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3-0900-16796-2 |
STATE OF
OFFICE OF ADMINISTRATIVE HEARINGS
FOR THE COMMISSIONER OF HEALTH
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In the Matter of |
RECOMMENDED DECISION |
The above matter was the subject of an informal dispute resolution
meeting conducted by Administrative Law Judge Kathleen D. Sheehy on October 18,
2005, at 9:30 a.m. at the Office of Administrative Hearings. The meeting concluded on that date.
Marci Martinson, Unit Supervisor, Division
of Facility and Provider Compliance (DPFC),
Michelle R. Klegon, Esq., Voigt, Klegon
& Rode, LLC,
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.
FINDINGS OF FACT
Tag F 164
1. Resident #23 is a 76-year-old man with dementia and other
health problems. He has short-term
memory problems and moderately impaired decision-making skills, but his
communication skills are good and he has no problem speaking or making himself
understood. He is at ease interacting
with others, doing planned or structured activities, and doing self-initiated
activities.[1] His plan of care called for assisting him
with his memory problems by giving him simple choices. He required no other interventions or
strategies to deal with cognitive loss.[2]
In June 2005 facility staff documented a
recent loss of weight and a decline in his ability to eat.[3]
2. An
occupational therapist from Aegis Therapies came to the facility on June 28,
2005, to assess his weight loss and decreased interest in eating.[4] She arrived at about 1:50 p.m. and found the
resident in the dining room, waiting for bingo to begin. The resident was sitting at one end of five
four-foot tables that had been pushed together for bingo. At the other end of the table, about 20 feet
away, were two other residents.[5] About eight other residents were in the
dining room. He was eating a snack at
the time. The therapist asked him if she
could sit down and ask him a few questions, and he said yes.[6] There is no evidence that other residents in
the room could hear what the resident and the therapist were discussing.
3. The
therapist asked him some questions about where he lived and his weight loss,
and she encouraged him to eat. She asked
him to perform a hand coordination check by using his pinky finger to touch
other fingers. After 15 minutes, the
surveyor called the therapist out of the dining room to question her about
whether the assessment should be done in private. The resident was then removed from bingo and
taken to a therapy room to complete the assessment.[7]
4. When
he returned to his room later that afternoon, the surveyor questioned him, and
the resident said he did not like it when the therapist questioned him in front
of others, and he did not like being taken out of bingo.[8] The next day facility staff asked him about
the incident, and he signed a note stating that he gave permission to the
therapist to ask him questions while playing bingo and that he did not feel
like this was a violation of his privacy.[9]
5. The resident has the right to personal privacy and
confidentiality of his or her personal and clinical records. Personal privacy includes medical
treatment. The “right to privacy” means
the resident has the right to privacy with whomever the resident wishes to be
private and that this privacy should include full visual, and, to the extent
desired, for visits or other activities, auditory privacy. People not involved in the care of the
individual should not be present without the individual’s consent while the
resident is being examined or treated.
6. Form
2567 describes the incident but fails to include the fact that the therapist
asked the resident for his permission to sit down and ask him some questions,
and the fact that the resident consented to her request.[10]
Tag F 323
7. During the annual survey in May 2005, the survey team
completed an environmental tour of the entire facility, and at that time all
doors operated properly. When the
surveyors returned on June 28 and 29, 2005, the weather was unusually humid,
and some of the doors had swollen and were making contact with the door frames
as indicated below.
8. When
Resident #23 returned to his room after the occupational therapy assessment was
completed at about 3:45 p,m., the surveyor noted that the door to the
resident’s room was closed, and it was difficult to open. She and the facility’s executive director
were able to open it only by pushing hard on it with their shoulders. The executive director said that he would
have maintenance look at it and in the meantime he would inform the staff not
to fully close the door.
9. The
next morning at about 8:20 a.m., the surveyor was doing rounds and noticed that
the door was partially closed and a blower or fan had been placed in the hallway
outside the door. The executive director
stated that the carpet had been cleaned and the door had wicked up some
moisture, which the facility was trying to dry out with the fan. The surveyor informed the executive director
that the door had to be fixed before she left the building. The executive director immediately called
maintenance, and the door was removed, planed, and re-installed by 10:00 a.m.
10. The
surveyor then checked all the entry doors on three units and found that seven
others were “sticking.” Unlike the door
to Resident #23’s room, these doors could be opened and closed, but they made
some contact with the doorframes in the process.[11]
11. While
checking the entry doors, a family member of another resident mentioned that
the bathroom door was also sticking. The
surveyor then checked all the bathroom doors on three units and found that
eight others were sticking. Again, these
doors could be opened and closed, but they made some contact with the
doorframes.
