The nursing home industry has called for major changes in the federal survey process by which federal and state survey agencies determine whether facilities are complying with federal standards of care and providing residents with high quality of care and quality of life. The industry argues that the nursing home industry has changed since Congress enacted the 1987 Nursing Home Reform Law and that its voluntary efforts should be recognized and taken into account. A decision by Administrative Law Judge (ALJ) Steven T. Kessel in a Tennessee nursing facility appeal, implicitly rejecting these claims, holds that a facility's adoption of a specific philosophy of care does not eliminate the need to follow federal law, resident care plans, and a facility's own policies.
The case began when the Tennessee state survey agency conducted a survey at Community Care of Rutherford County, Inc. between April 24 and May 13, 2009 and cited eight deficiencies, including a deficiency in the supervision of residents. The Centers for Medicare & Medicaid Services imposed remedies and the facility appealed.
In his decision, ALJ Kessel addressed only one deficiency, the supervision deficiency, which was based on the care of eight residents. Judge Kessel upheld the deficiency. Seven residents sustained repeated falls and one resident was injured when staff did not use the mechanical lift that the physician ordered for all transfers. The facts of the falls were largely the same for each of the residents, as described in detail by the ALJ. Generally, the facility failed to implement all interventions that were recommended or could have been implemented (such as providing closer supervision) and violated its own falls prevention policy (which required the facility to develop and implement new interventions when previously-developed interventions were ineffective in preventing falls).
"Resident 5" fell 28 times, with nine injuries, between March and July 2008, when his last fall proved fatal. Although "his risk for falling increased while these interventions were in place" and "Resident 5" fell almost daily, the facility did not attempt continuous supervision. The facility knew that a second resident was able to remove or disable the chair alarm, but did not plan or implement additional interventions. The resident fell at least 41 times between July 1, 2008 and April 30, 2009.
The facility argued that "Resident 5" and the other residents who fell were beneficiaries of its philosophy of care, which it called "Eden Alternative." The facility described the Eden philosophy as providing maximum freedom to residents, which Judge Kessel interpreted as follows: "Eden promotes allowing residents mobility and the ability to express preferences, recognizing that there will be ensuing risks. Eden promotes allowing residents to take reasonable risks and enjoy the last years of their lives."
Judge Kessel described the facility's contentions about the Eden Alternative:
First, although Petitioner devotes much energy to extolling the virtues of the Eden Alternative, it never describes the specific elements of the program. For example, Petitioner introduced the testimony of George Smith, M.D., Petitioner's medical director, who describes himself as a proponent of the Eden Alternative. In his testimony, he avers that the Eden Alternative is
dedicated to eliminating loneliness, helplessness, and boredom and to transforming institutional approaches to care into the creation of a community where life is worth living. Our building [Petitioner's facility] embraces the philosophy of a resident-centered environment. We promote residents making their preferences known. Even if these preferences are considered by some to be poor, we recognize that permitting freedom and quality of life includes risks.
The ALJ's analysis followed:
These objectives certainly sound laudable but, in fact, neither Dr. Smith's testimony nor any of the other evidence that Petitioner introduced offer me a clue as to what the Eden Alternative actually mandates a facility to do. The record is devoid of specifics as to what the Eden Alternative actually is. Petitioner has not provided me with anything to prove that enhanced supervision of Resident #5 or of other falls prone residents would contravene the Eden Alternative. Moreover, Petitioner's participation in Medicare is governed by the Act and implementing regulations and not by Tennessee law or the Eden Alternative. To the extent that conflicts exist between the Eden Alternative and the requirements of the Act and regulations (and, I stress, Petitioner has not established any conflicts), the Act and the regulations control. Finally, Petitioner had a falls policy, which it plainly did not comply with. Petitioner has not argued that the Eden Alternative superseded or conflicted with this policy.
Judge Kessel sustained the deficiency and remanded the case to CMS for unrelated reasons.
While new and innovative ways of providing care to nursing facility residents should be supported and encouraged, the fundamental requirements of federal law, care plans, and facility policies remain critical to providing residents with the care they need.
For more information, contact attorney Toby Edelman in the Center for Medicare Advocacy's Washington, DC office.
Community Care of Rutherford County, Inc., Docket No. C-09-595, Decision No. CR2173 (July 6, 2010). The 18-page decision is available at: http://www.hhs.gov/dab/decisions/civildecisions/2010civil_remedies.html (scroll down to 2010.07.06 CR2173).
42 C.F.R. §483.25(h).