ulcerated areas on his skin. While nurses' notes report he had no skin breakdown on September 9, 1999 by September 29, 1999 he was noted to have an ulcerated area on his left second toe. CMS Ex. 5, at 8, 14. On October 16, 1999, Resident 9 was noted to have an open area on his left hand. The left hand sore had healed by November 1, 1999. CMS Ex. 5, at 16.

Resident 9's care plan specified that he was to have daily foot care. CMS Ex. 5, at 12. The care plan also specified that Petitioner would ensure that Resident 9 wore "EZ Boots at all times," except for bathing to prevent pressure sores. CMS Ex. 5, at 11. Orthotic boots, such as EZ boots and Multi-Podus boots, serve the same purpose. Tr. 48, 134, 196 - 97. They are designed to eliminate pressure on heels by suspending the heels in the air so they do not come into contact with any surface. Id.

On November 4, 1999, Surveyor Ashley observed Resident 9 wearing orthotic boots on both of his feet without any socks. Tr. 48 - 50. She testified the boots were old and worn and did not fit properly. She said one boot was loose and a metal part of the boot was resting on Resident 9's heel. CMS Ex. 5, at 1. Surveyor Ashley testified that she saw a darkened pressure sore on Resident 9's left heel that was resting in direct contact with the metal frame of his orthotic boot. Surveyor Ashley specifically identified the brand of Resident 9's orthotic boots to be "Multi-podus" boots. Tr. 48.

Petitioner's nursing staff reported in nursing notes for October 24, 1999, that a "blood blister" had appeared on Resident 9's left heel. CMS Ex. 5, at 16. On the same day, after being contacted by the Petitioner, Resident 9's physician ordered Petitioner to treat the heel as one would a pressure sore and Petitioner started treatment. CMS Ex. 5, at 5. As conceded in CMS's post-hearing brief, in response to Petitioner's aggressively treating the pressure sore on Resident 9's heel, the scab on top of the pressure sore was removed on November 8, 1999 and healthy skin was found beneath the scab.

Both parties submitted evidence about whether the injured area on Resident 9's left heel was a "blood blister" or a "pressure sore." Petitioner's reliance on Resident 9's left heel lesion being a "blood blister" rather than a "pressure sore" appears to be for two reasons. Apparently, Petitioner believes that, if the lesion is a "blood blister," the regulatory requirements requiring the prevention of pressure sores would not apply as a legal matter. Second, Petitioner seems to argue that, if the lesion is termed a "blood blister," Resident 9 was not in danger of getting a pressure sore.

I do not find the dichotomy between a "blood blister" or "pressure sore" particularly instructive. I note, however, that a "Stage 2" pressure sore is defined as a partial loss of skin layers that presents clinically as an abrasion, blister, or shallow crater. CMS Ex. 5, at 28. I will also note that Resident 9's physician, after he was asked by the facility, immediately after the surveyor's observation, to look at Resident 9's lesion, said that it looked like a blood blister, but the facility should treat it aggressively as a Stage 2 pressure sore. CMS Ex. 5, at 9. Thus, I find the issue is not whether Resident 9 acquired only a "blood blister" and not a "pressure sore," but whether Petitioner was complying with the requirement to prevent new sores from developing. The exact language of the regulatory requirement is that the facility "must ensure that a resident having pressure sores receives necessary treatment and services to promote healing, prevent infection and prevent new sores from developing." (Emphasis added.) Any kind of sore on the foot of someone so inclined toward pressure sores as was Resident 9, demanded attention toward preventing the lesion regardless of the term used for the lesion.

The gravamen of CMS's citation with respect to this incident, regardless of Petitioner's acceptable treatment for the lesion, is that Petitioner failed to monitor and evaluate the use of Resident 9's orthotic boots to ensure they fit properly, not in terms of size but in placement of the boot on the foot. Surveyor Ashley opined that Resident 9 developed the lesion on his left heel because of the improper looseness of his orthotic boot. According to Surveyor Ashley, Petitioner's failure to monitor the use of the orthotic boots caused the resident to develop the lesion and exposed the resident to the risk that the pressure sore would not heal properly. Tr. 52. Surveyor Ashley felt the facility should have started looking at the fit of Resident 9's boots when he began to have a skin breakdown on his toes. Tr. 178.

CMS's expert witness, Dr. Richard Esham, also testified that Resident 9's lesion was probably caused by the resident's ill-fitting orthotic boot . Tr. 196, 198. Dr. Esham, however, did not actually see the boot on the resident to determine whether the boot fit properly.

