Appendix — O'Bannon v. Town Court Nursing Center
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upyoma Court, U. Se
EILED ‘|
JUN 11 j979
c CLERK |
APPENDIX Bnet nion edi
(VOLUME IIl—Pages 191a-572a)
in the Supreme Court of the
Unjted States
oct.
jammy Term, 1979
No. 78-1318
HELEN B. O’BANNON, SECRETARY OF
PUBLIC WELFARE,
Petitioner
vs.
TOWN COURT NURSING CENTER, et al.,
Respondents
On Writ of Certiorari to the United States Court
of Appeals for the Third Circuit.
Murrelle Printing Co., Box 100, Sayre, Pa. 18840—(717) 882-0401
Petition for Certiorari Filed February 26, 1979
Certiorari Granted April 16, 1979
4
newal of Preliminary Injunction ........ 28a
|_———MIIL._Opposing Affidavit of Claudette V.
RINE Frc eis a baw omedutee yah dah 30a
Mitachmemt! Pes). Si ev 36a
ACNE 2s ES aS es 54a
Aten Fd. ests ea Sees 58a
Attar! oe IS brag oS 6ia
Attachment 5 .............-0---. 108 1a
TABLE OF CONTENTS
——- PAGE
VOLUME I:
}. "ERO RM ae heaa, bob news la
ll. Verttiied Complaint. .% oi. oes ba ced. 7a
III. Motions for Temporary Restraining Or-
der and Preliminary Injunction ........ 15a
IV. Order Dated July 21, 1977 ............ 22a
[Scheduled Hearing Transcript of Testi-
mony and Exhibits Appear in Vol-
ume II.]
V. Defendant Beal’s Motion To Dismiss ..... 24a
VI. Defendant Califano’s Motion To Dismiss 26a
VII. Plaintiffs’ Motion for Extension and Re-
[Hearing Transcript and Exhibits Ap-
pear in Volume II.]
IX. Order Dated September 15, 1977 ...... 117a
X. Further Order Dated September 15, 1977 118a
i
XI. Notice of Appeal of Plaintiffs, Emma
Cooper, Mary Crawford, Hazel Kemp,
Arnold L. Phillips, Delphine Taddei and
Poem TRB iii dole sia Fahd ended 120a
XII. Notice of Appeal of own Court Nursing
CN es era's. vivid aka tweet caw 122a
XIII. Motion for Injunction Pending Appeal 124a
XIV. Order of Court of Appeal Granting
Town Court's MOOR ois ell eens 142a
XV. Opinion Announcing the Judgment of the
UE a ele ie ia aCodkie la Wu ONial Pwnage 144a
Concurting Opinion... 5... deus 150a
Dissenting Opinion .:.............. 18la
XVI. Order Amending Opinion ........... 187a
XVII. Order Extending Time To File Petition
FOr WE GE CORMTOEL nn ic ee nee 189a
XVIII. Order Further Extending Time To File
Petition for Writ of Certiorari ......... 190a
VOLUME II:
XIX. Preliminary Hearing, July 26, 27, 1977 19la
PLAINTIFF, TOWN CouRT NuRSING CENTER,
INc’s EVIDENCE:
Donald Lewis:
DyepOGe POMMINGIIOR. ke Cees 196a
LC EOSONR skh ae was wecwes 207a
Redirect Examination .............. 216a
Tobias Bund:
Rg ea ree 216a
GINO 3 ae ke ae oes 221a
William J. Jones:
eB naan eee 222a
COOSS-EIRMUITINIION i ccc ee es 227a
John E. Cuminskey:
Dect Rusmination® 2.50... oe bo 229a
Cross-Examination
_ Dr. Maurice E. Linder:
Rech Damnation... 25la
Crose-Eammeetion 636.) beak. 253a
Jesse Gaynor:
Direct Bramination: <0 6.566006 2.0% 254a
CHOCO RMIUINATION oi kk eee ec es 259a
Edward J. Zelkovitz:
Direct Examination... . 0.0.50 0.5 e's 262a
Cross-Examination ...\.........00005. 263a
Redirect Examination ..:........... 267a
DEFENDANT CALIFANO’S EVIDENCE:
Gerald Szuc:
Direct Examination ................ 269a
Croee-Examsin@tion: . ied ce takioces 282a
PLAINTIFFS’ EXHIBITS:
1—Photograph, Cobbs Creek Nursing Home 290a
2—Photograph, Town Court Nursing Center 29012a
3—Letter Dated 5/20/77, to Donald Lewis,
Administrator, Town Court Nursing Cen-
ter, from the Commonwealth of Pennsyl-
vania, Department of Public Welfare ... 291a
4—Letter Dated 5/17/77, to Town Court
Nursing Center from the Department of
Health, Education and Welfare ........ 294a
5—Report by Professor Tobias Bund entitled
“Analysis of Statement of Deficiencies
Resulting from Survey Conducted March
88s EAT Ae ere OSA ee > caer nae Nic 300a
6—Report by William J. Jones entitled “An
Evaluation of the Town Court Nursing
Contér, fant 1977" 6 i006 nqgadven veo
ae < by John E. Coeninekian Stated 6/
SOL EE a v5.0 +0060 bk PEER ee
GFE TT. 6-0 'vedice Ss ee ees ee ee
9—Report by Mr. Gaynor to Mr. Coyle, Dated
TIABITT . 05,6 on ioe e reteset eae
10—Report by Dr. Finkelstein to Mr. John W.
Francks, Executive Director, Geriatric and
Medical Centers, Inc., Dated 7/12/77 ..
11—Letter from the Department of Health,
Education and Welfare to Town Court
Nursing Center, Dated July 19, 1976 ....
DEFENDANTS’ EXHIBITS:
i—Letter With Attachment Dated 5/26/77
to Donald Lewis, Administrator, Town
Court Nursing Center, from Roger A. Cutt,
Commissioner for Medical Programs,
Commonwealth of Pennsylvania, Depart-
ment of Public Welfare ..............
2—Letter Dated 6/23/77, to Roger A. Cutt,
Commissioner for Medical Programs,
Commonwealth of Pennsylvania, Depart-
ment of Public Welfare from Donald
Lewis, Administrator, Town Court Nurs-
ing Center .....2.-- ee eee ee eececeees
3—Letter With Attachment Dated 2/7/77 to
John Holbrook, Administrator, Town
Court Nursing Center, Inc., From Roger
A. Cutt, Commissioner for Medical Pro-
grams, Commonwealth of Pennsylvania,
Department of Public Welfare .........
iv
318a
343a
357a
365a
369a
378a
380a
387a
ence 5
4—Document Entitled ‘Statement of Defi-
ciencies and Plan of Correction” for Town
Court Nursing Center ................ 400a
5—Document Concerning Town Court Nursing
Center Entitled “Medicare/Medicaid Cer-
tification and Transmittal” ............ 423a
6—Report Concerning Town Court Nursing
Center Entitled “Medicare/Medicaid
Skilled Nursing Facility Survey Report” 424a
XX. Transcript of Hearing Before Hon. John
P. Fullam, J. on September 15, 1977 .... 495a
DEFENDANT’S EVIDENCE:
Claudette V. Campbell:
Direct Examination ............... 501a
eT 512a
Redirect Examination .............. 518a
PLAINTIFFS’ EVIDENCE:
Donald Lewis:
Direct Examination ............... 522a
William J. Jones:
a 523a
Cross-Examination ................ 526a
Opinion and Order ......:........ 53la
PLAINTIFFS’ EXHIBITS:
12—Letter From Mr. Laff, Pennsylvania De-
partment of Health, to Mr. Lewis, Ad-
ministrator, Town Court Nursing Home,
Dated July 29, 1977, With Attached Re-
NE AL wae eh 6 ose bates + 6.86 ol. 534a
13—Report From William Jones to Leonard
EY eee 545a
DEFENDANTS’ EXHIBITS:
7—Affidavit of Claudette V. Campbell . . .30a, 550a
8—Document Entitled ‘Fourth Presentment”
by the Special Investigating Grand Jury
of April Term, 1976 Court of Common
Pleas of Philadelphia County, Trial Divi-
sion, Criminal Section ............00.
vi
ee
ne ————
Appearances 19la
VOLUME II
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF
PENNSYLVANIA
Civil Action No. 77-2474
TOWN COURT NURSING CENTER, INC., et al.
V.
FRANK S. BEAL, etc., et al.,
Philadelphia, Pennsylvania
July 26, 27, 1977
Before Hon. John P. Fullam, J.
XIX.
PRELIMINARY HEARING
| Appearances:
/ Fox, Rothschild, O’Brien and Frankel by Nathan
| L. Posner, Esq., Jeffrey B. Albert, Esq., for plaintiff
Town Court Nursing Center, Inc.
Abrahams & Loewenstein by William F. Coyle,
Esq., for Additional Plaintiffs
Sh Si cea SE aa tio lth
192a Colloquy
Faith M. Angell, Esq.,, Deputy Attorney General,
for Secretary of Public Welfare—Commonwealth of
Pennsylvania
Margaret Hathaway, Esq., Assistant Attorney Gen-
eral, for Secretary of the United States—Department
of Health, Education and Welfare, Defendant
Jennifer A. Stiller, Esq., Assistant Attorney Gen-
eral, for Department of Health—Commonwealth of
Pennsylvania
(2) (Commenced at 2:09 o’clock p.m.)
THE COURT: This is the preliminary hearing of
Town Court Nursing Center and others versus the
Secretary of Health, Education and Welfare.
MR. POSNER: May it please Your Honor, be-
fore proceeding with the case, may I say that in sup-
port of Your Honor’s feeling expressed at the session
last week in that certain of the residents of the Town
Court Nursing Home being plaintiffs in this case
should require separate representation and we solic-
ited on behalf of those persons Mr. Coyle.
Mr. Coyle is a member of our Bar, and we sug-
gested to him that we would like to see him represent
these persons. Obviously they couldn’t seek counsel
for themselves. As a result of that, Mr. Coyle did
see these people, and he advised us, even though we
agreed or offered to pay his fee, refused to accept
the fee. I would like him to state to the Court his
reason for being here this time, sir, if I may.
THE COURT: Certainly.
Colloquy 193a
MR. COYLE: Good afternoon, Your Honor. If
the Court pleases, I would like to disclose that our
firm was approached by Mr. Posner’s firm, I believe
it was on Friday afternoon, because of the fact I
think i.y late partner, Norman Kalcheim, has been
for many years active in both the local and nation-
wide association for the aged. Mr. Kalcheim had
been ill at the time and died, and our firm thought
we should undertake the cause of these individual
(3) plaintiffs. And my firm asked I be here and
enter my appearance in their behalf.
I want to disclose to the Court there will be no
compensation by Mr. Posner’s firm to our firm nor
have we asked for any compensation from the in-
dividual plaintiffs, nor do we anticipate there will
be any conversation because these persons are in-
digent.
It is under those terms and conditions I have en-
tered my appearance on behalf of the individual
plaintiffs. I have directed copies of my appearance
be sent to counsel for the defendants. That is the
reason why I am here today, sir.
THE COURT: That is very much appreciated.
I hope the defense will not prove that the laborer
is not worthy of his hire.
MS. ANGELL: It became also clear during last
week’s conversations the Department of Health, not
a named defendant, is certainly an integral part.
Jennifer Stiller, Assistant Attorney General assigned
to the Department of Health, is familiar with the
case and is -here under Rule 10 because she is not
194a Colloquy
a member of the United States District Court for
purposes of this hearing.
THE COURT: She is a lawyer?
MS. ANGELL: A lawyer and a member of the
Supreme Court of Pennsylvania.
THE COURT: Glad to have you.
MR. POSNER: Your Honor, she is a very good
one.
(4) THE COURT: Time will tell.
Any other preliminaries?
MR. POSNER: The only other statement I would
like to make to the Court at this time is that Your
Honor at the conference last week again suggested
that going forward you would like some testimony
concerning the type of home to be operated in the
future and the safeguards to be taken in the operation
of the home.
THE COURT: I don’t recall expressing any such
preference, and I doubt if I have ever suggested it
to a lawyer that I would like to hear testimony.
MR. POSNER: Possibly I am misstating it be-
cause I was not present, but I did think Your Honor
believed that you would like to know concerning
who would be—
THE COURT: It is obvious if you are to be af-
forded any relief at all that would only be on terms
that would assure the continued welfare of the per-
sons who are living at your establishment. That
doesn’t rule out the necessity of showing you are
entitled to some relief of some kind.
cco nen, sean ea
Me SO Lam + Be
Colloquy 195a
MR. POSNER: I appreciate that, sir. I will pro- |
ceed on that basis, sir.
During the course of testimony, sir, I will offer
evidence; but at this time as to the factual situation
—but at this time I did want to say to Your Honor
there have been proceedings by a local Grand Jury
with respect to Town Court Nursing Home, which
mention may have been made to Your Honor. The
charges (5) or the allegations contained in that pre-
sentment are a subject of defense by us, and there
will be a complete denial of it.
However, sir, | would hope that these facts are
not referred to today because I do believe my re-
sponse should be made in response to any proceedings
that might be made against us; and it being a mat-
ter now within the Court of Common Pleas of Phila-
delphia on the Quarter Sessions Court that we pro-
ceed on the basis of the present standards of the
Home and the standards we hope to maintain in the
future.
THE COURT: Well, I don’t mean to preclude
you from that, obviously; but I, once again, would
point out I don’t mean anything that I have said to
dissuade you from the necessity of showing that you
are entitled to relief on the legal issue; namely, that
you are entitled to a hearing of some kind before
the rights are terminated.
The record does not establish anything as to what
notice you received, what opportunities for hearing
you had, what the administrative proceedings are.
MR. POSNER: These are things I would like to
go into sir, at this time.
196a Donald Lewis—Direct
THE COURT: Proceed.
MR. POSNER: And I will call to the stand at
this time Mr. Donald Lewis.
DONALD LEWIS, sworn.
(6) Direct Examination
BY MR. POSNER:
Q. Mr. Lewis, you are presently occupying what
position at Town Court Nursing Home?
A. Iam the administrator, sir.
Q. And you have been administrator of Town
Court for how long, sir?
A. Since January 1, 1977.
Q. Prior to that time, sir, what was your engage-
ment with Town Court Nursing Home?
' A. I was the assistant administrator from June
of 1976 until December 31, 1977.
Q. Of what facility?
A. Of Town Court.
Q. Now—
A. Prior to that I had been in various other Poti
tions at various other medical Centers.
THE COURT: Were you at Town Court be-
fore June of 1976?
THE WITNESS: No, sir.
THE COURT: O.K.
BY MR. POSNER:
Q. Now, sir, you have been an employee of
Geriatric & Medical Centers, which is the parent com-
pany of Town Court?
4
/
4
:
j
Donald Lewis—Direct 197a
A. Yes, sir.
(7) Q. ‘You have been an employee of theirs for
how long?
A. Since June of 1972.
Q. And in your employment, sir, were you able
to visit the various homes owned and operated by
Geriatric through their subsidiary corporations?
A. Yes, I have, sir.
Q. And how many homes have you visited owned
and operated by Geriatric?
A. Approximately seven or eight.
MR. POSNER: Mark these two for identi-
fication.
(Two photographs were marked Plaintiffs’
Exhibits No. 1 and No. 2 for identification.)
BY MR. POSNER:
Q. I-show you, sir, what has been identified here
in the first instance as Plaintiffs’ Exhibit 2 and ask
you if you will identify that photograph (handing
to witness) .
A. This is Town Court Nursing Center, the old
wing of Town Court Nursing Center.
Q. When you say “the old wing,” will you ex-
plain to His Honor what you mean by that.
A. Well, there is an additional part of the build-
ing not pictured here that was completed in 1975.
Q. How much of an addition was that? By
“that,” I mean how many additional rooms, how
much area covered, etc.?
A. 60 patient beds, sir. It would be three floors
with (8) twenty patients on each floor.
198a Donald Lewis—Direct
Q. And looking at this picture and as this picture
is now facing you, sir, would that be to the right or
the left of the building noted on this picture?
A. It would be to the left.
MR. POSNER: May I show that to Your
Honor?
THE COURT: Ofcourse.
(P-2 handed to the Court by Mr. Posner.)
BY MR. POSNER:
Q. I show you now, sir, Plaintiffs’ Exhibit 1 and
ask you as to what the building is that identifies
(handing to witness) .
A. This would be the addition to Town Court
Nursing Center similar to the additions—
Q. So that—
A. It says “Cobbs Creek Nursing Home” here,
but I don’t believe—
Q. What address is noted thereon?
A. 1526 through 36 Lombard Street.
Q. Is that the address of Town Court?
A. Yes, it is.
Q. And the name thereon is marked ‘Cobbs
Creek Nursing Home.”’
Is that the name of one of the nursing homes of
Geriatric?
A. Yes, it is, sir; but this describes the present
Town Court, the new section.
Q. The new section.
May I show that to Your Honor?
(9) (Plaintiff’s Exhibit 1 was handed to the
Court by Mr. Posner.)
.
Donald Lewis—Direct 199a
BY MR. POSNER:
Q. Can you describe for His Honor the number
of rooms now contained in Town Court, the number
of patients or residents handled at Town Court and
the general description of the various departments
that you have there, sir?
A. Yes, sir. We presently have 198 beds in the
nursing facility occupied by 195 patients at the pres-
ent time. Rooms will be 1, 2, 3, or 4 patients to
each room. It is a modern fireproof structure built
of concrete and steel.
We provide skilled nursing care, which is care
that will require nurses, registered nurses on duty
around the clock and other staff.
As. well we provide rehabilitative services such as
physical therapy and speech therapy. We have a
Social Service Department, a Dietary Department, a
Housekeeping Department, all the functions that
would be necessary.
We have consultants in the areas of dietary, a
dietician, a medical director, and so on.
Q. Would you tell us the approximate ages of
the persons that are residents of Town Court. |
know that is going to be difficult. Can you give us
some idea of the average age?
A. Yes. I would say the average age is in the
middle 70s.
Q. Now, sir, another difficult question for you,
if I may.
