Using Federal Regulations and State Surveys in Nursing ... · nursing homes, we uncover significant...

Introduction

Nursing homes have many vulnerabilities in litigationbeyond their factual fault in your case. Their profi teer -

ing at the expense of staffing and care has been a widespreadtheme in these cases, revealing a corporate indifference to theevents that killed or seriously harmed a resident.

One area of vulnerability for nursing homes are the reg -ulations governing their operations that they regularlyviolate, accompanied by the state surveys that are aimedat imple ment ing those regulations through investigationsand enforcement actions.

A man falls repeatedly with no care plan revision. He diesafter being pitched on his head one final time from a wheel -chair that staff did not tilt back even though they alwaysobserved him listing forward in his earlier falls.

A woman is in an ill-fitting “merry walker” that is toobig for her. She falls several times. She is caught severaltimes. Finally, she hits her head so hard she bleeds to deathin her brain. The facility receives a detailed level G deficiencyfor failure to prevent accidents by providing proper fall safetyassistance devices. The certified nursing assistants (CNAs),nurses and other staff, without any deposition, admit virtu -ally everything to a state surveyor.

A man dies from C. difficile (bacterial infection) when nostool testing was done despite five days of diarrhea and adoctor’s order. Months earlier the facility received a Level Hdeficiency for not taking proper precautions to control thespread of a C. difficile breakout, including failure to timelyobtain stool lab tests. The facility administrator and DONsigned off on or approved a Plan of Correction promising arange of interventions to prevent such things from happeningagain, none of which were followed.

A young tracheotomy patient contracts pneumonia fourtimes, which require four hospitalizations due to terribleinfection control, including handling of sputum and wastes.Months before, the facility had a life jeopardizing, Level K,building survey deficiency citation for a pattern of infectioncontrol problems.

A man developed very painful black toes that a nursecharted from the start. She asked for intervention immedi -ately but the facility ignored her. Four days later, the gangrenereaches the mid foot. The facility does not notify the doctoror the family. When the pain-wracked man finally gets tothe hospital, his choice is death or above the knee amputation.The 93-year-old man and his family chose hospice. Thisproves miserable because doctors could not control his pain.The state writes Level G nursing deficiencies. A patientrights violation for failing to report this major change ofcondition is documented as a severe deficiency, bearing notonly on negligence but also on an attempted cover-up.

Often in evaluating nursing home claims, and in suingnursing homes, we uncover significant evidence that theparticular facility, or the chain of which it is a part, haveutterly failed to comply with the quality of care provisions ofMedicaid generally and OBRA ‘87 (Nursing Home ReformAct).1 Significant and even atrocious prior and ongoingstate survey findings also often reflect such failure.

If such survey findings concern the claim you are handlingor reveal facility deficiencies in practice and care deliveryrelevant to your case, you should be sure to use such evi -dence at every stage of your case.

Some say that the nursing home industry is the mostheavily regulated human services system in the country.In the Nursing Home Reform Act, Congress extensively

Holland | NURSING HOME LITIGATION

Using Federal Regulations and State

Surveys in Nursing Home Lawsuits

By John R. Holland, Esq.

Colorado Trial Lawyers Association Trial Talk October/November 2013 9

NURSING HOME LITIGATION | Holland

10 October/November 2013 Trial Talk Colorado Trial Lawyers Association

its intention to benefit the resi dents ofnursing homes nationwide.

Thus, since 1987, the Act expresslyprovides that:

• A “nursing facility must care for itsresidents in such a manner and insuch an environment as will promotemaintenance or enhancement of thequality of life of each resident, and .. . must provide services and activi -ties to attain or maintain the highestpractical physical, mental and psycho -social well being of each resident inaccordance with the written plan ofcare which describes the medical,nursing and psychosocial needs ofthe resident and how such needswill be met.”

• A “nursing facility must provide . . .nursing and related services andspecialized services to attain ormaintain the highest practicablephysical, mental and psychosocialwell-being of each resident.”

• A “nursing facility must provide . . .an ongoing program directed by aqualified professional, of activitiesdesigned to meet the interests andthe physical, mental and psycho -social well being of each resident. . .The services must meet professionalstandards of quality.”

