Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD

Civil Remedies Division

Ussery Roan Texas State Veterans Home
(CCN: 67-6157),

Petitioner
Vv.
Centers for Medicare and Medicaid Services.
Docket No. C-09-576
Decision No. CR2251

Date: September 28, 2010

DECISION

In this appeal Petitioner, Ussery Roan Texas State Veterans Home, contests a
determination by the Centers for Medicare and Medicaid Services (CMS) that it was not
in substantial compliance with the requirements for participation in the Medicare and
Medicaid programs. Below, I sustain CMS’s determination that Petitioner was not in
substantial compliance with participation requirements. I sustain also the remedies
imposed by CMS: a civil money penalty (CMP) of $6,050 per day for the period of
immediate jeopardy (April 24 through 27, 2009) and a CMP of $600 per day for the
period of non-immediate jeopardy (April 28 through May 28, 2009).

I. Background

Petitioner, located in Amarillo, Texas, is authorized to participate in the Medicare
program as a skilled nursing facility and in the Texas Medicaid program as a nursing
facility. Petitioner was surveyed on April 27, 2009, by the Texas Department of Aging
and Disability Services (state agency). Surveyors found Petitioner out of substantial
compliance with the following participation requirements: 42 C.F.R. §§ 483.10(f)(2) (F
Tag 166, at a scope and severity (ss) level E'); 483.13(c) (F Tags 224/226, ss K);
483.13(c) (F Tag 225, ss K); 483.15(a) (F Tag 241, ss E); 483.20(k)(1) (F Tag 279, ss E);
483.25(h) (F Tag 323, ss K); 483.25(1) (F Tag 329, ss E); 483.25(m)(1) (F Tag 332, ss E);
483.35(i)(2) (F Tag 371, ss F); 483.60(b), (d), (e) (F Tag 431, ss D); 483.65(b)(3) (F Tag
444, ss D); 483.75 (F Tag 490, ss K); 483.75(f) (F Tag 498, ss D); and 483.75(0) (F Tag
520, ss K)? By letter dated June 16, 2009, CMS notified Petitioner of the remedies
imposed: termination of Petitioner’s provider agreement if Petitioner did not achieve
substantial compliance by September 5, 2009; a per-day CMP of $6,050 per day for the
period of immediate jeopardy from April 24 through 27, 2009 and $600 per day
beginning April 28, 2009; and a denial of payment for new admissions (DPNA) effective
June 3, 2008. CMS Exhibit (Ex.) 3, at 1-3. Petitioner also lost its authority to conduct a
nurse aide training and competency evaluation program (NATCEP).° CMS Ex. 3, at 2.
By letter dated August 21, 2009, CMS notified Petitioner that it had been found in
substantial compliance as of May 29, 2009, that the termination and DPNA remedies had
been rescinded, and that the CMP owed for the period of noncompliance totaled $42,800
based on the $6,050 per day CMP for the period of immediate jeopardy and the $600 per
day CMP for the period of non-immediate jeopardy noncompliance from April 28
through May 28, 2009. CMS Ex. 3, at 4-5.

' An F Tag designation refers to the part of the State Operations Manual (SOM) that
pertains to the specific regulatory provision allegedly violated, as set out in the statement
of deficiencies (SOD). CMS and the state agency use scope and severity levels (ss) when
selecting remedies. The ss level is designated by an alpha character, A through L, which
CMS or the state agency selects from the ss matrix published in the SOM, section 7400E.
See 42 C.F.R. § 488.408. An ss level of A, B, or C indicates a deficiency that presents no
actual harm but has the potential for minimal harm. Facilities with deficiencies of a level
no greater than C remain in substantial compliance. An ss level of D, E, or F indicates a
deficiency that presents no actual harm but has the potential for more than minimal harm
that does not amount to immediate jeopardy. An ss level of G, H, or I indicates a
deficiency that involves actual harm that does not amount to immediate jeopardy. SS
levels J, K, and L are deficiencies that constitute immediate jeopardy to resident health or
safety. This matrix, which is based on 42 C.F.R. § 488.408, specifies which remedies are
required and optional at each level based upon the frequency of the deficiency, i.e.,
whether a deficiency is isolated, part of a pattern, or widespread. 42 C.F.R. § 488.301.

> Petitioner was also found out of substantial compliance with a life safety code
requirement, 42 C.F.R. § 483.70(a) (K Tag 0066, ss D). I do not consider it here.

* Petitioner has challenged imposition of the NATCEP. However, the NATCEP
imposed is mandatory both because the CMP imposed and sustained is more than $5,000
and because of a finding of substandard quality of care. Act, sections 1819(f)(2)(B),
1919(f)(2)(B).
Petitioner requested a hearing by letter dated July 6, 2009. I held a hearing in Dallas,
Texas, from February 22 through 25, 2010. A 924-page transcript of the hearing (Tr.)
was prepared. Testifying at the hearing were: Beverly Briggs, R.N., a surveyor for the
state agency (Surveyor Briggs); Jackqualene Kay Smith, R.N., a surveyor for the state
agency (Surveyor Smith); Leland G. Persefield, LSW, a department manager and
surveyor for the state agency (Surveyor Persefield); Captain Daniel J. McElroy, R.N., a
nurse consultant for CMS (Captain McElroy); Diana S. Balzer, R.N., currently
Petitioner’s Director of Nursing (DON Balzer); Rebecca Orta, R.N., currently Critical
Coordinator for MDS for Touchstone Communities, the company that manages
Petitioner’s facility (RN Orta); and Cheryl Lynn Morgan, R.N., a consultant hired by
Petitioner (RN Morgan). I admitted CMS Exs. 1-57* and Petitioner’s Exhibits (P. Exs.)
1-39. Tr. at 15-16. Both parties submitted briefs (CMS and P. Br.) and response briefs
(CMS and P. Response).

IL. Issues
The issues before me in this appeal are:

1. Whether Petitioner was in substantial compliance with participation
requirements in the Medicare and Medicaid programs; and

2. Whether the remedies imposed as a result of this alleged substantial
noncompliance are reasonable.

III. Controlling Statutes and Regulations

Petitioner’s participation in Medicare and Medicaid is governed by sections 1819 and
1919 of the Social Security Act (Act) and the regulations at 42 C.F.R. Part 483. Sections
1819 and 1919 of the Act invest the Secretary with authority to impose remedies,
including CMPs, against long-term care facilities for failure to comply substantially with
participation requirements.

The regulations define the term “substantial compliance” to mean:
[A] level of compliance with the requirements of participation such that any

identified deficiencies pose no greater risk to resident health or safety than the
potential for causing minimal harm.

+ With its response brief CMS attached a 20-page document regarding prescription
information for the drug Spiriva. The document is marked as CMS Ex. 58. While I do
not accept this document in evidence, it remains in the record as an attachment to the
response brief.
42 C.F.R. § 488.301.

The Secretary has delegated to CMS and the states the authority to impose remedies
against long-term care facilities not complying substantially with federal participation
requirements. The applicable regulations at 42 C.F.R. Part 488 provide that facilities
participating in Medicare and Medicaid may be surveyed on behalf of CMS by state
survey agencies in order to ascertain whether the facilities are complying with
participation requirements. 42 C.F.R. §§ 488.10-488.28. The regulations contain special
survey conditions for long-term care facilities. 42 C.F.R. § 488.300-488.335. Under Part
488, a state or CMS may impose a CMP against a long-term care facility if a state survey
agency ascertains that the facility is not complying substantially with participation
requirements. 42 C.F.R. §§ 488.406, 488.408, and 488.430. The CMP may begin to
accrue as early as the date that the facility was first substantially out of compliance, and
may continue to accrue until the date the facility achieves substantial compliance, or until
CMS terminates the facility’s provider agreement. 42 C.F.R. § 488.440.

The regulations specify that if a CMP is imposed against a facility on a per-day basis it
must fall into one of two broad ranges of penalties. 42 C.F.R. §§ 488.408, 488.438. The
upper range of CMP, from $3,050 per day to $10,000 per day, is reserved for deficiencies
that constitute immediate jeopardy to a facility’s residents, and, in some circumstances,
for repeated deficiencies. 42 C.F.R. § 488.438(a)(1)(i), (d)(2). The lower range of CMP,
from $50 per day to $3,000 per day, is reserved for deficiencies that do not constitute
immediate jeopardy, but either cause actual harm to residents, or cause no actual harm,
but have the potential for causing more than minimal harm. 42 C.F.R. §
488.438(a)(1)(ii).

“Immediate jeopardy” is defined as:

[A] situation in which the provider’s noncompliance with one or more
requirements of participation has caused, or is likely to cause, serious injury, harm,
impairment, or death to a resident.