Petitioner argued that Resident 9's orthotic boots were checked by Jackie Floyd, an occupational therapist, in the Spring of 1999. Ms. Floyd reported at that time that Resident 9's orthotic boots fit him fine with no problems. P. Ex. 22; Tr. 404 - 06. On the form Ms. Floyd used for her assessment in the Spring of 1999, she indicated Resident 9 had on a "telescoping foot splint." P. Ex. 22. After the November 5, 1999 survey, Petitioner asked Ms. Floyd to again check the fit of Resident 9's orthotic boots. She did so on November 11, 1999 and again, she said the boots fit him fine with no problems. Tr. 404 - 06.

I found Ms. Floyd's testimony to be credible. But her testimony did not answer the question of whether the boots Resident 9 was wearing at the time he was observed by the surveyor were the same orthotic boots for which Ms. Floyd had assessed the fit. Someone on Petitioner's staff told Surveyor Ashley that Resident 9 had several pairs of orthotic boots available for use. CMS Ex. 5, at 1; Tr. 49. Surveyor Ashley testified that she definitely saw Resident 9 in "Multi-podus" brand boots. She testified to a distinct difference between "Multi-podus" brand boots and other brands in that "Multi-podus" boots have identifying multiple straps. Tr. 48, 471. Ms. Floyd could not identify the brand of orthotic boots she had assessed in the Spring of 1999 because she had no independent recollection of the event. And after the November 5 survey, Ms. Floyd did not assess Resident 9 until almost a week later.

I find, after reviewing the advertising supply flyers for orthotic boots in the record, that Surveyor Ashley was correct. The "multi-podus" brand of orthotic boot has a different appearance than other boots used for the same purpose. CMS Ex. 23, at 3. The record contains no evidence that the boots Ms. Floyd reviewed were the same boots that Surveyor Ashley observed touching Resident 9's heel. Moreover, Ms. Floyd's assessment of boots that had been placed on Resident 9's heels correctly proves nothing about the way the boots were placed on Resident 9's heels at other times.

Accordingly, I find that CMS provided prima facie evidence that Resident 9's orthotic boot was not correctly placed on his foot at the time she observed him, and Petitioner did not submit rebuttal documents or testimony sufficient to show that the boots Surveyor Ashley observed had been placed on him properly. Moreover, DON Reynolds testified that Resident 9's left heel lesion was probably caused by Resident 9's boots. Tr. 351. She admitted that Resident 9's boots were sometimes loose and his left heel probably fell against the boot. Id.

I find that Resident 9 had on orthotic boots that were loose or fitted improperly on his feet after the boots had been removed for his bathing or were loosened when he was repositioned during care. See Tr. 351. The improper fit directly caused a lesion on his left heel that can be described as a ''pressure sore." I also find that, had the boots fit properly at all times, the lesion on Resident 9's left heel was preventable.

I next questioned, nonetheless, whether one preventable pressure sore on one resident amounts to non-compliance with the regulatory requirements. I reviewed many prior Departmental Appeals Board (DAB) cases to answer this question. Admittedly, in most of the cases involving pressure sores, the facilities' pressure sore problems were greater in quantity and quality from the Petitioner's one incident documented during the November 5, 1999 survey; that is, the other cases involved numerous residents or the facility did not provide pressure relief devices or repositioning, or physician notification after seeing new sores. Nonetheless, the language from other cases dictate that a petitioner must demonstrate that a pressure sore was unavoidable once a surveyor has identified its existence. Beechknoll, DAB CR813 (2001) citing Cross Creek, DAB No. 1655 (1998). In Koester Pavilion, DAB No. 1750 (2001), the DAB required the facility to furnish what is necessary to prevent new sores unless clinically unavoidable. Petitioner here did not demonstrate that Resident 9's lesion was unavoidable if Resident 9's orthotic boot had been placed on his foot correctly.

In sum, I find Petitioner was not in substantial compliance with 42 C.F.R. § 483.25(c).

3. By a preponderance of the evidence, Petitioner showed it was in substantial compliance with the regulatory requirement to ensure that each of its residents received adequate supervision and assistance devices to prevent accidents as required by 42 C.F.R. § 483.25 (h)(2).