• A “nursing facility . . . must provide24 hour licensed nursing serviceswhich are sufficient to meet the

nursing needs of its residents.”• A “nursing facility must be admini -

stered in a manner that enables it touse its resources effectively andefficiently to attain or maintain thehighest practicable, physical, mentaland psychosocial well being ofeach resident…”6

The State of Colorado also has imple -menting regulations under Medicaid,including the key one that a “facilityshall admit only those persons whose

Estate of Smith v. Heckler, the1987 Nursing Home Reform Actand Implementing Regulations

As the 10th Circuit held in Estate of

Smith v. Heckler,3 regarding the purposeof the Medicaid Act in the context of achallenge to the entire nursing homeenforcement system brought by a classconsisting of all Colorado nursing homeresidents and handled by this writer:

The purpose of the act is to enablethe federal government to assiststates in providing medical assis -tance to aged, blind or disabledindividuals, whose income andresources are insufficient to meetthe costs of necessary medical ser -vices and . . . rehabilitation andother services to help such . . .individuals to attain or retain capa -bilities for independence or selfcare. 42 U.S.C. §1396 . . . The Act’s requirements include

providing high quality medical

care and rehabilitative services.

In fact, the quality of the care

provided to the aged is the focus

of the Act . . .4

The 10th Circuit further held that,because the plaintiff class memberswere all entitled to receive high qualitymedical care “continuously,” the facility-oriented inspection system, which thendid not, and could not, determine whetherresidents were receiving such care, wasan abdication of the Secretary’s respon -sibility, and thus was arbitrary andcapri cious. The court granted the plain -tiffs’ request for a mandamus orderchanging the inspection system nation -wide to a patient focused quality ofcare inspection system.5

As part of the comprehensive amend - ments to the Medicaid Act, whichoc curred in the wake of the Tenth Cir -cuit’s decision, Congress made clear

set forth specific statutory rights fornursing home resi dents. Patient careregulations have also extensively im -ple mented these rights.2 This statute,these regulations and sur veys offacilities enforcing them can becomeyour good friends in litigation.

They also inform the standard of carein the very cases you are handling. Youcan admit the regulations into evidenceupon laying a suitable foundation.

Survey violations of these regulationsthat are relevant to your case can also beadmissible on everything from liability,based on admissions against interest byfacility staff and managers to state sur -vey ors, to punitive damages claims,based on continuing patterns of neglector abuse of which the facility was onexpress notice.

Sometimes the surveys are so deva -stating that they become the elephantin your case, along with the facts them -selves, such that the facility can ill affordto litigate and may pay a premium toyour clients if you use them effectively.In a group case against the well-knownO’Hara facility, driven largely by suchfindings, we obtained a judgment greaterthan 30 million dollars, and the weightof litigation and regulation combined toshut down the facility.

Obviously, this situation does notat tend every case and there have beensome improvements from OBRA 87,but facil ity surveys should be evaluatedcarefully as part of the routine workupof every case.

The purpose of this essay is to sharewith you the regulatory backdrop andgive some practical information aboutusing survey and Medicaid laws andregulations in nursing home lawsuitson issues ranging from liability topuni tive damages.



nursing homes, the Medicaid Actpro vides for a number of differentgovernmental enforcement actionsagainst non-complying nursing homes.The state or federal government maytake these actions, but the states usuallytake action through their annual survey/certification process.

Thus, the Medicaid statute variouslyprovides for the ordering of writtenplans of corrections for deficienciesfound on surveys, for monetary penalties,for the denial of the right to accept newMedicaid patients, for the denial of theright to train CNAs, and even for theplacement of repeat offender facilitiesinto receivership.

You will want to obtain such mater -ials. They are readily available. Theycan contain a goldmine of false repre -sentations and promises by the facilityyou are suing.

• Dietary services• Physical environment• Pharmacy services• Hydration• Nutrition• Feeding tubes• Many more

Thus, it is often not just the commonlaw but also this panoply of federal andstate Medicaid rights that the nursinghomes we sue violated grievously. Inaddition, those facilities’ care defici -encies can paint a grim picture of anursing home or even a nursing homechain ownership whose greed is runningamuck in Colorado.

As illustrated by the web page forColorado Department of Public Healthand Environment (CDPHE), and ar -chived records of deficiencies against

needs it can meet within the accommo - dations and services it provides.”7

The United States’ and Colorado’sextensive quality of care and quality oflife regulations are contained in 42 C.F.R.§ 483 et seq. and in 6 C.C.R. 1011-1.

Many such parts of the system areinvolved in these cases. In every case,counsel should be familiar with thesereg ulations, comb through them andapply the ones that are like your carepattern. They can hit like laser guidedmissiles.

The Federal regulations are a literalcompendium of patient care standardsand rights. There are specific provi -sions regarding not just the quality ofcare and quality of life that facilitiesmust assure to each resident but alsosuch things as:

• Resident rights • Pressure ulcer prevention• Accident - including fall -

prevention through propersupervision and equipment

• Infection control• Nursing care and sufficiency

of staffing• Activities of daily living• Urinary incontinence• Range of motion• Medical care• Abuse and neglect• Reporting of significant changes

of conditions• Special resident care needs• Unnecessary drugs• Medication errors • Nursing assessments and

reassessments• Nursing care planning and

plan revisions • Specialized rehabilitation services

It is also clear from both the statu -tory language and the legislative historyof the Nursing Home Reform Act thatCongress intended to ensure the rightsof residents also to enforce compliancewith the requirements of participationunder the Medicaid Act privately.

