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OAH 3-0900-21550-2 |
STATE OF
OFFICE OF
ADMINISTRATIVE HEARINGS
FOR THE COMMISSIONER OF HEALTH
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In the Matter of
Good Samaritan Society— |
RECOMMENDED DECISION |
The above matter was the subject of an independent informal dispute
resolution (IIDR) meeting conducted by Administrative Law Judge Kathleen D.
Sheehy at 1:00 p.m. on December 20, 2010, at the Office of Administrative
Hearings. The OAH record closed at the
conclusion of the meeting on that day.
Marci Martinson, Division of Facility and
Provider Compliance (DFPC),
Robert Rodè, Voigt, Klegon & Rodè, LLC,
2550 University Avenue West, Suite 190 South, St. Paul, MN 55114, appeared for Good Samaritan
Society—Redwood Falls (Facility). The
following persons participated on behalf of the Facility: Michelle Tomlinson, Administrator; Amy
Stewart, Director of Nursing; Marlys Skoblik, Case Manager; Nancy Drange, Nurse
Practitioner at the Willmar Wound Clinic; and Resident #25, along with his
daughter-in-law, D.P.
FINDINGS OF FACT
1.
Resident
#25 is a 95-year-old man who was admitted to the Facility in May 2009 with
diagnoses of diabetes mellitus, neuropathy, spinal stenosis, congestive heart
failure, and pressure ulcers. He used an
electric scooter for mobility. At the
time of admission, he had a stage 1 pressure ulcer on his left buttock.[1] By July 28, 2009, the pressure ulcer had
healed.[2]
2.
The
resident’s August 2009 care plan contained a variety of interventions intended
to prevent and heal pressure ulcers: a foam cushion with a cut-out area for use
on his scooter/wheelchair; an alternating air flow mattress; topical skin
treatments; dietary interventions; and weekly skin evaluations. In addition, the care plan called for consultation
with wound clinic specialists as necessary; he was to lie down on his sides in
the morning and afternoon after meals (as allows); he was to off-load weight
when in the wheelchair; and he was to be turned and repositioned every three
hours and as needed. Staff members were
directed to encourage positional changes to promote comfort for pain in his
shoulder and spine.[3]
3.
On
October 5, 2009, a staff member noted that the resident “refuses to turn, needs
encouragement.”[4]
4.
On
October 12, 2009, the area on the resident’s coccyx re-opened as a stage 3 pressure
ulcer.[5]
5.
On
October 13, 2009, the resident’s care plan was amended with notes to confer
with occupational therapy regarding positioning and changing from a foam to a
gel cushion on the scooter; daily monitoring and documenting of the status of
the ulcer and pain control; and the resident was to lie down on his side every
day after dinner, and be positioned on his sides at night as much as possible.[6]
6.
From
October onward, facility staff completed daily and weekly observations of the
coccyx ulcer.[7]
7.
On October 14, 2009, a positioning data
collection tool was performed for sitting, and it showed that the resident
could tolerate sitting for three hours with no redness noted on pressure
points.[8]
8.
In the
next two weeks, the care plan was amended again in an attempt to find a better
wheelchair cushion that was comfortable for the resident.[9]
9.
On
October 23, 2009, a positioning data collection tool was performed for sitting,
during which the resident found the new cushion to be uncomfortable after one
hour. Use of the new cushion was
discontinued, and the staff reverted to using the foam cushion with a cut-out
space. On the same day, facility staff
requested a physician order to change the type of dressing for the wound because
occlusive dressings would not adhere to the resident’s skin.[10]
10.
By
November 4, 2009, the ulcer was more macerated and had increased in size. The care plan provided that the Resident
should continue lying down in the morning and afternoon each day, and current
skin treatments would continue.[11]
11.
On
November 13, 2009, a quarterly Minimum Data Set (MDS) was completed. It reflected that the resident was
independent in making decisions but had some short-term memory problems;
required assistance from two or more persons for transfers; used pressure-relieving
devices for chair and bed; was on a turning/repositioning program; and received
ulcer care.[12] There is no indication that at this time the
resident was refusing to be repositioned or to lie down, as called for in his
care plan.
12.
On
November 16, 2009, another positioning data collection tool was administered,
which showed that the resident could tolerate sitting in the scooter for three
hours without redness.[13]
13.
On November 24, 2009, facility staff referred
the resident to a wound clinic. The referral
sheet indicates that staff members were having the resident lie down in the
mornings and afternoons to reduce pressure on his coccyx.[14] The practitioner at the wound clinic advised
continuing the same treatments.[15]
14.