42 CFR. § 488.301.

A facility may challenge the scope and severity cited by CMS only if a successful
challenge would affect the range of CMP amounts imposed by CMS or would affect the
facility’s nurse aide training program. 42 C.F.R. §§ 498.3(b)(14) and (d)(10)(i). CMS’s
determination as to the scope and severity of noncompliance “must be upheld unless it is
clearly erroneous.” 42 C.F.R. § 498.60(c)(2). This includes CMS’s finding of immediate
jeopardy. Woodstock Care Center, DAB No. 1726, at 9 (2000), aff’d, Woodstock Care
Center v. U.S. Dept. of Health and Human Services, 363. F.3d 583 (6th Cir. 2003).

The Departmental Appeals Board (Board) has long held that the net effect of these
regulations is that a provider has no right to challenge the scope and severity assigned to
a noncompliance finding except in the situation where that finding was the basis for an
immediate jeopardy determination. See, e.g., Ridge Terrace, DAB No. 1834 (2002);
Koester Pavilion, DAB No. 1750 (2000). Since the scope and severity of Petitioner’s
alleged noncompliance is cited and sanctioned at a level of immediate jeopardy between
April 24 through 27, 2009, the scope and severity of that alleged noncompliance is
properly before me.

When a penalty is imposed and appealed, CMS has the burden of coming forward with
evidence related to disputed findings that is sufficient, together with undisputed findings
and relevant legal authority, to establish a prima facie case of noncompliance with a
regulatory requirement. If CMS makes this prima facie showing, then a petitioner must
carry its ultimate burden of persuasion by showing, by a preponderance of the evidence
on the record as a whole, that it was in substantial compliance during the relevant period.
CMS makes its prima facie showing if the evidence it relies on is sufficient to support a
decision in its favor absent an effective rebuttal. A petitioner can overcome this by
rebutting the evidence upon which that case rests or by proving facts that affirmatively
show substantial compliance. An effective rebuttal of CMS’s prima facie case would
mean that the petitioner had shown that the facts on which its case depended (for which it
had the burden of proof) were supported by a preponderance of the evidence. Evergreene
Nursing Care Center, DAB No. 2069, at 7 (2007); see P. Response at 1.

IV. Discussion

An administrative law judge has the discretion, as an exercise of judicial economy, to
determine whether to address findings that are not material to the outcome of a case.
Grace Healthcare of Benton, DAB No. 2189, at 5 (2008); Western Care Management
Corp. D/B/A Rehab Specialties, DAB No. 1921, at 19 (2004). The immediate jeopardy
level deficiencies in this case all involve the same set of facts. CMS alleges those facts
violate several participation requirements, set out in the Statement of Deficiencies (SOD)
dated April 27, 2009, at F Tags 224, 225, 226, 323, 490, and 520. As an exercise of
judicial economy, I address only the deficiency at Tag F 323, 42 C.F.R. § 483.25(h).
That one deficiency is sufficient for me to decide this case. I would not find differently
with regard to the CMP if I addressed the other immediate jeopardy level deficiencies
because the CMP imposed is reasonable based on the violation of 42 C.F.R. § 483.25(h)
alone. I do not address the non-immediate jeopardy level deficiencies, as I find Petitioner
out of compliance with 42 C.F.R. § 483.25(h) for the relevant period.

I make numbered findings of fact and conclusions of law (Findings) to support my
decision. I set them forth below as separate headings in bold and italic type and discuss
each in detail.
1. Petitioner failed to comply substantially with the participation requirement at
42 CF.R. § 483.25(h).

42 C.F.R. § 483.25 regards a facility’s quality of care. It requires that:

Each resident must receive and the facility must provide the necessary care and
services to attain or maintain the highest practicable physical, mental, and
psychosocial well-being, in accordance with the comprehensive assessment and
plan of care.

The subsection at 42 C.F.R. § 483.25(h) references accidents and requires that:
(h) Accidents. The facility must ensure that —

(1) The resident environment remains as free of accident hazards as is
possible; and

(2) Each resident receives adequate supervision and assistance devices to
prevent accidents.

In the case of Meridian Nursing Center, DAB No. 2265, at 3 (2009), the Board stated,

Section 483.25(h)(1) requires that a facility address foreseeable risks of harm from
accidents “by identifying and removing hazards, where possible, or where the
hazard is unavoidable because of other resident needs, managing the hazard by
reducing the risk of accident to the extent possible.” Maine Veterans’ Home —
Scarborough, DAB No. 1975, at 10 (2005). Section 483.25(h)(2) requires that a
facility take “all reasonable steps to ensure that a resident receives supervision and
assistance devices that meet his or her assessed needs and mitigate foreseeable
risks of harm from accidents.” Briarwood Nursing Center, DAB No. 2115, at 11
(2007), citing Woodstock Care Ctr. v. Thompson, DAB No. 1726 (2000) (facility
must take “all reasonable precautions against residents’ accidents”), aff'd,
Woodstock Care Ctr. v. Thompson, 363 F.3" 583 (6" Cir. 2003).

The Board also relied on the State Operations Manual (SOM)? in defining an accident as,

* «Although the SOM does not have the force and effect of law, the provisions of the Act
and regulations interpreted clearly do have such force and effect. Northwest Tissue Ctr.
v. Shalala, | F.3d 522 (7th Cir. 1993); Ind. Dep’t of Pub Welfare v. Sullivan, 934 F.2d
853 (7th Cir. 1991). Thus, while the Secretary may not seek to enforce the provisions of
the SOM, she may seek to enforce the provisions of the Act or regulations as the SOM
interprets.” Woodbine Healthcare and Rehabilitation Center, DAB CR2140 (2010).
“an unexpected, unintended event that can cause a resident bodily injury,”
excluding “adverse outcomes associated as a direct consequence of treatment or
care (e.g., drug side effects or reactions.) SOM Appendix PP, Guidance to
Surveyors, Part 2, SOP 483.25 Quality of Care (Rev. 274, June 1995) (SOM
Guidance).

Woodstock Care Center, DAB No. 1726, at 4 (2000).°

It is undisputed that 120 armed-service veterans and their spouses reside at Petitioner’s
facility. It is also undisputed that coffee is popular at meals and sipped all day long in the
dining room, coffee bars and kitchenettes. It is also undisputed that Petitioner’s residents
are heavy coffee drinkers. P. Br. at 4. While the case specifically involves four residents
who sustained hot coffee burns, the issue is broader than whether four individuals were
burned. The issue is whether Petitioner was properly supervising the residents and
providing an environment as free of accident hazards as possible.

The relevant SOD from April 27, 2009, asserts that Petitioner contravened this
participation requirement as follows:

Based on observations, interviews and record reviews, it was determined the

facility —

1) Failed to supervise 4 of 4 residents, who had sustained hot coffee burns, and

2) Failed to maintain an accident free environment for the 4 of 4 residents as well
as all 89 residents residing in the general population (Halls 400, 500 and 800)
who consume hot liquids.

On 9/16/08, Resident #26 received a 2™ degree burn on his thigh.

On 1/14/09, Resident #27 received a 1“ to 2"! degree burn on his abdomen... .
On 3/4/09, Resident #28 sustained a 2" to 3“ degree burn on her thigh due to hot
coffee.

On 4/5/09, Resident #14 sustained a 2" degree burn on his abdomen due to hot
coffee.

CMS Ex. 5, at 71.

Below is a brief description of the condition of each of the four residents at the time their
burns occurred, and of the accidents, based on contemporaneous facility records.

Resident 26: Facility records compiled at the relevant times reflect that Resident 26, a
62-year-old man, was admitted to Petitioner’s facility on June 20, 2007, and readmitted

° Petitioner submitted a copy of the SOM (Rev. 36, 08-01-08) as P. Ex. 39. When I refer
to the SOM in this decision I will refer to P. Ex. 39.
on October 18, 2008. CMS Ex. 18, at 1, 14.7 Facility records compiled at the relevant
time show that Resident 26 had diagnoses including deep vein thrombosis, hypertension,
arthritis, dementia other than Alzheimer’s disease, paraplegia, Parkinson’s disease,
depression, emphysema/COPD, glaucoma, allergies, peripheral neuropathy, constipation,
hyperlipidemia, and venous insufficiency. /d. at 1, 8. In a minimum data set (MDS) for a
Medicare five day assessment, dated September 3, 2010, Petitioner assessed Resident 26,
among other things, as independent in his daily decision making, without socially
inappropriate or disruptive behavioral symptoms, using a wheelchair as his primary
means of locomotion, having limited range of motion in his hands and feet, and requiring
setup help when eating. Jd. at 6, 7, 8.