Not only is the use of findings madeby the state and federal government insuch surveys not prohibited in litigationbut also Congress has gone out of itsway to evidence its plain intention toconfer “private rights of action to

enforce compliance with require -

ments for nursing facilities.”8

It is also noteworthy that 42 U.S.C.§ 1396r(h)(8), like the rest of the TitleXIX Medicaid statute, implementingregulations, state laws and regulationspertaining to the nursing home programare actually expressly incorporated intoand made a part of defendants’ provideragreements with the State of Colorado.

Thus, defendants’ provider agree -ments contain their promises andrepresentations that they will provideservices to nursing home residents,

[i]n conformance with the provi -sions of Title XIX of the SocialSecurity Act, other relevant federallaw, all pertinent federal regula -tions promulgated pursuant tofederal law, the Colorado SocialServices Code, Section 26-1-101,et seq., C.R.S. 1973, including theColorado Medical Assistance Act,Section 26-4-101, et seq., C.R.S.1973, other relevant state law, theColorado State Plan for MedicalAssistance under Title XIX andall pertinent regulations of theColorado Department of SocialServices, as all the foregoing arein effect as the date of the execu -tion of this contract, or as theymay later be amended.

Using the Federal Regulations at Trial

In a recent case involving a deathfrom pressure ulcer claim, the courtadmitted survey findings of a violationthe federal pressure ulcer violation justtwo months before the plaintiff becamea resident. This regulation, and theunderlying OBRA statute, expresslyprovides that persons admitted withoutpressure ulcers should not get them un -less they are medically unavoidableeven with the provision of all reason -able pressure ulcer prevention care.This regulation further provides that aresident admitted with a wound shouldnot develop additional wounds unlessthis was medically unavoidable in spiteof the provision of appropriate pressureulcer prevention care.

Based on arguments for admissibil -ity discussed below, the court admittedthe federal regulations on quality ofcare and bedsores into the jurors’ note -books as an evidence exhibit:

§483.25

Quality of Care.

Each resident must receive and thefacility must provide the necessarycare and services to attain or main -tain the highest practicable physi cal,mental and psychological well-being, in accordance with thecomprehensive assessment andplan of care.…(c) Pressure sores. Based on thecomprehensive assessment of aresi dent, the facility must ensurethat – (1) A resident who enters the facil itywithout pressure sores does notdevelop pressure sores unless theindividual’s clinical conditiondemonstrates that they were un -avoidable; and

(2) A resident having pressuresores receives necessary treatmentand services to promote healing,prevent infection and prevent newsores from developing.

Laying Foundation.

Before turning to the case law andarguments for the admissibility of thesurveys themselves, the foundation toadmit such regulations to buttress thestandard of care instructions the jurylooks something like this:

Could you tell the jury what thestandard of care in the Denver metro -politan area requires for nurses andnursing assistants in nursing homeswho are caring for residents admittedwithout pressure ulcers to preventthem from developing?

What do those same Denver areastandards of care require for such nurs -ing staff in nursing homes for residentswho develop pressure ulcers in a nurs -ing home to prevent their worsening?

Finally can you tell the jury what thestandards of care in the Denver metro -politan area for nursing staff workingin a nursing home are for determiningwhether a pressure ulcer is avoidableor not?

Are you aware of the federal regula -tions and guidelines pertaining to pres sureulcer prevention care and treatment?

And are these duties also describedin federal regulations regarding nurs -ing homes?

And in your understanding do thesefederal regulations apply to all Denvermetropolitan area nursing homes?

Do these federal regulations andguidelines pertaining to pressure ulcerprevention care and treatment state thestandard of care in the Denver metro -politan area and nationally for nursingstaff working in a nursing home?





Deficiencies beginning with level “G”and below are “actual harm” deficien -cies, meaning that the State has foundthat the deficient practice has causedactual harm to a resident.

One of the most important thingsabout the survey system is that it issimply the only objective way to mea -sure the nursing home’s performance.The State surveyors are objective regu -lators following well-defined, closelyprescribed regulations. The regulationsform not only the common-law standardof care for nursing homes, but also thestatutory standard for nursing homelicensure, whether the facility is Medi -caid or not.

In opposing the admission of suchsurveys the true purpose of such motions

and Federal Medicare and Medicaidcertifications standards; and Adverseactions (against the facility or facilitiesowners under the Medicaid regulations.”11

Thus, the State of Colorado has speci - fically adopted Medicaid regulationsand standards as the standards for oper -ating and keeping a license as a nursinghome in Colorado.