The regulatory requirements relating to "Quality of Care" are contained in 42 C.F.R. § 483.25. In pertinent part, this regulation requires the facility to ensure each resident receives adequate supervision and assistance devices to prevent accidents. 42 C.F.R. § 483.25(h)(2).

Resident 12 was admitted to Petitioner's facility on October 15, 1999 with a fractured hip as a result of her fall in July 1999. Her diagnoses included recurrent falls, confusion, osteoporosis, cerebrovascular accident and atrial fibrillation. CMS Ex. 7, at 6, 7. Her attending physician issued admission orders indicating she was a "high falls risk."

On October 24, 1999, Resident 12 fell in her bathroom. CMS Ex. 7, at 19, 45. This occurred soon after 3:05 a.m., after two nurses aides had answered her call and assisted her to her walker and were with her as she walked to her bathroom using her walker. Resident 12 was using an elevated toilet seat because of her compromised hip flexion from her prior fracture. The nurses aides assisted Resident 12 onto the toilet seat and then left her alone in the bathroom while they stood outside the door, with the door cracked, to wait until Resident 12 was finished. Tr. 307.

For an unknown reason, Resident 12 fell off the toilet and hit the floor before the aides could reach her. Resident 12 was taken to the hospital, where she was examined by Dr. William Rush, the Chief of Staff. P. Ex. 32. Both Dr. Rush and Dr. George Smith, Petitioner's medical director, surmised that Resident 12 had a vasovagal syncopal spell secondary to straining at stool. Tr. 389 - 90. Resident 12 ended up with a bruise around her left eye socket and a laceration on the left side of her head. She also experienced facial pain. Id.

Petitioner submitted evidence as to the probable cause for Resident 12's fall. Petitioner particularly submitted evidence that Resident 12 had an incident of bradycardia while straining at the stool and fell for that reason. She had a very low heart rate at the time she was seen in the emergency room. P. Ex. 24. Petitioner's argument is that Petitioner could not have foreseen the bardycardia and, therefore, her fall was a completely unforeseen accident, and because nursing facilities have no strict liability under the regulations, Petitioner had not failed to comply with any regulatory requirement for Medicare participation.

The regulations do not impose strict liability on a long term care facility with regard to residents' accidents. A facility is not required to assure that its residents never sustain accidents. Rather, the regulations require that the facility provide "adequate" supervision and assistance devices to its residents as a safeguard against accidents. A facility satisfies the requirements of the regulations if it takes reasonable precautions to protect the health and safety of its residents against accidental injuries. Hermina, DAB CR757 (2001). Another ALJ defines the failure to provide "adequate" supervision to be when there "is a scienter of a pattern of events or behaviors which could adversely affect a resident, and there is a failure of a provider to take steps to prevent accidents." The question is whether there were pre-existing behaviors that would have alerted a facility to tighten procedures related to this particular resident or whether this was a new event without precedent. SouthRidge Nursing & Rehab Center, DAB CR744 (2001).

CMS argues that, due to Resident 12's generally high risk of falls, she should not have been left alone on an elevated toilet seat. Therefore, I find that, contrary to Petitioner's arguments and evidence on that issue, the reason for Resident 12's fall is not pivotally relevant. Rather, the important issue is whether, based on her assessment, Resident 12 should not have been left alone while she was attempting a bowel movement on an elevated toilet seat.

Upon her admission to Petitioner's facility, Petitioner had performed multiple data set assessments, as required, and established that Resident 12 needed a great deal of assistance to aid her physical mobility. She needed a 1-person assist to move in her bed; she needed a 2-person assist to transfer between sitting and standing positions and a 1-person assist to transfer on or off the toilet and to clean herself after voiding. She was, nonetheless, relatively intact cognitively. CMS Ex. 7, at 29 - 30, 38 - 39. Petitioner, based on past events such as Resident 12's past fall and fractured hip, knew that Resident 12 needed extensive assistance with walking and ambulation. Indeed, on the morning in question, Resident 12 was provided two aides to assist her from her bed to her bathroom and to seat her on the commode. The aides than stepped out of the bathroom and waited outside the bathroom door until Resident 12 was finished and needed assistance to return to her bed.

