Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD

Civil Remedies Division

In the Case of:
Date: December 10, 1997
Brighton Pavilion,

)

)

)

)

Petitioner, )

) Docket No. C-96-081
=v. ) Decision No. CR510
)

Health Care Financing Administration)

)

)

DECISION

In this case, Brighton Pavilion (Petitioner) challenges the
determination of the Health Care Financing Administration (HCFA)
to impose the enforcement remedy known as "Denial of Payment for
New Admissions" (DPNA) for the period from November 20, 1995
through January 31, 1996. The imposition of this enforcement
remedy means that, if Petitioner had admitted any Medicare and
Medicaid beneficiaries as residents to its facility during the
specified period, Petitioner would receive no Medicare or
Medicaid payments for the services it rendered to those newly
admitted residents. See 42 C.F.R. § 488.401 (1995) .*

I sustain the imposition of the DPNA remedy against Petitioner
for the reasons and period specified by HCFA. I do so because a
preponderance of the evidence supports HCFA's contention that,
during a revisit survey conducted in October 1995, Petitioner
was out of substantial compliance with program participation

+ Unless otherwise indicated, I am using the version of the regulations

which was revised and codified effective October 1, 1995, because the
dispositive survey in this case was conducted in October 1995 and
Petitioner's hearing request was filed in December 1995. The regulations
applicable to this case have not undergone substantive changes since October
1, 1995.
requirements contained in the regulation codified at 42 C.F.R. §
483.20(d) (3) (ii) (titled "Resident assessment") .

Additionally, I have concluded as a matter of law that I do not
have the authority to supplant HCFA's choice of enforcement
remedies where there exists substantial noncompliance with
program requirements.

I. BACKGROUND

A. Statutory and regulatory framework

Petitioner, a 205-bed long-term care facility located in Quincy,
Illinois, has been participating in the Medicare and Medicaid
programs as a dually certified "SNF/NE"*? at all times relevant to
this case. Therefore, disposition of this case is governed by
the statutory provisions enacted as part of the Omnibus Budget
Reconciliation Act of 1987, Pub. L. 100-203, Title IV, Subtitle
C, as well as the implementing regulations promulgated by the
Secretary of Health and Human Services (Secretary). The
applicable statutory provisions, commonly known as the Nursing
Home Reform Act of 1987, are codified at section 1819 (for
Medicare) and 1919 (for Medicaid) of the Social Security Act
(Act). The federal regulations implementing the Nursing Home
Reform Act of 1987 became effective on July 1, 1995 (59 Fed.
Reg. 56,116 (1994)) and were codified at 42 C.F.R. Part 401, et
seq.

The implementing regulations specify that each long-term care
facility participating in the Medicare or Medicaid programs must
undergo a "standard survey" at least once every 15 months. 42
C.F.R. § 488.308(a). A "standard survey" is a "resident-centered
inspection which gathers information about the quality of
services furnished in a facility to determine compliance with
the requirements for participation." 42 C.F.R. § 488.301. In
addition to the "standard surveys," there are other surveys
which may be conducted as frequently as necessary to determine,
for example, whether previously cited deficiencies have been
eliminated. 42 C.F.R. § 488.308(c).

Surveys must be conducted unannounced. 42 C.F.R. § 488.307(a).
The survey team should consist of a multidisciplinary group of

? Long-term care facilities providing services under the Medicare
program are called "skilled nursing facilities" (SNFs). 42 C.F.R. § 488.301.
Long-term care facilities providing services under the Medicaid program are

called "nursing facilities" (NFs). Id.
professionals, with at least one registered nurse in the group.
42 C.F.R. § 488.314(a). Generally, state surveying agencies
under contract with the Secretary of Health and Human Services
have responsibility for conducting surveys in their respective
states. 42 C.F.R. §488.10(a) (1), 488.330(a). Based on the survey
results, these state survey agencies then certify the compliance
or noncompliance of dually participating SNF/NFs, subject to
HCFA's review.’ 42 C.F.R. § 488.330(a) (1) (D).

For current program providers, a certification of compliance
constitutes a determination that the provider is in "substantial
compliance" with the applicable program participation
requirements. 42 C.F.R. § 488.330(b) (1). "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.°

In contrast, a certification of "noncompliance" requires the
imposition of at least one enforcement remedy against the
current program provider. 42 C.F.R. § 488.330(b) (2). Except
where a state is taking action under the Medicaid program

3However, if HCFA disagrees with the state survey agency's
certification, a finding of noncompliance must take precedence over the
finding of compliance. 42 C.F.R. § 488.330(a) (1) (D).

‘Minimal harm" is not defined in the statute or regulations. HCFA
points out in its posthearing brief that the State Operations Manual (SOM),
HCFA Pub. 7, Transmittal No. 274, contains relevant interpretations. HCFA
Br., 4. According to HCFA, the SOM interprets "potential for causing minimal
harm" as "the potential for causing no more than a minor negative impact.

-" Id. (quoting from SOM, Section V, subsection B, paragraph 1 at page P-49).
"“[PJotential for more than minimal harm, but not immediate jeopardy," a
phrase used in 42 C.F.R. § 488.404(b) (1) (ii), is interpreted by the SOM to
signify--

noncompliance that results in minimal physical, mental and/or
psychosocial discomfort to the resident and/or has the potential (not
yet realized) to compromise the resident's ability to maintain and/or
reach his/her highest practicable physical, mental and/or psychosocial
well-being as defined by an accurate and comprehensive resident
assessment, plan of care, and provision of services.

HCFA Br., 4; Tr. 368 (quoting SOM, Section V, subsection B, paragraph 2 at
page P-49).

SProm time to time in this decision, I will use also the word
"compliance" as an abbreviation for the regulatory definition of “substantial
compliance." I will also use the words "noncompliance" or "out of compliance"
to mean not in “substantial compliance" as defined in the regulations.
against a non-state operated SNF, HCFA has responsibility for
imposing the enforcement remedy and issuing the requisite
written notice. 42 C.F.R. § 488.330(c).°

A dually participating SNF/NF has the right to request an
administrative hearing where the findings of noncompliance have
resulted in HCFA's imposing against it one of the enforcement
remedies listed in 42 C.F.R. § 488.406. 42 C.F.R.

§ 498.3(b) (12).

The regulations permit the imposition of DPNA as an optional
remedy whenever a facility is out of substantial compliance with
program participation requirements. 42 C.F.R. § 488.417(a).
However, the regulations mandate the imposition of this remedy
when the facility has remained out of substantial compliance for
three months after the last date of the survey identifying the
noncompliance. 42 C.F.R. S§ 488.412(c), 488.417(b) (1). If DPNA
has been imposed against a facility without repeated findings of
substandard quality of care, this remedy will end "on the date
that the facility achieves substantial compliance, as indicated
by a revisit [survey] or written evidence acceptable to HCFA
(under Medicare) or the State (under Medicaid)." 42 C.F.R. §
488.417(d).

B. Relevant surveys and the enforcement remedy imposed by
HCFA

In the foregoing regulatory context, the Illinois Department of
Public Health (IDPH) surveyed Petitioner during early August
1995, pursuant to its contract with the Secretary.’ HCFA Ex. 2,
4, After finding that Petitioner was not in substantial
compliance with several participation requirements, the IDPH
sent Petitioner a notice letter dated August 18, 1995. HCFA Ex.
3. Said letter explained which deficiencies required a plan of

®as explained in the preamble to the regulations, the statute requires a
division of responsibilities between the state and the federal government in
the enforcement of federal certification requirements. 59 Fed. Reg. 56,218
(1994). Under the Medicare program, section 1819(h) of the Act reserves all
enforcement decisions to the Secretary and permits states to only make
recommendations based on the surveys they perform under their contract with
the Secretary. Id

"Petitioner described this August survey as its annual certification and
licensure survey. P. Br., 3. HCFA described it as a standard survey. HCFA
Br., 7. Since neither party has taken issue with the other's characterization
of the August survey, I assume that these different descriptive terms do not
impact on the outcome of any material issue.
correction,® which ones constituted substantial compliance, and
which ones constituted noncompliance. Id. Additionally, IDPH's
letter informed Petitioner that, unless Petitioner achieves
substantial compliance by September 24, 1995, IDPH would
recommend that HCFA impose remedies such as DPNA. Id. at 2.

In response to IDPH's notice, Petitioner submitted written
representations that it had corrected its deficiencies and had
come into compliance with program requirements. See HCFA Ex. 6.
IDPH accepted Petitioner's allegations and presumed that
substantial compliance had been achieved by September 24, 1995.
Id. IDPH then informed Petitioner that a revisit survey would be
conducted to verify Petitioner's compliance as of September 24.
Id.° IDPH informed Petitioner also that, if the IDPH were to find
noncompliance during the revisit survey, remedies such as DPNA
would be imposed. Id.

IDPH conducted the resurvey during October 1995 and determined
that Petitioner had remained out of substantial compliance with
program requirements. HCFA Ex. 12, 13. In a notice dated
November 1, 1995, HCFA imposed against Petitioner the DPNA
remedy, as recommended by IDPH, for effectuation on November 20,
1995.°° HCFA Ex. 13 at 2. HCFA's notice letter alleged that,
since the August survey, Petitioner had continued to remain out
of compliance with certain federal requirements, including the
following ones:

the regulation titled "Resident assessment" (F 282), 42
C.F.R. § 483.20(d) (3) (ii); and the regulation titled
"Quality of care" (F 309), 42 C.F.R. § 483.24.

® A plan of correction need not be submitted for isolated deficiencies
which have caused no actual harm and have a potential for causing only
minimal harm. 42 C.F.R. § 488.402(d) (2).

°Even though IDPH did not specify a date for the revisit survey, it
committed to certifying Petitioner as being in compliance effective September
24, 1995 if the revisit survey (whenever conducted) found substantial
compliance as of the revisit survey date. HCFA Ex. 6 at 1

© as relevant to the facts of this case, the regulation codified at 42
C.F.R. § 488.402(£) (4) imposed the following notice requirement:

(4) No immediate jeopardy - 15 day notice: Except for civil money
penalties and State monitoring, notice must be given at least 15
calendar days before the effective date of the enforcement action in
situations in which there is no immediate jeopardy.

Id. at 1.77

Thereafter, during February 1996, IDPH conducted another revisit
survey and found that Petitioner had attained substantial
compliance with all program requirements. HCFA Ex. 20. HCFA then
notified Petitioner that the DPNA enforcement remedy had ended
on January 31, 1996. Id.

C. Proceedings in this case

This action was commenced upon Petitioner's timely filing of its
request for hearing dated December 15, 1995. After I had set
this case for an in-person hearing, HCFA filed a memorandum of
law objecting to a portion of my Scheduling Order dated June 11,
1996, which did not draw clear distinctions between the burden
of production and the burden of persuasion, and which also did
not specify the party bearing the burden of persuasion.
Petitioner did not file a response or request relief from my
scheduling order.

On September 11, 1996, I issued in this case my "Ruling on the
Health Care Financing Administration's (HCFA's) Objection to
Paragraph 2 of the Scheduling Order Assigning the Burden of
Proof to Respondent and Order Allocating Ultimate Burden of
Persuasion" (Ruling). In this Ruling, I rejected HCFA's
arguments that the ultimate burden of proof (i.e., the burden of
persuasion, or the risk of non-persuasion) rested on Petitioner.
I ruled also that HCFA had the ultimate burden of proof in this
case with the effect that, if the weight of all conflicting
evidence were in equipoise, I would set aside HCFA's findings of
noncompliance and the resultant imposition of an enforcement
remedy against the facility.

On September 13, 1996, the parties entered into a written
stipulation, wherein Petitioner waived challenges to the survey
findings from the August 1995 survey, agreed that the findings

> F 282" and "F 309" are identifiers used by the surveyors to denote
certain categories of deficiencies in their survey reports. See, e.g., HCFA
Ex. 15. HCFA's November 1, 1995 notice letter identified another area in
which Petitioner had remained out of compliance. However, HCFA does not
assert that area of alleged noncompliance in these proceedings. See, e.g.,
HCFA Br., 31.

12 HCFA notes that it erred in Petitioner's favor by having ended the
DPNA as of January 31, 1996, instead of on February 9, 1996--the date on
which Petitioner's compliance was certified by the IDPH. HCFA Br., 29 at n.33
(citing HCFA Ex. 19 at 1, 11).
from the August 1995 survey constituted noncompliance, and
acknowledged that Petitioner was not in substantial compliance
with participation requirements during the August survey. ALJ
Ex. 1. In the same stipulation, HCFA agreed that no DPNA would
have been imposed if Petitioner had been found in compliance
with participation requirements in 42 C.F.R. Part 483, subpart
B, during the October revisit survey. Id.

Thereafter, the case proceeded to an in-person hearing on the
factual disputes left unresolved by the parties' stipulations.

After the parties submitted their posthearing briefs* in
accordance with 42 C.F.R. § 498.63, the Appellate Division of
the Departmental Appeals Board (DAB) issued its decision in
Hillman Rehabilitation Center, DAB No. 1611 (1997). The
Appellate Panel reversed an administrative law judge's ruling
which had placed the burden of persuasion on HCFA, instead of on
the health care provider whose program participation agreement
had been terminated as a sanction for alleged noncompliance. I
then gave the parties the opportunity to comment on the effect
of Hillman and to suggest whether additional proceedings were
necessary. Letter dated March 13, 1997. The parties provided
their responses, which I will discuss below in Section II of
this decision.

II. DISPOSITION OF OUTSTANDING MOTIONS, LEGAL ISSUES, AND
ARGUMENTS BASED ON UNCONTESTED FACTS

A. Determination on the effect of the Hillman decision

Since the Hillman decision was issued by an Appellate Panel of
the DAB, its legal conclusion on the burden of proof issue would
automatically supersede any contrary ruling issued by an
administrative law judge of the DAB in a similar case.
Therefore, I solicited comments from the parties on whether the
Hillman decision should affect how this case is decided and
whether additional proceedings were warranted in light of
Hillman. Letter dated March 13, 1997. I did so also because
Petitioner's posthearing brief made arguments in reliance upon
my Ruling of September 11, 1996.**

> I will use the abbreviations of "HCFA Br., (page)" and "P. Br.,
(page)" to refer to the parties' respective, main posthearing brief. I will
use "HCFA Reply, (page)" and "P. Reply, (page)" to refer to their respective
reply briefs. I will cite to the transcript of the hearing as "Tr. (page) ."
“ For example, Petitioner stated:
It is not Brighton's burden to prove that they complied with this
resident's care plan, it is HCFA's burden to establish that they
By letter dated April 8, 1997, HCFA responded that Hillman is
not distinguishable from the present case and that Hillman
controls the burden of persuasion allocation in this case. HCFA
stated also that it was satisfied with the record in this case
and did not perceive a need for further proceedings.