In the
end of November 2009, the resident began experiencing severe pain and spasms in
his right thigh, hip, and lower back, resulting from neuropathy and nerve
compression in his spine. He began
taking stronger pain medications.[16] His pain was monitored daily.[17] Although nursing staff noted that the
resident had pain after lying down, staff did not document that he also became
increasingly reluctant to lie down.[18]
15.
On
January 14, 2010, facility staff members noted that the wound had worsened and
arranged for a return to the wound clinic.
Notations on the wound flow sheet for that day indicate that staff
members would continue efforts to have the resident lie down in the morning and
afternoon on his sides, along with other preventive cares.[19]
16.
On
January 29, 2010, the clinician at the wound clinic recommended use of a ROHO
cushion on all seating surfaces.[20]
17.
On
February 4, 2010, the facility received the cushion and applied it to the
scooter chair. The care plan was revised
to provide that the new cushion should be checked to ensure it was properly
inflated and that the positioning data collection tool should be administered
again.[21]
18.
In
addition, on February 4, 2010, a quarterly MDS was completed. It noted that the resident had a stage 3
pressure ulcer and required extensive assistance with mobility transfers and
toileting. According to the MDS, the
resident was continent of urine and incontinent of bowel.[22] A bladder assessment conducted the same day
provides that the resident was occasionally incontinent of urine, with seven
incontinent episodes in the previous 90 days.
The assessment also states that the resident declined to implement a
scheduled toileting program.[23]
19.
On
February 8, 2010, staff members revised the care plan to note that the resident
refused to use the ROHO cushion.[24]
20.
On
February 10, 2010, surveyors visited the facility and observed that the
resident was seated on his scooter from 7:50 a.m. to 12:10 p.m. without being
repositioned. When he was then assisted
to the toilet, his incontinence product was wet.[25]
21.
The nursing assistant caring for the resident
stated that staff members tried to have the resident lie down in the afternoons
on his side, but that he was not on a turning schedule. She also said the resident refused to lie
down or be toileted on a daily basis.[26] When interviewed again the next day, she said
the resident refused to lie down at least four times a week and would usually
only lie down once per day. In addition,
she said the resident was usually incontinent of urine in the morning.[27]
22.
When
interviewed the next day, a registered nurse stated that the resident refuses
to lie down or be repositioned because of sacral pain and that he had been
refusing this care for the “last several months.”[28]
23.
When
surveyors asked the director of nursing whether the resident was refusing to be
repositioned, she stated she was not aware of it and that refusals were not
documented in the resident’s medical record.[29]
24.
The
DFPC cited the facility as follows for violations of Tag F276 and F314. Surveyors rated the F-314 deficiency at a scope
and severity of G, an isolated deficiency that results in actual harm.[30]
25.
Resident
#25 and his family are grateful for the good care he has received at the
Facility and believe staff members have done everything possible to help heal
the ulcer, given his tendency to disregard efforts to reposition him when he
would rather be up and active on his scooter.[31]
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
The Administrative
Law Judge recommends that the Commissioner find the citations for F-tags 276
and 314 (Resident #25) are supported by the facts, except as follows: The description of the size of the resident’s
pressure ulcer at page 17 of 23 of Form 2576 should be changed from “2.0 cm x
5.0 cm” to “2.0 cm x 0.5 cm.” DFPC
agrees that this change is necessary to correct a typographic error in the
2576. With this change, the findings are
supported by the facts and should be affirmed as to scope and severity.
Dated: December 29, 2010
|
s/Kathleen D. Sheehy |
|
KATHLEEN D. SHEEHY |
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Administrative Law Judge |
Reported: Digitally recorded,
no transcript prepared
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.
MEMORANDUM
Tag F276 is based upon a violation of 42 C.F.R. § 483.20(c). The regulation requires that a facility perform quarterly review assessment once every three months. Interpretive guidelines developed by CMS provide that a quarterly assessment must be consistent with the information in the resident’s progress notes, plan of care, and resident observations.[32]
Here, the facility completed the quarterly assessments as required by the regulation, and the assessments were consistent with information in the progress notes and plan of care. The problem is that the assessments were not consistent with staff observations of the resident (which were not documented in his medical record)—that the resident routinely was refusing to be repositioned every three hours and was refusing to lie down in the morning and afternoon, as provided in his care plan, and had been doing so possibly for months. In addition, the nursing assistant observed that the resident was regularly incontinent in the mornings, and there is no mention of this in either the MDS conducted on February 4, 2010, or the bladder assessment performed the same day. Incontinence may have affected the resident’s tolerance for sitting, but no positioning data were collected in response to this development. The resident’s refusal to accept interventions and the resident’s incontinence could significantly prolong the healing process or prevent the healing of this ulcer, but because these problems were not documented, the Administrative Law Judge cannot conclude that the problems were properly assessed, that alternate interventions were attempted, and that the care plan was appropriately revised to account for them.
