Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD

Civil Remedies Division

)
In the Case of: )
)
Concho Health & Rehabilitation Center, )
(CCN: 45-5737), ) Date: August 29, 2008
)
Petitioner, ) Docket No. C-06-344
) Decision No. CR1836
v. )
)
Centers for Medicare & Medicaid )
Services. )
)
DECISION

Petitioner, Concho Health & Rehabilitation Center, violated 42 C.F.R. §§ 483.13(c),
483.15(g)(1), 483.25, 483.25(c), 483.25(f)(1), 483.25(h)(2), and 483.25(i)(1),' based on
surveys of Petitioner’s facility completed from August 5, 2005 through January 25, 2006,
and all the violations caused actual harm to Petitioner’s residents. Petitioner was not in
substantial compliance with Medicare participation requirements from August 5, 2005
through February 1, 2006. A civil money penalty (CMP) of $400 per day for the period
from August 5, 2005 through February 1, 2006, is reasonable. The total amount of the
CMP is $72,400. A denial of payment for new admissions (DPNA) from October 19,
2005 through February 1, 2006 is also reasonable. Petitioner’s authority to conduct a
Nurse Aide Training and Competency Evaluation Program (NATCEP) was required to be
withdrawn for the two year period August 5, 2005 through August 4, 2007.

' All references are to the version of the Code of Federal Regulations (C.F.R.) in
effect at the time of the surveys, unless otherwise indicated.
I. Background

Petitioner is a skilled nursing facility located in Eden, Texas, licensed by the State of
Texas and authorized to participate in the federal Medicare program as a skilled nursing
facility (SNF) and the state Medicaid program as a nursing facility (NF). The Texas
Department of Aging and Disability Services (the state agency) completed surveys of
Petitioner’s facility on August 5, 2005,’ October 5, 2005, December 15, 2005, and
January 25, 2006. CMS Exhibits (CMS Exs.) 7, 22, 28,41. The surveyors found on each
survey that Petitioner was not in substantial compliance with program participation
requirements. Petitioner was cited with multiple deficiencies by the four surveys,
including eight deficiencies at a “G” scope and severity (S/S) level, a finding that there
was actual harm to residents but not immediate jeopardy.

The Centers for Medicare and Medicaid Services (CMS) notified Petitioner by letter
dated October 4, 2005, that based on the deficiencies found by the August 5, 2005-survey
CMS was imposing a CMP of $600 per day beginning on September 6, 2005; a DPNA
beginning on October 19, 2005 and continuing until Petitioner returned to substantial
compliance; termination of Petitioner’s provider agreement on February 5, 2006, if
Petitioner did not return to substantial compliance before that date; and withdrawal of
Petitioner’s authority to conduct a NATCEP. Joint Stipulation (Jt. Stip.) 6. CMS
notified Petitioner by letters dated January 25, 2006 and February 2, 2006, that based
upon the surveys completed on October 5, 2005, December 15, 2005, and January 25,
2006, the CMP of $600 began on August 5, 2005 (rather than September 6, 2005 as
Petitioner was notified by the October 4, 2005-letter), and the other remedies previously
imposed or proposed were unchanged. Jt. Stip. { 7-8. CMS notified Petitioner by letter
dated March 15, 2006, that a revisit survey found that Petitioner returned to substantial
compliance. The letter did not state the date on which Petitioner returned to substantial
compliance, but it did advise Petitioner that CMS was instructing the intermediary to
make payments for covered services beginning on February 2, 2006. Thus, Petitioner was
in substantial compliance again on February 2, 2006. The March 15 letter also advised
Petitioner that CMS reduced the CMP from $600 per day to $400 per day for the period
August 5, 2005 to February 1, 2006, for a total CMP of $72,400; the DPNA that
commenced on October 19, 2005, ended effective February 1, 2006, and the termination
action was rescinded. CMS Ex. 1.

> The Life Safety Code portion of this survey was completed on August 3, 2005,
but no alleged deficiency from that survey is at issue before me. CMS Ex. 4.
3

Petitioner requested a hearing by letter dated March 22, 2006. The case was assigned to
me for hearing and decision on April 7, 2006, and a Notice of Case Assignment and
Prehearing Case Development Order (Prehearing Order) was issued at my direction. The
case was set for hearing in San Antonio, Texas on September 26 and 27, 2006. On
September 15, 2006, Petitioner filed a waiver of oral hearing and the parties filed a joint
report on their agreement regarding a briefing schedule on September 29, 2006. I seta
briefing schedule by Order dated October 12, 2006. The parties filed their opening briefs
(CMS Brief and P. Brief, respectively) with their documentary evidence on November 17,
2006. Each of the parties advised me by separate letters dated December 4, 2006, that
they did not intend to file reply briefs. CMS offered proposed exhibits 1 through 58°
(CMS Exs. 1-58), and Petitioner offered proposed exhibits 1 through 87 (P. Exs. 1-87).'
No objections were made to the admission of either parties’ exhibits, and all are admitted
into the record.

> The exhibit list included in the CMS amended prehearing exchange file
November 17, 2006, is incorrect and the CMS exhibits submitted for my consideration are
misnumbered. The CMS exhibit list includes CMS Exs. 1 through 45 with CMS Exs. 42
through 45 listed as the affidavits of Vanoss, VanArsdale, Stemen, and McElroy,
respectively. After comparing the exhibits with the list, I find that CMS Exs. 1 through
41 appear to be correctly marked and listed. However, the exhibit list omits exhibits
which are marked as follows: CMS Ex. 42, Surveyor Notes Worksheet — Fiveash; CMS
Ex. 43, Surveyor Notes Worksheet — Vanoss; CMS Ex. 44, Surveyor Notes Worksheet —
Stemen; CMS Ex. 45, Investigation Report; CMS Ex. 46, Clinical Records — Resident 29;
CMS Ex. 47, Policy — Accidents and Incidents — Investigating and Reporting; CMS Ex.
48, Minimum Data Set (MDS) — Resident 30; CMS Ex. 49, Nurses Notes — Resident 30;
CMS Ex. 50, Clinical Records — Resident 30; CMS Ex. 51, Hand-written Statement —
Galvan; CMS Ex. 52, Clinical Records — Resident 30; CMS Ex. 53, Social Work Request
Log; CMS Ex. 54, Time Card Report. The CMS exhibits include the affidavits of
Vanoss, VanArsdale, Stemen, and McElroy, marked CMS Exhibits 42 through 45,
respectively. However, the affidavits are incorrectly numbered as the exhibit numbers 42
through 45 were used by CMS for other documents. Accordingly, I have remarked the
affidavits as follows: CMS Ex. 55 — Affidavit of Vanoss; CMS Ex. 56 — Affidavit of
VanArsdale; CMS Ex. 57 — Affidavit of Stemen; and CMS Ex. 58 — Affidavit of
McElroy.

* Petitioner’s exhibit list submitted with its brief describes P. Ex. 72 as “Medical

Records of Resident 22” but, in fact, the documents are the medical records of Resident
29. P. Brief at 22.
II. Discussion
A. Findings of Fact

The following findings of fact are based upon the exhibits admitted. Citations to exhibit
numbers related to each finding of fact may be found in the analysis section of this
decision if not indicated here.

1. Facts related to Resident 1 from the August 2005 survey, 42 C.F.R. § 483.25(c)
(Tag F314):

a. Resident 1 developed a pressure ulcer while in Petitioner’s care that was
discovered on or about April 12, 2005.

b. Resident 1’s pressure ulcer worsened while in Petitioner’s care between
April 12, 2005 and May 3, 2005, when she was sent to the hospital for
wound treatment.

c. Between March | and April 27, 2005, Petitioner’s assessments of Resident
*s skin were missing or deficient.

d. Petitioner failed to consult Resident 1’s physician immediately when it
appeared Resident 1’s pressure ulcer was worsening on April 18 and 19,
2005.
2. Resident 1’s care plan dated June 6, 2005, listed several interventions, including

that the resident be cleaned after each incontinent episode. CMS Ex. 8, at 36.

a. A surveyor observed Resident 1 on August 3, 2005, at 10:55 a.m. and again
at 11:25 a.m. with a Stage II pressure ulcer, redness on her left buttock and
gluteal fold, and feces between her buttocks and on the dressing covering
the pressure ulcer.

b. The surveyor’s observation of feces on the dressing of the pressure sore for
approximately 30 minutes shows that Petitioner did not provide necessary
care and services to keep the wound clean of fecal matter to promote
healing of the ulcer.

c. Resident | was, at times, noncompliant with Petitioner’s staff instructions
and her diet.
d.

5

The evidence does not show that Resident 1’s development of a pressure
ulcer and its subsequent worsening were unavoidable.

Resident | suffered actual harm.

Facts related to Resident 4 from the August 2005 survey, 42 C.F.R. § 483.25(c)
(Tag F314):

Resident 4 was assessed as at risk for development of pressure ulcers in
February 2005 and she was supposed to receive weekly skin assessments.

Petitioner’s records do not show that Resident 4 received weekly skin
assessments between February 2005 and March 31, 2005.

On March 31, 2005, a pressure ulcer was discovered on Resident 4’s right
eel, while she was in Petitioner’s care.

On April 7, 2005, the pressure sore on Resident 4’s right heel had worsened
and required debridement.

Resident 4 was in an acute care hospital from May 9 through July 19, 2005,
for treatment of the pressure sore on her right heel.

Between July 19 and August 4, 2005, Petitioner did not document
assessments of Resident 4’s pressure sore.

Resident 4’s right heel pressure sore did not show signs of improvement
etween July 19 and August 4, 2005.

Resident 4 suffered actual harm.

The evidence does not show that Resident 4’s development of a pressure
ulcer or its subsequent worsening was unavoidable.

Facts related to Resident 8 from the August 2005 survey, 42 C.F.R. § 483.25(c)
(Tag F314):

Resident 8 developed multiple pressure sores between November 8, 2004
and August 9, 2005.

The evidence does not show that Resident 8’s development of pressure
ulcers was unavoidable.
6

Facts related to Resident 23 from the December 2005 survey, 42 C.F.R.
§ 483.25(c) (Tag F314):

a. On December 6, 2005, Resident 23 had no pressure sore.

b. On December 14, 2005, the surveyor observed that Resident 23, who was in
is wheelchair, was not checked for incontinence or repositioned for
approximately 1 hour and 50 minutes; when checked the surveyor observed
that the resident was wet with urine, his buttocks were bright red, and he

ad a Stage II pressure ulcer below the coccyx.

c. Resident 23’s skin care plan dated November 18, 2005 required that his
skin be kept clean and dry. CMS Ex. 35, at 51.

d. Resident 23 developed a pressure ulcer while in Petitioner’s care.
e. Resident 23 suffered actual harm.
f. The evidence does not show that Resident 23’s pressure ulcer was

unavoidable.

Facts related to Resident 2 from the August 2005 survey, 42 C.F.R. § 483.25(i)(1)
(Tag F325):

a. Between February 2005 and August 3, 2005, Resident 2’s weight dropped
from 120 pounds to 88.1 pounds.

b. Petitioner does not deny and offers no explanation for why the June 9, 2005
physician order (CMS Ex. 9, at 21; P. Ex. 4, at 1, 3) to give Resident 2 a
liquified diet in a sippy cup and a supplement shake with each medication
pass was not implemented.

c. The evidence does not show that Petitioner provided Resident 2 adequate
nutrition to maintain her weight.

d. The evidence does not show that Resident 2’s clinical condition made it
impossible for her to maintain weight, or that weight loss was unavoidable.

e. Resident 2 suffered actual harm.
7

Facts related to Resident 5 and 6 from the October 2005 survey, 42 C.F.R.
§ 483.25(h)(2) (Tag F324):

g.

Resident 5 had a physician’s order dated September 1, 2005, that required
he be transferred only with a mechanical lift.

On October 4, 2005, the surveyor observed two staff transfer Resident 5
without a mechanical lift.

Transferring Resident 5 without a mechanical lift posed the risk for
accidental injury and more than minimal harm to the resident or staff.

Resident 6 was a big man and was assessed as requiring the assistance of
two persons for all transfers.

On September 9, 2005, a nurse aide attempted to transfer Resident 6 alone
from the toilet to his wheelchair and the resident fell.

On September 9, 2005, Resident 6 suffered a fractured right hip and a
fractured right clavicle due to his fall.

Resident 6 suffered actual harm.

Facts related to the violation of 42 C.F.R. § 483.13(c) cited by the January 2006
survey:

Petitioner’s policy, adopted pursuant to the requirement of 42 C.F.R.

§ 483.13(c), requires that Petitioner: (1) provide for the immediate safety of
a resident upon suspected abuse, including moving the resident to another
unit or room, providing one-on-one monitoring, suspending an accused
employee pending investigation, and implementing the discharge process
immediately for a resident who is a danger to self or others; and (2) initiate
behavior crisis management interventions as applicable.

Petitioner did not fully implement either intervention of its policy when
Resident 31 alleged abuse, sexual or physical, by Resident 29.

Petitioner failed to implement its policy prohibiting physical or mental
abuse of its residents.
8

Facts related to the violation of 42 C.F.R. § 483.15(g)(1) cited by the January 2006
survey:

a. Resident 29 was in need of medically-related social services from August
24, 2005 to January 23, 2006.

b. Medically-related social services were not provided to Resident 29 from
August 24, 2005 to January 23, 2006.

c. Resident 31 was in need of medically-related social services in January
2006.
d. Medically-related social services were not provided to Resident 31 from

January 23, 2006 to January 26, 2006.
e. Resident 29 suffered actual harm.
f. Resident 31 suffered actual harm.