On September 16, 2008, nurse’s notes reflect that:

Resident on call light and c/o of a blister/burn to his [left] thigh. Assessed resident
and noted a fluid filled area to his [left] upper thigh 0.5 x 0.5 cm and an open area
1.5x 1cem. Asked resident what happened and he stated “I spilled coffee on
myself this morning.” Area cleaned and Dr. called. N.O. received to apply
Silvadene until healed. Called and notified ... wife and RN supervisor. Area
cleaned and Silvadene applied. Denies any pain or discomfort at this time.

Id. at 45-46.

An accident/incident and investigation report, completed on April 16, 2008 at 19:30,
noted that Resident 26 was “eating breakfast this am and spilt coffee on his [left] leg.”
Resident 26 received a “[b]urn to [left] thigh.” The description and location of the
incident stated “Res was eating breakfast and spilt coffee on his [L] leg while in bed.
Burn noted to [left] thigh.” The action taken was “Dr. called and area cleaned and
Silvadene applied [with] a [dressing]. The disposition was “[l]inen changed and area to
[left] thigh cleaned.” The corrective action was “[m]opped up coffee off floor.” The
final resolution after 24 hours noted “[b]urn to [left] thigh is 6 cm long and 21/2 cm wide.
Area cleaned [with] wound cleaner, covered . . . secured [with] .. . tape. Does have
redness that measured about an inch around the blister and extends down lateral thigh.”
P. Ex. 10.

On September 17, 2008, at 9:00 a.m., nurse’s notes reflect that:

Resident does have a large Blister to [left] thigh. It measures 6 cm long and is
21/2 cm wide. (An inch wide.) I cleaned the area [with] wound cleaner and

7 Where the parties have submitted duplicate copies of exhibits or pages contained in
exhibits, I generally refer to CMS’s exhibit. I refer to Petitioner’s exhibit when I am
citing Petitioner’s briefing and Petitioner has cited its own exhibit in that briefing.
covered... and secured [with] .. . tape. He has redness around the blister that
extends . . . down [left] thigh (outer). No c/o pain/discomfort noted.

CMS Ex. 18, at 47-48. A nurse’s note from September 26, 2008 noted that the “[b]urn to
[left] thigh looks much better. Is healing, and is open to air at this time.” Jd. at 56.

Resident 27: Resident 27 was an 80-year-old man admitted to Petitioner’s facility on
December 4, 2008. CMS Ex. 19, at 7-8. His admission information notes that he had
iagnoses including dementia with behaviors, pelvic fracture, arrhythmia, depression,
GERD and hypercholesterothemia, used a wheelchair and an air mattress, and was an
elopement risk. Jd. at 33. His admission MDS reflects that he had diagnoses of cardiac
lysrhythmias, hypertension, dementia other than Alzheimer’s disease, anxiety disorder,
lepression, hyperlipidemia, dementia with “[behavior] dist,” and psychosis. /d. at 11.
Resident 27 also had long and short-term memory problems, moderately impaired
lecision making skills, and used a wheelchair as his primary means of locomotion. He
needed setup help and supervision with eating. He could make himself understood, had
clear speech, and was able to understand others. Jd. at 8-13. A RAP narrative report
regarding assessments done on December 17, 2008, reflects that Resident 27 had
lementia and was only oriented to self, needed assistance with activities of daily living
(ADLs) in order to complete tasks, and took psychotropic medications which increased
his risk of unwanted side effects. His poor balance also increased these risks. Id. at 18-
9.

An accident/incident and investigation report dated January 14, 2009 reflects that
Resident 27 “lost handle on coffee cup.” He received a “2™ degree burn (blister).”. The
description of the incident is that “Resident had coffee cup in hand with hot coffee in it
when dropped it spilled over abdominal area.” The facility “applied cold compress on to
abdomen” and assessed the injury with “redness and blistering.” His physician ordered
silver sulfadiazine cream with a dressing to treat the burn. Jd. at 5. As a corrective action
the facility determined that “Resident is to be given no hot beverages at any time.” A
follow up observation noted “continued redness & blisters (multiple) to right side of
abdomen, sulfa diazine applied and will continue to monitor. Jd. at 30. A physician
progress note dated January 15, 2009 notes that Resident 27 was “[b]urned [with] hot
coffee yet otherwise doing ok.” /d. at 1. A care plan update dated February 2, 2009
noted that Resident 27 was at risk for burns. Approaches to deal with that risk included
discussion of the treatment and condition of the wound and that “hot liquid will be cooled
with ice, cold H20, etc... . before serving. Nurses were also to “remind [Resident 27] of
safety when requesting hot liquids.” P. Ex. 26. A care plan conference summary dated
March 11, 2009, did not reflect any discussion of Resident 27’s burn. CMS Ex. 19, at 34.

Resident 28: Resident 28 was an 83-year-old female admitted to Petitioner’s facility on
March 18, 2008. Her primary diagnosis was dementia, but other diagnoses included
hypertension, peripheral neuropathy, osteoporosis, hypothyroidism, urinary incontinence,
10

depression, insomnia, CVA, depressive disorder, and conjunctivitis. CMS Ex. 20, at 7,
19. Resident 27’s annual MDS notes that Resident 28 had memory problems, moderately
impaired cognitive skills, her mental function varied over the day, she had difficulty
finding words or finishing thoughts, a wheelchair was her primary means of locomotion,
and she had limited range of motion in one arm. Jd. at 23-33.

Nurse’s notes from March 4, 2009 at 3:00 p.m., reflect that:

Res stated she spilled coffee in her lap yesterday or day before, but didn’t think it
had burned her but that her leg was now hurting. Upon examination, a 4.0 x 3.0
red area [with] a 2.0 x 1.0 open blister to the middle was found on the left leg,
upper thigh. Also a 2.0 x 1.0 blister, intact, to the right upper thigh. Dr. & family
notified. Burn to be treated per protocol.

CMS Ex. 20, at 21.

An accident/incident and investigation report dated March 4, 2009 reflects that Resident
28 “spilled hot coffee on [her] lap.” Jd. at 36. The injury was assessed as a “burn [with]
blister 4.0 x 3.0 c [with] 2.0 open blist.” The spill occurred in the dining room. Nurses
assessed and cleaned the wound. Her physician ordered “Clean [with] wound cleaner,
Silvidine, cover non-adhesive pad.” Resident 27 was left in her wheelchair and
*counseled res. to put ice cubes in coffee to cool it down before drinking.” /d. at 7, 36,

A care plan conference summary on March 18, 2009 did not reference the burn. /d. at 20.

On March 6, 2009, nurse’s notes report “wound looks good.” Jd. A care plan conference
on March 18, 2009 did not reflect any discussion of Resident 28’s burn. /d at 20.

Resident 28’s March 24, 2009 MDS stated she had sustained second or third degree burns
within the past seven days. Jd. at 27.

Resident 14: Resident 14 was an 84-year-old man admitted to Petitioner’s facility on
October 9, 2008. CMS Ex. 17, at 5, 6. Resident 14’s quarterly MDS, dated January 20,
2009 recorded that he had diagnoses, among other things, of hypothyroidism,
hypertension, peripheral vascular disease, dementia other than Alzheimer’s disease,
depression, asthma, ingrowing nail, chronic kidney disease, renal artery atherosclerosis,
and venous insufficiency. Jd. at 19. Resident 14 was assessed as having short and long
term memory problems, including the inability to recall the current season, location of his
room, staff names or faces and the basic fact of his being in a nursing home. Jd. at 17.
He had moderately impaired cognitive skills. Jd. His mental function varied over the
course of the day. /d. He sometimes understood others, he usually made himself
understood although he had difficulty finding words or finishing thoughts, he had unclear
speech, speaking with slurred or mumbled words and he sometimes understood others,
responding adequately to simple, direct communication. /d. His primary mode of
11

locomotion was a wheelchair and he could wheel himself. /d. at 19. He needed
supervision when eating and setup help. Jd. at 18.

Nurse’s notes reflect that on:

4/5/09 2300 Burn . . . to abdomen above nipple measuring 6 x 2 inches noted
during brief change, resident stated that he spilled coffee on himself today during
breakfast . .. wound bed is reddened [with] skin flap folded along the edges,
wound secured [with] dressing to prevent resident from rubbing on area.