On an approximately yearly basis(in addition to complaint investigations),a survey team from the CDPHE visitseach facility, and follows a prescribedchecklist of reviews that includes therandom review of medical charts,review of data provided by the nursinghome, interviews of nursing homestaff, fami lies of residents andresidents.

At the conclusion of the survey, thesurvey team makes findings and adeter mination as to whether the facilityhas met the requirements of specificregu lations. If the team determinesthat the facility has not met the require -ments, the team determines whetherthe viola tion of those regulationsimpacts a small or large number ofresidents and whether the deficientpractice was minor or serious. Theseare so-called “scope and severity”determinations. The scope and theseverity of a deficient practice areassigned a letter value much like ahigh school report card. A letter “A”is a minor deficient practice affectingvery few people. A letter “L” deficiencyis what is known as a widespread defici -ency affecting most – if not all – residentsof the facility and one that has causedor is threatening to cause grave harmto all such residents.

The scope and severity of level “L”is rarely encountered and likely one thatwould cause immediate closure of thefacility or perhaps temporary manage -ment brought in by the government.

Please look at Exhibit . . . whichcon tains the quality of care andpressure ulcer regulations of thefederal govern ment, which you havesaid apply to all nursing homesincluding this defendant.

In this regulation, has the federalgovernment actually given expressdefi nitions for avoidable andunavoidable pressure ulcers fornursing homes that reflect what youhave said about how to determinewhether wounds are avoid able from anursing care standpoint which arepart of the standard of care in thisarea?

Are you familiar with the federalgovernment F314 statement regardingpressure ulcer prevention and treat -ment for nursing staffs in nursinghomes to follow?

How in the regulation before youdoes the government define avoidableand unavoidable pressure ulcers?

And are these federal regulationsand the F314 federal pressure ulcerguideline, the same as, and a part ofthe standard of care, for nursing homenursing staffs in the Denvermetropolitan area?

In forming your opinions in thiscase, have you fully considered thesestandards of care?

Move to admit Exhibit. . .

Using Surveys at Trial9

CDPHE, which the law charges withensuring compliance with all applicablenursing home rules and regulations,licenses every nursing home.10

Every year nursing homes mustre new such licenses. Central to thisprocess is a necessary finding byCDPHE of “[c]ompliance with all appli -cable stand ards such as State licensing

is not to prevent the admission of irrele -vant and highly prejudicial evidence,but rather to allow the home to argue,by default, that their care was excellent,their staffing was great and that theyhad no notice of previous, unresolvedproblems. Such survey evidence isboth relevant and far more probativethan prejudicial.

In a pressure ulcer death case, welearned that the same facility had beencited with deficiencies related to pressureulcer care and false charting relating topressure ulcer care by CDPHE. Thesedeficiency citations were made twomonths before the deficient care thatlead to the death in our case. The courtadmitted the survey evidence regardingthese previous deficiencies on the issueof punitive damages.

The defendant had told CDPHE in aplan of correction that their staff wouldmonitor all patients at risk for or withpressure ulcers daily.

The evidence in the case showed thatthe DON actually received multiplereports of pressure ulcer turning andrepositioning neglect of the plaintiff bythe CNAs from her queries of the dailycomputer charting system as well as dir -ect reports. She testified she could notremember that she or any other nursemanager did anything about these reports.

The DON testified about herPlan of Correction in part as follows:

Q. No. But you saw a plan ofcorrection was made thatsaid what the DON wasgoing to do?

A. Right.Q. And you agreed with that

plan and agreed to imple mentit, correct?

A. Yes.

Q. And you participated in andapproved the plan ofcorrection?

A. Correct.

The same DON who presided overthe two months earlier citation was stillthe DON when the plaintiff’s de cedentreceived negligent care.

In that same survey, as in our case,there was an express doctor order foroffloading of pressure over the pres -sure ulcer area that CDPHE found staffwere not doing as charted.

As in our case, the nurses charted onthe Treatment Administration Records(TARs) that they were performing thisoffloading of pressure over the pres -sure area as the doctor ordered.

In repeat surveyor observations, thesurveyors found as follows regardingthis offloading charting:

Review of the 10/07 TARs

showed consistent documented

nurse initials that indicated the

bunny boots were in place, and

pressure was offloaded as

order ed. However, observationsconducted during the surveyrevealed the following:• On 10/09/07, at 10:30 a.m. and

12:30 p.m., on 10/10/07 at

9:15 a.m., 9:45 a.m., and

10:30 a.m., the resident was

observed sitting in the wheel -chair with her heels restingagainst back of the leg rest, with -out the bunny boots in place.

• On 10/10/07, at 2:30 p.m., theresident was lying supine in bedwith her heels resting directlyon the bed, without the bunnyboots in place.