Facts related to Resident 30 from the January 2006 survey, 42 C.F.R. § 483.25
(Tag F309):

a. Resident 30 refused to bear weight on his legs during a transfer on
December 3, 2005, which was contrary to his usual practice of pivoting on
is feet during transfers.

b. No assessment was done to determine why Resident 30 refused to bear
weight on his legs on December 3, 2005.

c. Resident 30 complained of pain in his right thigh during an Occupational
Therapy evaluation on December 7, 2005.

d. On December 8, 2005, Resident 30 complained during a Physical Therapy
evaluation of pain in his right leg and the physical therapist observed the
swelling of the right leg.

e. On December 8, 2005, Resident 30’s right leg was assessed based upon a
report to the DON that he complained of pain, his right upper leg was
swollen, warm to the touch, bruising was noted to the inner and outer thigh,
his right foot was rotated outward as he lay in bed, and he complained of
pain with movement.
9

An x-ray obtained on December 8, 2005 showed that Resident 30’s had an
intertrochanteric fracture of the right femur at the hip.

Resident 30 was given no pain medication despite his complaints of pain.

Resident 30 suffered actual harm.

Facts related to the violation of 42 C.F.R. § 483.25(f)(1) from the January 2006

survey:

g.

Resident 29 displayed mental or psychosocial adjustment difficulty as
alleged by the surveyor after she was moved from her old unit and room on
December 30, 2005.

Petitioner failed to implement intervention strategies to treat Resident 29’s
increased behavioral symptoms of wandering, and physical and sexual
aggression after her move on December 30, 2005, other than to obtain a
prescription of Ambien to help her sleep.

Resident 29 received no treatment or services to address her mental or
psychosocial difficulty adjusting to the move from her old unit to the new
unit, other than a prescription for Ambien to help her sleep.

Resident 29 received a psychosocial assessment, but not until January 23,
2006, the day before discharge.

Resident 29 displayed mental or psychosocial adjustment difficulty after the
alleged assault by Resident 29.

Resident 29 was referred to social work for another incident involving her
shoving another resident on January 26, 2005, but there is no evidence that
Resident 29 was assessed or treated for mental or psychosocial adjust
difficulty.

Resident 29 suffered actual harm.

Petitioner returned to substantial compliance as of February 2, 2006.
10
B. Conclusions of Law
Petitioner’s request for hearing was timely and I have jurisdiction.
Petitioner waived the right to an oral hearing.

Petitioner violated 42 C.F.R. § 483.25(c) (Tag F314, S/S G) as alleged by the
August and December 2005 surveys.

Petitioner violated 42 C.F.R. § 483.25(i)(1) (Tag F325, S/S G) as alleged by the
August 2005 survey.

Petitioner violated 42 C.F.R. § 483.25(h)(2) (Tag F324, S/S G) as alleged by the
October 2005 survey.

Petitioner violated 42 C.F.R. § 483.13(c) (Tag F224, S/S G) as alleged by the
January 2006 survey.

Petitioner violated 42 C.F.R. § 483.15(g)(1) (Tag F250, S/S G) as alleged by the
January 2006 survey.

Petitioner violated 42 C.F.R. § 483.25 (Tag F309, S/S G) as alleged by the January
2006 survey.

Petitioner violated 42 C.F.R. § 483.25(f)(1) (Tag F319, S/S G) as alleged by the
January 2006 survey.

Petitioner was not in substantial compliance with Medicare participation
requirements from August 5, 2005 through February 1, 2006.

A CMP of $400 per day for the period August 5, 2005 through February 1, 2006,
and DPNA from October 19, 2005 through February 1, 2006, are reasonable
enforcement remedies.

A CMP of $400 per day for the period August 5, 2005 through February 1, 2006,
and DPNA from October 19, 2005 through February 1, 2006, are not punitive.

The state agency was required to prohibit Petitioner from conducting a NATCEP
pursuant to 42 C.F.R. §§ 483.151(b)(2) and (e)(1) for the two-year period from
August 5, 2005 through August 4, 2007.
11

C. Issues*
The issues in this case are:

Whether there is a basis for the imposition of an enforcement
remedy; and,

Whether the remedy imposed is reasonable.
D. Applicable Law

The statutory and regulatory requirements for participation by a long-term care facility
are found at sections 1819 and 1919 of the Social Security Act (Act) and at 42 C.F.R. Part
483. Sections 1819 and 1919 of the Act vest the Secretary of the Department of Health
and Human Services (the Secretary) with authority to impose civil money penalties
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. “Substantial compliance means 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 (emphasis in original). A deficiency is a violation of a participation
requirement established by the Secretary through his regulations at 42 C.F.R. Part 483,
Subpart B. Facilities that participate in Medicare may be surveyed on behalf of CMS by
state survey agencies in order to determine whether the facilities are complying with
federal participation requirements. 42 C.F.R. §§ 488.10-488.28, 488.300-488.335. CMS
may impose a per instance or per day CMP against a long-term care facility when a state
survey agency concludes that the facility is not complying substantially with federal
participation requirements. 42 C.F.R. §§ 488.406; 488.408; 488.430. The regulations
also give CMS a number of other enforcement remedies that may be imposed if a facility
is not in compliance with Medicare requirements. 42 C.F.R. § 488.406.

> Petitioner asserts that it has raised numerous legal issues in its request for

hearing that are not within my authority to address and, therefore, Petitioner does not
address those issues in briefing before me. Petitioner’s Prehearing Brief (P. Prehearing
Brief) at 2-3. I do not address the issues to which Petitioner only alludes.
12

The regulations specify that a CMP that is imposed against a facility on a per day basis
will fall into one of two ranges of penalties. 42 C.F.R. §§ 488.408, 488.438. The lower
range of CMP, from $50 per day to $3000 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)(1)(ii). The upper range of CMP, from $3050 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)(1), (d)(2).
Pursuant to 42 C.F.R. § 488.301, “(i)mmediate jeopardy means a situation in which the
provider’s noncompliance with one or more requirements of participation has caused, or
is likely to cause, serious injury, harm, impairment, or death to a resident.” (Emphasis in
original). Immediate jeopardy is not alleged in this case.

The Act and regulations make a hearing before an ALJ available to a long-term care
facility against which CMS has determined to impose an enforcement remedy. Act,

§ 1128A(c)(2); 42 C.F.R. §§ 488.408(g), 498.3(b)(13). The hearing before an ALJ is a de
novo proceeding. Anesthesiologists Affiliated, et al., DAB CR65 (1990), aff'd, 941 F.2d
678 (8" Cir. 1991); Emerald Oaks, DAB No. 1800, at 11 (2001); Beechwood Sanitarium,
DAB No. 1906 (2004); Cal Turner Extended Care, DAB No. 2030 (2006); The Residence
at Salem Woods, DAB No. 2052, (2006). A facility has a right to appeal a “certification
of noncompliance leading to an enforcement remedy.” 42 C.F.R. § 488.408(g)(1); see
also, 42 C.F.R. §§ 488.330(e) and 498.3. However, the choice of remedies by CMS or
the factors CMS considered when choosing remedies are not subject to review. 42 C.F.R.
§ 488.408(g)(2). A facility may only challenge the scope and severity level of
noncompliance found by CMS ifa successful challenge would affect the range of the
CMP that could be imposed by CMS or impact upon the facility’s NATCEP. 42 C.F.R.
§§ 498.3(b)(14) and (d)(10)(1). CMS’s determination as to the level of noncompliance
“must be upheld unless it is clearly erroneous.” 42 C.F.R. § 498.60(c)(2). This includes
CMS’s finding of immediate jeopardy. Woodstock Care Center, DAB No. 1726, at 9, 38
(2000), aff'd, Woodstock Care Center v. Thompson, 363 F.3d 583 (6" Cir. 2003). The
Departmental Appeals Board (the Board) has long held that the net effect of the
regulations is that a provider has no right to challenge the scope and severity level
assigned to a noncompliance finding, except in the situation where that finding was the
basis for an immediate jeopardy determination. See, e.g., Ridge Terrace, DAB No. 1834
(2002); Koester Pavilion, DAB No. 1750 (2000). Review of a CMP by an ALJ is
governed by 42 C.F.R. § 488.438(e).

In this case, the state agency was required to withdraw Petitioner’s approval to conduct a
NATCEP. Pursuant to sections 1819(b)(5) and 1919(b)(5) of the Act, SNFs and NFs may
only use nurse aides who have taken a training and competency evaluation program.
Sections 1819(e) and 1919(e) of the Act impose upon the states the requirement to specify
what NATCEPs they will appro
and a process for reviewing and
Secretary. Pursuant to sections

13

ve that meet the requirements established by the Secretary
reapproving those programs using criteria set by the
1819(f)(2) and 1919(f)(2), the Secretary was tasked to

develop requirements for approval of NATCEPs and the process for review of those
programs. The Secretary promulgated regulations at 42 C.F.R. Part 483, Subpart D.
Pursuant to 42 C.F.R. §§ 483.151(b)(2) and (e)(1), a state may not approve and must

withdraw any prior approval of

facility: (1) that has been subjec
1819(g)(2)(B)(i) or 1919(g)(2)(B

less than $5000; or (3) that has
a DPNA, or the appointment of

a NATCEP offered by a skilled nursing or nursing

t to an extended or partial extended survey under sections
)(i) of the Act; (2) that has been assessed a CMP of not
een subject to termination of its participation agreement,
temporary management. Extended and partial extended

surveys are triggered by a finding of “substandard quality of care” during a standard or

abbreviated standard survey an
“Substandard quality of care” is

involve evaluating additional participation requirements.
identified by the situation where surveyors identify one

or more deficiencies related to participation requirements established by 42 C.F.R.

§ 483.13 (Resident Behavior an
§ 483.25 (Quality of Care) that
pattern of or widespread actual
widespread potential for more t!
jeopardy and there is no actual

When a penalty is proposed an
facility has failed to comply su
facie” means that the evidence i
unless disproved or rebutted. B

d Facility Practices), § 483.15 (Quality of Life), or

are found to constitute either immediate jeopardy, a
arm that does not amount to immediate jeopardy, ora
an minimal harm that does not amount to immediate
arm. 42 C.F.R. § 488.301.

appealed, CMS must make a prima facie case that the
stantially with federal participation requirements. “Prima
s “(s)ufficient to establish a fact or raise a presumption
lack’s Law Dictionary 1228 (8" ed. 2004). See also,

Hillman Rehabilitation Center, DAB No. 1611, at 8 (1997), aff'd, Hillman Rehabilitation
Center v. U.S. Dept. of Health and Human Services, No. 98-3789 (GEB) (D.N.J. May 13,
1999). To prevail, a long-term care facility must overcome CMS’s showing by a
preponderance of the evidence. Evergreene Nursing Care Center, DAB No. 2069, at 7-8
(2007); Emerald Oaks, DAB No. 1800 (2001); Cross Creek Health Care Center, DAB
No. 1665 (1998); Hillman Rehabilitation Center, DAB No. 1611.

E. Analysis

The parties stipulated that Petitioner was cited with the following deficiencies (regulatory
violations) by the survey that ended on August 5, 2005:° 42 C.F.R. §§ 483.10(e) (Tag

° Three other deficiencies were cited in the Statement of Deficiencies (SOD) for
this survey but all at a scope and severity of B, which means there was not even minimal
(continued...)
14

F164,’ at a scope and severity level (S/S) D*); 483.13(a) (Tag F221, S/S D); 483.15(a)
(Tag F241, S/S E); 483.20(k)(2)’ (Tag F280, S/S D); 483.25(a)(3) (Tag F312, S/S D);
483.25(c) (Tag F314, S/S G); 483.25(h)(1) (Tag F323, S/S E); 483.25(h)(2) (Tag F324,
S/S D); 483.25(i)(1) (Tag F325, S/S G); 483.65(a)(1)-(3) (Tag F441, S/S E); 483.70 (K
Tag 069, S/S F); and 483.75(f) (Tag F498, S/S E). Jt. Stip.; see also, Joint Statement of
Issues (Jt. Statement).

°(...continued)
harm due to the deficiency. CMS Ex. 7. Thus, those alleged deficiencies could not be the
basis for the imposition of an enforcement remedy and were not subject to my review. 42
C.F.R. §§ 488.330(e), 488.408(g)(1), and 498.3

7 This is a “Tag” designation as used in the State Operations Manual (SOM),

Appendix PP — Guidance to Surveyors for Long Term Care Facilities. The “Tag” refers
to the specific regulatory provision allegedly violated and CMS’s guidance to surveyors.
Although the SOM does not have the force and effect of law, the provisions of the Act
and regulations interpreted clearly do have such force and effect. State of Indiana by the
Indiana Department of Public Welfare v. Sullivan, 934 F.2d 853 (7" Cir. 1991);
Northwest Tissue Center v. Shalala, | F.3d 522 (7" Cir. 1993). Thus, while the Secretary
may not seek to enforce the provisions of the SOM, he may seek to enforce the provisions
of the Act or the regulations as interpreted by the SOM.

’ Scope and severity levels are used by CMS and a state when selecting remedies.

