SUBJECT:

Northgate Healthcare Center,

Petitioner,

Centers for Medicare & Medicaid

DECISIONS

These two decisions are in two cases involving the same Petitioner, Northgate Healthcare Center. My normal practice would have been to consolidate the two cases. I decided not to do that here inasmuch as the Centers for Medicare & Medicaid Services (CMS) was represented by different counsel in each of the cases. However, for efficiency purposes, I am electing to combine the two decisions in a single document. My decisions are as follows:

• In the case that is docketed as C-01-071 (Case 071), I find that Petitioner failed to comply substantially with a federal participation requirement at a level of noncompliance that placed residents of Petitioner at immediate jeopardy during a period that commenced on October 13, 1999, and which ran through October 21, 1999. I sustain the imposition against Petitioner of civil money penalties in the amount of $3,050 per day for each day of this period.

• In the case that is docketed as C-00-479 (Case 479), I find that Petitioner was complying substantially with a federal participation requirement. I do not sustain the imposition of remedies against Petitioner.

I. Background

The facts that I recite in this section are not disputed. Petitioner is a skilled nursing facility that is located in Marion, Indiana. Many of its residents are individuals who are developmentally disabled and who suffer from mental impairments. Petitioner participates in the Medicare program. The participation of skilled nursing facilities in Medicare is governed by federal statutes and regulations at 42 C.F.R. Parts 483, 488, and 498.

Case 071 arises from a survey of Petitioner that was completed by surveyors employed by the Indiana Department of Health on October 22, 1999 (October 1999 survey). The surveyors who conducted that survey found that Petitioner was in several respects not complying substantially with federal participation requirements. Most significantly, they found that Petitioner was not complying with some requirements to the extent that residents of Petitioner were placed in immediate jeopardy. Based on these survey findings, CMS determined to impose civil money penalties against Petitioner in the amount of $3,050 per day for a period of days which began on October 13, 1999, and which ran through October 21, 1999.

Case 479 arises from surveys of Petitioner that were completed on December 15, 1999 (December 1999 survey), January 7, 2000 (January 2000 survey), February 23, 2000 (February 2000 survey), and April 14, 2000 (April 2000 survey). The surveyors who conducted these surveys found at the December 1999 survey that Petitioner was not complying substantially with 16 separate participation requirements. These deficiency findings included a finding that Petitioner was not complying with three requirements to the extent that residents were placed in immediate jeopardy. Based on the findings made at the December 1999, January 2000, February 2000, and April 2000 surveys, CMS determined to impose remedies against Petitioner consisting of civil money penalties in amounts of:

$3,550 per day for each day of a period that began on December 15, 1999, and which ran through January 3, 2000; $100 per day for each day of a period which began on January 4, 2000, and which ran through February 22, 2000; and $150 per day for each day of a period that began on February 23, 2000, and which ran through March 8, 2000.

Petitioner requested hearings from CMS's determinations. I heard the cases consecutively in Indianapolis, Indiana, on July 23 and 24, 2002. In case 071, which I heard on July 23, 2002, I received into evidence exhibits from CMS consisting of CMS Ex. 1 - CMS Ex. 29. I received into evidence exhibits from Petitioner consisting of P. Exs. 1, 2, 9, 24, 33, 36, 37, and 99. In case 479, which I heard on July 24, 2002, I received into evidence exhibits from CMS consisting of CMS Exs. 1 - 3 and 12 - 23. I received into evidence exhibits from Petitioner consisting of P. Exs. 2, 4, 11, 14, 17, 19, 21, 38, 44, and 99.

II. Decision in Case 071

A. Issues

The issues in this case are whether:

1. Beginning October 13, and continuing through October 20, 1999, Petitioner failed to comply substantially with a participation requirement to the extent that residents of Petitioner were placed at immediate jeopardy; and

2. Civil money penalties of $3,050 per day for each day of a period that began on October 13, 1999, and which ran through October 20, 1999, are reasonable.

B. Findings of fact and conclusions of law

I make findings of fact and conclusions of law (Findings) to support my decision in this case. I set forth each Finding below as a separate heading. I discuss each Finding in detail.

1. Beginning October 13, and continuing through October 20, 1999, Petitioner failed to comply substantially with a participation requirement to the extent that residents of Petitioner were placed at immediate jeopardy.

The report of the October 1999 survey alleges that Petitioner was not complying substantially with five separate Medicare participation requirements. CMS Ex. 2, at 1 - 21. Three of these deficiency citations at Tags 324, 490, and 493 of the October 1999 survey report contain surveyors' allegations of immediate jeopardy level noncompliance by Petitioner. Id. at 8 - 16; 16 - 19; 19 - 21.

