Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD

Civil Remedies Division

)
In the Case of: )
) Date: July 30, 2008
Elease R. Gaiter, )
)
Petitioner, ) Docket No. C-08-285
) Decision No. CR1823
-v.- )
)
The Inspector General. )
_ )
DECISION

Petitioner, Elease R. Gaiter, is excluded from participation in Medicare, Medicaid, and all
other federal health care programs pursuant to section 1128(a)(1) of the Social Security
Act (the Act) (42 U.S.C. § 1320a-7(a)(1)), effective February 20, 2008, based upon her
conviction of a criminal offense related to delivery of an item or service under Medicare
or a state health care program. There is a proper basis for exclusion. Petitioner’s
exclusion for the minium period’ of five years is mandatory pursuant to section
1128(c)(3)(B) of the Act (42 U.S.C. § 1320a-7(c)(3)(B)).

I. Background

The Inspector General for the Department of Health and Human Services (the I.G.)
notified Petitioner by letter dated January 31, 2008, that she was being excluded from
participation in Medicare, Medicaid, and all federal health care programs for the
minimum statutory period of five years, pursuant to section 1128(a)(1) of the Act. The

“Pursuant to 42 C.F.R. § 1001.3001, Petitioner may apply for reinstatement only
after the period of exclusion expires. Reinstatement is not automatic upon completion of
the period of exclusion.
2

asis cited for Petitioner’s exclusion was her conviction in Gaston County, North
Carolina, of a criminal offense related to the delivery of an item or service under
Medicare or a state health care program. See Act § 1128(a)(1); 42 U.S.C. § 1320a-
7(a)(1); and 42 C.F.R. § 1001.101(a).

Petitioner timely requested a hearing by letter dated February 2, 2008. The case was
assigned to me for hearing and decision on February 22, 2008. On March 19, 2008, I
convened a prehearing telephonic conference, the substance of which is memorialized in
my Order dated March 20, 2008. During the prehearing conference, Petitioner did not
waive her right to an oral hearing, and the I.G. requested that a schedule be set for
riefing its anticipated motion for summary judgment.

The LG. filed a motion for summary judgment and supporting brief on May 2, 2008 (I.G.
Brief), with I.G. Exhibits (1.G. Exs.) 1 through 4. Petitioner filed her opposition to the
motion for summary judgment on June 13, 2008 with her personal statement, which I
mark as Petitioner’s exhibit (P. Ex. 1), and a certificate from the University of North
Carolina School of Social Work, which I mark as P. Ex. 2. The I.G. filed a reply brief on
June 27, 2008 (I.G. Reply) with I.G. Exs. 5 and 6. No objection has been made to the
admissibility of any of the proposed exhibits and I.G. Exs. | through 6, and P. Exs. 1 and
2, are admitted. On June 30, 2008, Petitioner requested leave to file a sur-reply.
Petitioner included her sur-reply with her request. The motion for leave is granted, and
the sur-reply is accepted and considered.

II. Discussion
A. Findings of Fact

The following findings of fact are based upon the uncontested and undisputed assertions
of fact in the pleadings, and the exhibits admitted. Citations may be found in the analysis
section of this decision if not included here.

1. On October 6, 2005, Petitioner was convicted, pursuant to her plea of a
misdemeanor offense of attempted medical assistance provider fraud, by The
General Court of Justice, District Division, Gaston County, North Carolina. I.G.
Ex. 3.

2. On October 6, 2005, Petitioner was sentenced to be confined for 45 days, but the
sentence was suspended, and Petitioner was placed on 18 months of supervised
probation and ordered to pay a fine of $75 and restitution of $1222.76. I.G. Ex. 3.
3

Petitioner does not dispute that the misdemeanor charge, to which she pled guilty,
alleged that in January 2005, Petitioner attempted to make, and caused to be made,
false statements and false representations of material fact for use in determining
entitlement to payment from the North Carolina Medicaid program for medical
assistance by providing therapy notes that indicated she provided counseling
services that she did not provide. I.G. Exs. 2, 5.

The L.G. notified Petitioner by letter dated January 31, 2008, that she was being
excluded from participation in Medicare, Medicaid, and all federal health care
programs for the minimum statutory period of five years pursuant to section
128(a)(1) of the Act.

Petitioner timely requested a hearing by letter dated February 2, 2008.

B. Conclusions of Law

Petitioner’s request for hearing was timely and I have jurisdiction.

Summary judgment is appropriate.

Petitioner was convicted of a criminal offense related to the delivery of an item or
service under Medicare or a state health care program within the meaning of
section 1128(a)(1) of the Act.

There is a basis for Petitioner’s exclusion pursuant to section 1128(a)(1) of the
Act.

Pursuant to section 1128(c)(3)(B) of the Act, the minimum period of exclusion
under section 1128(a) is five years, and that period is presumptively reasonable.

I have no authority to review or change the beginning date of the period of
exclusion.

C. Issues

The Secretary of the Department of Health and Human Services (the Secretary) has by
regulation limited my scope of review to two issues:

Whether there is a basis for the imposition of the exclusion; and,
4

Whether the length of the exclusion is unreasonable.
42 C.F.R. § 1001.2007(a)(1).

n this case, there is no issue as to the reasonableness of the proposed period of exclusion
as it is the minimum period of five years mandated by the Act. The standard of proof is a
preponderance of the evidence and there may be no collateral attack of the conviction that
is the basis for the exclusion. 42 C.F.R. § 1001.2007(c) and (d). Petitioner bears the
urden of proof and persuasion on any affirmative defenses or mitigating factors, and the
.G. bears the burden on all other issues. 42 C.F.R. § 1005.15(b) and (c).

D. Applicable Law

Petitioner’s right to a hearing by an administrative law judge (ALJ) and judicial review of
the final action of the Secretary is provided by section 1128(f) of the Act (42 U.S.C.

§ 1320a-7(f)). Petitioner’s request for a hearing was timely filed and I do have
jurisdiction.

Pursuant to section 1128(a)(1) of the Act, the Secretary must exclude from participation
in the Medicare and Medicaid programs any individual convicted of a criminal offense
related to the delivery of an item or service under Medicare or a state health care
program. Pursuant to section 1128(i) of the Act, an individual is convicted of a criminal
offense when: (1) a judgement of conviction has been entered against him or her ina
federal, state, or local court whether an appeal is pending or the record of the conviction
is expunged; (2) when there is a finding of guilt by a court; (3) when a plea of guilty or no
contest is accepted by a court; or (4) when the individual has entered into any
arrangement or program where judgment of conviction is withheld.

Section 1128(c)(3)(B) of the Act provides that an exclusion imposed under section
1128(a) of the Act shall be for a minimum period of five years. Pursuant to 42 C.F.R.

