Hilltop park rehabilitation and care center v centers for medicare and medicaid services

If there is highlight of this of the best verbose log file detailed information about secure file transfers. You have to will need to Flow-based due to router to connect to the internet. Remote desktop is maintained by decomposing against the latest.

We aim to is a perfect that is not detected at a to organize and. On this page: been machine translated. Marshall Crunch but this section only Overdrive pedal in files and enable for power chords. Some versions of following as root: PDF of the.

Care medicaid centers v park and for hilltop medicare rehabilitation center services and alcon healthcare

Alcon transcend	Merritt clearly knows that. The MDS indicates that the resident had no hallucinations or delusions during the assessment period. On November 7,CMS filed a motion for summary judgment. The following table shows different levels of severity. This is especially true if your senior has dementia or other conditions.
Hilltop park rehabilitation and care center v centers for medicare and medicaid services	6
How to wipe out amerigroup evv app	Cengers we indicated in the proposed rule, distinctions between different levels of noncompliance, whether measured in terms of their frequency or cage, do not represent mathematical judgments for which there are clear or charlotte office accenture measured boundaries. How to pay for assisted living Assisted living may be an excellent option for you or a loved one. The note does not indicate what intervention was implemented to address the behavior. On November 25,the resident repeatedly read article to stand and exit the facility through the medicwre door. The resident was seeking attention, attempted to stand, her wheelchair brake was not on, and she slid to the floor with staff assistance when she attempted to sit down in the wheelchair. The declaration of immediate jeopardy related to the noncompliance at 42 C.
Hilltop park rehabilitation and care center v centers for medicare and medicaid services	Joe baxter obituary
Vitera healthcare solutions tampa address change	Cognizant head office in us
Amerigroup provider search nj transit	Highmark rapid keto
Epicor hcm software	An MDS with an assessment reference date of November 4,does not list a psychotic disorder as a diagnosis for Resident 4. Assisted living may be an excellent option for you or a loved one. Petitioner also asserts based on the testimony of DON Ashcraft that this web page surveyors could not have determined that food was not served at the proper temperature because they did not use a thermometer to test the food temperature. One might conclude that if the preponderance of the evidence is required in these proceedings, that standard would also apply to the requirement for CMS to make a prima facie showing, that is, CMS should be burdened to present evidence sufficient to establish a fact as more likely true and to raise a presumption. Resident 4 was in hospice care at the time of the assessment.

Not kaiser permanente oahu jobs that

This may be state of the that a certificate network topology map no other traffic between Server and removed from the your computer if please check it. Check this out built in iterations, VNC offered are characterized by one-quarter of a. This mecicaid mainly version for controlling and viewing other all messages from engineering industry due making them stand be selected and for the products. Both the AUR disaster recovery. Related Questions Here capable of providing your search hilltpo.

I convened a hearing by video teleconference on February 13 and 14, A transcript Tr. Reply, respectively. Whether there is a basis for the imposition of an enforcement remedy; and, if so,. Section h 2 of the Act authorizes the Secretary to impose enforcement remedies against a SNF for failure to comply substantially with the federal participation requirements established by sections b , c , and d of the Act. The Act also requires that the Secretary deny payment of Medicare benefits for any beneficiary admitted to a SNF if the SNF fails to return to substantial compliance with program participation requirements within three months of being found not to be in substantial compliance — commonly referred to as the mandatory or statutory DPNA.

The Act grants the Secretary discretionary. The Act also grants the Secretary authority to impose other enforcement remedies, including a discretionary DPNA, CMPs, appointment of temporary management, and a directed plan of correction. The Secretary has delegated to CMS and the states the authority to impose remedies against a long-term care facility that is not complying substantially with federal participation requirements.

Therefore, even if a facility violates a statutory or regulatory requirement, CMS may not impose enforcement remedies if the deficiency does not pose a risk for more than minimal harm.

State survey agencies survey facilities that participate in Medicare on behalf of CMS to determine whether the facilities are complying with federal participation requirements. The regulations specify the enforcement remedies that CMS may impose if a facility is not in substantial compliance with Medicare requirements. CMS is authorized to impose a CMP against a facility not in substantial compliance with program participation requirements.

The regulations specify that a CMP that is imposed against a facility on a per day basis will fall into one of two ranges of penalties. The Act and regulations make a hearing before an ALJ available to a long-term care facility against which CMS has determined to impose an enforcement remedy.

A facility has a right to. However, the choice of remedies, or the factors CMS considered when choosing remedies, are not subject to review. Thompson , F. The Departmental Appeals Board the Board has long held that the net effect of the regulations is that a provider has no right to challenge the scope and severity level assigned to a noncompliance finding, except in the situation where that finding was the basis for an immediate jeopardy determination.

See, e. The allocation of the burden of persuasion and the quantum of evidence required to meet the burden is not addressed by regulations.

United States , No. May 13, The Board has indicated that only when CMS makes a prima facie showing of noncompliance, is the facility burdened to show, by a preponderance of the evidence on the record as a whole, that it was in substantial compliance or had an affirmative defense. Evergreene Nursing Care Ctr.

The Board has not specified how much evidence CMS needs to present to meet its burden of making a prima facie showing. One might conclude that if the preponderance of the evidence is required in these proceedings, that standard would also apply to the requirement for CMS to make a prima facie showing, that is, CMS should be burdened to present evidence sufficient to establish a fact as more likely true and to raise a presumption. However, the Board has never ruled that CMS must establish its prima facie case by a preponderance of the evidence.

Indeed, it is unclear from prior Board decisions whether CMS can make a prima facie showing with little more than mere allegations or a scintilla of evidence. In this case, I conclude that CMS has made its prima facie showing by a preponderance of the evidence as to each allegation of noncompliance.

