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3-0900-16859-2 |
STATE OF
OFFICE OF ADMINISTRATIVE HEARINGS
FOR THE COMMISSIONER OF HEALTH
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In the Matter of
Hillcrest of Wayzata Survey Date: July 14, 2005 |
RECOMMENDED DECISION |
The above matter was the subject of an informal dispute resolution
meeting conducted by Administrative Law Judge Kathleen D. Sheehy on February 9,
2006, at 9:30 a.m. at the Office of Administrative Hearings. The OAH record closed on February 14, 2006,
upon receipt of the last submission of the parties.
Marci Martinson, Unit Supervisor, Division
of Facility and Provider Compliance (DFPC),
Susan M. Voigt, 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
1. Hillcrest
of Wayzata is a provider of sub-acute short-term rehabilitation, assisted
living, Alzheimer’s/dementia care, respite care, hospice care, and traditional
long-term care. It does not accept
residents who rely on Medical Assistance for payment of their care cost. The DFPC survey completed July 14, 2005,
contained a citation for violation of dignity requirements. Most of the complaints contained in the
citation were from residents on the sub-acute unit, who were there for a
short-term stay for rehabilitation after being hospitalized.
2. Before the survey, at a Resident Council meeting on June 2, 2005,
residents on the long-term care unit expressed concerns that call lights were
not being answered in a timely manner and that sometimes staff would answer the
call light, turn it off, and then leave again before returning to address the
resident’s concerns. Facility staff
indicated that department heads were auditing call light responses and would
educate staff concerning the importance of answering lights in a timely manner.[1] On July 7, 2005, residents in attendance at
the next Resident Council meeting agreed that the situation had improved and
made suggestions for additional improvement.[2]
Tag F 241
3. A facility must promote care for residents in a manner and in
an environment that maintains or enhances each resident’s dignity and respect
in full recognition of his or her individuality.[3] In evaluating whether a facility is complying
with this standard, the State Operations Manual (SOM) advises surveyors to
assess whether facility staff respond to a resident’s request for assistance in
a timely manner.[4] If a resident is the primary source of
information concerning a deficient practice, the survey team should conduct
further information-gathering and analysis, including additional interviews
with family and staff or record reviews to supplement or corroborate the
resident’s report. If additional sources
of information are not available, the team is to determine if the interviewees
are reliable sources of information and if the information received is
accurate. If so, citation of a
deficiency may be based on resident information alone.[5]
4. DFPC
cited the facility for a deficient practice with regard to this requirement based
on (1) statements made during the initial tour on July 11, 2005, by Resident
#25, Resident D, Resident 30, and Resident E that their call lights were not
answered in a timely manner; (2) statements made by Residents A, D, E, C, B,
and F during a group interview on July 12, 2005, that call lights and requests
for assistance were not answered in a timely manner; and (3) the surveyor’s
observation in the dining room that Resident #16 asked for help with eating but
did not receive an adequate or timely response.
The deficiency was issued at scope and severity level G, isolated,
actual harm that is not immediate jeopardy, based on the experiences reported
by Residents A and E.
5. The
facility disputes that there is a deficient practice, and it maintains the
resident statements were not sufficiently corroborated and are inaccurate.
6. After
the facility requested this IIDR, the DFPC agreed to remove references to
Residents B, C, and F from Form 2567 on the basis that these residents have
cognitive deficits that may have rendered their reports inaccurate.[6]
7. Resident
A was admitted to the sub-acute unit on June 30, 2005. She reported that she had not received timely
assistance twice in the two weeks prior to the resident meeting. The first time, she waited 20 minutes for an
answer to her call light for help in changing an incontinence product; after
answering the call, the nursing assistant then failed to return for 45 more
minutes. The second time, the resident
requested assistance with toileting after a meal, but did not obtain assistance
for two hours. During that time the
Resident sat in a soiled incontinence product.
