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OAH 8-0900-17802-2 |
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 conference conducted by Administrative Law Judge
Eric L. Lipman on May 31, 2007. The
conference concluded on that date.
Marci Martinson, Unit Supervisor,
Division of Compliance Monitoring, PO Box 64900, St. Paul, MN 55164-0900,
represented the Minnesota Department of Health (“the Department”). Mary Cahill also attended the meeting and
made comments on behalf of the Department.
April J. Boxeth, Voigt, Klegon &
Rode, LLC,
As detailed in the Memorandum that
follows, based upon the documentary exhibits, arguments and applicable case
law, the Administrative Law Judge makes the following:
RECOMMENDED
DECISION
(a) The Commissioner should further recommend that Tag F-309 be set aside, as the evidence does not establish a deficient practice.
(b) The Commissioner should further recommend that Tag F-248 be set aside, as the evidence does not establish a deficient practice.
Dated this 14th day of June, 2007.
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__/s Eric L. Lipman__________ |
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ERIC L. LIPMAN |
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Administrative Law Judge |
Reported: Digitally recorded (3 wma audio files)
No transcript prepared
NOTICE
Under Minn. Stat. § 144A.10,
subdivision 16 (d) (6), this recommended decision is not binding upon the
Commissioner of Health. Further,
pursuant to 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.
MEMORANDUM
This matter arises out of a survey at
General Statutory and Regulatory Background
Participation requirements for skilled
nursing and other long-term care facilities in the Medicare program are set
forth in 42 C.F.R. Part 483, Subpart B. Provisions governing the surveying of
long-term care facilities and enforcement of their compliance with
participation requirements are in 42 C.F.R. Part 488, Subparts E and F.
Federal Medicare and Medicaid
authorities assure compliance with the participation requirements through
regular surveys by state agencies. The
survey agency reports any “deficiencies” on a standard form called a “Statement
of Deficiencies.”[3]
A “deficiency” is a failure to a meet a participation
requirement in 42 C.F.R. Part 483.[4] Deficiency findings are organized in the Statement
of Deficiencies under alpha-numeric “tags,” with each tag corresponding to a
regulatory requirement in Part 483.[5] The facts alleged under each tag may include
a number of survey findings, which (if upheld) would support the conclusion
that a facility failed to meet the regulatory standards.
A survey agency's findings also include a determination as to the “seriousness” of each deficiency.[6] The seriousness of a deficiency depends upon both its “scope” and its “severity.”[7]
When citing deficiencies, state surveyors use the
Centers for Medicare and Medicaid Services (CMS) “Chart of Enforcement
Remedies” (otherwise known as the “Scope and Severity Grid” or “the
Grid”). The level of deficiency and the
enforcement action to be taken is set out on each square of the Grid. Each square on the Grid has a letter
designation. A is the least serious, and
L is the most serious.[8]
Lastly, Minnesota Statutes §144A.10, Subdivision 16,
establishes a process for independent and informal resolution of disputes
between survey agencies and health care providers with a participation
agreement. In this request for
Independent Informal Dispute Resolution,
Tag F-309 – Failure to Provide Necessary Pain Management Services
A. Regulatory
Standards
Under federal quality of care regulations, the
facility must provide the necessary care and services so that each resident
might attain the highest practicable physical, mental, and psychosocial
well-being.[9] So as to guide the delivery of services the
facility is likewise obliged to conduct initial and periodic assessments of the
resident that are “comprehensive, accurate, standardized, and reproducible.”[10]
B. Resident 14
At the time of the survey, Resident 14
was an 80-year-old male patient with cancer that had earlier metastasized to
the bone, brain and spinal cord.[11] His diagnosis also included both impairments
in his ability to communicate and severe dementia.[12] A few weeks before the survey, Resident 14
was admitted to the facility for hospice care – at what his family members
believed was the end of Resident 14’s life.[13]
In the Statement of Deficiencies, the Department
itemizes two principal failures with respect to the care of Resident 14. The Department asserts that the facility
neither documented the reports of Resident 14’s increasing non-verbal symptoms
of pain, nor did it undertake new clinical assessments of the Resident’s pain
once these reports were received.[14]
The troubling feature of these
deficiency claims, however, is that all of evidence of the facility’s failure
to meet the required standards is drawn through the surveyor herself. The surveyor is either the reporter who
witnesses the Resident’s pain or the person who reports that other staff
validated these observations.[15] Notwithstanding a thorough review of the IIDR
record, the Administrative Law Judge could not find any data that was
independent of the surveyor in support of the deficient practice claims.