Tag F 314 is based upon an alleged violation of 42 C.F.R. § 483.25(c), which provides that based upon a resident’s comprehensive assessment, the facility must ensure that (1) a resident who enters a facility without pressure sores does not develop pressure sores unless the resident’s clinical condition demonstrates that the sores were unavoidable, and (2) a resident with pressure sores receives the necessary treatment and services to promote healing, prevent infection, and prevent new sores from developing.[33]
A pressure sore is considered “unavoidable” only if the facility
documents that it has (1) evaluated the resident’s clinical condition and
pressure ulcer risk factors; (2) defined and implemented interventions that are
consistent with resident needs, resident goals, and recognized standards of
practice; (3) monitored and evaluated the impact of the interventions; and (4)
revised the interventions as appropriate.[34]
The facility argued that it monitored the resident’s pressure ulcer on a
daily basis and implemented numerous appropriate interventions between October
2009 and February 2010. The main
problem, again, is that the facility cannot demonstrate that it evaluated the resident’s
refusal to be repositioned and, to a lesser extent, his incontinence, in
developing and revising interventions to address the pressure ulcer. Those problems were not documented in the
medical record, and absent this documentation, the DFPC properly cited a
deficient practice for failing to provide all necessary care and services to
promote healing.
The State Operations Manual defines “actual harm” as a finding of noncompliance that results in a negative outcome that
has compromised the resident’s ability to maintain and/or reach his highest
practicable physical, mental, and psychosocial well-being as defined by an
accurate and comprehensive resident assessment, plan of care, and provision of
services (emphasis added). This standard
requires a determination of causation that is independent of whether the outcome
was avoidable or not; a finding of actual harm requires evidence that the
deficient practice actually caused the harm.
At the time the citation was issued, there was no evidence in the medical record to suggest that the facility was responding appropriately to the resident’s refusal of care by documenting those refusals, educating the resident, and reminding him (due to his memory issues) of the potential consequences of refusal. Moreover, it appears the care plan was not being implemented. The nursing assistant caring for the resident was not aware he was to be repositioned every three hours; the resident sat for more than three hours without being repositioned when the surveyors were there; and there is no explanation for why the MDS and bladder assessments were so inconsistent with the nursing assistant’s observation that the resident was routinely incontinent in the mornings. Based on the record, the Administrative Law Judge concludes the DFPC correctly rated the scope and severity of tag F 314 as resulting in actual harm.
K.D.S.
[1] DFPC Ex. I-2; Facility Exs. 13 & 16.
[2] DFPC Ex. I-11, I-13.
[3] DFPC Ex. P-30; Facility Ex. 2.
[4] Facility Ex. 23.
[5] Facility Ex. 2; DFPC Ex. I-11, I-13.
[6] DFPC Ex. P-28; Facility Ex. 2.
[7] Facility Ex. 4 (treatment records); Facility Ex. 5 (acute care flow sheets); Facility Ex. 6 (weekly wound care flow sheets); Facility Ex. 20.
[8] Facility Ex. 7.
[9] DFPC Ex. P-28, P-29.
[10] DFPC Ex. P-11; Facility Ex. 11.
[11] DFPC Exs. P-25, P-29.
[12] Facility Ex. 1.
[13] DFPC Ex. I-11; Facility Ex. 11.
[14] Facility Ex. 8.
[15] DFPC Ex. P-29.
[16] Facility Ex. 17; Facility Ex. 2, Ex. 12.
[17] Facility Ex. 19.
[18] Comment of Amy Stewart; DFPC Ex. P-14..
[19] DFPC Ex. P-15, P-20, P-27; Facility Ex. 9.
[20] DFPC Ex. P-21; Facility Ex. 8.
[21] DFPC Ex. P-27; Facility Ex. 2.
[22] Ex. I-11.
[23] Facility Ex. 10.
[24] Facility Ex. 2.
[25] DFPC Ex. I-12.
[26]
[27]
[28]
[29]
[30] The Facility originally sought review of Tag F309, as well as F276 and F314. By letter dated December 14, 2010, the Facility withdrew the appeal of F309.
[31] Statements of D.P. and Resident #25.
[32] DFPC Ex. E-2.
[33] 42 C.F.R. § 483.25(c).
[34] Ex. F-1 & F2.