By letter dated April 11, 1997, Petitioner stated also that no
additional proceedings would be necessary. However, Petitioner
was of the view that the Hillman decision should not have any
impact on my decision in this case because Petitioner agrees
with my Ruling of September 11, 1996. Petitioner said it had
introduced evidence in reliance upon that ruling.

I have considered the parties' arguments on the effect of the
Hillman decision and conclude that, in this case, I should have
allocated the burden of persuasion to Petitioner in accordance
with the analysis set forth by the Appellate Panel in Hillman.

Petitioner Brighton's relationship to HCFA is not
distinguishable from the one which existed between the provider
and HCFA in the Hillman case. Both Petitioner herein and Hillman
Rehabilitation Center provided services under the Medicare and
Medicaid programs. Like Hillman Rehabilitation Center,
Petitioner herein is also challenging HCFA's determination of
noncompliance, which has resulted in the imposition of an
enforcement remedy. The program goals and policy considerations
relied upon by the Appellate Panel in Hillman are equally
applicable to this case. Therefore, I am bound by the Appellate
Panel's analysis and conclusion on the burden of persuasion
allocation in Hillman.

Even though Petitioner stated that it had relied upon my
September 11, 1996 Ruling in presenting its evidence at hearing,
it did not avail itself of the opportunity to submit other
evidence or to amend its posthearing written arguments.
Additionally, neither party has argued that the weight of all
evidence in this case is in equipoise or that the burden of
persuasion allocation would have dispositive effect. As the
Appellate Panel noted in Hillman, the allocation of the burden
of persuasion has practical use only when the evidence is in
equipoise. Hillman at 10.

did not, according to the ruling of the Administrative Law Judge
on this issue dated September 11, 1996. They have failed to meet
that burden on this issue.

P. Reply, 9.
For the foregoing reasons, I issue the following
formal Findings of Fact and Conclusions of Law (FFCL):

1. In accordance with the Hillman decision,
Petitioner herein bears the burden of persuasion.

2. No additional proceedings are necessary in
this case in light of the Hillman decision.

B. Rejection of Petitioner's request that a "less severe"

enforcement remedy be substituted for the DPNA_ imposed by
HCFA

In its main posthearing brief, Petitioner argued as follows:

even if a deficiency is found, and if it is found to pose a
potential for more than minimal harm, it is not mandated
that HCFA's choice of penalties be sustained. Surely, the
relatively minor nature of any deficiency that could be
sustained under this set of facts should warrant a much
less severe penalty than that which was imposed.

P. Br., 21 (emphasis in original).

According to HCFA, it had imposed the DPNA against Petitioner
not as a matter of discretion, but because the regulations
mandated that a DPNA be imposed. HCFA Reply, 19. HCFA must
impose DPNA as a remedy whenever it finds that a facility has
remained out of compliance with program requirements for three
months after the last date of the survey which identified the
noncompliance. 42 C.F.R. § 488.417(b). Therefore, the DPNA
remedy imposed by HCFA pursuant to the mandates of 42 C.F.R. §
488.417(b) cannot be set aside unless the evidence establishes
that Petitioner had come into compliance within three months of
the initial August survey (i.e., Petitioner had achieved
compliance by the time the October resurvey was conducted to
verify Petitioner's allegations of compliance) .*°

Even if HCFA had imposed the DPNA against Petitioner as a
discretionary act (see 42 C.F.R. § 488.417(a)), the right to
exercise said discretion is reposed in HCFA, not in me. 42
C.F.R. S§ 488.402, 488.404,*° 488.408. HCFA and the state survey

Sas noted above, the first survey was conducted in August 1995 and
Petitioner has stipulated to the noncompliance determination of that survey.

1 take notice that the preamble to the regulation now codified as 42
C.F.R. § 488.404 ("Factors To be Considered in Selecting Remedies") explained
10

agency are authorized to choose from several enforcement
remedies corresponding to the level of noncompliance they have
determined. 42 C.F.R. § 488.408. Their determination as to the
level of noncompliance is, in turn, based on their evaluation of
the seriousness of the deficiencies. 42 C.F.R. § 488.404(a).

The regulations make clear that a facility "may not appeal the
choice of remedy, including the factors considered by HCFA or
the State in selecting the remedy. . . ." 42 C.F.R. §
488.408(g) (2); 42 C.F.R. § 498.3(b) (12). The level of
noncompliance found by HCFA in a SNF or NF is not an appealable
determination unless a civil money penalty has been imposed. 42
C.F.R. § 498.3(b) (13). Explanations contained in the preamble to
the relevant regulations show that the "level of noncompliance"
corresponds to or is determined by the seriousness of the
deficiencies as found by HCFA or the state survey agency. 59
Fed. Reg. 56,173 (1994) (discussing 42 C.F.R. § 488.404); 59
Fed. Reg. 56,179 (discussing 42 C.F.R. § 498.61(b)).

I have allowed into the record explanations of the severity or
"seriousness" levels of noncompliance because certain exhibits
of relevancy to this case for other reasons contain codes
referring to those levels and the surveyors, in recounting their
activities and thoughts, referred to the codes. Additionally,
the severity levels were introduced to explain that HCFA was not
alleging noncompliance at the highest level. Explanations of the
severity levels helped me to understand certain testimony and
portions of exhibits.

For the foregoing reasons, I issue the following
formal FFCL in denying Petitioner's motion to
substitute the DPNA imposed by HCFA with a "less
severe" remedy:

3. I am without the authority to substitute any
enforcement remedy for the one selected by HCFA.

C. Denial of Petitioner's request to strike HCFA's evidence

and arguments concerning the August 1995 survey

that the enumerated factors must be used to assess the seriousness of a
facility's deficiencies and the enforcement actions must correlate with the
seriousness of the deficiencies. 59 Fed. Reg. 56,173 (1994). The regulation
specifically leaves to the "judgment of both HCFA and the States whether to
impose alternative remedies at all, regardless of the seriousness of the
facilities’ deficiencies." Id.
11

Petitioner has stipulated that it would not challenge the
findings from the August 1995 survey and that such findings
constituted noncompliance with program participation
requirements. ALJ Ex. 1. HCFA has stipulated that no DPNA would
have been imposed if it had found Petitioner in compliance as of
the October 1995 resurvey. Id. Therefore, Petitioner argues in
its main posthearing brief that the issues in this case can be
decided "solely with reference to the October 1995 survey." P.
Br., 3. In its reply brief, Petitioner asks that HCFA's evidence
and arguments concerning the August survey be stricken from the
record. P. Reply, 2.

I deny Petitioner's request to strike evidence. HCFA has
properly introduced evidence and explanations concerning the
August survey findings as background for the factual disputes
concerning the October survey.

The October survey was a revisit or follow-up survey
specifically made in order to ascertain whether certain
deficiencies found during the August survey continued to exist.
Tr. 29, 37. The surveyors were instructed not to cite any new
deficiency in a follow-up survey unless the problem was glaring
or a matter of actual harm. Tr. 38; see Tr. 327 - 329. The team
which conducted the October resurvey had concluded that two
areas of deficiencies cited previously during the August survey
had remained uncorrected. Tr. 58.

Additionally, as noted above, HCFA's position is that the DPNA
was imposed only because Petitioner's noncompliance had
continued for three months after the August survey. In its
November 1, 1995 notice to Petitioner, HCFA stated that the
enforcement remedy was imposed because certain deficiencies
"remain not met." HCFA Ex. 13 at 1. Given all these facts, it is
appropriate for the record to contain evidence explaining the
two areas of deficiencies from the August survey which were the
focus of the resurvey and which have allegedly remained
uncorrected for three months.

For the foregoing reasons, I issue the following
formal FFCL in denying Petitioner's request that I
strike HCFA's evidence concerning the August 1995
survey:

4. Evidence of the survey conducted in August
1995 is useful as background information for
explaining the October 1995 resurvey findings in
controversy.
12

D. Rejection of Petitioner's argument that the
noncompliance determination at issue is wrong due to some
of the surveyors' allegedly inadequate training and
surveying experience

During the hearing, Petitioner moved for a directed verdict and
argued that all October deficiency citations should be stricken
because the survey was conducted by individuals who lacked
adequate training. Tr. 377 - 379. In support of its motion,
Petitioner pointed out that not all members of the October
resurvey team had complied with the statutory requirement for
completing a training and testing program set up by the
Secretary. Id.

HCFA responded by pointing out that the regulations permit
trainees on survey teams, so long as they are accompanied by a
surveyor who has successfully completed the required training
course. Tr. 380 (quoting 42 C.F.R. §§ 488.314(c) and
488.318(b)). Moreover, the regulation states that inadequate
survey performance does not relieve a facility of its obligation
to meet all participation requirements; nor does inadequate
survey performance invalidate adequately documented
deficiencies. Tr. 381 (quoting 42 C.F.R. § 488.318(b)).

I denied Petitioner's motion for a directed verdict. Tr. 381.
However, in its posthearing brief, Petitioner argued again that
the noncompliance determination should not be credited because
most of the surveyors who conducted the October resurvey lacked
adequate training and experience. P. Br., 18. Petitioner is not
contending in its brief (as it had done during the hearing) that
such inadequacies make their survey findings invalid as a matter
of law. Instead, Petitioner appears to be contending that the
noncompliance determination at issue is wrong because the
surveyors who lacked adequate training or experience were unable
to apply the "noncompliance" concept properly. See P. Br., 18 -
19.

I have considered the relevant evidence and reject the new
arguments submitted by Petitioner.

According to the uncontradicted evidence presented by HCFA (see,
e.g., transcript pages cited at HCFA Br., 7 - 12), the resurvey
at issue was conducted following the State survey agency's
receipt of Petitioner's plan of correction and representations
that, as of September 24, 1995, Petitioner had corrected all
deficiencies found during the August 1995 survey. Therefore, in
October 1995, a team of surveyors was given the responsibility
13

for conducting a focused resurvey in order to check on the
status of Petitioner's compliance in specific problem areas.

The October revisit survey was coordinated by Janet McIntyre, a
registered nurse who had been employed as a surveyor by the
State agency for 15 years. On direct examination as well as
cross-examination, her testimony concerning her qualifications
shows that she did receive relevant training from HCFA and the
State. The other members of the October team were three IDPH
“health facility surveillance nurses" (Kathleen Stapleton, R.N.;
Shirley Miller, R.N.; and Judith Bradshaw, R.N.) and two
surveyors employed by the Illinois Department of Public Aid
(Annabel Blackorby, R.N. and Gary Streitmatter, sanitarian). See
HCFA Ex. 8 at 7, 8.

Also, according to the uncontradicted evidence presented by
HCFA, the resurvey team performed seven tasks in accordance with
established protocols for resurveys.

"Task 1" of the October resurvey consisted of the off-site
preparatory work performed by the team coordinator (Ms.
McIntyre), such as her review of the previous survey report and
her discussions with the other team members concerning the
deficiencies they would need to resurvey.

"Task 2" consisted of the team's unannounced entry onto
Petitioner's premises, as well as the discussions the team
coordinator (Ms. McIntyre) held with Petitioner's staff to
explain the purpose of the resurvey and to request certain
information from Petitioner.

"Task 3" consisted of the team's activities while walking
through the facility in the company of Petitioner's personnel.
During this tour, the resurvey team members made observations,
asked questions, and noted potential issues for inquiries.

"Task 4" consisted of the resurvey team's activities when its
members met as a group after the walk-through tour. During this
meeting, the team members discussed their initial impressions
and selected the sample residents for focused review; Ms.
McIntyre, the team coordinator, then divided up the charts of
these sample residents among the team members for focused
reviews.

"Task 5" consisted of the surveyors' gathering information about
their assigned residents. The surveyors studied Petitioner's
records, observed the residents in person, conducted interviews
14

with the residents or their families where feasible, met with
one another to discuss their observations and respective
impressions, and met with Petitioner's administrative staff in
order to provide Petitioner with the opportunity to disclose
information pertinent to the surveyors' preliminary findings.

"Task 6" consisted of the team's meeting as a group to discuss
whether Petitioner had eliminated each of the areas of
noncompliance found during the August survey.

"Task 7" consisted of the exit interview held with Petitioner's
administrator, at which time Ms. McIntyre, as the team
coordinator, disclosed the team's tentative
compliance/noncompliance findings, the details of each example
of alleged noncompliance noted by the surveyors, and the
identity of the residents involved. Additionally, Petitioner's
administrator was given the opportunity to provide pertinent
information to the surveyors during the exit conference.”’

Following this multistep process, the surveyors prepared a
written report containing the team's formal findings of
noncompliance under the "Resident assessment" (F 282) and
"Quality of care" (F 309) requirements. HCFA Ex. 8.

The foregoing uncontested evidence does not show the invalidity
of the noncompliance determination made by the survey team as a
group. Nor have I found any evidence proving that any individual
surveyor's personal observations were facially unreasonable due
to the extent of his or her training or surveying experience.
See P. Br., 18. The evidence does not establish the extent to
which any individual surveyor's alleged lack of training or
experience had impacted on the noncompliance determination at
issue. There is no evidence showing that more training or
surveying experience for any of the surveyors would have
resulted in the team's making a collective determination that
Petitioner was in substantial compliance during October 1995.

The crux of Petitioner's complaint is its allegation that the
surveyors did not understand what the term "substantial
compliance" meant because neither the regulations nor the SOM
defined "potential" and "minimal harm." See P. Br., 18. However,
Petitioner has introduced no evidence to show that additional
training or surveying experience would have given any of the

Yas I discuss below, Petitioner's administrator did provide additional
information to the surveyors at the exit conference.
15

surveyors an understanding of these terms that would be
substantially different than what they expressed at the hearing.
Moreover, the explanations of "minimal harm" and "potential"
given by individual surveyors (quoted by at P. Br., 19, 20) do
not support the argument that they are unreasonable,
inconsistent, and overbroad. As indicated by Petitioner's
quotation of the definitions provided by the surveyors (P. Br.,
19, 20), the surveyors were using what amounted to ordinary
dictionary definitions of "potential" and "minimal harm." The
surveyors' approach is valid, given that neither the regulations
nor statutes provide specific definitions for those terms or
suggest that ordinary dictionary meanings should not be used.