• On 10/10/07, at 9:50 a.m., two

CNAs were observed trans -

ferring the resident from her

bed to the wheelchair. The

resident was positioned with

her heels resting directly against

the leg rests. The CNAs werenot observed to don (apply) thebunny boots.

• On 10/11/07, at 10:00 a.m., the

Nursing Home Administrator

(NHA) observed resident with

the surveyor. The resident wassitting in her wheelchair withher heels resting against back ofleg rest and without the bunnyboots in place.

• On 10/11/07, at 5:30 p.m., the

resident was observed sitting in

her wheelchair with her heels

resting against directly against

the leg rest and without the bunnyboots in place.

Defeating the Multiple Argumentsagainst Admission of Surveys

Understandably but impermissibly,especially under Colorado’s long estab -lished punitive damages case law,motions to prevent the admission ofsurvey evidence preceding and follow -ing the events complained of in a givencase are common.

Defendants make attempts at multi -ple arguments against the admission ofthese documents.

They argue, primarily, that theCDPHE deficiency reports do not set astandard of care for defendants to follow,and thus should not be consider ed bythe jury.

They argue that the documents con -stitute inadmissible hearsay, that thereports are drafted by lay persons with -out expertise, that they are undulyprejudicial, that they are not probativeof the facts in this matter, that theycontain improper character evidenceand any other related arguments theycan come up with, including evenconstitutionality.



Since the passage of the NursingHome Reform Act, a number of courtshave considered these arguments and firm -ly rejected them. Courts routine ly admitsurvey evidence on multiple grounds.

Many courts have specifically heldthat Health Department reports aredirectly relevant and admissible to showstandard of care deficiencies.12

Defendants actually frequently arguethese regulations are not relevant to thestandard of care issues in the case andeven they are not really for the benefitof nursing home residents. These feder -al regulations are intended to benefitnurs ing home residents.13 Defendantswill, of course, make any number ofargu ments to try to prevent the admissionof such evidence.14

Surveys are not character evidence.

They will argue you seek to submitthe surveys for the purposes of showingpropensity or bad character. However,rather than being offered for such pur -poses, they can be offered, e.g., in apunitive damages case, for the quiteproper purpose of showing that defen -dants refuse to change and insteadcontinue their willful and wanton andreckless conduct after the extreme eventsgiving rise in this wrongful death case,further justifying punitive damagesagainst them.

Thus, evidence of acts of a defendantother than those alleged and for whichdamages are sought, both preceding

as well as following the particular

acts, is admissible under an issue ofexemplary damages if so connected

with the particular acts as tending

to show defendant’s disposition, in -tention or motive in the commissionof the particular acts for which dam -ages are claimed.15

Further, state surveyors often verba -tim report specific statements of fact

from facility workers, nurses, CNAs andAdministrators. If the survey in questionconcerns your very fact pat tern, and in -volves significant survey deficiencyfindings, you can directly admit suchstatements as admissions against inter -est and use them as direct proof ofliability or for impeachment. The factthat the state made findings of seriousviolations of the applicable federal qual -ity of care regulations will not be wasted.

In the earlier example of the merrywalker death case, survey findings wererelevant on everything from the obviou s -ly ignored need for revised care planningon safe fall prevention equipment topunitive damages since the multipleunaddressed incidents were evidenceof willful and wanton conduct. Staffadmitted during the survey to knowingall these things. The family of the man

with the gangrenous toes who diedbecause they did not transfer him fordays when doctors could have treatedhim, had circumstances of fraud andcover up by the non-reporting of thisknown condition.

Another recent example: a patientfell and died from a hip fracture. Thefacility claimed that there was no fall.It defended by arguing that the patient’sbones were unduly osteoporotic. Therewere no nursing records of the fall andno incident or occurrence reports. Thehealth department investigated and aCNA told the surveyor that a fellowCNA said the resident fell the shiftbefore. This is admissible to prove thefall and bears on whether there shouldbe punitive damages for cover-up.With out this survey, there could havebeen a failure of proof.



The bottom line is that surveyors haveoften extensively investigated your verycase and reported many statements bystaff verbatim.16 These are all admis -sions against interest and invaluableproof in these cases.

Surveys are not inconsistent with C.R.E. 404.

Defendants will also raise anynumber of other arguments againstadmissibility. While they are ofrelevant evidence under C.R.E. 401,

defendants will argue that they are in -consistent with C.R.E. 404 that statesin pertinent part that:

Evidence of other crimes, wrongsor acts is not admissible to provethe character of a person in orderto show that he acted in conform -ity therewith. It may, however, be

admissible for other purposes,

such as proof of motive, oppor -

tunity, intent, preparation, plan,

knowledge, identity or absence

of mistake or accident.