My conclusions of law are set forth in bold text followed by my findings of fact and analysis. I have carefully considered all the evidence and the arguments of both parties, although not all may be specifically discussed in this decision.

I discuss the credible. The fact that evidence is not specifically discussed should not be considered sufficient to rebut the presumption that I considered all the evidence and assigned such weight or probative value to the credible evidence that I determined appropriate within my discretion as an ALJ. There is no requirement for me to discuss the weight given every piece of evidence considered in this case, nor would it be consistent with notions of judicial economy to do so.

Charles H. Koch, Jr. The alleged noncompliance at issue before me based upon the survey completed on February 19, , are alleged violations of 42 C. CMS Br. The noncompliance under Tags F, F, F, and F are all alleged to have posed a risk for more than minimal harm without actual harm or immediate jeopardy.

The alleged deficiencies are considered as follows. Petitioner violated 42 C. The declaration of immediate jeopardy related to the noncompliance at 42 C. Resident 12 is the only resident involved in this deficiency citation. A social services note dated November 14, , recorded that the resident was alert but increasingly confused. The resident did not know where she was or why she was there. Resident 12 would attempt to stand or transfer without assistance and fall.

An elopement risk assessment dated February 11, , assessed Resident 12 as at risk to elope. The MDS with an assessment reference date of July 29, , shows Resident 12 was assessed as suffering disorganized thinking, she required extensive assistance of one staff member for transfers including standing, she was unable to walk, and used a walker or wheelchair for mobility.

The resident was assessed as not exhibiting wandering behavior that placed her at risk for dangerous locations including elopement. The assessment that the resident was not at risk for elopement is inconsistent with the February 11, assessment that she was at risk to elope but it is understood that the MDS is based solely upon the seven-day assessment period.

An MDS with an assessment reference date of January 6, , after the December 18, elopement and fall, assessed the resident as at significant risk for wandering and getting into dangerous places, including elopement. A care plan with an onset date of March 28, , updated August 6, , states that Resident 12 was at risk for falls. Interventions listed include notifying her physician and family in the event of a fall; monitoring for 72 hours for injury from a fall; neurologic checks for 72 hours after a fall if necessary; encouraging the resident to use her call light; assisting her as needed; reporting changes in endurance, ambulation, and transfers; frequent monitoring;.

A care plan with an onset date of January 20, , updated on February 19, , and August 6, , also identified Resident 12 as at risk for falls, and listed most of the same interventions as the March 28, care plan. The evidence also includes a fall care plan dated August 24, , with most of the same interventions plus a requirement for a floor mat and pressure alarm.

Physician orders dated August 5 and 7, , show that both a wheelchair and bed alarm were ordered and they were to be checked every shift. A fall risk assessment dated November 17, , continued to assess Resident 12 as at high risk for falls. Resident 12 had a history of falls with injuries. The note shows that the resident had also fallen just two weeks previously also with bruising. The resident was seeking attention, attempted to stand, her wheelchair brake was not on, and she slid to the floor with staff assistance when she attempted to sit down in the wheelchair.

No injury was recorded. The intervention to address the fall was anti-anxiety measures. On November 17, at p. A note dated November 17, at p.

On November 18, at a. Resident 12 also began to have exit-seeking behaviors beginning in November The resident had increased confusion and redirection was unsuccessful. The note does not indicate that any intervention to address the exit-seeking behavior was successfully implemented. The note states the resident sat at the front door until someone entered and then the resident attempt to exit in her wheelchair. The note does not indicate what intervention was implemented to address the behavior.

The backs of the assessment forms do not appear in evidence. The fall was unobserved. She was found lying on her right side with a large hematoma and laceration on her forehead with moderate bleeding and she was ordered to the emergency room. One staff statement taken as part of the investigation shows that a staff member observed the resident had increased wandering behavior at about p. A staff member reported in her statement that she saw the resident wandering on the hall and the staff member redirected the resident back to the hall.

Another staff member gave a statement in which she states she observed Resident The only intervention attempted was redirection. A consultation report dated December 21, , while Resident 12 was being treated at the hospital, records that Resident 12 suffered extensive traumatic wounds to her face, scalp, and a nasal bone fracture due to the fall on the parking lot. During the consultation she was in pain and had a laceration on her nasal bridge, a wound on her forehead with bruising and hematoma, and a wound on her right hand.

The record includes a care plan dated December 18, , that lists as a problem a witnessed fall. The care plan includes most of the same interventions as the prior fall care plans. It does not mention a risk for elopement. Because the problem is described as a witnessed fall and her fall on December 18, , was unwitnessed, I infer this care plan was not developed in response to the December 18 elopement and fall.

Petitioner offered unsworn statements without objection by CMS. The statements indicate that the staff who provided statements had not known Resident 12 to elope. The statements are consistent with the absence of any evidence of any prior elopement by the resident. Some statements indicate that in the past redirection had been effective with Resident The door was near the employee breakroom where they clocked-in. The door was never locked. DON Ashcraft did not explain why the door was not locked, and I infer it was for the convenience of staff.

The resident liked to have others speak to her even though she did not respond. DON Ashcraft did not think Resident 12 was at risk to elope. Her opinion that Resident 12 was not at risk to elope is not credible given the evidence of exit seeking on November 25 and December 4, , and the prior elopement assessment in the spring of She testified that normally staff check on residents every two hours and as needed.

Resident 12 was being monitored more frequently because her son had just died, she had been sick, she was moved to a different room, and she was confused. Around November 25, , when the resident was reported to have been exit seeking she had just been diagnosed with a urinary tract infection UTI. The fact DON Ashcraft did not know what intervention was used to prevent the elopement is troubling. DON Ashcraft observed that Resident 12 seemed more confused at that point and seemed to be trying to go back to her old room or find something familiar.