For the foregoing reasons, I issue the following
formal FFCL in rejecting Petitioner's argument that
HCFA's noncompliance determination is erroneous
because some surveyors are alleged to have lacked
adequate training and experience:

5. The uncontested evidence of record establishes
that the noncompliance determination at issue
resulted from the collective determination of the
resurvey team, which was under the coordination
and guidance of an experienced and qualified
surveyor (Janet McIntyre), through the proper use
of established procedures and goals applicable to
follow-up surveys and with the consideration of
information provided by Petitioner throughout the
resurvey process.

6. The extent of an individual surveyor's
experience or training has not been shown to have
caused any material flaw in the noncompliance
determination at issue.

E. Rejection of Petitioner's argument that HCFA's
noncompliance determination under "Resident assessment" (F

282) is wrong due to the short duration of the survey, the

small number of residents sampled, and the allegedly minor

nature of some deficiencies

Petitioner contends that the number and nature of the
deficiencies cited for its resident population of 197 people
during a few days in October 1995, even if proven, do not
demonstrate noncompliance by Petitioner. P. Br., e.g., 5, 12; P.
Reply, e.g., 6, 11, 12. In making these arguments, Petitioner
refers to its admitted failure to serve the prune juice

16

specified in physicians' orders for two residents on the one
morning observed by a surveyor, and to its staff's admitted
failure to reposition a resident (who had a physician's written
order for repositioning every two hours) during any of the four
periods of time a surveyor was making her observation of this
resident.*®

I have considered the fact that HCFA's noncompliance
determination rests on the 11 distinct sets of deficiencies
which were identified by the resurvey team in their review of
the services Petitioner delivered to 8 of 17 residents. See HCFA
Ex. 8. (Each set of deficiencies consisted of multiple
observations of the same type relating to those 8 residents.) *° I
have considered also the fact that the resurvey at issue took
place over a period of three days at a facility that the
surveyors knew housed approximately 200 residents. See Tr. 45,
46. Additionally, the evidence shows without dispute that, in
determining noncompliance as a result of the October resurvey,
the resurvey team had assigned the "E" level to the deficiencies
categorized under "Resident assessment" (F 282) and "D" level to
the deficiencies categorized under "Quality of care" (F 309).
HCFA Ex. 8. As explained by HCFA, the letters from "A" through
"Fr" are used by the surveyors to indicate the scope and severity
of the deficiencies (with "A" being the lowest). HCFA Br., 5 at
n.2.

These uncontested facts provide some support for Petitioner's
argument that HCFA's noncompliance determination should not be
sustained due to the relatively minor nature of the problems
discovered for only a handful of residents during a short period

even though Petitioner listed only certain specific survey citations
in her arguments, the same process was used by the surveyors in making their
finding for all of the deficiencies which underlie the noncompliance
determination at issue. Therefore, I address in this section the aspect of
Petitioner's arguments which has general applicability to all of the
deficiencies found during October through the same resurvey process. (This
process is established by the uncontested facts of record.) Elsewhere in the
Decision, I will discuss the specific factual disputes concerning each
alleged deficiency.

“the observations consisted of the surveyors' review of residents
records and their visual study of the residents' care. The surveyors noted
more than one time period of visual observation for each allegedly deficient
service rendered to each resident--with the exception of the observation that
Petitioner had failed to follow physician's orders to serve prune juice to
two residents identified as R 1 and R 11. The surveyor made her visual
observation concerning the latter matter during a single period of
observation (from 7:50 to 8:30 AM on the second day of the resurvey). HCFA
Ex. 8 at 2, 3.
17

of time. However, I have considered also other uncontested
facts. Other uncontested facts provide the appropriate context
for interpreting Petitioner's arguments. Therefore, based on the
totality of the relevant uncontested facts of record, I conclude
that the size of the sample, the surveyors' focus on problems
which may appear minor in isolation, and the length of the
resurvey do not negatively affect HCFA's determination of
noncompliance under the "Resident assessment" requirement.

First, with respect to the portion of Petitioner's argument
alleging that the deficiencies were minor, the evidence
introduced by HCFA shows that deficiencies of levels "D"
(assigned by the resurvey team to Petitioner's "Quality of care"
deficiencies) and "E" (assigned by the resurvey team to
Petitioner's "Resident assessment" deficiencies) are considered
to constitute substantial noncompliance. HCFA Br., 5 at n.2. In
reliance upon these "D" and "E" designations, HCFA has not
alleged that Petitioner's noncompliance was at the most
egregious end of the noncompliance continuum. However, even the
less serious level of noncompliance alleged by HCFA, if proven
true, would compel me to uphold the DPNA imposed by HCFA. See
Section II, B, above.

With respect to Petitioner's reliance on the short duration of
the survey period and its contention that certain trivial
matters were improperly focused upon during the resurvey, I note
that what occurred in October 1995 was a focused study of what
Petitioner had done or failed to do to remedy its past
noncompliance. The nature of Petitioner's past noncompliance
determined the inquiries and observations made by the resurvey
team and Petitioner had the opportunity to present more
information to the resurvey team if Petitioner thought the
resurvey was being concluded too soon. As I have discussed
above, the focused survey conducted in October was done in
accordance with established protocol and goals, which provided
Petitioner with the opportunity to submit additional information
for consideration by the surveyors before they made their final
determinations.

According to the relevant uncontested facts of record (see,
e.g., testimony cited at HCFA Br., 7 - 12), the October survey
was a revisit made especially for the purpose of ascertaining
whether Petitioner had eliminated those deficiencies at the "D"
level or higher which had been found during the August survey.
Therefore, in conducting the resurvey, the team properly focused
on Petitioner's activities under 42 C.F.R. § 483.20 (d) (3) (ii)
("Resident assessment") and 42 C.F.R. § 483.25 ("Quality of

18

care"), since noncompliance at the "E" level had been found in
both those areas during the August survey. See HCFA Ex. 3 at 9 -
11 (referring to F 282) and 11 - 14 (referring to F 309).

The uncontroverted evidence shows also that Ms. McIntyre, the
resurvey team's coordinator, had reviewed the August survey
report and related documents in preparation for the resurvey.
Among the examples cited in the August survey report for
Petitioner's noncompliance with the "Resident assessment"
requirement (F 282) were Petitioner's substitutions of other
liquids for the milk shakes, thickened liquids, and prune juice
specifically ordered by physicians in their written orders. HCFA
Ex. 4 at 10. The August survey report also cited Petitioner's
noncompliance with the "Quality of care" requirement (F 309), as
evidenced by Petitioner's failure to release, reposition, and
toilet the eight residents who were restrained in chairs with
trays or lap locks during the three and one half hours observed
by a surveyor. HCFA Ex. 4 at 11 - 14. The focus of the October
resurvey was properly on these and other prior deficiencies to
determine whether the underlying practices had been eliminated
as alleged by Petitioner. See Tr. 49.

Under the forgoing circumstances, there is nothing improper or
trivial about the resurvey team's focus during October 1995, on
issues such as whether Petitioner had continued to deviate from
physician's written orders for Petitioner to serve specific
fluids (e.g., prune juice) to certain residents each morning or
whether Petitioner had corrected its prior practice of failing
to reposition those residents who needed assistance in doing so.
Additionally, the relevant portions of the regulation on
"Resident assessment" (quoted below) focused on a facility's
delivery of care in accordance with the contents of a facility's
plan of care for its residents--including any incorporated
physician's orders relating to juices, medications,
repositioning, or anything else. The "Resident assessment"
regulation does not exempt a facility from following doctors'
written orders on matters considered insignificant by its
staff.” As acknowledged by Petitioner's administrator during the
hearing, no one at a nursing facility has the authority to
disregard a physician's order, even if the order can be viewed
as trivial or unnecessary. Tr. 424.

207 discuss below Petitioner's argument that prune juice should not have
been specified in a physician's order.
19

As for the size of the resurvey samples in relation to
Petitioner's census of 197 residents in October 1995, the
uncontroverted evidence of record shows also that the number of
the resident samples was determined in accordance with a
standard formula, which Petitioner has not challenged. Ms.
McIntyre testified that the number of residents selected as
samples for the October resurvey was determined with the use of
a formula contained in the SOM; this formula factored in a
facility's resident census and the fact that a follow-up survey
was being conducted. Tr. 45, 46, 49 - 50. For a routine survey,
the relevant formula would have required sampling 29 residents
in a facility with Petitioner's census. Tr. 45. The formula
applicable to a follow-up survey requires sampling 60 percent of
those residents who would have been reviewed for a routine
survey. Id. For these reasons, the October 1995 resurvey team
selected a sample of 17 residents (or 60 percent of 29
residents) for their focused review.*!

Petitioner has not challenged the validity of the formula used
by the surveyors for determining the sample size. In fact, there
does not appear to be any basis for such a challenge. The
formula, specified by the SOM, is the same one which would have
been used in any follow-up survey of a nursing facility having
approximately 197 residents. By entering into the Medicare and
Medicaid programs voluntarily, Petitioner has voluntarily
subjected itself to the resurvey procedures and formulas
applicable to the same type nursing care facilities.

In citing Petitioner for noncompliance under both the "Resident
assessment" (F 282) and "Quality of care" (F 309) requirements,
the resurvey team found problems in Petitioner's services to 8
of the 17 sample residents and listed 11 distinct sets of
deficiencies* (each set consisting of multiple observations of

*1under the "Quality of care" citation, the October resurvey report
refers to "l of 12 residents." HCFA Ex. 8 at 7. However, in light of the
testimony explaining how the number of resident records were selected for
review (Tr. 45, 46), I conclude that "1 of 17 residents" was mistyped as "1
of 12 residents" in the resurvey report.

according to the survey report, the care plan for R 16 (Lloyd H.)
specified ambulation to and from meals and the bathroom. HCFA Ex. 8 at 6. The
surveyors noted, inter alia, that the resident was not being ambulated daily
and he was not being taken to the bathroom. HCFA Ex. 8 at 6.

HCFA contends only that Petitioner has failed to ambulate this resident. HCFA
Br., 23, 24, 46 - 48. HCFA does not contend that the care plan required this
resident to be toileted or that Petitioner's ambulation of this resident must
begin or end at the bathroom. Therefore, I do not construe the alleged
20

the same type) for those 8 residents. HCFA Ex. 8. All 11 sets of
the citations were used to support the conclusion that
Petitioner was out of compliance with "Resident assessment."
Additionally, one of those 11 sets of citations (Petitioner's
alleged failure to reposition R 6 (Loretta V.)) was repeated
verbatim in finding Petitioner out of compliance also with the
"Quality of care" regulation. HCFA Ex. 8 at 5, 7.

If proven as fact, 11 sets of like deficiencies which occurred
under the "Resident assessment" requirement during a mere three-
day period in Petitioner's delivery of services to 8 (or nearly
50 percent) of the 17 sample residents would constitute a
facially significant incidence of problems. This, or a similar
number of like problems, can reasonably lead to the conclusion
that Petitioner had systemic problems under the "Resident
assessment" requirement. The existence of systemic "Residence
assessment" problems can, in turn, support HCFA's conclusion
that Petitioner was not in substantial compliance with program
participation requirements. See HCFA Reply, 3.

However, HCFA's determination of noncompliance under the
"Quality of care" requirement is not supported by any
numerically significant observations, even if the observations
were proven true. HCFA has relied upon only a single set of
observations concerning one resident (R 6) out of the 17
sampled. Additionally, this same set of observations was
categorized as a "Resident assessment" deficiency as well. Even
though I am not creating any universal rule prohibiting the use
of the same set of facts to support more than one noncompliance
allegation, the facts in this case suggest strongly that the
"Quality of care" noncompliance determination in this case was
made unnecessarily and without adequate justification.

There is no evidence that any concern for R 6's health or well-
being had necessitated citing Petitioner for alleged
noncompliance under both the "Resident assessment" and "Quality
of care" requirements due to Petitioner's failure to reposition
this resident. The alleged failure to reposition this single
resident out of the group of 17 sampled also does not suggest a
pattern of "Quality of care" problems. Additionally, there is no
evidence that HCFA would have foregone imposing the DPNA against
Petitioner absent the additional finding of noncompliance under
"Quality of care." A basis for imposing an enforcement remedy
such as DPNA exists even if noncompliance has been found under

failure to take this resident to a bathroom as an independent citation of a
deficiency.
21

only one regulation. Therefore, in accordance also with the
parties' stipulations (ALJ Ex. 1), I will resolve only the
merits of HCFA's determination of noncompliance under "Resident
assessment" (F 282), 42 C.F.R. § 483.20(d) (3) (ii), pursuant to
the October resurvey.

For the foregoing reasons, I issue the following formal
FFCL after having evaluated Petitioner's arguments
concerning the number and nature of deficiencies found
during the three-day resurvey:

7. Under established resurvey protocol, it was
appropriate for the resurveying team in October 1995
to consider, inter alia, whether Petitioner had
corrected its past noncompliant practices of failing
to provide to residents the drinking fluids (e.g.,
prune juice) specified in their physician's written
orders and of failing to reposition residents for long
periods of time.

8. There is no evidence establishing that the resurvey
at issue should have been conducted for longer than
the period actually used by the resurvey team.

9. The resurveying team's sampling of only 17
residents from Petitioner's total population of 179
residents in October 1995 was properly done in
accordance with established resurvey protocol.

10. If proven as fact, the incidents of similar
deficiencies (or a like incidence of similar
deficiencies) cited by the October resurvey team can
reasonably support HCFA's conclusions that Petitioner
had systemic problems which were not corrected from
August and, therefore, Petitioner remained out of
compliance with the "Resident assessment"
requirements.