Prior to Resident 12's accident, she had exhibited no difficulty in sitting. Jamie Dingler, one of Petitioner's registered nurses, testified he had completed the multiple data set assessments for Resident 12. His assessments were not particularly helpful to Petitioner in determining whether Petitioner could have been expected to sit unassisted on an elevated toilet seat. Mr. Dingler testified that he had not tested her balance in sitting during the assessments because Resident 12 on one occasion was experiencing pain from hemorrhoids and on the other occasion was exhausted from a doctor's visit. She had been unwilling to sit up and attempt the test. He, as a result, did not test Resident 12's ability to maintain balance while sitting. Tr. 414 - 19. Contrary to a logical inference from the forms Mr. Dingler filled out, he did not conclude Resident 12 was unable to maintain balance while sitting, only that Resident 12 had been unwilling to perform the test on that day.

Petitioner, additionally, offered the testimony of Shanon Roberts, a licensed physical therapist, who had previously evaluated Resident 12 on October 19, 1999, not long before the accident. Tr. 424 - 28. Mr. Roberts testified that he had tested Resident 12 to see if she had difficulty maintaining balance while sitting. His testing consisted of having her sit on the edge of the bed to see whether she swayed or braced herself. Tr. 427; P. Ex. 28. DON Reynolds also testified that she had observed the resident sitting on a number of occasions and the resident had no difficulty maintaining balance while sitting. Tr. 306. I find, therefore, the evidence shows no scienter of sitting problems or pattern of events existed that would have led the facility to take extra precautions with respect to this resident when she was seated. Resident 12's fall was a "new event without precedent." SouthRidge, at 12.

CMS provided the testimony of Dr. Richard Esham, CMS's expert witness on elder care. He testified that elevated toilet seats are inherently unstable. They are clamped to commodes and can be dislodged. Tr. 308 - 09. Dr. Esham opined that, based on Resident 12's assessment and her physician's orders, Resident 12 should not have been left alone on an elevated toilet seat regardless of her perceived ability to sit.

I respect Dr. Esham's opinion. Another regulatory provision, however, comes into play; that is, 42 C.F.R. § 483.15 (a) which requires a facility "to promote care for residents in a manner and in an environment that maintains or enhances each resident's dignity and respect in full recognition of his or her individuality." Of course, as stated in § 483.25 (e) (1), the resident's safety may trump accommodation to a resident's need for dignity. Nonetheless, the facility must balance a possible safety concern with a cognitively-intact resident's need to toilet alone. Because Resident 12 had previously shown no apparent difficulties with sitting and because she had been tested by a physical therapist only a month before the accident, I find that the facility made an appropriate accommodation between Resident 12's need for dignity and her need for supervision and assistance devices by having two aides accompany Resident 12 to the bathroom and then step just outside the slightly open door to wait for her. CMS did not show that Resident's fall was the result of anything other than a spell of bardycardia which could not have been predicted by Petitioner. CMS provided no evidence that the toilet seat actually in use by Resident 12 was of an unsafe type or was not secured properly.

Accordingly, I find that Petitioner proved by a preponderance of the evidence that it was in compliance with 42 C.F.R. § 483.25 (h) (2).

4. CMS did not present a prima facie case that Petitioner was not in compliance with the requirement to maintain or enhance residents' dignity and respect.

The pertinent section of the Quality of Life regulations for Tag F241 requires the facility to promote "care for residents in a manner and in an environment that maintains or enhances each resident's dignity and respect in full recognition of his or her individuality." 42 C.F.R. § 483.15 (a).

Resident 1 experienced tremors in her upper extremities. At times it was difficult for her to lift food to her mouth and she required extensive assistance with eating. She was cognitively intact and was alert, oriented and communicative. Tr. 241; CMS Ex. 3, at 8.

On November 4, 1999, Surveyor Ashley observed Resident 1 being fed breakfast by a female nurse. Resident 1 sat in a wheelchair with a bedside table in front of her. The nurse asked Resident 1 if she needed help with breakfast and Resident 1 said she did. The nurse began to feed her and was standing over her. The resident asked the nurse, "Honey, why don't you sit down?" The nurse responded by saying she was "ok" and continued to spoon-feed the resident while standing over her. After a few more bites, Resident 1 asked the nurse, "Are you sure you don't want to sit down?" The nurse declined again and continued to spoon-feed Resident 1 while standing over her. CMS Ex. 2; Tr. 28. CMS alleged this incident manifested Petitioner's failure to care for this resident in a manner and in an environment that maintained or enhanced her dignity in recognition of her individuality.

CMS pointed out that Resident 1's care plan dated September 20, 1999 included a notation that Resident 1 had a history of anxiety and depression and the staff should allow her to verbalize her feelings without judgment and to sit and talk to her if she chooses. CMS Ex. 3, at 6.