2320 Placed call to Dr. . . ., awaiting call back.

4/6/09 1100. . . Resident has a large burn to [lower] mid abdomen just above his
naval. The skin on most of the burn has been rolled up but there is still a small
blister intact on the left far side. The entire burned area measures 17 cm long x 5
cm wide. [No] depth noted. No redness or irritation to skin surrounding the burn.
No infection noted. Spoke with Dr. . . . via telephone and he ordered silvadine
ointment to burn bid [with] cleaning area with wound cleaner, pat dry. Apply
silvadine bid, cover [with] dry 4 x 4’s and secure [with] .. . tape. Will change bid
until healed. Resident’s sister... was notified of the burn. Will cont to monitor
condition.

4/9/09 6P Burn to abdomen . . . naval measures 23 cm x 7 cm. Wound bed is
white in color, there is another wound on his [left] thigh measuring 0.5 cm in
diameter and a little red with surrounding skin, silvadine cream applied as ordered,
covered [with] 4x4 and secured with . . . tape, will continue to monitor. . . .

4-13 1100 Notified physician on evaluating wound on abdominal area for
debridement. .. .

4/20/09 (2200) Removed dsg from abd. Cleaned area [with] wound cleaner.
Applied Silvadene oint/applied 4 x 4’s/ secured [with]... tape... .

4/21/09 1100= Burn to abdomen measures 14 cm long x 3.3 cm wide with about .1
cm depth. A large amount of the wound bed seen have thick yellow slough
present. The edges have beefy red granulation. Tx done as ordered... .

4/21/09 1400= Spoke to Dr. . . . concerning the burn to residents abdomen. He
stated that he looked at it when he was here on the 14" and he will look at it again
when he comes out next time (within the next few days). He also said he did not
want to debride that at this stage, but to continue the current treatment. The area is
looking better than it did. Will cont to monitor.

Id. at 29-30.
12

A skin condition record dated April 5, 2009 shows that Resident 14 had a burn on his
abdomen “above nipple, 6 x 2 inches burn caused by coffee spill this morning. Skin flap
folded along edge, wound bed red in color, no drainage noted at this time.” On April 13,
2009, the wound still measured 6 x 2 inches, there was a thick yellow exudate and the
wound bed was red. On April 20, 2009, the wound still measured 6 x 2 inches with a red
wound bed. Jd. at 35. On April 21, 2009, the wound was measured at 14 x 3.3 cm witha
large amount of yellow slough in the wound bed, and pink/red beefy granulation at the
wound edges. On April 23, 2009, the wound was still 14 x 3.3 cm., with a depth of .1 cm
wide, with yellow slough in the wound bed, with pink at the wound edge. Id. at 36.

Physician’s telephone orders, dated April 6, 2009, at 11:00 a.m., state “Silver sulfadiazine
cream to burn on abdomen with dressing change bid. Clean burn to mid [lower] abd
[with] wound cleaner pat dry. Apply silvadine to area and cover [with] dry 4x4s secure
[with] ... tape. [Check] Bid until healed.” Jd. at 26.

Surveyor notes dated April 21, 2009, reflect that the licensed vocational nurse (LVN)
caring for Resident 14 stated she thought Resident 14 fell asleep with coffee in his hand.
Id. at 4.

During the survey Residents 26, 27, 28 and 14 were assessed. Resident 14 was screened
for handling hot liquids on April 25, 2009. He understood that he was holding coffee,
that he drinks coffee out of a cup, that it’s hot and that it could burn him. He was
observed to demonstrate that he could bring the cup to his mouth and drink without
difficulty. His safety recommendations were to have a hot drink served in a cup with a
lid and at a temperature where there is no visible steam. Jd. at 37. Resident 14’s skin
was also checked. The burn to his abdomen was noted to be 14 cm long x 3.3 cm wide x
.1 cm deep, and there was another area on the top of his left upper thigh (2 cm diameter
scabbed) dry. It noted that the physician and family were aware of both areas and no
treatment to the area on the top left thigh was ordered. Jd. at 38. A therapy referral form
dated April 24, 2010, notes that Resident 14 “needs to be in dining room for monitoring
during meals. Res is able to perform hand-mouth but is weak.” Jd. at 39.

Resident 26 was screened for handling hot liquids on April 25, 2009. He understood that
he was holding and could drink from a coffee cup, and that coffee was hot and could burn
him. He was able to bring the cup to his mouth to drink. His safety recommendation was
to have his hot drink served in a cup with a lid. CMS Ex. 18, at 61. A therapy referral
form dated April 24, 2009, indicated that he had the strength to perform hand-mouth but
it would be “helpful to eat in dining room for safety.” Jd. at 63. An April 24, 2009 care
plan noted he was at risk for burns and that motor weakness and dementia were
contributing factors. Hot liquids were to be provided and served by staff in a cup with a
lid on a stabilized surface as permitted by the resident. Jd. at 24. His skin was assessed
also on April 24, 2009. Jd. at 62.

13

Resident 27’s skin was assessed on April 24, 2009. CMS Ex. 19, at 36-37. The burn was
noted as “[o]ld burn (pink discoloration 2 cm diameter) [with] a 1 cm Brown scab to the
area” on Resident 27’s right thigh. It noted that Resident 27’s family and physician were
aware of the burn, knew the area had healed and no further treatment was necessary. Id.
at 36. The record does not contain a screen for Resident 27 handling hot liquids.

Resident 28 was screened for handling hot liquids on April 25, 2009. She understood she
was holding a coffee cup and drank coffee from it, that coffee is served hot and could
burn her. She was able to bring the cup to her mouth to drink. Safety recommendations
included having a hot drink served in a cup with a lid and having it served at a
temperature without visible steam. CMS Ex. 20, at 38. A therapy referral form dated
April 24, 2009, recorded that the resident had “strength for hand-mouth” but that she
should eat her meals in the dining room in order to be monitored. Jd. at 39. Her skin was
also assessed on April 24, 2009. Id. at 37.

CMS asserts that each of these residents was identified as having dementia and poor
mobility and agility. CMS argues that Petitioner failed to identify the residents as at risk
for hot liquid burns and, after each incident, failed to assess the resident who was burned
for the risk of sustaining burns from handling hot liquids, and failed to care-plan for the
resident to prevent future burns resulting from hot liquids. CMS argues that had the
facility identified the potential after the first burn sustained by Resident 26, Petitioner
could have assessed other residents with dementia and poor mobility in order to protect
them from future burns resulting from handling hot liquids. CMS Br. at 11.

CMS notes that the time and temperature gradations for sustaining third degree burns are:
155 degrees Fahrenheit (F) — one second of skin contact; 148 degrees F — two seconds;
140 degrees F — five seconds; and 133 degrees F — 15 seconds. CMS Br. at 12, citing
http://www.americanburn.org. A resident spilling hot liquid on their skin at a
temperature of 158 degrees F would thus sustain a third degree burn after one second of
contact. Jd. CMS also notes that the Lippincott Manual of Nursing Practice, Sixth Ed.,
identifies second degree burns as being deeper and, in addition to pain, redness and
inflammation, the skin blisters. Third degree burns are deeper still, involving all layers of
skin, effectively killing the area of skin that is burned. The damage to blood vessels and
skin from a third degree burn appears white, leathery and tends to be relatively painless.
Petitioner does not dispute this information. P. Br. at 21-22.

CMS measured coffee temperatures during the survey on April 24, 2010. Referring to
surveyor notes compiled by a surveyor, Ms. Edwards, who did not testify, CMS asserts
that coffee temperatures during the morning of the survey of April 24, 2009, measured:
at 10:00 a.m., at the coffee bar, 162.6 degrees F; at 10:04 a.m., on the 400/500 hall, 130.9
degrees F; at 10:08 a.m., on Hall 800, 158.3 degrees F; and at 10:10 a.m., on Hall 600,
156.6 degrees F. CMS Ex. 13, at 1; see CMS Br. at 12. CMS also asserts that
Petitioner’s dietary manager informed Surveyor Briggs that coffee temperatures had been

14

lowered to 140 degrees F but, after complaints from residents, they were returned to
normal temperatures. Petitioner raised coffee temperatures back up about two weeks
prior to Resident 14 being burned. CMS Br. at 12; Tr. at 63-66; CMS Ex. 10, at 4.

CMS refers to Surveyor Briggs’ testimony in arguing that Petitioner failed to implement
other measures to prevent burns, such as using a “sippy” cup, which she recognized the
facility had discussed but dismissed as a “dignity issue.” Tr. at 54-55. No other assistive
devices were tried to allow residents to have their coffee and still be safe. Tr. at 55.
Surveyor Briggs specifically testified that Tag F 323 was cited because the survey team
could not find evidence demonstrating that Petitioner had identified an accident hazard,
developed a plan to address the hazard, or assessed the residents to determine who might
be at risk and what precautions through supervision or assistive devices could be used to
prevent future burns. Tr. at 69-70. CMS refers to Surveyor Persefield’s testimony with
regard to citing Tag F 323,

. .. with having coffee accessible to the residents at all times, the facility had
failed to assess individual residents based on their needs or services that needed to
be provided. They failed to document the amount of supervision that residents are
provided, and also failed to document the residents’ need for assistive devices to
prevent accidents from occurring.