(10) The length of stay of each of these residents
at the Home once they are admitted is how long?
A. I would say it is approximately a year on the
average.
200a Donald Lewis—Direct
Q. Now, sir, I would like to bring to the knowl-
edge of the Court the present status of Town Court
insofar as its standing with the Department of Wel-
fare and its standing with the Health, Education &
Welfare Department, HEW, of the United States.
Have you received a deficiency letter in the first
instgnce from either the State or HEW?
Ai Yes. We have received a letter from both
the State and the Federal Government saying that
funds would be cut off for Medicare and Medicaid
on approximately June 18, I believe.
, (Two-page letter dated May 20, 1977, to
*Donald Lewis, Administrator, Town Court Nurs-
ing Center, from the Commonwealth of Penn-
sylvania, Department of Public Welfare, marked
Plaintiffs’ Exhibit No. 3 for identification.)
(Three-page letter dated May 17, 1977, to
Town Court Nursing Center from the Depart-
ment of Health, Education & Welfare, marked
Plaintiffs’ Exhibit No. 4 for identification.)
MR. POSNER: Will you use my copies as
I question the witness, Your Honor?
(Documents handed to the Court by Mr.
Posner.)
BY MR. POSNER:
Q. I show you what has been described here as
Plaintiffs’ Exhibit 3 and ask you is that one of the
decertifications that (11) were addressed to you?
And for the sake of shortening the proceedings, that
is addressed from the Commonwealth of Pennsyl-
Donald Lewis—Direct 201a
vania, the Department of Public Welfare; is that not
correct (indicating) ?
A. That is true, sir.
Q. And is there a date contained therein, sir?
A. The date of the letter is May 20, and it says
it is effective June 18, that Town Court would no
longer receive payments under medical assistance.
Q. That is in addition to everything else con-
tained in the letter?
A. Yes, sir.
Q. Now, sir, I show you Plaintiffs’ Exhibit 4
and ask you whether or not that is a decertification
letter addressed to you from the Department of
Health, Education and Welfare of the United States?
A. Yes, it is.
Q. And in effect, sir, does that contain the same
type of notice or give it to us specifically, if you will.
A. Yes. The date of the letter is May 17, and
it says, “That we are terminating your facility from
participation in the Medicare program effective June
18, 1977.”
Q. Have you ever at any time since the dates of
those notices been advised of any life safety code
violations that exist at Town Court Nursing Home?
A. No, sir, not to my knowledge.
(12) THE COURT: Excuse me. But, Mr.
Posner, the letter, P-4, in the text on Page 2
refers to an attached survey and plan of cor-
rection.
MR. POSNER: I am going to get to that,
sir. I will ask the witness concerning that.
THE COURT: All right.
202a Donald Lewis—Direct
BY MR. POSNER:
Q. His Honor has just referred to the statement
contained in the letter referring to a survey. Are
you familiar with that survey, sir?
A. Yes. This is a survey of March 8 through
11, 1977.
Q. And based upon that survey were there any
life safety code violations noted therein?
A. Not to my knowledge, no, sir.
Q. Now, since that time, sir, has there been any
review by the federal authorities? I will get to the
State in just a moment.
A. By the federal authorities, no, sir.
Q. Since that time, sir, has there been any survey
by the Department of Public Welfare, the State of
Pennsylvania?
A. Yes, sir.
Q. When, sir?
A. The State of Pennsylvania, Department of
Health, was in during the first week of May a day
and they were also in on June 22.
The Department of Public Welfare, medical review
(13) team, was in, I believe, the first and second
month—the first or second week of May.
Q. Since the receiving of those notices both from
the Department of Welfare and from HEW, do you
know whether or not an appeal was taken from that
decertification by the proper authorities of Town
Court Nursing Home?
A. Yes, sir. To my knowledge appeals have
been taken.
Q. And has a hearing been set by HEW based on
that appeal?
Donald Lewis—Direct 203a
A. Not to my knowledge. I have received no
word of any. >
Q. Are you aware, sir, of the early May review.
by the Department of Welfare as to whether or not
that was satisfactory or unsatisfactory?
A. Yes. We did receive notification, and
through the exit interview everything appeared to be
essentially satisfactory. .
Q. Was there a Department of Health review on
the question of proper licensing of Town Court?
A. Yes. There was a review on June 22 of this
year.
Q. And do you know the results of that review?
A. I got no—I received no written response as
to that; but as to the exit interview that was given
to us apparently it was essentially satisfactory.
Q. Now, sir, since March of 1977, what changes
have you initiated or supervised at Town Court?
Let me put it to you specifically.
Insofar as personnel is concerned, have you added
(14) personnel and in what areas?
A. Yes, sir, we have. We have added personnel
in the area of nursing, essentially in the area of
registered nurses and licensed practical nurses.
THE COURT: There is no such thing as an
area of registered nurses. I don’t know what
you are talking about. You mean you didn’t
have enough registered nurses before and how
you have enough or what?
THE WITNESS: No, sir. We have hired
additional registered nurses. |
THE COURT: How many?
204a ~ Donald Lewis—Direct
THE WITNESS: Approximately three or
four.
BY MR. POSNER:
Q. And how many additional practical nurses?
THE COURT: Excuse me. You are the ad-
ministrator, and you can’t tell me whether you
have hired three or four?
THE WITNESS: Well, sir, the reason for
that would be some of the people are part-time.
It would be the equivalent of three or four full-
time employees.
BY MR. POSNER: :
Q. Now, sir, dealing with the original survey
made prior to the decertification notice by HEW,
have you attempted to make any corrections in or-
der to comply with any deficiencies that they may
have stated in that notice?
A. Yes, sir. We have attempted to comply, and
I believe we (15) have complied with all the de-
ficiencies that have been noted. |
We have taken action on every item that was
listed.
Q. And have you invited the Federal Government
through HEW to review that situation?
A. Yes, sir, we have.
Q. Now, sir, in addition to the hiring of these
people and the corrections that you have made, did
you employ any experts in order to aid you and man-
agement in determining a course to follow as far as
Town Court is concerned?
A. Yes, sir. We have hired a great number of
experts in the field.
Donald Lewis—Direct 205a
Q. Would you tell His Honor who they are.
A. Yes. We have hired Dr. Toby Bund.
Q. He is in court today, is he not?
A. Yes, sir.
Q. Who else?
A.
Mr. Jones, who is an expert in nursing home
administration; Mr. Cumiskey, who is a nurse and
has had a great deal of experience in nursing homes.
We hired a pharmacy consultant.
Q. Now, so that we do not confuse the situation,
when you said you have hired them we are not talk-
ing about full-time hiring, are we?
A. No, sir, we are not. We have hired them as
consultants to give us advice in various areas and
what course of action to take.
Q. Under the notices from HEW and consequent-
ly of the (16) Commonwealth of Pennsylvania, De-
partment of Welfare, has there been a cutoff of funds
as of recent date?
A. No, sir. I have received no cutoff of funds.
The funds to date have been coming in as they nor-
mally would as far as the Medicaid program.
As far as the Medicare program goes, we have no
patients at the present time in the facility under Medi-
care. SoI cannot say on them.
Q. We are talking about monies due for care of
patients up to what time, sir, that.is still coming in?
A. We have received payment through May of
1977.
Q. According to the notices, the cutoff was July
18, was it not?
A. Yes, sir.
206a Donald Lewis—Direct
Q. And you have received no payment since that
time, and are you ready to assume that the notice
contains a cutoff date?
A. Yes. It says we would not receive funds for
patients after that period.
Q. Now, sir, because. of a fund cutoff as of that
date, could you estimate the losses to Town Court
Nursing Home on a per-day basis?
A. On a per-day basis, I would estimate that we
would lose approximately $25 per patient for 200
patients. _That would be approximately $5,000 a
day.
Q. And under those circumstances if funding is
not secured (17) from the Federal Government, will
you be able to continue the operation of Town
Court?
A. No, sir, we cannot operate.
Q. Do you know of any beds in this area that
could house these patients or residents?
A. No, sir, I do not.
MS. ANGELL: Your Honor, I object to
that question. I don’t think that is within his
qualifications.
THE COURT: I am sorry, I can’t hear you.
Even if I could, there is nothing to rule on. You
haven’t objected yet.
MS. ANGELL: I object as to his competence
to answer the question as to whether there are
available beds.
THE COURT: It just establishes his knowl-
edge, which doesn’t prove anything much.
Donald Lewis—Cross 207a
BY MR. POSNER:
Q. In your opinion, sir, as a licensed administra-
tor of a nursing home, are the services being pro-
vided at Town Court the services in accordance with
all rules of the Department of Health and for the
safety of the patients that are housed in that institu-
tion?
A. Yes, sir.
MR. POSNER: Cross-examination.
Cross-Examination
BY MS. ANGELL:
Q. Mr. Lewis, I believe you in testimony men-
tioned two investigations by the Department of Pub-
lic Welfare; is that correct? |
(18) A. Recently?
Q. Recently.
A. Yes.
Q. One in December of ’76 and one in May of
77; is that correct?
A. That is correct.
(Five-page letter with attachment dated May
26, 1977, to Donald Lewis, Administrator,
Town Court Nursing Center, Inc., from Roger
A. Cutt, Commissioner for Medical Programs,
Commonwealth of Pennsylvania, Department of
Public Welfare, marked Defendants’ Exhibit
No. 1 for identification.)
(Two-page letter dated June 23, 1977, to
Roger A. Cutt, Commissioner for Medical Pro-
208a Donald Lewis—Cross
grams, Commonwealth of Pennsylvania, Depart-
ment of Public Welfare, from Donald Lewis,
Administrator, Town Court Nursing Center,
marked Defendants’ Exhibit No. 2 for identifica-
tion.)
(Eight-page letter with attachment dated
February 7, 1977, to John Holbrook, Adminis-
trator, Town Court Nursing Center, Inc., from
Roger A. Cutt, Commissioner for Medical Pro-
grams, Commonwealth of Pennsylvania, Depart-
ment of Public Welfare, marked Defendants’
Exhibit No. 3 for identification.)
BY MS. ANGELL:
Q. I show you what has been marked D-3 and
ask you to indicate what this is. Have you ever seen
it before (handing to witness) ?
A. Yes, ma’am, I have.
(19) Q. What is it?
A. This is a letter received by Town Court on
February—the letter dated February 7, 1977, refer-
ring to the medical review that took place Decem-
ber 14 through December 17, 1976.
Q. Does it not in fact list deficiencies that were
noted on the December visit by the Department of
Public Welfare and requests that a plan of correction
be determined for them? |
A. It says observations, findings, and recom-
mendations, and a plan of correction was submitted.
Q. Pursuant to this investigation—to this exam-
ination by DPW; is that correct?
A. That is correct.
Donald Lewis—Cross 209a
Q. 1 show you what has been marked D-1 and
ask you whether you have seen that before (handing
to witness) .
A. Yes, I have.
Q. What is that?
A. This is a letter dated May 26, 1977, referring
to a medical review followup visit that was made at
Town Court May 9, 10, and 11, 1977.
Q. Does this not again also list a series of de-
ficiencies at Town Court and request there be cor-
rections made?
A. I would say there is a list of recommendations
for the most part.
Q. Recommendations based on what?
A. Based on their survey.
(20) Q. Which indicates certain deficiencies?
_ A. Well—
THE COURT: The letter will speak for
yourself. What he says about it isn’t going to
change it.
BY MS. ANGELL:
Q. Last I show you a document which has been
marked D-2 and ask you to identify this (handing
to witness) .
A. Yes. This is my response to the letter dated
May 26, 1977.
Q. And that in fact outlines how you plan to
handle the recommendations or deficiencies?
A. Yes, ma’am.
THE COURT: What is the date of D-2?
THE WITNESS: June23, 1977.
210a Donald Lewis—Cross
BY MS. ANGELL:
Q. Now you indicated, Mr. Lewis, in fact med-
ical assistance funds have not terminated as yet?
MR. POSNER: That is objected to, sir.
THE COURT: Overruled. This is cross-
examination.
THE WITNESS: To my knowledge I have
seen no—the only thing I have to go by is the
letter received.
BY MS. ANGELL:
Q. There has been no cessation for the actual
funding?
THE COURT: He is still getting money for
the care provided before May; is that correct?
(21) THE WITNESS: Yes. -
BY MS. ANGELL:
Q. How many medical assistance, total bed count
—of 198, how many medical assistance?
Approximately 180. |
The rest are what status?
Private care.
What is your per diem rate?
For medical assistance patients?
Yes.
24.96 per day.
You indicated there were a series of hired
experts that have been secured for the institution:
is that correct?
A. Yes, ma’am.
DrFOrOrO>
Donald Lewis ross lla
Q. Are they presently at the institution? Do they
now perform any duties at the institution?
A. Not oma day-to-day basis, no, ma’am.
Q. Well, what kind of basis are they hired un-
der?
MR. POSNER: If the Court please, I can
save time by offering these witnesses. As soon
as Mr. Lewis is finished they can be questioned.
THE COURT: Well, that is very good, but I
think she is entitled to hear from Mr. Lewis his
understanding also.
Objection overruled,
What is the basis on which they are hired?
(22) THE WITNESS: Yes. These people
have been hired to do an evaluation of Town
Court.
THE COURT: Hired on a flat-fee basis, so
much per hour, so much per day, or what?
THE WITNESS. Some by hour, some by day,
‘sir. They have come in and given us written re-
ports on their findings of Town Court.
BY MS. ANGELL:
Q. So they already made an examination of
Town Court?
A. Yes, ma’am they have.
Q. Isee.
What action, if any, would you take as a result of
their recommendations?
A. I would take their recommendations under
consideration and act upon them, if necessary.
XK
212a Donald Lewis—Cross \
THE COURT: I wonder if anybody realizes
how idiotic it is thus far. All we have heard
so far are general conclusory statements from
everybody.
I don’t know what it is all about. I don’t
know what recommendations we are talking
about. I don’t know what action he is going
to take. I don’t know anything about what
requests were made by the State. I don’t know
anything about the case. I have been sitting
here for almost an hour. I would hope some-
where along the line people will start getting
specific.
BY THE COURT:
(23) Q. When did you hire these experts?
When did you get a report from them? What do
they want you to do? And when are you going to
do it?
A. These experts were hired in May of 1977.
. Q. After you got the termination letter, I assume;
is that right?
A. Approximately around that time.
Q. What have they recommended that you do?
A. Most of their recommendations—most of
their findings were that the conditions at Town Court
were satisfactory as far as the patient care is con-
cerned, as far as the services provided at Town Court
are concerned,
THE COURT: Proceed, Mrs. Angell. I am
sorry.
MS. ANGELL: I have no further uesti
: t js
I defer to Ms. Hathaway. pee
-
i aN a a a Ha lh el RB
Donald Lewis—Cross 213a
(23-page document entitled ‘Statement of
Deficiencies and Plan of Correction” for Town
Court Nursing Center was marked Defendants’
Exhibit No. 4 for identification.)
BY MS. HATHAWAY: ’
Q. Mr. Lewis, can you identify that document
for me,"please (handing to witness) ?
MR. POSNER: I am sorry, but I can’t hear
you, Ms. Hathaway.
THE COURT: She asked a non-surprising
question: “Can you identify that document?”
(24) You may stand anywhere you are com-
fortable.
MR. POSNER: Thank you, sir.
THE WITNESS: Yes. This is a statement
of deficiencies and plan of correction for the
survey that was done by the Department of
Health of Pennsylvania, on March 8 through 11,
1977, and the plan of correction submitted by
myself on April 14, 1977.
BY MS. HATHAWAY:
Q. Now, this is a federal form, Mr. Lewis?
A. Yes, it is.
Q. Who prepared the lefthand column of this
form?
A. The lefthand colurnn was prepared by the De-
partment of Long-Term Care—the Department of
Health, Division of Long-Term Care, State of Penn-
sylvania.
Q. Who completed the righthand side of the
form?
214a Donald Lewis—Cross
A. I did.
Q. You did-yourself? \. _
A. For the most part, yes;ma’am,
MS. HATHAWAY: Thank you.
That will be all, Your Honor.
MS. STILLER:
BY MS. STILLER:
Q. With regard to the June 22 Department of
Health survey, Mr. Lewis, did the Department of
Health surveyors tell you this is a licensure survey?
A. I believe they did. I have it in my notes.
(25) Q. You had an exit interview at the con-
clusion of the survey. How long did it last?
A. It lasted approximately an hour.
Q. Did the surveyors cite deficiencies to you?
A. They listed recommendations. They could
be called deficiencies.
Q. Did they tell you, for example, they were con-
cerned about a patient who was found with no cloth-
ing at 10:45 a.m.
A. No, ma’am. That is what she said on the
survey of March 8, 9, 1977, not the June survey.
Q. Did they cite problems of documentation of
medical records?
A. Yes, I believe they did.
Q. Did they cite some deficiencies in the nursing
care plans?
A. I don’t recall, ma’am.
Q. Did they talk about some problems in delivery
of pharmaceutical services?
A. I really would have to say I can’t recall, not
at that time.
I have just a few questions.
AEDS AP tat Oo
Donald Lewis—Cross 215a
Q.- Was the June survey subsequent to the hiring
of the consultants you referred to before?
A. Yes. It was after that, yes.
Q. You stated that you hadn’t gotten a written
report of that survey from the Health Department.
How much time does it usually take for you to get
a written report of the survey from the Department?
MR. POSNER: Objection, sir.
(26) THE COURT: Objection overruled.
You may complete the question, and then we
will hear the answer.
BY MS. STILLER:
-Q. How much ‘time does it normally take you
to get a report from the survey from the Health De-
partment? ‘
A. To give you an idea, from the last survey, the
one done in November, we got a report in February
for it. And the one that was done in March we got
a report—we received this approximately 10 days
before the date of my reply, which would have been
the first couple days of April.
Q. At the exit interview did the surveyors in-
dicate to you what sort of recommendation they
would be making to Harrisburg of your licensure
status?
A. No, they did not.
MS. STILLER: I have no further questions.
THE COURT: Anything further?
MR. POSNER: Just one question, sir.