Petitioner did not deny the events as set forth by Surveyor Ashley. Rather, Petitioner submitted evidence that the nurse did not sit down because there were no chairs available in the room and she did not want to sit on Resident 1's bed. DON Reynolds testified that Resident 1's food may have gotten cold if the nurse had gone to retrieve a chair. Surveyor Ashley conceded there may be reasons why a nurse would not want to sit on a resident's bed. Tr. 105.

It is certainly important for nursing facility residents who are cognitively intact to be treated with dignity. How unfortunate for individuals who are alert and oriented but have physical ailments that do not allow them to care for themselves. Because the resident asked the nurse twice if she did not wish to sit down, one possible inference is that the resident wanted the nurse to sit down and not feed her as if she were a baby bird in a nest. Nonetheless, it is difficult to find that this incident, a relatively minor failing for a nursing home facility within the scheme of assuring that Medicare and Medicaid beneficiaries are treated as the regulations require, presents a potential for more than minimal harm.

More importantly, the record contains no evidence that either party, including Surveyor Ashley, who was close by at the time, inquired of Resident 1 whether she was upset by the nurse's failure to sit down at her request. Petitioner contended that Resident 1 was only being polite when she asked the nurse to sit down and the incident in no way suggested she was insulted or affronted by the nurse's standing to feed her. This too is one potential inference from the incident. Moreover, DON Reynolds testified that Resident 1 had eaten well during this breakfast and that she appeared to be in a good mood that day. Tr. 243 - 244. The resident's good mood for the remainder of the day belies the inference Surveyor Ashley proposes.

Surveyor Ashley did not suggest in her testimony that the nurse who was feeding Resident 1 sounded harsh or dismissive. Tr. 102. Therefore, I am left with competing inferences as to how Resident 1 perceived this incident. I recognize that CMS need not show actual harm occurred, but, without some additional evidence of Resident 1 having felt insulted or affronted or evidence that the staff member was harsh or even impolite, I find that CMS has failed in its burden of presenting a prima facie case that this incident presented a potential for more than minimal harm and, thus, represented non-compliance with the regulatory requirement of 42 C.F.R. § 483.15(a)

Resident 10 was admitted to Petitioner's facility on October 26, 1999, a few days before the survey at issue. Resident 10's admitting diagnoses included urinary tract infection, hypertension, alcohol abuse, and acute alcoholic hepatitis. CMS Ex. 6. According to assessments performed by Petitioner's staff, Resident 10 was alert with some confusion, but able to make his needs known. Id. at 18. He was occasionally incontinent of bladder, and he required physical assistance of staff in order to use the toilet and maintain his personal hygiene. On November 2, 1999, he was put on a bowel and bladder seven-day observation period to assist him in maintaining his continence. Id. at 12.

One day later, on November 3, 1999, Surveyor Ashley observed Resident 10 wheeling himself around Petitioner's facility in a wheelchair. Tr. 21 - 25. Surveyor Ashley testified that Resident 10 was wearing tan pants, and the pants had three stains on them. Surveyor Ashley believed all three stains were urine stains. Two of the stains were dried, and the third stain was wet. Surveyor Ashley testified she smelled a "very strong" odor of urine on the resident and asked Petitioner's staff to take the resident to the toilet to be cleaned. Tr. 24 - 25. ⁽⁷⁾

Surveyor Ashley surmised that, due to the large volume of urine found later in the resident's diaper and the resident's soaked shirt tail, the resident had been wet for a long time. Tr. 75 - 76. The surveyor also testified that the dried rings on the resident's pants were urine rings, also indicating the resident had been sitting in urine for a long time. CMS argued that as a result of Petitioner's failing to attend to Resident 10's needs for toileting and cleaning after the resident repeatedly urinated on himself, Petitioner caused the resident to be exposed to the indignity of moving around Petitioner's facility in urine-soaked clothes. According to Surveyor Ashley, the facility had failed to promote care for Resident 10 in a manner that maintained his dignity and respect in full recognition of his individuality, as required by 42 C.F.R. § 483.15(a).