Tr. at 273. Surveyor Persefield also testified that Petitioner failed to recognize the pattern
of the accidents, investigate the causes of the accidents, and assess residents to discover
who might be at risk. Tr. at 273-76. Surveyor Persefield testified,

... in preventing the accidents, there is the failure on the facility’s part to assess
the actual physical environment, of the location, the accessibility of coffee to
everyone, the residents’ individual needs, assessing their needs and services; the
failure to determine the amount of supervision, and also, any assistive devices that
[they] may need to prevent further accidents from occurring.

Tr. at 275.

CMS asserts that when Petitioner finally recognized the risk the approaches it took were
“inadequate” or “lacked follow-up for effectiveness.” CMS Br. at 14. Surveyor
Persefield testified that Petitioner’s corrective action plan for Resident 28 was to put ice
cubes in her coffee to cool it down before drinking. Tr. at 270; CMS Ex. 20, 36.
Surveyor Persefield testified that instructing a resident with dementia to do this would not
be appropriate or effective. Further, CMS asserts that there was no indication that
Petitioner developed care plans or follow-ups to determine if residents were actually
receiving lower temperature coffee or were placing ice cubes in their coffee as Resident
28 was instructed to do. Tr. at 271.
15

CMS asserts that Captain McElroy testified that anyone carrying a cup of coffee at 180
degrees F is at risk of burning themselves and, because the individuals in question are
residents in a nursing facility, the nursing facility has “the responsibility to assess the
residents and to fill out plans of care to deal with accident hazards in the environment.”
Tr. at 380.

CMS argues specifically that Petitioner’s staff was unaware for hours or days that these
residents had sustained burns requiring treatment. CMS argues that for Resident 14 the
burn occurred during breakfast on April 5, 2009, but was not observed until 11:00 p.m. at
night. Tr. at 35. Petitioner did not begin treating the burn until the following day when
physician orders were obtained. Tr. at 35-37. Resident 28 stated on March 4, 2009, that
she had suffered a burn one or two days before, which would have been March 2 or 3,
2009. Tr. at 269; CMS Br. at 11.

In sum, according to CMS, Petitioner’s failure to reduce coffee temperatures, to assess
residents’ needs for supervision when handling hot liquids, and failure to provide an
environment free from the potential for hot liquid spills, resulted in the deficiency cited
under 42 C.F.R. § 483.25(h).

Petitioner asserts that CMS has not established a prima facie case of a deficiency.
Petitioner asserts that at issue here is whether the four coffee spills were isolated
accidents or were caused by a failure to properly assess residents’ ability to handle hot
liquids. Petitioner asserts that the spills were typical accidents, “the result of being
sloppy, bumping your mug, getting your chair knocked when you are taking a sip, or
simply picking up the mug wrong and losing your grip. “CMS’s assumptions that the
spills were due to the fact that the individuals got around in wheelchairs and had some
dementia were, quite simply, wrong.” P. Br. at 2. Petitioner asserts that it thoroughly
assessed its residents on an ongoing basis and knew their needs well. It provided coffee
service with supervision and assistance to allow residents to enjoy coffee as they had
done all their lives. It “strove to balance the equally important obligations of making the
environment safe and respecting residents’ rights to self determination and dignity.” P.
Br. at 3.

Petitioner asserts that just because it allowed its residents to exercise their right to drink
coffee does not indicate a failure to identify four residents as at risk for coffee burns or a
failure to implement interventions to reduce the risk of such burns. P. Br. at 8. Petitioner
asserts that the special hot liquid safety assessments it performed as a result of the survey
findings were not needed because Petitioner’s ongoing assessments covered possible
cognitive and physical issues that could affect residents’ ability to safely handle hot
liquids. These assessments included nurses’ and CNAs’ visual assessments,
comprehensive assessments upon admission, quarterly and annually, assessments for
changes of condition, functional ability, activity tolerance, falls, skin, diet, mental health,
drug side effects, restraints, bowel and bladder needs, and smoking safety. Resident

16

status was also reviewed in quality of life committee meetings, during shift changes, and
in 24-hour reports. P. Br. at 8-9; Tr. at 553-54, 711-13.

Petitioner asserts further that its residents were well supervised in the dining room
(capacity 92) by 10 to 13 staff and that the dining room is where most of the coffee was
consumed. P. Br. at 8; Tr. at 551, 706-08. Petitioner asserts that residents were provided
varying levels of assistance as their conditions changed and that those needing more
supervision or assistance dined at tables that could provide that assistance. P. Br. at 8; Tr.
at 553-54.

Petitioner also asserts that the condition of the four residents at the time of their spills
reflects that it was safe for them to handle coffee as provided to them. P. Br. at 9.8
Petitioner asserts that Resident 26 moved about in an electric wheelchair without any
trouble and that his Parkinson’s disease did not cause tremors, only an occasional shaky
hand. Petitioner asserts that the spill was not related to his Parkinson’s disease and that
he had experienced no lessening of his ability to hold a cup. Petitioner argues that
Resident 26 had neuropathy in his lower extremities but not in his arms or hands; did not
appear shaky at mealtime and ate and drank without assistance; had only short term
memory deficits, but was normal in his decision making with no communication deficits
or behavioral issues. Petitioner maintains that Resident 26 handled coffee well and had
no previous spills. The second degree burn he received on September 16, 2008 covered
an area about the size of a deck of cards. Petitioner asserts that Resident 26 experienced
no discomfort, as the burn was in the area affected by his paralysis and there was no

* Petitioner argues that the surveyors listed a number of potential risk factors shared by
the four residents, yet did not investigate to determine if they were factors in the
accidents, including checking if there had been previous spills; assessing the residents for
the extent of their cognitive difficulties, communication problems or mobility concerns;
determining if they appreciated the risk posed by hot coffee; determining whether they
could safely handle hot liquids; observing them with a hot liquid; determining whether
staff provided assistance with hot liquids; determining the level of supervision;
interviewing three of the four residents; failing to ensure they had the right resident; or
failing to thoroughly review the residents’ charts. P. Br. at 9-10. As noted by CMS,
Petitioner mistakenly attempts to shift its burden to the surveyors or CMS. It is
Petitioner’s responsibility to conduct assessments and investigate its residents’ ability to
safely handle hot liquids. Surveyors do not need to witness accidents or conduct resident
assessments to cite a deficiency. Based on facility records, observations, and interviews,
the surveyors here identified that four residents were physically harmed by sustaining
burns from a hot liquid, determined that this constituted a pattern, and that the incidents
constituted immediate jeopardy to Petitioner’s residents. It is Petitioner’s burden to rebut
CMS’s case. Petitioner is in the best position to do so as it created the records that CMS
relied upon and it actually cared for the residents.

17

change in his physical or mental status. P. Br. at 10-11; Tr. at 486-95, 508-10, 701; P.
Exs. 10, 29, 30.

Petitioner asserts that Resident 27 did not pour his own coffee because he couldn’t reach
it in his wheelchair. It was brought to him at the table. He did not have a history of any
spills or any spills after January 14, 2009. He fed himself at the time (although he was
later moved to a feeding assistance table) and did not have any tremors or disease. Tr. at
520-33, 743. After the spill he was given cooled-down coffee. The directive to cool
Resident 27’s coffee was communicated at shift change and in the 24-hour report and
written up in his next care plan, but implemented immediately. Tr. at 526-33. DON
Balzer testified that giving a resident cooled-down coffee is a standard precaution when
the facility does not fully understand a resident’s status. She testified that hot liquids
might be removed for 90 days while the resident was monitored to see if he or she was
losing strength in his or her grip or undergoing a change in mental status. Petitioner does
not refer to documentation that this is its policy. It only refers to the testimony of DON
Balzer and RN Orta.” Neither DON Balzer nor RN Orta, or Petitioner, explained why
this plan was not considered or followed in the case of the other residents who were
burned.

DON Balzer testified that Resident 28 drank coffee served to her at the table and did not
ave a history of spills. Tr. at 534-41, 646; P. Ex. 27. DON Balzer testified that Resident
28 hit her coffee mug while reaching for something else and spilled coffee on her lap. Tr.
at 541; P. Exs. 8, 28. RN Orta testified the incident was witnessed by aides in the dining
room. Tr. at 702. DON Balzer believes the spill occurred the same day it was reported to
Resident 28’s nurse. Tr. at 543; 701; P. Ex. 8, 28. However, there is no documentary
evidence that the resident hit her coffee mug while reaching for something else and no
documentary evidence as to when the spill occurred.