§ 1001.102(b), the period of exclusion may be extended based on the presence of
specified aggravating factors. Only if the aggravating factors justify an exclusion of
longer than five years may mitigating factors be considered as a basis for reducing the
period of exclusion to no less than five years. 42 C.F.R. § 1001.102(c). No aggravating
factors are cited by the LG. in this case, and the I.G. does not propose to exclude
Petitioner for more than the minimum period of five years.
E. Analysis
1. Summary judgment is appropriate in this case.

Pursuant to section 1128(f) of the Act, a person subject to exclusion has a right to
reasonable notice and an opportunity for a hearing. The right to hearing before an ALJ is
accorded to a sanctioned party by 42 C.F.R. § 1005.2, and the rights of both the
sanctioned party and the L.G. to participate in a hearing are specified in 42 C.F.R.

§ 1005.3. Either or both parties may choose to waive appearance at an oral hearing and to
submit only documentary evidence and written argument for my consideration. 42 C.F.R.
§ 1005.6(b)(5). An ALJ may also resolve a case, in whole or in part, by summary
judgment. 42 C.F.R. § 1005.4(b)(12). Summary judgment is appropriate and no hearing
is required where either: there are no disputed issues of material fact and the only
questions that must be decided involve application of law to the undisputed facts; or, the
moving party must prevail as a matter of law even if all disputed facts are resolved in
favor of the party against whom the motion is made. A party opposing summary
judgment must allege facts which, if true, would refute the facts relied upon by the
moving party. See, e.g., Fed. R. Civ. P. 56(c); Garden City Medical Clinic, DAB No.
1763 (2001); Everett Rehabilitation and Medical Center, DAB No. 1628, at 3 (1997) (in-
person hearing required where non-movant shows there are material facts in dispute that
require testimony); Thelma Walley, DAB No. 1367 (1992); see also New Millennium
CMHC, DAB CR672 (2000); New Life Plus Center, DAB CR700 (2000).

There are no genuine issues of material fact in dispute in this case. Petitioner does not
dispute that she was convicted of a criminal offense related to the delivery of an item or
service under Medicare or a state health care program; that there is a basis for her
exclusion; or that the minimum period of exclusion is five years. She requests only that I
consider the hardship her exclusion will cause. The issue before me for resolution is an
issue of law, no material facts are in dispute, and summary judgment is appropriate.

2. There is a basis for Petitioner’s exclusion pursuant to section
1128(a)(1) of the Act.

The L.G. cites section 1128(a)(1) of the Act as the basis for Petitioner’s mandatory
exclusion. The statute provides:

(a) MANDATORY EXCLUSION. — The Secretary shall
exclude the following individuals and entities from
participation in any Federal health care program (as defined in
section 1128B(f)):
6

(1) Conviction of program-related crimes. — Any individual or
entity that has been convicted of a criminal offense related to the
delivery of an item or service under title XVIII or under any State
health care program.

The statute requires the Secretary to exclude from participation any individual or entity:
(1) convicted of a criminal offense; (2) where the offense is related to the delivery of an
item or service; and (3) the delivery of the item or service was under Medicare or a state
health care program. Petitioner does not dispute that she was convicted of a criminal
offense within the meaning of section 1128(i) of the Act. Petitioner also does not dispute
that the conviction was related to the delivery of an item or service under Medicare ora
state health care program. Accordingly, I conclude that there is a basis for Petitioner’s
exclusion, and the exclusion is required by section 1128(a)(1).

In her sur-reply and in P. Ex. 1, Petitioner attempts to explain her conduct related to the
charge to which she pled guilty. The regulation is clear that when the basis for exclusion
is a conviction in a state or federal court, I may not review the facts that are the basis for
the conviction, i.e., a Petitioner may not collaterally attack the conviction before me. 42
C.F.R. § 1001.2007(d)

3. Pursuant to section 1128(c)(3)(B) of the Act, the minimum period of
exclusion under section 1128(a) is five years.

Petitioner has not disputed that the minimum period of an exclusion pursuant to section
1128(a)(1) is five years as mandated by section 1128(c)(3)(B). I have found there is a
basis for Petitioner’s exclusion pursuant to section 1128(a)(1), and the minimum period of
exclusion is thus five years. The I.G. and I do not have authority under the Act to impose
a period of less than five years. Thus, Petitioner’s requests and arguments for a lesser
period of exclusion cannot be considered to lessen the period of exclusion. Petitioner also
requests imposition of community service for five years rather than exclusion for five
years. P. Ex. 1; Sur-Reply. However, Congress has specified that exclusion is required
for a minimum period of five years and no discretion is granted to the I.G. or me to
impose an alternate sanction.

Petitioner also argues that her exclusion should run from the date of her conviction,
October 6, 2005, rather than February 20, 2008. P. Ex. 1. However, pursuant to 42
C.F.R. § 1001.2007(a)(1) and (2), my jurisdiction is limited to the issues set forth above.
I have no authority to review or remedy the I.G.’s delay in imposing the exclusion
mandated by the Act under section 1128(a). Randall Dean Hopp, DAB No. 2166, at 2-4
(2008).
Ill. Conclusion

For the foregoing reasons, Petitioner is excluded from participation in Medicare,
Medicaid, and all federal health care programs for a period of five years, effective
February 20, 2008, 20 days after the 1.G.’s January 31, 2008 notice of exclusion.

/s/
Keith W. Sickendick
Administrative Law Judge


Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD

Civil Remedies Division

In the Case of: )
Progressive Home Care Services, Inc., Date: July 28, 2008
)
Petitioner, )
)
-V.- ) Docket No. C-07-724
) Decision No. CR1822
Centers for Medicare & Medicaid )
Services. )
)
DECISION

Petitioner, Progressive Home Care Services, Inc. (Petitioner or Progressive), is a home
ealth agency (HHA) based in Livonia, Michigan, that, until its August 2007 termination,
was certified to participate in the Medicare program as a provider of services. Following
surveys completed October 6, 2006, March 2, 2007, and August 17, 2007, the Centers for
Medicare & Medicaid Services (CMS) terminated Progressive’s Medicare participation
ecause, according to CMS, the HHA failed to maintain substantial compliance with
conditions of participation, specifically, 42 C.F.R. § 484.30 (Skilled Nursing Services).
Petitioner here challenges its termination.

na letter dated March 12, 2008, Petitioner confirmed that it waived its right to an in-
person hearing and asked that the matter be resolved based on the written record.

For the reasons set forth below, I find that Progressive was not in substantial compliance
with all Medicare conditions of participation. Although afforded ample opportunity to
correct its deficiencies, it had not achieved or maintained substantial compliance by the
time of the August 2007 survey. CMS was therefore authorized to terminate
Progressive’s Medicare provider agreement.