In isolation, this fact might not be
otherwise remarkable – particularly because of what it means for a facility to
fail to keep adequate records or to perform timely assessments. It is to be expected that a facility which
has poor record-keeping practices generally, would also fail to have records that
detail its lapses. Likewise, it is not
unusual that record-keeping deficiencies are noticed in the first instance by
the state surveyor. Bringing to light
matters which are not otherwise apparent to facility staff is a key purpose,
function and benefit of state survey process.[16] Indeed, it is for these reasons that state
surveys are performed.
Yet, it is also true that there are
features of the IIDR record which lead one to approach the surveyor’s description
of events in this case with skepticism.
The first is that Donna Netland, a nurse who is quoted by the surveyor
as having acknowledged that Bethesda failed to complete required records,[17]
testified earnestly at the dispute resolution conference that the statements
that the surveyor attributed to her were “completely false.”[18] Nurse Netland also sought to retract her
earlier notation, found at Exhibit F-68, to the effect that “direct care staff
reports” indicated that Resident 14 was in pain. Netland asserted that this record entry was
based upon a report of the surveyor to her and that this claim was later denied
by the nursing assistants who purportedly made these observations to the
surveyor.[19] In this context it is worth noting that since
the survey team’s exit, Ms. Netland has taken a nursing position with another
provider[20]
– a fact which makes the suggestion that she is biased in favor of
Secondly, and especially curious, is
that while the surveyor reports an angry outburst from a relation of Resident
14 (as to the difficulty in obtaining proper pain medication for the Resident),[22]
none of this antipathy bubbles up anywhere else in the IIDR record. It would stand to reason that if Resident
14’s family genuinely believed that “an act of Congress” was needed before
Bethesda would provide pain relief,[23]
these sentiments would have appeared somewhere in the record beyond the
surveyor’s notes. Yet no such hints are
evident in the facility correspondence, nursing notes, hospice documents or
other records. To the contrary, as
facility witnesses testified at the conference, and as further supported by the
underlying records, there was a detailed, continuous and responsive set of
care-related exchanges between
Third, the surveyor’s overall
description of the delivery of care for Resident 14 is rickety in comparison
with the details that are drawn from the underlying record. While the nursing records suggest that
Resident 14’s susceptibility to pain was monitored and charted by a variety of
different professionals, over time,[25]
the surveyor’s report is the sole source of evidence that the facility’s pain
management program had collapsed.[26]
At bottom, this case may point up the
genuine limitations of the IIDR process in resolving certain fact-bound
questions. For very sound policy
reasons,
This is the case here. Faced with the choice between always
crediting the surveyor’s version of events as true (because it is the
surveyor’s version), or further pursuit of this Tag, deleting this Tag is the
better result. Due to a want of evidence
as to a deficient practice, the Commissioner should recommend that Tag F-309 be
set aside.
Tag F-248 – Failure to Assist with Access to Activities:
A.
Regulatory
Standards
Federal regulations
require participating facilities to “provide for an ongoing program of
activities designed to meet, in accordance with the comprehensive assessment,
the interests and the physical, mental, and psychosocial well-being of each
resident.”[29] Further, within these programmatic offerings,
a resident “has the right to [c]hoose activities [and] schedules … consistent
with his or her interests, [i]nteract with members of the community both inside
and outside the facility; [and make] choices about aspects of his or her life
in the facility that are significant to the resident.”[30]
B. Resident
12
In the Statement of Deficiencies, the Department
asserts that the facility failed to provide timely assistance – specifically,
transportation to a then-ongoing game of dominoes – for a resident who had
earlier expressed interest in this activity.[31] The deficiency describes a lack of follow
through on the request for assistance.