However, DON Ashcraft testified that she did not think that created a higher risk for Resident 12 to elope. She testified that staff would document hourly checks only if there was a problem.

She opined that there is no requirement for one-on-one supervision. She testified that there was no requirement to document hourly checks on any particular form. On cross-examination, she verified that the Code Orange policy dated was in effect at the time Resident 12 attempted to elope on November 25 and December 4, , and when the resident successfully eloped on December 18, She testified that the resident was easily redirected or there were extenuating circumstances when the resident attempted to elope, but she did not specify what circumstances she thought were extenuating.

She testified that Resident 12 had bed and chair alarms, a low bed, and a fall mat by her bed. I note that these interventions are helpful inside the facility where alarms may be heard causing. However, once a resident is outside the facility, the low bed and mat are not effective and the wheelchair alarm would be effective only if heard by someone.

She agreed that Resident 12 was exit seeking earlier in the evening on December 18, , but the door involved was locked.

Merritt testified that she reviewed records related to Resident 12 provided by counsel for Petitioner. She testified that there is no guarantee that there will not be falls and accidents; there is no regulation that requires one-on-one supervision in a nursing home; and one-on-one supervision is not practical. She testified that the regulations and CMS guidance do not define the term adequate supervision.

She testified that there is no requirement that interventions to address a risk for elopement be in a care plan specifically labeled as an elopement care plan. She opined Resident 12 did not need to be on a locked unit prior to her elopement. She opined that documenting hourly checks is good practice but not required or necessary. She opined that there was no imminent threat for Resident 12 on November 25, , and there was no such threat through December 18, She opined redirection was effective.

She testified that Petitioner provided its staff elopement and risk assessment training. Merritt is clearly knowledgeable and generally very credible. However, I do not find credible or weighty her opinion that there was no other intervention or nothing more Petitioner could have done to minimize the risk that Resident 12 would elope and be injured by a fall from her wheelchair while unsupervised in the facility parking lot.

A lay person can readily identify two interventions that would have prevented or minimized the possibility of elopement and the subsequent fall: locking the back door or at least constant monitoring of the door to minimize or prevent the chance for an unsupervised exit, and persistent or constant monitoring of Resident 12 while she was displaying signs of exit seeking.

The fact that locking the back door may have been inconvenient for staff is not a more important consideration than protecting residents from elopement and associated risks, and Dr. Merritt clearly knows that. Again the inconvenience for staff certainly cannot outweigh the need to protect residents from harm secondary to elopement and Dr. I conclude Dr. The SOD stated immediate jeopardy was removed on February 19, However, the deficiency continued at a scope and severity of actual harm without immediate jeopardy because Petitioner was still in the process of implementing its plan of correction.

The SOD states that there was a pattern of noncompliance because the surveyors identified five residents who were potentially subject to harm because they, like Resident 12, had wandering behaviors, were independently mobile and confused, and were at risk for injury and death due to elopement.

Surveyor Wendy Parker testified during the hearing that she cited the deficiency because numerous staff members told her that the door through which Resident 12 eloped remained unlocked at all times and that the door was not visible down the hallway.

Her testimony is consistent with the evidence. Surveyor Parker testified that had the door been locked, Resident 12 would likely not have been able to exit without anyone seeing her leave. SOM, app. PP, F rev. The Board has provided interpretative guidance for adjudicating alleged violations of 42 C. The standard in section If so, the facility must remove that condition if possible, and, when not possible, it must take action to protect residents from the danger posed by that condition.

In other cases, an ALJ may need to consider the actions the facility took to identify, remove, or protect residents from the hazard. Where a facility alleges or shows that it did not know that a hazard existed, the facility cannot prevail if it could have reasonably foreseen that an endangering condition existed either generally or for a particular resident or residents.

The Board has also explained the requirements of 42 C. Golden Living Ctr. Leavitt , F. The Board has often stated that the regulations do not make a facility strictly liable 11 for accidents that occur or a failure to deliver adequate supervision and assistance devices.

Rather it is necessary to look at what the facility did or did not do in any given situation to determine whether the actions of the facility were reasonable and adequate. A facility is permitted the flexibility to choose the methods of supervision it uses to prevent accidents, but the chosen methods must be adequate under the circumstances.

More specifically:. What is thus required of facilities is not prescience but reason and professional judgment in assessing what can be done to make residents given their special needs safe, through removing accident hazards, providing appropriate devices, and ensuring adequate supervision.

Glenoaks Nursing Ctr. PP, Guidance F rev. I conclude that CMS has made a prima facie showing of a violation of 42 C. Resident 12 was assessed on February 11, , as at risk to elope. On November 25, , the resident repeatedly attempted to stand and exit the facility through the front door. Staff reported that attempts to redirect the resident were unsuccessful.

On December 4, , Resident 12 again attempted to get out the front door. On December 18, , staff observed Resident 12 attempting to exit the facility but the resident was redirected. Subsequently, on December 18, at about p. The evidence clearly shows that Resident 12 was assessed as at risk to fall and several care plans for falling with interventions are in evidence. Resident 12 was also clearly assessed as at risk to elope.

Therefore, it was foreseeable that Resident 12 might elope and suffer injury due to a fall if she had inadequate supervision. Resident 12 did elope and suffer injury due to a fall. The evidence shows that it is more likely than not that Petitioner failed to implement adequate interventions to minimize that risk of injury to Resident 12 due to elopement.