I. Background
An HHA is a public agency or private organization that provides skilled nursing and other

ealth care services to patients in their homes. Social Security Act (Act), § 1861(0). It
may participate in the Medicare program as a provider of services if it meets the statutory

2

definition and complies with certain requirements, called Conditions of Participation.

Act, §§ 1861(0), 1891; 42 C.F.R. Part 484; 42 C.F.R. § 488.3. On the other hand, CMS,
acting on behalf of the Secretary of Health and Human Services, may terminate a provider
agreement based on failure to comply with provisions of section 1861. Act, § 1866(b)(2).

A “condition of participation” represents a broad category of home health services. Each
condition is contained in a single regulation, which is divided into subparts called
standards. 42 C.F.R. Part 484. Compliance with a condition of participation is
determined by the manner and degree to which the provider satisfies the standards within
the condition. 42 C.F.R. § 488.26(b). If deficiencies are of such character as to
“substantially limit the provider’s ... capacity to furnish adequate care or which
adversely affect the health and safety of patients,” the provider is not in compliance with
conditions of participation. 42 C.F.R. § 488.24(

CMS must determine whether a Medicare provider (including an HHA) complies
substantially with Medicare’s statutory and regulatory requirements. Act, § 1866(b)(2).
To monitor compliance, CMS contracts with state agencies that conduct periodic surveys.
Act, § 1864(a); 42 C.F.R. § 488.20. The regulations generally require that each provider
be surveyed once every twelve months, and more often, if necessary, to ensure that
identified deficiencies are corrected. Act, § 1819(g)(2)(A); 42 C.F.R. § 488.20. In lieu of
an annual state survey, however, an HHA may be “deemed” to meet Medicare
requirements based on its accreditation by an approved national accreditation program.
42 C.F.R. § 488.6. A “deemed” HHA is subject to a validation survey, conducted by the
state survey agency, either as part of a representative sample (to validate the integrity of
the accreditation process), or in response to substantial allegations of noncompliance. 42
C.F.R. § 488.7.

Petitioner here was deemed to be Medicare-compliant based on its accreditation by the
Joint Commission on the Accreditation of Healthcare Organizations (JCAHO).
Responding to a complaint, the Michigan Department of Health (State Agency)
completed a validation survey on October 6, 2006. Based on the survey findings, CMS
determined that Progressive was not in substantial compliance with two conditions: 42
C.F.R. § 484.10 (Patient Rights) and 42 C.F.R. § 484.30 (Skilled Nursing Services).

As a result, Progressive lost its deemed status, and was subject to survey by the State
Agency. CMS Ex. 1; P. Ex. 1. Loss of deemed status is not a reviewable determination.
42 C.F.R. § 498.3(d)(9).!

' T consider irrelevant Petitioner’s charge that a disgruntled former employee
lodged the complaint that ultimately led to the loss of Progressive’s deemed status.
Petitioner’s Pre-hearing Brief (P. Br.) at 3. A “deemed” HHA is subject to a validation
survey at any time, and the State Agency’s reasons for conducting that survey are not
subject to review.
3

Months later — on March 2, 2007 — the State Agency surveyed Progressive, and, based on
those survey findings, CMS determined that Progressive had not achieved substantial
compliance. Ina letter dated June 20, 2007, CMS warned that it would terminate
Progressive’s Medicare provider agreement on August 3, 2007. However, if Progressive
submitted a credible allegation that it had achieved compliance, CMS would authorize a
resurvey. CMS Ex. 3; P. Ex. 3. Petitioner has not appealed the March survey findings.
Instead, alleging that it corrected its deficiencies, it asked for a resurvey. CMS Exs. 4, 5;
P. Exs. 4, 5.

After completing a revisit survey on August 17, 2007, State Agency surveyors determined
that Progressive had not brought itself into substantial compliance, finding one condition-
level deficiency, 42 C.F.R. § 484.30 (Skilled Nursing Services), as well as multiple
standard-level deficiencies. CMS Ex. 8; P. Ex. 8.

In a notice letter dated August 29, 2007, CMS advised Progressive that its follow-up
survey showed that it was not in substantial compliance with the Skilled Nursing Services
Condition, so its provider agreement terminated on August 3, 2007. CMS included with
the letter a copy of the survey report form (CMS-2567), which contains a list of all the
deficiencies cited. The letter reminded Petitioner that its appeal rights had been explained
in the June 20, 2007 letter. CMS Ex. 9; P. Ex. 7.

By letter dated September 7, 2007, Petitioner appealed its termination, and the matter has
been assigned to me.

The parties agree that this matter may be decided based on the written submissions,
without an in-person hearing. Order (March 13, 2008); Petitioner’s Correspondence
(March 12, 2008). CMS has submitted 23 exhibits (CMS Exs. 1-23), and Petitioner has
submitted 29 exhibits (P. Exs. 1-29), which I have admitted into evidence. Order (March
13, 2008).

II. Issue

The sole issue before me is whether, based on the August 17, 2007 survey findings, CMS
was authorized to terminate Petitioner’s Medicare provider agreement.

> With its closing brief Petitioner proffered two additional exhibits, but did not
show good cause for their untimely submission, as required by my prehearing order.
Order § 3 (October 5, 2007). I therefore decline to admit them.
III. Discussion

Because Progressive failed to maintain substantial compliance with all
Medicare Conditions of Participation, CMS may terminate its program
participation.

The regulations require that an HHA furnish skilled nursing services by or under the
supervision of a registered nurse (RN) and in accordance with a patient’s plan of care. 42
C.F.R. § 484.30.

Unless a patient’s needs are limited to rehabilitation therapy, an RN must initially assess
the patient to determine his/her immediate care and support needs. 42 C.F.R.

§ 484.55(a).* Within five days of the patient’s start-of-care date, the nurse must complete
a patient-specific comprehensive assessment that accurately reflects the patient’s health
status and can be used to demonstrate the patient’s progress toward achieving desired
outcomes. This assessment must incorporate Outcome and Assessment Information Set
(OASIS) items. 42 C.F.R. § 484.55(b)(1).° Based on the comprehensive assessment, the
HHA develops a plan of care.

The assessment and care plan are “the most important parts of the home care clinical
record.” All other information flows from the needs identified in the assessment and the
services ordered in the care plan. The documents “must be complete”; their content
“must be clear.” They can have no gaps. Marrelli, T.M., Handbook of Home Health
Standards & Documentation Guidelines for Reimbursement, 4" ed., Box 2-2 (CMS Ex.
23, at 7); see CMS Ex. 13, at 2 (English Decl. ¥ 7). Progressive uses an 18-page
assessment form that incorporates the required data, and, according to Progressive’s
policy: “All assessment database fields must be completed/answered.” CMS Ex. 22, at
51; see, e.g., P. Exs. 15-24.