The scope and severity level is designated by an alpha character, A through L, selected by
CMS or the state agency from the scope and severity matrix published in the SOM, Chap.
7, § T400E. A scope and severity level of A, B, or C indicates a deficiency that presents
no actual harm but has the potential for minimal harm. Facilities with deficiencies of a
level no greater than C remain in substantial compliance. 42 C.F.R. § 488.301. A scope
and severity level of D, E, or F indicates a deficiency that presents no actual harm but has
the potential for more than minimal harm that does not amount to immediate jeopardy. A
scope and severity level of G, H, or I indicates a deficiency that involves actual harm that
does not amount to immediate jeopardy. Scope and severity levels J, K, and L are
deficiencies that constitute immediate jeopardy to resident health or safety. The matrix,
which is based on 42 C.F.R. § 488.408, specifies which remedies are required and
optional at each level based upon the frequency of the deficiency. See SOM, Chap. 7,

§ 7400E.

° The parties indicate in their stipulation that the applicable regulations are
actually at 42 C.F.R. §§ 483.10(k)(2) and 483.20(d)(3).
15

The parties stipulated that Petitioner was cited with the following deficiencies by t!
survey that ended on October 5, 2005: 42 C.F.R. §§ 483.20(k)(2)'° (Tag F280, S/S D);
483.483.25(h)(2) (Tag F324, S/S G); and 483.60(e) (Tag F432, S/S E). Jt. Stip.; Jt.
Statement.

o

The parties stipulated that Petitioner was cited with the following deficiencies by the
survey that ended on December 15, 2005: 42 C.F.R. §§ 483.13(a) (Tag F221, S/S D);
483.25(a)(3) (Tag F312, S/S D); 483.25(c) (Tag F314, S/S G); 483.25(f)(1) (Tag F319,
S/S D); 483.25(j) (Tag F327, S/S D); 483.60(a) (Tag F426, S/S D); 483.65(a)(1)-(3) (Tag
F441, S/S D); and 483.75(f) (Tag F498, S/S E). Jt. Stip.; Jt. Statement.

The parties stipulated that Petitioner was cited with the following deficiencies by the
survey that ended on January 25, 2006: 42 C.F.R. §§ 483.12(a)(7) (Tag F204, S/S D);
483.13(c) (Tag F224, S/S G); 483.13(c)(1)(ii) & (iii), (2), (3), & (4) (Tag F225, S/S D);
483.15(g)(1) (Tag F250, S/S G); 483.25 (Tag F309, S/S G); and 483.25(f)(1) (Tag F319,
S/S G). Jt. Stip.; Jt. Statement.

Petitioner disputed and requested review as to all the foregoing alleged deficiencies in its
March 22, 2006, request for hearing. The parties agreed in their Joint Statement of Issues
filed on June 22, 2006 that all the foregoing alleged deficiencies were before me for
hearing and decision and they also stipulated to that in the Joint Stipulation of Undisputed
Facts filed the same day. However, in its Prehearing Brief filed on July 6, 2006, CMS
only discusses those deficiencies cited at a scope and severity level of G (actual harm but
no immediate jeopardy). Petitioner also limits the discussion in its prehearing brief to the
deficiencies cited at a scope and severity of G. Similarly, the parties only discuss the G-
level deficiencies in their briefs on the merits, filed on November 17, 2006. The parties
do not disclose whether there is a sub rosa agreement or other reason that the parties
address only the deficiencies cited at a scope and severity of G. However, counsel for
CMS has the apparent authority to pursue on behalf of its client (the Secretary and CMS)
only the deficiencies it deems appropriate to pursue. I construe the CMS prehearing
briefing and briefing on the merits to be conclusive evidence that CMS elects to pursue as
a basis for the proposed enforcement remedies only the alleged deficiencies at a scope
and severity of G and that CMS has waived proceeding on any of the deficiencies cited at
another scope and severity level. My conclusion is consistent with the CMS argument
that the $400 per day CMP for the period August 5, 2005 through February 1, 2006 is
reasonable based upon the eight deficiencies cited at a scope and severity of G, i.e., actual
harm but no immediate jeopardy. CMS Prehearing Brief at 20; CMS Brief at 5-6. My

‘© The parties indicate in their stipulation that the applicable regulations are
actually at 42 C.F.R. §§ 483.10(k)(2) and 483.20(d)(3).
16

review of only the G-level deficiencies does not prejudice CMS given the decision in this
case. I also find no prejudice to Petitioner by reviewing fewer than all the alleged
deficiencies alleged to have posed more than minimal harm. I specifically do not
consider deficiencies not reviewed in this decision when assessing the reasonableness of
the enforcement remedy imposed.

Based upon the foregoing discussion, I conclude that only the following deficiencies
remain at issue before me: (August Survey) 42 C.F.R. §§ 483.25(c) (Tag F314, S/S G);
483.25(i)(1) (Tag F325, S/S G); (October Survey) 483.483.25(h)(2) (Tag F324, S/S G);
(December Survey) 483.25(c) (Tag F314, S/S G); (January Survey) 483.13(c) (Tag F224,
S/S G); 483.15(g)(1) (Tag F250, S/S G); 483.25 (Tag F309, S/S G); and 483.25(f)(1)
(Tag F319, S/S G).

1. Petitioner violated 42 C.F.R. § 483.25(c) (Tag F314, S/S G) as alleged
by the August and December 2005 surveys.

Petitioner is obligated, by its participation in Medicare, to provide and ensure that each
resident receives the “necessary care and services to attain or maintain the highest
practicable physical, mental, and psychosocial well-being, in accordance with the
comprehensive assessment and plan of care.” 42 C.F.R. § 483.25. The facility, as part of
its obligation to deliver quality care under 42 C.F.R. § 483.25, must ensure that a resident
who enters the facility without a pressure sore does not develop one unless the resident’s
clinical condition demonstrates that development of a pressure sore is unavoidable. The
regulation also requires that, for a resident with a pressure sore on admission, the facility
must deliver care and services necessary to promote healing, prevent infection, and
prevent development of new sores. 42 C.F.R. § 483.25(c).

The application of this regulation is well-established by decisions of various appellate
panels of the Board. Koester Pavilion, DAB No. 1750 (2000) and Cross Creek Health
Care Center, DAB No. 1665 (1998) are leading decisions in this area. The Board has
noted that the pressure sore regulation contains two prongs: (1) a facility must ensure a
resident who enters the facility without sores does not develop sores unless the resident’s
clinical condition demonstrates that pressure sores are unavoidable; and (2) a resident
with pressure sores must receive necessary treatment and services to promote healing,
prevent infection and prevent new sores. With respect to prevention and treatment of
pressure sores, the Board has concluded that a facility bears a duty to “go beyond merely
what seems reasonable to, instead, always furnish what is necessary to prevent new sores
unless clinically unavoidable, and to treat existing ones as needed.” Koester Pavilion,
DAB No. 1750, at 32; see also, Meadow Wood Nursing Home, DAB No. 1841 (2002)
17

(loose dressing contaminated with fecal matter constitutes violation); Ridge Terrace,
DAB No. 1834, at 15-16 (a single observation by a surveyor of a nurse aide cleaning an
open sore area with a stool-stained washcloth was sufficient to sustain a deficiency
finding under this Tag).

An appellate panel of the Board, in Clermont Nursing and Convalescent Center, DAB
No. 1923 (2004), aff'd, Clermont Nursing and Convalescent Ctr. v. Leavitt, 142
Fed.Appx. 900 (6" Cir. 2005), provided the following analysis:

The standard of necessity is expressly articulated in the
regulation. The primary regulatory requirement is that
residents must receive, and facilities must provide, “the
necessary care and services” for attainment or maintenance of
the highest practicable resident well-being. 42 C.F.R.

§ 483.25 (emphasis supplied). The regulation then goes on to
provide that a resident with pressure sores must receive
“necessary treatment and services” for healing, prevention of
infection, and prevention of yet more pressure sores. 42
C.F.R. § 483.25(c)(2)(emphasis supplied). We therefore
reject Clermont’s contention that the standard is “nowhere in
the regulation.” That argument is belied by the plain
language of the regulation.

Moreover, as we explained in Koester Pavilion, in the

preamble to the final regulation, CMS expressly declined to
use “less demanding” language with respect to a facility’s
obligation to “ensure” outcome of treatment for pressure
sores. Koester Pavilion at 30, quoting 56 Fed. Reg. 48,826, at
48,850 (Sept. 26, 1991). CMS recognized that factors beyond
required treatment and services, such as disease process and
resident compliance, affect care outcome. /d. However,
CMS also recognized that the regulation allows a facility to
put forward “available clinical evidence” to show that “a
negative resident care outcome was unavoidable.” Jd. The
preamble further provides that facilities “should always
furnish the necessary treatment and services” for pressure sore
prevention or healing. /d. at 30-31 (emphasis supplied).
Thus, a facility may provide necessary treatment and services

18

to ensure the prevention or healing of pressure sores, yet still
be confronted with a negative outcome. In that instance, the
facility may put forward clinical evidence to show that the
outcome was unavoidable.

See also, Woodland Village Nursing Center, DAB No. 2172, at 12-14 (April 23, 2008).
a. August 2005 Survey.

The surveyors alleged in the SOD that the regulation was violated because Petitioner
failed to ensure that Resident | and Resident 4 received consistent assessments and care
to prevent the decline of their pressure sores.'' The surveyors also alleged that Petitioner
failed to identify the development of a pressure sore on Resident 8 who was admitted
with no pressure sores. CMS Ex. 7, at 19-20.

(1) Resident 1.

It is alleged in the SOD that a surveyor observed Resident | on August 3, 2005, at 10:55
a.m. The surveyor observed that the resident had a Stage II ulcer with some redness
noted on her left buttock and gluteal fold, and that there were feces between her buttocks
and on the dressing covering the pressure ulcer. The surveyor observed Resident | again
30 minutes later at 11:25 a.m., with feces on the gluteal fold. CMS Ex. 7, at 20. Upon
inspection of Petitioner’s records, the surveyors did not find Resident | listed on Weekly
Skin Condition Reports and they found no indication in Nurse’s Notes for the period
March | through 13, 2005, that Resident 1 had any skin assessments done. A Weekly
Skin Condition Report dated April 11, 2005, listed Resident | with skin condition noted
to be fair with no reference to any pressure ulcers. However, the surveyors located a
nurse’s note dated April 12, 2005 that indicated that the resident complained of
discomfort at her buttocks and assessment revealed a Stage II pressure ulcer. The
surveyors observed that the Weekly Skin Condition Report dated April 12, 2005 did not
include the assessment of Resident 1. However, the Weekly Skin Condition Report dated
April 18, 2005, listed her skin assessment as fair with a Stage II ulcer that was larger than
the original assessment. The surveyors reported that they found no other Weekly Skin
Condition Report dated in April 2005 that mentioned Resident 1. The surveyors note that
Nurse’s Notes for April 27, 2005 show that Resident 1’s ulcer had worsened but they

'!_ “Pressure sore” means ischemic ulceration and/or necrosis of tissues overlying

a bony prominence that has been subjected to pressure, friction or shear. SOM, App. PP,
Guidance To Surveyors, Tag F314. Pressure sore and pressure ulcer are synonymous as
used in this decision.
19

found no evidence that her physician was consulted until April 28, 2005. The surveyor
alleged that Nurse’s Notes for April 30 and May 1, 2005 show the pressure ulcer
continued to decline and that Resident 1 was transferred on May 3, 2005 to an acute care
hospital for wound care. CMS Ex. 7, at 21-22.

The surveyors alleged that Petitioner was deficient in the care of Resident | because she
developed a pressure ulcer about April 12, 2005, which then worsened. The surveyors
alleged that Petitioner’s assessments of the resident’s skin were absent or deficient
between March | and April 27, 2005; that Petitioner failed to consult the resident’s
physician when it was noted the ulcer had worsened; and that on August 3, 2005, the
resident had feces on her pressure ulcer dressing and buttocks that was not cleaned for 30
minutes.