216a Donald Lewis—Redirect
Tobias Bund—Direct
Redirect Examination
BY MR. POSNER:
Q. Have you received from the various persons
that you refer to as experts written reports concern-
ing the results of their surveys and their recommenda-
tions?
A. I—
Q. Referring to Professor Bund and Mr. Cumis-
key and Mr. Jones and Dr. Finkelstein.
(27) A. I have not received those reports per-
sonally. Other people within Geriatric and Medical
Center have, and they asked me to take action on
things that were quoted in there.
MR. POSNER: Thank you, sir.
You may leave the stand unless His Honor
has questions.
(The witness was excused.)
MR. POSNER: Mr. Bund.
TOBIAS BUND, sworn.
Direct Examination
BY MR. POSNER:
Q. Itis Professor Bund, is it, sir?
A. Yes, sir.
Q. And what background do you have, sir, to the
term “‘professor’’?
A. I serve as professor of health care administra-
tion, French and Polyclinic Medical School in New
\
Tobias Bund—Direct 217a
York City, I am a member of the faculty of the Rut-
gers University, New Jersey, and its Health Care
Advisory Committee, a member of the faculty of the
Connecticut School of Business Management and Con-
tinuing Education, member of the faculty of-C,W.
Post College and Medical Institute of Health. xy
Q. Professor, at our request, were you part of
a peer review of Town Court Nursing Home?
(28) A. Yes, sir.
Q. Would you be good enougirto tell His Honor
—when I use the term “peer review,’ your inter-
pretation of that?
A. I was requested by Geriatric Center to make
an evaluation of the Town Court for the Center on
Lombard Street at the latter part of May, and I visited
the facility and stayed there from June 4 to June 7.
The purpose of the survey visit was to evaluate
the services being rendered at the facility, the op-
eration of its various departments, and the overall
status of the patient care and that which was being
rendered by the administration of that particular
facility.
In this sense we consider that a peer review with
regard to the,survey made by the Department of
Health to the State.
Q. Iam not going forward, sir.
I would like to refer to specifics rather than gen-
eralities, and I am asking you what you found and
what you recommended. Will you refer to specifics
rather than use general terminology.
With that warning, May I say, sir, would you tell
His Honor what type of examination you made, what
218a Tobias Bund—Direct
you did, what you found and what you recom-
mended?
A. I surveyed the entire facility. First of all,
from the viewpoint of the requirements of the Life
Safety Code and found they met the standards of that
particular Code.
(29) I then surveyed the facilities from the view-
point of operations of each and every one of the de-
partments, which meant a complete review of all the
personnel folders to see that they comply with the
federal and state standards as they existed at that
time.
I surveyed the various operations of the depart-
ments, whether they were in operation, and I ob-
served the nurses function in-the administration of
medications.
I. checked the patients’ charts; I checked the
pharmacy labels in conjunction with the physicians’
orders; I checked the service of foods, the menus,
the comparison of the service of the menus and the
use of the facilities in general.
I studied and made observations of the rehabilita-
tive services of that department and found they were
functioning in accordance with the orders prescribed
by the attending physician. I reviewed the policies
of the facility, in general the manual of the facility.
We recommended some areas to be reviewed and
rewritten in order to meet the current standards of
the HEW and the State Health Department of the
States; and those recommendations were sent to the
facility, that is, to the operators of Town Court.
I also reviewed all of the survey reports for the
March 8 survey through the 11th; and by the time I
The esa ke Tee BR ne ee
(\
Tobias Bund—Direct 219a
got there on June 4, 5, 6, 7, I would say that 99 per-
cent of the items listed had been corrected.
(30) Q. Now, sir, would you be good enough to
describe to His Honor the inner workings of Town
Court. By that I mean the various departments, how
they work, therapy, speech, whatever it may be, and
the type of care you observed and whether or not
you made any constructive criticism concerning that
or recommendations.
A. Well, there are a number of departments;
Your Honor, in each nursing home. Departments
are more or less mandated by the regulations and the
statutes involved. Each department functions in ac-
cordance with the administrative policies established,
and most of those policies are more or less dictated
and mandated by the federal and state regulations.
For example, let us that the Dietary Department.
The Dietary Department functions in accordance
with orders prescribed by the attendant physician
for the particular patients. Those patients who re-
quire various types of diets, what have you, based
upon the calorie intake, the Dietary Department in
consultation with dieticians prepares the menus. The
menus were prepared on a weekly cycle and several
weeks prepared in advance.
The Dietary Department prepares the food in ac-
cordance with normal procedures, and the foods are
delivered with the patients’ identification cards so
that the patients will know and the nurses on duty
will know that the patients are being given the food
that they require.
Similarly, the pharmaceutical supplies to the fa-
cility are all supplied on the basis of the attending
220a Tobias Bund—Direct
physicians’ orders (31) for the particular patients.
The pharmaceuticals themselves are kept in indi-
vidual bins for the benefit of each patient. Nurses
check the orders prior to administering of the medica-
tions, and this one facility I was very pleased to see
that the nurses even went so far as to check the iden-
tification bracelets of the patients before administer-\/
ing it. This very often doesn’t happen in most fa-
cilities, but that was an unusual event insofar as this
one was particular concerned.
Each similar department was checked, Your Hon-
or, in the sense we checked with the Maintenance
Department. We spoke to the director of’ nurses.
We observed these procedures. We discussed: the
food, for example, with all of the patients. The vast
majority of the patients were more or less happy
about the kind of food. Those who requested addi-
tional food were able to obtain it once the nurse ap-
proved it from the Dietary Department, and generally
the facility itself was properly maintained on a house-
keeping basis as well.
Q. Professor, did you reduce your findings to a
report that you gave to management?
A. Yes, sir.
(An 11-page report by Professor Tobias Bund
entitled ‘“‘Analysis of Statement of Deficiencies
Resulting from Survey Conducted March 8-11,
1977,” was marked Plaintiffs’ Exhibit No. 5 for
identification.)
BY MR. POSNER:
(32) Q. I show you, sir, what has been marked
Plaintiffs’ Exhibit 5 and ask you is that not a copy
of the written report filed by you (handing) ?
A
- /
Tobias Bund—Cross 221a
A. Yes, it is.
Q. Just one other question, sir.
In your opinion, observing the operation of this
home as you did from June 4 to June 7, is there any
danger to the health and safety of the patients or
residents whogire confined there?
A. No, sir.
MR. POSNER: Cross-examine.
Cross-Examination
BY MS. HATHAWAY:
Q. Professor Bund, you say that you visited the
facility June 4 through 7 of this year?
A. Yes, sir.
Q. Have you any knowledge of the conditions
of the facility on or about the first week of March
1977?
A. No, ma’am.
(Pause.)
THE COURT: Anyone else?
MS. ANGELL: No, Your Honor, no ques-
tions.
THE COURT: All right, you may step down.
MR. POSNER: Thank you, Professor.
(Witness excused.)
MR. POSNER: Mr. Jones.
(33)
WILLIAM J. JONES, sworn.
222a William J]. Jones—Direct
Direct Examination
BY MR. POSNER:
Q. With what institution are you presently as-
sociated, Mr. Jones?
A. Presently I am the Director of the Department
of Health and Social Services of the County of Hud-
son in New Jersey. I am also the Superintendent
of Meadowview Hospital in Hudson County.
Q. On any prior occasion did you occupy any
position either for the State of New Jersey or for the
Federal Government in the State of New Jersey?
A. Yes, I did, sir. From 1969 through January
of 1975 I was the Director of the Division of Medical
Assistance and Health Services, Medicaid.
Q. For the State of New Jersey?
A. For the State of New Jersey.
Q. Do you have any connection, sir, with either
Town Court Nursing Home or Geriatric Medical
Center?
A. No, sir.
Q. At the request of Geriatic Medical Center,
did you conduct a peer review of Town Court Nurs-
ing Home?
A. Yes, I did, sir.
Q. Now, sir, you were accompanied by whom
on those occasions, other persons present?
(34) A. Mr. Jesse Gaynor, a pharmaceutical
specialist; and I visited on June 13, 1977.
Q. Now, sir, as a result of your visit, did you
file a report which you termed an evaluation of the
Town Court Nursing Center?
A. Yes, I did.
William J. Jones—Direct 2234
\
Q. Would you be good enough, sir, to tell His
Honor whether or not you found, and specifically,
compliance with the federal and state regulations and
the general physical aspects of the place and any
recommendations -that you made as ?to those condi-
tions?
MS. ANGELL: Your Honor, may I object
to the form of the question? It calls for a con-
clusion of law as to whether or not it is in com-
pliance with federal and state regulations.
THE COURT: The objection is overruled.
I will interpret it accordingly.
Go head.
THE WITNESS: Thank you, Your Honor.
First of all, I have never heard of Town Court
before. When I was asked to do an evaluation,
it was explained to me that they did have some
difficulty with regulations and certification.
My first task was to take a look at the March
8 to 11 report that listed deficiencies, and |
must confess to some confusion because in my
opinion the deficiencies listed were not defi-
ciencies in accordance with regulations.
For example, one deficiency listed in the
Home’s agreement— intermediate care facility—
had lapsed. To my (35) knowledge there is no
regulation requiring dn agreement with I[CF.
This is with a general hospital. -I didn’t con-
sider that a deficiency.
I visited the physical plant, the floors, the
various rooms. I interviewed patients or any
224a William ]. Jones—Direct
relatives or visitors who were with the patients.
I tried to obtain the attitude of patients and
family and friends towards the Home and to get
a history of the care of the Home.
I reviewed the administrative processes; and-
I have reviewed, as I said before,.the| compliance
with the standards. In my opinion the physical
plant is clean, is well kept. There are minimal
maintenance problems involved.
Patient care in my Opinion, once again, is very,
very adequate.
ciencies had to do with patients with deeubiti,
and the deficiency stated with a decubiti was
sitting in urine.
And I noted with interest that there. are no
patients with decubiti in the facility now. Clear-
ing of decubiti_or decutitis is evidence of good
patient care, nursing care; and I questioned
whether or not the patient, as insinuated in the
reports, was receiving such poor care how could
the decubiti be cured or healed I should say.
THE COURT: You don’t know if the patient
was still there?
THE WITNESS: Yes, I did, sir; and I spe-
cifically (36) requested the patient who was
wteferred to in the room—we tracked that down.
And I also interviewed other patients, families,
who had been admitted to the Home with
decubitis and decubitis was healed in the Home,
sir. ae
THE COURT: © Thank you.
I noticed that one of the defi-
Bi em cae ae
William J. Jones—-Direct 225a
THE WITNESS: Generally speaking, if I
may, counselor, there were some other areas of
reference.
BY MR. POSNER:
Q. Would you, sir, go into that.
A. Particularly with pushing a patient. I pre-
sume they meant ’ An wheelchair—while pulling an-
other patient. In rehabilitation we know and we
teach that wheelchairs are a specialty item and must
be prescribed.
One of the things I noticed, which is not peculiar
to this facility, it is peculiar with most facilities, is
that they do not have prescribed wheelchairs. There-
fore, when you have no footrest and you are trying
to transport two patients on many occasions one pa-
tients is pulled backwards. This is done not only
in the institute of Physical Medicine and Rehabilita-
tion in New York and the Chester Institute in West
Orange, New Jersey, to somejdegree, but you will
find it in many, many, if not afl, nursing homes where
patients do not receive the appropriate wheelchairs
and it results in the observation of patients being
pulled.
Other observations that were made, the showering
of a patient in front of the inspectors. I really
couldn’t address (37) myself to that because in re-
viewing the showers it would seem to me the in-
spectors would have to enter upon the patient being
showered. I really couldn’t criticize the Home nor
staff for inspectors being in the shower room when
the inspectors would enter the room.
The other observations about the paticnts being
showered and having the bathrobes put on back-
Re Ee et aE ORR TM Cee MTN te am
226a William J]. Jones—Direct William J. Jones—Cross 227a
wards, in most institutions after showering a patient
and transporting the patient they do put bathrobes
on backwards until the patient is transported back to
the room where they are dried and properly clothed.
see any danger to the health and safety of the pa-
tients that are confined or are residents of Town
Court Nursing Home?
A. Ido not, sir.
So some of the observations made in my opinion,
sir, were observations that could be made in any fa-
cility. And I must say I am quite amazed because
the federal bible for surveyors does point out that
if there are non-compliance issues then there must
be a supportive document showing how the particular
item that is being observed threatens the health and
safety of patients, and I have seen no document ex-
cept the March records. I do see no statements or
narrative where the health or safety of patients has
been threatened at this institution.
Q. Sir, did you document by way of a report the
evaluation you made at that time?
A. Yes, sir, | submitted a report.
Q. Did you submit a report to any of the au-
thorities aside from submitting it to management?
A. No, sir.
(A 22-page report by William J. Jones en-
titled (38) “An Evaluation of the Town Court
Nursing Center, June 1977,” was marked Plain-
tiffs’ Exhibit 6 for identification.)
BY MR. POSNER:
Q. I show you, sir, what has been identified here
as Plaintiffs’ Exhibit 6 and ask you whether that is
a copy, if not the original, of the evaluation you made
of Town Court Nursing Home.
A. It is, sir.
Q. Now, sir, one general question that I must
ask of you in your opinion as an expert. Do you
MR. POSNER: Cross-examine.
Cross-Examination
BY MS. HATHAWAY:
Q. Mr. Jones, when did you say you were in the
nursing home, in Town Court Nursing Home’?
A. June 13.
Q. June 13. .
Have you any knowledge about the conditions in
Town Court Nursing Home in March of 1977?
A. Only frcm the statement of deficiencies and
plan of correction dated March 8.
BY MS. ANGELL: i
Q. Mr. Jones, how long were you at the facility
in June?
(39) A. I was there all day from about quarter
to 9 until almost 6 o’clock with the exception of 20
minutes for lunch.
Q. All right. That was the only day you were
there? (
A. _ That is correct.
Q. AYou had no prior contacts with Town Court?
A. That is correct. ae
Q. Had you had any contact with the facilities
run by the corporation in New Jersey?
A, Not to my knowledge except when I was
Director of the Medicaid program in New Jersey. If
they had any facilities in New Jersey, they obviously
228a William ]. Jones—Cross
would have been associated with me as a director;
but I did not know of the organization.
Q. Isee.
Now, in these June 13, 1977, visits you said you
spoke to patients. Approximately how many pa-
tients did you speak to, if you can recall?
A. Some 25, 26.
Q. Patients?
A. Patients.
Q. You indicated you also spoke to families.
Approximately how many of those?
A. Approximately nine.
Q. And you had interviews with staff; is that
correct?
A, Yes.
Q. Now, in your report here you made reference,
for example, (40) to the pushing and the pulling on
Page 13; and, for example, your comment is, “I pre-
sume this relates to,” so that you have no actual
knowledge either of the incidents or what it meant?
A. The incident—the statement of deficiencies
is not specific. I presume they may be wheelchairs.
I didn’t assume they were physically pushing patients
down the hall.
Q. But all of these are based on your reading as
to what the deficiencies are?
A. That is correct. ~
Q. You indicated you made a series of recom-
mendations.
Are these listed in your report?
A. Yes. \J must point out there is one recom-
mendation where I recommended they hire a con-
sulting siatrist, and I see it came out in the type as
John E. Cuminsky—Direct 229a
psychiatrist. That is a psiatrist, which is a physical,
medical and rehabilitation person.
THE COURT: Is there such a word?
THE WITNESS: There is such a word. It
confuses even typists.
BY MS. ANGELL:
Q. Are these recommendations made on a specific
report or throughout the report?
A. Throughout the report. et
Q. To your knowledge have they been satisfied,
have the recommendations been met?
A. Well, I have not been back to the Home to
check whether (41) the recommendations have been
corrected or not. I would presume that the authori-
ties in the Home would make the correction.
Q. But you have no direct knowledge?
A. Ihave no direct knowledge, no.
MS. ANGELL: Thank you.
MR. POSNER: Thank you.
THE COURT: You may step down.
Thank you, sir.
(Witness excused.)
MR. POSNER: Mr. Cuminskey.
JOHN E. CUMINSKY, sworn.
Direct Examination
BY MR. POSNER: _
Q. Mr. Cuminsky, what is your present position?
A. At present I am a retired—semi-retired nurs-
ing home owner.
230a John E, Cuminsky—Direct
Q. And you are the owner of a nursing home
where, sir?
A. I was the owner of a nursing home for 27
years in the State of New Jersey.
Q. You own it today, sir?
A. No, Ido not. I sold it three years ago.
Q. What are your qualifications concerning the
administration of being a nursing home administrator
or an expert in the field of (42) nursing home care?
A. I am a licensed nursing home administrator
in the State of New Jersey. I am a registered nurse
in New Jersey and New York State, and I am‘a li-
censed biochemist and laboratory director of the State
of New Jersev. |
Q. Have you on prior occasions been involved
in what we term peer eviews, sir?
A. Not specifically as such, but I have consulted
over the years with many nursing home owners.
Q. Now, sir, in that capacity were you requested
to make a review of Town Court Nursing Home in
Philadelphia?
A. Yes. Yes, sir, I was.
Q. When did you visit the place, sir?
A. June 14 and 15.
Q. In what year?
A. 1977. \ d
Q. Now, sir, were you alone on this occasion or
were you accompanied by any other expert?
A. Iwas entirely alone.
Q. Will you tell His Honor specifically as pos-
sible what you were looking for, what you found,
what you recommended.
John E. Cuminsky—Direct 231a
A. The officials of Town Court Nursing Center
had sent me a copy of the statement of deficiencies
and plan of correction insofar as they related to nurs-
ing care, nursing problems, medical records, govern-
ing body and management, patient activities, nursing
(43) services, medical records I think | mentioned
already, and physical environment.
The reason I believe they sent these to me was
because I found on the report that many of the de-
ficiencies were overlapping from the heading area
such as government body and management overlap
into the nursing care. So, therefore, I have addressed
myself to these as well.
Q. Did you do so, sir?
A. I did.
Q. Will you tell His Honor the result of your in-
vestigation and/or recommendations thereafter?