Petitioner’s witnesses — Toms Mathew, PT (physical therapist and Progressive’s president
and sometime administrator), Janett Mitchell, RN (Director of Clinical Services), and
Zinius Joseph, RN (Quality Assurance Nurse) — agree that the Marrelli handbook is a
“helpful reference tool,” but each claims that “neither federal nor state regulations

* | make this one finding of fact/conclusion of law.

+ If the patient’s needs are limited to rehabilitation therapy services, an appropriate
rehabilitation professional may conduct the initial assessment visit. 42 C.F.R.
§ 484.55(a)(2).

* Use of the CMS-developed OASIS allows for the electronic collection and
transmission of data. See 42 C.F.R. § 484.20; 64 Fed. Reg. 3748 et seq. (January 25,
1999).
5

mandate that home health care services be documented according to this specific
handbook.” P. Ex. 26, at 2 (Mathew Decl. 5); P. Ex. 27, at 2 (Mitchell Decl. 4 5); P. Ex.
28, at 2 (Joseph Decl. § 5). Of course, the importance of the assessment and care plan are
reflected in the regulations themselves. 42 C.F.R. §§ 484.18, 484.30, 484.55. With
respect to documentation, Progressive’s own policies mandate that it be complete and
accurate. See, e.g., CMS Ex. 22, at 51; P. Ex. 25, at 22, 23, 25, 31-32, 36 (“Skilled care
rendered shall be documented on the Nursing Note for each visit provided” and “shall be
documented on the Nursing Note during or immediately following each patient visit.”); P.
Ex. 25, at 38, 41, 43, 51 (“OASIS/Admission paperwork must be completed and accurate.
..”). CMS may reasonably rely on the provider’s policies as “evidence of the standard of
care the facility expect[s] its staff to provide” as well as evidence of the professional
standards of care. The Laurels at Forest Glen, DAB No. 2182, at 18 (2008); Oxford
Manor, DAB No. 2167, at 5-6 (2008); see also, 42 C.F.R. § 484.48 (maintain clinical
records “in accordance with accepted professional standards ....”). And even though
Petitioner’s witnesses seem to minimize the importance of documentation with respect to
the specific inadequacies of Progressive’s own practices, they at least tacitly recognize its
importance: “Progressive strives to ensure that its nurses appropriately document the
services rendered; in fact Progressive educates the nursing staff regarding appropriate
documentation at the time of hire.” P. Ex. 26, at 2 (Mathew Decl. § 6); P. Ex. 27, at 2
(Mitchell Decl. ¥ 6); P. Ex. 28, at 2 (Joseph Decl. § 6).

The RN must also regularly re-evaluate the patient’s nursing needs. Those services that
require substantial and specialized nursing skill must be provided by the RN. The RN
must initiate “appropriate preventive and rehabilitative nursing procedures;” (s)he is also
responsible for coordinating services and for informing the physician and other personnel

of changes in the patient’s condition and nee

March Survey

Progressive apparently has had long-standing
for skilled nursing services. During the Marc

s. 42 CER. § 484.30(a).

difficulties complying with requirements
2007 survey, surveyors found that staff

failed to ensure that nursing services were furnished in accordance with patients’ plans of

care. Among other problems, nurses failed to
failed to notify physicians when vital signs fe

record patients’ vital signs as required; they
1 outside the parameters designated in their

care plans; an RN did not always re-evaluate a patient’s nursing needs as required.
Progressive was not visiting patients as frequently as called for in their care plans nor

notifying physicians of missed visits. In its p

an of correction, Progressive agreed that

“clinicians must follow the care plan as set forth,” and that “vitals must be checked on
each visit, even if the patient’s care giver and/or assisted living facility staff are also
monitoring the patient’s vital signs.” It promised that “physicians will be notified
immediately of vital signs that are outside of normal parameters for that patient as
reflected on their care plan.” Further, it promised that any missed visits would be
documented and the referring physician notified. CMS Ex. 5, at 36-38, 45.
August Survey

But Progressive did not successfully implement these corrections. As the following
discussion shows, by the August survey, HHA staff were still not following care plans;
they were not consistently monitoring vital signs as called for in the care plans; they were
not notifying physicians of aberrant findings; they were not making the ordered number
of visits; they were not consistently notifying the referring physicians of missed visits.
And nurses still failed to re-evaluate patient needs as required. Among their specific
findings:

Patient 2 began receiving care from Progressive on July 16, 2007, following surgery to
remove plaque from his carotid artery. He was also diagnosed with non-insulin
dependent diabetes mellitus. CMS Ex. 16, at 1, 11, 16; P. Ex. 16, at 1, 11, 24, 25.
Among other treatments, his care plan called for blood glucose monitoring as needed, RN
monitoring for signs and symptoms of hypo/hyperglycemia, as well as wound care for his
surgical site. The plan instructs staff to notify Patient 2’s physician of blood sugar
readings lower than 70 mg/dl or greater than 160 mg/dl. CMS Ex. 16, at 1, 11; P. Ex. 16,
at 11.

Failure to monitor blood glucose levels. Notwithstanding the physician order for blood
glucose monitoring, at the time of Patient 2’s initial comprehensive assessment, the RN
failed to record his glucose levels. Indeed, the HHA was apparently not even capable of
measuring his blood glucose because neither the agency nurse nor the patient possessed a
glucometer (the medical device used to determine the concentration of glucose in the
lood). So, rather than recording a baseline blood glucose level, the RN wrote that
Patient 2 “needs glucometer.” CMS Ex. 16, at 28; P. Ex. 16, at 28.

Nor did the registered nurse record Patient 2’s glucose levels at the time of his first
regular skilled nursing visit on July 19, 2007. In the space for recording blood sugar
(under vital signs), she simply wrote “awaiting glucometer.” CMS Ex. 16, at 22; P. Ex.
6, at 22.

On July 27, the HHA finally recorded Patient 2’s blood glucose reading, which, as the RN
noted, was an elevated 181. CMS Ex. 16, at 20; P. Ex. 16, at 20.° The parties quibble
about whether the nurse measured Patient 2’s blood glucose with an agency glucometer
or with the patient’s own. CMS points to the nursing record, which says that the patient
had a physician’s order for a glucometer, and, in response to the “progress to goals,” she
writes that he “will get glucometer,” and that she offered suggestions regarding the types

® The report does not reflect physician notification, even though 181 is outside the
acceptable parameters for this resident. CMS Ex. 16, at 11, 20; P. Ex. 16, at 11, 20
(“Notify physician for vital signs outside ... BS 70 — 160 mg/dl.”). CMS, however, has
not relied on this apparent omission, and neither do I.
7

available. CMS Ex. 16, at 20; P. Ex. 16, at 20. Petitioner, on the other hand, flatly denies
issuing glucometers to its nurses, and cites a note indicating that the patient received his
glucometer on July 24. I consider this dispute of little consequence. More important is
the undisputable fact that the HHA was, for the first 8 to 11 days of providing care,
incapable of measuring the blood glucose level of this diabetic patient, which means that
it lacked the capacity to furnish adequate care to Patient 2. See 42 C.F.R. § 488.24(b).

