15-0900-16335-2

STATE OF MINNESOTA

OFFICE OF ADMINISTRATIVE HEARINGS

FOR THE COMMISSIONER OF HEALTH

 

In the Matter of Glencoe Nursing Home, Survey Completed 10/28/2004

RECOMMENDED DECISION

         

The above matter was the subject of an informal dispute resolution meeting conducted by Administrative Law Judge Beverly Jones Heydinger on the basis of written submissions.  The last submission was received on January 25, 2005.

Appearances:  Marci Martinson, Division of Facility and Provider Compliance, Department of Health, 1645 Energy Drive, Suite 300, St. Paul, MN  55108-2970.  Susan M. Schaffer, Orbovich & Gartner, 408 St. Peter Street, Suite 417, St. Paul, MN 55102-1187.

NOTICE

Under Minn. Stat. § 144A.10, subd. 16(d)(6) this recommended decision is not binding on the Commissioner of Health.  Under Department of Health Information Bulletin 04-07, the Commissioner must mail a final decision to the facility indicating whether or not the Commissioner accepts or rejects the recommended decision of the Administrative Law Judge within 10 calendar days of receipt of this recommended decision.

Based upon the exhibits submitted and the arguments made, and for the reasons set out in the Memorandum which follows, the Administrative Law Judge makes the following:

RECOMMENDED DECISION

1.     That citation F-241 be affirmed and lowered to Level D;

2.     That citation F-309 be reversed.

 

Dated this 7th day  of February, 2005.

 

                                                                

s/Beverly Jones Heydinger

BEVERLY JONES HEYDINGER

Administrative Law Judge

 

 

MEMORANDUM

          Citation F-241 – Respect for the dignity of a patient.

          The guidance for surveyors states that activities should be carried out by staff in a manner that assists the Resident to maintain and enhance self-esteem and self-worth. In particular, it includes “[g]rooming residents as they wish to be groomed…, treating residents with respect…[and] [f]ocusing on residents as individuals when providing care and services.” 

The surveyor observed personal care to Resident #10.  The care plan stated that the Resident was a very private person, and that she resisted personal care, particularly of the genital, peritoneal and breast areas.  The care plan directed staff to conduct the care while the Resident was lying down, and to give her a stuffed animal to hold to distract her so that she would allow the staff to separate her legs and complete the necessary cleaning.  The Resident suffered from dementia and she was non-verbal.

          The surveyor observed that Resident #10 was placed in a lift, with her gown around her shoulders and the rest of her body exposed, including her breasts and genital area.  Because the Resident had to hold on to the lift, she could not use her hands to cover herself.  The personal cares were done while the Resident was in the lift, rather than in the bed as directed by the care plan.  The Resident was in a private room, and only the staff providing care were present.

          This deficiency was classified at level G, an isolated deficiency with actual harm that is not immediate jeopardy.  Because the staff failed to provide care according to the care plan, which was developed to assure that the care could be completed with the least possible distress to the Resident, the deficiency is warranted.  However, the Department failed to show why a level G was appropriate.  The same evidence that the Department relied upon to show that there was a better approach makes it clear that the Resident did not like the personal cares, regardless of the method employed.[1]  The Department failed to show that the increase in embarrassment that might be associated with using the lift was demonstrably more harmful to the Resident than the practice set forth in the care plan.  There was the potential for harm from using that approach, but no evidence of actual harm.

          The Facility offered evidence about the appropriate use of the Pro-Assist Lift, but since the deficiency is characterized as F-241, respect for the dignity of the patient, it does not appear that the Department asserted that the use of the lift was inappropriate per se to transfer the patient.  [2]The Department’s position appears to be that leaving the Resident in the lift while the cares were performed embarrassed the Resident.

 

          Citation F-309 –  Highest practicable physical, mental, and psychosocial well-being.