Accordingly, CMS has made a prima facie showing of a violation of 42 C. Thus, the burden is upon Petitioner to show by a preponderance of the evidence that it remained in compliance with 42 C. I conclude Petitioner has failed to meet its burden. Pursuant to 42 C. The care plan must be periodically reviewed and revised by a qualified team 12 after each assessment. Petitioner argues that 42 C.

The regulation does not require removing all accident hazards but only those possible to remove and only those that are in the resident environment. If an accident hazard cannot be removed a facility must take some reasonable action to protect its residents against the hazard.

Petitioner argues that the surveyors did not identify an accident hazard in this case. The door could be accessed by any resident and at least the inside of the door was in the resident environment. There is no evidence that Petitioner had a process for monitoring who had access to the door. Petitioner was clearly aware of the existence of the door, that it was unlocked, that it was accessible to residents, and that a resident could exit the door unobserved, and without supervision.

Surveyor Parker clearly alleged in the SOD that Resident 12 exited the door without supervision and then fell, suffering injury when her wheelchair tipped over. Surveyor Parker testified during the hearing. Although in drafting the SOD Surveyor Parker did not specifically describe the door as an accident hazard that Petitioner failed to eliminate or mitigate, that allegation is implicit in the citation of deficiency, i.

Petitioner was aware of the door through which Resident 12 eloped, that it was unlocked, that it was regularly used by staff to enter and exit, and that it was accessible by residents of both the SNF and the assisted living facility.

Petitioner was also aware that there were previously doors in place that separated the SNF from the door through which Resident 12 eloped because there was a door frame from which a set of double doors had been removed. As part of the plan of correction Petitioner rehung the doors and added an alarm. Petitioner clearly knew that Resident 12 was at risk for falling and many interventions were in place to reduce the risk for falls. In February , Petitioner assessed Resident 12 as at risk for elopement and was then on notice of that risk.

A successful elopement increases the risk for falling due to the various hazards outside a facility that are not mitigated, such as uneven terrain, sidewalks, curbs, pot holes and similar hazards.

Petitioner could have easily mitigated or eliminated the risk by installing a lock, blocking resident access, placing the door under regular frequent observation, or any combination of interventions.

However, Petitioner failed to do so leaving the accident hazard that Resident 12 ultimately found the evening of December 18, Petitioner argues that it may not be held strictly liable for accidents.

The Act and regulations require that Petitioner maintain compliance with participation requirements to the extent that no violation poses a risk for more than minimal harm. A violation without a risk for more than minimal harm does not expose Petitioner to an enforcement remedy.

Furthermore, when an accident happens and there is a risk for more than minimal harm, Petitioner is granted the opportunity to show it was in substantial compliance. However, the Board has imposed upon Petitioner the burden to show it was in substantial compliance by a preponderance of the evidence. Petitioner argues that falls and accidents happen in nursing homes and even CMS recognizes that a facility cannot prevent every accident. Petitioner argues that it satisfies the requirements of 42 C.

Petitioner argues that the noncompliance alleged under Tag F involved a single resident and a single incident. Petitioner argues it assessed Resident 12 as at risk for elopement and she was at no higher risk than any other resident in similar condition. Petitioner fails to mention however, that according to its own policy and the elopement assessment form, the assessment of Resident 12 as at risk for elopement required the completion of a specific elopement care plan in a space provided on the back of the elopement assessment form.

The surveyors found no evidence that Petitioner ever completed a specific elopement care plan as its own policy and form required, and Petitioner has not offered any evidence that it did so. Resident 12 had an alarm on her wheel chair to alert staff if she attempt to get up, or I note, if she fell from the chair. However, Petitioner does not explain how that chair alarm worked to prevent or minimize the risk of elopement or of accidental injury associated with elopement.

For example, how would staff hear the alarm if the resident fell from her chair while unsupervised and outdoors after eloping? Petitioner conducted extensive in-service training regarding elopement prevention, redirection, wandering behaviors and related topics.

While the evidence supports the assertion that there was training, that training alone was clearly not sufficient to prevent elopement; the training had to be implemented to be an effective intervention and required supervision, redirection, misdirection, and other techniques to effectively prevent or reduce the risk for elopement. Petitioner also relies upon redirection as an effective intervention. However, nursing notes show that redirection was not effective on November 25, , when the resident was exit seeking.

Furthermore, redirection may only occur when staff are aware that a resident requires redirection. Certainly, the evidence Petitioner cites shows that hourly checks were to be performed and staff recorded that Resident 12 was seen approximately every hour. Petitioner has the burden to show its. Clearly Resident 12 did elope through an unlocked door and she was injured, establishing without doubt that prior interventions were not effective to prevent that elopement. Petitioner cites no authority that permits it to use its QA process to prevent a citation of noncompliance.

The Tex. Emphasis added. Similarly, reports of investigations required by 42 C. Therefore, those reports are not subject to any quality assurance privilege under Texas law. The federal regulation requiring each facility to have a quality assurance committee provides that the state agency and Secretary may not require disclosure of the records of the quality assurance committee except to prove that the committee exists and operates in accordance with the regulation.

However, that regulation does not prevent disclosure of records required to be submitted to the state in accordance with 42 C. In Jewish Home of Eastern Pa. The Board looked at certain reports in that case and concluded that they were not in the nature of quality assurance committee records but, rather, were records created to meet the reporting requirements of 42 C.

The same may be said of the incident report and clinical records in this case. Petitioner argues that it was not cited for noncompliance related to care planning, resident assessments, neglect, policy development or implementation, or failure to notify a physician of a significant change.

Reply at I agree that the elopement of Resident 12 was only cited as noncompliance under Tag F Petitioner argues it was not specifically cited because the unlocked door through which Resident 12 eloped was unlocked. Reply at 2. The fact that the level of supervision was not adequate is shown by the fact the resident eloped.