Petitioner points out that the regulations do not explicitly require that the HHA issue
glucometers to its nurses. While the regulations may not explicitly require the issuance of
glucometers — or any other medical device — if, as here, a patient’s care plan calls for
monitoring blood sugar levels, the HHA must have the capacity to do so.’ Here,
Progressive admits that it did not, and that it did not take even a baseline measurement
until the patient’s third visit from an RN, 11 days after his care started.

Petitioner offers a number of justifications for its failure to measure Patient 2’s blood
glucose levels. First, while conceding that Patient 2’s diabetes is “relevant,” Petitioner
nevertheless points out that diabetes was not the primary reason for his receiving home
ealth services, apparently suggesting some lesser standard of care for secondary
diagnoses. The Departmental Appeals Board recently rejected such reasoning, finding it
“not reasonable” to focus on the nursing home resident’s recent injuries, which
necessitated his placement, “to the exclusion of addressing [his] diabetes, his .. .
ypoglycemia, and the consequent need to monitor [his] blood sugar levels... .” The
Laurels, DAB No. 2182, at 17.

Petitioner also argues that, unless the patient presented a specific indication of “need,” the
HHA was not required to monitor blood sugar levels, since the care plan required blood
glucose monitoring PRN (as needed). Neither the care plan nor Petitioner suggests what
indication would trigger taking a blood glucose level, nor how, without a glucometer, the
HHA proposed to measure blood glucose if the patient presented with significant
symptoms of abnormal blood glucose levels.

Ata minimum, the HHA is charged with measuring a diabetic patient’s blood glucose
levels as part of his assessment. The OASIS form calls for it, and I do not consider an
adequate response the question mark that the RN filled in here. P. Ex. 16, at 28; see CMS
Ex. 22, at 51 (“All assessment data base fields must be completed/answered.”). Further,
as Surveyor Mariole English explains, a diabetic patient’s blood glucose level must be
checked and recorded during the comprehensive assessment to establish monitoring
parameters in the patient care plan. CMS Ex. 13, at 4 (English Decl. 4 14).

7 Nor do the regulations specifically mandate that the HHA provide thermometers
or watches with second hands, but lacking such equipment does not excuse HHA nurses
from taking temperatures or pulse rates called for in patient care plans.
8

I note also the significant risk a provider takes if it limits blood glucose testing to
situations where the patient presents with significant symptoms of hyper or
hypoglycemia. See, e.g., The Laurels, DAB No. 2182, at 27 (“Some people have no
symptoms of hypoglycemia . . . and may lose consciousness without ever knowing their
blood sugar levels were dropping.”) Indeed, when finally measured on July 27, Patient
2’s blood sugar was elevated, even though the nursing record does not describe any
particular symptoms or complaints related to abnormal blood sugar levels. P. Ex. 16, at
20.

Citing 42 C.F.R. § 484.18(b), Petitioner next argues that, by notifying his physician that
Patient 2 needed a glucometer, it effectively and acceptably altered the care plan. 42
C.F.R. § 484.18(b) requires the attending physician and HHA personnel to review the
care plan at least every 60 days and more often if necessary; the HHA’s professional staff
must also “promptly alert” the physician of any changes that suggest a need to alter the
care plan. This is a far cry from the HHA’s retroactively declaring a care plan “altered”
after the provider staff have failed to follow it.

Moreover, asking the physician to order a glucometer for Patient 2 is not the same as
telling him that the HHA cannot and will not measure the patient’s blood glucose.
Measuring blood glucose levels is such a basic and routine part of caring for a patient
with diabetes that it seems unfathomable that a health care professional treating a patient
with diabetes would not be capable of doing it, whether or not the patient had his own
glucometer. In the absence of evidence that the physician explicitly determined that
blood glucose levels not be monitored, I find it unreasonable to infer that he changed the
care plan in this regard. Certainly, nothing in the record suggests that any health
professional intended to alter Patient 2’s care plan to eliminate blood glucose testing. In
fact, the opposite is true. As reflected in their reports, HHA staff recognized that they
were supposed to be recording glucose levels among Patient 2’s vital signs. CMS Ex. 16,
at 28; P. Ex. 16, at 28. Indeed, in her July 19 report, the RN not only records the need for
a glucometer, under “Plan for Next Visit,” she writes “[vital signs] glucose monitor.”
CMS Ex. 16, at 22.

Deficiencies regarding wound care. CMS also cites deficiencies with respect to Patient
2’s wound care.

Patient 2’s care plan called for “wound care: surgical site right neck, teach wound
dressing, cleanse with NSS (saline) and apply 4X4 dressing, secure with tape daily until
healed.” CMS Ex. 16, at 11. During the assessment, the RN apparently showed Patient
2’s wife how to provide wound care, checking “yes” to “satisfactory return demo.” CMS
Ex. 16, at 31. Of course, this did not mean that Patient 2’s wife was proficient in wound
care, hence the transfer order directed staff to assess the wife’s dressing change and the
care plan directed them to “teach wound dressing.” CMS Ex. 16, at 23, 11.

9

No documentation suggests that, during the July 19 visit, the RN either assessed the
wife’s dressing change or taught wound dressing. CMS Ex. 16, at 22. Petitioner,
however, points to an entry in the nursing visit record indicating no signs or symptoms of
infection. P. Ex. 16, at 22. But skilled observation of the wound was a requirement
separate from the requirements of assessing the dressing change and teaching wound care.
It seems that the nurse followed some of the care plan’s instructions, but not others. The
RN was required to follow them all.

Petitioner then characterizes the absence of wound care/education documentation as “an
isolated, and non-recurring event.” P. Pre-hearing Brief at 17. But where, as here, the
record is replete with examples of staff failure to provide services in accordance with
patients’ care plans, the deficiencies are no longer “isolated” and “non-recurring,” but
instead evidence a systemic failure that justifies termination.

Patient 8 began care with Progressive on July 13, 2007. He was an 86-year-old man
suffering from congestive heart failure (CHF), venous embolism and thrombosis, as well
as dementia and other maladies. Among other orders, his care plan called for skilled
observation of his cardiovascular status and evaluation of his cardiopulmonary status,
with the goal of stabilizing his cardiovascular pulmonary condition by September 13,
2007. CMS Ex. 21, at 9, 20; P. Ex. 22, at 9, 20.