In Colorado, under People v. Spoto,17

there is a four-part test you can use tosecure survey evidence. The court heldthat while other incidents may not be usedto prove that a party acted in con formitytherewith, other incidents may be admis -sible for other purpose including motive,bias or pre-existing knowledge. Evidenceof prior similar occurrences was alsorelevant to establish plaintiff’s entitle -ment to exemplary damages in that ittended to show defendant’s con tinuedfailure to correct a dangerous conditionknown to it.



Surveys are not unduly prejudicial

Spoto also addressed the usual argu -ments raised about undue prejudiceholding that “Relevant evidence is in -herently prejudicial; but it is only unfair

prejudice, substantially outweighingprobative value, which permits exclusionof relevant matter under Rule 403.”18

“Because CRE 403 strongly favors ad -mission of relevant evidence, we affordprior act evidence the maximum pro ba -tive value and the minimum prejudicialeffect in assessing its admissibility.19

Surveys are not subsequentremedial measures.

You may also see an argument thatthe court should not admit a prior surveybecause it or the facility’s plan of cor -rection involves subsequent remedialmeasures. However, you can respondthat it is “relevant to the plaintiffs’ claimfor liability and exemplary damages”as it “demonstrat[es] defendants’ con -tinued pattern of lack of care” in thesame manner that harmed the plaintiffsin this case and notice.

Surveys are admissible underseveral hearsay exceptions.

The defense regularly makes weakchallenges to surveys based on a C.R.E.802 hearsay objection, arguing they areunreliable, that lay people created thereports and the reports constitute imper -missible expert opinions. Of course,of the 23 enumerated exceptions inC.R.E. 803, you can invoke several todefeat these arguments.

Rule 803(3) allows admission ofthen existing mental, emotional orphysical condition. These HealthDepartment reports obviously contain– and are based upon – the physicalcondition of the residents as observedand described in the records.

C.R.E. § 803(4) also allows admissionof statements for the purposes of medi -cal diagnosis or treatment, which alsoapplies. Again, the Health Departmentbases its reports, in large part, uponstatements that were made for the pur -pose of medical diagnosis or treatment.The reports also contain recorded re -collections admissible under Rule 803(5).

C.R.E. 803(6), the “business records”exception to the hearsay rule, states that:

(6) Records of regularly conductedactivity. A memorandum, report,record, or data compilation, in anyform, of acts, events, conditions,opinions, or diagn osis, made at ornear the time by, or from infor ma -tion transmitted by, a person withknowledge, if kept in the courseof a regularly conducted businessactivity, and if it was the regularpractice of that business activityto make the memorandum, report,record, or data compilation, all asshown by the testimony of the cus -todian or other qualified wit ness,or by certification that complieswith Rule 902(11), Rule 902(12),or a statute permit ting certification,unless the source of information orthe method or circumstances ofpreparation indicate lack of trust -worthiness. The term “business”as used in this paragraph includesbusiness, institution, association,profession, occupation and callingof every kind, whether or not con -ducted for profit.

Rule 803(6) considers governmentalagencies to be “businesses.”20

One of the CDPHE’s primary respon -sibilities under state and federal law isto regularly make and keep nursinghome survey data including facility plansof correction as part of its busi nessactivity. The surveys thus fall underthe Rule 803(6) hearsay exception.

Rule 803(8) also except from thehear say rule regularly kept publicdocuments:

(8) Public Records and Reports.Unless the sources of informationor other circumstances indicatelack of trustworthiness, records,reports, statements, or data compi -lations, in any form, of publicoffices or agencies, setting forth(A) the activities of the office oragency, or (B) matters observedpursuant to duty imposed by lawas to which matters there was aduty to report, excluding, how ever,in criminal cases matters observedby police officers and other lawenforcement personnel, or (C) incivil actions and proceed ings andagainst the Government in criminalcases, factual findings resultingfrom an investigation made pursu -ant to authority granted by law.

As with the business records excep -tion, these documents are part of the“activities of the office or agency” ofthe CDPHE. The documents also con -tain “matters observed pursuant to dutyimposed by law,” which in this case is42 U.S.C. § 1396 and 42 C.F.R. §483,484 – The Medicaid statute and imple -menting regulations. As described above,the law requires the CDPHE to performyearly surveys of the nursing home aswell as complaint investigations. CDPHEcompiles and provides these reports aspart of that legal requirement.

Without case law, defendants some -times will argue that the entire surveysystem is untrustworthy because mostnursing homes get at least one deficiency.This does not show that the reports inyour case here are untrustworthy, butrather that many nursing homes haveat least one area of care that is to what -ever extent deficient. The fact thatmost nursing homes receive at leastone deficiency does not much tend to



show let alone prove that the system orreports proffered are untrustworthy.

