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Major Upheaval by 9th Circuit|to Health Department Procedures

PASADENA, Calif. (CN) - Vacating a fine against a California nursing home, the 9th Circuit on Tuesday called for an administrative review of all cited deficiencies.

The civil monetary penalty against Plott Nursing Home in Ontario, Calif., stems from its citations for 33 deficiencies after an unannounced survey in September 2008. A follow-up survey that December found one additional deficiency.

Plott faced a $500 per-day fine for the 33 deficiencies from Sept. 24 through Dec. 3, and a $100 per-day fine for the one additional deficiency from Dec. 4 through Dec. 15.

An administrative law judge who heard Plott's objection to the surveys upheld the entire penalty by the U.S. Department of Health and Human Services based on three deficiencies for three different patients.

The ALJ cited one resident's bed sores from the September survey, and urinary tract infections suffered by two different residents, one in September and the other in December.

An HHS appeals board mostly affirmed based on Plott's "history of noncompliance" and citations for the same two deficiencies, bed sores and UTIs, in 2005 and 2007.

Since that board did reverse the December deficiency and eliminate that $100 per-day penalty, however, Plott's next appeal to 9th Circuit questioned only the penalty for the 33 September deficiencies.

In a massive ruling against the agency on Tuesday, a three-judge panel remanded the case for an administrative review of all cited deficiencies against Plott. HHS must dismiss any violations it does not review, according to the ruling.

The federal appeals court found it contradictory for HHS to support for the penalty with the 2005 and 2007 surveys, while claiming "that the 25 unreviewed deficiency allegations are immaterial."

"In the nursing home context, the argument that a 2005 deficiency allegation is not reviewable in 2005, but is in a proceeding six years later, verges on the ridiculous," according to the majority opinion by Judge Andrew Kleinfeld. "Residents of nursing homes, often the most important witnesses, tend to be old and sick. By the time review is allowed under the Board's interpretation, many will be dead. And many of the staff are likely to have moved on to other jobs and be difficult or impossible to locate."

U.S. District Judge John Sedwick, sitting by designation from Alaska, concurred in full, but Judge Morgan Christen said the court went too far.

Though she agreed "that the agency's practice of using unreviewed deficiencies from prior surveys to support a later penalty is troubling," Christen said Plott waived the challenge by not raising it in its briefing.

By requiring the agency to "change its procedures wholesale," the court may make it "more difficult for the agency to ensure the safety of our nation's many skilled nursing facilities," Christen wrote.

"Either the agency will have to devote much more time and energy to adjudicating deficiencies on which no penalty is based, or the agency will have to dismiss all such deficiencies," she added. "This result may be a good thing in the long run, or it may be a bad thing - it is hard to tell because the agency has not had an adequate opportunity to defend its procedures in this appeal."

Christen did agree with the panel's handling of Plott's two reviewed citations.

In reversing the UTI finding Tuesday, the court found that the 79-year-old resident whose UTI history led to this citation against Plott was at higher risk for frequent UTIs because she had a permanent indwelling catheter.

The surveyors cited Plott for not identifying and implementing "new approaches" for this resident's treatment, but the panel pointed out that HHS did not identify any forms of treatment that should have been provided.

HHS argued that the resident's recurrent UTIs - she had four in the eight months before the survey - proved that she was not receiving proper care, but the panel said that this resident's catheter and history of staghorn calculus put her at "an unavoidably high risk" for developing the infections.

"The regulation requires Plott to provide 'appropriate treatment and services to prevent urinary tract infections,' not to guarantee that they will not occur," according to Kleinfeld's lead opinion.

Plott failed to topple the bed sores citation, with Kleinfeld noting that the 81-year-old resident at issue here developed sores that "continually healed and reopened" over the course of nine months.

It took Plott nearly a year to provide this resident, a bedridden woman who suffered from dementia and depression, a pressure-relief mattress to alleviate her sores.

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