A. Well, when I went there I took—the: first
thing I did I walked through the entire institution
and my first impression was very favorable. I didn’t
think I would be there as long as I was. Of course,
I underestimated the time required to do this type of
study.
So I was very favorably impressed, and then I
started to go into specifics. So I was there a total
of 171% hours, except for a half an hour each day
for lunch. ~
When I had lunch, I went at 2 o’clock in the after-
noon rather than at noontime because I felt it very
iraportant to observe the methods of feeding and
serving the patients.
I was also there during the hours when the patients
were receiving their A.M. and P.M. care, bathing,
232a John E. Cuminsky—Direct
robing, dressing, undressing, etc., because these are
the times in a nursing home (44) when you can really
see if anything is being done. If you visit a nursing
home at 2 o’clock or 1:30 in the afternoon a lot of
things can be swept under the rug as far as patient
care is concerned. You have to be there when I was
to realize what was being done.
I have outlined under the same manner and under
the same prefixes and tags as the State uses in their
inspections or reviews, surveys, excuse me. Well,
I reviewed the corporate records insofar as registered
nurses were concerned. I went to the administrators,
and I found everything in order. Their personnel
policies, employee records, health certification, em-
ployment applications were all up-to-date and in or-
der.
They also had work assignments for all of their
personnel. They have written policies and proce-
dures giving notice to the patients so far as respon-
sible parties are concerned, the patients’ status, par-
ties’ billing, and etc. They showed this to me, and
I felt it was very satisfactory.
Under governing body and management there are
many areas that run over so far as the survey is con-
cerned by the State—run over into the area of nursing
care.
For example, restraints, well, I have learned 24
patients at Town Manner; and there was a current
physical border for every one of them.
THE COURT: How about Town Court?
Did you see any there?
THE WITNESS: I beg your pardon?
John E. Cuminsky—Direct 233a
(45) THE COURT: How about in Town
Court? Did you see any there?
THE WITNESS: Yes, yes, Your Honor.
That is where I was.
BY MR. POSNER:
Q. You inadvertently said Town Manner.
A. Excuse me, Town Court, Town Court, excuse
me.
Well, I found them to be of the normal type of
restraints that you find in a nursing home, known
as Posey restraints. They are the protective type.
These prevent the patient from scratching, bruising
himself, or pulling out catheters or things of that na-
ture.
I didn’t observe any maltreatment or anybody
being pulled backward. I saw a lot of transporting
of patients from the rooms to lounges, to telephones,
to the lavoratories, tub rooms and showers, and to
the activity room on the main floor, and physio-
therapy. It is a very busy place. A hundred eighty-
six patients and nobody is restrained. All of the pa-
tients have access to all of the areas except those
areas where they shouldn’t, except the nurses’ areas
and medication areas. They are free to go back and
forth where they choose, which in my opinion shows
very good nursing care. They are not restrained in
any way from that.
I checked the patients, the male patients as far as
shaving is concerned, and grooming, and | didn’t see
any man who (46) needed a shave. I did notice
one woman that had an excessive growth of hair on
234a John E. Cuminsky—Direct
her face, and I suggested to the RN and she consulted
with a doctor as to whether to use depilatory cream
or to shave the woman, and I surveyed the in-service
training in this area and found it very strong on pa-
tient grooming.
There is another area where the patients have been
Observed with food particles lodged in their teeth
and mouths. I examined about 40 patients. I used
a tongue blade, a different one each time, and |
didn’t see anybody with food particles in their mouth.
I discussed this area with the director of opera-
tions; and I made some recommendations in this
area, in the future. I feel if they are carried out,
you know, this problem wouldn’t come up at all:
but I didn’t find it.
I found the policy now established where every
patient is to have a dental exam on admission by a
licensed dentist and yearly thereafter. This does not
call—again, it is not called for in regulations. But
Town Court notified me and showed me the proce-
dure, the policy, that they wished to do this in order
to be 100 percent in this area; but this is not called
for as a matter of regulation.
Mr. Jones refered he didn’t see any decubiti in
the facility, and I have to take issue with that
although I understand Mr. Jones checked those pa-
tients previously that had the decubiti and found they
were healed. In my visit I found seven (47) decubiti.
However, for 186 patients I cOnsider this very, very
remarkable. This is a very, very low incidence of
decubiti; and I also found most of the decubiti the
patients had them prior to their admissi
ission to
Court. coe
John E. Cuminsky—Direct 235a
There was also a note in this area from the sur-
veyors that they found the patient lying in urine and
there were no dressings on the patient, there was no
dressing on the patient’s decubiti. I checked this
out, and I looked at the patient’s chart. There is
a procedure for treatment of decubiti that has been
developed by the medical director, and in most in-
stances he prescribes that no dressings be used on
decubiti.
Now, this is a matter of his preference since he is
a medical doctor; and I found patients in many in-
stances did not have dressings on their decubiti.
However, everything we checked out on the doctors’
orders, and the records were all entered on treat-
ment on the doctors’ and nurses’ notes on these seven
decubiti.
I checked 47 Town Court patients at various times
in two days. I found four lying or sitting in urine.
I found this is considerably remarkable.
THE COURT: Remarkably good or bad?
THE WITNESS: Remarkably good. Two
of these patients were in the process of being
changed, in my opinion, and the other t
tients voided just very recently.
7
Ae
quate.
There was also a note that the sign-in sheets
to the 11 to 7 tour of duty were not available.
When I was there, they were available and
reflected the necessary duties to be performed.
procedures for cleaning com
reviewed it, and it is very (48) a
236a John E. Cuminsky—Direct
I reviewed a total of 52 charts selected ‘at
random by myself in all pertinent and required
areas. My review substantiated that all charts
showed activities, evaluations, follow-up were
pertinent to the patients’ needs. All the charts
showed evaluation and counseling by the con-
sulting dietician.
I reviewed 35 charts for physicians’ imme-
diate and long-term goals. They were all com-
plete and timely.
I reviewed 52 nursing care plans and found
them up-to-date. They outlined specific and
complete plan of care as well as short-term goals.
My overall observation showed that the pa-
tients were receiving very, very good nursing
care. I went up and down those stairs—I was
there 174% hours—I went up and down the
stairs many, many times. There are two eleva-
tors, and I couldn’t wait for that. No one knew
what my mission was. I didn’t want them to
know, I said, “Come help me do this and help
me do that,” and they didn’t know why and they
did help me.
One of the criticisms was many of the patients
were in poor body position or alignment. Well,
the type of patient that you encounter in a skilled
home in a general way I could (49) classify
them they have diseases that are cardiovascular,
nutritional, cancerous, arthritic, neurogenic,
genital-urinary, or gastrointestional. This isn’t
a complete list. However, it should denote
some of the immense difficulties encountered to
=a
John E, Cuminsky—Direct 237a
give rehabilitative treatment and restore those
persons of those illnesses. This is another Crit-
icism of the state surveyors.
However, they have a very strong program.
I also reviewed the physical therapy area, and
they are making strong efforts in these areas.
But these are areas where people have diseases
that are largely degenerative in nature and to
rehabilitate this type of case is very difficult.
However, théy are endeavoring, and endeavor-
ing very hard, to do this.
I didn’t see anybody in poor body position
and alignment; but to mention a few patients
that could go in poor body position and align-
ment in a matter of seconds, I mention to you
the following diagnoses: Hemiplegics, paraple-
gics, quadraplegics, spastics, multiple sclerosis,
amyotrophic sclerosis, muscular dystrophy, arte-
riosclerosis and so on ad infinitum.
I believe it takes a great and constant effort
to try to keep these patients in good position
and comfortable and free of pressure points that
would cause those sores.
I checked this out very carefully, and I be-
lieve that they are fighting this and winning it
at Town Court. This is my observation.
There was a critique of procedures for bowel
and (50) bladder training. I discovered that
this was in effect at the time of the inspection.
However, they have reinforced this; and the
records of this are kept by way of a card post
238a John E. Cuminsky—Direct
above the patients’ beds. And all patients on
this type of training have this card above their
beds, and I also checked their charts. And this
is documented on their charts. I checked the
in-service program in all of these areas and the
in-service is being reinforced and is reinforced
in this area.
There is a critique as far as range of motion
is concerned, patients and amputees. I dis-
covered on the charts this is being carried out
_ the respective patients for whom it is called
or.
While I was there, I observed five meals and
checked many charts; and I believe that every-
one in Town Court, Nursing Hee personnel
especially, are very much aware of the patients’
nutritional needs. My observation was about
25 percent of the patients had to be spoon-fed,
which in a sense out of 186 is quite a prodigious
job. I watched the nurses and aides doing this
and thought they were very kind and gentle,
and I noticed many of these patients had orders
for spoon-fed and carried out.
I checked out diabetic diets, salt diets, and
low residue diets and so forth. I found out that
they were being carried out and there were
records of this being kept in the kitchen as well
as on the patients’ chart and in the nursing care
plans.
(51) There was a critique in the area of in-
take and output records. Now, I checked those
bP? oe
John E. Cuminsky—Direct 2398
charts where it was called for on particular pa-
tients, and they had this information on that. I
checked out with the director of nurses about
one patient mentioned in the survey report
where the patient was required to have eight
ounces of water at every meal, I believe, and
also they didn’t hav: the intake and output
record current. Well, i was shown a letter
whereby the doctor had cancelled that order
quite a while previously and inadvertently the
nurse in transcribing the orders for the current
month carried the order forward, but it was no
longer in force and it was not necessary.
I might mention at this time the only way to
get the doctors—not being critical of doctors,
busy men—the only way you can get the doc-
tors to rewrite is for the nurse to rewrite the
orders and the doctor to come along and initial
them. This is a device all the states used, a de-
vice, if you want to call it that, in order to meet
this regulation. There is no way in God’s world
to have doctors comply with it voluntarily and
sit down and write all those orders. They sim-
ply won’t do it. They simply laugh at you and
walk out of the door. This is a means taken
to do this and done all over the country and
acceptable.
However, a nurse transcribing this many or-
ders it is certainly not too difficult to make one
little mistake. However, in other areas you can
check on these mistakes and they are picked up
at any rate.
r
On oh
240a John E. Cuminsky—Direct
(52) I didn’t see any breakfast trays in evi-
dence at 11:30. This doesn’t surprise me be-
cause I haven’t been in any nursing homes I
ever saw the breakfast tray on-the floor at 11:30
a.m. I went to the kitchen. There were no
breakfast trays there because it was almost time
for dinner, for lunch.
I didn’t see any medications being given by |
anyone but RNs and LPNs. I checked some
medications that were outlined in the inspection ;
report, and I checked out all the medication
charts. I found these charts all patient floors,
and I checked them for proper labels, storage,
and administration. I also checked the emer-
gency. medication tray for proper content. ‘
While I was there a three-way check—that is
a check of the patient order, drug proper han-
dling, and to the patient’s chart—this was being
carried out and carried out in an efficient man-
ner.
I checked 52 charts and found out medica-
tion and treatments were as ordered by the
physician.
There was another critique that said there
were pre-poured medications. I did not observe
anything of that nature while I was there.
That was not being done.
There were several verbal orders on the sur- |
vey report by the State. They were not counteg.
signed by the physician within 48 hours. When
I was there, there were no orders that were not
John E. Cuminsky—Direct 241a
countersigned within 48 hours. However, I
note, and I must stress this in this area, you have
to have cooperation of the (53) physician as
well. I know they do try to cooperate. Some-
times they just don’t show up at the proper time.
You just have to sweat it out or call them up
and try to get them there; and I have been
through this myself, too.
On the review the surveyors found some
medications on the patients’ bedside. These
were not very dangerous medications. They
were things like for hemorrhoids.
THE COURT: Ican read the report. Don't
worry about it.
THE WITNESS: However, this much should
not be in any case; and I made a recommenda-
tion in this area that this never happen again.
And I showed them ways to reinforce this so it
would not happen.
I reviewed the patient activities program, and
I found it to be very busy and diversified. I
consulted with the full-time director, and she
has a college degree in this area. They carried
out their patient activities in three different
physical areas: in a large recreation room on
the main floor; in activity rooms, one on each
of four patient floors, and at the patients’ bed-
side. General programs offered are religious
services, arts and crafts, bingo, games, birthday
parties, holiday observances, newspaper and pub-
lic events meetings, appearances by musical
242a John E. Cuminsky—Direct
groups, play and dancing groups and residential
council meetings.
The residential council is a group of people
selected (54) by the institution to have some
say in what they wish done in the institution
and I think this is not required by the statute
or by regulation. But I think it shows a very
progressive attitude on the part of the manage-
ment. |
_ However, there were some people there that
didn’t participate in anything. In some cases
this is because of their physical and mental
condition. There are others who won’t partici-
pate in anything no matter what you do. There
isnt many. The people were kept pretty busy
and I was there a long time each day.
I reviewed medical records, and I reviewed
52 patient charts. And I found it complete.
The files of physicians and nurses were up-to-
date and adequate.
Discharge planning, I reviewed the charts for
this; but I consider this to be very hazy at best
in any institution. This represents medical opin-
ion, and it is often questionable in case of ill-
ness, It is very difficult for a physician to give
me an opinion in this area.
To look at me, there is no way I can tell mee
what I think is going to happen or I can promise
you this man and woman “‘to just pick up your
crutches and walk out the door.” i
can’t do that. ‘ asia
ETP TS TE BET
John E, Cuminsky—Direct 243a
All the patient care plans I evaluated reflected
good plans of care, gave the patient status and
the goals to be strived for.
All patient consent forms were signed by the
patient (55) or guardian. All nursing sum-
maries on all three shifts were complete on all »
52 charts surveyed.
I reviewed 15 charts in the area of diagnosis,
therapeutics, progress notes, etc. _I found them
to be adequate and informational. Here, again,
each physician is different in the way he be-
lieves this should be done.
There was a critique about closed medical
records. I didn’t have time to, look at any of
those, but the operations officer and the director
of nurses with whom I had constant co \tact
during my time in| Town Court have. told me
they were now in good order.
I also looked at the physical plant because
you naturally look at it as you go through; and
I found it to be very, very clean and housekeep-
ing was very, very good. The floors were ex-
ceptionally clean and shining. All areas were
well dusted and ventilated. All lavatories were
clean and neat: I could detect no disagreeable
odors in any area.
There was a critique—and here this is called
for in the regulations—that there were no elec-
tronic call buttons in three patient activity areas;
that is, patient lounges. These areas were im-:
mediately adjacent to the respective nurses’ sta-
tions. When I was there, I observed the tap
roe %
244a John E, Cuminsky—Direct
bells, which you tap and they ring, were in-
stalled. -Now, since these are so close to the
nurses’ station, I am sure they would be heard
_if patients wanted to summon anybody.
(56) In the hazardous areas, particularly
those exit doors leading to elevators and stair-
ways, tape, which has been sprayed with an
_ abrasive type paint—
THE COURT: Abrasive?
THE WITNESS: Abrasive type.
There was a critique in the survey report
which referred to no warning devices for blind
persons being in the institution. At.the present
time this is not to my knowledge a requirement.
However, this abrasive—type paint was put on
strips of adhesive or some other type of tape—
I don’t know what it was—and in the areas
where a patient would touch them or a patient
would touch them these were placed on the exit
doors leading to the elevators or stairways or
other areas which a blind person might stumble
into.
They have also established a procedure in
their in-service program to acquaint all the per-
sonnel with the necessity of indoctrinating pa-
tients now and in the future in this area.
As I mentioned, the participation at present
do not call for audible or visual warning sys-
tems. Also, it is my understanding that Town
Court has requested a waiver in this recom-
mendation.
ee
John E. Cuminsky—Direct 245a
All the patient rooms are equipped with
audio-visual call systems.
There was a critique that the bed patients
couldn’t reach the call button, persons in chairs
could not reach it. Well (57) I found the call
buttons were within their reach. Both the bed
patients and the chair patients it was within
their reach.
I didn’t see any instance where the privacy—
there was a reference the aides did not draw the
privacy curtains at such times they were ex-
amining patients or preparing them. In two
days in the facility 1 didn’t see any instance
which this happened.
I wasn’t asked to look at the kitchen, but I
was also a mess officer of a 900-bed station
hospital at the end of World War II. So I am
interested in kitchens. So I looked at the kitch-
en, and I know the requirements in this area,
and | found the kitchen, the dishwashing area,
and the storerooms to be immaculately clean
and very well organized. All theriaometers
were in place, and all refrigerators and freezers
were exceptionally clean. All toods were prop-
erly covered and stored. Their menus are good
and the food was well prepared and attractively
served. All kitchen rules, schedules, etc., were
in order and conspicuously displayed.
I was intrigued by the physiothe.apy depart-
ment and housekeeping, which was good. I was
impressed by the amount of activity in this de-
partment. I inquired and met the director of
246a John E. Cuminsky—Direct
the physiotherapy for Geriatric Medical Centers,
and I was shown records that they treat an
average of 65 patients and give 65 treatments
five days a week. This is a very, very busy de-
partment and was very clean and well run.
THE COURT: You are talking about 65
each day?
(58) THE WITNESS: Yes, sir.
THE COURT: How much longer is your
report?
THE WITNESS: That is it, Your Honor.
THE COURT: | Recess for 10 minutes.
(Recessed from 3:40 until 3:'5 o’clock p.m.)
THE COURT: Any cross-examination?
MR. POSNER: Well, sir, I haven’t finished
with the witness yet.
THE COURT: I am sorry, | thought you
had.
BY MR. POSNER:
Q. You have testified here, sir, concerning var-
ious critiques—
THE COURT: Yes, he certainly did. We
all heard it.
What is your question? |
BY MR. POSNER:
Q. —and deficiencies alleged—
THE COURT: Please ask the question, Mr.
Posner.
John E, Cuminsky—Direct 247a
BY MR. POSNER:
Q. My question to you, Mr. Cuminsky, having
reviewed those alleged deficiencies have you in your
examination found that any of them exist there or
have they all been corrected if they ever did exist
there?
A. I didn’t find any in existence at the time of my
survey; and if they were present, in my opinion they
have now been corrected.