Finally, the surveys are admissibleeven if they consist of “multiple hearsay”as defendants complain. ColoradoSup reme Court in Schmutz v. Bolles21

decided this precise issue. In that case,the Court held that business records areadmissible under C.R.E. 803(6) even ifthe reports contain “double hearsay,”so long as the reports fall under thebusiness records exception to thehearsay rule.

Admission of CDPHE type evidenceis not sought as expert opinion butrather as the important public record ofa governmental agency charged withregulating nursing homes.

CONCLUSION

The nursing home advocate mustmake the federal nursing home regu -lations and state surveys a part of theirpractice in every case.

The patient falls 10 times. Yourclaim is negligence. Cite to 42 C.F.R. §483.25 (h). This regulation expresslystates that:

The facility must ensure that—(1) The resident environmentremains as free of accident hazardsas is possible; and(2) Each resident receives ade -quate supervision and assistancedevices to prevent accidents.

Your client dies of dehydration. Yourclaim is negligence. Cite to and showthe jury the regulation on hydra tion,which states in 42 C.F.R. § 483.25 (j):

The facility must provide eachresi dent with sufficient fluid intaketo maintain proper hydra tion and health.

Your patient dies of malnutrition.You will want the jury to know that thestandard of care includes specific re -

quirements like this one contained in42 C.F.R. § 483.25 (i):

Nutrition. Based on a resident’scomprehensive assessment, the facilitymust ensure that a resident—

(1) Maintains acceptable parametersof nutritional status, such as bodyweight and protein levels, unless theresident’s clinical condition demon -strates that this is not possible; and

(2) Receives a therapeutic diet whenthere is a nutritional problem.

The defendants understandably fighthard to stop the admission of nursinghome regulations. They do not wantthe jury to appreciate how incrediblyfar afield from the standards of care, asinformed by these regulations, theircare actually was but admissibility ofthese important regulations is not farpast a simple foundation. The truth isthat the federal regulations give contentand meaning to the common law negli -gence claims we assert as well as to anysecondary claims, like deceptive tradethat you might also consider bringing.

In egregious cases, surveys can makea jury far more confident in awardingpunitive damages to punish recalcitrantdefendants who do not take care of ourloved ones repeatedly.

In regular cases, you get your handson admissions against interest that weprobably would never learn aboutwithout these surveys. ▲▲▲

Redressing the scandalous continuingabuse and neglect of the elderly and dis-abled against nursing homes, assisted liv-ing facilities, personal care homes andhospitals, has been one of two careerpassions for John Holland, along with civilrights. John was with Denver Legal Aidsociety until 1979 where he broughtnumerous class action lawsuits, includingones relating to the regulation of nursinghomes. He has spent more than 30 years

representing people in individual nursinghome cases. He has published articleson a number of subjects and has been anation-wide speaker.

He received the Anti-DefamationLeague’s 2008 Civil Rights Award for hiscontinuing work on civil rights. The firmreceived the 2010 Colorado Trial LawyerAssociation "Access to Justice" Awardand the 2010 ACLU Carle WhiteheadAward for its work in Guantanamo.

Endnotes:1 See 42 USC § 1395i–3 - Requirements

for, and assuring quality of care in,skilled nursing facilities.

2 42 C.F.R. 483 et seq.3 Estate of Smith v. Heckler, 747 F.2d 583

(10th Cir. 1984).4 Id. at 585-591 (emphasis added).5 Id. at 588. 6 42 U.S.C. § 1396r(b)(1)(A) (emphasis

added).7 See 6 C.C.R. § 1011.3.1.8 House Report No. 100-391(1) regarding

OBRA 1987.Numerous courts haverecognized this point. See e.g, Podolsky

v. First Healthcare Corp., 50 Cal. App.4th 632, 654 (Cal. App.2. Dist.1996),wherein the California Court of Appealsadopted this exact argument in a nursinghome deceptive trade practices case andconcluded that 42 U.S.C. § 1396r(h)(8)“expressly state[s] that the remedieswhich they provide are in addition tothose under state and federal law andshall not be construed as limiting suchremedies, including those at common law.”

9 There are current controversies about theuse of state surveyors as witnesses, whichrequire conformity with specific federalregulations and some wrangling beyondthe scope of this article. Suffice it to sayhere, whether we secure survey or witnessesor not, we always obtain certified copiesfrom the record keepers at CDPHE toauthenticate these documents for admissioninto evidence. A notarized certificationlike this should do:



CERTIFICATIONI, _________, am in custody or controlof property in my capa city as aRecords Manager at the ColoradoDepartment of Public Health andEnvironment (“CDPHE”), and Ihereby certify that the attached copiesare true and correct copies of pages35 through 41 of the 70 page defici -ency list and plan of correction for therecertification survey dated October 11,2007, regarding tag F314D, concern -ing the entity known as _________(name of facility.)