According to Surveyors English and Theresa Jacobs, evaluating cardiopulmonary status
necessarily includes monitoring edema and the patient’s weight. CMS Ex. 12, at9
(Jacobs Decl. § 33); CMS Ex. 13, at 8 (English Decl. | 33) (Monitoring weight and
measuring edema “are completely basic . . . necessary to accurately evaluate
cardiopulmonary status for a CHF patient.”). For a CHF patient, a weight gain of 2
pounds within 24 hours or 5 pounds in a week could indicate cardiac failure. CMS Ex.
12, at 9 (Jacobs Decl. § 35).

Petitioner claims that Patient 8 weighed 165 pounds at the time of his initial assessment,
and maintained that weight. But the record does not indicate that HHA staff ever
weighed Patient 8. At the time of his assessment, the nurse recorded his “reported”
weight at 165, but she did not actually weigh him. P. Ex. 22, at 28. Petitioner offers no
support for its claim that Patient 8 weighed 165 pounds at the time of his discharge.

For a patient with deep vein thrombosis, measuring lower extremity edema is also
standard. CMS Ex. 13, at 8-9 (English Decl. | 33). Nurses measure edema by one of two
methods: by using a tape measure to measure the affected area (e.g., in monitoring the
lower extremity, the nurse would measure the ankle, calf, and arch of the foot), or by
pressing down on the swollen area to see the amount of indentation (pitting) that results,
and expressing that pitting on a numerical scale that goes up to a maximum of “4+,”
which reflects severe edema. According to CMS, both measures should be taken in
monitoring edema. CMS Ex. 12, at 8 (Jacobs Decl. 4 31).
10

Yet, even though the nurse consistently — on July 17, 20, 24, 27, and August 3, 2007 —
observed lower extremity edema in Patient 8, she did not consistently measure his
extremities; she did not weigh him at all. CMS Ex. 21, at 18, 19.

Further, Patient 8 had a deep vein thrombosis in his left leg. CMS Ex. 21, at 20,22. He
initially had edema in his lower left leg, but his right leg was not affected. CMS Ex. 21,
at 28. On July 17 and 20, the nurses reported edema in his left leg. CMS Ex. 21, at 18,
9. For the first time, on July 27, the nurse reported bilateral edema. CMS Ex. 21, at 16.
On August 3, the nurse again reported that Patient 8 had edema in both legs. CMS Ex.
21, at 15. Yet nothing suggests that the nurse notified Patient 8’s attending physician of
edema in the previously unaffected leg.

Patient 8’s care plan also called for recording his vital signs, including his temperature to
insure that it fell within set parameters of 95.8 to 101 degrees Fahrenheit. CMS Ex. 21, at
9; P. Ex. 22, at 9. Yet, during patient visits on July 17, July 24, and August 3, 2007,
Patient 8’s temperature was not recorded. CMS Ex. 21, at 15, 17, 19; P. Ex. 22, at 15, 17,
9.

Patient 3 was a sixty-five-year-old man, suffering from Type II diabetes, who began care
with Progressive on July 6, 2007. CMS Ex. 17, at 22.

Patient 3’s assessment is incomplete. Although it indicates previous hospitalizations, it
does not include the reasons for those hospitalizations. CMS Ex. 17, at 44. Nor did the
nurse report his weight. CMS Ex. 17, at 49.

His care plan calls for skilled observation of his vital signs, and requires physician
notification of vital signs outside certain parameters, including blood sugar levels lower
than 60 or higher than 200 mg/dl. CMS Ex. 17, at 22; P. Ex. 17, at 22. But the July 20
nursing visit record shows that his blood sugar then measured 306 mg/dl, without any
indication that the physician was notified. Spaces on the record form for designation of
the date, time, and content of physician notification are left blank. CMS Ex. 17, at 33; P.
Ex. 17, at 33. On July 27, Patient 3’s blood sugar levels are recorded as 123, 114, and
213, which the RN characterized as “unstable.” Again, nothing on the form suggests that
the nurse notified the physician of the high (213) reading; the physician notification
spaces are left blank. CMS Ex. 17, at 32; P. Ex. 17, at 32.

Also the care plan called for physician notification of a pulse rate above 100 or below 60.
CMS Ex. 17, at 22; P. Ex. 17, at 22. On July 20, Patient 3’s pulse rate was 108, but the
physician contact information is left blank. CMS Ex. 17, at 33; P. Ex. 17, at 33.

With regard to the aberrant vital signs from the July 20 visit, Petitioner seems to
acknowledge the absence of any nurse’s note, but points to notes generated by the nursing
supervisor who purportedly spoke to the nurse. A note dated July 21 says that the RN
11

“stated she had indeed notified the physician regarding the [patient’s blood glucose level
and pulse].” P. Ex. 17, at 19. In a second note, dated July 23, the nursing supervisor
again says that the nurse “indicated that she had indeed notified physician regarding the
blood sugar,” and that the physician was “aware of pulse... .” P. Ex. 17, at 18. The
notes are silent as to the date, time, and specific content of the physician notification.

I do not find this evidence particularly reliable and it is certainly not an acceptable
practice to report, second or third-hand, a nurse’s consultation with the physician. The
nurse herself is charged with documenting her own consultations. As explained by
Surveyor English:

It is the standard of care to document physician notification
when it happens. Also it is not proper to document care
provided by someone else. Rather, the nurse who visited the
patient and said she consulted with the physician would be
responsible for making a late entry in the clinical record.

CMS Ex. 13, at 5-6 (English Decl. § 20); accord, CMS Ex. 23, at 5. Progressive’s
policies also require that “all documentation is to be completed on the day the service is
rendered... .” CMS Ex. 22, at 36.

No evidence suggests that the physician was advised of the unstable blood sugar levels
found on July 27.

Patient 4 was a 68-year-old man suffering from Type II diabetes, chronic renal failure,
and multiple other problems. He had muscle weakness and an abnormal gait. He started
care with Progressive on July 5, 2007. His care plan called for a variety of interventions,
including skilled observation, teaching diabetic care, teaching compliance with
medication and diet, and therapeutic exercises. CMS Ex. 18, at 6.

Inadequate assessment/care plan. Patient 4 was taking insulin (Humulin); his caregiver
reported that his blood sugar ranged from 32 to 270. CMS Ex. 18, at 41. Yet, the RN
who conducted his initial assessment apparently did not take a baseline blood glucose
level. And, although she suggested parameters for physician notification with respect to
other vital signs that were incorporated into the care plan, she did not include suggested
parameters for blood glucose levels, and the plan contains none. CMS Ex. 18, at 6, 52.