Q. Now, sir, did you reduce to writing a report
of your (59) investigation, your findings and your
recommendations?
A. Yes, I did.
MR. POSNER: Mark this.
(A 17-page report by John E. Cuminsky d> ‘ed
June 28, 1977, was marked Plaintiffs’ Exhibit
No. 7 for identification.)
BY MR. POSNER:
Q. I show you, sir, what has been marked as
Plaintiffs’ Exhibit 7.
THE COURT: You mean all that stuff he
has been telling from the witness stand he had
it in a report?
P-7 will be received.
Anything else?
(Plaintiffs’ Exhibit No. 7 received in evi-
dence.)
MR. POSNER: One other question, sir.
ioe
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ter
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ERC Si ee eee
248a John E. Cuminsky—Cross
BY MR. POSNER:
Q. In your opinion, having observed this nursing
home in operation, is there any danger to the health
and safety of the patients that are confined there?
A. No, sir, there isn’t.
MR. POSNER: Cross-examine.
Cross-Examination
BY MS. HATHAWAY:
Q. Mr. Cuminsky, you testified you were in the
facility June 14 and’ 15, 1977; is that correct?
A. That is correct.
(60) Q. Have you any knowledge what the con-
ditions—any personal knowledge of the conditions—
were of the facility in March of 1977?
A. Only what I have read in the report.
MS. HATHAWAY: Thank you.
BY MS. ANGELL:
Q. Mr. Cuminsky, have you returned to the fa-
cility since the dates you testified you have been
there?
A. Yes, I did.
Q. And on what dates were you there?
A. I was there approximately—today is the 26th
—I was there about the 15th of July. I happened
to come to Philadelphia with my wife, and my wife
is a registered nurse also. So she was interested in
what I had done there. She saw my report, She
said, ‘‘I would like to see the place.” So I called
up and I asked if I could come down and see
it. They said, “Sure,” and I took her through.
John E. Cuminsky—Cross 249a
Q. You took a tour?
A. My wife is curious. She knows about the
nursing home business.
Q. You didn’t identify the nursing home you had
control for over 27 years. What is the name?
A. Pine Acres Nursing Home, Madison, New
Jersey. i
Q. I think the corporation has three facilities in
New Jersey. Are you familiar with the Mt. Laurel
Convalescent Center?
(61) A. No, Iam not.
Q. The Cooper River Convalescent Center?
A. No.
Q. The Burlington Woods Convelescent Center?
A. No, I am not.
Q. Did you in this report that you testified to
now—which has been identified as P-7—did you
make any recommendations as a result of your visit?
A. I did.
Q. Have you had the opportunity to determine
whether those recommendations have been imple-
| mented or not?
A. Yes. On my visit I checked a few areas, and
I found they had.
Q. How long were you at your second visit?
A. Oh, I was there about 45 minutes.
Q. During those 45 minutes you checked your
recommendations?
A. Oh, not all of them. I just asked—lI saw the
director of nurses, the assistant, and I saw a few of
the charge nurses. I said, “Did you charge such and
such thing?” And they said, “Yes.” I said, “How
is it working?” They said, “Good.”
See a ees se SS a ee See, Se ee
4 SS a Se
=
250a John E. Cuminsky—Cross
Q. Could you identify any of those recommenda-
tions?
A. I beg your pardon?
Q. Could you identify any of those recommenda-
tions?
A. Well, I checked the area of dental care of the
patients, and I made recommendations what to do.
(62) Q. What page is that one?
A. On page 4.
Q. So that in fact you determined that the policy
is in the fact each patient is to have a dental exam?
A. Right.
Q. Anything else?
A. No, not really, because, as I say, I discussed
some of these things with the RNs and the director
of nurses. I didn’t find anything substantially wrong
when I was there.
Q. So in-effect there are no recommendations?
A. Not many, no, just a few verbal things we
discussed.
Q. : I see.
How large was the institution you ran for 27
years?
I beg your pardon?
What was the bed capacity?
103 beds.
And was it a skilled nursing facility?
Yes, re
Did it have medical assistance patients?
Yes.
. Approximately what proportion were medical
assistance patients?
A. Approximately 25 percent.
O>O>O>O>
_ Dr. M. E. Linden—Direct 25la
MS. ANGELL: Thank you. No further
questions.
MR. POSNER: Thank you very much, Mr.
Cuminsky.
(63) (Witness excused.)
MR. POSNER: Dr. Linden.
MAURICE E. LINDEN, sworn.
Direct Examination
BY MR. POSNER:
Q. Doctor, you are a practicing physician in the
City of Philadelphia?
A. Yes, I am.
Q. Do you have any specialty, sir?
A. lama psychiatrist.
Q. And, sir, are you associated with any institu-
tions in which you practice your expertise?
A. I am a clinical professor of psychiatry at
Jefferson Medical College.
Q. Now, sir—
A. Iam also—
Q. Iam sorry.
A. —chief of geriatric psychiatric outpatient ser-
vice for the Jefferson and Community Mental Health
Center.
Q. Is there anything you wish to add as to your
qualifications?
A. Iam Board-certified.
Q. And have you been practicing your field for
how many years?
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252a Dr. M. E. Linden—Direct
A. About 32.
Q. Now sir, what is your contact with Town
Court Nursing Home?
(64) A. Town Court is in our catchment area,
the mental health area that Jefferson Medical College
services. So that I am occasioned to have the pri-
vilege of them calling upon us for psychiatric assis-
tance, which we rendered on quite a number of oc-
casions.
Q. Have you personally rendered such service to
them?
A. Yes, I have. I have also brought my social
worker with me.
Q. And on these occasions do you receive any
compensation or remuneration from Town Court
Nursing Home? ,
A. ‘None whatever. We try to be reimbursed—
that is, the clinic—through medical assistance or
Medicare. That is often quite difficult.
Q. Now, sir, you have observed many of the pa-
tients at the Town Court Nursing Home?
A. Oh, yes.
Q. Would you care to give us an estimate of how
many you may have observed during the course of
your visits there.
A. In the past three years the total number of
people that I have seen there at the Home I suppose
they would number in the 300, 200.
Q. Now,-sir, assuming that these patients had to
be removed within a short period of time such as 30
days or 60 days, would there be any effect on these
patients from the mental point of view—forgetting
Dr. M. E. Linden—Cross 253a
the physical aspects of it in your opinion—and, if
so, will you give His Honor the reasons therefore.
A. Yes. My opinion in this instance is studied.
It is (65) based on experience in the field of geron-
tology and geriatrics, the field I have been in since
1946. |
There is copious evidence in the literature that the
transfer of dependent elderly patients out of an in-
- stitution of health care, nursing homes, for example,
tends to be on a high mortality rate. Some get sicker
and somie die.
~ Q.. In your opinion would the removal of any of
these patients endanger their lives or aggravate their
mental or health conditions?
A. On the basis of that finding, I think we could
safely say yes.
Q. In your opinion is there any danger to the
health and safety of the patients that are presently
residents or patients at Town Court Nursing Home?
A. I have not found teason to believe that. I
think there is no such danger to their health or safety
at the present time.
MR. POSNER: Cross-examine.
THE WITNESS: Nor was-there at any time
I have visited it.
MR. POSNER: Cross-examine.
Cross-Examination
MS. HATHAWAY: I have nothing, Your
Honor.
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254a Jesse Gaynor—Direct
THE COURT: Any questions?
MS. ANGELL: Yes.
~ BY MS. ANGELL:
Q. Dr. Linden, had you read the material that
was provided (66) on the Department of Health sur-
vey that was used by the Federal Government? Had
you read thé report?
A. The report made about this institution?
Q. Yes.
A. No, I have not.
Q. Have you seen any reports made by the De-
partment of Public Health or their surveys made in
reference to this institution?
A. No, I have not.
MS. ANGELL: No further questions.
MR. POSNER: Thank you very much, Doc-
tor.
THE COURT: You may step down.
Thank you, sir.
(The witness is excused.)
MR. POSNER: Mr. Gaynor.
JESSE GAYNOR, sworn.
Direct Examination
BY MR. POSNER:
Q. Mr. Gaynor, are you associated with Town
Court Nursing Home?
_ A. No, sir.
Jesse Gaynor—Direct 255a
Q. What field are you familiar?
A. I am a registered pharmacist, the State of
New Jersey.
Q. And you are presently doing what, sir?
A. Presently Executive Vice-President of a com-
pany called (67) Automated Pharmaceutical Ser-
vices. We specialize and provide pharmaceutical
services to long-term care facilities. We currently
service 26 facilities in New Jersey.
Q. Do you serve any of the geriatric institutions
in New Jersey?
A. No, sir.
Q. Now, sir, what is your past history in the field
of pharmacology?
A. Prior to joining A.P.S. in March of 1976, I
was chief, pharmaceutical services, in a New Jersey
Medicaid program.
Q. You were a state employee or director, sir?
A. Yes, state employee.
Q. Now, sir, at our request did you make a
“peer review” of Town Court Nursing Home?
A. . Yes.
Q. Would you be good enough, sir, to tell His
Honor what you investigated, what you found, and
what recommendations, if any, you made?
MS. ANGELL: Excuse me, Your Honor. If
that is in the form of a report, could we have
that? |
THE COURT: Do you have a report?
THE WITNESS: Yes, I do. I submitted a
report.
256a Jesse Gaynor—Direct
BY MR. POSNER:
Q. You submitted a report to whom, sir? Did
you submit a report?
(68) A. Yes, I did. That is a copy of it (in-
dicating) .
Q. To whom did you submit the report?
A. That report was submitted to Mr. Jones.
Q. Mr. Jones had testified here prior?
A. Yes.
Q. I see.
A.
There was a followup visit. This is the fol-
lowup report that was made to Mr. Coyle.
Q. Whois Mr. Coyle, sir?
A. Mr. Coyle, as I understood it, is the attorney
for the Town Court Nursing Home.
—Q. You are not talking about the Mr. Coyle
sitting at counsel table here?
A. No.
Q. Now, sir, do you have any copies of this?
A. You can have those.
MR. POSNER: Your Honor, | will have
photostatic copies made of it. This is my first
ado with these reports. I have not read
them.
es
May I have it marked for identification at
this time?
THE COURT: In other words, you didn’t
prepare for the hearing.
MR. POSNER: Pardon, sir?
THE COURT: Do I understand
ou h
prepared for this hearing? eee
Jesse Gaynor—Direct 257a
(69) MR. POSNER: Is that the conclusion
that Your Honor reaches?
THE COURT: That is what thought you
just said.
MR. POSNER: I said I have not read this
report produced by the witness.
THE COURT: . It occurred to me you might
have talked to the witness before the hearing.
MR. POSNER: | did not.
THE COURi: All right.
MR. POSNER: Nor to any of the other wit-
nesses that have testified.
THE COURT: Let’s move along.
(A five-page report by Mr. Gaynor to Mr.
Jones dated June 17, 1977, marked Plaintiffs’
Exhibit No. 8 for identification.)
(A four-page report by Mr. Gaynor to Mr. —
Coyle dated July 19, 1977, marked Plaintiffs’
Exhibit No. 9 for identification.)
BY MR. POSNER:
Q. I show you what has been identified here as
Plaintiffs’ Exhibits 8 and 9 and ask you if they are
summaries of the inspection that you made of Town
Court Nursing Home. 3
A. The first report dated June 17, 1977, is a re-
port that I sent to Mr. Jones because he was the
gentlemen that had contacted me and asked me to do
this peer review.
258a Jesse Gaynor—Direct
(70) I visited Town Court Nursing Home on June
13, 1977. I reviewed the survey team’s report on
pharmaceutical services. I checked the specific al-
leged deficiencies and did a complete review of all
of the nursing stations, the medication care, the pa-
tients’ charts and records, the prescriptions in the
medication carts. I checked the deficiencies *~ see if
they were isolated incidents or a pattern. 1 found
that they were not a pattern, thaf they were isolated
cases,
I made specific recommendations both in writing
and also verbally to Mr. Lewis, the administrator.
When I returned on July 18, I found virtually all of
the recommendations and suggestions had been car-
ried out, even those recommendations not covered by
regulation.
For example, I have a personal feeling that the
provider pharmacist and the consultant pharmacist
should not be the same, even though the regulations
permit it. I made that verbal observation to Mr.
Lewis, and when I returned on July 18, I found that
they have hired an outside consultant to serve as
consultant pharmacist. |
I recommended that the policy and procedural
manual be revised, that they have a separate phar-
maceutical manual; and this is being done.
I specifically checked all of the patients—I_re-
checked all of the patients—on July 18, where I had
found discrepancies in the first visit; and I found in
each case the (71) deficiencies had been corrected.
On the July 18 inspection, | found everything in
good shape.
Jesse Gaynor—Cross 259a
G. Now, sir, all of your findings and recom-
mendations contained in the report that you have in
your hand which have been marked Plaintiffs’ Ex-
hibits 8 and 9—
A. Yes.
Q. —in your opinion, sir, in your observations
on the two visits you made there, is there any danger
in your opinion to the health and safety of patients
or resident patients?
A. No danger to the patient.
MR. POSNER: Cross-examine.
Cross-Examination
BY MS. HATHAWAY:
Q. Mr. Gaynor, you said you made two visits to
the facility. Did you say June of 1977?
A. On June 13 and July 18.
Q. 1977.
Do you have any personal knowledge about the
conditions that existed in Town Court in the first
week of March 1977?
A. No.
MS. HATHAWAY: Thank you.
THE COURT: Any questions?
MS. ANGELL: I have no questions.
® THE COURT: You may step down.
(72) Thank you, sir.
(Witness excused.)
cai -
Eee
'260a Jesse Gaynor—Cross
THE COURT: Could somebody straighten
out a problem in my mind, provide a solution to
a problem which exists in my mind? Exhibit
P-4, the letter from HEW, in the third para-
graph it states:
“On May 8-11, 1977, the Pennsylvania De-
partment of Health performed a”—
MS. HATHAWAY: Typographical.
THE COURT: Everybody agrees it is March
8?
MR.POSNER: Yes, Your Honor.
MR.COYLE: I would like to represent to the
Court the attorney, Mr. Coyle, has been identi-
fied as counsel for Town Court is not related to
me nor do I know the gentleman.
THE COURT: You don’t know he is a
gentleman actually.
MR. POSNER: I had intended to call Dr.
Finkelstein. Unfortunately or fortunately, sir,
he is out of the country. He is a urologic sur-
geon; and I have his report, his written report.
I would like to have it identified as Plaintiffs’
Exhibit 10, and I trust there might not be any
objection to it being submitted.
THE COURT: All you have to do is offer it
and see if anybody objects.
(73) MR. POSNER: Thank you.
THE COURT: Any objection to P-10?
Jesse Gaynor—Cross 261a
MR. POSNER: I will show it to you first.
(Pause.)
THE COURT: Urologic or neurologic?
MR, POSNER: Urologist, sir.
(Pause.)
MS. HATHAWAY: Your Honor, | would
like to ask counsel for plaintiff for Town Court
for a stipulation that Dr. Finkelstein had no per-
sonal knowledge of the conditions that existed
there.
THE COURT: During the first week of
March of 1977?
MS. HATHAWAW: Yes, Your Honor.
MR. POSNER: I really don’t know.
THE COURT: Well, I will assume that he
doesn’t know.
MS. HATHAWAY: Thank you.
THE COURT: On that basis, we will receive
the exhibit for whatever it is worth, P-10.
(A seven-page report by Dr. Finkelstein to
Mr. John W. Francks, Executive Director, Ger-
iatric and Medical Centers, Inc., dated July 12,
1977, marked Plaintiffs’ Exhibit No. 10 for iden-
tification and received in evidence.)
MR. POSNER: Mr. Zelkovitz.
EDWARD J. ZELKOVITZ, sworn,
1
262a Edward ]. Zelkovitz—Direct
(74) Direct Examination
BY MR. POSNER:
Q. Mr. Zelkovitz, by whom are you employed
and in what capacity?
A. Geriatric and Medical Centers, and I am the
Vice-President.
My areas of responsibility are quality control and
government liaison.
Q. And how many nursing homes are you in
charge of? ny
A. Well, there are 10 as of this date.
Q. Now, will you explain to His Honor the type
of supervision that you give to the homes.
A. Well, I am in touch with the administrators
to review the enforcement, carrying out of the policy
and procedure manual, and to assure that the quality
of health delivery of the patients is in accord with
the manual. In other words, that there is quality
of patient care being delivered.
Q. Mr. Zelkovitz, you are aware of a notice re-
ceived from both the Commonwealth of Pennsylvania
and the Department of Health, Education & Welfare?
A. Yes, I am.
Q. And you are aware of that funding, according
to that letter, will be discontinued as of July 18,
1977?
A. Yes,l am. .
Q. Assuming that funding has been discontinued,
sir, can you continue to fund Town Court without
that federal and state [aid]?
(75) A. Well, the total capacity of Town Court
is 198 patients. As of this date, there are 177 Medi-
Edward J. Zelkovitz—Cross 263a
caid recipients. Without a computer, I would say
90 percent. If we remove 90 percent of the income
of Town Court, it would be impossible for it to func-
tion.
Q. So your answer is you cannot function with-
out that aid?
A. Absolutely not.
Q. Now, have you taken all the steps or shall |
use the word ‘‘reasonable’” or may I use the words
‘to assure quality continued operation” at Town
Court?
A. Absolutely.
Q. Assuming, sir, that you are compelled to close
because of lack of funding, is there sufficient facili-
ties in the area to house the peopie that would not
be able to be taken care of at Town Court?
A. I. am not sure I understand your question.
You are stating if the 177 Medicaid recipients were
removed from Town Court—
Q. Where could they go?
A. Well, they could go home to their families
or they probably could go to hospitals. I don’t think
there are any skilled care beds available for them.
MR. POSNER: Cross-examine.
Cross-Examination
BY MS. ANGELL:
Q. Mr. Zelkovitz, you indicate you are financially
responsible (76) for the 10 facilities?