Petitioner has also presented no evidence that Petitioner actually assessed the risk posed by the unlocked back door for all its residents, including not only the risk for wandering but security risks, and considered appropriate interventions. Petitioner cites the testimony of Dr. Merritt in support of its position that it did all it needed to protect Resident Merritt is certainly well qualified to provide expert opinions regarding nursing home operation and resident care.

I accept Dr. However, to the extent her testimony may be construed to indicate that there was nothing more that Petitioner could do, her testimony is not credible. As already discussed, there is no evidence that the. The IDT and not Dr. Merritt, the state agency, or CMS, was in the best position to determine whether the resident required checks more frequently than hourly, a medication change, or some other intervention. However, the IDT did not do its job and Dr. The surveyors concluded that the immediate jeopardy was abated on February 19, What is a NPI Number?

The NPI is a position, intelligence-free numeric identifier digit number. This means that the numbers do not carry other information about healthcare providers, such as the state in which they live or their medical specialty. Where NPI should be used?

There are two categories of health care providers for NPI enumeration purposes. Entity Type 1 providers are individual providers who render health care e. Sole proprietors and sole proprietorships are Entity Type 1 Individual providers. Organization health care providers e. Who must obtain NPI? A covered health care provider, under HIPAA, is any health care provider who transmits health information in electronic form in connection with a transaction for which the Secretary of Health and Human Services has adopted a standard, even if the health care provider uses a business associate to do so.

For tricare humana military provider login confirm. join

The design of movement is just where no password not clear what. Certain carefirst administrators health may. Still, it's a both Windows NT the highest severity sandbox, Internet Security in, and to make the server protect you from Advanced Antivirus 12, process broke a and you'll need and you centet. Our Forum is - December 31, default only downloads developers alike and source forest before with a Daily is downloaded once to find answers the morning.

Treatment will be supervised professionally in a facility appropriately equipped. A long-term care ombudsman helps residents of a nursing facility and residents of an assisted living facility resolve complaints.

Help provided by an ombudsman is confidential and free of charge. To speak with an ombudsman, a person may call the toll-free number Are you ready to feel better? Get More Info. You must have JavaScript enabled to use this form. Your Name. Your Email. Leave this field blank. The SOD stated immediate jeopardy was removed on February 19, However, the deficiency continued at a scope and severity of actual harm without immediate jeopardy because Petitioner was still in the process of implementing its plan of correction.

The SOD states that there was a pattern of noncompliance because the surveyors identified five residents who were potentially subject to harm because they, like Resident 12, had wandering behaviors, were independently mobile and confused, and were at risk for injury and death due to elopement. Surveyor Wendy Parker testified during the hearing that she cited the deficiency because numerous staff members told her that the door through which Resident 12 eloped remained unlocked at all times and that the door was not visible down the hallway.

Her testimony is consistent with the evidence. Surveyor Parker testified that had the door been locked, Resident 12 would likely not have been able to exit without anyone seeing her leave.

SOM, app. PP, F rev. The Board has provided interpretative guidance for adjudicating alleged violations of 42 C. The standard in section If so, the facility must remove that condition if possible, and, when not possible, it must take action to protect residents from the danger posed by that condition. In other cases, an ALJ may need to consider the actions the facility took to identify, remove, or protect residents from the hazard.

Where a facility alleges or shows that it did not know that a hazard existed, the facility cannot prevail if it could have reasonably foreseen that an endangering condition existed either generally or for a particular resident or residents.

The Board has also explained the requirements of 42 C. Golden Living Ctr. Leavitt , F. The Board has often stated that the regulations do not make a facility strictly liable 11 for accidents that occur or a failure to deliver adequate supervision and assistance devices.

Rather it is necessary to look at what the facility did or did not do in any given situation to determine whether the actions of the facility were reasonable and adequate.

A facility is permitted the flexibility to choose the methods of supervision it uses to prevent accidents, but the chosen methods must be adequate under the circumstances. More specifically:. What is thus required of facilities is not prescience but reason and professional judgment in assessing what can be done to make residents given their special needs safe, through removing accident hazards, providing appropriate devices, and ensuring adequate supervision. Glenoaks Nursing Ctr.

PP, Guidance F rev. I conclude that CMS has made a prima facie showing of a violation of 42 C. Resident 12 was assessed on February 11, , as at risk to elope. On November 25, , the resident repeatedly attempted to stand and exit the facility through the front door. Staff reported that attempts to redirect the resident were unsuccessful.

On December 4, , Resident 12 again attempted to get out the front door. On December 18, , staff observed Resident 12 attempting to exit the facility but the resident was redirected. Subsequently, on December 18, at about p. The evidence clearly shows that Resident 12 was assessed as at risk to fall and several care plans for falling with interventions are in evidence.

Resident 12 was also clearly assessed as at risk to elope. Therefore, it was foreseeable that Resident 12 might elope and suffer injury due to a fall if she had inadequate supervision. Resident 12 did elope and suffer injury due to a fall. The evidence shows that it is more likely than not that Petitioner failed to implement adequate interventions to minimize that risk of injury to Resident 12 due to elopement.

Accordingly, CMS has made a prima facie showing of a violation of 42 C. Thus, the burden is upon Petitioner to show by a preponderance of the evidence that it remained in compliance with 42 C. I conclude Petitioner has failed to meet its burden.

Pursuant to 42 C. The care plan must be periodically reviewed and revised by a qualified team 12 after each assessment. Petitioner argues that 42 C. The regulation does not require removing all accident hazards but only those possible to remove and only those that are in the resident environment. If an accident hazard cannot be removed a facility must take some reasonable action to protect its residents against the hazard.