My review of Petitioner’s clinical records for Resident | introduced by CMS is consistent
with the surveyors’ allegations. Resident 1’s MDS with an assessment reference date of
January 19, 2005, the last day of the seven-day assessment period, shows that she
required extensive assistance for bed mobility, was totally dependent for transfers, but she
was able to move in her room and on the unit once in her wheelchair. The MDS also
shows she was incontinent of bowel, she suffered from diabetes and multiple sclerosis
(MS), she had partial-loss of use of both legs and feet, her skin was desensitized to pain
or pressure, she had pressure relieving devices for her bed and wheelchair, she was on a
turning/repositioning program, and she had application of medicine or ointments and
other preventative treatment to skin other than just her feet. The MDS shows she had no
ulcers, stasis or pressure. CMS Ex. 8, at 37-40. Resident 1’s MDS with an assessment
reference date of April 18, 2005, contains the additional diagnoses of congestive heart
failure, peripheral vascular disease, hypertension, and cancer. The April 18 MDS also
shows that the resident had a Stage II pressure ulcer, reports that the resident had an ulcer
that was resolved or cured in the last 90 days, that she was receiving treatment for the
ulcer, but otherwise the MDS is similar to the previous MDS. Monthly Resident Status
reports dated January 4, 2005, February 4, 2005, and March 5, 2005, show that the
resident’s skin was assessed and she had no pressure ulcers. CMS Ex. 8, at 22-33.
Nurse’s Notes dated March | through 13, 2005, do not show any assessment of skin
integrity or any skin problems. CMS Ex. 8, at 12-14. A Nurse’s Notes entry dated April
12, 2005, records that the resident complained of discomfort on her buttocks and, upon
examination, it was discovered that she had a Stage II pressure sore on her left inner
buttock measuring 2 cm by 1.5 cm by | cm and a facsimile was sent to her doctor. CMS
Ex. 8, at 15, 17. Notes from April 13 through April 17, 2005, show that Lantispetic was
applied to the buttock wound, that Resident 1 was turned and repositioned while in bed,
and that she would reposition herself in her wheelchair, but the notes do not indicate
whether or not the repositioning in the wheelchair was consistent with physician or staff
direction. CMS Ex. 8, at 15-16. A note dated April 17, 2005, states that the ulcer had

20

worsened, increasing in size with a yellow area in the inner edge and that Resident 1
refused to lie down after lunch. Other Nurse’s Notes entries on April 18 and 19, 2005,
show that the wound was not improving, that Lantispetic continued to be applied, but
there is no indication that the physician was consulted. There are no Nurse’s Notes
entries between April 19 and 27, 2005. A Nurse’s Notes entry on April 27, 2005, shows
that the decubitus ulcer on the resident’s left inner buttock had increased in size, had
necrotic tissue, and serosanguineous drainage. Registered Nurse (R.N.) Davis was
informed and she was going to advise the physician and obtain an order for different
treatment. CMS Ex. 8, at 16; P. Ex. 3, at3. A Nurse’s Notes entry on April 28, 2005, at
10:00 a.m. shows that a new order had been received directing changes to the treatment of
the left inner buttock pressure ulcer. A Nurse’s Notes entry at 9:00 p.m. states that
treatment was done to the left inner buttock; I infer that this was the first implementation
of the new orders from 10:00 a.m. as there are no intervening notes. The note indicates
that there was necrotic tissue surrounded by yellow; the skin around the wound was bright
red; there was a foul odor from the ulcer; and a moderate amount of serosanguineous
drainage. The note indicates that Resident 1 was aware that she needed to stay off the
wound as much as possible but she said she was not staying in bed all the time. CMS Ex.
8, at 19; P. Ex. 3, at 4. A note dated April 29, 2005, at 9:30 a.m. shows treatment was
given for the wound and it had an “extremely foul odor” and that the resident was
removed from bed and put in her wheelchair per her demand. CMS Ex. 8, at 19; P. Ex. 3,
at 4. The Nurse’s Notes for May 3, 2005, show that the resident was sent to the hospital
for treatment of the ulcer, which was noted to be surrounded by dark pink, with yellow
and black necrotic tissue, a strong foul odor, and a large amount of drainage. Resident 1
complained of pain but refused pain medication. CMS Ex. 8, at 20.

The evidence shows that Resident 1 developed a pressure ulcer while in Petitioner’s care
which was discovered on April 12, 2005, and that ulcer worsened. The resident suffered
actual harm in the form of the ulcer and associated pain. I conclude based upon the
evidence that CMS has made a prima facie showing of a violation of 42 C.F.R.

§ 483.25(c) and the resident suffered actual harm.

Resident 1’s care plan dated June 6, 2005, listed several interventions, including that the
resident is cleaned after each incontinent episode. CMS Ex. 8, at 36. The surveyor’s
observation that the resident had feces on and near the dressing on her pressure sore on
August 3, 2005, is unrebutted. Thus, the evidence shows that Petitioner’s care planned
intervention to clean the resident after each incontinent episode was not followed on
August 3, 2005. I infer that the planned intervention was deemed necessary by Resident
1’s care planning team to promote healing of her left buttock pressure ulcer. I conclude
that the surveyor’s observation shows that Petitioner did not provide necessary care and
services to promote healing of the ulcer.
21

Petitioner does not deny that Resident 1 developed a pressure ulcer on her left buttock
about April 12, 2005. Petitioner notes that when the ulcer was discovered, treatment
orders were obtained and care was initiated. Petitioner does not deny that the wound
worsened before the resident was sent to the hospital on May 3, 2005. Petitioner argues
that the resident was noncompliant because she refused to lie down on April 17, 2005;
because she wanted to be out of bed in her wheelchair on April 28 and 29, 2005; and
because she refused to comply with her diabetic diet. However, Petitioner cites no
evidence of any interventions to deal with the Petitioner’s noncompliance. Petitioner
mentions that Resident | could reposition herself in her wheelchair but does not
characterize that as a problem of noncompliance. Petitioner argues that interventions
were ordered and implemented after Resident | returned from the hospital. Petitioner
does not dispute that the surveyor observed feces on Resident 1’s buttocks on the dressing
on her pressure ulcer or that the feces remained for 30 minutes in contravention of an
intervention to keep the resident clean. Petitioner offers no opinion, medical or
otherwise, and does not argue that the development of the ulcer or its worsening was
unavoidable because the resident was noncompliant with interventions or due to the
nature of her health problems. P. Brief at 7-10.

I conclude that Petitioner has failed to show it was in substantial compliance or had an
affirmative defense in the case of Resident |.

(2) Resident 4.

The surveyors alleged that Resident 4 was returned to Petitioner on July 19, 2005, after
treatment at a long-term acute care hospital for treatment of a right heel pressure ulcer.
Resident 4 was assessed as at risk for development of pressure ulcers in February 2005
and she was supposed to receive weekly skin assessments. The surveyors reviewed
Petitioner’s Weekly Skin Condition Report book which contained only reports dated
March 23 and 29, 2005 and neither mentioned Resident 4. Nurse’s Notes on March 31,
2005 show that a Certified Nurse Assistant (CNA) discovered and reported a reddened
area on the resident’s right heel. The resident’s physician issued orders. Nurse’s Notes
dated April 7, 2005, showed that the pressure sore had worsened and was debrided. A
Weekly Skin Condition Report dated April 11, 2005, showed that the ulcer had worsened.
The surveyors reviewed a Weekly Skin Condition Report dated April 18, 2005 but they
do not report what it said. On May 9, 2005, the resident was transferred to the acute care
hospital for wound treatment. The surveyors reviewed Resident 4’s MDS dated July 25,
2005, which showed she continued with a Stage III pressure ulcer on her right heel, after
her return from the hospital. The surveyors found no evidence that, between July 19,
2005 and August 4, 2005, staff assessed or documented any changes in the resident’s
pressure ulcer. CMS Ex. 7, at 22-25.
22

The allegations are that Resident 4 was assessed as at risk for pressure ulcers in February
2005, the evidence the surveyor reviewed did not show regular assessments for the
resident’s skin, an ulcer was discovered on Resident 4’s right heel on March 31, 2005, the
ulcer worsened until the resident had to be transferred to the hospital for wound
treatment, and after her return assessments were not documented as having been done.
The surveyors’ allegations are consistent with the evidence offered by CMS. CMS Ex.
11.

Resident 4’s MDS with an assessment reference date of January 20, 2005, shows that she
had no ulcers but she had pressure relieving devices for her chair and bed and that she had
application of ointments, medications, and other protective skin care. CMS Ex. 11, at 42-
44. A significant change MDS with an assessment reference date of February 16, 2005,
shows that she had no pressure ulcers and the pressure relieving devices for her chair and
bed and other skin care was unchanged from the prior MDS. CMS Ex. 11, at 52,55. A
Monthly Resident Status report dated March 15, 2005, stated that Resident 4’s skin was
easily bruised but her skin integrity was intact. CMS Ex. 11, at 71. Nurse’s Notes entries
for March 10 through 21, 2005, give no indication of any problem with ulcers. A note
dated March 31, 2005, shows that a CNA discovered a reddened area on the resident’s

right heel that appeared as a blister 4 cm by 2 cm, with a slightly yellow center, but was
not open. Resident 4’s physician was notified and ordered that Duoderm, a special
dressing often used with ulcers, be applied. Another note on March 31, 2005, indicates
that staff encouraged Resident 4 to use a pillow to “float” the heel. CMS Ex. 11, at 28.
The Nurse’s Notes entries show that staff found it difficult to keep the Duoderm in place.
A note on April 7, 2005 records that the ulcer was open and bleeding with a very foul
odor and the physician, who was present, ordered that the wound be debrided. CMS Ex.
11, at 26. Nurse’s Notes show that Resident 4 was readmitted to Petitioner on July 19,
2005, and she continued to have a right heel ulcer and she was noted to have a Stage I
decubitus ulcer on her right buttock. CMS Ex. 11, at 29.

0a

A Nurse’s Note entry dated July 19, 2005 at 3:00 p.m. states that the right and left heels
will be assessed “tomorrow.” CMS Ex. 11, at 29. A note dated July 20, 2005, at 10:00
a.m. indicates that the dressing on the right heel was changed but no observations
regarding the wound are listed. CMS Ex. 11, at 30. A note dated July 21, 2005, at 2:00
a.m. shows Resident 4 complained of pain in both lower extremities, the dressings were
noted to be dry and intact, the resident was given Lortab, and the nurse noted that
monitoring would continue. A note at 10:00 a.m. on July 21, 2005, discusses right and
left lower legs but not the right heel. CMS Ex. 11, at 30. Notes on July 22, 23, and 25,
2005, indicate that right heel was treated as ordered but the wound on the right heel is not
23

described. CMS Ex. 11, at 32. A note dated July 26, 2005, at 2:30 p.m. shows that the
physician was there to see the resident’s right heel ulcer and right leg, a culture from the
wound on the right leg showed positive for MRSA infection (Methicillin-resistant
Staphylococcus aureus) but the right heel ulcer is not described. CMS Ex. 11, at 31.

Resident 4’s MDS with an assessment reference date of July 22, 2005, shows that she had
one Stage II and one Stage III pressure ulcer. CMS Ex. 11, at 13. Her pressure ulcer care
plan dated July 19, 2005, showed she had a Stage II or III ulcer on the side of her right
heel with purulent drainage. Interventions listed included assessing the ulcer daily. CMS
Ex. 11, at 47. A Skin Grid — Other Skin Problems dated July 19, 2005, does not list the
right heel ulcer. CMS Ex. 11, at 76-77. A Weekly Skin Assessment dated July 19, 2005,
does not list the right heel ulcer. CMS Ex. 11, at 78-79. A physician order dated July 21,
2005, reflects a change in treatment for the right heel ulcer but provides no detail for the
state of the wound. CMS Ex. 11, at 80.

The evidence shows Resident 4 developed a pressure ulcer on her right heel that was
discovered by a CNA on March 31, 2005, while the resident was in Petitioner’s care.
Between March 31 and April 7, 2005 the ulcer worsened and Resident 4 was sent to the
hospital for care of the wound. After the resident was returned to Petitioner on July 19,
2005, the evidence does not show that the resident’s right heel ulcer was assessed
although a care plan was created. Between the resident’s return to Petitioner on July 19,
2005, and the date of the survey there is no assessment in the records obtained by CMS
that show there was any improvement in the right heel ulcer. Accordingly, I conclude
that CMS has made a prima facie showing of a violation of 42 C.F.R. § 483.25(c) due to
the development and worsening of the right heel ulcer in March and April 2005, and the
absence of evidence of improvement in the ulcer after the resident’s return to Petitioner
on July 19, 2005. The resident suffered actual harm evidenced by the development of the
wound and pain related to the wound.

Petitioner argues that there was no assessment documented between April 1 and 7, 2005,
because the assessments were only planned to be done weekly. Petitioner also argues that
because the dressing was coming off the right heel wound in April, staff was obviously
seeing the wound as did the physician who assessed the wound himself and had the
resident sent out for debridement. Petitioner points to a physician’s progress note dated
July 26, 2005 (P. Ex. 6, at 1), and asserts it states no recent drainage from wounds, but my
review of the document reveals that it was based on a patient report and does not specify
which of multiple wounds were included. Petitioner introduced a Month Resident Status
Report dated August 28, 2005 (P. Ex. 6, at 12-15) that described the wound. P. Brief at
10-11. I note, however, that this report is from 23 days after the survey and because there
are no assessments in the record done between July 19 and August 28, 2005, it is not
possible for me to determine whether or not Petitioner provided necessary care to improve
24

the wound. Petitioner points to no opinion and does not argue that the development of the
right heel pressure ulcer was unavoidable. Petitioner also fails to offer opinion, argument,
or documentary evidence that the right heel ulcer ever improved while Resident 4 was in
Petitioner’s care.

Accordingly, I conclude that Petitioner has failed to show it was in substantial compliance
or that it had an affirmative defense relative to Resident 4.

(3) Resident 8.

The surveyors reviewed Resident 8’s MDS dated November 8, 2004 and noted the MDS
indicated that she had no pressure ulcers. However, Resident 8’s quarterly review
assessment on May 6, 2005 showed she had two Stage I pressure ulcers. Physician’s
progress notes dated July 15, 2005, showed the resident suffered from peripheral vascular
disease with poor circulation. On August 3, 2005, the surveyor observed that Resident 8
had a Stage II pressure ulcer on her right buttock, even though the surveyors were told the
previous day that no one on the unit had a pressure ulcer. The surveyors found no
evidence that Resident 8 had a skin assessment between May 29, 2005 and July 11, 2005,
despite the fact that her care plan required assessments and that the assessments be
recorded. CMS Ex. 7, at 25-26; CMS Ex. 56, at 6-7. Petitioner does not address Resident
8 in its brief and the observations of the surveyors in the SOD are unrebutted and not
disputed. The evidence Petitioner produced confirms that Resident 8 was assessed on
August 9, 2005, with a Stage I decubitus ulcer on her left buttock, a Stage II on her
coccyx, and a Stage II on her right buttock. P. Ex. 8, at 5. A physician progress note
dated August 5, 2005, mentioned a Stage II ulcer on the resident’s coccyx. P. Ex. 8, at 1.
Nurse’s Notes entries from August 5 and 7, 2005, show the resident had a Stage II ulcer
on her coccyx, a Stage I on her left buttock, and a Stage II on her right buttock. P. Ex. 8,
at 3. Petitioner presents no evidence or argument to show that Resident 8 was properly
assessed or that the resident’s ulcers were unavoidable. Accordingly, I conclude
Petitioner violated 42 C.F.R. § 483.25(c). Resident 8 suffered actual harm in the form of
the ulcers that developed in early August 2005.

b. December 2005 Survey.