A. Idon’t understand your question.
264a Edward J. Zelkovitz—Cross
Q. Well, you indicated that you speculate that
you will be unable to operate Town Court by reason
of termination of the funding. Do you have—
A. If you let me—
THE COURT: Excuse me. Just wait for the
question. Listen to it carefully.
THE WITNESS: I want to make sure I
understand it.
THE COURT: Be quiet, please.
Go ahead.
BY MS. ANGELL:
Q. You indicated you believe you would be un-
able financially to operate that institution. Do you
have responsibilities in the financial area for Town
Court?
THE COURT: Is that part of your job?
THE WITNESS: No.
BY MS. ANGELL:
Q. Isee. )
You indicated that you took all the necessary steps
toy I believe, protect or insure the good health of
the institution.
What did you do?
A. Well, we have instituted many new programs.
We were involved in a very progressive program
which is the assessment care eva'sation program in’
cooperation with Health, Education & Welfare.
(77) This is a very new approach to record-
keeping for the care of patients. We were involved
in this program for some time. “a
Edward J]. Zelkovitz—Cross 265a
The Department of Health, Education and Wel-
fare commended us on our progress. We assigned
a nurse to this area. We have increased our nursing
staff. We have four nursing stations, a second, a
third, fourth, and fifth floor. We are required to
have one professional nurse at each station. In addi-
tion to that, we are required to have a DON. We
have two professional nurses now at each station.
We have supervisors in addition to the DON around
the clock.
From the standpoint of programs, we now have
the Medical Direction Consultant Committee, which
is comparable to a medical staff in a hospital, which
is composed of several doctors; and we have ongoing
programs. We meet regularly to improve the ser-
vices.
It is quite a large facility—it is caring for 198
skilled care patients—and it is quite a task. We
have installed sentry tubs on each of the floors so
that in bathing the patients have this automatic piece
of equipment which the patients sit in, rises and puts
them into the tub, and also a very, very modern ap-
proach to nursing home care.
I am trying to think of some other programs. We
are constantly meeting and discussing programs and
methods for improving patient care.
(78) Q. Any of these changes exist in March of
1977?
A. Yes. I have been with Geriatric & Medical
Center since February of 1975. I would say since
that time we have been in an ongoing, upgrading
procedure at Town Court. It is a long, tedious pro-
cess. It is very difficult, all kinds of problems, but
266a Edward J]. Zelkovitz—Cross
we are constantly improving or we are moving ahead
all the time, we are working very hard.
It has been a very costly program. It has been a
very difficult program and achieving success. I am
very proud of what happened there, even up to March
of 1977.
Q. I see.
Now, you indicated there were no available beds
to your knowledge. ‘Are there available beds in your
other nine facilities?
A. Well, you say nine. There is one facility that
is just about ready to be licensed. We have to ex-
clude that since it is not licensed.
In our licensed existing facilities, no, there are not
a large number of vacancies, one or two.
Q. What is the total capacity of that to be li-
censed?
A. 140.
Q. So there are 140 new beds once licensing is to
be completed?
A. Yes.
THE COURT: Where is that?
THE WITNESS: At 63rd and Walnut
Streets.
(79) If I might, Your Honor, I might change
one comment that the Pennsylvania State Reloca-
tion Committee has already committed a number
of people to the new facility. So that there are
thousand of applicants, literally there are thou-
sands of people, waiting for beds to be built or
constructed. And this information I get from
the Adult Services Agency of Philadelphia, the
Edward J]. Zelkovitz—Redirect 267a
City of Philadelphia, the Regional Comprehen-
sive Health Planning Council, and the Depart-
ment of Welfare. There are just thousands of
people who are waiting for placement of skilled
care facilities in Philadelphia.
There are many, many facilities in Philadel-
phia about to be closed because of life safety
code problems.
MS. ANGELL: I have no further questions.
THE COURT: Anything else?
(No response.)
BY THE COURT:
Q. Did you ever see the statement of deficiencies
and plan of correction (indicating) ?
A. Yes, sir.
Q. When did it come to your attention?
A. Well, it came to my attention probably a day
after it had been received by the facility.
THE COURT: No further questions.
Redirect Examination
BY MR. POSNER:
(80) Q. Did you make any attempts to correct
the conditions as they were stated in the alleged de-
ficiencies?
A. Oh, yes. We went over these at great length
with Mr. Lewis and other members of the Executive
Committee. We spent a great deal of time in cor-
recting these. We are very careful.
268a Edward J. Zelkovitz—Redirect
We consulted with the Department of Health on
many occasions as to how these can be solved’ and
the proper way of answering the deficiencies. So
we wanted to make sure we did everything properly.
MR. POSNER: Thank you : i
That is all. Gite Agia
THE COURT: You may step down.
(Witness excused.)
MR. POSNER: That is my case, sir.
THE COURT: All right.
Perha -
body else has a case. saab
Anything further from the other plaintiffs?
MR. COYLE: No, sir.
nee COURT: Anything from the defend-
MS. ANGELL: Excuse me, Your Honor.
May I have a second to speak with
an peak with Mrs. Hath-
(Pause.)
MS. ANGELL: Your Honor, may counsel
see you at side-bar a moment please, sir?
THE COURT: Why not. Do you want to
meet in (81) chambers for a few minutes?
MS. ANGELL: O.K.
THE COURT:
Suppose we recess into
chambers.
(Conference in chambers off-the-record from
4:30 p.m. until 4:35 p.m.)
Gerald Szuc—Direct 269a
(The following took place in open court at
4:35 p.m.)
THE COURT: Proceed.
MS. HATHAWAY: Your Honor, I would
like to call Gerald Szuc, the Director of the
Division of Health Standards and Quality.
THE COURT: Fire away.
GERALD SZUC, sworn.
Direct Examination
BY MS. HATHAWAY:
Q. Mr. Szuc, would you give us your title, please?
A. My title is Regional Director for the Bureau
of Health Standards and Quality. It has a regional
office in Philadelphia.
Q. Can you describe for us how that relates to
long-term care standards and enforcement?
A. Yes. Under a recent reorganization order by
the Secretary of HEW, a number of health com-
ponents dealing with the health provider certification
program were pooled together.
(82) The Office of Long-Term Care Standards
Enforcement was one of the component parts of HEW
brought into a new organization called the Health
Care Financing Administration.
The Bureau that I represent is a successor organiza-
tion to the Office of Long-Term Care Standards En-
forcement.
Q. And can you tell us who has certification au-
thority in Region 3 for skilled nursing facilities?
oases Gerald Szuc—Direct
MR. POSNER: ba,
question. I am sorry, I didn’t hear the
THE COURT: She
“ce . . wants to k
certification authority in this ie sag who had
THE WITNESS: Th ,
? at t ; > .
myself as regional director. authority is vested in
BY MS. HATHAWAY:
Q. ,
alae S you give us a short explanation of the
‘ia suey sida -~ Bureau and your state sur
ith regar ificati : ;
ing fecititiea? gard to certification of skilled nurs-
A. 4 ° °
RL ae going into a laborious explanation, it
ae - nvolves a contract between the Secreta
sa ostt —we are his agents—and the State of el
a a, specifically with the Governor, which i
Pigg P0 re ae of Health and shat
wn to ano mponent within the Health
Department th
: at deals with ;
certification purposes. surveys for Medicare
ites is a contractual arrangement. We fund the
ncy to carry out surve
ys on a scheduled basi
Or on a special request basi ri
asis, and we provi
funds to the State to (83) perform th tt sg
ae € various sur-
That is it very briefly.
Q. Would i
you summarize the events leadi
wie letter of May 17, of Town rage sin Ped
: e notifying them that their provider a ae
ould not be renewed? cone
A. All right. I don’
; n’t
with all of the sieliiethbuis nt to bore the Court
-
Dkr ouaRn tc cicapeabitdiats til
Gerald Szuc—Direct 271a
THE COURT: Just answer the question,
please.
THE WITNESS: We terminated it from the
program; that is, I did not renew the provider
agreement with the facility on October 31, 1974,
on the basis of many standards not being met.
On December 2, 1975, a health survey was
performed by the State agency and was not ap-
proved—their recommendation was not ap-
proved—for renewed participation in the pro-
gram because of some significant deficiencies
that continued to exit at the facility.
On April 14, 1976, the State agency—this is
the State survey agency that I referred to earlier
—again recommended a certification that. this
facility be participated in the Medicare program.
On May 11, 1976, the Department of Health,
Education & Welfare notified that the agree-
ment had been approved and that a cancellation
clause would be made of July 31, 1976.
On July 19 and 20, 1976, the HEW regional
office itself—
(84) THE COURT: Excuse me. What is
that about July 31, 1976?
THE WITNESS: That was the date in
which the provider agreement was to be can-
celled pending correction of all of the deficien-
cies.
BY THE COURT:
Q. Notified them on May 11 that the agreement
was approved by HEW?
272a Gerald Szuc—Direct
A. Yes, I did, or we did, the office did.
rj sal was going to be cancelled on July 31?
_ “A. Pending correction of deficienci
if eee eficiencies noted dur-
Q. During wh i
de & what survey, the April 14 survey?
Q. That undoubted
. y makes sense to oth
it doesn’t make any sense to me. patti
A. Should I continue?
4 Whatever you want to do.
. On July 19 and 20, HEW i
f regional office
tapsiomn a health care or health survey and found
t oe facility out 2f compliance with the conditions
is Hs November 22 through 24, a request was made
: ‘Monge, survey agency to perform another survey
O find if the facility was now in compliance, and the
State agency finding indi
g indicated that it w
oligtce, hat it was out of com-
MR. POSNER: I will obi
: ject to that
that be (85):stricken, sir. if ca
THE fecti
PTY COURT: Objection overruled. Motion
THE :
ered WITNESS: On March 8 through 11,
THE COURT: Anything j
: ythin b
and 20 and March’8? § in between July 19
THE WITNESS: Not tha i
rE : tlh i
review of the record. oe
MS. ANGELL: Ma
: y we specify wh
agency is performing these? sien th colton
THE WITNESS: Yes. It would be the State
urvey agency, which is the Health Department
Gerald Szuc—Direct 273a
MS. ANGELL: Isee. Thank you.
THE WITNESS: On March 8 through 11,
1977, another survey was conducted by the State
survey agency and again the conditions of par-
ticipation were found out of compliance. At
that point in time the State Health Depart-
ment—
THE COURT: Excuse me.
BY THE COURT:
Q. Are you talking about this report here (in-
dicating) ?
A. Yes, | am, Your Honor. And at that point
in time based on the survey that you have in hand
the State agency recommended that the provider
agreement not be renewed.
Q. Well, now just as a matter of curiosity, where
does this say they are not in compliance with any-
thing?
A. There is another form. It is a form letter
actualiy (86) called the certification transmittal form,
which bears the signature of a State representative,
saying that it is not in conformance. I don’t believe
you have that in your hand. |
QO. Certification and transmittal to whom?
A. It.is just an official document called certifica-
tion and transmittal, which the State sends to us and
recommends a certain action. In this case they recom-
mended that the provide: agreement not be renewed.
Q. And they did that at the same time as the
original survey or after they had the provider?
A. That would be the last stage, Your Honor,
after the survey was conducted on March 8 through
274a Gerald Szuc—Direct
11. Then the findings were written up and what is
called the list of the deficiencies which you have in
your hand. Then that whole package is then irans-
mitted to us with a recommendation for non-continu-
ance of the provider agreement.
Q. Notwithstanding the fact the provider was
supposed to provide a plan of correction and hadn’t
done that yet because he hasn’t had a chance; is that
right?
A. The provider is given an opportunity—I have
to look at the date of the certification and transmittal
form, which I don’t have in front of me. That would
_ indicate when the form was submitted to the regional
office.
But as a matter of procedure the facility is given
10 days to respond to the list of deficiencies, which
would (87) be placed on the form that you have in
your hand, sir, and they were given the opportunity
to come up with a plan of correction except they
did not.
Q. Well, what good would it do to come up with
a plan of correctipn if you already had a recommenda-
tion to terminate?
A. They were given an Opportunity to come up
with compliance; they did not.
THE COURT: Let’s find out.
Do we have a date on the transmittal?
(A one-page document concerning Town
Court Nursing Center entitled “Medicare/Medi-
caid Certification and Transmittal” was marked
Defendants’ Exhibit No. 5 for identification.)
Gerald Szuc—Direct 275a
i Court
(A 68-page report concerning Town ou!
Nursing Center entitled “Medicare/Medicaid
Skilled Nursing Facility Survey Report _was
marked Defendants’ Exhibit No. 6 for identifica-
tion.)
MS. HATHAWAY: | This is the certification
and transmittal.
(Defendants’ Exhibit No. 5 was handed to
the Court by Ms. Hathaway.)
THE COURT: I will note I have been
handed an exhibit called D-5, which purports
to be the certification and transmittal of, pre-
sumably, the document referred to by the wit-
ness.
THE WITNESS: That is correct.
THE COURT: It bears a stamp showing
receipt by (88) the licensing, scheduling and
tracking unit, Division of Long-Term Care, De-
‘partment of Health, of April 4, 1977.
I will note that the date on which the pro-
vider, after a plan of correction, was effective
April 14, 1977.
MR: POSNER: | I don’t have a copy, sir. I
assume I will be furnished with one at a later
time. si
THE COURT: You are not missing a thing.
MR. POSNER: Thank you, sir.
THE COURT: It doesn’t say anything ex-
cept recommend non-renewal of the agreement.
276a Gerald Szuc—Direct
I will note it bears a typed date by the sur-
veyor, who has been named, the d
Age . ate of March
Proceed.
THE WITNESS: The conclusion simply is
we did not review the provider agreement be-
cause it failed—the facility failed to maintain
compliance with the conditions of participation
for Medicare participation and that based on the
history of the continuous non-compliance of the
facility the decision was made not to renew the
provider agreement at that point in time.
nia BOL Your Honor, this is De-
Scag s’ Exhibit 6. This is the survey report
BY MS. HATHAWAY:
Q. Mr. Szuc, can you identify this for me, please?
: A. The exhibit that | have in my hand is called
Medicare/Medicaid Skilled Nursing Facility Survey
Report,” and what it (89) contains is a listing of all
of the standards that a nursing home is supposed to
meet. It marks what conditions, what standards are
or are not met at the time of survey, which at this
time was March 8 through 11, 1977. |
Q. Where are those standards derived from?
A. They are contained in federal regulation, and
as a matter of fact, the wording contained be this
form for the most part is an exact wording of th
regulations themselves and— ;
THE COURT:: Excuse me. This is ab-
solutely meaningless. You have got them stapled
together topsy-turvy. Some are upsidedown,
Gerald Szuc—Direct 277a
backside to, inside out. It is impossible to fol-
low this exhibit.
I will note, for example, it is a sort of a check
sheet and shows some things as the standards
being met and others not being met.
THE WITNESS: Yes, Your Honor.
BY THE COURT:
Q. Do I understand if any one those standards
was not met that would show non-compliance; is that
right?
A. There is an evaluative process where all the
standards—excuse me, please—there are three levels
of items listed on here. If you look on the first page
it says: “Compliance with federal, state and local
laws.” That is technically called a condition—
Q. That says: “Standard: Conformity with
other federal, (90) state, and local laws.” “Not
met.” It lists over on the right a whole bunch of
things, including two patients’ records reviewed and
lacked yearly CBC and urinalysis reports.
If there was a state report that requires that, |
would be amazed.
Another one, sprinkler inspection with a date. I
don’t know whether that shculd have been inspected
more recently or wasn’t inspected properly or what.
F. 14 the written agreement with the ICL facility
has expired, and everybody seems to agree there is
no requirement of law there be a written agreement.
I don’t understand.
MS. STILLER: Your Honor, that is a mis-
statement by a witness. There is a requirement
by state law.
278a Gerald Szuc—Direct
BY THE COURT:
Q. What does “sanitation” mean?
A. What page is it, Your Honor, on?
Q. Still on the first one: ‘Standards: Confor-
mity with other federal, state, and local laws,” which
is related to fire and safety, sanitation, communicable
and reportable diseases, post-mortem procedures, and
other relevant health and safety requirements, Page
2.
A. What is your question, I am sorry?
Q. My question is: What does it mean?
A. Conformity with other federal, state, and local
laws.
(91) Q. When it says “sanitation, 12/3/76,”
what does that mean? Does that mean there is a
law that says they have to be sanitated on December
3?
A. Your Honor, I do not know.
Q. Idon’t either.
What is “fire alarm inspection, 2/24/77”?
A. I am assuming that was—I am assuming this
without knowing—that the fire alarm inspection was
last performed on that date by a local inspector.
Q. In other words, there is no way of telling
when she said—or when the inspector said-—‘‘Not
met”’ over on the left you don’t know in what re-
spect they are not met by looking at this?
A. Except where it is annotated, for example,
at the bottom of the same page, refers to two pa-
tients’ records which were reviewed.
Q. CBC and urinalysis reports.
A. _ l am not sure what the CBC is.
Gerald Szuc—Direct 279a
Q. Does that mean there is a state law—federal,
state, or local law—that requires that the records
have urinalysis reports in them?
A. I would have to ask someone. I don’t do the
inspections, Your Honor. I don’t have a specific
knowledge. It is the surveyor herself who has
knowledges of the state and local laws, would be able
to tell that.
BY MS. HATHAWAY:
(92) Q. The facility received its notification of
non-renewal on May 17. Did it file a reconsidera-
tion request?
A. It did file a reconsideration request, yes.
Q. Have you acted upon that request?
A. The documentation that we received—
THE COURT: Just answer the question,
please. '
THE WITNESS: Yes, we have.
BY MS. HATHAWAY:
Q. Have you sent a formal notification of the
results of the reconsideration?
MR. POSNER: I am sorry, what was the
question? You are facing the witness, and I
can’t hear you. I am so sorry.
BY MS. HATHAWAY:
Q. Have vou sent a formal notification of recon-
sideration?
A. No, we have not.
Q. Why not?
280a Gerald Szuc—Direct
A. We were requested by the nursing home to
hold up any’ formal decision pending receipt of a
number of materials pertinent to their case.