Resident A was angry and emotional during the meeting in which she
reported this experience.[7]
8. Resident
E reported waiting 30 minutes to use the bathroom after pressing the call
light. Resident E also reported that she
had been assisted to the bathroom and then left there two to three times for
long intervals, up to 30 minutes. She
said on one occasion the call light in the bathroom did not work and she had to
pound on the walls to get the attention of an aide to assist her. She reported being frightened during this experience.[8]
9. Resident
D reported she once waited more than an hour for pain medication. Resident D reported that her roommate, who is
diabetic, put the call light on and waited 40 minutes for a response, at which
time Resident D wheeled herself out to the hall to find help.[9]
10. Resident
#25 was Resident D’s diabetic roommate.
She reported that on July 9, 2005, in the early morning she was in pain
and waited an hour for a pain medication.[10]
11. Resident
#30 said call lights were not answered on a timely basis, especially on
weekends. She reported waiting 30
minutes before someone responded to her request for pain medication.[11]
12. Resident
#16 did not make a complaint to surveyors, but a surveyor observed her during a
meal on July 12, 2005. According to the
surveyor’s notes, the resident was shaky and unable to drink from a “sippy” cup
(with a cover). At about 10:08 a.m., the
resident asked the nursing assistant for help drinking the milk; at 10:14 a.m.
the nursing assistant helped her take a sip.
At 10:22 the resident was able to get a sip of milk on her own, but
failed on the second attempt. At 10:46
a.m. the nursing assistant helped the resident take two drinks from the
cup. The resident drank one more sip
herself before the cup was removed (still two thirds to three fourths full) at
the end of the meal. The resident’s
annual MDS dated 6/24/05 provides that the resident requires “physical assist
of one” for eating.[12]
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 241
is supported by the facts and should be affirmed as to scope and severity.
2. That the findings with regard to Residents B, C, and F should be removed from Form 2567 based on DFPC’s agreement to delete them.
Dated: February 28, 2006.
s/Kathleen
D. Sheehy
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KATHLEEN D. SHEEHY |
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Administrative Law Judge |
Reported: Tape-recorded (two tapes, no transcript)
MEMORANDUM
The facility challenges the credibility of the individual statements made by residents to the surveyors. Although some of these statements may be inaccurate in some detail, the record supports the conclusion that the residents expressed these concerns in a substantially accurate manner and that the DFPC properly issued the citation. The record also reflects that the facility was aware of these concerns, at least as expressed by residents on the long-term care unit, and was working to address them before and during the time of the survey.
Resident A: The facility maintains that Resident A did not like
the particular nursing assistant who was involved in both incidents and had a racial
bias toward the nursing assistant. In
addition, the facility argues that Resident A now lives in the facility’s
assisted living unit, and it is unlikely she would have chosen to live there if
she had suffered any actual harm during her experience on the sub-acute
unit. In a statement taken just before
the IIDR meeting, the resident states that both incidents occurred on one day
and involved the same nursing assistant.
The statement does contain indicators of possible racial bias, but also
confirms that the resident made the statement contained in the survey so the
facility would improve its response to residents’ requests for assistance.[13] The report by the resident is sufficiently
reliable based on this record.
In addition, this resident required
incontinence products only because of her recent hospitalization and limited
mobility, and she was sensitive to dignity issues concerning these products. Having to sit in a soiled incontinence
product for a prolonged period of time, when the resident had previously asked
for help in getting to the toilet, does constitute actual emotional harm. Because this example constitutes actual harm,
the deficiency was properly cited at this severity level even though most of
the other complaints do not rise to this level of severity.[14]
Resident E: The facility could not confirm through any maintenance records that the call light in her room had ever been broken or repaired. The facility is skeptical that the resident would have any idea how long she was left in the bathroom because there is no clock in the room. The facility also contends that Resident E did not like having “non-American” (African) help in the bathroom and that her reports may have been influenced by racial bias, that she habitually made negative statements, and that she made repetitive health complaints that limit her credibility. Just before the IIDR meeting, however, the resident confirmed the accuracy of her statements and said she would not have complained if it had not happened multiple times.[15] The record supports the conclusion that the incident occurred as the resident described it. In addition, her fear of being forgotten in the bathroom is emotional harm that constitutes actual harm.
