"No Right to Correct"
Monday, June 4, 2007
Contributed by: Glen D. Sanborn
A decision by an administrative law judge (ALJ) of the State Office of Administrative hearings in Willowbend Nursing & Rehabilitation, L.P. vs. Texas Department of Aging and Disability Services, SOAH Docket No. 539-06-1937.K, interpreted the nursing facility enforcement rule's "right to correct" provision found at 40 TEX. ADMIN. CODE sec. 19.2114(d).
The Texas Department of Aging and Disability Services (DADS) brought an enforcement action against Willowbend Nursing and Rehabilitation, L.P. alleging that Willowbend failed to maintain a sanitary, orderly, and comfortable interior for its facility as required by 40 TEX. ADMIN. CODE sec. 19.705(2). DADS sought assessment of an administrative penalty of $5,000.00.
The ALJ found some 50 instances of lack of cleanliness in rooms, bathrooms, shower areas, and common areas throughout the facility which supported DADS's conclusion of the widespread violation of Section 19.705(2).
A DADS enforcement team member testified that a daily penalty should be assessed at the highest available level because the surveyors found multiple areas of feces and urine, because the severity of the violations had increased from earlier to later surveys, and because the facility had not made sufficient efforts to correct continuing cleanliness violations over time. She stated that a high penalty would deter Willowbend from committing similar violations in the future.
The rule governing DADS's response to violations provides nursing facilities the right to correct those violations without payment of a penalty if they do so in a timely manner. However, an administrative penalty will be collected if the violation meets one of the criteria in Section 19.2114(d). The ALJ concluded that DADS has the burden of proof to show one of the exceptions in the rule applies and that it failed to meet that burden.
The ALJ concluded that the violations at Willowbend were classified as "no right to correct" because the DADS enforcement committee concluded that the violations "substantially limited the facility's capacity to provide care." The ALJ found, however, that there is no definition of this phrase in DADS's statutes, rules, or its enforcement manual for nursing facilities. The ALJ looked to the general definitions section of administrative rules on nursing facilities which is at 40 TEX. ADMIN. CODE sec. 19.101(16). That section gives the following definition of "care":
The following words and terms, when used in this chapter, have the following meanings, unless the context clearly indicates otherwise...(16) Care and treatment -- Services required to maximize resident independence, personal choice, participation, health, self-care, psychosocial functioning and reasonable safety, all consistent with the preferences of the resident.
The ALJ used the general definition in evaluating DADS's evidence on right to correct.
An enforcement team member testified that the violations limited the facility's capacity to provide care by diverting the time of direct care staff, i.e., nurses and certified nursing assistants, away from resident care to housekeeping duties. She also stated that staff could not keep residents clean if the shower stalls provided for their use were dirty.
But, the ALJ found no observations by the surveyors that direct care was not being given and that "there was scant evidence that a meaningful amount of the time of direct-care personnel was diverted to housekeeping duties." To the contrary, the ALJ concluded the existence of unclean shower stalls and tubs, liquids on floors, unclean walls, and general disarray suggested that neither the direct-care nor the housekeeping staff were able to keep up with the work necessary to keep the facility clean and orderly.
The ALJ noted that in this survey the team also investigated complaints regarding patient care. The survey team found no substantial complaints regarding direct resident care, including management of resident skin tears, infection control in regard to a resident's foot wound, assistance with the activities of daily living, and the level of staffing by registered nurses.
Most importantly, the ALJ determined the applicable rule strongly favors giving facilities the right to correct violations and places a high hurdle for DADS to overcome in order to remove that right. The ALJ wrote that while "there was evidence of potential problems arising from the maintenance and housekeeping violations, these problems were readily correctible."
Willowbend had submitted an acceptable plan of correction (POC) and there was no evidence showing that Willowbend failed to timely correct all noted violations. The ALJ found no evidence that suggested that direct care was not being appropriately provided to residents at the facility. Thus, the $5,000 penalty may not be assessed.
The Willowbend and other SOAH decisions are available online at: http://www.soah.state.tx.us/PFDSearch/Search.asp.
This column is published for informational purposes only. It should not be construed as legal advice and is not intended to create an attorney client relationship. The views expressed are those of the author and do not necessarily reflect the views of the author's law firm or its individual partners.