The SOD from the survey that ended on December 15, 2005, alleged that Petitioner failed
to ensure that Residents 5, 23, and 28, who entered the facility without pressure ulcers,
received the treatment and service necessary to prevent the development of ulcers. CMS
Ex. 28, at 6-7. It is sufficient to show a violation of the regulation with one example cited
by the surveyors. In the interest of judicial economy, I address the first example
presented by the surveyors in the SOD, Resident 23.
25

The surveyors alleged that Resident 23’s MDS dated November 18, 2005, showed no
pressure ulcers. A Monthly Summary dated November 24, 2005, showed no pressure
ulcers. A Weekly Skin Assessment dated December 6, 2005, also showed no new areas,
which the surveyors apparently interpreted to mean no pressure ulcers. The SOD reports
that a surveyor continuously observed the resident on December 14, 2005, from 11:20
a.m. to 1:10 p.m.; the resident was sitting in his wheelchair and was not checked for
incontinence or repositioned during the period. At 1:10 p.m. on December 14, the
surveyor observed Resident 23 transferred to his room and bed and he was provided
incontinent care. At 1:15 p.m. the surveyor observed that the resident’s buttocks were
wet with urine, excoriated, and bright red. The surveyor also observed an open sore
below the coccyx, approximately 0.5 cm in diameter, that extended through layers of skin
that was subsequently assessed by Petitioner’s staff as a Stage II pressure sore. The SOD
reports the surveyor was told at 1:30 p.m. by a nurse responsible for skin assessments that
the pressure ulcer had not previously been observed, which conflicted with the report of
the resident’s wife that an aide told her the resident had bed sores. CMS Ex. 28, at 7-8.

The clinical records presented by CMS are consistent with the allegations in the SOD.
Resident 23’s MDS signed November 21, 2005, showed that the resident had no pressure
ulcers during the assessment period. However, he apparently was assessed as at risk for
pressure ulcers or other skin problems as the MDS indicates that he had pressure relieving
devices for his bed and chair. CMS Ex. 35, at 24. A Weekly or Monthly Summary report
dated November 24, 2005, shows no pressure ulcers but reports that the resident had
abrasions or bruises and skin tears. CMS Ex. 35, at 57.

Resident 23 had a care plan for bowel and bladder incontinence dated November 18,
2005, that required staff to assess skin for breakdown and to report any skin changes.
CMS Ex. 35, at 47, 48. Resident 23 had been assessed as at risk for impaired skin
integrity and had a care plan dated November 18, 2005, that required his skin is kept
clean and dry, that he be repositioned every two hours and as needed, and that there be
weekly skin assessments, among other things. CMS Ex. 35, at 51. A Weekly Skin
Assessment form shows skin assessments were done weekly from November 15 through
December 15, 2005, however except for one instance, the form gives no explanation of
the results but refers to a skin grid that was not provided by CMS. CMS Ex. 35, at 55.

A Nurse’s Notes entry dated December 14, 2005, at 1:30 p.m. shows that the nurse was
notified by staff that the resident had an open area on his coccyx that was assessed by the
nurse as 0.5 cm in diameter and a Stage II pressure sore. The note indicates the nurse
notified the Director of Nursing (DON) and Assistant DON of the new sore. CMS Ex.
35, at 31.
26

The surveyor’s observation that the resident was not checked for incontinence between
11:20 a.m. and 1:10 p.m. on December 14 and that he was wet when checked, shows that
Petitioner was not complying with its care plan to keep the resident’s skin clean and dry.
The surveyor’s observation of the pressure sore on the coccyx and Petitioner’s records of
the existence of that ulcer following prior assessments by Petitioner that showed no
ulcers, establishes that the Resident 23 developed an ulcer while in Petitioner’s care. The
Stage II ulcer amounts to actual harm. Thus, I conclude CMS has made a prima facie
showing that Petitioner was not in substantial compliance with 42 C.F.R. § 483.25(c) as
alleged by the December survey.

Petitioner argues, citing P. Ex. 49, at 11-14, 38, 42, that Resident 23 was aggressive with
staff which tended to delay his repositioning. Petitioner also notes that Resident 23’s
physician assessed him on December 13, 2005, but did not discover a coccyx wound (P.
Ex. 49, at 15). Petitioner also states that when the wound was identified on December 14
orders were obtained for treatment (P. Ex. 49, at 15). P. Brief at 19. Petitioner does not
argue and provides no evidence that Resident 23’s development of a pressure ulcer was
unavoidable. The evidence does not show that Resident 23’s combative or aggressive
behavior prevented Petitioner’s staff from cleaning the resident after an episode of bowel
or bladder incontinence or that it prevented staff from assessing him for incontinence.
The evidence also does not show that his combative or aggressive behavior prevented
skin care or assessment. I conclude that Petitioner has not established that Resident 23’s
development of a pressure ulcer was unavoidable. Accordingly, Petitioner has failed to
show that it was in substantial compliance or had an affirmative defense.

2. Petitioner violated 42 C.F.R. § 483.25(i)(1) (Tag F325, S/S G) as
alleged by the August 2005 survey.

Included in the requirement that a facility must provide quality care is the requirement
that a facility must ensure “[b]ased upon a resident’s comprehensive assessment .. . that a
resident . . . [mJaintains acceptable parameters of nutritional status, such as body weight
and protein levels, unless the resident’s clinical condition demonstrates that this is not
possible.” 42 C.F.R. § 483.25(i)(1). The Guidance to Surveyors in the SOM specifically
cautions surveyors that ideal body weight charts have not been developed for
institutionalized elderly residents. Thus, a resident’s weight gain or loss should be
considered in light of the resident’s former life style, current diagnosis, the resident’s
usual weight through adult life, the assessment for potential weight loss, and the care plan
for weight loss. SOM, App. PP, Tag F325.
27

Appellate panels of the Board have discussed deficiency citations under Tag F325 in The
Windsor House, DAB No. 1942 (2004) and Carehouse Convalescent Hospital, DAB No.
1799 (2001). See also, Bradford County Manor, DAB No. 2181, at 21-32 (2008). In
Carehouse, the Board interpreted the regulation not to require that a facility maintain a
resident’s weight at a fixed level. The Board also determined that a facility is not strictly
liable for a resident’s weight loss. The Board said that the regulation requires
maintenance of weight only to the extent that weight is a “parameter of nutritional status,”
i.e., if a resident receives adequate nutrition and weight loss is due to non-nutritive factors
then the weight loss is not a “parameter of nutritional status and the weight loss alone is
not a basis for a deficiency finding.” Carehouse, DAB No. 1799, at 21. Nevertheless, the
Board concluded that weight loss raises an inference of inadequate nutrition sufficient to
be a CMS prima facie showing of a deficiency. Jd. at 22. A prima facie case based upon
the inference arising from weight loss is rebutted if the facility shows by a preponderance
of the evidence that it “provided the resident with adequate nutrition” or weight loss was
due to non-nutritive factors. Jd. In Windsor, the Board used the formulation that a
“facility is responsible for taking all reasonable steps to ensure that the resident receives
nutrition adequate to his or her needs.” Windsor, DAB No. 1942, at 18. The Board
explained that if CMS makes a prima facie showing based on weight loss, the facility
may rebut that showing with evidence that the resident did receive adequate nutrition or
that weight loss was due to non-nutritive factors, such as the resident’s clinical condition.
Id. The Board commented that the “clinical condition exception” is a narrow one that
applies only when the facility demonstrates that it cannot provide nutrition adequate for
the resident’s overall needs so that weight loss is unavoidable. Jd. The Board affirmed
the ALJ’s findings and conclusions in Windsor, indicating that the ALJ correctly
concluded that the presence of a significant clinical condition alone does not prove that
weight loss is unavoidable. Rather, the Board noted that the ALJ correctly focused upon
Windsor’s own assessment of the residents’ nutritional needs and whether Windsor met
its own plan for how to meet those needs. /d. at 17-18.

The surveyors alleged in the SOD that Petitioner failed to maintain Resident 2’s weight
and her weight loss was avoidable. CMS Ex. 7, at 32. The surveyors alleged that
Resident 2’s usual weight was 120 pounds and that between February 2005 and June
2005 her weight dropped from 120 pounds to 97.1 pounds. The surveyors calculated a
total weight loss of 26.5% from February 1, 2005 to July 2, 2005. A surveyor observed
the resident being weighed on August 3, 2005 and she weighed 88.1 pounds. The
surveyors alleged that Petitioner did not comply with a June 9, 2005 physician order to
serve the resident a pureed diet in a sippy cup based on a surveyor’s observations during
the noon meals on August 3 and 4, 2005, that Resident 2 was being fed a pureed diet by
spoon and no sippy cup was present. The surveyors also alleged that Petitioner violated a
June 9, 2005, order to give the resident a nutrition supplement shake at each medication
time, but the shake was not listed on the medication administration record (MAR) and the

28

nurse who administered medication was unaware of the requirement for a shake. CMS
Ex. 7, at 32-34. The allegations of weight loss are consistent with the evidence presented
by CMS. CMS Ex. 9, at 10-12, 18. Petitioner does not dispute the fact that weight loss
was experienced by Resident 2.

Because it is undisputed that Resident 2 lost weight as alleged by the surveyors in the
SOD, I conclude that CMS has made a prima facie showing of a violation of 42 C.F.R.
§ 493.25(i)(1). See, e.g., Carehouse, DAB No. 1799, at 22.

Petitioner argues in its defense that the resident’s weight loss was unavoidable. Petitioner
argues that Resident 2 suffered from late stage Alzheimer’s (P. Ex. 4, at 7). Petitioner
argues that nutrition progress notes show Resident 2 quit eating or drinking July 19, 2005
(P. Ex. 4, at 7). I note that the progress note does not reflect what period or for how long
the resident stopped eating. I further note that whoever wrote the note was under the
incorrect impression that the resident was receiving a supplement shake with the
medication passes. P. Ex. 4, at 7. Petitioner concedes that its July 2005 meal intake
records show that the resident had not stopped eating, she refused meals 14 times during
the month of July; ate 50 percent or less of 69 of 90 meals, roughly 77 percent of the
meals; and she refused supplements 13 times when she refused a meal. P. Ex. 4, at 4.
Petitioner argues that there were interventions in place. P. Brief at 12. Petitioner does
not deny and offers no explanation for why the physician ordered interventions (CMS Ex.
9, at 21; P. Ex. 4, at 1, 3) to give Resident 2 a liquified diet in a sippy cup and a
supplement shake with each medication pass were not implemented. Rather Petitioner
argues, without citation to any evidence of record, that weight loss in Alzheimer’s
patients occurs as the disease progresses. Petitioner also argues that it was speculative
that use of a sippy cup and supplements at medication pass would have made any
difference without the addition of Megace (an appetite stimulant) that was ordered after
the survey. P. Brief at 12.

Petitioner’s arguments are insufficient to show that Resident 2’s clinical condition made it
impossible to maintain her weight as an indicator of her receiving adequate nutrition.
Petitioner does not deny that it failed to comply with physician’s orders from June 9,
2005 to give the resident a liquified diet in a sippy cup and a supplement shake with
medication passes. Because Petitioner did not comply, it is speculative that complying
with the order would not have made a difference. Furthermore, it is not possible for
Petitioner to show it did what was reasonable to provide Resident 2 adequate nutrition to
maintain her weight, because Petitioner did not implement the physician’s orders.
Petitioner does not dispute that Resident 2 suffered actual harm as a result of her weight
loss.

29

Accordingly, I conclude Petitioner violated 42 C.F.R. § 483.25(i)(1) and Resident 2
suffered actual harm.

3. Petitioner violated 42 C.F.R. § 483.25(h)(2) (Tag F324, S/S G) as
alleged by the October 2005 survey.

Part of a facility’s obligation to provide quality care is a requirement that a facility must
ensure that “[e]ach resident receives adequate supervision and assistance devices to
prevent accidents.” 42 C.F.R. § 483.25(h)(2). The Board has explained the requirements
of 42 C.F.R. § 483.25(h)(2) in numerous decisions. Eastwood Convalescent Center,
DAB No. 2088 (2007); Liberty Commons Nursing and Rehab - Alamance, DAB No. 2070
(2007), aff'd, Liberty Commons Nursing and Rehab Ctr. - Alamance v. Leavitt, No.
07-1329, 2008 WL 2787675 (4th Cir. July 18, 2008); Golden Age Skilled Nursing &
Rehabilitation Center, DAB No. 2026 (2006); Estes Nursing Facility Civic Center, DAB
No. 2000 (2005); Northeastern Ohio Alzheimer's Research Center, DAB No. 1935
(2004); Woodstock Care Center, DAB No. 1726, at 28 (2000), aff'd, Woodstock Care
Center v. Thompson, 363 F.3d 583 (6th Cir. 2003). Section 483.25(h)(2) does not make a
facility strictly liable for accidents that occur, but it does require that a facility take all
reasonable steps to ensure that a resident receives supervision and assistance devices that
meet his or her assessed needs and mitigate foreseeable risks of harm from accidents.
Woodstock Care Center v. Thompson, 363 F.3d at 589 (a SNF must take “all reasonable
precautions against residents’ accidents”). A facility is permitted the flexibility to choose
the methods of supervision it uses to prevent accidents, but the chosen methods must be
adequate under the circumstances. Jd. Whether supervision is “adequate” depends in part
upon the resident’s ability to protect himself or herself from harm. Jd. Based on the
regulation and the cases in this area, CMS meets its burden to show a prima facie case if
the evidence demonstrates that the facility failed to provide adequate supervision and
assistance devices to prevent accidents, given what was reasonably foreseeable. Alden
Town Manor Rehabilitation & HCC, DAB No. 2054 at 5-6, 7-12 (2006). An “accident”
is “an unexpected, unintended event that can cause a resident bodily injury,” excluding
“adverse outcomes associated as a direct consequence of treatment or care (e.g., drug side
effects or reactions).” SOM, App. PP, Tag F324; Woodstock Care Center, DAB No.
1726, at 4.