Resident D: The facility maintains Resident D was receiving heavy pain medications for severe peripheral vascular disease, including methadone four times per day and Percocet every four hours. The facility believes she was confused about her complaint due to the effect of these pain medications. She was not specific about the day on which she waited for her own medication, but she said the incident involving her roommate happened in the early morning hours of July 9, 2005. Medical records indicate that her roommate had a low blood sugar reaction on a different day, July 12, 2005. According to the nurse on duty that night, she did not give Resident D her methadone immediately upon her request because she was busy helping another nurse with a patient who was dying; but at 12:30 a.m. the nurse gave the resident her methadone. It is not clear from the record how long the resident waited between the time she requested the medication and when she received it. When she did receive it, she asked for Percocet at the same time. The nurse was not comfortable giving these medications together and asked the resident to wait for one hour. The resident was upset, but she agreed. The nurse checked the room at 2:30 and 4:00 a.m. and found her asleep. No call lights were on at those times. The nurse does not recall Resident D asking for assistance for her roommate at all. [16] Even if this resident was confused in some detail about the date or the events of the night, her confusion about these details does not undermine her basic complaint, which was that she waited too long for someone to bring her medication. The resident’s report is sufficiently reliable.
Resident #25: The facility and DFPC believe the resident is confused about the date of the incident. She made the complaint during the initial tour on July 11, 2006. The resident was admitted in the afternoon of July 8, 2006. Nursing records show that on July 9, 2005, at 1:30 a.m., the resident received Percocet for pain. The last time she received medication before this was at 6:30 p.m. the day before, or about seven hours previously. The resident could have requested the medication earlier than 1:30 a.m., without it being documented in the medical record. Or, it could have happened on July 10, 2005; the records suggest the resident was requesting medication every four to six hours until the afternoon of July 10, 2005. Even if the resident is confused about the date, however, there is no basis in the record for concluding that she fabricated the complaint. Her recent statement, taken just before the IIDR meeting, confirmed that the incident occurred at about 5:30 a.m. after her roommate used her call light.
Resident #30: Nursing notes reflect that this resident complained of pain almost every day from the time of her admission on June 30, 2005, through July 12, 2005.[17] There is a notation that she needed to be reminded to use the call light on July 14, 2005. Again, it is not disputed that she made the complaint to surveyors. The medical records provide some corroboration of her frequent complaints of pain. The resident’s report is sufficiently reliable under the circumstances.
Resident #16: The nursing assistant at the IIDR meeting said that the resident liked to try to eat and drink by herself and required frequent verbal cues, but no regular physical assistance. Notes made by the surveyor are detailed and contemporaneous. They do not reflect the frequent verbal cues the nursing assistant described. The notes provide that the resident asked for assistance and did not receive adequate assistance to drink her milk. The Administrative Law Judge has concluded that the surveyor’s notes concerning the incident are more reliable than the recollection of the nursing assistant seven months later.
K.D.S.
[1] Ex. 5.
[2]
[3] 42 C.F.R. § 483.15(a).
[4] Ex. E-2.
[5] Ex. 1 at 81, Survey Procedures for Long Term Care Facilities.
[6] Letter dated January 19, 2006.
[7] Exs. F, G, and H; Ex. 10.
[8] Exs. F, G, and I; Ex. 9.
[9] Exs. F, G, and J; Ex. 7.
[10] Exs. F, G, and K; Ex. 6.
[11] Exs. F, G, and L; Ex. 8.
[12] Exs. F and N.
[13] Ex. 10, Statement dated February 3, 2006.
[14] Ex.C-3.
[15] Ex. I-12-14.
[16] Statement from Anna Brutlag, February 10, 2006.
[17] Ex. L.