“Bad” Nursing Home Survey
Reversed on Administrative Appeal

Jane Thornton Mastrucci and Cynthia Harrison Ruiz of QMPW have received a very favorable decision in an administrative appeal of a bad nursing home survey by the Center for Medicare & Medicaid Services (CMS).

In Palm Beach County Home v. CMS (Case No. C-99-102, H.H.S., DAB, Civil Remedies Div., October 29, 2001), the Administrative Law Judge (ALJ) reversed all three tags, and held that CMS had no basis to deny payments for new admissions to the facility. The case was tried in June 2001 by Jane Mastrucci and her father and former law partner, John W. Thornton, while Cindie Ruiz co-authored the pre- and post-trial briefs with Mrs. Mastrucci.

During the trial, the ALJ refused to hear testimony regarding the facility’s written policy on discharge and discharge planning, certain medications, and an alleged leg fracture requiring nursing care since there were no allegations regarding these topics in the survey. He also refused to admit into evidence or hear testimony on prior surveys, other residents not at issue in the case, or the reputation of the facility.

With respect to survey tag F201, the Judge ruled that the nursing home justifiably transferred a resident to an unregulated facility (a residential Salvation Army) since his continued presence at the nursing home endangered not only the safety of other residents, but the nursing home’s own staff. The resident in question was a 35-year-old, homeless, male resident who had made a significant recovery (from a significant head injury and numerous fractures) while at the nursing home over a nine-month period. As the man recovered, he became increasingly violent and aggressive, and was ultimately discharged after an unprovoked attack on another resident and a Certified Nursing Assistant.

The ALJ further held that F224, Abuse, dealt with facility abuse of residents, not “resident-to-resident abuse,” and contained no requirement that the facility report “resident-to-resident abuse” to police or local abuse hotlines. He also ruled there was NO evidence of facility abuse.

Finally, the ALJ held that while F329 requires “adequate” monitoring of the side effects of psychotropic drugs, daily monitoring is not required unless there is a medical basis for daily monitoring. Moreover, he ruled that there is no requirement that a specific form be used to document the monitoring (such as a Psychoactive Drug Flow Record). The ALJ also held that the absence of side effects need not be recorded, and that monitoring is not required to be documented. Rather, the focus of the regulation is that the resident be adequately monitored, and that the physician be kept adequately informed of the condition of the resident.

December 2001