Elder Law FAX -- October 24, 2005

Court Affirms Pressure-Ulcer Penalty Against Nursing Home
An Ohio nursing home must pay a $2800 fine because it was out of compliance with federal regulations governing quality of care in Medicare and Medicaid-certified facilities.

Sanctuary at Whispering Meadows failed to ensure that a resident did not develop avoidable pressure sores, according to an opinion from Judge Ronald Lee Gilman of the U.S. Court of Appeals for the Sixth Circuit. He affirmed the determination of the Departmental Appeals Board of the Department of Health and Human Services.

Federal law requires that facilities participating in the Medicare and Medicaid programs submit to periodic inspections, known as surveys, to ensure that they are in substantial compliance with all federal requirements for skilled nursing facilities. These surveys are generally conducted by the health departments of the various states on behalf of the U. S. Centers for Medicare & Medicaid Services, the federal agency that administers these two government programs (CMS).

The Ohio Department of Health conducted such a survey at Whispering Meadows in October and November of 1999. During this survey, Whispering Meadows was found to be out of compliance with federal rules on nursing home care, which require participating facilities to ensure that "[a] resident who enters the facility without pressure sores does not develop pressure sores unless the individual's clinical condition demonstrates that they were unavoidable."

In particular, the survey found that one patient, R2 (referred to by the designation used by the government to protect his privacy), had been admitted to Whispering Meadows without pressure sores and had subsequently developed them after beginning to take psychoactive drugs that decreased his mobility. The surveyor reviewed R2's medical records and concluded that the pressure sores were not clinically unavoidable.
CMS agreed with the surveyor and imposed a civil monetary penalty of $2,800 on Whispering Meadows.

Whispering Meadows appealed CMS's determination, but an administrative law judge (ALJ) upheld the findings of the Ohio Department of Health and the imposition of the civil monetary penalty. The DAB affirmed the ALJ's decision. On appeal to the federal appeals court, Whispering Meadows claimed that the facility was in substantial compliance with all applicable nursing home standards and that the civil monetary penalty imposed was excessive.

Judge Gilman reviewed the evidence and agreed with the decision of the Department Appeals Board that the pressure sores were not unavoidable. In particular, noted Judge Gilman, the DAB relied on several findings that demonstrate the failure of Whispering Meadows to aggressively prevent and treat R2's pressure sores, including the following:

(1) R2 was placed on psychoactive medication that decreased his mobility in June of 1999, but his plan of care did not take this into account until August of 1999; (2) R2's plan of care called for daily skin assessments, but the physician's orders and treatment records called for weekly rather than daily assessments; and (3) during the periods of greatest susceptibility to pressure sores, the nursing records document only sporadic repositioning of R2.

The appeals court also credited the evidence of the nurse surveyor over the facility's medical director, who did not explain the analytical process that led him to conclude that R2's pressure sores were unavoidable.

Observing that CMS rules permit imposition of a civil monetary penalty ranging from $1000 to $10,000 for an infraction of this type, the appeals stated that the penalty was "relatively low" and "sufficient evidence supports the ALJ's finding that the penalty will not compromise resident health and safety at Whispering Meadows."

Sanctuary at Whispering Meadows v. Thompson, October 7, 2005.

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