11. It is not necessary for me to reach the issue of
whether Petitioner was also out of compliance with the
requirements for "Quality of care," which HCFA has
attempted to establish with the use of only one set of
observations (repeated from the "Resident assessment"
determination) concerning one resident out of the 17
sampled.
22

12. The issue of whether HCFA had a basis for imposing
the DPNA remedy against Petitioner will be decided on
the merits of the problems cited by the resurvey team
under "Resident assessment" (F 282), 42 C.F.R. §
483.20 (d) (3) (ii).

III. EVIDENCE AND DISPUTES CONCERNING THE "RESIDENT ASSESSMENT"
REQUIREMENT (F 282)

A. The regulation relied upon by HCFA

To participate in the Medicare and Medicaid programs, each
NF/SNF must conduct a comprehensive assessment of each
resident's functional needs and then develop a comprehensive
care plan for each resident. 42 C.F.R. § 483.20(b), (d). The
regulations also explain what a care plan must contain, how it
must be formulated, and the relationship it must bear to the
goal of having each resident attain or maintain his or her
highest level of well-being. The regulations state:

(1) The facility must develop a comprehensive care plan for
each resident that includes measurable objectives and
timetables to meet a resident's medical, nursing, and
mental and psychosocial needs that are identified in the
comprehensive assessment. The care plan must describe the
following--

(i) [t]he services that are to be furnished to attain or
maintain the resident's highest practicable physical,
mental, and psychosocial well-being as required under §
483.25

(2) A comprehensive care plan must be--

(ii) [p]repared by an interdisciplinary team, that includes
the attending physician, a registered nurse with
responsibility for the resident, and other appropriate
staff in disciplines as determined by the resident's needs

42 C.F.R. § 483.20(d) (1) (i), (2) (ii).

In the foregoing context, HCFA found Petitioner out of
compliance with the following regulatory requirement during the
October resurvey:

(d) Comprehensive care plans.

(3) The services provided or arranged by the facility must-
wk

(ii) [b]le provided by qualified persons in accordance with
each resident's written plan of care.

23

42 C.F.R. § 483.20(d) (3) (ii) (emphasis added) .*°

HCFA seeks to prove Petitioner's noncompliance with use of the
11 sets of deficiencies found by the resurvey team during their
review of Petitioner's delivery of services to 8 out of 17
sample residents.*4

According to HCFA, Petitioner's noncompliance with 42 C.F.R. §
483.20(d) (3) (ii) is established by two broad categories of
omissions, which are evidenced by the 11 sets of deficiencies:

1. PETITIONER'S FAILURE TO FOLLOW WRITTEN PHYSICIANS'
ORDERS, as shown by:
A. Petitioner's failure to apply hand splints and hand
rolls on four residents (R17, R12, R 4, and R 16) as
ordered by their physicians for avoiding or retarding
the residents' development of hand contractures;
B. Petitioner's failure to provide prune juice to two
residents (R 1 and R11) as ordered by their
physicians for maintaining regular bowel movements;
C. Petitioner's failure to reposition one bedridden
resident (R 6) as ordered by her physician;

2. PETITIONER'S FAILURE TO IMPLEMENT THE WRITTEN CARE PLANS
IT DEVELOPED FOR RESIDENTS, as shown by:
A. Petitioner's failure to treat the significant
weight loss of one resident (R 12) by referring her to
a registered dietician in accordance with the care
plan;
B. Petitioner's failure to reduce the episodes of
inappropriate behavior for two residents (R 4 and R 9)
in accordance with their care plans;
C. Petitioner's failure to ambulate one resident (R
16) daily in accordance with the care plan.

I discuss below these two broad categories and the 11 sets of
deficiencies.

che testimony shows also that a "plan of care" is used to mean the
written document developed by the facility which encompasses all of the care
to be given a resident. Tr. 54, 55.

*Por each of the 11 sets of alleged deficiencies, I will summarize
below the corresponding evidence and theories presented by the parties.
Thereafter, in Section IV of this Decision I will evaluate the merits of the
parties' respective position.
24

B. Petitioner's failure to follow physicians' written

orders to provide specified services to certain residents

The regulations codified at 42 C.F.R. § 483.20 do not
specifically mention physician orders. However, all facilities
are required to provide services "in accordance with each
residents' written plan of care" (42 C.F.R. § 483.20(d) (3) (ii)
and each written plan of care must be prepared with the
participation of the resident's attending physician and include
a description of the services that are to be furnished to the
resident by the facility. 42 C.F.R. § 483.20(d) (1) (i), (2) (ii).
Therefore, it follows that a facility's failure to provide
services to residents in accordance with the written orders of
their physicians can constitute noncompliance under this
regulation. Additionally, Petitioner has not argued that, as a
matter of law, failure to follow a physician's written order
cannot constitute noncompliance under 42 C.F.R. §
483.20 (d) (3) (ii).

1. Failure to Apply Hand Splints and Hand Rolls for Four
Residents in accordance with Written Physician's Orders

HCFA's evidence and conclusions

There is no material dispute to HCFA's evidence defining hand
contractures and explaining the need to use hand rolls or hand
splints. As explained by one of the nurse surveyors,
contractures are the loss of the ability to move a joint to the
fullest range or extent. Tr. 144. If residents do not
voluntarily move their joints, the joints become stiff, and bone
will actually develop in the joints; in those situations, the
joints can become immovable and pressure sores or infections can
develop in the skin of the contracted hand. Id.; Tr. 147. To
avoid or retard the development of these problems, hand splints
are used to stretch out the hand (Tr. 145, 148, 149) and hand
rolls are used to keep the hand from closing completely to the
point where finger tips are pressed against the palms (Tr. 146
147).

The parties are in substantial agreement that a hand roll should
be in place if the hand splint is not being used. A surveyor so
testified on behalf of HCFA. Tr. 147, 148. Petitioner's
assistant director of nursing agreed that it would be "pretty
bad nursing practice" to leave a contracted hand without either
a splint or hand roll in place. Tr. 520. She agreed that a hand
25

roll should be in place if there is no passive range of motion
exercise being performed and the splint is off. Tr. 498.7°

According to a nurse surveyor who testified for HCFA,
contractures get worse every day that they are untreated. Tr.
153. The worsening of contractures can debilitate an
individual's activities of daily living and quality of life. Tr.
306. Petitioner's assistant director of nursing agreed that the
potential for compromising an individual's condition increases
every day that the hand rolls and splints are not in place. Tr.
519, 523. Petitioner's director of operations acknowledged that
a failure to apply splints and hand rolls constituted a
deficiency and that it may have a potential for more than
minimal harm. Tr. 665.

Petitioner does not dispute that four of its residents in the
October resurvey sample (Residents R17, R12, R 4, R 6) had
physicians' orders for the application of hand splints and/or
hand rolls in order to slow down the progress of their
contractures.

In the case of R17 (Alvina L.), this resident had contracture
and a physician's order for the application of hand rolls and
hand splints on both hands. HCFA Ex. 8 at 4; HCFA Ex. 22. Her
physician had ordered in writing that hand splints be placed on
both hands every morning and be kept on for up to eight hours.
Id.; Tr. 497, 498. The written physician's order required also
that hand rolls be used when her splints were removed. Id.

During two days of the resurvey, surveyor Annabel Blackorby,
R.N., observed that this resident was not wearing hand splints
or hand rolls. Tr. 145, 146; HCFA Ex. 8 at 4. The surveyors'
report of deficiencies*® shows that when this resident was

* petitioner's assistant director of nursing testified also that, if a
resident is ordered to wear a splint for six to eight hours, a staff member
would usually remove the splint for five to ten minutes every two hours in
order to do passive range of motion exercises with the resident. Tr. 497,
498. However, the staff member would usually remain with the resident in
order to reapply the hand splint. Tr. 498.

2° Petitioner argues that it had no meaningful opportunity to dispute
the surveyor's observations since Ms. Blackorby did not provide testimony at
the hearing concerning the particular times of her observations concerning
Alvina L. or other residents. P. Reply, 3. I reject this argument, as well as
Petitioner's contention that little weight should be given to Ms. Blackorby's
observations because she did not specify the corresponding times in her
testimony. See P. Reply, 3.
26

observed at 11:30 a.m. and 4:00 p.m. on October 3, 1995, she did
not have any hand splint or hand roll in place. HCFA Ex. 8 at 4.
The report shows also that when this resident was observed again
on October 4, 1995, at 9:00 a.m., 11:00 a.m., 1:00 p.m., and
1:45 p.m., she also did not have any hand splint or hand roll in
place. Id.

In the case of R12 (Louise M.), this resident had contractures
of her hands, fingers, and wrist. Tr. 156, 159; HCFA Ex. 22.
Petitioner does not dispute HCFA's contention that her care plan
contained a physician's written order for the use of hand rolls.
See HCFA Ex. 22; HCFA Br., 13; P. Reply, 2 - 5.

On October 3, 1995, a surveyor observed R 12 (Louise M.) to be
without handrolls at 11:20 a.m., 1:15 p.m., and 2:40 p.m. HCFA
Ex. 8 at 4; Tr. 156, 159. On October 4, 1995, this resident was
again observed by a surveyor to be without handrolls at 9:00
a.m., 1:00 p.m., and 3:45 p.m. Id.

In the case of R 4 (Connie P.), this resident had a physician's
order for the use of a hand splint for up to eight hours each
day. HCFA Ex. 8 at 5; HCFA Ex. 22. Her care plan indicated that
she had a decreased range of motion and, moreover, she was at
risk for developing further decreases and contractures of the
right hand. Tr. 337. Petitioner does not dispute that this
resident needed to wear a hand splint as ordered by her
physician.

According to a surveyor, Judy Bradshaw, R.N., resident R 4 was
not wearing a hand splint at any time when Ms. Bradshaw observed
her during each of the three resurvey days. HCFA Ex. 8 at 5; Tr.
301, 302, 304. Ms. Bradshaw first saw R 4 in her room during the
initial walk-through tour. Tr. 297. Then Ms. Bradshaw saw R 4
again on October 3, 1995, at 11:10 a.m. and 2:00 p.m. and on
October 4, at 9:15 a.m.; at those times she noted other problems

Petitioner was on notice as to the timing of the observations relied upon by
HCFA, and Petitioner had a meaningful opportunity to dispute the timing and
substance of such observations at hearing. The dates and timing of the
relevant observations for each resident were listed in the report of
deficiencies (HCFA Ex. 8) issued to Petitioner long in advance of these
proceedings. This report of deficiencies was admitted into the record without
objections from Petitioner. Ms. Blackorby testified that she made
observations concerning Alvina L. on two days. Tr. 145. There is no evidence
to indicate that dates and times of the observations noted on the survey
report were fabricated. In the absence of specific challenges from Petitioner
as to the dates and times of observations listed in the survey report, I
would have considered any witness testimony on these matters to have been
cumulative and unnecessary
27

as well. HCFA Ex. 8 at 5.*’ Ms. Bradshaw testified that she was
also in R 4's room to observe R 4's roommate, R 6 (Loretta V.).
Tr. 296, 297.

In the case of R16 (Lloyd H.), this resident had a care plan
which stated that he was at risk for finger contractures of the
left hand. Tr. 337. He already had a contracture of his left
hand, and the doctor had ordered the application of a hand
splint for up to eight hours each day. HCFA Ex. 8 at 6; Tr. 333.
During two days of the survey (October 3 and 4), Ms. Bradshaw,
the surveyor responsible for observing this resident, did not
see a hand splint in place. HCFA Ex. 8 at 6.

As I understand HCFA's evidence and arguments, HCFA made its
determination of noncompliance based on the numerosity and
relatedness of the above incidents observed by the surveyors.
HCFA contends that the Petitioner's repeated failures to apply
hand rolls and splints as ordered by physicians manifested a
"system breakdown." HCFA Reply, 3. According to HCFA, it would
be "far-fetched" to believe that the absence of hand rolls and
splints had occurred by chance. Id. Relying especially on the
evidence that either a hand roll or splint should be in place at
all times, HCFA argues that both these devises would not have
been absent during the random periods noted by the surveyors, if
Petitioner had been complying with the physicians' orders for
the residents to use a hand splint for six to eight hours each
day. HCFA Reply, 4, 5 and transcript pages cited therein.

Petitioner's evidence and defenses

Petitioner does not contend that all of the observations made by
the surveyors are wrong. Ms. Janet Dickhut, Petitioner's
assistant director of nursing, testified that when she was in
the company of the surveyors during their initial tour of the
facility at about 9:00 a.m. on October 3, 1995, she also had
observed that there were no hand rolls or splints on R 17

petitioner argues that neither the report of deficiencies nor witness
testimony specifies the periods of time during which the surveyor made her
observations that Connie P. was without a hand splint. P. Br., 14. However,
the survey report stated that the surveyor observed Connie P. on each of the
three resurvey days, and it listed the specific hours during which she saw
other problems with the services Petitioner's staff delivered to Connie P.
HCFA Ex. 8. Therefore, it was possible for Petitioner to ascertain from the
survey report the number of times and the precise hours during which the
surveyor saw that Connie P. had no hand splint on. Petitioner has not
contested that observations were made by the surveyor, as set forth in the
report.
28

(Alvina L.) (Tr. 442) nor on R 4 (Connie P.). Tr. 456; P. Br.,
14. Ms. Dickhut admitted also that when she made her rounds at
about 2:45 p.m. on October 3, she did not see hand rolls on R 12
(Louis M.). Tr. 447. Nor could Ms. Dickhut recall seeing hand
rolls on this resident during October 4, 1994, the second day of
the resurvey. Id.

Instead, Petitioner's evidence and defenses rely on the fact
that the surveyors did not have the opportunity to keep each of
the above mentioned four residents under continuous observation.
Petitioner contends that the surveyors did not see all there was
to see. According to Petitioner, it was following physician's
orders when the surveyors were not making their observations.

For example, Petitioner pointed out that the physicians' orders
for R 4 (Connie P.) and R16 (Lloyd H.) did not specify that a
hand splint must be applied during any particular hours of the
day. P. Br., 14, 16. Their physicians' orders required only the
daily use of a hand splint for up to six or eight hours, as
tolerated. Id. Since no surveyor has testified to having kept
the resident under direct observations for full days, Petitioner
concludes that HCFA has not shown any deviation from the
physician's orders on the use of hand rolls or splints for six
to eight hours, as tolerated. P. Br., 16.