° Petitioner also attempts to impeach Surveyor Persefield’s testimony discussing his
observations of Resident 27. Tr. at 307-12, 323, 328-35, 339-40. Petitioner argues that it
is not clear that in noting shakiness in the resident’s right hand and seeing him spill water
it is clear whether Surveyor Persefield was even looking at Resident 27. Petitioner also
complains that Surveyor Persefield did not assess the resident. P. Br. at 12. Petitioner
also notes that Surveyor Persefield agreed that if the resident passed a hot liquid
assessment he should be allowed to have hot coffee. Jd. However, in reviewing the
evidence, I rely on the exhibits in evidence which are principally copies of records
prepared by Petitioner’s staff in their daily business, not observations of residents made
by surveyors made after the spills in question. And, whether or not a resident passed a
hot liquid safety screen, or whether or not the screen was done to appease the state
agency surveyors, does not alone prove that Petitioner was in compliance with
participation requirements. It is up to Petitioner to overcome CMS’s prima facie case by
rebutting CMS’s evidence or by affirmatively showing its compliance.

18

Petitioner asserts that after the spill Resident 28 was served coffee cooled with ice and
monitored in the dining room. DON Balzer testified that the increase in monitoring was
communicated on the shift report, which is a verbal report, as opposed to the 24-hour
report which is written. Tr. at 546; P. Ex. 8. I note, however, that with regard to
Petitioner’s assertions as to how the coffee was served to Resident 28, Petitioner’s
Accident Incident and Investigation Report, dated March 4, 2009, clearly notes as a
corrective action that it “counseled res. to put ice cubes in coffee to cool it down before
drinking.” CMS Ex. 20, at 36; P. Ex. 8, at 1. It does not state that it would be providing
cooled coffee to her.

Petitioner asserts that Resident 14 did not serve himself coffee, it was brought to him at
his table. Tr. at 551; P. Ex. 17.'° Petitioner asserts that Resident 14 spilled coffee on
himself during breakfast on April 5, 2009, when someone bumped his wheelchair. The
ADON was present at the time and brought the resident to his nurse. He was taken to his
room and assessed. No injury was found, so his clothes were changed and he was
wheeled back to the dining room. The second degree burn later developed. He had no
other spills before or after the incident. Tr. at 558-60; 694-97; P. Ex. 21. P. Ex. 21
consists of nurse’s notes from the relevant time, which contain nothing about Resident 14
being brought back to his room and changed. There is no contemporaneous evidence
about how the accident occurred and no eyewitness testimony to the accident was
offered.

DON Balzer and RN Orta testified that Petitioner implemented a number of interventions
to reduce the risk of burns before the spills occurred. It asserts it utilized: continuing
assessment of resident capabilities and needs with corresponding adjustments to changes
in resident status; ample supervision in the dining room where most coffee was served;
use of sturdy, easy to maneuver, hard plastic coffee mugs with wide bases and large
handles; serving coffee for residents who could not reach coffee dispensers or with
impairments (wheelchair use); serving coffee when residents were seated and placing the

'° Petitioner complains that Surveyor Briggs, who was responsible for the findings

regarding Resident 14, did not determine whether the resident could safely handle hot
coffee, did not see him with hot liquids, and did not know whether supervision was
provided to him when served hot liquids. P. Br. at 14-15. Petitioner also asserts that her
observations on April 22, 2009, did not refer to Resident 14, but to another resident.
Thus, her testimony is not credible. As I stated previously, it is not up to the surveyors to
assess specific residents. Once CMS makes its prima facie case, it is up to Petitioner to
rebut that case, either by rebutting CMS’s evidence or by proving facts which show
substantial compliance. Petitioner is in the best position to do this, as it produced the
records relied on by CMS and cared for the residents in question. Whether or not the
surveyors observed the residents being served or drinking hot liquids, or whether they
knew whether the supervision they received included assistance, is only relevant insofar
as Petitioner can rebut that evidence with credible contradictory evidence.
19

mug on a flat surface; limiting access to coffee and serving it to residents on the
Alzheimer’s unit; providing safety reminders and cues; cooling coffee before serving on
an as-needed basis; and not filling mugs more than two-thirds full. P. Br. at 17-18; Tr. at
706-11; 721-22; 513-16. As a testament to its success, Petitioner notes there were no
spills on the Alzheimer’s unit or with the coffee bars on the units and kitchenette. P. Br.
at 18.

Petitioner did recognize in early April that there was a problem with hot liquid spills and
burns. A group consisting of the regional nurse, dietary manager and speech therapist
reviewed all four incidents in early April to determine whether there were patterns that

led to the spills or whether something could be done to prevent spills. They reviewed the
charts and incident reports and interviewed nurses, residents, and families. P. Br. at 18;

P. Exs. 34, 35; Tr. at 737, 784-85. They discovered no meaningful pattern to the spills, as
the only pattern they saw was that three of the four spills occurred during breakfast in the
dining room. P. Br. at 18; Tr. at 701-07, 737. The facility considered use of cups with a
id and two handles (“‘sippy” cups) and travel mugs. It determined, however, that the
risks of those cups outweighed the benefits, in that spills can occur through the smaller
opening and burn the mouth and lip and, because the cups are cool to the touch and have
a lid, there is not the same reminder that the cup is hot. P. Br. at 19; Tr. at 737-39; 517-
9.

After deciding the risks of “sippy” cups and travel mugs did not outweigh the benefits,
the facility decided to try lowering coffee temperatures. On April 6, 2009, Petitioner’s
administrator directed its dietary manager to find the lowest possible brewing
temperature, which was confirmed to be 160 degrees (it was lowered from 185 degrees).
When transferred to air pump canisters for serving, the coffee was cooled with ice to 140
degrees F. The dietary manager put a sign out to warn staff about the importance of
cooling the coffee. P. Exs. 34, 35; CMS Ex. 5, at 15. Residents complained that the
coffee was not worth drinking and they had a right to have coffee at their preferred
temperature. DON Balzer referred to it as a “rebellion” or “mutiny” and, as RN Orta
described it, the residents “went wild.” In response, someone in the dietary department
raised the temperature, but it was returned to the reduced temperature and then returned
up, in response to resident complaints, for the non-Alzheimer’s unit population to about
160 degrees F. P. Br. at 19-20; Tr. at 745-47; 569-70; P. Exs. 34, 35.

Petitioner also asserts that when it did the safety screens as part of its action plan to
remove immediate jeopardy, no additional burns were noted. However, additional
approaches were imposed in order to get the state agency to lift the immediate jeopardy
(not, according to Petitioner, because Petitioner thought they were necessary). Coffee
bars on the units and in the kitchenettes had the temperature reduced to 140 degrees F and
in the dining room to 160 degrees F; Alzheimer’s unit residents were served coffee at 140
degrees F; large travel mugs with handles and non-skid flat bottoms were used for a
resident with a prior burn or who required cuing or assistance with eating; and those
20

requiring eating assistance had the mug held by a nurse or feeding assistant. P. Br. at 20;
Tr. at 728-29, 739-40, 504, 546-47, 569-70.

Petitioner asserts that, because these approaches were so unpopular, it had to develop a
dietary waiver for hot liquids. After verifying that a resident understood the types of
accidents and risk of harm, about three-quarters of the residents signed a waiver (waivers
are also used by Petitioner for residents who refuse a prescribed diabetic or pureed diet).
Tr. at 502-05, 641-42; P. Ex. 32.

Petitioner argues that CMS’s approval to serve coffee at 140 degrees F, and for some
residents at 150 degrees F, is inconsistent with its conclusion that all residents are at a
heightened risk of hot liquid spills given their physical and cognitive status. Petitioner
asserts that there is no way to eliminate the risk of hot liquid burns unless all hot liquids
are eliminated. Petitioner argues that its implementation of hot liquid safety screens,
reductions in coffee temperatures, and the use of travel mugs was nothing more than an
attempt to satisfy the state agency and does not reflect that its previous efforts “fell
short.” P. Br. at 22.

With specific reference to 42 C.F.R. § 483.25(h) (F Tag 323), Petitioner argues that the
regulation does not require that a facility maintain an impossible standard — here an
accident free environment for all 89 residents who drink hot beverages. Instead, it
requires the facility to maintain an environment as free of accident hazards as possible.
Petitioner notes that Captain McElroy testified that if any resident, other than a resident
who wants and can handle hot coffee, can be burned, there is an unacceptable safety risk
(although noting that Captain McElroy did not agree that his approach would preclude
serving hot coffee in nursing facilities). Tr. at 408-17. That standard, however, is
impossible. P. Br. at 26.