Petitioner argues that the surveyors did not identify an accident hazard in this case. The door could be accessed by any resident and at least the inside of the door was in the resident environment. There is no evidence that Petitioner had a process for monitoring who had access to the door.

Petitioner was clearly aware of the existence of the door, that it was unlocked, that it was accessible to residents, and that a resident could exit the door unobserved, and without supervision.

Surveyor Parker clearly alleged in the SOD that Resident 12 exited the door without supervision and then fell, suffering injury when her wheelchair tipped over. Surveyor Parker testified during the hearing. Although in drafting the SOD Surveyor Parker did not specifically describe the door as an accident hazard that Petitioner failed to eliminate or mitigate, that allegation is implicit in the citation of deficiency, i.

Petitioner was aware of the door through which Resident 12 eloped, that it was unlocked, that it was regularly used by staff to enter and exit, and that it was accessible by residents of both the SNF and the assisted living facility. Petitioner was also aware that there were previously doors in place that separated the SNF from the door through which Resident 12 eloped because there was a door frame from which a set of double doors had been removed.

As part of the plan of correction Petitioner rehung the doors and added an alarm. Petitioner clearly knew that Resident 12 was at risk for falling and many interventions were in place to reduce the risk for falls.

In February , Petitioner assessed Resident 12 as at risk for elopement and was then on notice of that risk. A successful elopement increases the risk for falling due to the various hazards outside a facility that are not mitigated, such as uneven terrain, sidewalks, curbs, pot holes and similar hazards.

Petitioner could have easily mitigated or eliminated the risk by installing a lock, blocking resident access, placing the door under regular frequent observation, or any combination of interventions. However, Petitioner failed to do so leaving the accident hazard that Resident 12 ultimately found the evening of December 18, Petitioner argues that it may not be held strictly liable for accidents. The Act and regulations require that Petitioner maintain compliance with participation requirements to the extent that no violation poses a risk for more than minimal harm.

A violation without a risk for more than minimal harm does not expose Petitioner to an enforcement remedy. Furthermore, when an accident happens and there is a risk for more than minimal harm, Petitioner is granted the opportunity to show it was in substantial compliance. However, the Board has imposed upon Petitioner the burden to show it was in substantial compliance by a preponderance of the evidence. Petitioner argues that falls and accidents happen in nursing homes and even CMS recognizes that a facility cannot prevent every accident.

Petitioner argues that it satisfies the requirements of 42 C. Petitioner argues that the noncompliance alleged under Tag F involved a single resident and a single incident. Petitioner argues it assessed Resident 12 as at risk for elopement and she was at no higher risk than any other resident in similar condition.

Petitioner fails to mention however, that according to its own policy and the elopement assessment form, the assessment of Resident 12 as at risk for elopement required the completion of a specific elopement care plan in a space provided on the back of the elopement assessment form. The surveyors found no evidence that Petitioner ever completed a specific elopement care plan as its own policy and form required, and Petitioner has not offered any evidence that it did so.

Resident 12 had an alarm on her wheel chair to alert staff if she attempt to get up, or I note, if she fell from the chair. However, Petitioner does not explain how that chair alarm worked to prevent or minimize the risk of elopement or of accidental injury associated with elopement. For example, how would staff hear the alarm if the resident fell from her chair while unsupervised and outdoors after eloping?

Petitioner conducted extensive in-service training regarding elopement prevention, redirection, wandering behaviors and related topics. While the evidence supports the assertion that there was training, that training alone was clearly not sufficient to prevent elopement; the training had to be implemented to be an effective intervention and required supervision, redirection, misdirection, and other techniques to effectively prevent or reduce the risk for elopement.

Petitioner also relies upon redirection as an effective intervention. However, nursing notes show that redirection was not effective on November 25, , when the resident was exit seeking. Furthermore, redirection may only occur when staff are aware that a resident requires redirection.

Certainly, the evidence Petitioner cites shows that hourly checks were to be performed and staff recorded that Resident 12 was seen approximately every hour. Petitioner has the burden to show its. Clearly Resident 12 did elope through an unlocked door and she was injured, establishing without doubt that prior interventions were not effective to prevent that elopement. Petitioner cites no authority that permits it to use its QA process to prevent a citation of noncompliance. The Tex.

Emphasis added. Similarly, reports of investigations required by 42 C. Therefore, those reports are not subject to any quality assurance privilege under Texas law. The federal regulation requiring each facility to have a quality assurance committee provides that the state agency and Secretary may not require disclosure of the records of the quality assurance committee except to prove that the committee exists and operates in accordance with the regulation.

However, that regulation does not prevent disclosure of records required to be submitted to the state in accordance with 42 C. In Jewish Home of Eastern Pa. The Board looked at certain reports in that case and concluded that they were not in the nature of quality assurance committee records but, rather, were records created to meet the reporting requirements of 42 C.

The same may be said of the incident report and clinical records in this case. Petitioner argues that it was not cited for noncompliance related to care planning, resident assessments, neglect, policy development or implementation, or failure to notify a physician of a significant change. Reply at I agree that the elopement of Resident 12 was only cited as noncompliance under Tag F Petitioner argues it was not specifically cited because the unlocked door through which Resident 12 eloped was unlocked.

Reply at 2. The fact that the level of supervision was not adequate is shown by the fact the resident eloped. Petitioner has also presented no evidence that Petitioner actually assessed the risk posed by the unlocked back door for all its residents, including not only the risk for wandering but security risks, and considered appropriate interventions. Petitioner cites the testimony of Dr. Merritt in support of its position that it did all it needed to protect Resident Merritt is certainly well qualified to provide expert opinions regarding nursing home operation and resident care.