I find that Petitioner proved by a preponderance of credible evidence that Resident 10 had only recently soiled himself and that the dried rings on his pants were dried tobacco stains and not urine stains. Petitioner had begun a seven day voiding pattern for this resident on November 2, 1999. CMS Ex. 6, at 12. As part of this pattern, Petitioner's staff had been instructed to check Resident 10 on an hourly basis to determine whether he had wet himself. Tr. 250. The form to be used by the nurses aides to chart Resident 10's voiding, while admittedly incomplete, does show that he was checked at 6:00 am, 7:00 a.m, and 8:00 a.m. P. Ex. 12. ⁽⁸⁾ According to the affidavit of Diana Henry, one of Petitioner's nurses aides, she had changed Resident 10 into his clothes at 7:00 a.m. P. Ex. 32, at 7. Another CNA, Vanessa Scales, said she checked Resident 10 for incontinence at 7:00 a.m. and 8:00 a.m. P. Ex. 12. She was about to check him again at about 9:00 a.m. when the surveyor notified her that Resident 10 needed toileting. Surveyor Ashley's own notes indicate that Resident 10 told her, "it's a leak and I haven't found anything to stop it." CMS Ex. 6, at 1. Resident 10's statement suggests to me that his "leak" was a fairly recent occurrence.

Petitioner also provided credible evidence that the dried stains on this resident's pants were from tobacco juice and not urine. Tr. 254, 255, 441. Surveyor Ashley's notes indicate when she saw Resident 10 in the hallway, he had a bib around his neck with snuff stains on it. ⁽⁹⁾ CMS Ex. 6, at 1. Whona Herd, one of Petitioner's CNAs, credibly testified that he often gave the resident tobacco to chew and that this resident had been chewing tobacco after breakfast on the morning in question. Tr. 441, 455. DON Reynolds testified it was common for the facility staff to put a bib on Resident 10 and to give him a paper cup to spit in when he was chewing tobacco. Resident 10 usually put the spit cup between his legs. Tr. 255.

Based on all the evidence in the record regarding this incident, I find Resident 10 had only recently wet himself and that Petitioner's staff had regularly checked him for continence. Accordingly, I find Petitioner did not fail to treat Resident 10 with respect and dignity as required by 42 C.F.R. § 483.15.

5. Petitioner did not fail to ensure that its nurses aides were able to demonstrate competency in skills and techniques necessary to care for residents as required by 42 C.F.R. § 483.75(f).

The regulatory requirements relating to "Administration" are contained in 42 C.F.R. § 483.75. In pertinent part, this regulation requires the facility to ensure that nurses aides are able to demonstrate competency in skills and techniques necessary to care for residents' needs, as identified through resident assessments and as described in the resident's plan of care. 42 C.F.R. § 483.75 (f).

Resident 10, the subject of this deficiency tag, was also involved in CMS's citation of Petitioner for Tag F241. The circumstances surrounding this citation are what occurred after surveyor Ashley asked Petitioner's staff to assist in cleaning Resident 10 and his urine-soaked pants. Surveyor Ashley followed the nurses aides to observe their proficiency in rendering incontinence care.

In order to clean Resident 10, the nurses aides moved him to a standing position from his wheelchair and his adult diaper was removed. Resident 10 continued to void diarrhea while the aides were attempting to clean him. Surveyor Ashley testified that a female aide improperly used a washcloth to wipe fecal matter from Resident 10's buttocks and used the same cloth to wipe his genitals. CMS argued that to risk contaminating genitals with fecal matter indicates improper toileting assistance and, accordingly, an inability to demonstrate competency on the part of Petitioner's nurses aides. Additionally, Surveyor Ashley testified that when the male aide assisted Resident 10 to a sitting position on his bed after the cleaning, the bed moved and the nurses aide stumbled to hold onto Resident 10 while maintaining his balance. CMS alleged the bed moved because the nurses aides had failed to lock the bed wheels, and accordingly, failed to demonstrate competency on their part.

Petitioner responded to the allegations by showing that Petitioner had trained its nurses aides on perineal care six weeks prior to the survey and the nurses aide who allegedly failed to provide appropriate perineal care to Resident 10 had attended this session. Tr. 264 - 65; P. Ex. 29.

Both of the nurses aides who provided perineal care to Resident 10 deny they provided the care in the manner alleged by the surveyor. The male aide, Whona Heard, testified at the hearing. He testified that while the aides were trying to clean Resident 10, Resident 10 continued to expel a continuous stream of diarrhea. Tr. 445. Mr. Heard also remembered that he and the other aide had used approximately 15 different washcloths to clean Resident 10, while the surveyor claimed only three washcloths were used. This aide also disputed that the other aide used the same washcloth to clean feces from Resident 10 as she used to clean the resident's penis. Tr. 448. I find Mr. Heard's testimony more reliable in this incident than Surveyor Ashley's. This is because of Ms. Ashley's inability to remember where she was standing in the room to observe what was happening. Tr. 162. Moreover, Surveyor Ashley became confused during cross-examination about how she had formed the opinion that only three washcloths had been used. Tr. 474 - 79.