The surveyors alleged that Petitioner violated 42 C.F.R. § 483.25(h)(2) because Petitioner
failed to provide adequate supervision to Residents 5 and 6. Specifically, the surveyors
alleged that both residents were improperly transferred and Resident 6 suffered a right hip
fracture and clavicle fracture as a result. CMS Ex. 22, at 3-4.
30

The surveyors’ allegations regarding Resident 6 were based upon review of Petitioner’s
records. The surveyors determined based on review of Resident 6’s clinical records
confirmed by interviews with the resident’s physician and Petitioner’s staff that Resident
6 was a big man who always required to staff to assist him with transfers. Petitioner’s
accident report and the CNA involved agree that the CNA attempted to transfer the
resident from the toilet to his wheelchair on September 9, 2005, and when the resident
started to fall the CNA was unable to catch or stop him and he hit the floor. Resident 6
suffered a fractured right hip and right clavicle. CMS Ex. 22, at 4-6. The documents
introduced by CMS are consistent with the surveyors’ allegations. CMS Ex. 24, at 3, 4-
16, 17, 20-21; CMS Ex. 55, at 8.

The allegations in the SOD regarding Resident 5 are based upon the surveyor’s
observations on October 4,'? 2005, at 3:00 p.m. The SOD reports that the surveyor
watched two CNAs transferring Resident 5 without a mechanical lift from bed to a
shower chair and the chair rolled, showing the wheels were not locked. The surveyor also
found in Petitioner’s records a physician’s order dated September 1, 2005, which
provided that Resident 5 was to be transferred using a mechanical lift only. The surveyor
did not allege that an accident occurred or that Resident 5 was injured. CMS Ex. 22, at 6-
7. The documents introduced as evidence by CMS are consistent with the surveyor’s
allegations in the SOD. CMS Ex. 26, at 5; CMS Ex. 55, at 10.

Petitioner does not dispute the facts as alleged in the SOD. Rather, Petitioner argues that
it provided training to its staff regarding proper transfers, that the three CNAs were
individually malfeasant, and that the CNAs were properly disciplined by Petitioner. P.
Brief at 13-17.

Regarding Resident 6’s fall, Petitioner does not dispute the allegations in the SOD and
agrees its records required a two-person assist for transfers. P. Brief at 14; P. Ex. 39, at 3-
6. Actually, a Monthly Resident Status Report dated September 21, 2005, indicates that

The SOD states the observation occurred on September 4, 2005. The affidavit
of Bill Vanoss, R.N., the surveyor who participated in the survey and drafted this
deficiency in the SOD, also indicates the observation occurred on September 4, 2005.
CMS Ex. 42, at 10. In fact, there is no evidence that Surveyor Vanoss was in the facility
on September 4, 2005. CMS Ex. 55, at 2,6. Rather, it is more likely than not that his
observation was made on October 4, 2005, when he was in the facility for the complaint
survey and incident investigation for which he drafted this deficiency finding in the SOD.
31

the resident was a two to four-person assist for all transfers. P. Ex. 39, at 3. An October
28, 2005 Care Plan Conference Summary specified a two-person assist for transfers and
transfers by mechanical lift. P. Ex. 39, at 12. Petitioner blames the attending CNA for
not complying with the resident’s care plan. Petitioner argues that:

The nurse aide totally disregarded the information available to her regarding
the Resident’s care and made a significantly poor call with regard to her
convenience versus the Resident’s safety.

P. Brief at 14. Petitioner asserts that the CNA had been properly trained and she was
disciplined for the error she committed.

Petitioner conceded Resident 5’s records showed he required a two-person assist for
transfers. P. Brief at 13; P. Ex. 38, at 4, 7. Petitioner states that “[t]here was no reason
for the two involved nurse aides to transfer the Resident without following the care plan
and use a Hoyer Lift.” P. Brief. at 13-14.

Petitioner argues that the actions of the CNAs do not reflect the policy or the training of
the facility. Petitioner analogizes its situation with that discussed by another ALJ in JFK
Hartwick at Edison Estates, DAB CR 840 (2001). In Hartwick at Edison, the ALJ
determined, as to one of many alleged deficiencies, that it was not reasonable for the
facility to foresee that a single staff member would use a mechanical lift in violation of
facility policy that at least two staff members should be present and the evidence did not
show that the use of the lift by one staff member caused, directly or indirectly, injury to
the resident. The Hartwick at Edison decision is inapposite. The allegation in Hartwick
at Edison appears to have been that a single staff member violated a facility policy to
have two staff present when a mechanical lift was used. In this case, at least three CNAs
violated their training and physician’s orders or care plans in two separate incidents,
which is unlike the situation in Hartwick at Edison. Further, in this case the issue is not
what was required by facility policy, rather each resident’s care plan and/or physician
orders required multiple person assists for transfers or the use of a mechanical lift. The
care plan teams for the residents presumably imposed the requirements for the safety of
the residents and staff after determining that a single assist or transfer without a
mechanical lift was unsafe. Thus, it was clearly foreseeable, i.e., Petitioner knew or
should have known, that if staff did not comply with the requirement to use a multiple
person assist or a mechanical lift, an accident could occur with injury to staff or the
residents. Although Petitioner argues it trained its staff, training alone is insufficient.
There must also be supervision of staff to ensure that training is effective and that
physician orders and care plans are properly and effectively executed. Petitioner has not
shown that it provided the supervision necessary to prevent the accidents with Resident 5
and 6 and the injury to Resident 6.

32

Moreover, Petitioner cannot disassociate itself from the actions of its employees where
those actions are taken in the staff member’s official capacity as a representative of the
facility. A facility can act only through its employees. While the CNAs may have been
derelict in their responsibility by not adhering to physician’s orders or the care plan,
Petitioner cannot avoid its responsibility for the CNAs’ actions. In Cherrywood Nursing
and Living Center, DAB No. 1845 (2002), the Board made it clear that a petitioner:

[C]annot simply claim that it should not be held responsible
for the incidents involving the resident because the nurse
aides failed to follow the care plan. The Board has
consistently held that a facility cannot disavow responsibility
for the actions of its employees. In a case involving a facility
where a nurse failed to respond to calls for assistance from the
visiting spouse of a resident who was experiencing trouble
breathing, the Board stated: “[The nurse’s] employer cannot
disown the consequences of the inadequacy of care provided
by the simple expedient of pointing the finger at her fault,
since she was the agent of the employer empowered to make
and carry out daily care decisions.

Cherrywood, at 14, citing Emerald Oaks, DAB No. 1800, at 7, n.3 (2001); Ridge Terrace,
DAB No. 1834 (2002). The Board further stated that a “facility is responsible for
ensuring that services are provided to meet the residents’ needs, whether those services
are provided by professionals, nurse aides, or other employees.” Jd.

I conclude that Petitioner did not take reasonable steps to prevent accidents from
improper transfers. Petitioner violated 42 C.F.R. § 483.25(h)(2) and Resident 6 suffered
actual harm as a result.

4. Petitioner violated 42 C.F.R. § 483.13(c) (Tag F224, S/S G) as alleged
by the January 2006 survey.

Long-term care facilities that participate in Medicare or Medicaid are required to “protect
and promote the rights of each resident, including. . . . [t]he right to be free from physical
or mental abuse, corporal punishment, involuntary seclusion, and any physical or
chemical restraints imposed for purposes of discipline or convenience and not required to
treat the resident’s medical symptoms.” Act, §§ 1819(c)(1)(A)(ii) (SNFs) and
1919(c)(1)(a)(ii) (NFs). The Secretary has implemented the statutory requirements
through 42 C.F.R. § 483.13(c)(1)(i) which provides:
33

(c) Staff treatment of residents. The facility must develop
and implement written policies and procedures that prohibit
mistreatment, neglect, and abuse of residents and
misappropriation of resident property.
(1) The facility must —
(i) Not use verbal, mental, sexual, or physical
abuse, corporal punishment, or involuntary
seclusion; ....

The surveyors alleged in the SOD that Petitioner violated 42 C.F.R. § 483.13(c) because
Petitioner failed to fully implement a policy regarding neglect or abuse of residents. The
surveyors alleged that the failure is shown by Petitioner’s failure to comply with its policy
to initiate behavior crisis management interventions and to provide for immediate safety
of Resident 31 who alleged that Resident 29 was sexually aggressive with her. CMS Ex.
41, at 3-4; CMS Brief at 14-17. Surveyor Vanoss was the surveyor responsible for this
deficiency citation and drafted the allegations in the SOD. According to Surveyor
Vanoss, during his initial tour of the facility on January 23, 2006, at 8:55 a.m., Resident
31 approached the staff nurse touring with him and reported that Resident 29 comes into
her room at night, “feels her up,” and pulls up her gown. CMS Ex. 41, at 4; CMS Ex. 55,
at 25. Surveyor Vanoss interviewed Resident 31 the same day and Resident 31 told him
that Resident 29 came into her room on January 13, 2006, and she awoke to Resident 29
touching her breasts and lifting up her sleeping gown. Resident 31 told the surveyor that
she pushed Resident 29 out of her room, reported the incident to a nurse, and she used a
rope to tie her door closed. CMS Ex. 41, at 5; CMS Ex. 55, at 25. Still later the same
day, Surveyor Vanoss observed Resident 31 in an office with the DON and Assistant
DON and she was telling them that Resident 29 had touched her breasts and vagina, she
was concerned she was getting a roommate and would be unable to use the rope to tie her
door shut. CMS Ex. 41, at 5-6; CMS Ex. 55, at 26. Surveyor Vanoss interviewed the
DON who advised him that she had interviewed and obtained a written statement from
the nurse to whom Resident 31 made the initial allegation against Resident 29. The DON
advised the surveyor that she made no further investigation, the allegation was not
reported to the state, and no measures were implemented to protect the residents. CMS
Ex. 41, at 6; CMS Ex. 55, at 26-27. Surveyor Vanoss interviewed Resident 31 again on
January 25, 2006, and she told him no one had offered her counseling, psychosocial
support, or other services. CMS Ex. 41, at 7; CMS Ex. 55, at 27.

Petitioner does not deny that its policy is reflected in the pages obtained by the surveyors
during the survey and introduced as evidence by CMS as CMS Ex. 47. CMS Ex. 47

includes a document “Accidents and Incidents — Investigating and Reporting” and bears a
revision date of March 2001 (CMS Ex. 47, at 1-2). CMS Ex. 47 also includes eight pages
34

from a “Clinical Administrative Manual, Section A, 1.1.1 through 1.1.8,'? with the Topic:
“Prevention and Reporting: Suspected Resident/Patient Abuse, Neglect, and /or
Misappropriation of Property.” CMS Ex. 47, at 3-10. Petitioner does not deny that this
policy is the policy adopted pursuant to the requirement of 42 C.F.R. § 483.13(c). The
policy requires that Petitioner: (1) provide for the immediate safety of a resident upon
suspected abuse, including moving the resident to another unit or room, providing one-
on-one monitoring, suspending an accused employee pending investigation, and
implementing the discharge process immediately for a resident who is a danger to self or
others; and (2) initiate behavior crisis management interventions as applicable. The
surveyor alleged that Petitioner violated 42 C.F.R. § 483.13(c) because Petitioner did not
fully implement either intervention when Resident 31 alleged abuse’* by Resident 29,
showing that Petitioner had failed to implement the policy it had developed.

Petitioner discusses in its brief the interventions implemented to address Resident 29’s
behaviors. P. Brief at 22-24. However, the focus of the deficiency citation is Petitioner’s
failure to implement its policy that required protection of the victim of the alleged abuse.
Petitioner’s evidence does show that Petitioner discharged Resident 29 to another facility
on January 24, 2006. P. Ex. 72, at 6-7; P. Brief at 24. I note that arranging the discharge
of an abuser is one of the accepted means of protecting the resident allegedly abused
under Petitioner’s policy. According, to Petitioner’s Nurse’s Notes, the process for
discharge began at 9:30 a.m. on January 23, 2006. P. Ex. 72, at 6. According to the
SOD, Resident 31 told the surveyor that Resident 29 assaulted her in her room about
10:30 p.m. on January 13, 2006, and that she reported the incident to the nurse on duty
that night. CMS Ex. 41, at 4. Petitioner does not deny this assertion of fact. However, I
can find no Nurse’s Notes entry on January 13 or 14, 2006, in the records of Resident 31
or Resident 29, that records the allegation by Resident 31. CMS Ex. 38; CMS Ex. 46;
CMS Ex. 74; P. Ex. 52; P. Ex. 72, at 2-7. On January 23, 2006, at about 1:10 p.m. the
surveyor observed Resident 31 telling the DON and Assistant DON that she had been
touched on the breast and vagina by Resident 29. CMS Ex. 41, at 5. If Resident 31
reported an assault on January 13, then Petitioner’s initiation of discharge of Resident 29
on January 23, 2005, was not immediate. However, if the first notice to Petitioner of an
assault by Resident 29 upon Resident 31 was the report observed by the surveyor on
January 23, then I find that the discharge process was initiated immediately within the
meaning of Petitioner’s policy. However, Petitioner does not discuss what steps were

‘5 The pages of the exhibit are not numbered in the correct sequence and are not

in the correct order.