Petitioner also argues that CMS acknowledges that when considering appropriate
responses to accident hazards resident rights cannot be ignored. However, CMS ignores
that it is obvious that coffee drinkers are aware of the risks of spilling coffee. P. Br. at
27.

Petitioner asserts that while Resident 26 was not supervised at the time of his spill there is
no evidence he needed supervision or that supervision would have prevented the spill. P.
Response at 4.'' Petitioner also asserts that no amount of supervision will prevent an
individual from dropping or spilling a cup of coffee, or prevent a burn, because no one
can move that fast. P. Br. at 27-28.

"Petitioner also states that CMS did not offer evidence regarding the level of
supervision that Residents 14, 27 and 28 required. However, it is not up to the surveyors
or to CMS to assess the level of supervision required, that is Petitioner’s responsibility.
21

Petitioner argues that Resident 14’s spill was not caused by a lack of supervision or
assistive devices, but by someone bumping into his wheelchair (P. Br. at 28, citing Tr. at
134-37, 154, 548-50, 554, 701; P. Ex. 17; CMS Ex. 17, at 27-30), although there is no
contemporaneous documentary evidence that this is how the accident occurred.
Petitioner argues also that the residents were thoroughly assessed and amply supervised
in the dining room. Petitioner also asserts that the surveyors did not ask whether there
had been a coffee spill associated with the coffee stations or Alzheimer’s unit, and argues
that if CMS was concerned about cognitive impairment as a risk factor a number of spills
should have occurred on that unit.

In sum, Petitioner argues that the four hot coffee spills were not caused by a lack of
supervision or a failure to assess or investigate. Nor did the travel mugs Petitioner
eventually used eliminate the risk of a spill; their use only changed the risk. Lowering
coffee temperatures was not a workable solution for the facility. The risk of the hot
coffee could not be eliminated without violating residents’ rights to self-determination
and choice and to live in a homelike environment with dignity. Petitioner notes there is a
delicate balance between resident choice and a safe environment. Lowering coffee
temperatures for residents who understand the risk of hot coffee and have demonstrated
the functional ability to handle it, argues Petitioner, is a violation of their rights and an
unwarranted over-reaction to an isolated problem. Petitioner describes its actions in
trying to reconcile residents’ right to choose to drink coffee at palatable temperatures
with efforts to reduce risk as demonstrations that it did not violate 42 C.F.R. § 483.25(h).
Petitioner asserts its actions made the facility environment as free of hazards as possible
in light of resident rights.

After consideration of all the evidence and argument, I find that CMS put forward a
prima facie case that Petitioner failed to maintain an environment as free of accident
hazards as possible and failed to provide adequate supervision and assistance devices to
prevent accidents that Petitioner has not succeeded in rebutting.

Petitioner’s position is that a hot coffee (or any hot liquid) spill can happen to anyone and
that these four spills were simple accidents and did not have a negative impact upon the
care it provided its residents. Petitioner misses the point. These were not average
individuals. These individuals resided in a nursing facility and all four had some degree
of cognitive or physical disability. Petitioner’s failure here was in not recognizing after
each burn that the resident in question should have been specifically assessed for his or
her ability to handle hot liquids, especially hot coffee.'* While Petitioner asserts that it
assessed these individuals, the records Petitioner referenced did not specifically assess
their ability to handle such liquids after coffee spills with burns. Further, Petitioner’s

® Although I have referred to the coffee spills here as spills, it is perhaps more accurate
to term them coffee burns. I have no way of knowing whether any other residents at
Petitioner’s facility spilled coffee on themselves and were not burned by it.

22

recognition that it had a population of veterans who were heavy coffee drinkers should
have caused Petitioner to assess all its residents for hot liquid safety in order to provide
them with the assistive devices they needed (such as cups with lids) and adequate
supervision (such as Resident 26 drinking hot liquids in the dining hall instead of in bed)
that they were not safe without. Petitioner recognized in early April 2009 (prior to the
survey) that it had a problem with hot coffee spills and burns, but, even recognizing this,
it failed to adequately address the situation and provide consistent interventions until
forced to do so by the survey.

Petitioner argues that its residents had the right to have access to and drink hot coffee. It
argues that the SOM, in discussing Tag F 323, acknowledges an acceptable trade-off
between accepted risks for the benefit of maintaining residents’ dignity, self-
determination, and control over their daily lives. P. Response at 8-9. What the SOM
actually states is that it is a “facility’s responsibility to accommodate individual needs
and preferences and abide by the resident’s right to choice and self-determination” but
that the choice “must be balanced against compliance with F323 to protect the resident.
Documentation regarding the resident’s choices will assist the survey team in making
compliance decisions.” The goal is to protect resident safety, not tacitly or passively to
allow a resident to make a risky choice, especially a choice made without proper
documentation regarding a facility’s assessment of the resident’s capabilities absent some
specific waiver. P. Ex. 39, at 29. DON Balzer recognized this when she testified with
regard to a resident with a wanderguard leaving the facility,

It is a resident’s right to leave the facility when they want to. However, you err on
the side of safety for somebody that might not be able to maintain their wheelchair
or something else like that, if they’re going to fall off the curb, if they’re going to
have an accident on the concrete or something.

Tr. at 612. Although DON Balzer would argue that there is a “big difference” between
spilling a cup of coffee and an elopement and injury outside the facility (Tr. 612-13) there
is really no difference in concept. Although a resident may have a right to drink hot
coffee or any other hot liquid, just as that resident has the right to leave the facility, it is
up to Petitioner to assess whether that resident is capable of doing so given that resident’s
mental processes and physical condition and to attempt interventions to make sure the
resident remains safe. As DON Balzer explained, “you err on the side of safety.” Tr.
612.

As noted, the facility recognized the spills and ensuing burns as a problem in early April
and attempted to implement a “fix” prior to the survey. It did so by lowering coffee
temperatures for the entire facility. This was not an effective or appropriate response
according to Surveyor Persefield. Tr. 356-57.
23

While Petitioner contends that through the testimony of its witnesses (P. Br. at 8), and the
exhibits, it provided evidence of extensive and continual assessment of its residents,
Petitioner did not provide any documentary evidence that it assessed the four residents
after their burns to determine whether they were able to safely handle hot liquids.'> The
corrective action taken, for instance, in the accident/incident and investigation report for
Resident 26, was to mop the floor. For Resident 27 the only corrective action was for the
resident to be given no hot beverages at any time, and his care plan update on February 2
only included that hot liquid would be cooled with ice and the nurses were to remind him
of safety when requesting hot beverages. There was no evidence that he had been given
any screening for his ability to handle hot coffee or any other hot liquid and no evidence
that Petitioner followed up on these actions. Resident 28 was only counseled to put ice
cubes in her coffee before drinking. There was no assessment of the resident’s ability to
handle hot coffee or any other hot liquid, or to determine whether she was, in fact,
receiving cooled coffee.'* Hot liquid assessments at the facility were only performed
after the immediate jeopardy was identified by the surveyors. Tr. 705; 768-69; CMS Ex.
56. Had Petitioner identified the coffee spill burns as an accident hazard earlier, resident
assessments could have been conducted sooner, reducing the risk of other burns
occurring, potentially avoiding the three later spills.

Petitioner argues as validation of its approaches that because the four burned residents
passed the hot liquid safety screen during the survey the burned residents were able to
safely handle hot coffee at the time of their spills. However, Petitioner ignores evidence
that as a result of these screens Petitioner assessed Resident 26 (whose spill occurred in
his bed) and determined that it would be helpful for him to eat in the dining room for
safety and that hot liquids were to be provided and served by staff in a cup with a lid ona
stabilized surface; that for Resident 28 she should have hot drinks served in a cup with a
lid at room temperature without visible steam, and that she should eat her meals in the
dining room to be monitored; and that for Resident 14 he should have hot drinks served
in a cup with a lid and at a temperature without visible steam, and that he should be in the
dining room for monitoring during meals because his hand-mouth coordination was
weak. And, although RN Orta testified that all residents, including the four who were

Even Petitioner’s consultant, RN Morgan, when asked whether a nursing facility
should do a safety assessment after a spill, seemed to realize that doing such an
assessment might have been a good idea. She replied “[a]fter a spill. I don’t know that it
would be warranted. I guess if you wanted to see if that resident could, in fact, handle it
safely, it would not. I don’t know. I really don’t.” Tr. at 822.