Q. Have you received those materials?
A. We have received some as of the 20th of July.
We have to my knowledge not received all of the ma-
terials, no.
Q. And can you summarize for us the factors
which led you to-make a decision not to review the
provider agreement for this facility?
(93) MR. POSNER: Objected to, sir.
THE COURT: Objection overruled.
THE WITNESS: The factors leading up to
the decision are based on a long history of non-
compliance over a considerable period of time
where we or the State agency has gone in and
continued to find the facility out of. compliance —
with some very serious conditions.
BY THE COURT:
Q. Name one or two.
A. The supervision by physicians and nursing—
Q. It says “Supervision of physicians” in the re-
port.
A. This refers to making sure, that the physicians
are properly supervising the patients’ care.
Q. What does that mean? The problem through-
out here is it is all general categories without any
specifics.
A. The specifics should be contained, Your Hon-
or, in the plan of correction.
Q. Well, how can you have a plan of correction
when it says, ““The governing body and administrator
Gerald Szuc—Direct 281a
or not enforcing rules and regulations relative to the
health care and safety of the patients as evidenced
by lack of supervision of physician services, nursing
services, and medical records’? Now, how can any-
body respond to that except in the general way which
they did?
A. That is explained to the parties during the
time of the survey and the fact that they are able to
come back with a plan (94) of correction, which is
the righthand side of the form, which indicates that
they do understand what was said.
Q. The point I am getting at is, you listed this
as a very serious violation. Yet you don’t give any
specifics in the charge, and they don’t give any spe-
cific in their plan obviously. And I still don’t know
what the serious deficiency is. What are the—
A. Your Honor—
Q. —-serious aspects of it?
A. I must be honest. I hav® not worked on this
case myself. I am in chagge of the regional office.
I was appointed to that position/about a month ago.
I was not involved in the™decision-making process
at the time the determination was made.
THE COURT: Then I will reverse my pre-
vious ruling and sustain the objection, If you
didn’t make the decision, obviously you can’t
be questioned.
BY MS. HATHAWAY:
Q. Mr. Szuc, will you make the reconsideration
determination?
A. The way—lI have the authority to make the °
reconsideration decision. However, presently the
282a Gerald Szuc—Cross
normal way of handling that would be to have one
of my division directors would make the initial de-
cision and I would reserve the right to make the re-
consideration decision in this case.
However, because I do not have a division director
to be fair to the facility the way I would handle the
(95) reconsideration iy to send it to our headquarters
in Balitmore and ask them to make a completely in-
dependent review of the case.
Q. Ihave one final question.
Do you have authority to issue a provider agree-
ment if there are conditions of compliance, condi-
tions of participation out of compliance?
A. Ido not have that authority.
MS. HATHAWAY: Thank you. That is
all.
THE COURT: Any questions?
Cross-Examination
BY MR. POSNER:
Q. Do you know who composed the survey team
that made this inspection, sir, of your own knowl-
edge? .
A. Of my own personal knowledge, I do not
know.
Q. Do you know their qualifications of your own
personal knowledge?
A. Since I don’t know the individuals specifically
who conducted the survey, the answer is no.
THE COURT: It says here “Claire Richards;
title, registered nurse.”
Gerald Szuc—Cross_ . 283a
Over on the right the State survey agent is
Jay E. Laff, Director, Division of Long-Term
Care. I don’t know what that means.
At least one of them was a nurse.
THE WITNESS: Yes.
(96) BY MR. POSNER:
Q. May I ask you, sir, you have been on the job
for one month you said?
A. That is correct, sir.
Q. You kiew this case was in progress, did you
not, sir?
A. During the month?
Q. Yes.
A. I would have been aware of it during the past
couple of weeks, yes.
Q. Did you decide to go down to visit Town
Court Nursing Home in order to satisfy yourself as
to the conditions that might exist there and make
an inspection in order that you in your own mind
would know what you were talking about in this
case?
A. That was not necessary, sir.
Q. Who is Robert J. Taylor?
A. Robert J. Taylor was former Director of the
Office of Long Term Care Standards and Enforce-
ment. He is presently one of my regional—one of
my directors.
Q. As of May 17, 1977, was he authorized to
act for your department?
A. He was.
Q. As of July 19, 1976, do you know whether or
not hé was authorized to act for the department?
284a Gerald Szuc—Cross
(Pause.)
A. The reason I hesitate some is redelegations
were made on (97) or about that time. I am not
sure of the exact date, but I believe he diu not at
that point in time. I will have to verify that.
(A one-page letter from the Department of
Health, Education and Welfare to Town Court
Nursing Center, dated July 19, 1976, was
marked Plaintiffs’ Exhibit No. 11 for identifica-
tion.)
BY MR. POSNER:
Q. I show you what has been described—
4. Excuse me, can I answer for clarification?
Is that in order?
THE COURT: Sure. What is the problem?
THE WITNESS: I did know—did you say
July 19, 1976, or ’77?
BY MR. POSNER:
Q. ’76.
A. Ido know. I have knowledge of that. He
did have the authority on July 19, 1976. I thought
you meant ’77, I am sorry.
Q. Now, sir, as of July 19, 1976, were you
aware that Mr. Taylor pursuant to his authority ad-
dressed a letter to Town Court Nursing Home (hand-
ing to witness) ?
A. Iwas not aware of it.
Q. And you have it in front of you in the form
of P-11?
A. Yes.
Gerald Szuc—Cross 285a.
Q. Now, sir, may I refer you to two paragraphs
of that letter particularly. One is the third paragraph
and then the fourth (98) paragraph.
Q. Would you be good enough to read it?
A. Te.
“April 14, 1976, is the earliest possible ef-
fective date for your agreement. On that date
a survey was performed which found you had
corrected all of the deficiencies which had
caused the involuntary termination of your fa-
cility, which took effect October 31, 1974.”
The fourth paragraph:
“Surveys prior to the April 14, 1976, survey
found that the deficiencies which had caused
your termination from the program had not yet
been fully corrected. Section 1866(c) (1) of
the Social Security Act and Regulation 20 CFR
405.616 precluded your readmission to the pro-
gram until the reason for your termination had
been removed.”
That is the end of the fourth paragraph.
MR. POSNER: Thank you. That is all.
No further questions.
THE COURT: Recessed until tomorrow
morning at 10 o’clock.
(Adjourned at 5.p.m. until 10 o’clock Wednes-
day, July 27, 1977.)
286a Appearances
(99) IN THE UNITED STATES DISTRICT
COURT FOR THE EASTERN DISTRICT OF
PENNSYLVANIA
[Caption Omitted]
Philadelphia, Pennsylvania
July 27, 1977
Before Hon. John P. Fullam, J.
PRELIMINARY HEARING
Appearances:
Fox, Rothschild, O’Brien & Frankel by Nathan L.
Posner, Esq., Jeffrey B. Albert, Esq., for Plaintiff
Town Court Nursing Center, Inc.
(100) Saul Levit, Esq., for Additional Plaintiffs
Faith M. Angell, Esq., Deputy Attorney General,
for Secretary of Public Welfare—Commonwealth of
Pennsylvania
Margaret Hathaway, Esq., Assistant Attorney Gen-
eral, for Secretary of the United States—Department
of Health, Education and Welfare, Defendant
Jennifer A. Stiller, Esq., Assistant Attorney Gen-
eral, for Department of Health—Commonwealth of
Pennsylvania
(101) (Commenced at 10:10 o’clock a.m.)
THE COURT: Anything further in the Town
Court matter?
Colloquy 287a
MR. LEVIT: Good morning. I am Saul
Levit. I am here for William Coyle. He
teaches some mornings.
THE COURT: I hope he teaches students as
well as some mornings.
Anything from the defense?
MS. ANGELL: Excuse me, Your Honor, I
think counsel would like an opportunity to see
you in chambers.
THE COURT: All right.
(Conference in chambers at 10:11 o’clock
a.m.)
(Discussion off the record.)
(The following on the record at 10:50 o’clock
a.m.)
THE COURT: I will note for the record that
all of the exhibits which were referred to by the
witnesses and identified yesterday have been re-
ceived in evidence and will be deemed part of
the record.
(Plaintiffs’ Exhibits 1 through 11 and De-
fendants’ Exhibits 1 through 6 received in evi-
dence.)
288a Order —
THE COURT: i will note further that |
have at counsel’s request met with them in
chambers and they in turn have met with each
other, and it is my understanding that the Or-
der which is about to be entered, while not con-
sented to by any of the defendants, probably is
not terribly inconsistent with their views as to
an appropriate disposition.
(102) Specifically on the basis of the evidence
which has been presented, it is my feeling that
the harm which would be done to the patients
as well as to the corporate plaintiff by the ces-
sation of funding would be devastating and ir-
reparable whereas there can be serious ques-
tion as to the jurisdiction of this Court with re-
spect to the merits of the controversy. I believe
this Court does have jurisdiction for the limited
purpose of maintaining the status quo during
the period when the administrative action on the
application for reconsideration is undergoing its
routine processing and completion.
Since it is clear on the record that the con-
tinuation of patients in that nursing home during
that period would not be inconsistent with the
continued health and welfare of the patients—
in other words, none of the alleged complaints
bear on any serious safety or health hazards—
under all those circumstances the following Or-
der is entered:
That the Temporary Restraining Order here-
tofore entered shall remain in effect pending
completion of administrative action.on the pend- .
Order 289a
ing application for reconsideration and until the
defendants give to the plaintiffs at least five
days’ written notice of their intention again to
terminate funding.
It is understood that during this period the
funding will not be curtailed or cut off and that
the defendants will not systematically or other-
wise intentionally remove patients from the home
except in cases where that is the patient’s own
voluntary (103) choice or in cases of medical
necessity. In short, there will be attempt to
simply transfer patients for the sake of putting
them in some other place rather than this.
And it is understood that there will be no
prohibition during this interim period against
placement of additional patients at the home.
I believe that covers it, does it not?
MR. POSNER: It is satisfactory to me, sir.
THE COURT: O.K. Good luck with the
administrative review. I hope it proceeds ex-
peditiously.
Thank you all.
(Concluded at 10:56 o’clock a.m.)
ee
PLAINTIFFS* EXHIBIT NO. 1 290a
et ee
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972
ee
1526-36 Lombard Street COBBS CREEK NURSING HOME
290%a
2
ORZ Lopate Ay
EXHIBIT NO,
PLAINTIFFS *
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4,
ahr a FRO Rey REE OE Ee EES Ere ~ tas om
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Plaintiffs’ Exhibit No. 3 291a
PLAINTIFFS’ EXHIBIT NO. 3
Commonwealth of Pennsylvania
Department of Public Welfare
Harrisburg, Pennsylvania 17120
May 20, 1977
Office of
Medical Programs
Certified Mail Number: 627088
Mr. Donald Lewis
Administrator Provider Number: 0400357
Town Court Nursing Center
1526 Lombard Street
Philadelphia, Pennsylvania 19146
Dear Mr. Lewis:
The Department of Health, Education, and Wel-
fare (HEW) has notified the Department of Public
Welfare that your participation under Title XVIII of
the Social Security Act, 42 U.S.C. §1395cc, Medicare,
will terminate effective June 18, 1977. Because the
Medicare Program has terminated your participation,
the Department of Public Welfare has no alternative
but to likewise terminate your participation under the
Medical Assistance Program. The Federal regula-
tions, 45 C.F.R. §249.33 (a) ( 9), require that a State
medical assistance plan must:
“Provide that in the case of skilled nursing
facilities certified under the provisions of title
XVIII of the Social Security Act, the term of a
provider agreement shall be subject to the same
292a Plaintiffs’ Exhibit No. 3
terms and conditions and coterminous with the
period of approval of eligibility specified by the
Secretary pursuant to that title, and upon noti-
fication that an agreement with a facility under
title XVIII of the Act has been terminated or
cancelled, the single State agency will take ap-
propriate action to terminate the facility’s par-
ticipation under the plan. A facility whose
agreement has been cancelled or otherwise ter-
minated may not be issued another agreement
until the reasons which cause the cancellation
or termination have been removed and reason-
able assurance provided the survey agency that
they will not recur.” (emphasis supplied)
Because of the requirements of HEW, your facility
must be terminated from participation in the Medical,
Assistance Program effective June 18, 1977.
Effective June 18, 1977, Town Court Nursing Cen-
ter may no longer receive payments under the Medical
Assistance Program for skilled nursing care or for
services provided to Medical Assistance patients.
This is due solely to the fact that HEW has notified
us of your Title XVIII termination.
Should you wish to present evidence that HEW
has not decided to terminate your facility from par-
ticipation in the Medicare Program, you may appeal
in writing to the Department of Public Welfare, and
a hearing will be scheduled promptly to decide that
issue. The basis for HEW’s decision to terminate
will not be at issue in any appeal to this State agency,
although you may wish to raise such issue before
HEW.
Plaintiffs’ Exhibit No. 3 293a
Your appeal from our decision to terminate you
from the Title XIX Program because of the Title
XVIII action, must be received by the DPW Hear-
ings and Appeals Unit, 318 Capitol Associates Build-
ing, Harrisburg, Pennsylvania 17120, no later than
May 31, 1977. An appeal which is not received by
this date must be dismissed as untimely. Upon re-
ceipt of your appeal, the Hearings and Appeals Unit
will inform you of the date, place and time of the
hearing.
Should your facility need assistance in relocating
the Medical Assistance patients to alternate facilities,
please contact this office.
Any subsequent certification of your facility under
the Medical Assistance Program is contingent upon
total compliance with Federal requirements, including
correction of those deficiencies which resulted in
Town Court Nursing Center’s termination under the
Title XVIII, Medicare Program.
Sincerely yours,
(s) Glenn Johnson
Glenn Johnson
Director
Bureau of Medical Assistance
294a Plaintiffs’ Exhibit No. 4
PLAINTIFFS’ EXHIBIT NO. 4
DEPARTMENT OF HEALTH, EDUCATION,
AND WELFARE
Region III
3535 Market Street
Philadelphia, Pennsylvania
May 17, 1977
Office of the
Regional Attorney
Mailing Address
P. O. Box 13716
Philadelphia,
Pennsylvania 19101
J. McMahon
L. Davis
E. Otter
S. Russo
W. Wells
W. Shlegel
A. Justin
J. Smith
G. Grimes
Town Court Nursing Center
1526 Lombard Street
Philadelphia, Pennsylvania 19146
RE: Provider Number 39-5337
Gentlemen:
The Medicare Program established under Title
XVIII of the Social Security Act, as amended, re-
quires that a provider agreement with a skilled nurs-
Plaintiffs’ Exhibit No. 4 295a
ing facility shall, in accordance with section 1866 (a)
of the Act, 42 USC 1395cc, be for.a specified term
not to exceed twelve months, with a fixed expiration
date. Your facility’s agreement expired at the close
of April 30, 1977.
In order to participate in the Medicare Program, a
skilled nursing facility must meet the statutory re-
quirements contained in section 1861 (j) of the Act,
42 USC 1395 x (j), as well as all other health and
safety requirements established by the Secretary in
subpart J, part 405, title 20 of the Code of Federal
Regulations. A participating skilled nursing facility
is required to be in compliance with all of the
eighteen conditions of participation for such facilities
contained in subpart J.
On May 8-11, 1977, the Pennsylvania Department
of Health performed a survey of your facility. That
survey found that your facility does not comply with
seven of the eighteen conditions of participation.
The seven conditions not being complied with are:
II. Governing Body and Management (405.1121)
III. Medical Direction (405.1122)
IV. Physician Services (405.1123)
V. Nursing Services (405.1124)
VIII. Pharmaceutical Services (405.1127)
XIII. Medical Records (405.1132)
XV. Physical Environment (405.1134)
Your facility’s failure to comply with these condi-
tions of participation precludes renewal of your
agreement. Renewal is also precluded by the fact
296a Plaintiffs’ Exhibit No. 4
that your facility has failed to maintain compliance
with numerous standards which had previously been
determined to be met. Please refer to 20 CFR 405.-
1908 (d).
As you know, the Town Court Nursing Center’s
participation in the Program was terminated effective
October 31, 1974 because of deficiencies which
jeopardized patient health and safety. The facility
was subsequently readmitted to the Program effective
April 14, 1976, on the strength of a survey performed
by the State Department of Health on that date. The
April 14, 1976 survey found the facility in full com-
pliance with the health care standards included in
the conditions of participation. The survey _per-
formed on March 8-11, 1977 found a total of forty
standards unmet. Please see attached survey and
plan of correction.
As a result of the March 8-11, 1977 survey, the
State Department of Health has recommended that
your facility’s agreement not be renewed. Because
of the facility’s failure to comply with seven condi-
tions of participation, and because of its failure to
maintain compliance with standards which were pre-
viously met, the State Agency’s recommendation has
been accepted, and the agreement with Town Court
Nursing Center will not be renewed.
This letter constitutes your official notice that we
are terminating your facility from participation in
the Medicare Program effective June 18, 1977. If
you believe that all deficiencies have now been cor-
rected, please advise this office within ten working
days.
Plaintiffs’ Exhibit No. 4 297a
No payment for services rendered in your facility
after June 18, 1977 may be made under the Medicare
Program, except that payment may be made for in-
patient skilled care services rendered to Medicare
beneficiaries admitted to your facility before June
18, 1977, and such payment is specifically limited
to services furnished through the close of July 17,
1977. Please notify all Medicare beneficiaries admit-
ted before June 18, 1977 that no payment will be
made for such services rendered after July 17, 1977.
A list showing the names and health insurance claim
numbers of beneficiaries in your skilled nursing fa-
cility on June 18, 1977 should be forwarded to the
Regional Medicare Director, Bureau of Health Insur-
ance, Department of Health, Education, and Wel-
fare, Post Office Box 8788, Philadelphia, Pennsyl-
vania 19101.
We will arrange for the publication of a notice of
the non-renewal of your agreement in a newspaper
servicing the locality in which your facility is located.
You will be advised of the publication date of that
notice.