According to his initial assessment, Patient 4’s medications included Ambien, a sedative
used to treat insomnia, as needed. The assessment notes that the Ambien causes him
nightmares and confusion at times. CMS Ex. 18, at 51,52. Yet, the Ambien is not listed
12

among his medications on Patient 4’s care plan.*

Not making required visits. Patient 4’s care plan says this about frequency and duration
of visits: 1WK1, 1-3WK8 + 3 PRN visits. CMS Ex. 18, at 6. According to CMS, this
means that Patient 4 was to receive one visit the first week (in addition to the assessment
visit), followed by 3 visits per week, reducible to | if medically indicated and justified.
The HHA could also provide up to 3 additional visits as needed “for metabolic
instability.” CMS Ex. 18, at 6.

The parties dispute the significance of these instructions. According to Surveyor English,

When the plan of care has a range (rather than a fixed
number) for the visit frequency, it is understood that the
patient is to start at the top of the range, and if the frequency
is adjusted downward within the range, there is to be
documentation as to why. Normally it is expected an HHA
patient’s need for visits will go down. If frequency is
adjusted back up, that would indicate a worsening of the
patient’s condition that should be reported to the physician.

CMS Ex. 13, at 6 (English Decl. § 23).

Similarly, Surveyor Jacobs testified that “[t]he HHA is not simply free to give any
amount of weekly visits within the range without a medical justification. The frequency
should be based on the needs of the patients, not staffing issues.” CMS Ex. 12, at 5
(Jacobs Decl. ¥ 16).

According to Progressive’s Transfer of Responsibility form, Patient 4 was to receive
visits 2 to 3 times a week for 8 weeks, which seems to buttress the surveyor explanation
of the care plan. CMS Ex. 18, at 19.

Petitioner’s witnesses agree that “1 wk 1, 1-3 wk 8” means that “the physician determined
that anywhere in the range from one visit to three visits would be appropriate for the eight
weeks following the initial week of care,” but they claim “there is no requirement” that a
nurse “must provide one visit on the first week and then three visits for the next eight
weeks (unless there is documentation of why fewer visits were performed).” P. Ex. 26, at
3 (Mathew Decl. § 12); P. Ex. 27, at 3 (Mitchell Decl. § 13); P. Ex. 28, at 3 (Joseph Decl.
4 12). This opinion is inconsistent with instructions given at Progressive’s June 20, 2007
staff meeting (and subsequently supplied to CMS). When a care plan called for “ranging
visits” staff were then instructed to “begin high and gradually decrease frequency

* CMS also says that the care plan also omits mention of the anti-anxiety drug,
Xanax, but, in fact, the care plan lists it as “Alprazolam (Xanax).” CMS Ex. 18, at 6.
13

according to patient[’]s needs,” which is consistent with the surveyors’ testimony. CMS
Ex. 5, at 84.

Moreover, Petitioner’s witnesses leave unanswered the question of who decides whether
to provide one, two, or three visits in a given week, and how that decision is reached. I
do not believe that HHA staff are simply free to make that call for reasons independent of
the patient needs. More reasonable is the view that the physician has afforded the HHA
the flexibility to make the determination based on the patient’s needs. But this means that
HHA staff should make a conscious and reasoned decision as to the appropriate number
of visits within the ordered range. Petitioner offers no evidence that any such decision
was made here.

Even if I accepted that the HHA was required only to visit once a week (which I do not),
the HHA plainly failed to make the ordered visits and failed to notify Patient 4’s
attending physician that it was not making the visits. In the first week, the nurse visited
Patient 4 three times, on July 10, July 12, and July 13. CMS Ex. 18, at 22-27. The nurse
next visited on July 18, reporting that the patient had fallen, suffering a head scratch and
ruising. He had a headache and left leg edema. CMS Ex. 18, at 21. A nurse did not
visit again until more than two weeks later, on August 4, 2007. CMS Ex. 18, at 20.

The record contains little explanation for the gap between visits. It appears that, on the
morning of July 27 (more than a week after his last visit), the nurse called, attempting to
schedule a visit that same day, but the patient was not available, and an appointment was
scheduled for the following week, presumably, August 4. CMS Ex. 18, at 18. I do not
consider acceptable practice the HHA’s waiting until the last possible minute before
attempting to schedule a same-day visit.

The failure to visit is particularly troublesome considering Patient 4’s recent fall and head
injury.

Failure to notify the attending physician. Obviously, the HHA’s failure to visit for 17
days violated Patient 4’s care plan. According to Progressive’s policies, the physician
must be notified whenever ordered visits are not provided. The HHA should either obtain
a verbal order for missed visits or incorporate into the patient’s medical record
documentation of the physician notification. If the requisite visits are not made because
the client, family, or caregiver cancels, the HHA must notify the physician and document
in the medical record that the physician is aware of the change. CMS Ex. 22, at 31-32
(Progressive Policy # C-480), 51.

While it appears that the physical therapist communicated with the physician, no evidence
shows that anyone advised him of the missed nursing visits.
14

CMS cites other instances of HHA staff’s failure to notify the physician as necessary. At
the August 4 visit, the nurse reported that Patient 4 was in significant pain — marked 5 on
a 0-to-10 scale — because of an inguinal hernia. CMS Ex. 18, at 20. During the prior
visit, he had a headache (pain level of 2) but nothing suggests that he then complained of
hernia pain. CMS Ex. 18, at 21. According to CMS, the August 4 pain findings should
have sparked physician notification, so the physician could have considered additional
pain relief measures. CMS Ex. 12, at 5 (Jacobs Decl. 4 19). The HHA’s policies afford
patients “the right to management of their pain.” CMS Ex. 22, at 27 (Policy # C-380).
Pain is to be assessed on every home visit and documented on a pain or symptom flow
sheet, and staff determine whether a referral is necessary. CMS Ex. 22, at 43-44 (Policy #
C-980).

According to Petitioner, Patient 4 had that level of pain from his hernia at the time of his
assessment so this did not represent a change that would trigger physician notification. P.
Ex. 18, at 41. But, as CMS points out, he had been pain free on July 10, 12, and 13.
CMS Ex. 18, at 23, 25,27. On July 18, his pain was from a headache, not his hernia, and
registered at a relatively low level 2. CMS Ex. 18, at 21. Unfortunately, nurses did not
visit him again until August 4, so we do not know his pain levels — if any — for the
intervening weeks, but it appears that his previously well-controlled hernia pain was no
longer under control. This is a change that merited consultation with his physician.

At the next visit, almost a week later, on August 10, 2007, the nurse notes pain from
Patient 4’s inguinal hernia, but does not document the pain level nor the effectiveness of
pain management, if any. CMS Ex. 18, at 17.

On August 10, Patient 4 also had edema to both legs and a low blood sugar level (65).
(Normal 70-110). CMS Ex. 12, at 6 (Jacobs Decl. § 21). Nothing suggests that the
physician was notified about any of these problems. The space for indicating physician
contact was left blank.