Whether and why the bed wheels were unlocked remains unclear. Nonetheless, in this urgent situation where two nurses aides are trying to clean a resident who is continuing to void, it is likely the nurses aides were trying to resolve the situation as quickly as possible and that there was some confusion as this occurred. I do not find that this situation demonstrated the CNAs did not know proper perineal care or demonstrated a lack of competency on their part.

6. CMS failed to make a prima facie showing that Petitioner did not meet the regulatory requirement that a facility must maintain clinical records on each resident in accordance with accepted professional standards and practices that are complete, accurately documented, readily accessible and systematically organized.

The "Administration" regulations require the facility to maintain clinical records on each resident in accordance with accepted professional standards that are complete, accurately documented, readily accessible, and systematically organized. 42 C.F.R. § 483.75(l)(1).

CMS cited Petitioner for a deficiency under 42 C.F.R. § 483.75(l)(1) because the seven- day voiding pattern used with Resident 10 was not complete or accurately documented. As noted above, after Resident 10 was admitted to Petitioner's facility, the facility addressed Resident 10's incontinence problems by scheduling a program of bowel and bladder assistance and began a seven day voiding pattern. It was hoped that, by tracking the resident's voiding, he could be put on a scheduled toileting program. CMS Ex. 6, at 9, 12. Both Surveyor Ashley and DON Reynolds testified that residents can be assisted in maintaining continence by the nursing staff's prompting residents to use the toilet at designated times. Tr. 77 - 80, 320 - 21. If monitoring shows that a resident is incontinent and/or requires toileting assistance at certain times of the day, then a schedule is developed to ensure that the staff renders assistance prior to those expected times. Petitioner conceded its form for recording Resident 10's voiding over a seven day period was not complete, particularly for the first few of the seven days. P. Ex. 12; CMS Ex. 26.

Petitioner responded by arguing that the seven day voiding pattern is a tool for the nurses aides and is not the type of clinical record contemplated by 42 C.F.R. § 483.75(l)(1). Petitioner did not dispute that each and every hour on the voiding pattern was not completed by the nurses aides. Petitioner argued that nurses aides are not permitted to make notes in a resident's clinical records. Therefore, since nurses aides were using the voiding pattern record, the record could not be a "clinical record." Tr. 257.

I agree that a tool used by the nurses aide to track Resident 10's voiding pattern is not a clinical record as contemplated by the regulations. DON Reynolds testified that the facility follows guidelines that state, "[T]he clinical record must contain sufficient information to identify the resident, a record of the resident's assessments, a plan of care and services provided, the results of any pre-admission screening and progress notes." She further testified that, because the facility determines on the basis of the above-quoted guidelines what should be in the clinical records, the facility had determined the seven- day voiding pattern was a tool for the nurses aides and was not part of a resident's clinical record. Tr. 259.

CMS provided no evidence of the professional standards that would require the nurses aides' voiding pattern document to be part of the clinical records or to be accurate and complete. Surveyor Ashley testified to uncertainty about the exact definition of a "clinical record." She agreed that it was the facility that determined what was to be included in a clinical record. Tr. 170 - 71. Accordingly, CMS has not made a prima facie showing that Petitioner failed to keep complete and accurately documented clinical records.

IV. Legal Issues Requiring Clarification

A. If CMS proves just one cited deficiency, CMS can impose the assessed penalties.

My authority to review a determination by CMS to impose a CMP is limited to two discrete inquiries: (1) whether there is a basis to impose a CMP; and (2), if I find there is a basis to impose a CMP, whether the amount of the CMP is reasonable. A finding that a petitioner was not in substantial compliance with even a single instance of the requirements of participation in Medicare and Medicaid is sufficient to trigger the imposition of a CMP. 42 C.F.R. § 488.430. Because in this case I find Petitioner was out of compliance with F248 and F314, there is a basis for imposition of the CMP. Having so found, I would turn next, in the regular course, to a review of the reasonableness of the CMP amount. Because, however, Petitioner has decided not to challenge the reasonableness of the CMP, I find that it is not an issue in this case.