12. Residents
reported that the doors had been sticking for one to two weeks, but no one had
reported a problem to staff until that day.
One resident reported that she had been stuck in her bathroom for a
short period of time before she was able to get out.
13. A
housekeeper reported that doors had been sticking because of the high humidity,
and a nursing assistant had reported that she had noticed problems during the
last week. Neither of the staff members
had reported the problems to maintenance.
14. The
facility conducts monthly fire inspections followed by a fire drill. During the inspection, all entry doors (which
are considered fire-rated) are checked for compliance with the fire code
standard, which is that the door closes freely and latches. Daily maintenance activities include random
door checks. There is a kiosk area at
every nurse’s station where maintenance requests are collected every day, and
employees with computer access can report maintenance issues electronically.
15. All
doors that had been sticking were repaired and re-installed within three hours
of identification.
16. The
facility must ensure that the resident environment remains as free of accident
hazards as is possible. The intent of
this provision is that the facility prevents accidents by providing an
environment that is free from hazards over which the facility has control. Accident hazards are physical features in the
environment that can endanger a resident’s safety.[12]
17. The
deficiency was cited at severity level 2, which is noncompliance that results
in no more than minimal physical, mental, and/or psychosocial discomfort to the
resident and/or has the potential to compromise the resident’s ability to
maintain and/or reach his/her highest practicable physical, mental and/or
psychosocial well-being as defined by an accurate and comprehensive resident
assessment, plan of care, and provision of services.
18. The
deficiency was cited as a pattern, which occurs when more than a very limited
number of residents are affected or the situation has occurred in several
locations.
Based upon the exhibits submitted and the
arguments made and for the reasons set out in the Memorandum that follows, the
Administrative Law Judge makes the following:
RECOMMENDED
DECISION
1. That the citation with regard to F-tag 164
is not supported by the facts and should be rescinded because there was no
deficient practice.
2. That the citation with regard to F-tag 323
is supported in scope and severity.
Dated this 28th day of October, 2005.
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s/Kathleen D. Sheehy |
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KATHLEEN D. SHEEHY |
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Administrative Law Judge |
Reported: Tape-recorded (one tape, no transcript)
MEMORANDUM
With regard to F-tag 164,
there is no dispute that the resident consented to speak to the therapist in
the dining room. The DPFC contended at
the meeting that the resident was not capable of consenting to meet with the
therapist because he has dementia and impaired decision-making skills. The resident’s care plan, however, provides
that the resident is to make simple decisions about his care, and the director
of nursing stated that he has known the resident for more than one year, that
the resident has the ability to make simple day-to-day decisions, and that the
resident has good communication skills.[13] The evidence is insufficient to conclude that
the resident is not capable of providing consent under these circumstances. In addition, DPFC contended at the meeting
that it was inappropriate and intimidating for the facility staff to question
the resident the next day and ask him to document what had happened. DPFC is in no position to criticize the
facility for trying to find out what happened, when it was aware the resident
had consented to speak to the therapist and failed to include that information
in the deficiency citation.
With regard to F-tag 323, the facility did
have an on-going maintenance program and regular inspections of the doors. The Administrative Law Judge is aware that
the record reflects that the weather was unusually hot and humid during the
week before re-visit, and it is true that the facility cannot control the
weather; however, the problems with the doors sticking were known to two staff
members for about a week, and they did not report the problems or request
repairs. If residents have to make extra
effort to open or close doors, they could lose their balance or become “stuck”
in their rooms, which would be an accident hazard.
The 2567 Form does not make clear that only
one door had a severe problem, and the rest required far less work to fully
correct. The Administrative Law Judge cannot conclude, however, that the scope
and severity levels assigned were erroneous.
K.D.S.
[1] Ex. C6-8.
[2] Ex. C14.
[3] Ex. C13.
[4] Ex. C34.
[5]Chris Palmer, Director of Nursing.
[6] Ex. C31, 39-40, 48.
[7] C31.
[8] Ex. C31.
[9] Ex. C48.
[10] Ex. B3. The surveyor’s notes provide that “resident told staff he didn’t mind an interview,” but this statement was not included in the tag. See Ex. C31.
[11] Matthew Kern; Tom Fontaine.
[12] 42 C.F.R. § 483.25(h)(1).
[13] Chris Palmer, Director of Nursing.