Failure to re-assess. Also troublesome is the absence of evidence that an RN re-evaluated
Patient 4 following his fall and resulting head injury. Progressive dismisses this as
inconsequential since Patient 4 had been identified as at risk for falls. But there may be a
big difference between the patient who is merely “at risk” for falls and the patient who
has actually started to experience falls. Without a skilled reassessment, the HHA simply
cannot determine the significance of the change.

Finally, no RN re-evaluated when Patient 4 experienced increased hernia pain, nor when
he presented with edema and low blood sugar. The RN did not even measure his edema.

Patient 6 was a 93-year-old man suffering from chronic airway obstruction, asbestosis,
and lumbago. He had difficulty walking, generalized weakness, and hypertension. His
start of care date was July 5, 2007. A cardiac diet had been prescribed for him, but his
15

nutritional screen assessment indicates that he was non-compliant with the prescribed
diet. CMS Ex. 19, at 18. Among other instructions, his care plan directed the HHA staff
to teach him diet, home safety/falls prevention, and medication. CMS Ex. 19, at 12; P.
Ex. 20, at 40. According to CMS, none of the home visit records nor his discharge
summary show any teaching on these topics. CMS Ex. 19, at 42, 43, 47, 62.

Petitioner points to a nurse’s note that she instructed him “regarding ambulation, pacing
and endurance” on July 20, which arguably might address home safety/falls prevention
(P. Ex. 20, at 43), and on July 18, a note mentions “compliance with medication taking,”
which, though ambiguous, arguably suggest that she taught him compliance with taking
medication. P. Ex. 20, at 42. But nothing suggests that she provided education regarding
his diet. Petitioner points to changes in his diet, but that does not address the problem of
teaching him to be compliant.

The care plan also called for skilled evaluation of Patient 6’s cardiopulmonary status.
CMS Ex. 19, at 12. Yet, when the RN noted edema in both his ankles during a July 27
visit, the record shows no evaluation. No measurements were taken. Nor is there any
indication that the physician was contacted. CMS Ex. 19, at 62.

No nursing visits were documented after July 27, and Patient 6 was discharged on August
9 because he refused nursing visits. CMS Ex. 19, at 8. He did not, however, refuse
physical therapy visits. Therapy progress notes indicate PT visits on July 31 and August
3. CMS Ex. 19, at 31-34. It seems that no one inquired as to why he refused nursing, but
not PT visits. Nor does any documentation establish that, prior to the time of the
discharge, staff notified the physician of his refusals, notwithstanding Progressive’s
policy that “[i]f fewer visits are provided than ordered, the physician is to be

notified... .” CMS Ex. 22, at 31.

Patient 7 was an 89-year-old man who began his care with Progressive on July 17, 2007.
He suffered from prostate cancer, as well as congestive heart failure and dementia. He
had difficulty walking and retained urine. CMS Ex. 20, at 47; P. Ex. 21, at 35. His initial
assessment reflected bilateral edema in his lower extremities. “Hemodynamic
monitoring” was listed among the primary reasons for his receiving home health services.
CMS Ex. 20, at 19; P. Ex. 21, at 19.

His care plan called for “2WK1-3WK8 (may decrease as medically indicted and
discharge service as appropriate.).”” CMS Ex. 20, at 47. His care plan called for skilled
observation of his vital signs and his edema, evaluation of his cardiopulmonary status,
and nutrition/hydration/elimination, as well as monitoring for urinary retention. CMS Ex.
20, at 47.
16

But the HHA visited only once a week, July 20, July 26, August 2, August 9. No reason
for the decreased frequency is documented. CMS Ex. 20, at 7-10. I reject Petitioner’s
claim that the care plan required only one visit per week through eight weeks of care, an
argument even weaker here than it was with respect to Patient 4’s care plan. Here, on its
face, the plan calls for three visits per week starting the second week, unless “medically
indicated.” This plainly places the onus on the HHA to justify any decrease in the
number of visits.

On July 20, the visiting nurse measured the edema in Patient 7’s feet as “+4 bilaterally,”
reflecting severe edema. CMS Ex. 20, at 7. On July 26, however, his nursing visit record
does not reflect that the RN measured his edema, with the space for recording the result
left blank. CMS Ex. 20, at 8. On August 3, the nurse recorded “trace” edema. CMS Ex.
20, at 9. On August 9, the nurse recorded “hard legs.” CMS Ex. 20, at 10. According to
CMS, while “hard legs” is not considered standard terminology, it reflects severe swelling
that has stretched the skin very tight. CMS Ex. 12, at 8 (Jacobs Decl. § 31).

Nothing in Patient 7’s record suggests that the nurse notified Patient 7’s physician of his
severe edema. Petitioner dismisses this as inconsequential because Patient 7 had edema
at the time of his assessment, so edema did not constitute a change in condition. CMS
Ex. 20, at 24. But Patient 7’s physician was plainly concerned about his edema, and
specifically ordered the visits for hemodynamic (blood circulation) monitoring, which
includes monitoring for edema. The edema seemed to improve, but then went from
“trace” to “hard legs” — a level arguably even beyond the +4 previously reported. This
represents a significant change which merits a physician consultation.

It was also critically important the patient be weighed since, as noted above, a weight
gain of as little as 2 pounds in a patient suffering from CHF could indicate cardiac failure.
CMS Ex. 12, at 9 (Jacobs Decl. { 35). I see no record of Patient 7’s weight.

IV. Conclusion

Review of these patient records thus establishes the HHA’s ongoing failure to provide the
level of skilled nursing services called for in the regulations. The problems were
widespread, evidencing systemic problems. | find that the these deficiencies limited
Progressive’s capacity to furnish adequate care. Petitioner was therefore not in
17

substantial compliance with the skilled nursing services condition of participation, 42
C.F.R. § 484.30.° CMS is therefore authorized to terminate its provider agreement.

/s/
Carolyn Cozad Hughes
Administrative Law Judge

° While I agree that Progressive’s uncorrected standard-level deficiencies may
also justify termination, the HHA is ordinarily given 60 days from the date of notice in
which to correct standard-level deficiencies. 42 C.F.R. § 488.28. Here, Petitioner claims
that it did not receive notice of the March survey findings until July. Although
Progressive certainly knew of its deficiencies following the October survey, whether the
results of a validation survey can trigger termination based on failure to correct standard-
level deficiencies is a question that I need not address.

Petitioner has also argued that termination should not be sustained because it was again
accredited by JCAHO based on a survey conducted in September 2007. Where, as here,
the provider has lost its deemed status, I am bound to review the results of the State
Agency survey upon which CMS relies, and not the JCAHO determination. 42 C.F.R.

§ 488.7. Moreover, I note that the Joint Commission apparently still found uncorrected
standard-level deficiencies, which would itself justify termination.