‘4 The touching described by Resident 31, if unwanted, could be characterized as
either physical or sexual abuse under Petitioner’s policy. CMS Ex. 47, at 5, 7.
35

taken to protect Resident 31 from Resident 29 after the allegation of the abuse and the
time of Resident 29’s discharge, whether that was 24 hours or more than 10 days later.
Petitioner has offered no evidence that it moved Resident 31 to another room or unit, that
it provided one-on-one supervision for Resident 29 or one-on-one monitoring for
Resident 31, the two interventions required by its policy. Petitioner has also offered no
evidence that it initiated any crisis behavior management interventions for Resident 31 as
required by its policy for the victim of abuse.

Petitioner argues that Resident 31 was bipolar and suffered from paranoia, delusions,
allucinations, and claustrophobia associated with her bipolar disorder. Petitioner alleges
that Resident 31 also had behavioral issues. P. Brief at 24. Petitioner does not explain
ow these facts might excuse its failure to implement its abuse policy or establish that it
was complying with 42 C.F.R. § 483.13(c). Petitioner also does not argue and has offered
me no evidence that Petitioner found after investigation that Resident 31’s allegations
were false.

conclude that CMS made a prima facie showing that Petitioner failed to implement the
policy required by 42 C.F.R. § 483.13(c). Petitioner has not shown that it implemented
its policy or had an acceptable defense for failing to do so in this case. The observations
of Surveyor Vanoss of a tearful and distressed Resident 31 (CMS Ex. 41, at 5-6; CMS Ex.
55, at 26) are not disputed or rebutted by Petitioner. I conclude that the unrebutted
evidence shows that Resident 31 suffered actual harm as alleged by the surveyors. CMS
Ex. 41, at 3.

5. Petitioner violated 42 C.F.R. § 483.15(g)(1) (Tag F250, S/S G) as
alleged by the January 2006 survey.

The Quality of Life regulation, 42 C.F.R. § 483.15, requires that a facility “care for its
residents in a manner and in an environment that promotes maintenance or enhancement
of each resident’s quality of life.” A specific requirement is that a facility “provide
medically-related social services to attain or maintain the highest practicable physical,
mental, and psychosocial well-being of each resident.” 42 C.F.R. § 483.15(g)(1). The
SOM indicates that the intent of the regulation is that a facility must ensure that sufficient
and appropriate social services are provided to meet the resident’s needs. The Guidance
to Surveyors further explains that the regulation requires that facilities aggressively
identify the need for medically-related social services and ensure provision of the service
by the appropriate professional discipline. “‘Medically-related social services’ means
services provided by the facility’s staff to assist residents in maintaining or improving
their ability to manage their everyday physical, mental, and psychosocial needs.” SOM,
App. PP, Guidance to Surveyors, Tag F250.
36

The allegations of the SOD relate to the situation involving Residents 29 and 31 discussed
under Tag F224 above. The surveyor alleged in the SOD that Petitioner violated the
regulation by not addressing Resident 29’s behavioral symptoms including wandering,
physical aggression, and sexual aggression. The surveyor alleged that Petitioner failed to
provide support, counseling, or comfort measures to Resident 31 after she reported
Resident 29’s sexual abuse of her. CMS Ex. 41, at 12; CMS Ex. 55, at 27-32; CMS Brief
at 17-19.

Petitioner does not deny that Resident 29 had no follow-up by social services between
August 24, 2005 and January 23, 2006. Petitioner does not deny the Resident 29 was in
need of medically-related social services. Petitioner asserts that Petitioner’s current social
worker had been hired two weeks before the survey and Resident 29 was discharged from
the facility on January 23, 2006.'* Petitioner does not explain how its recent hiring of a
social worker shows that it was complying with 42 C.F.R. § 483.15(g)(1) or that its
noncompliance could be excused.

Petitioner also does not deny that Resident 31 received no medically-related social
services or that she was in need of such services. Petitioner notes the recent hiring ofa
new social worker; that at an unspecified time it set up a Behavior Intervention
Committee, but not that the committee was involved in the case of either Resident 29 or
31; and that the DON was working to have Resident 29 discharged. Petitioner does not
explain how any of these actions shows that it was complying with 42 C.F.R.

§ 483.15(g)(1) or that its noncompliance could be excused. Petitioner does not deny the
allegation of the SOD (CMS Ex. 41, at 12) or provide any evidence to show that Resident
29 and 31 did not suffer actual harm as a result of Petitioner’s failure to deliver medically
related social services.

6. Petitioner violated 42 C.F.R. § 483.25 (Tag F309, S/S G) as alleged
by the January 2006 survey.

The general Quality of Care regulation requires that each resident receive, and the
participating facility must provide, the necessary care and services to attain or maintain a
resident’s highest practicable physical, mental, and psychosocial well-being, in
accordance with the resident’s comprehensive assessment and plan of care. 42 C.F.R.

§ 483.25.

'S Petitioner’s records show that it discharged Resident 29 to another facility on

January 24, 2006. P. Ex. 72, at 6-7.
37

The surveyor alleged in the SOD, based upon a review of a closed clinical record, that
Petitioner violated the regulation because Petitioner failed to assess that Resident 30 had a
possible fractured hip and that Petitioner failed to treat the resident’s pain, despite the
resident’s complaint of pain with movement. CMS Ex. 41, at 17. Specifically, the
surveyor alleged that Resident 30’s MDS showed he had a history of falls and a recent
fractured wrist. The surveyor cited a Nurse’s Notes entry dated December 3, 2005, that
showed the resident refused to bear weight on transfer but the surveyor found no record
that there was any follow-up or investigation to determine why he would not stand. The
surveyor cites an Occupational Therapy Plan of Care dated December 7, 2005, that shows
Resident 30 complained of pain in his right thigh during his evaluation. The surveyor
also cites a December 9, 2005 Nurse’s Notes entry that shows that on December 8, 2005,
the physical therapist saw Resident 30 who complained of pain in his right leg, which she
observed was swollen. The physical therapist reported her observation to the DON who
documented in the Nurse’s Notes entry that the resident’s right upper leg was swollen and
slightly warm to the touch, that there was bruising on the inner and outer thigh, and that
the resident complained of pain with movement. A Nurse’s Notes entry dated December
8, 2005, indicated that Resident 3’s right foot was rotated outward as he laid in bed and
she contacted the physician who ordered an x-ray which showed that the resident had an
intertrochanteric fracture of the femur at the hip. The surveyor could find no record that
Resident 30 had been given any pain medication. CMS Ex. 41, at 17-20.

My review of the clinical records for Resident 30 introduced by CMS reveals that
December 5, 2005, was the assessment reference date or the last day of the MDS
observation period for the MDS reviewed by the surveyor. CMS Ex. 48, at2. The MDS
reports no complaints of pain or evidence of pain, in addition to the other findings noted
y the surveyor. CMS Ex. 48, at 5. A Nurse’s Notes entry dated December 2, 2005,
indicates that the resident required a two-person assist with transfers, but he was able to
ear weight with his lower extremities to pivot for transfers, and that he voiced no
complaints. An entry on December 3, 2005, at 1:00 p.m. shows the resident refused to
ear weight on transfers, bent his legs to prevent weight-bearing, and verbalized he did
not want to stand. Nurse’s Notes entries for December 4 through 7, 2005, show that the
resident was transferred with no complaints of pain and no indication that he was not
earing weight. A Nurse’s Notes entry dated December 8, 2005, at 10:10 a.m. shows that
the CNA and DON were present and observed that Resident 30’s right thigh was swollen
and bruised and he complained of pain with movement. It was also noted that his right
foot was rotated out when he was lying in bed. The physician was notified who ordered
that Resident 30’s right hip be x-rayed. Four staff members put the resident in a Geri
chair and took him for an x-ray. An entry at 11:16 a.m. on December 8, 2005, shows that
the doctor called and advised that the resident had a hip fracture and directed that he be
sent to the hospital by ambulance. The Nurse’s Notes entry on December 9, 2005, at
11:00 a.m. was made by the DON who noted it was a late entry for December 8, 2005.

38

The note indicates that on December 8, 2005 she was advised by physical therapy that
their evaluation would not be completed due to swelling of Resident 30’s right thigh. The
physical therapist also advised the DON that Resident 30 complained of pain in his right
leg during evaluation on December 7, 2005. The note indicates that the report from
physical therapy caused the DON to check the resident on December 8, 2005, and she
observed swelling and warmth in the right upper leg, bruising to both the inner and outer
aspect of the right thigh, and pain with movement. She noted that the right thigh
measured five inches larger than the left and that there was an old bruise on the right hip.
CMS Ex. 49, at 1-3. Physical therapy and occupational therapy notes are consistent with
the Nurse’s Notes. P. Ex. 73, at 9-10.

Petitioner argues that the physician ordered on December 8 that the resident be taken
across the parking lot to the hospital for an x-ray and then returned to Petitioner pending
the x-ray results. P. Brief at 26; P. Ex. 73, at 7-8. Petitioner argues that Nurse’s Notes
for December 4 through 5 show that Resident 30 was comfortable and in no acute
distress. Petitioner argues that Resident 30 was discharged on December 16, 2005, to a
hospital and then to another facility. P. Brief at 26. Petitioner’s Nurse’s Notes show that
at 3:10 p.m. on December 16, 2005, Resident 30 was found sitting on the floor in his
room by the bed, his right leg was bent slightly backward, he complained of pain but the
author of the Nurse’s Notes entry reported that he was in no acute distress. The physician
was contacted and ordered that the resident be sent to the hospital. Resident 30 was
transported to the hospital and a note dated December 17, 2005, shows he was being
moved to another facility upon release from the hospital. CMS Ex. 49, at 7.

Petitioner does not deny that on December 3, 2005, when Resident 30 refused to stand to
assist with a transfer as he was reportedly able to do on December 2, 2005, there is no
evidence of any assessment of the resident to determine why he refused to stand.
Petitioner also does not deny that when Resident 30 complained of pain on December 8,
2005, there is no indication in the Nurse’s Notes and no other evidence that the resident
was given any pain medication. Based upon the evidence, I find that Petitioner failed to
deliver necessary care and services to Resident 30. Petitioner has presented no evidence
or argument to show that it did deliver necessary care and services. Although the
physician may have ordered that the x-rays on December 8 be done at a location across
the parking lot from Petitioner, the evidence does not show that the doctor orders
recommended or suggested strapping Resident 30 in a Geri chair and rolling him across
the parking lot. Petitioner presents no evidence and offers no explanation for why
Resident 30 was not assessed on December 3 when he refused to stand or why he was not
offered pain medication when he complained of pain.

39

I conclude that Petitioner violated 42 C.F.R. § 483.25 and that Resident 30’s complaints
of pain are sufficient evidence of actual harm.

7. Petitioner violated 42 C.F.R. § 483.25(f)(1) (Tag F319, S/S G) as
alleged by the January 2006 survey.

A facility is required, as part of its obligation to provide quality care, to ensure that a
resident who displays mental or psychosocial adjustment difficulty, receives appropriate
treatment and services to correct the assessed problem. 42 C.F.R. § 483.25(f)(1). The
SOM indicates that the intent of the regulation is to ensure that the resident receives care
and services to assist him or her to reach and maintain the highest level of mental and
psychosocial functioning. “‘Mental and psychosocial adjustment difficulties’ refer to
problems residents have in adapting to changes in life’s circumstances.” “Mental” refers
to the resident’s internal thought process while “psychosocial” refers to external
manifestations. SOM, Guidance to Surveyors, App. PP, Tag F319.

The surveyor alleged in the SOD that Petitioner failed to implement intervention
strategies to treat behavioral symptoms of wandering, and physical and sexual aggression
of Resident 29, the same Resident 29 discussed under Tags F224 and F250 above. CMS
Ex. 41, at 21. The gist of the surveyor’s allegations is that Resident 29 was moved to a
new room and unit on December 30, 2005, after Petitioner decided to close the unit where
Resident 29 resided to permit construction of offices in the area occupied by that unit.
The old unit was separated from the rest of the facility by doors that were closed and had
alarms and the old unit had a separate dining room and sitting area. The surveyor alleged
that after the move, Resident 29’s behavioral symptoms increased, with only two
ehavioral incidents between December 3 and 29, 2005 on the old unit, compared to 16
ehavioral incidents on the new unit between December 30, 2005 and January 23, 2006.
The surveyor alleged that Resident 29’s Behavior Management Plan of Care dated
January 18, 2006, did not address her difficulty adjusting to the new unit and her night-
time wandering and inappropriate sexual behaviors. CMS Ex. 41, at 22-29; CMS Ex. 55,
at 32-40. The surveyor indicated that the DON advised him that Resident 29’s physician
ad ordered that she be given Ambien, a sleeping pill, beginning January 10, 2006 to try
to get her to sleep. CMS Ex. 41, at 26; CMS Ex. 55, at 37. The surveyor also alleged that
Petitioner failed to provide medically-related social services to Resident 31 following the
alleged sexual abuse by Resident 29 discussed under Tag F224 and to Resident 34 after
she was struck by Resident 29.