“ Social Service notes from September 25, 2010, just a few days after the spill and burn,
note that the social worker witnessed an altercation between Resident 26 and another
resident where the two residents threw their coffee on each other. CMS Ex. 18, at 57.
Had the coffee been hot, either resident could have been hurt. Petitioner does not appear
to have addressed hot liquid safety after this incident either.
24

burned, were screened for hot liquids by April 25, 2010 (Tr. at 705-06), there is no screen
in the record to show that Resident 27 was assessed for handling hot liquids or what his
capabilities were. Moreover, after screening, Petitioner identified other residents as
needing cups with lids. RN Orta noted those residents to be, “[a]nybody sitting at a
feeder table, that was being fed, anybody at a queuing table that was being queued, got a
cup with a lid.” Tr. at 778.

2. Petitioner’s noncompliance constituted immediate jeopardy to its residents.

I noted in section III above the regulatory definition of immediate jeopardy; “a situation
in which the provider’s noncompliance with one or more requirements of participation
has caused, or is likely to cause, serious injury, harm, impairment, or death to a resident.”
42 C.F.R. § 488.301. Immediate jeopardy thus exists in either of two circumstances.
First is when a facility’s noncompliance has caused either death or serious harm to one or
more residents. Second is when the provider’s noncompliance is “likely” to cause death
or serious harm. The regulations provide at 42 C.F.R. § 498.60(c) that CMS’s
determination concerning the level of noncompliance be upheld unless it is “clearly
erroneous.” Under the regulatory framework, CMS’s immediate jeopardy decision is
presumed to be correct and the harm to be serious. It is Petitioner’s burden to rebut this
presumption with evidence and argument that the harm or threatened harm did not meet
any reasonable definition of serious. Daughters of Miriam Center, DAB No. 2067
(2007).

Surveyor Persefield testified that the surveyors determined that immediate jeopardy
existed because there were four residents sustaining skin burns from hot liquids spills and
that they and other residents in the facility were at risk for further spills. Surveyor
Persefield testified that the residents needed to be individually assessed and have assistive
devises in place to prevent future accidents. Tr. 278-79.

Petitioner argues that immediate jeopardy did not exist here because it assessed its
residents, provided adequate supervision and assistance devices, and evaluated the
circumstances of each spill. P. Br. at 41. Above, I found that they did not do so.
Petitioner argues that the surveyors failed to interview residents and staff, do a
meaningful record review, and ignored evidence of resident assessments. They did not
observe a resident being served hot coffee. They jumped to “their own preconceived,
wrong conclusion.” Above, I found that the surveyors’ responsibility was to make a
prima facie case, it is Petitioner’s responsibility to rebut that case. Petitioner argues that
the four residents passed the hot liquid screens completed on April 25" and that the
presence of normal temperature coffee (between 158 to 162 degrees F) demonstrates that
they were safe to handle coffee. Above, I found that the hot liquid screens were passed
only with recommendations for how the residents could safely drink the coffee.
Petitioner argues that Residents 27 and 28 were receiving coffee that had been cooled
before being served to them. Although that was true for Resident 27 facility records

25

show only that Resident 28 was herself counseled to put an ice cube in her coffee to cool
it. There is no documentary evidence as to how coffee was presented to her. And, more
importantly, the residents had not been individually assessed for their ability to handle
hot liquids and there was no documented follow-up to show that the recommendations
were being followed.

Petitioner also argues that serious harm did not occur here as a result of any
noncompliance on its part, and that the second degree burns sustained did not meet the
criteria for serious injury or harm. CMS has argued that Residents 14, 26, 27 and 28
were identified as having sustained second to third degree burns. Petitioner asserts that
none of the residents actually experienced a third degree burn. The only mention of a
third degree burn is a reference in Resident 28’s MDS noting that she had sustained a
second or third degree burn within the past seven days. CMS Exs. 5, at 75; 20, at 27.
Petitioner asserts Surveyor Persefield testified that this reference was the sole basis to
conclude the burn might have been a third degree burn. However, Petitioner notes that
the MDS is a preprinted form with a box that can be checked which describes whether a
resident sustained a second or third degree burn within past seven days without further
specificity. Tr. at 342-43. Petitioner argues that testimony at hearing and the description
of the burn shows it was a second degree burn. Tr. 543, 701; P. Exs. 8,28. Petitioner
argues that this is significant because the SOM provides that accidents in which second
legree burns are sustained due to noncompliance are not an immediate jeopardy
leficiency unless they cover a large part of the body. P. Ex. 39, at 33-34. Petitioner
argues that none of the burns at issue here covered a large proportion of the residents’
bodies.

Petitioner misconstrues the guidance. The SOM notes that the survey team must
letermine the severity of the deficiency based on the resultant effect or potential for
harm. It specifically notes the potential harm related to “[t]hermal burns from
spills/immersion of hot water/liquids.” P. Ex. 39, at 32. It notes how the noncompliance
could cause, result in, allow or contribute to the actual or potential for harm. Jd. It then
notes that the survey team must determine whether the noncompliance requires
immediate correction to prevent serious injury, harm, impairment, or death to a resident.
It does note that when assessing immediate jeopardy, the survey team must have
determined noncompliance and that “negative outcomes that occurred or have the
potential to occur as a result of the noncompliance might include . . . 3rd degree burn, or
a 2™ degree burn covering a large surface area.” Id. at 33. For purposes of a finding of
immediate jeopardy, however, the issue to be assessed by the surveyors is not whether a
given resident’s burn was a second or third degree burn, but whether the potential for a
negative outcome as a result of facility noncompliance might include a third degree burn
or a second degree burn covering a large surface. Hot coffee or liquids can cause a third
degree burn in just five seconds even at 140 degrees F. Petitioner’s failures here left
open the possibility that one of its residents could incur a third degree burn from a hot
liquid spill.

26

With regard to the length of the immediate jeopardy cited, Petitioner argues that CMS
should have lifted the immediate jeopardy prior to April 27. Petitioner asserts that the
surveyors did not accept its action plan at noon on April 24, but instead accepted it as of
9:15 p.m. that night. However, Petitioner argues that the only omission noted was the
obligation of the administrator, DON, or designee monthly to address concerns. The
issue of whether the surveyors should have accepted an action plan earlier is not properly
before me and does not impact my decision here regarding the length of the CMP
imposed. Petitioner argues also in support of a shorter period of immediate jeopardy that
by April 25, 2009, all of its residents had received a skin assessment and had been
evaluated for safety in handling all hot liquids and all of its staff had been in-serviced.
However, the evidence referenced (P. Ex. 34; CMS Ex. 56; Tr. at 740) does not support
such a finding. Finally, the SOD reflects that coffee temperatures were monitored from
April 25, 2009 to April 27, 2009, to ensure that all temperatures were under 140 degrees
F. CMS Ex. 5, at 82. It is reasonable that CMS would need time to sample coffee
temperatures before lifting the immediate jeopardy.

3. The remedies imposed are reasonable.

In determining whether the CMPs imposed are reasonable, I apply the factors listed in 42
C.F.R. § 488.438(f): 1) the facility’s history of noncompliance; 2) the facility’s financial
condition; 3) factors specified in 42 C.F.R. § 488.404; and 4) the facility’s degree of
culpability, which includes neglect, indifference, or disregard for resident care, comfort
or safety. The absence of culpability is not a mitigating factor. The factors in 42 C.F.R.
§ 488.404 include: 1) the scope and severity of the deficiency; 2) the relationship of the
deficiency to other deficiencies resulting in noncompliance; and 3) the facility’s prior
history of noncompliance in general and specifically with reference to the cited
deficiencies.

CMS has not asserted that Petitioner has a negative compliance history. Petitioner has
not submitted evidence that it cannot pay the CMPs. I have found immediate jeopardy to
exist. The deficiency is serious. Petitioner did not assess these residents for hot liquid
safety after the spills. While Petitioner realized in early April that it had a problem with
burns from hot coffee spills, it did not implement consistent approaches to deal with
those spills until after the issue was raised by the state agency during the survey. The
$6,050 per day CMP from April 24 through April 27, 2009, is in the middle range of
CMP when immediate jeopardy is found and is reasonable. The $600 per day CMP from
April 28 through May 28, 2009, is reasonable as well. Petitioner has not proved that it
was in substantial compliance prior to that date.

V. Conclusion

For the foregoing reasons, I conclude that there is a basis for imposition of a CMP and
that the $6,050 CMP for the period April 24 through April 27, 2009, and a CMP of $600
27

per day for the period April 28 through May 28, 2009, totaling $42,800, is a reasonable
remedy for Petitioner’s noncompliance.

/s/
Richard J. Smith
Administrative Law Judge