If you believe this determination is not correct,
you may request that it be reconsidered. If you want
a reconsideration of the decision, you must request
it not later than sixty (60) days from the date of
receipt of this notice. The request should state why
you believe the determination is incorrect and should
be accompanied by any supporting evidence and
arguments you wish considered. The request for re-
consideration should be directed to Robert J. Taylor,
Director, Office of Long Term Care Standards En-
298a Plaintiffs’ Exhibit No. 4
forcement, Post Office Box 13716, Philadelphia,
Pennsylvania 19101.
Section 246(a) of Public Law 92-603 requires
uniform standards for skilled nursing facilities un-
der Title XVIII (Medicare) and Title XIX (Medi-
caid). Any facility receiving payment under either
program must satisfy all the requirements contained
in section 1861 (j). Since the Town Court Nursing
Center does not comply with all requirements therein
and we cannot renew your agreement for Title
XVIII, we are forwarding a copy of this letter to the
Title XIX State Agency.
Sincerely yours,
Benjamin M. Guy
Acting Regional Director
By: (s) Robert J. Taylor
Robert J. Taylor, Director
Office of Long Term Care
Standards Enforcement
Copy to:
Dr. Abdellah
OLTC Div. of Standards
Enforcement Division Coordination
Mr. Wortman
Mr. Alicks
MSA-CO
MSA-RO
Intermediary
BHI-RO (2)
Regional Attorney
Pittsburgh District Office (East)
Plaintiffs’ Exhibit No. 4
OCR-RO
State Survey Agency
Single State Agency
Provider File
Reading File
299a
300a Plaintiffs’ Exhibit No. 5
PLAINTIFFS’ EXHIBIT NO. 5
RE: TOWN COURT NURSING CENTER
1526 Lombard Street
Philadelphia, Pa. 19146
ANALYSIS OF STATEMENT OF DEFICIENCIES
RESULTING FROM SURVEY CONDUCTED
MARCH 8-11, 1977
PROF. TOBIAS BUND, J. D.
Management Consultant
4705 Henry Hudson Pkwy.
Riverdale, N.Y. 10471
TEL: (212) 796-4007
Dr. Bund is Professor of Health Care Administra-
tion and Director, Allied Health Programs at the
French & Polyclinic Medical School in New York
City. He is also a member of the Faculties of the
Rutgers University, New Jersey, the School of Busi-
ness Management and the School of Continuing
Education of the University of Connecticut, the In-
stitute of Health Care Administration of C. W. Post
College, Long Island, New York and of Elizabeth-
town College, Penna. He has appeared as Guest
Lecturer at the Columbia University School of Pub-
lic Health & Administrative Medicine in New York,
Douglas College in New Jersey, Quinnipiac: College
in Connecticut and many other well-known educa-
tional institutions.
Plaintiffs’ Exhibit No. 5 301a
He has been actively engaged in the field of Pub-
lic Health for more than twenty-five years and serves
as a Consultant to all types of health facilities—hos-
pitals, nursing homes, senior citizen projects, inter-
mediate care and health related facilities and other
health related organizations.
For many years, he served as Professor of Public
Health Law, Mortuary Law and Applied Psychology
at the McAllister Institute in New York City; as
Chairman of the Law Committee of the National
Ass’n of Schools of Mortuary Science; as a Consul-
tant to the Funeral Service Industry and as Special
Legal Consultant to the Office of the Medical Exam-
iner of the City of New York.
At the present time, Dr. Bund serves as a member
of the Council of the Pan American Medical Ass’ns.
Sections on Hospital Administration and Geriatrics;
as a Lecturer for the New York and New Jersey State
Departments of Health; as Consultant Examiner for
the New York State Civil Service Commission; as
Executive Secretary of the Society of Licensed Nurs-
ing Home Administrators of New Jersey; as Consul-
tant to the Therapeutic Activists Section of the New
Jersey Recreation and Parks Association and as a
Consultant to the many religious, non-profit and
proprietary organizations engaged in the building,
maintenance and operation of health care facilities
throughout the East Coast.
Dr. Bund has appeared as Guest Speaker at meet-
ings of civic, educational, charitable, religious, poli-
tical, professional and governmental agencies, or;
ganizations and societies. (\
302a Plaintifjs’ Exhibit No. 5
RE: TOWN COURT NURSING CENTER
1526 Lombard Street
Philade'phia, Pa. 19146
ANALYSIS OF STATEMENT OF DEFICIENCIES
RESULTING FROM SURVEY CONDUCTED
MARCH 8-11, 1977.
INTRODUCTION:
This Analysis of the Statement of Deficiencies was
made after a detailed survey of the above named
Facility conducted by the undersigned during the
period June 4-7, 1977 inclusive.
Each section of the Statement will be analyzed in
the same sequence as it appears thereon for purposes
of ready reference.
CONFORMITY WITH FEDERAL, STATE AND
LOCAL LAWS:
1. The Regulation herein cited (405.1120 (c))
makes no reference to any requirement that there be
a written agreement with an Intermediate Care Fa-
cility. The Regulation cited refers solely to the
adoption by the Governing Board of various policies.
2. Again, the Regulation cited makes no reference
to the materials cited as a deficiency. Regulation
405.1120 (c) deals solely with the adoption by the
Governing Board of various policies.
COMMENT: A review of the Administrative Poli-
cies and fay indicates that proper policies as
required by (thes@foresaid Regulation were adopted
Plaintiffs’ Exhibit No. 5 303a
by the Governing Board of this Facility. There ap-
pears to be no relationship between the alleged de-
ficiencies and the stated Regulation.
GOVERNING BODY AND MANAGEMENT:
3. The stated deficiency hereunder is and fol-
lowed by the citing of Reg. 405.1121 (c), (e) and
(k) is evidently a conclusion drawn by the indi-
viduals responsible for drafting the Statement of De-
ficiencies.
A reading of each of the sub-paragraphs of the
cited Regulation indicates that the Facility has com-
plied with each of them:
Standard (c) requires the governing board to
adopt by-laws and policies.
Standard (e) requires the appointment of au Ad-
ministrator with overall responsibility for the opera-
tion of the Facility, and
Standard (k) requires the adoption of a Patients’
Bill of Rights.
GOVERNING BODY AND MANAGEMENT:
COMMENT: “A review of the Administrative Poli-
cies and Procedures of the Facility indicates that all
of the foregoing Standards had been complied with.
The Manvwal contained By-Laws and other Policies
relating to the operation of the Facility and same had
been adopted by the Governing Body. An Admin-
istrator was duly designated by the Governing Body
and given overall responsibility for the operation of
the Facility. A Patients’ Bill of Rights was contained
in the Administrative Policy and Procedure Manual.
304a Plaintiffs’ Exhibit No. 5
Citing “lack of supervision of physician’s services,
nursing services and medical records’ as evidence
that the Governing Body and Administrator are not
“enforcing rules and regulations” has, again, no
relationship to the Regulation cited. It does, how-
ever, indicate to this Reviewer the attitude with
which the Statement of Deficiencies were written.
4 (a) and (b): At the time of your Reviewer’s
survey, a review of the files of the Facility’s em-
ployees indicated that Reg. 405.1121 (g) had been
fully complied with by the Facility.
3. Documentation relative to an In-Service Pro-
gram relating to confidentiality of patient informa-
tion was on file at the Facility. Such documentation
bore the date 12/27/76.
COMMENT: Your Reviewer guestioned various
staff members of the Facility at the time of his sur-
vey as to In-Service programs conducted by Admin-
istration and various Department Heads and was
advised by such staff members that they were par-
ticipating in In-Service programs and that the subject
_ Matter relative to Patient’s Rights and confidentiality
had been discussed with them as well as a host of
Other topics of a general nature and topics and sub-
ject matter relating to their specific departments and
work assignments.
6. At the time of your Reviewer’s survey, a policy
and procedure relative to informing patients of related
charges had been adopted by the Facility. ,
A policy and procedure was in the midst of prep-
aration at the time of your Reviewer’s survey rela-
Plaintiffs’ Exhibit No. 5 305a
tive to providing patients with a quarterly account-
ing of financial transactions.
6 (a)-(j): Interviews with staff members on
various shifts were held by your Reviewer. Staff
members advised that they were constantly being re-
minded by their Supervisors as to the importance of
treating patients with dignity and respect. The staff
also advised that they had received In-Service pro-
grams concerning this very subject matter on more
than one occasion.
COMMENT: One of the major problems of the
nursing home industry is and continues to be that of
obtaining adequate personnel on the lower staff
levels.
PHYSICIAN SERVICES:
7. At the time of your Reviewer’s survey, new
forms had been adopted which would include the
individual rehabilitative potential of the patient and
were, in fact, already on some of the patients’ charts
reviewed.
Procedures were being developed to implement
new policies which were adopted by the Medical
Director Consultant Committee at the time this re-
view was made.
COMMENT: It is interesting to note that while the
items mentioned under the caption “Physician Ser-
vices” as deficiencies, which come under Regulation
405.1123, were so delineated, reference to other
Standards of other numbered Regulations are also
listed. Again, it is evident to this Reviewer that the
ae.
306a — Plaintiffs’ Exhibit No. 5
individuals comprising the Survey Team were making
a “point” of building a record in the instant matter.
NURSING SERVICES:
8. Indicating that Regulation 405.1124 (a) re-
quires a written procedure cleaning combs and
brushes to be available and citing the absence of such
as a deficiency under such Regulation is completely
and totally without foundation without stretching the
imagination to an unreasonable degree.
COMMENT: Your Reviewer has studied, analyzed
and reviewed approximately 100-150 Policy and Pro-
cedure Manuals for all types of health care facilities
including but not limited to hospitals, extended care
facilities, skilled nursing homes, «intermediate care
facilities, health related facilities, etc. In not one of
the aforesaid Manuals has your Reviewer ever en-
countered a procedure for cleaning combs and brush-
es.
It should be noted that the deficiency cited does
not even indicate that an unclean comb or brush was
observed at the time of the Survey.
9. Neither Standard (b) or (g) of Regulation
405.1124 require the use of Assignment Sheets and
no teference is made therein to same. Standard (b)
relates to the duties of the Charge Nurse while Stan-
dard (g) deals with Administration of Drugs.
COMMENTS: While some facilities use Assignment
Sheets, there is no mandated regulation for the use
of same. Certainly, the absence of an assignment
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Plaintiff | Exhibit No. 5 307a
sheet for staff has absolutely nothing to do with the
regulations relative to the administration of drugs by
individuals properly properly permitted to do so.
10. (a)-(f): The deficiency cited herein states
that there was “inadequate” documentation .on pa-
tient care plans and several instances (paragraphs a-
f) are presented as proof thereof.
COMMENT: At the time of your Reviewer's survey,
patient care plans were in the process of being ‘up-
dated by the various professional disciplines required
to be concerned therewith. Various records, such
as nursing care plans, activity program evaluations,
dietary counselling interviews with patients, were be-
ing reviewed and updated, Similarly, social service
records pertaining to patient needs were’ being re-
viewed and up-dated. Documentation was available
to your Reviewer which indicated that physicians
had been contacted and advised of the necessity of
providing short and long-term goals for their Te-
spective patients. Arrangements were also being
made with regard to meeting the patients’ dental
needs.
11. The deficiencies stated herein as being vio-
lative of the stated Regulation 405.1124 (e), (a)
and (c) do not state that patients are not receiving
rehabilitative services. At the time of your Review-
er’s survey, documentation was available to indicate
that there was an on-going rehabilitative program.
COMMENT: Complaints about lack of documenta-
tion is quite universal in the nursing home field.
Lack of documentation, per se, does not necessarily
308a Plaintiffs’ Exhibit No. 5
mean that programs are not in effect. Too, the
Regulation hereinabove referred to, 405.1124 (e)
does not specifically require that range of motion ex-
ercises given to patients neces$arily be documented.
The Standard requires that there be a rehabilitative
program. Interpretative guideline (e) 2 (f) relates
to nursing personnel “Assisting patients with their
routine range of motion exercises”. If such assistance
is rendered by Aides and Orderlies as part of their
daily routine, the requirement is met. Aides and/or
orderlies generally do not document information on
patients’ charts.
During the period of your Reviewer’s survey, un-
announced visits were made to each and every nurs-
ing area of the Facility. Your Reviewer observed
Nurses and other nursing personnel positioning pa-
tienis, including patients confined to bed. At various
intervals during the days of the survey, your Reviewer
Observed patients confined to bed being properly
turned in bed. Too, patients were being assisted with
ambulation for various time periods and then care-
fully seated in geriatric chairs.
Of special note, inention is made herein of the
exceptionally fine rehabilitative program conducted
by the Facility’s Physical Therapy Department. Your
Reviewer observed the Director of this Department,
on several occasions, discussing procedures to be fol-
lowed by nursing personnel for patients receiving
physical therapy treatments.
12. (a)-(d): Stating that “Nursing personnel are
not aware of the nutritional needs of the patients”
followed by observations listed under (a)-(d) as
Plaintiffs’ Exhibit No. 5 309a
proof therevf is an unwarranted conclusion not sub-
stantiated by the facts.
(a) In this instance two patients were ob-
served feeding themselves although there were
physician’s orders that they be fed. It is not
unusual for nursing personnel to encourage the
patients to make every attempt to feed them-
selves or do other things to assist patients in
reaching their rehabilitiative goals. Physicians
very often suggest to nursing personnel that they
should attempt to have the patient feed them-
selves as a means of encouragement. The Te-
ported fact is that the patients were feeding
themselves which evidences progress made by
them with the help of nursing personnel.
(b) Lack of documentation does not neces-
sarily mean that the fluids were not provided.
(c) The conclusion drawn by the Survey
Team in this instance is not a proper one. If
the Team observed the trays at the patient’s bed-
side or on an overbed table in the patient’s room,
then it would be proper to assume that the trays
were delivered to the proper patients and there
would be no further need to identify the trays.
If the Team observed the trays outside of the
patient’s room and after same had been removed
therefrom, it is doubtful if any of the trays be-
ing returned to the Dietary Department could
be identified as being the tray of any particular
patient. It should also be noted that the fact
that two trays only evidenced. the consumption
of beverages only indicates that, for one reason
310a Plaintiffs’ Exhibit No. 5
or another, the particular patients had no desire
to eat their breakfast. It is not unusual for pa-
tients to decline to eat at times.
During your Reviewer’s survey, patients were
, observed in the various dining areas and in their
* rooms at meal-times. Most of the patients ate
well; some did not eat all of their food; some
requested and were provided with additional
( food after a check was made with the Charge
Nurse. A number of patients were talked to
by your Reviewer as to the food provided them
by the Facility. Overwhelmingly, the consensus
of opinion was that the food was very good and
that they enjoyed their meals.
(d) The 8 ounces of water should have
been provided with the patient’s meal. }
13. At the time of the survey, medications were
being poured and administered by professional per-
sonnel. The personnel folder of each and every pro-
fessional employee was reviewed in detail. There-
after, professional nursing personnel schedules were
checked and then, such staff, on duty, was observed
when preparing medications and administering same.
At all times during the survey period, either Regis-
tered Nurses or LGPN’s were handling this function.
14. Your Reviewer investigated the procedures
relative to obtaining medications ordered by physi-
cians for patients. The procedures are in accord
with general practice.
COMMENT: In making enquiries relative to medi-
cations which were not available at a particular time
Plaintiffs’ Exhibit No. 5 31la
during the survey made by the Survey Team, your
Reviewer was advised that undoubtedly the medica-
tion had been ordered but not as yet delivered by the
pharmacy.
It should be noted that no check was evidently
made by the Survey Team to see if the various pa-
tients’ medication sheets, for whom the items listed
hereunder were ordered, indicated that they had or
had not received the said medications up to the time
same were found to be unavailable or whether or not
the Survey Team made any enquiry as to whether
or not such medications would be available for the
next administration thereof as prescribed.
15. Your Reviewer observed the recording of all
medications administered during the time of his sur-
vey.
16. During the period of his survey, your Re-
viewer observed the pouring of medications and
found them to be done as required.
17. Your Reviewer was provided with a copy of
letter sent by the Medical Director of the Facility to
attending physicians reminding them of their obliga-
tion to counter-sign verbal orders.
COMMENT: The failure of physicians to comply
with requirements such as counter-signing verbal or-
ders is one found throughout the profession. A large
number of facilities are faced with the very same
problem. Efforts are constantly being made by Ad-
ministrators to have attending physicians fulfill their
obligations.
312a Plaintiffs’ Exhibit No. 5
18. During your Reviewer’s survey of the Facility,
every patient’s room was visited and a check made
of the bed-side cabinets. No medications were found
therein.
DIETETIC SERVICES:
19. The Food Service Supervisor is a full time
employee of the Facility. This was verified by a
check of his payroll records.
20. Regulation 405.1125 (a) does not specify
any particular number of hours of service to be
provided by the Consultant Dietician. The Regula-
tion provides that “if consultant dietetic services are
used, the consultant’s visits are at appropriate times,
and of sufficient duration and frequency....” Sim-
ilarly, the interpretive guidelines for such Regulation
do not specify any specific number of hours to be.
provided by the Consultant Dietician.
21. (a)-(b): At all times during your Reviewer’s
survey, the meals served were in conformity with the
planned menu for the day. In addition, appropriate
substitutes were available, if needed. |
22. At all times during the survey, tray identifica-
tion cards remained on the patient’s tray until after
the complete meal had been served to the patient.
23. During your Reviewer’s survey, on three
separate occasions, while your Reviewer was observ-
ing patients during meal times, patients who requested
food other that that which was being served were pro-
vided with same upon the request of the Charge
Nurse to the Dietary Department.
Plaintiffs’ Exhibit No. 5 313a
COMMENT: Your Reviewer paid particular at-
tention to the Dietary Department during his survey.
The Department is well operated by the Food Service
Supervisor who appeared to be well versed on the
nutritional needs of the patients. He also evidenced
areal concern for the patients.
The vast majority of patients interviewed by your
Reviewer indicated that they were well-satisfied with
the meals provided to them by the Facility.
PHARMACEUTICAL SERVICES:
24. A random sampling of medications was made
by your Reviewer and each and every medication
selec
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