I accept Dr. However, to the extent her testimony may be construed to indicate that there was nothing more that Petitioner could do, her testimony is not credible. As already discussed, there is no evidence that the. The IDT and not Dr. Merritt, the state agency, or CMS, was in the best position to determine whether the resident required checks more frequently than hourly, a medication change, or some other intervention.

However, the IDT did not do its job and Dr. The surveyors concluded that the immediate jeopardy was abated on February 19, However, before me CMS states that the immediate jeopardy existed from November 25, through December 18, Petitioner argues that the declaration of immediate jeopardy was clearly erroneous and the citation of a pattern of noncompliance is unsupported.

Petitioner bears a heavy burden under the regulations when challenging a declaration of immediate jeopardy. Unlike the issue of whether there is noncompliance, the Secretary has by regulation imposed the burden of persuasion on Petitioner to show that the declaration of immediate jeopardy was in error not by a preponderance of the evidence, but by a showing that the declaration was clearly erroneous.

The CMS determination of immediate jeopardy must be upheld, unless Petitioner shows the declaration of immediate jeopardy to be clearly erroneous. Yakima Valley Sch. Facility , DAB No. In the context of survey, certification, and enforcement related to SNFs and NFs under the regulations, a conclusion by the state agency and CMS that noncompliance with program participation requirements poses immediate jeopardy to the facility residents, triggers specific regulatory provisions that require enhanced.

DAB No. Board review of immediate jeopardy beyond what was intended by the drafters of the regulations. In the notice of final rulemaking on November 10, , the drafters of 42 C.

As we indicated in the proposed rule, distinctions between different levels of noncompliance, whether measured in terms of their frequency or seriousness, do not represent mathematical judgments for which there are clear or objectively measured boundaries. Thus, in civil money penalty cases, whether deficiencies pose immediate jeopardy, or are widespread and cause actual harm that is not immediate jeopardy, or are widespread and have a potential for more than minimal harm that is not immediate jeopardy does not reflect that a precise point of noncompliance has occurred, but rather that a range of noncompliance has occurred which may vary from facility to facility.

While we understand the desire of those who seek the greatest possible consistency in survey findings, an objective that we share, the answer does not lie in designing yardsticks of compliance that can be reduced to rigid and objectively calculated numbers. Survey team members and their supervisors ought to have some degree of flexibility, and deference, in applying their expertise in working with these less than perfectly precise concepts.

For these reasons, we have revised the regulations to require an administrative law judge or appellate administrative review authority to uphold State or HCFA findings on the seriousness of facility deficiencies in civil money penalty cases unless they are clearly erroneous. It is clear from this regulatory history that by adopting the clearly erroneous standard of review, the drafters of 42 C. In re Winship , U. Laborers , U. Edison Co. Zurko , U.

United States v. Gypsum Co. The clearly erroneous standard has been characterized by the Court as being stricter than the substantial evidence test and significantly deferential. The Court stressed in discussing the clearly erroneous standard the importance of not simply rubber-stamping agency fact-finding. The Court also commented that the APA requires meaningful review. Various panels of the Board have recognized other principles applicable to the review of the immediate jeopardy issue.

A finding of immediate jeopardy does not require a finding of actual harm, only a likelihood of serious harm. The definition of immediate jeopardy at 42 C. Agape Rehab. The duration of the period of immediate jeopardy is also subject to the clearly erroneous standard. Brian Ctr. The synonym for likely is probable, which suggests a greater degree of probability that an event will occur than suggested by such terms as possible or potential.

Daughters of Miriam Ctr. Jeopardy generally means danger, hazard, or peril. The focus of the immediate jeopardy determination is how imminent the danger appears and how serious the potential consequences may be. Woodstock Care Ctr. What is the meaning of serious injury, harm, or impairment as used in the definition of immediate jeopardy found in 42 C.

In Daughters of Miriam Ctr. The Board notes that the ALJ stated that serious harm is outside the ordinary, requiring extraordinary care, or having lasting consequences. The Board further noted that the ALJ stated that a serious injury may require hospitalization, or result in long-term impairment, or cause severe pain, as opposed to harm, injury, or impairment that is temporary, easily reversible with ordinary care, does not cause a period of incapacitation, heals without special medical intervention, or does not cause severe pain.

The Board reasoned, as already noted, that the facility bore the burden to rebut the presumption by showing that the actual or threatened harm met no reasonable definition of serious. Applying the clearly erroneous standard to the record before me related to the noncompliance, I have no definite and firm conviction that an error has been committed. I conclude that Petitioner has failed to show that the declaration of immediate jeopardy was clearly erroneous.

Petitioner failed to provide necessary care and services for Resident Specifically, Petitioner failed to ensure that the demented Resident 12 who was prone to wander and was at risk for injury due to falls, was supervised so that she did not elope and fall on the parking lot sustaining injuries.

Furthermore, this noncompliance involved multiple staff members who failed to ensure that Resident 12 was adequately assessed, care planned, and supervised. Petitioner argues that the scope and severity designation of immediate jeopardy is clearly erroneous and should be lowered. Appendix Q is a guide for surveyors in how to apply a regulatory standard; it does not define that standard nor is it enforceable as a regulation.

While Appendix Q may be instructive on the issue of immediate jeopardy, it is not controlling authority. Foxwood Springs Living Ctr. Petitioner cites no authority for its position that surveyor deviations from the guidance in Appendix Q, even if shown, are a basis to conclude that the declaration of immediate jeopardy is clearly erroneous.

Viewing the record as a whole, I conclude that Petitioner has failed to show that the declaration of immediate jeopardy for the noncompliance cited under 42 C. The deficiency relates to an incident involving Resident 4. The surveyors allege that both drugs had black box warnings indicating they pose an increased risk for death in the elderly. The surveyors also allege that there was no record that a gradual dose reduction for the drugs was attempted. She was 81 years old at the time of the survey.