Construing the surveyors' observations to mean only that hand
splints and hand rolls had not been placed on the residents
during those moments observed by the surveyors, Petitioner has
introduced evidence to show that the absence of a hand splint
for a couple of hours, or even for a day, could not exacerbate
contractures or cause the potential for more than minimal harm
to any resident. See testimony cited at P. Br., 8. With respect
to R12 (Louise M.), Petitioner especially introduced the
opinion that this resident was already terminally ill due to
Alzheimer's Disease and dementia, and, therefore, not placing a
hand roll on her for short periods of time during a couple of
days should not have constituted even a deficiency.*® Tr. 448,
449,

8 However, Petitioner's witness admitted also that rehabilitative
efforts should continue even with terminally ill residents. Tr. 449.

As relevant to the issue of whether a terminal resident might be harmed

within the meaning of the law by the absence of hand rolls, I note that the

care plan (which includes the physician order for Louis M. to use hand rolls)

must specify the services that are to be furnished "to attain or maintain the

resident's highest practical physical, mental, and psychosocial well-being.
-" 42 C.F.R. § 483.20(d) (1) (i).
29

Petitioner's assistant director of nursing, Ms. Dickhut,
testified that she saw hand rolls or splints on the residents
when she was not with the surveyors. With respect to R17
(Alvina L.), Ms. Dickhut testified that the hand splints were
being reapplied when she made her rounds at noon on October 3,
1995--after this resident was seen without hand splints at
approximately 9:00 a.m. of the same day--because her splints had
been removed that morning for a bath. Tr. 442, 443. (However,
Ms. Dickhut admitted that she did not check on Alvina L.'s use
of hand rolls or splints on October 4, 1995. Tr. 499.) With
respect to R12 (Louise M.), Ms. Dickhut testified that she saw
a hand roll on this resident at approximately 12:15 p.m. on
October 3, 1995 (Tr. 447)--before a surveyor saw this resident
without a hand roll at 2:45 PM of the same day. Tr. 447. With
respect to R 4 (Connie P.), Ms. Dickhut testified that she saw
this resident wearing a hand splint at 12:30 p.m. on October 3,
1995 (Tr. 456)--after a surveyor had seen this resident without
such devices earlier that morning at approximately 9:00 a.m. Tr.
456.

With respect to R16 (Lloyd H.), Ms. Dickhut testified that this
resident had a habit of asking his wife to remove his hand
splint and that his wife was present during the October
resurvey. Tr. 470, 502, 504. However, Ms. Dickhut did not see
anyone remove his hand splint during the days at issue. Tr. 502,
504. She acknowledged also that this resident's wife had died
several months before the October resurvey.”” Tr. 507, 508.

Previous to the hearing, Ms. Dickhut had not disclosed her
foregoing observations concerning the application of hand rolls
and splints. Ms. Dickhut admitted, for example, that she did not
say anything about having seen Alvina L. with hand splints at
noon on October 3, even though she heard Ms. McIntyre report Ms.
Blackorby's specific observations of Alvina L.'s having been
without splints or hand rolls at 11:30 and 4:00 that day. Tr.
494 - 497. Ms. Dickhut's explanation was that she did not know
she could have brought up such matters at the exit conference. *”

Petitioner explained that Ms. Dickhut had mistaken this resident's
sister-in-law for his wife. P. Reply, 11.

3at the hearing, Ms. Dickhut was asked this question by Petitioner's
counsel:

[a]nd at the exit, when this issue was brought up, were you under the

impression that you could offer rebuttal information at that time?
Tr. 551. Ms. Dickhut responded: "I didn't realize that." Id.
30

Petitioner asserts also as a defense that the "rehab aide" who
usually applied the hand rolls and splints was not at work
during the entire resurvey period. During the survey,
Petitioner's staff told the surveyors that hand splints were not
applied as ordered by physicians because the "rehab aide" had
gone home sick during the first day of the survey (October 3)
and that she did not return to duty until the third and final
day of the survey.) Tr. 66, 151, 302. At the hearing, Ms.
Dickhut testified that the "rehab aide" responsible for applying
hand splints had returned to work by October 4, the second day
of the resurvey. Tr. 448. According to Petitioner, "[g]iven the
fact that the person whose job it was to apply and remove hand
splints was not at work on the days in question and that other
staff were performing those functions in addition to their
normal duties at a time when tension was high due to the
presence of the surveyors, it is wholly believable that the
splints could have been on at the times testified to by Ms.
Dickhut [but not during the times observed by the surveyors]."
P. Reply, 4.

2. Failure to Serve Prune Juice to Two Residents as
Specified in the Written Physician Orders

HCFA's evidence and conclusions

As noted above, the October follow-up survey of Petitioner's
compliance under 42 C.F.R. § 483.20(d) (3) (ii) was conducted in
part because, a few months earlier, Petitioner had been cited
for noncompliance under the same regulation for its substitution
of other drinks for the milk shakes, thickened liquids, or prune
juice ordered in writing by physicians. Petitioner had submitted
a plan of correction and alleged that compliance had been
attained.

During October 1995, the resurvey team reviewed Petitioner's
plan of care for (R 1 (Ruth F.) and R 11 (Anna C.)) and found
written physician's orders for Petitioner to serve them prune
juice with their morning meals. HCFA Ex. 8 at 2; Tr. 245.
According to the care plan Petitioner prepared for these two
residents, prune juice was intended to help these two residents

*the evidence does not show at what time on October 3 the "rehab aide"
left work, or how many residents were affected by her departure. According to
Petitioner's assistant director of nursing, the "rehab aide" usually applied
the splints at 4:00 a.m. each morning, whether the residents were awake or
not; on request by the resident, her time for applying splints could be
changed to 8:00 or 9:00 a.m. Tr. 520, 521.
31

maintain regular bowel movements. Tr. 243. Petitioner agrees
that both these residents had care plans "dealing with the issue
of constipation." P. Br., 4.

On the morning of October 4, a surveyor observed that both these
residents were served orange juice instead of prune juice. HCFA
Ex. 8 at 3. Petitioner agrees that prune juice was not served to
these residents that morning. P. Br., 5.

One of the surveyors, Kathleen Stapleton, R.N., raised the
matter with Petitioner's nursing staff and was informed that
these two residents were served orange juice instead of prune
juice because there was no prune juice in their unit's
refrigerator that morning, and the dietary department had not
sent any prune juice that morning. HCFA Ex. 8 at 3; Tr. 244.
When Ms. Stapleton spoke with the dietary department staff, they
told her it was up to the residents' unit to request the prune
juice and that the dietary department had prune juice on hand.
Tr. 244,

At the hearing, several witnesses gave testimony showing that
prune juice is a more effective stool softener than orange
juice. Tr. 245 (testimony of Ms. Stapleton, R.N.); see Tr. 509
(testimony of Ms. Dickhut, R.N., for Petitioner); Tr. 602
(testimony of Petitioner's director of operations, Kathleen
Baker, R.N.). According to the other relevant evidence
introduced by HCFA, R 1 (Ruth F.) was at an increased risk for
constipation because she was taking anti-psychotic medications.
Tr. 243. Moreover, increased age also places a resident at risk
for constipation. Tr. 246, 509.

Petitioner's evidence and defenses

Petitioner's administrator acknowledged during the hearing that
no one at a nursing facility has the authority to disregard a
physician's order, even if the order can be viewed as trivial or
unnecessary. Tr. 424.

Nevertheless, Petitioner's primary defense appears to be that it
need not have served prune juice to either R_1 (Ruth F.) or R11
(Anna C.). In Petitioner's view, no physician should have issued
a written order to direct the serving of prune juice. Petitioner

®at the hearing, Petitioner's administrator also confirmed that there
was no prune juice in the Alzheimer unit, which housed 20 residents. Tr. 416,
417.
32

contends that the physicians' orders for prune juice were not
individualized approaches for the care of these two residents.
P. Br., 6.

Petitioner introduced testimony to show that the standards of
professional practice do not require doctors to issue a written
order to specify the serving of prune juice for constipation.
Tr. 429. Petitioner's administrator, Jeff Nusbaum, testified
that the care plans for R 1 (Ruth F.) and R11 (Anna C.)
contained physicians' orders for prune juice only because
Petitioner had not revised its previous owner's policy of
serving prune juice for constipation only on a physician's
written order. Tr. 411, 412. According to Petitioner's director
of operations, Kathleen Baker, it has become an "expectation"
that doctors issue written orders for prune juice at facilities
which hope to receive Medicare reimbursement for their bowel
restorative services--because reimbursements under the programs
will be more readily forthcoming if all aspects of the bowel
restorative program are under a physician's supervision,
including the serving of prune juice.*? Tr. 600, 601. Ms. Baker
indicated that no physician would have reason to issue a written
order to serve prune juice to a private-pay patient. Tr. 601.

Petitioner introduced evidence to show also that the
substitution of orange juice for prune juice was not likely to
cause either resident any harm. Its witnesses testified that
prune juice and orange juice are clinically similar and they can
be used safely as substitutes for one another. Tr. 429, 430,
602.

Additionally, as it had done in challenging the surveyors'
observations concerning the absence of hand rolls and splints,
Petitioner defends itself also by alleging events not seen by
the surveyors. Petitioner introduced testimony to show that,
unbeknownst to HCFA, Petitioner was preventing and relieving the
two residents' constipation by the other means specified in
their care plans, such as the use of medications and exercise.
See P. Br., 5 and transcript page citations therein. Petitioner

In summarizing Petitioner's evidence concerning why most doctors might
or might not issue written orders for prune juice, I do not imply that there
is any evidence showing that the particular physicians treating R 1 or R ll
had written their orders for prune juice because they were concerned about
Petitioner's policies or possible Medicare or Medicaid reimbursement issues.
In fact, nothing in the record shows that these two residents’ physicians
wrote the prune juice orders for any reason other than to require Petitioner
to serve prune juice, instead of other juices, with these residents' morning
meals.
33

contends also that out of 197 residents in its facility, only
the two residents observed by the surveyors were not served
prune juice on that single morning. P. Br., 5.3

3. Failure to Follow Written Physician Order to Reposition
one (1) Bedridden Resident

HCFA's evidence and conclusions

According to Petitioner's assessments, R_6 (Loretta V.) had
contractures of her knees and hips, and she was at risk for
developing pressure ulcers. Tr. 327.

Shortly before the resurvey began, this resident had fallen and
fractured her left hip near the site of a prior fracture. Tr.
319; P. Ex. 13 at 2. When she was returned to Petitioner's care
on September 29, 1995, after her fall, her physician wrote an
order for treatment of her hip fracture. Her physician's order
directed that she be repositioned every two hours in a
particular sequence: on her right side for two hours, then on
her left side for two hours, "and then repeat sequence." P. Ex.
13 at 5; HCFA Ex. 8 at 5, 7; Tr. 320.

The physician's order directed also the placement of pillows
between this resident's legs in order to maintain good body
alignment for her and to inhibit her from rolling over and
repositioning herself. Tr. 337 - 339; P. Ex. 13 at 5.

According to Ms. Bradshaw, one of the surveyors, she saw Loretta
Vv. lying on her left side whenever she made her observations.
HCFA Ex. 8 at 5, 7; Tr. 321, 323 - 325. For example, on October
4, Ms. Bradshaw saw Petitioner's staff feed this resident at
noon by keeping her on her left side. Tr. 324. During this
resident's passive range of motion exercises, Ms. Bradshaw again
saw Petitioner's staff maintaining her on her left side. Tr.
324, 325. Ms. Bradshaw testified that she did not see the staff
availing themselves of the opportunity to move this resident
onto her back or her right side during the passive range of
motion exercises. Tr. 324.

“at the hearing I asked why Petitioner would have omitted to serve
prune juice as ordered by the two residents' physicians when Petitioner knew
that the resurvey team had returned because Petitioner had been out of
compliance due to its previous failure to serve prune juice as ordered by a
physician. Tr. 415, 416. Petitioner's administrator answered that Petitioner
did serve prune juice to residents on October 4, 1995 but "[a] couple of them
were missed that morning, and received orange juice instead of prune juice."
Tr. 416.
34

When she saw Petitioner's failure to reposition this resident
during feeding, Ms. Bradshaw considered the possibility that
this resident might have been kept lying on her left side during
the noon meal because there was a relevant eating or swallowing
evaluation which made this posture necessary. Tr. 324. However,
when Ms. Bradshaw made such inquiries during the survey, no one
presented such an evaluation for this resident. Id. Therefore,
Ms. Bradshaw saw no justification for keeping this resident
lying down and on her left side even while she was being fed.
Id.

When observing the passive range of motion being administered
while this resident was kept lying on her left side, Ms.
Bradshaw wondered whether the resident's left shoulder could be
exercised properly in that position. Tr. 324, 325. Her opinion
was that the left shoulder could not be exercised properly while
the resident was kept on her left side and that it would have
been appropriate to work on her left shoulder by turning her
onto her right side. Id. Yet, Petitioner's staff performed the
exercise on this resident's upper extremities in Ms. Bradshaw's
presence while they kept this resident lying continuously on her
left side. Id.

During the resurvey, Ms. Bradshaw told Petitioner's staff that
Loretta V. did not appear to be repositioned in accordance with
her physician's schedule. Tr. 323. The staff's answer was that
this resident had a tendency to move herself onto her left side
after having been repositioned on her right side. Tr. 323. Given
that the hallway was to the left of the resident's bed and this
resident has had pressure sores on her left foot before, Ms.
Bradshaw considered it possible that this resident was turning
herself onto her left side in order to watch the activities in
the hallway. Tr. 323. Ms. Bradshaw's testimony indicated that,
"if she [R_6 (Loretta V.)] was turning back" and thereby
thwarting her doctor's order for repositioning every two hours,
then Petitioner's care plan for this resident should have noted
and addressed this problem; however, the care plan did not
indicate the existence of such a problem. Id. (emphasis added).

In addition, HCFA noted that the physician's written order
directed the use of pillows between this resident's legs in
order to inhibit spontaneous repositioning by this resident and
Petitioner's assistant director of nursing testified that
pillows were placed under the resident's legs and toward her
back within the scope of the physician's order. HCFA Br., 25.
HCFA also obtained the assistant director of nursing's
35

acknowledgement on cross-examination that a great deal of pain
would result even if a health, younger individual with Loretta
v.'s injuries were to reposition herself to her left side (Tr.
545, 546) and elderly confused residents might move about to
cause even more pain to themselves if they do not realize that
staying still would alleviate the pain. Tr. 539, 540. As also
pointed out by HCFA, Petitioner's witnesses never testified to
having seen this resident turn onto her left side after having
been repositioned onto her right side. See Id.