          A Resident must receive services to attain or maintain “the highest practicable physical, mental, and psychosocial well-being, in accordance with the comprehensive assessment and plan of care.”[3]  The instructions for surveyors direct them to look for lack of improvement or avoidable decline.  Surveyors look for an accurate, complete assessment, a care plan based on the assessments and implemented consistently, and evaluation and revision of interventions as necessary.[4]

The Facility was cited for a deficiency for Resident #15, with a severity level of G, because the Facility had failed to provide the necessary treatment and services to minimize the Resident’s pain, based on the surveyor’s observation and interview of the Resident.  In particular, the Department found that the Facility had failed to reassess the Resident after her physician discontinued treatment with Vioxx on October 1, 2004.  The physician directed that the Resident’s pain be reassessed in seven days.[5]  The Department also determined, erroneously, that the Resident’s care plan did not address pain management.

          It is clear from the records that the Facility routinely assessed the Resident for pain.  Her care plan identified pain, and included several strategies for managing it.[6]  In addition, the Resident had a history of complaining about pain to attract attention,[7] and there was a plan in place to evaluate her complaints over three days to determine if there was consistent change in pain, and whether the care plan should be modified.  There are virtually no daily progress notes for this Resident between October 1, when the Vioxx was discontinued, and October 30.[8]  However, the Resident had no complaints of pain when she saw her psychologist on October 6, 2004.[9]  A brief assessment was done on October 8, 2004, and the Resident did not complain of pain.[10]  The Resident had no complaints and her mood was good when she saw her psychiatrist ten days prior to the surveyor’s interview.[11]  The Facility also notes that the Resident was frequently engaged in activities during this period, and her weight was not affected.  It suggests that both are good indicators that the Resident’s pain had not increased, and that there was no evidence of decline. 

          It is clear that the physician directed that a pain assessment be done in seven days, and that a thorough assessment was not done.  However, there is no reason to conclude that the Resident’s pain actually increased as a result of going off the Vioxx, given the Resident’s response to questions about her pain in the month following.  Since the care plan included many other responses to the Resident’s pain, discontinuing the Vioxx did not compel other changes.  As demonstrated by Second Gould Affidavit, Exs. E and F, the facility routinely responded to the Resident’s complaints about pain, and used several different approaches.  The record shows that some were employed on October 25, in response to her complaints.  There was no evidence that the pain continued without interruption until October 27, the date of the surveyor’s interview.  Thus, the only remaining question is whether the Facility appropriately followed the Resident’s care plan when the Resident complained of pain on October 27, 2004.

The Resident complained about back pain, and a nursing assistant placed an Aqua K pad behind her back, but did not return the Resident to her bed, as the Resident requested.  When the Resident called for assistance a second time, and asked to lie down, the nursing assistant told the Resident that she could not lie down at that time, because she had been lying down in the morning.  The staff member explained to the surveyor that the family had directed the staff to keep the Resident up more and to engage her in activities. 

The Resident’s complaints must be placed in the context of her history and the Facility’s efforts over an extended time to monitor the pain and address it, while at the same time dealing with the Resident’s depression by keeping her active, and recognizing that she sometimes complained to get attention.  The record is clear that the Resident had many complex needs, that she was cared for by a team of professionals, and that there was an on-going effort to balance her needs, and address her complaints of pain.  She did receive daily medications to minimize her discomfort, and the Aqua K pad was also offered.  In light of the Resident’s own statements when asked by others about her pain, and her activity level, it is difficult to conclude that the facility’s requirements for initiating a new pain assessment were met when the Resident complained on October 27.  It was not new or different pain, nor had she complained to staff that her pain level had increased.  She told the surveyor that she had been asking to see her doctor for two weeks, but, in fact, she had seen one of her doctors within the previous two weeks, and had no complaints. 

Based on all of the evidence in the record, the ALJ cannot conclude that the deficiency was warranted, or that there was any harm to the Resident.

                                                            B.J.H.