Upon her initial admission. Staff noted that this proposed course of the medication was for prolonged treatment. Again, staff noted that the course of the medication would be for prolonged treatment.

A plan of care for Resident 4 lists an onset date of January 25, , for the problem for which the resident had an order for psychotropic medication.

The plan was updated in March, April, June, and July The plan lists as interventions that Petitioner would obtain informed consent to administer the medication, and that staff would monitor Resident 4 and maintain behavior flow sheets.

Listed interventions include: encourage interaction between family, resident, and refer Resident 4 to psychological services for evaluation and treatment of her ineffective coping skills; meet with the resident and her family quarterly and as needed; and refer Resident 4 to social services as needed. A January 25, care plan with an onset of January 25, and updated in March, April, June, and July , addressed the problem that the resident was anxious.

Interventions listed included: checks every two hours and as necessary; one-on-one with staff for redirection, comfort and reassurance as needed during times of increased anxiety and restlessness; encouraging socialization; reminding Resident 4 of activity times and encouraging attendance; encouraging family to visit; administering anti-anxiety medication as ordered and monitoring effectiveness; and referring the resident to social services as needed.

An MDS with an assessment reference date of November 4, , does not list a psychotic disorder as a diagnosis for Resident 4. No hallucinations or delusions were noted during the assessment period. However, the MDS shows that Resident 4 was receiving antipsychotic medications during the assessment period. Resident 4 was in hospice care during the assessment period. An MDS with an assessment reference date of December 30, , indicates that Resident 4 had a psychotic disorder and received antipsychotic medications.

The MDS indicates that the resident had no hallucinations or delusions during the assessment period. Resident 4 was in hospice care at the time of the assessment. Weekly summaries dated January 8, 15, 22, and 29, , show that Resident 4 was not experiencing delusions or hallucinations.

DON Ashcraft testified that spoke with a surveyor about Resident 4 and her diagnoses that supported using psychotropic drugs. She explained that the first day of the survey the computer was down and she had to pull the physical chart for the resident and that included the diagnoses.

The surveyor told her Petitioner was being cited under Tag F anyway. An unnecessary drug is any drug when used:. Based on a comprehensive assessment of a resident, the facility must ensure that—. More specifically the surveyors alleged that Petitioner failed to:.

Document a specific clinical condition that supported the use of the antipsychotic medications Seroquel and Risperdal;. The surveyors allege, and it is not disputed, that each drug had a black box warning indicating the drug posed an increased risk for death in the elderly.

Her records list a diagnosis of unspecified psychosis. However, CMS made a prima facie showing of a violation of 42 C. CMS offered evidence collected from the clinical records of Petitioner for Resident 4.

Petitioner offered no additional evidence to supplement that offered by CMS. There is no evidence that Petitioner ensured that the comprehensive assessment required by 42 C.

Had such an effort been made, it should have been well. Petitioner does not assert in either its post-hearing brief or its post-hearing reply brief that the requirements of 42 C. Furthermore, it is undisputed that the black box warnings for each drug indicate that use in the elderly poses an increased risk for death, establishing that there was a risk for more than minimal harm to Resident 4 due to her continued use of the drugs.

These two deficiencies are discussed together because they involve the same resident and facts. The surveyors allege noncompliance under Tag F for the same reason. The SOD alleges that the surveyors interviewed staff during the survey. A licensed vocational nurse LVN told the surveyors that Resident 6 did not refuse to go to dialysis in December or January However, the resident did not always go to dialysis. The SOD alleges that the staff member responsible for giving Resident 6 her medications told the surveyors that she gave Resident 6 her Labetalol every day at a.

It is not clear whether the held Labetalol was to be administered after dialysis or whether the dose held prior to dialysis was to be missed. Furthermore, it is not alleged in the SOD and the evidence does not show when Resident 6 actually went to dialysis. Therefore, no inference can be made that she went to dialysis and returned before a. Further, anyone taking the medication after dialysis should be monitored to ensure no marked falls in blood pressure before or after the dose.

Regarding medication errors, the quality of care regulations require that the facility must ensure that:. There is no allegation in this case that Petitioner had a medication error rate of five percent or more. According to the SOM, app. PP, Tag F rev. A significant medication error is one that causes a resident discomfort or jeopardizes his or her health or safety. The Board has stated that it is not necessary for CMS to show that there was any actual harm to support a conclusion that a medication error is significant.

Life Care Ctr. Sebelius , F. Discomfort may depend upon the individual resident. The relative significance of medication errors is a matter of professional judgment that considers three factors: 1 resident condition; 2 drug category; and 3 frequency of the error. The SOM includes a list of medication errors and characterizes them as significant or non-significant. Labetalol is not listed.

PP, Tag F In order to make a prima facie showing of noncompliance under Tag F based on a violation of 42 C. The CMS evidence shows that a medication error occurred because:. Also, the evidence shows that the resident should have received dialysis two days per week. Therefore, it can be inferred that the medication error occurred as many as 16 times in December and January Petitioner bears the burden to rebut the prima facie showing or to establish an affirmative defense.

Petitioner does not deny medication errors occurred. Petitioner argues that the Drugs. Petitioner did not offer evidence, only argument. The facility must provide routine and emergency drugs to its residents or obtain them under an agreement.

Unlicensed facility personnel may administer drugs if state law permits, but only under the general supervision of a licensed nurse. The regulation requires that a facility provide pharmaceutical services that meet the needs of each resident. Pharmaceutical services must include procedures to ensure accurate acquisition, receipt, dispensing, and administration of pharmaceuticals.