HCFA interprets the foregoing information to mean that
Petitioner was not repositioning Loretta V. from her left side
to her right side every two hours, in accordance with her
physician's written order. HCFA Br., 48 - 50. HCFA doubts that
an elderly and injured resident like Loretta V., with pillows
placed around her as alleged by Petitioner's assistant director
of nursing, could obtain enough leverage to move herself even
from her back to her side. HCFA Br., 49. HCFA also does not
believe that Petitioner's failure to follow the physician's
repositioning order was limited to the several periods
personally observed by the surveyor. HCFA Br., 50. Therefore,
HCFA relies upon a nurse surveyor's testimony that Petitioner's
failure to reposition Loretta V. was compromising her ability to
recover from her hip fracture, as well as placing her at greater
risk for the aggravation of her hip and knee contractures and
for the development of pressure ulcers on her left side. HCFA
Br., 50 (citing portions of Ms. Bradshaw's testimony).

Petitioner's evidence and defenses

Like its defenses to other survey citations discussed above,
Petitioner's arguments focus on what the surveyors did not see.
Its arguments suggest that Petitioner made some modifications to
the physician's repositioning order because the resident did not
need Petitioner to comply fully with the order.

Petitioner's position is that no surveyor had R 6 (Loretta V.)
under constant observation, and, therefore, the surveyor's
observations at random times are "not dispositive" on the issue
of whether this resident was being repositioned on a regular
schedule. P. Br., 11. Petitioner suggests that Ms. Bradshaw's
testimony at hearing is not fully credible because, after
listing in the survey report the four specific times on October
4 when she made her observations that this resident was lying on
her left side, Ms. Bradshaw gave less precise testimony about
36

when she made those observations. P. Br., 10 - 12.°° Petitioner
argues also that, even with Ms. Bradshaw's four random
observations, HCFA has not established that Petitioner was
failing to provide repositioning services ordered by her
physician when the surveyor was not looking. See P. Br., 12.

Petitioner relies upon several pieces of evidence: the testimony
showing that repositioning a resident every two hours is to
maintain skin integrity and to avoid the development of pressure
sores, Ms. Dickhut's testimony that this resident is a "great
scooter," and Ms. Bradshaw's acknowledgement that this resident
might have liked to be on her left side in order to see the
hallway. P. Br., 11. Petitioner emphasizes also its witness'
testimony that the absence of skin breakdown on a resident at
risk for skin breakdowns indicates that this individual was not
staying in any position for long. P. Br., 12 (citing Tr. 454).
Therefore, Petitioner contends that Loretta V.'s repositioning
of herself at will "accomplished the goals of repositioning even
though she may not have kept to the precise schedule established
by her physician"®® (id.)--as proven by the healing of recent
skin breakdowns during the resurvey.”’ Id. at 12. In this regard,

31 do not find any material conflicts between Ms. Bradshaw's testimony
and the contents of the survey report. The survey report stated that the
surveyor saw this resident on her left side all morning. HCFA Ex. 8 at 4. The
survey report also listed her observations on October 4 as 11:00 a.m. (when
she saw the resident on her left side), 12:30 p.m. (when she saw no
repositioning from the left side when the resident was being fed), 1:30 p.m.
(when she saw no repositioning from the left side when the resident was given
passive range of motion exercises), and 3:00 p.m. (when she saw the resident
still on her left side). HCFA Ex. 8 at 4. In context, Ms. Bradshaw's
testimony does not imply that she saw everything on October 4th at or shortly
after noon, as suggested by Petitioner's brief; I interpret Ms. Bradshaw's
reference to noon of that day as her context for describing her observations
about the feeding and exercising of Loretta V. See Tr. 324. Additionally,
Petitioner had the opportunity to cross-examine Ms. Bradshaw about any
alleged conflicts in the timing of her observations.

tn recounting this argument from Petitioner, I do not suggest that I
have found any evidence indicating that Loretta V. was repositioning herself
on any regular schedule, or at any ascertainable interval. Nor do I suggest
that I find credible Petitioner's contention that, when the surveyors were
not present, its staff had repositioned this resident every two hours as
ordered by her physician before and after this resident had allegedly placed
herself onto her left side.

3’~The surveyor, Ms. Bradshaw, testified that Petitioner's documents
indicated recent healing of earlier skin breakdowns on the resident's left
foot. Tr. 352, She did not testify to having personally observed any signs of
healing. She also did not testify that she believed Loretta V. was
spontaneously turning back to her left side since she fractured her left hip
37

Petitioner's arguments appear to be that it was this resident
herself (and not Petitioner) who was carrying out the essential
elements of her physician's order and accomplishing its goal.

There are two main areas not addressed by Petitioner. First,
Petitioner does not address the fact that the physician's order
for repositioning was given to treat the resident's left hip
fracture. Therefore, Petitioner does not discuss how Loretta
V.'s allegedly spontaneous placement of her weight on her left
side is beneficial for the recovery of her left hip fracture.
Second, Petitioner does not address the fact that the
physician's order concerning the placement of pillows indicated
that the doctor did not want to permit spontaneous turning by
this resident. Therefore, Petitioner does not discuss why it has
chosen to interpret the repositioning order literally, as
meaning that it need only reposition this resident once every
two hours-- without regard for how long or how soon thereafter
she allegedly changed her position onto her right side. See P.
Reply, 12.

C. Petitioner's failure to implement its written plans of

care for residents

1. Failure to Implement Written Plan of Care for Treating
One Resident's Significant Weight Loss

HCFA's evidence and conclusions

In examining Petitioner's written assessment of R12 (Louise
M.), the surveyors found that this resident had undergone a
significant weight reduction--i.e., loosing more than five
percent of her total body weight, and falling well below her
"ideal body weight"--between June and July 1995. HCFA Ex. 8 at
4, 5. According to Petitioner's assessment of this resident, her
ideal body weight ranged between 87 and 107 pounds (P. Ex. 11 at
1, 12; Tr. 166, 168, 169) but her weight had dropped from 87.5
pounds to 82.5 pounds between June and July 1995. P. Ex. 11 at
1; Tr. 169. Because a five percent loss in body weight is
considered a significant change in a resident's condition,
Petitioner was required to effectuate a new assessment of this
resident. Tr. 169 - 70, 578, 579, 619, 620; see 42 C.F.R. §
483.20 (b) (4) (iv).

and was returned to Petitioner's care. Ms. Bradshaw used the phrase, "if she
was turning back." Tr. 323
38

In reviewing Petitioner's records relating to Louise M.'s weight
loss problem of June to July, 1995, the surveyor found that
Petitioner's assistant food service supervisor had written in
the Resident Assessment Protocol*® module and in a nutritional
progress note during July 1995°*° that Louise M.'s weight loss
problem would be addressed by referring her to the facility's
registered dietician. HCFA Ex. 8 at 4; P. Ex. 11 at 10, 12, 13A.
However, when the resurvey was being conducted three months
later, this resident had not yet been seen by a registered
dietician in accordance with Petitioner's written assessment of
her needs. Id.

Petitioner's food service supervisor confirmed to the surveyor
in October that the dietician had not yet evaluated this
resident. Tr. 175. It was not until the resurvey team discovered
this problem that Petitioner's food service supervisor then
placed this resident's name on the list of residents to be seen
by the dietician on her next visit to the facility.*° Tr. 175,
182.

At the hearing, surveyor Annabel Blackorby, R.N., noted also
that this resident's nutritional needs were last assessed by the
registered dietician on January 5, 1995; at that time, the
registered dietician had noted a loss of 4.7 pounds over the
prior six months. Tr. 176. Then between January and June of
1995, this resident had lost also 2.8 pounds (i.e., dropping
from 90.3 to 87.5 pounds). Tr. 176 - 77; P. Ex. 11 at 1. There
is no dispute that this resident had been experiencing a steady
weight loss (see Tr. 674) up to and including the five percent
decrease --from 87.5 to 82.5 pounds--between June and July 1995.

According to the testimony of Ms. Blackorby, falling below the
ideal body weight indicates a deterioration in the tissues of

~he Resident Assessment Protocol, or RAP, is an in-depth assessment of
the resident's needs in a targeted area identified by the nursing facility's
staff. Tr. 51, 116 - 119. The instrument is the starting point for developing
a care plan to treat the particular needs of a resident. Id.

HCFA noted especially that Petitioner's determinations regarding the
referral to a registered dietician related to the weight loss of June to July
and they were written on July 7 and July 26--which post-dated the physician's
orders of June 12 and June 16 to weigh this resident at stated intervals due
to previous weight losses. HCFA Reply, 8. HCFA emphasized these dates and
chronology of events because Petitioner had asserted in its main posthearing
brief, at page 9, that this resident's physician had merely ordered more
frequent weight monitoring when notified of her weight loss.

a registered dietician visited Petitioner twice each month. Tr. 577.
39

the body and malnutrition. Tr. 179. The individual is likely to
experience a loss of energy, as well as to become more
susceptible to developing pressure ulcers and infections. Tr.
179 - 189.

Petitioner's evidence and defenses

Petitioner does not deny that its registered dietician had not
evaluated R12 (Louis M.) in accordance with its written plan of
care as of the October resurvey.

Nor does Petitioner deny that this resident's loss of five
pounds between June and July 1995 constituted a "significant
weight loss" with the federal guidelines. P. Reply, 7. However,
Petitioner contends that the weight loss was caused by the
resident's "advancing disease process" and was not
"catastrophic" given her history and overall condition. Id.
According to Petitioner, this resident was in the later stages
of dementia, which caused her gradual weight loss and decline.
P. Reply., 8 (citing Tr. 569, 621).

Petitioner points to its witness' testimony that other actions
were taken to improve this resident's nutritional in take under
a multifaceted plan, such as feeding her super cereal (which is
high in calories) and having the staff members more familiar to
her encourage her to eat more and better. P. Reply, 7, 8 (citing
Tr. 569).

The registered dietician did not give evidence in this case.
However, Petitioner's director of operations testified that,
even if this resident had been referred in accordance with
Petitioner's written plan of care, the registered dietician
would not have given high priority to this resident's weight
loss from June to July, if there had been other, more medically
compromised residents for the dietician to see as well.* Tr.
620, 621. The witness said also that the registered dietician
would have been familiar with this resident's general condition
since she has been admitted some years before. Tr. 621.

According to Petitioner, its failure to have Louise M. evaluated
by a registered dietician until the October resurvey did not

“There is no evidence on which residents had been referred to the
registered dietician from July to October, 1995. Nor is there evidence
showing that the registered dietician saw residents with more compromised
medical conditions than Louise M.'s from July to October 1995.
40

pose a potential for more than minimal harm to this resident. P.
Reply, 8.

2. Failure to Implement Plan of Care for Reducing Two
Residents' Inappropriate Behavior

HCFA's evidence and conclusions

HCFA introduced evidence showing that R_9 (Mabel H.) was
medicated with antidepressant and antipsychotic drugs. Tr. 248.
According to Petitioner's care plan, this resident was showing
"socially inappropriate" behavior consisting of tearfulness,
withdrawal from self-care and eating, and episodes of crying
out, "Help me, help me." HCFA Ex. 8 at 3 - 4; Tr. 514, 515. One
of goals set by Petitioner's care plan was to reduce the
frequency of these behaviors. Id.; see Tr. 466. As acknowledged
by Petitioner's director of operations, withdrawal from self-
care can lead to serious harm for a resident of a nursing home.
Tr. 667.

The surveyors found noncompliance with respect to Mabel H.
because Petitioner did not share its record of this resident's
episodes of socially inappropriate behavior with her
psychiatrist, whom she visited periodically in the company of
her family. According to the testimony introduced by HCFA,
Petitioner was tracking this resident's episodes of tearfulness
and crying out at its facility; this resident did not exhibit
tearfulness or crying out when she was in the company of her
family; this resident's psychiatrist did not witness these
episodes of tearfulness and crying out because this resident was
always accompanied by her family on her visits to the
psychiatrist. Therefore, since Petitioner did not send to the
psychiatrist its records of this resident's episodes of
tearfulness and crying out, the psychiatrist could not assist
Petitioner in implementing its plan of care; the surveying team
concluded that Petitioner was not delivering services (i.e.,
reducing these episodes of inappropriate behavior) in accordance
with the care plan for this resident. HCFA Br., 20, 21 (citing
HCFA Ex. 8 at 3 - 6).

“HCFA noted the testimony of Petitioner's director of operations, which
indicated that, in order to help this resident reach her highest practical
level of emotional well-being, her psychiatrist may wish to know that her
episodes of tearfulness were related to her being in a nursing home, and not
to the presence of her family members. HCFA Br., 21 (citing Tr. 667). HCFA
noted also this witness' testimony that a withdrawal from self-care may lead
to serious harm for an individual in a nursing home. Id.
41

For the other resident, R 4 (Connie P.), the surveyors found
that Petitioner's plan of care included an assessment that this
resident yelled and screamed on an average of eight times each
day. HCFA Ex. 8 at 5; Tr. 307 - 309. In its care plan for this
resident, Petitioner set as a goal the reduction her screaming
from eight to seven episodes each day. Id. Petitioner's care
plan for this resident specified these approaches or
interventions for achieving the reduction of her screaming
episodes: calling her by name, asking her what she wanted,
reassuring her that she was safe, reassuring her that her family
visited her, talking to her about her interests, touching her,
and offering her a glass of water. HCFA Ex. 23; Tr. 309, 310,
524 - 526. It was expected that one or more of these foregoing
interventions be tried during each episode to see which efforts
would work at a give moment. Tr. 459, 460, 532.

At different times during the resurvey, Judith Bradshaw observed
Connie P. screaming and yelling in her room without intervention
by Petitioner's staff. HCFA Ex. 8 at 5, 6; Tr. 297, 315, 316.
During Ms. Bradshaw's initial tour of the facility at 11:10 a.m.
on October 3, this resident was yelling and screaming in her
room but none of the staff accompanying Ms. Bradshaw on the tour
intervened. HCFA Ex. 8 at 5; Tr. 297, 306, 307. Then later, at 2
p.m. on October 3 and at 9:15 a.m. on October 4, Ms. Bradshaw
again saw this resident yelling and screaming without any
intervention by those members of Petitioner's staff who were in
this resident's room. HCFA Ex. 8 at 5, 6; Tr. 315. Ms. Bradshaw
never saw any staff members implement those approaches specified
in the care plan for reducing this resident's screaming and
yelling episodes. Id.