As aptly summarized by a member of the Department’s
team at the IIDR conference, this dispute is essentially a “he said – she said”
conflict. On the one hand, the surveyor
unequivocally reports that she heard Resident 12 make a request to join the
domino game;[32]
whereas the activity staff member asserts that the Resident had not made a
definitive selection one way or the other.[33] In doubt as to Resident 12’s preferences and
choice on that day,[34]
the activities staff member urged Resident 12 to activate the nursing call
light, and to request assistance, if she later wanted to join the game in
progress.[35]
As with Tag F-309, sustaining the deficiency
requires that one credit the surveyor’s report of events principally because it
is the surveyor’s report of events. The
rendition is not bounded by other facts in the record.
What is not in dispute is that Bethesda identified
Resident 12’s interest in simple games before the survey;[36]
retains a total of 10 employees to make “sweeps” of the residents’ rooms to
encourage residents to participate in organized activities;[37]
made direct contact with Resident 12 on the day of the survey as to an upcoming
set of games;[38]
and hosted other residents at this same activity.[39] In this context, the delay in transporting
Resident 12 to the dominoes game is more likely attributable to an isolated and
wholly innocent miscommunication than it is to any other source.
Due to a want of evidence as to a deficient practice,
the Commissioner should recommend that Tag F-248 be set aside.
E.L.L.
[1] See, Exs. D and O.
[2] In advance of the May 31, 2007 dispute resolution conference, the Department withdrew two examples of the earlier Tag 279; and with this reduction, the facility withdrew its objection to Tag 279. See MDH Letter of May 15, 2007 and Boxeth Letter of May 24, 2007.
[3]
See, 42
C.F.R. § 488.325 (a) (2005);
[4] See, 42 C.F.R. § 488.301 (2005).
[5]
[6] See, 42 C.F.R. § 488.404 (2005).
[7] See generally, Ex. C.
[8] See, Ex. C-4.
[9] See, 42 C.F.R. § 483.25 (2005).
[10] See, 42 C.F.R. §§ 483.20, 483.25 (2005).
[11] See, Ex. F-1a through F-2b; F-12 through F-35; F-42 and F-82.
[12]
[13] See, F-42.
[14] See, Ex. D-2 and
[15] See, Ex. F-3a through F-8b.
[16] See, generally, 42 C.F.R. § 483.1 (b) (2005) (the provisions Part 483 "serve as the basis for survey activities for the purpose of determining whether a facility meets the requirements for participation in Medicare and Medicaid").
[17] See, Ex. D-6 (“The nurse manager verified that the nurse had not documented or reported the pain and nothing had been done”).
[18] Compare, Testimony of Donna Netland.
[19] Test. of D. Netland.
[20]
[21] Compare generally, Oak Lawn Pavilion, Inc. v. HCFA, No. CR474 (Dep't App. Bd. 199) (the Board compares the motivations of witnesses and other facts surrounding divergent testimony) (http://www.hhs.gov/dab/decisions/cr-474.htm).
[22] See, Ex. F-7b.
[23]
[24] See, Ex. F-54, F-55, F-57, F-58, F-60, F-62 through F-66, and P-5 through P-7.
[25] See, Ex. F-56, F-59 through F-67.
[26] See, Ex. F-3b through F-6.
[27] Compare,
[29] See, 42 C.F.R. § 483.15 (f) (1) (2005).
[30] See, 42 C.F.R. § 483.15 (b) (2005); compare also, 42 C.F.R. § 483.20 (k) (1) (i) (2005) (“the comprehensive care plan “must describe . . . [t]he services that are to be furnished to attain or maintain the resident's highest practicable physical, mental, and psychosocial well-being as required under § 483.25”).
[31] See, Ex. K-2 and
[32] See, Exs. K-2 and O-4a.
[33] See, Ex. P-8.
[34] Compare, 42 C.F.R. § 483.15 (b) (2005).
[35] See, Ex. P-8.
[36] See, Ex. O-17.
[37] See, Testimony of Carla Kieft.
[38] See, Exs. O-4a and P-8.
[39] Id; Test. of C. Kieft. Whatever one’s view as to what happened with Resident 12, this does not appear to be a widespread or systemic defect in routing residents to “quality of life” activities.