B. The reasonableness of the assessed CMP amount is not at issue because the Petitioner conceded its reasonableness.

The determination of whether a CMP is reasonable depends on factors specified in the regulations at 42 C.F.R. § 488.438(f). To analyze the reasonableness of the CMP, I would look at those factors in light of the facts I found in the case; however, in the instant matter Petitioner has not challenged the reasonableness of the CMP, and in fact, Petitioner has affirmatively asserted it is not an issue. Tr. at 482 - 83. Accordingly, I determine there is no dispute that the amount of the CMP is reasonable, and I uphold the CMP as imposed: $50 per day from per day from September 16, 1999 to November 5, 1999 and $100 per day from November 5, 1999 until the facility was certified back in compliance on February 22, 2000.

V. Conclusion

Based on the complete record in this case, I find that Petitioner on November 5, 1999 was not in substantial compliance with all requirements for Medicare participation. Therefore, the remedies imposed by CMS for non-compliance are factually and legally supported.

Anne E. Blair

Administrative Law Judge

1. Hereafter in this Decision, I will refer to surveys by the last day of the survey, that is, November 5, 1999.

2. Petitioner has argued that, should I find Petitioner was in substantial compliance on November 5, 1999, CMS could impose none of the assessed penalties; not the DPNA, nor the CMP from September 16, 1999 to November 4, 1999, nor the CMP from January 21, 2000 to February 22, 2000. Although it is not crucial, given my decision in this case, I do not agree with Petitioner's argument. Had I found Petitioner was in substantial compliance on November 5, 1999, the only affected imposed penalties would have been the DPNA and the CMP from November 5, 1999 to January 20, 2000. Petitioner would have had to pay the other CMPs - from September 16, 1999 to November 4, 1999 and from January 21, 2000 to February 22, 2000 - due to not having appealed the deficiencies upon which the CMPs were based.

3. The burden of persuasion set forth in Hillman applies only where the evidence proffered by both sides in "in equipoise." In such cases, the burden of persuasion would be on the Petitioner.

4. Another general issue in long term care facility CMP cases is whether the amount of the penalty imposed by CMS is reasonable, if noncompliance is established. In this case, Petitioner conceded, at the hearing, that the per day amount of the CMP is reasonable. Tr. 482. Petitioner only questions whether there is a basis for the imposition of penalties.

5. I found Surveyor Ashley's testimony to be generally credible. During cross-examination, she was at times reluctant to admit basic things. Her reluctance appeared to me to be more a fear of harming CMS's case than a desire to be untruthful. Later in this decision, I note several instances where Surveyor Ashley's recollection seemed confused. Again, her general demeanor persuaded me she was not trying to be untruthful.

6. Petitioner contends that the care plan of two - four activities a week was approved by the State agency as part of the facility's plan of correction from the September 16, 1999 survey. Petitioner additionally argued that the stated date of expected implementation had not yet arrived. I note that the Departmental Appeals Board has concluded that a plan of correction is only a facility's plan for achieving compliance and simply following the plan does not mean that a facility will be found in compliance during a resurvey. Warren Barr, DAB No. 1705 (1999) at 5-8. Moreover, even if a plan of correction has been accepted, the facility is not regarded as in substantial compliance until CMS has determined, usually through a revisit survey, that the deficiency no longer exists. Brier Oak Terrace, DAB No. 1798 (2001).

7. What occurred during the clean-up of Resident 10 is the subject of Tag F498 and is discussed below beginning at page 20.

8. P. Ex. 12 and CMS Ex. 26 are both copies of the seven day voiding pattern that Petitioner had initiated for Resident 10. P. Ex. 12 has, however, far more entries completed. One can surmise that CMS Ex. 26 was copied at the time of the November 5, 1999 survey and obviously does not have entries for the later days of the week. This supposition does not explain why P. Ex. 12 has more completed entries for the earlier days of the week. I find that P. Ex. 12 is more complete because it contains entries for several shifts, not that Petitioner later "doctored" the form. Nonetheless, based on either CMS Ex. 26 or P. Ex. 12, Resident 10 was checked for continence at 7:00 a.m. and 8:00 a.m. on November 3, 1999.

9. Surveyor Ashley became confused during her cross-examination about this incident. She appeared unable to reconcile her notes with the 2567 form. Tr. 95 - 98. For this reason, her testimony regarding this incident was given less weight.