In HCFA's view, failure to implement the interventions specified
in Petitioner's care plan for Connie P. had the potential for
inhibiting her ability to reach her maximum psychosocial well-
being as assessed by Petitioner. HCFA Br., 23 (citing Tr. 316
317).

Petitioner's evidence and defenses

Petitioner acknowledges that when R 9 (Mabel H.) went with her
family members to see her psychiatrist outside of the nursing
facility, Petitioner sent along only the physician order sheet.
P. Br., 6. However, Petitioner defends its actions on the bases
that its care plan for this resident does not specify the
information which must be sent to a private physician, and that
it was following the accepted practice of providing to the
psychiatrist only the information which was "pertinent or
42

requested." P. Br., 7, 8. According to Petitioner, the same
psychiatrist had been caring for this resident for many years, *°
and, whenever an appointment was set up, the psychiatrist's
nurse would request certain information from Petitioner for the
visit. Id. (citing Tr. 466, 467). Petitioner points out also
that the surveyor never questioned the psychiatrist concerning
his need for the information at issue, and Petitioner would have
made available Petitioner's records and observations if the
psychiatrist had requested them. P. Br., 6, 7. Therefore,
Petitioner contends that the surveyors made improper assumptions
about the psychiatrist's need for Petitioner's records on this
resident's episodes of tearfulness and crying out. P. Br., 7.

With respect to R 4 (Connie P.), Petitioner agrees that the care
plan's goal was to reduce her average of eight yelling and
screaming episodes per day to seven per day, through the use of
various intervention methods listed in the plan. P. Br., 13.
Petitioner does not dispute that on three occasions, the
surveyor saw lack of intervention by staff while this resident
was screaming or yelling. Id. However, Petitioner points out
that this resident was suffering from Alzheimer's disease and
that the new care plan containing the goals and intervention
methods had just been completed on the first day of the October
resurvey.“* P. Br., 13 (citing HCFA Ex. 23; Tr. 309).

Additionally, Petitioner defends the lack of intervention at the
three times observed by the surveyor on the basis that its staff
was occupied with others: i.e., when the surveyor made her first
observation of nonintervention, staff was occupied with
providing explanations to the surveyors during their walk-
through tour; when the surveyor made her second observation of
nonintervention, staff was occupied with providing passive range
of motion exercises to this resident's roommate; and when the
surveyor made her third observation of non-intervention, staff
was also delivering other services to this resident's roommate.
P. Br., 13 (citing Tr. 315). Petitioner cites the testimony of
Ms. Dickhut, Petitioner's assistant director of nursing, to show
that intervention with this resident's screaming and yelling
episodes would not have been effective unless Petitioner's staff
were in close proximity to her. P. Br., 13 (citing Tr. 529).

“petitioner argues that the psychiatrist should be assumed to know this
resident well and that this resident has had chronic problems even before she
entered the nursing facility. P. Reply, 8, 9.

“There was no evidence introduced by Petitioner to show how soon new
goals and intervention methods should be implemented after their creation.
43

Based on this testimony, Petitioner contends that its staff
members could not have intervened during the three episodes
observed by the surveyor unless they ceased delivering services
to Connie P.'s roommates and violated good nursing practices. P.
Br., 13, 14 (citing Tr. 461, 628).%°

Similar to its refutations of other deficiencies cited by HCFA,
Petitioner again emphasizes what the surveyor did not see.
Petitioner argues, for example, "[w]le do not know what occurred
when the attentions to the roommate were completed. We do not
know what had occurred prior to the surveyor's arrival on the
scene." P. Br., 13. Petitioner contends that the surveyor made
invalid and incidental "snapshot" observations of Connie P.
while focusing on the care delivered by Petitioner to this
resident's roommate. P. Reply, 9. According to Petitioner, its
failure to abandon the care of this resident's roommate has led
to HCFA's erroneous conclusion that the intervention methods
specified in the care plan were never used on this resident. P.
Reply, 9.

3. Failure to Provide Ambulation in accordance with the
Plan of Care for One Resident

HCFA's evidence and conclusions

The surveyors found that the care plan for R16 (Lloyd H.), a
resident who could not walk independently due to the results of
a stroke, specified that he is to be walked to and from the
dining room and to and from the bathroom. HCFA Ex. 8 at 6.
Judith Bradshaw, one of the surveyors, testified that this
resident told her he was walked only in physical therapy and he
did not go to physical therapy each day. Tr. 298, 329, 363.
According to Ms. Bradshaw, this resident told her also that he
was taken to the dining room in his wheelchair--a fact which she
confirmed by personal observation one day, when she saw him
self-propelling his wheelchair from the dining room. Tr. 330,
331. HCFA inferred from the Petitioner's care plan for
ambulating this resident to and from the bathroom and dining
room each day that Petitioner had "implicitly determined that

SucPA, however, noted in response that the care plan contained no such
caveat on proximity and Ms. Dickhut acknowledged also that R 4 (Connie P.)
had no visual or auditory deficit, and that an aide caring for this
resident's roommate could have told R 4 (Connie P.) something loudly to the
effect of "I'll get you in a minute, Connie” in accordance with the written
care plan. HCFA Reply, 11 (citing Tr. 526, 534, 535).
44

Lloyd H. could not be expected to regain the ability to self-
ambulate through physical therapy sessions alone." HCFA Br., 47.

Also, according to Ms. Bradshaw, this resident told her that he
was not taken to the bathroom and that he had trouble getting
staff to respond to his call light. Tr. 298, 330. Ms. Bradshaw
testified that she confirmed this resident's information by
questioning a member of Petitioner's staff. A primary care giver
confirmed that Petitioner managed this resident's incontinence
with disposable briefs and pads. HCFA Ex. 8 at 6; Tr. 330, 362.

HCFA notes that even Petitioner's assistant director of nursing
acknowledged that this resident was alert. HCFA Br., 47 (citing
Tr. 473). According to HCFA's interpretation of the words heard
by Ms. Bradshaw, this resident had complained to the surveyor
that he was not being taken to the toilet, that he must await
delayed responses to his call light when he had soiled himself,
and that he was not being ambulated every day. HCFA Br., 47.
Therefore, for these reasons and in the absence of any
indication of noncompliance in the care plan, *® HCFA inferred
that this resident wanted to be taken to the bathroom and
ambulated every day. Id.

HCFA introduced evidence showing that the failure to ambulate
can lead to development of pressure sores, as well as weakness
in the legs, and a decline in a resident's activities of daily
living. Tr. 331 - 333. HCFA's evidence also shows that Lloyd H.
had developed a pressure sore on his buttocks. Tr. 331.

Accordingly, HCFA contends that by its failure to implement its
entire care plan for this resident, Petitioner had retarded his
ability to attain his highest practical physical well-being, as
well as placed him at risk for sustaining more than minimal harm
to his physical, emotional, and psychosocial well-being. HCFA
Br., 47, 48.

“HCFA noted that, even though Petitioner's assistant director of
nursing testified that this resident was noncompliant with Petitioner's
efforts to ambulate him and take him to the bathroom, the surveyor found no
care plan addressing this alleged noncompliance, and Petitioner has
introduced no such care plan into evidence. HCFA Br., 47.

As I discussed earlier, HCFA used this same resident, R16 (Lloyd H.), as an
example for finding that Petitioner was failing to apply hand rolls and
splints in accordance with his physician's written order. Petitioner
responded also with the explanation that this resident was noncompliant with
his doctor's orders with respect to handrolls and splints in that he was
having his wife remove them.
45

Petitioner's evidence and defenses

Petitioner acknowledges that it had assessed R16 (Lloyd H.) as
needing to be ambulated and toileted. P. Br., 11. It agrees with
HCFA that this resident would be "better off" if he were
ambulated to and from meals and the toilet. P. Br., 10.
Petitioner also does not dispute HCFA's finding that this
resident was not in fact ambulated and toileted in accordance
with the written care plan.

Instead, Petitioner contends that this resident refused to be
ambulated and toileted. P. Reply, 11. Petitioner argues that
this resident's words to the surveyor did not show that he was
being forced by Petitioner's staff to stay in his wheelchair or
being prevented from ambulating each day. See P. Reply, 10
(citing Tr. 298, 330). Petitioner points out also that this
resident never specifically informed the surveyor that he wanted
to be taken to the bathroom or ambulated. P. Reply, 11.

As in its response to the surveyor's observation that this
resident, Lloyd H., also did not have on the hand roll and
splint required by his physician's written order, Petitioner
contends that this resident had exercised his right to refuse
the toileting and ambulation services available to him. P.
Reply, 11. Petitioner contends that it had counseled him on the
harm his refusal could and did cause. Id. Petitioner cites as
support the testimony of its assistant director of nursing, Ms.
Dickhut, who stated that Petitioner was concerned with this
resident's noncompliance and had repeatedly given him
counselling without success. Id. at 10 (citing Tr. 474, 475).
Ms. Dickhut testified also that she felt Petitioner was doing as
well as it could with this resident in dealing with his
noncompliance. Id.

Petitioner implicitly acknowledges that its care plan contains
no documentation of this alleged noncompliance by Lloyd H. See
P. Br., 10. It argues that, "[a]lthough what Ms. Dickhut was
describing was certainly a plan of care, it was not a written,
formalized care plan that HCFA expected." Id. Therefore,
Petitioner argues also that, "at most, Brighton would be guilty
of paper noncompliance" with respect to this resident. Id.

Iv. EVALUATION OF CONFLICTING FACTS AND THEORIES
As noted in Section I.A. of this Decision, noncompliance means

that the facility has failed to satisfy the requirements of
participation to the extent that its deficiencies pose a
46

potential for causing more than minimal harm to a resident's
health or safety. See 42 C.F.R. § 488.301. I believe that the
concept of harm, and its varying degrees, cannot be evaluated in
isolation by use of some bright line test. The analysis requires
consideration of the contents and intent of the regulations
under which deficiencies have been alleged.

Here, the regulation Petitioner has allegedly failed to satisfy
imposed upon Petitioner the obligation to provide services "in
accordance with each resident's written plan of care." 42 C.F.R.
§ 483.20(d) (3) (ii). Services must be provided in accordance with
each resident's written plan of care because said plan should
have been developed in accordance with Petitioner's duty to
describe "the services that are to be furnished to attain or
maintain the resident's highest practical physical, mental, and
psychosocial well-being . . . ." 42 C.F.R. § 483.20(d) (1) (i).
Therefore, I agree with HCFA that the issue of harm to
residents' health in this case must be evaluated in the context
of whether Petitioner's deficiencies have the potential for
causing more than minimal harm to the residents' ability to
attain or maintain their highest practicable physical, mental,
and psychosocial well-being as provided in the individual care
plans Petitioner had prepared for them. See HCFA Br., 6 ("Issue
Presented.") *”

In this case, I conclude that the totality of the evidence,
including inferences arising reasonably from the evidence,
preponderates in favor of HCFA's determination that Petitioner
was out of compliance with the "Resident assessment" requirement
at the time of the October 1995 resurvey.

First, I find in favor of HCFA on the issue of whether
Petitioner had deficiencies under the "Resident assessment"
requirements of 42 C.F.R. § 483.20(d) (3) (ii). HCFA's
determination is supported by the numerous uncontroverted visual
observations of surveyors who, at random times, saw that
Petitioner was not delivering certain services to 8 of the 17
residents sampled during three days in October. The surveyors'
observations establish the existence of numerous deficiencies in
Petitioner's delivery of services to these residents in two
areas: Petitioner's failure to implement written physicians
orders and Petitioner's failure to implement other specific
requirements of its care plans for residents.

“‘HCFA's definition of the issue is consistent also with the SOM's
definition of “potential for more than minimal harm, but not immediate
jeopardy," quoted in HCFA's brief (HCFA Br., 4).
47

I find in favor of HCFA also on the issue of whether the
deficiencies were of the level which posed a potential for
causing more than minimal harm to residents.

According to HCFA, "[t]he evidence shows that each of the
deficiencies cited by the survey team in October posed the risk
of compromising more than minimally the ability of affected
residents to attain or maintain their highest practicable
physical, emotional, or psychosocial well-being." HCFA Br., 30.
I agree. HCFA's determination on the harm issue is supported by
the nurse surveyors! explanations of how each of Petitioner's
deficiencies had the potential for causing more than minimal
harm to the residents' health, especially with reference to the
goals and concerns set out in the relevant care plans. Their
approach and opinions were appropriate to HCFA's allegation that
Petitioner was out of compliance with 42 C.F.R.

§ 483.20 (d) (3) (ii).

In rejecting Petitioner's defenses that some of its residents
health were beyond the point of being potentially harmed by its
failure to fully implement its care plans for them, I use for
illustration the example of Petitioner's failure to refer R12
(Louise M.) to its registered dietician for evaluation of her
severe weight loss, as specified in the care plan. (Between June
and July 1995, this resident had lost more than five percent of
her total body weight and fell well below her "ideal body
weight" of 87 to 107 pounds.) For the harm issue under 42 C.F.R.
§ 483.20(d) (3) (ii), it is immaterial whether, as asserted by
Petitioner (see discussion in Section III.C.1., above), R 12
(Louise M.) was in the later stages of dementia*® and was
therefore experiencing weight loss due to her disease process.
Nor is it material that her weight loss might not have been
considered "catastrophic" in light of her history and overall
condition. This resident was still entitled to attain and
maintain her highest practicable level of physical, emotional,
or psychosocial well-being under the terms of her care plan,
notwithstanding her alleged dementia or other health problems.