10 C.R.S. § 25-3-102; 6 C.C.R. § 1011-1. 11 6. C.C.R. § 1011 -1.2.5.1(3).12 Montgomery Health Care Facility, Inc.

v. Ballard, 565 So. 2d 221 (Ala. 1990)(holding that health department deficiencyreports of a nursing home are admissibleto show, among other things, notice thatthe nursing home had care and staffingproblems that it had not resolved prior toadmitting the plaintiff to the facility;Advocat, Inc. v. Sauer, 111 S.W.3d 346(Ark. 2003) (State Health Departmentsurveys showing that the nursing homehad failed to remedy previous staffingproblems were relevant and probative todemonstrate that the facility had notice ofprior unresolved staffing and care issues);Horizon/CMS Healthcare Corp. v. Auld,985 S.W.2d 216 (Tex. App. 1999) (admis -sion of nursing home surveys was properwhen a nursing home’s defense in the caseincluded testimony that the nursing home pro -vided good care); Brewer v. Capital Cities/

ABC, Inc., 986 S.W.2d 636 (Tex. App.1998) (nursing homes surveys were notexcludable under quality assurance statutesand, as public records, they were admis -sible under the excep tion to the rule againsthearsay); State v. Kaiser, 139 S.W.3d545 (Mo. App. 2004) (the court held thatnursing home surveys were ad missible ina criminal trial for a number of reasons,including evidence of motive, absence ofmistake, and evi dence of a common schemeor plan of bad care, all exceptions to therule pro hibiting the ad mission of evidenceof prior bad acts.).

13 See Estate of Smith v. Heckler, 747 F.2d583 (10th Cir. 1984).

14 A number of Colorado district court judgeshave admitted nursing home surveys forvarious purposes on the grounds underdiscussion. Judge Haglund did so in theDenver bedsore case discussed in thetext. Judge Rappaport admitted surveysin another Denver trial. Judge Lammonsin Larimer County, Judge Delgado andJudge Crabtree in Adams have also per -mitted introduction of survey documentsin recent trials by our colleagues.

15 Palmer v. A.H. Robins Co, Inc. 684 P.2d187 (Colo. 1984) (emphases added). De -fendants will also argue that evidence ofneglect must relate specifically to the plain -tiff in order to be deemed relevant. In fact,evidence that a defendant did not changethe conditions and conduct that causedharm is also very highly relevant on puni -tive damages. See Coale v. Dow Chemical

Co., 701 P.2d 885 (Colo. App. 1985) where,in a products liability case, the ColoradoCourt of Appeals found that evidence thatdefendants had not changed the productor warning tags one year after the inci -dent involving the plaintiff was relevantto the issue of punitive damages as evi -dence of a “continued pat tern of lack ofcare” and thus properly admitted by thetrial court. . . This evi dence was relevantto plaintiffs’ claim for ex emplary damages.It demonstrated de fendants’ continuedpattern of lack of care in properly warn -ing consumers of the dangers involvedwith the use of Dursban on Brahman cattle.This evidence makes more probable thannot the exis tence of defendants’ wantonand willful conduct and therefore wasproperly admitted.” Coale at 890.(Emphases supplied). See also Conrad

ex rel Conrad v. Alderwood Manor, 78P.3d 177, 190 (Wash. App. 2003) (reject -ing nursing home’s relevancy objectionto admission of evidence that nursinghome received citation for failing tothoroughly investigate incidents involv -ing other patients); Branco v. Life Care

Ctrs. of Am., Inc., 2006 WL 4484727,(W.D.Wash. 2006) (finding that incidentreports about other residents are “highlyrelevant towards establishing the “pattern”element of the definition of neglect.”).

16 Survey reports by CDPHE can be deva -stating to a facility’s liability by capturing

details that likely would never otherwiseemerge, be charted or discovered. Thesurveyors refer to people by numbers butreal name lists, which correlate to thosenumbers, are made.

17 People v. Spoto, 795 P.2d 1314, 1318(Colo.1990),

18 Masters v. People, 58 P.3d 979, 1001(Colo. 2002) citing United States v.

McRae, 593 F.2d 700, 707 (5thCir.1979) (emphasis in original).

19 People v. Torres, 224 P.3d 268, 274-75(Colo. App. 2009) cert. denied, 09SC373,(Colo. Feb. 22, 2010).

20 Kriegel v. Indus. Comm’n of Colo., 702P.2d 290 (Colo. App. 1985). See also,

Lannon v. Taco Bell, Inc., 708 P.2d 1370(Colo. App. 1985), aff’d 744 P.2d 43.

21 Schmutz v. Bolles, 800 P.2d 1307(Colo. 1990).


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