Resident 29’s behaviors, including her attempts to return to her old unit and her
wandering and aggression, are reflected in Nurse’s Notes entries from December 31, 2005
through January 24, 2006. P. Ex. 72, at 2-7. Nurse’s Notes reflect the new order for
Ambien, 10 mg was received on January 10, 2006, when Resident 29 was visited by her
40

physician. P. Ex. 72, at 4, 12. Resident 29’s care plan dated December 22, 2005,
indicates that she was assessed as being agitated and aggressive, combative with staff and
residents, and refused activities of daily living. The care plan goal was to reduce or
eliminate the behaviors and 15 interventions were listed. CMS Ex. 46, at 17-18.

Resident 29’s Behavior Management Plan of Care dated January 18, 2006, noted Resident
29’s assessment remained that she had agitation and aggression and was
“combative/verbal” toward staff and residents and resisted care. The interventions listed
were similar to those on the December 22, 2005, care plan. CMS Ex. 46, at 25; P. Ex. 72,
at 22. Surveyor Vanoss was correct that there was no mention of night-time wandering or
sexual aggression on the January 18 care plan. A Care Plan Meeting note dated January
20, 2006, states that Resident 29 wanders the hall, does not sleep, and sleeps on the couch
in the living room rather than her room and directs that she be referred to social work. P.
Ex. 72, at 20. Resident 29 received a psychosocial assessment, but not until January 23,
2006, the day before discharge. P. Ex. 72, at 13; CMS Ex. 46, at 5-8. The social worker
agreed with the DON that Resident 29 needed to be transferred to a different facility.
CMS Ex. 46, at 4.

Petitioner does not deny that Resident 29 displayed mental or psychosocial adjustment
difficulty as alleged by the surveyor after she was moved from her old unit and room on
December 30, 2005. Petitioner also does not identify what treatment and services, other
than Ambien, were provided to Resident 29 to correct the problem of her increased bad
ehaviors. Rather, Petitioner argues that the problem was resolved by discharging
Resident 29 to another facility on January 23, 2006.'° P. Brief at 26. Petitioner has given
me no evidence that, other than Ambien, Resident 29 received treatment or services to
address her mental or psychosocial difficulty adjusting to the move from her old unit to
the new unit. The evidence shows that Resident 29 received a psychosocial assessment,
ut not until January 23, 2006, the day before discharge. P. Ex. 72, at 13. A social work
progress note indicates that the social worker agreed that Resident 29 needed to be
transferred to a different facility and included no other plan. CMS Ex. 46, at 4. The
undisputed research of the surveyor, comparing the period before and after the move,
shows a significant increase in wandering, assaultive and sexual behavior after the move.
The evidence developed by the surveyor is persuasive as to his conclusion that the
increased negative behavior was related to the move. Comparison of the behavior care
plans for Resident 29 before and after the move show that Resident 29 was not properly

‘6 The regulation actually requires that a resident receive appropriate treatment
and services to correct an assessed problem and in this case the evidence shows that the
problem was likely never adequately assessed based on my comparison of Resident 29’s
two care plans. However, the surveyor did not separately charge Petitioner with failure to
assess Resident 29, so I do not further consider that possible charge.
41

assessed, and treatment and services were not provided by Petitioner to address Resident
29’s adjustment difficulty, mental and psychosocial. I conclude Petitioner violated 42
C.F.R. § 483.25(f)(1).

The surveyor also alleged that Petitioner failed to deliver treatment and services to
Resident 31 who was the victim of alleged assault by Resident 29 discussed under Tags
F224 and F250 above. Petitioner alleges that after Resident 29 was discharged from the
facility, Resident 31 was interviewed and a social worker was scheduled to evaluate the
resident for any emotional or psychological problems. P. Brief at 26. A Nurse’s Notes
entry from January 26, 2006, at 10:00 a.m., indicates that Resident 31 shoved another
resident, the DON was notified, and a social services referral was made. P. Ex. 74, at 3. I
find no similar note indicating that Resident 31 was referred to social work due to the
incident with Resident 29 on January 23, 2006. In fact, there is no mention of the
incident with Resident 29 in the Nurse’s Notes for Resident 31 introduced as evidence by
Petitioner, and there are no Nurse’s Notes entries for the period January 18 through 25,
2006. P. Ex. 74, at 3. Furthermore, the referral to social work is only the first step in the
process of accessing a resident, planning care, and implementing care by the delivery of
needed treatment or service. Petitioner has presented no evidence that the social work
assessment occurred, whether Resident 31 was assessed as in need of treatment or
services due to the incident with Resident 29, or whether any treatment or services were
delivered. I conclude that Petitioner violated 42 C.F.R. § 483.25(f)(1).

The surveyor alleged that actual harm was suffered by Petitioner’s residents as a result of
this regulatory violation by Petitioner (CMS Ex. 41, at 12) but does not specify whether
actual harm was suffered by all three residents involved. I find it unnecessary to inquire
further in this regard. The observations of Surveyor Vanoss of a tearful and distressed
Resident 31 (CMS Ex. 41, at 5-6; CMS Ex. 55, at 26) are not disputed or rebutted by
Petitioner. I conclude that the unrebutted evidence shows that Resident 31 suffered actual
harm as alleged by the surveyor. CMS Ex. 41, at 3. Accordingly, Petitioner was not in
substantial compliance with participation requirements as alleged.

8. A CMP of $400 per day for the period August 5, 2005 through
February 1, 2006, and DPNA from October 19, 2005 through February
1, 2006, are reasonable.

CMS notified Petitioner by letter dated March 15, 2006, that a revisit survey found
Petitioner returned to substantial compliance effective February 2, 2006. CMS Ex. 1.
Petitioner does not specifically argue, and the evidence does not show, that Petitioner
returned to substantial compliance at an earlier date. In fact, Petitioner’s alleged
completion date for its plan of correction was February 2, 2006, for the deficiencies cited
by the survey that ended January 25, 2006. CMS also advised Petitioner by its March 15
42

letter that the CMP was reduced from $600 per day to $400 per day for the period August
5, 2005 through February 1, 2006'’; the DPNA was in effect from October 19, 2005
through February 1, 2006; and the termination action was rescinded. CMS Ex. 1.

If a facility is not in substantial compliance with program requirements, CMS has the
authority to impose one or more of the enforcement remedies listed in 42 C.F.R.

§ 488.406, including a DPNA and a CMP. CMS may impose a CMP for the number of
days that the facility is not in substantial compliance or for each instance that a facility is
not in substantial compliance. 42 C.F.R. § 488.430(a). There are two ranges for per day
CMPs. 42 C.F.R. §§ 488.408, 488.438. The upper range of CMP, from $3050 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)(i), (d)(2). The upper range may not be used in this case. The lower range
of CMP, from $50 per day to $3000 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)(1)(ii). The $400 per day CMP in this case is at the low end of the lower
range.

In determining whether the amount of the CMP is reasonable, the following factors
specified at 42 C.F.R. § 488.438(f) must be considered: (1) the facility’s history of
noncompliance, including repeated deficiencies; (2) the facility’s financial condition; (3)
the seriousness of the deficiencies as set forth at 42 C.F.R. § 488.404; and (4) the
facility’s degree of culpability.

CMS asserts that $400 per day CMP for the period August 5, 2005 through February 1,
2006 is reasonable based upon the eight deficiencies alleged to have resulted in actual
harm. CMS Prehearing Brief at 20-22; CMS Brief at 25-26. CMS does not assert that
Petitioner had a history of noncompliance and does not reveal whether the reduction in
the CMP from $600 per day to $400 per day may have been based upon consideration of
Petitioner’s financial circumstances, culpability, or both.

Petitioner argues that, while the regulation requires that I consider a facility’s financial
condition in determining the reasonableness of the proposed CMP, the regulation gives
me no guidance as to how to make the determination. Petitioner does not assert it will be
forced out of business or that quality of care will suffer if it is required to pay the $72,400

'" The period, which began on August 5, 2005 and ran through February 1, 2006,
was 181 days. The reduction of the per day CMP from $600 to $400, resulting in a total
CMP of $72,400, rather than $108,600.
43

CMP. P. Brief at 29-30. Rather, Petitioner asserts that the proposed CMP “is beyond
what the facility budget can handle” (P. Brief at 30) and is punitive given the facility’s
financial status (P. Brief at 30-31).

Petitioner submitted the declaration of Ted Morgan (P. Ex. 87). Mr. Morgan attests that
he is the managing member or Provider Healthcare Services LLC, the general partner of
Provider Healthcare Services of Concho, LP, the operator of Petitioner. He further attests
that he is familiar with the financial circumstances of Petitioner. Mr. Morgan attests that
occupancy rates were down through May 2006, which he attributed to a November 2005
decision by Petitioner to close its secured unit and its residents were discharged to other
facilities. A result of the discharge of the secured unit residents was a reduction in cash
flow during the six months from November 2005 to May 2006. Mr. Morgan also advised
me that Petitioner accepted a husband and wife for care at a reduced reimbursement rate
at the request of the state, which also negatively impacted cash flow. Mr. Morgan
advised that Petitioner uses a revolving line of credit for operating needs. Mr. Morgan
attests that a large penalty in a lump sum or by monthly payments would be beyond what
the current budget could handle. He also indicates that Petitioner had made an offer and
amortized payout proposal, apparently to CMS, that he considered manageable that would
ave no impact upon resident care or services. P. Ex. 87. The amount he thought
manageable was not stated. Petitioner also submitted financial data for my consideration
including profit and loss statements from balance sheets for 2005 and 2006, and a cash
flow statement for 2006. P. Ex. 86.

note that Mr. Morgan never asserts in his declaration that Petitioner would have to go
out of business if required to pay the proposed CMP of $72,400, or that payment of the
CMP would negatively impact quality of care. Rather, Mr. Morgan and counsel for
Petitioner both carefully couch their argument in terms of the CMP being beyond what
the budget can “handle.” I have reviewed the limited financial data provided, focusing
significantly on the documents mentioned above. I note that the period covered is only
approximately 18 months. Further, Petitioner’s restricted cash flow the first six months of
2006 was due to a business decision of Petitioner. Mr. Morgan did not explain whether
Petitioner would ultimately seek more residents, but my interpretation of his declaration is
that the reduced cash flow was temporary. I conclude that Petitioner has not established
that requiring it to pay the $72,400 CMP would cause it to close or negatively impact
resident care. Petitioner proposes in its brief a per day CMP of $50 to $100 per day. P.
Brief at 33. Considering Petitioner’s financial condition, I do not consider such a low
CMP to be adequate to encourage Petitioner to continue to maintain compliance with
program participation requirements. I also do not find the $72,400 CMP to be punitive.
See Batavia Nursing and Convalescent Inn, DAB No. 1911, 0.25; Fairfax Nursing Home,
Inc., DAB No. 1794, at 18 (2001), aff'd, 300 F.3d 835 (7th Cir. 2002); Regency Gardens
Nursing Center, DAB No. 1858, at 11 (2002).

44

Petitioner’s regulatory violations caused actual harm. 42 C.F.R. § 488.404(b). The
deficiencies were not isolated incidents as Petitioner argues, but occurred over a period of
more than six months and affected the quality of life and quality of care of multiple
residents. I find that Petitioner was culpable with regard to all the deficiencies discussed
in this decision. “Culpability” is defined at 42 C.F.R. § 488.438(f)(4) to include “but is
not limited to neglect, indifference or disregard for resident care, comfort or safety.”

T also conclude that the state agency was required to prohibit Petitioner from conducting a
NATCEP for a period of two years. Pursuant to 42 C.F.R. §§ 483.151(b)(2) and (e)(1), a
state may not approve, and must withdraw, any prior approval of a NATCEP offered by a
SNF or NF that: (1) has been subject to an extended or partial extended survey under
sections 1819 (g)(2)(B)(i) or 1919(g)(2)(B)(i) of the Act; (2) has been assessed a CMP of
not less than $5000; or (3) has been subject to termination of its participation agreement,
denial of payment, or the appointment of temporary management. In the case before me,
the evidence supports a CMP of more than $5000. Thus, withdrawal of Petitioner’s
authority to conduct a NATCEP was required.

Based on the arguments and evidence presented by the parties, I have considered what
would be a reasonable CMP in this matter. I base my decision on the factors delineated at
42 C.F.R. §§ 488.438(f) and 488.404 (incorporated by reference at 42 C.F.R.

§ 488.438(f)(3)). Ihave also considered that CMS reduced the CMP from $600 per day
to $400 per day. I conclude that a CMP of $400 per day for the 181-day period from
August 5, 2005 through February 1, 2006, totaling $72,400, is reasonable. I have no
grounds to disturb the DPNA or withdrawal of Petitioner’s authority to conduct a
NATCEP.

Ill. Conclusion

For the reasons discussed above, I conclude that Petitioner was not in substantial
compliance with program participation requirements from August 5, 2005 through
February 1, 2006. I also conclude that a CMP of $400 per day for 181 days, totaling
$72,400, is reasonable and there was a basis for a DPNA effective from October 19, 2005
through February 1, 2006. The state was required withdraw approval of Petitioner’s
NATCEP for a period of two years, from August 5, 2005 through August 4, 2007.

/s/
Keith W. Sickendick
Administrative Law Judge