“his same resident, R12 (Louise M), also had a doctor's order for the
application of hand rolls and splints. Petitioner has also used this
resident's allegedly terminal condition due to Alzheimer's disease and
dementia to contend that the absence of hand rolls and splints on her during
the surveyor's observation periods should not been cited even as a
deficiency. See Tr. 448, 449.
48

Petitioner's provision of other services,*® even if true, is not
enough to establish that its failure to provide one of the
services specified in the care plan did not have the potential
for causing more than minimal harm to the resident's ability to
attain or maintain her highest practicable level of well-being.
Where, as in R 12 (Louise M.)'s case, Petitioner has determined
that referral to a registered dietician for evaluation of her
severe weight loss is necessary to her achieving and maintaining
such a level of well-being, Petitioner has no legitimate basis
for withholding this service for several months until the
surveyors intervened. There is no evidence that the care plan
specified trying one approach at a time over several months.
Petitioner's failure to refer this resident to a registered
dietician at the same time it was allegedly implementing the
other approaches had the potential to more than minimally harm
her ability to attain her highest level of well-being as quickly
as possible under her care plan. As explained also by HCFA's
witnesses, an individual who falls below her ideal body weight
is likely to experience a loss of energy, as well as become more
susceptible to developing pressure ulcers and infections. Tr.
179 - 189.

On the issue of potential harm to residents, I note also my
earlier conclusion in Section II.E., above, that HCFA can prove
the existence of systemic "Resident assessment" problems if it
establishes the numerosity and relatedness of the deficiencies
it has alleged, such as all 11 sets of the alleged deficiencies
and their relationship under the "Resident assessment"
regulation. I agree with HCFA that the evidence of record shows
that Petitioner's practices consisted of assessing its
residents' needs because such assessments were required by
federal law and regulations; incorporating the assessments into
plans of care, also because doing so was required by federal law
and regulations; obtaining physician's orders and devising care
plans to meet identified needs, also because doing so was
required by federal law and regulations; and then proceeding to
disregard the physician's orders and care plans when Petitioner
was under an obligation to implement them. See HCFA Br., 31. I
agree also with HCFA's conclusion that the October resurvey
found evidence of a "systems breakdown." HCFA Reply, 3.

Since surveys are part of the enforcement scheme established to
protect the health and safety of all residents who are the

“For several residents, Petitioner has defended its failure to deliver
specified services on the basis that it took other actions also mentioned in
the care plans.
49

intended beneficiaries of the Medicare and Medicaid programs
(see Hillman, supra at 9), it is proper for HCFA to use specific
survey findings to draw broader conclusions concerning the
prevalence of certain practices and their likely effects on
residents who were not evaluated during the survey. Since the
intent of surveys is not to protect residents only when the
surveys are on going, surveyors may also use a facility's
performance in their presence to make reasonable projections
about its activities after the surveyors have left. Petitioner's
director of operations agreed that, in appropriate situations,
HCFA may consider whether a given type of deficient practice is
systemic in nature and likely to have a potential for causing
more than minimal harm to other residents at the facility. See
Tr. 665.

Under the foregoing principles, I reject Petitioner's argument
that some of the cited deficiencies, such as the failure to
serve prune juice to two residents, were "petty." P. Reply, 6.
Potential harm to the two identified residents was shown by the
previously noted evidence concerning the need to maintain
regularity of bowel movements for these residents as specified
in their care plans, as well as the greater effectiveness of
prune juice (as opposed to orange juice) for that purpose.
However, another valid conclusion from all the facts of record
is that Petitioner was engaged in a prevalent practice of
disregarding doctors' orders, as evidenced by Petitioner's
failure to follow the physician orders for prune juice as well
as the other several physician orders noted by the surveyors.
Petitioner's practice of disregarding doctors' orders can have
more serious and wide-spread consequences for the health of its
resident population than placing two individuals at risk for
having less regular bowel movements. Therefore, any weaknesses
which Petitioner may have discerned from HCFA's evidence of
potential harm to certain surveyed residents does not invalidate
the broader conclusions that Petitioner had systemic problems in
failing to satisfy the "Resident assessment" requirements and
those problems had the potential for causing more than minimal
harm to the health of residents (including those in the general
resident population).

The validity of the harm analysis set forth by HCFA rests also
on the implied conclusion that the types of deficiencies
observed by the surveyors did not occur only during the three
days in October when the surveyors were on Petitioner's
premises. As I have noted in the previous section of this
Decision, Petitioner has relied heavily on the fact that
surveyors saw deficiencies on only three days. The gist of
50

Petitioner's arguments appears to be that, even if it had
continuously made all of the omissions identified by HCFA for
three full days, there would still be insufficient proof that
three days of such omissions had the potential for causing more
than minimal harm to residents.

I reject Petitioner's premise that survey conclusions in this
case mean that deficiencies existed only during the three days
of the resurvey. As I noted earlier, the resurvey was conducted
in October to evaluate Petitioner's compliance under "Resident
assessment" (F 282) because Petitioner had been found out of
compliance with the same requirements as a result of the August
survey. Additionally, Petitioner has stipulated to the findings
and conclusions of the August survey. Therefore, the only
conclusion possible is that the same type of deficiencies found
in October were in existence prior to the resurvey period.

In the context of HCFA's evidence concerning potential harm to
residents, I find also that the evidence and purpose of the
surveys support the reasonableness of the inference that
Petitioner was likely to have continued its deficient "Resident
assessment" practices after the resurvey period, if the
surveyors and HCFA had not intervened. I have determined already
that surveyors may use their findings while on site fora
limited period of time to extrapolate a facility's likely
activities and resident outcomes at all other times when the
surveyors are no longer physically present to witness them.
Therefore, there exists no presumption that Petitioner was in
compliance whenever it was acting outside of the surveyors'
presence.

Petitioner has not controverted HCFA's evidence and conclusions
on the potential harm issue by proving affirmatively that the
deficiencies observed by the surveyors were atypical of its
usual practices. There is no credible evidence establishing, for
example, that Petitioner was in fact fully implementing the care
plans of the sampled residents when the surveyors were not
making their observations. Nor is there evidence showing, for
example, that a significant number of Petitioner's residents
received all the services specified in their care plans.

What Petitioner has done, instead, is place heavy emphasis on
speculation and self-serving, uncorroborated testimony
concerning events which allegedly took place outside of the
surveyors' presence. As noted above, Petitioner contends, for
example: that no hand rolls and splints were seen on four
residents because delays in applying these devices were caused
51

by the absence of the "rehab aide," who normally performed these
tasks, and those hand devices were applied for the six to eight
hours specified by the physicians' orders during periods not
observed by the surveyor; that unbeknownst to the surveyors and
undocumented by Petitioner, R16 (Lloyd H.) was having a
relative remove his hand splint and consistently refusing to be
ambulated in accordance with his care plan; that the prune juice
ordered by physicians had been served to R 1 (Ruth F.) and R11
(Anna C.) on every morning except the one morning observed by
the surveyor; that Petitioner was repositioning R_ 6 (Loretta V.)
every two hours when the surveyors were not watching, but she
then always flipped herself onto her left side also during the
times when the surveyors were not watching.

The numerosity and similarity of these contentions by Petitioner
make them appear unlikely on their face. The truth of these
contentions cannot be verified through corroborative evidence,
since Petitioner did not document matters such as R 16 (Lloyd
H.'s) alleged refusal to be ambulated in accordance with his
care plan and Petitioner never asked the surveyors to verify
activities such as the alleged application of hand rolls and
splints on R17 (Alvina L.) or others before and after they were
observed without those devices by the surveyors. Additionally,
as noted above, the coordinator of the resurvey team had
explained to Petitioner's staff the purpose of the resurvey when
the team entered the premise. These circumstances do not make
credible Petitioner's evidence that its staff was following
physicians' written orders and otherwise implementing care plans
for 8 of the 17 sample residents only when the surveyors were
not looking.

I note in addition that, in several instances, Petitioner is
attempting to excuse its staff members' having given their own
convenience greater importance than the specific contents of the
residents' care plans. For example, the evidence shows that the
doctors' order to serve prune juice to two of the surveyed
residents was not followed by Petitioner during the resurvey
only because, on one morning, prune juice was not in the
refrigerator of the unit housing those two residents, and some
staff member from the unit would have needed to request or
secure the prune juice from the dietary department.
Additionally, Petitioner is contending that R 6 (Loretta V.) had
repeatedly flipped herself onto her left side only because
Petitioner's staff did not take the steps necessary to maintain
her on her right side for the two hour intervals specified by
her physician. Similarly, Petitioner is contending that its
staff could not have intervened verbally in accordance with R_4
52

(Connie P.'s) care plan for reducing her outbursts because its
staff had failed to do so. (The evidence establishes that staff
had the opportunity and ability to provide the verbal
intervention cues listed in her care plan even while the staff
was providing other services to her roommate.) Petitioner is
contending that the registered dietician would not have given
the significant weight loss experienced by R 12 (Louise M.) high
priority only because Petitioner's staff had never referred this
resident to the dietician.

The foregoing and like evidence of record does not suggest that,
absent intervention by the surveyors and HCFA, Petitioner's
staff would have likely refrained from continuing those and
similar deficient practices when the surveyors were not
watching. Instead, the evidence and contentions set forth by
Petitioner support the inference that, even though observations
were made for only three days, Petitioner's residents were at
risk for suffering more than minimal harm because Petitioner's
deficient practices would have likely continued had the
surveyors not issued their citations and HCFA not imposed an
enforcement remedy.

I reject also Petitioner's argument that it has been cited for
omissions even where the relevant care plan did not require
action. It contends, for example, that the care plan for R 9
(Mabel H.) did not specify that Petitioner should send its
observations of her tearfulness and outbursts to her treating
psychiatrist in order to implement the goal of reducing the
incidents of her inappropriate behavior. I do not find such
argument persuasive for supporting Petitioner's contention that
it acted in compliance with the "Resident assessment"
requirements.

First, the defense implies that Petitioner made a choice to do
only what was specified in the care plan. This implication is
contradicted by Petitioner's failures in other instances to
deliver the services specifically identified in the care plans.
For example, Petitioner failed to serve prune juice to R_1 (Ruth
F.) and R11 (Anna C.) even though their care plan contained a
physician's order for the juice; Petitioner failed to use any of
the intervention methods specifically listed in the care plan
for reducing the number of R 4 (Connie P.'s) outbursts; and
Petitioner failed to refer R12 (Louise M.) to its registered
dietician for evaluation of her severe weight loss, even though
the care plan specified the referral. In fact, the evidence
shows that Petitioner is arbitrary and selective about which

53

provisions of the residents' care plans it will implement. The
regulation leaves no such discretion to Petitioner.

Additionally, the regulation specifies that Petitioner must
provide services "in accordance with each resident's written
plan of care." 42 C.F.R. § 483.20(d) (3) (ii) (emphasis added).
The regulation did not limit Petitioner's obligation to provide
only those services specifically identified in the plan of care.
I find it reasonable to interpret the "in accordance with"
phrase of the regulation in the context of the residents' right
to receive services under their plan of care that are supposed
to help them attain or maintain their highest practicable
physical, mental, and psychosocial well-being (see 42 C.F.R. §
483.20(d) (1) (i)). Therefore, I conclude that under 42 C.F.R. §
483.20(d) (3) (ii), Petitioner must deliver services that are
specified in the plans of care, as well as the services that are
appropriate to accomplishing the goals specified in the plans.
For these reasons, I agree with HCFA that Petitioner should have
sent to the psychiatrist treating R_ 9 (Mabel H.) its recorded
observations of her tearfulness and outbursts even though the
care plan listed the reduction of such episodes as a goal
without having specified the forwarding of such records to her
psychiatrist.

In the absence of any evidence establishing that the
psychiatrist knew of the existence or contents of these records,
I do not find persuasive Petitioner's arguments that the
psychiatrist did not want to see such recorded observations, did
not request them, and would not have found them useful for
helping the resident reduce her episodes of inappropriate
behavior. Petitioner's speculations about what the psychiatrist
would have wanted to see or find helpful is akin to its
contention that, even if it had referred R 12 (Louise M.) to the
registered dietician for evaluation in accordance with her care
plan, the registered dietician might not have given her high
priority or attributed great significance to her weight loss.
Such speculations are self-serving and do not invalidate HCFA's
conclusion that Petitioner was out of compliance with the
requirements of the "Resident assessment" regulation.

For the foregoing reasons, I issue the following as formal
FFCL, after having evaluated the parties' evidence and
arguments on the issue of whether Petitioner was out of
compliance with 42 C.F.R. § 483.20(d) (3) (ii):
54

13. HCFA has proven that the existence of the
following deficiencies under the "Resident assessment"
requirements:

A. Petitioner's failure to follow written
physician's orders to--
(i) apply hand splints and hand rolls on
four residents (R17, R12, R 4, and R 16);
(ii) provide prune juice to two residents (R
1 and R 11);
(iii) reposition one bedridden resident (R
6);

B. Petitioner's failure to implement the written

care plans it had developed for residents to--
(i) treat the significant weight loss of one
resident (R 12) by referring her to a
registered dietician;
(ii) reduce the episodes of inappropriate
behavior for two residents (R 4 and R 9);
(iii) ambulate one resident (R 16) daily.

14. The issue of harm to residents' health in this
case must be evaluated on the basis of whether
Petitioner's deficiencies have the potential for
causing more than minimal harm to the residents'
ability to attain or maintain their highest
practicable physical, mental, and psychosocial well-
being as provided in the individual care plans
Petitioner had prepared for them.

15. A preponderance of the evidence supports HCFA's
determination that the deficiencies found during the
October 1995 resurvey had the potential for causing
more than minimal harm to the health (as set forth in
FFCL 14) of the above eight residents and other
residents under Petitioner's care.

16. Petitioner has not proven that it was in
compliance with the "Resident assessment" requirements
of 42 C.F.R. § 483.20(d) (3) (ii) as of the October
resurvey.

17. The preponderance of the evidence establishes
that, as of the October 1995 resurvey, Petitioner
continued to be out of compliance with the "Resident
Assessment" requirements of 42 C.F.R.
55

§ 483.20(d) (3) (44).

18. In accordance with the parties' stipulations (ALJ
Ex. 1), Petitioner's noncompliance at the time of the
October 1995 resurvey provided HCFA with a basis for
imposing the DPNA remedy against Petitioner for the
period from November 20, 1995 through January 31,
1996.

V. CONCLUSION

The DPNA remedy imposed by HCFA against Petitioner is hereby
affirmed for the reasons and period specified by HCFA.

/s/
Mimi Hwang Leahy
Administrative Law Judge