In this decision, I address only the noncompliance findings and the level of deficiency allegations that were made at Tag 324 of the October 1999 survey report. I do so for the following reasons:

• It is unnecessary that I address any of the other findings of noncompliance in the October 1999 survey report inasmuch as I find that Petitioner was not complying substantially, at the immediate jeopardy level of noncompliance, with the participation requirement that is cited at Tag 324. A finding of a single instance of immediate jeopardy level noncompliance by a facility provides CMS with sufficient basis to impose immediate jeopardy level civil money penalties against that facility. And, as I discuss below, at Finding 2 of this decision, CMS elected in this case to impose the minimum daily immediate jeopardy level civil money penalties against Petitioner.

• The immediate jeopardy level noncompliance findings that were made at Tags 490 and 493 of the October 1999 survey report are in some significant respects derived from those that were made at Tag 324.

• Both CMS and Petitioner focused their evidentiary presentations and arguments in this case on the allegations that were made at Tag 324.

• The non-immediate jeopardy level deficiency findings that were made in the report of the October survey become irrelevant to the issue of remedy as a consequence of my finding that an immediate jeopardy level deficiency existed under Tag 324.

At Tag 324, the surveyors alleged that Petitioner failed to comply with the requirements of 42 C.F.R. § 483.25(h)(2). CMS Ex. 2, at 8 - 16. The regulation requires a facility to ensure that each of its residents receive adequate supervision and assistance devices to prevent accidents. Allegedly, Petitioner failed to provide necessary supervision to one of its residents to prevent incidents and accidents from occurring to the other 61 residents in Petitioner's facility. Id. at 8. The surveyors - and ultimately, CMS - found that this failure to provide supervision placed other residents in immediate jeopardy because it created a likelihood that the residents would suffer harm, serious injury, or death.

I sustain the surveyors' findings. CMS established a prima facie case, which Petitioner did not rebut, that Petitioner failed adequately to supervise a resident who was prone to committing violent acts against other residents and Petitioner's staff. This failure comprises a failure by Petitioner to comply substantially with the requirements of 42 C.F.R. § 483.25(h)(2). Furthermore, CMS offered prima facie proof that Petitioner's failure to comply with the regulation was so egregious as to put residents of Petitioner in a state of immediate jeopardy. Petitioner did not establish this determination to be clearly erroneous.

The resident in question is identified as Resident # 1 in the report of the October 1999 survey. There is considerable and extremely detailed evidence in the record of this case to show that, during his stay at Petitioner's facility, Resident # 1 posed a significant threat to the safety and welfare of other residents.

Resident # 1 was admitted to Petitioner's facility on September 30, 1999. CMS Ex. 3, at 1. He was admitted only for a 30-day stay while the State Medicaid program reviewed his suitability for admission to another facility. CMS Ex. 4, at 5. Petitioner discharged the resident to another facility on the evening of October 20, 1999. CMS Ex. 11, at 10.

The resident was 30 years old and was suffering from the effects of a closed head injury and a traumatic brain injury. CMS Ex. 3, at 1. At the time of the resident's admission to Petitioner's facility, Petitioner and its staff knew that the resident had a history of combativeness and provocative behavior. Records which predated his admission reported him to resist care and to wander into the rooms of other patients at the facility where Resident # 1 had been previously. CMS Ex. 4, at 3. The resident was also noted as not liking to be touched. Id. The facility where the resident had resided previously kept him highly sedated, giving the resident injections whenever he wandered into other patients' rooms. Id. at 5.

Resident # 1 began displaying provocative and assaultive behavior almost immediately upon his admission into Petitioner's facility and these behaviors continued throughout the resident's stay. These behaviors are documented in detail in the nurses' notes that were made about Resident # 1 during his stay. CMS Ex. 7. On October 1, 1999, the day after the resident's admission, a nurse observed Resident # 1 to be continuously pacing through the facility's hallway and entering other residents' rooms. Id. at 1. He was observed to remove his clothing, both in another resident's room and in the hallway. He attempted to steal items. He mimicked what was said to him. He pushed another resident and struck the nurse while being assisted to his room. Id.

From that point on during his stay at Petitioner's facility Resident # 1 frequently provoked physical confrontations with members of Petitioner's staff and with other residents. These included the following:

• On October 1, 1999, Resident # 1 was found by staff in another resident's room, holding that resident's head down in a headlock. CMS Ex. 7, at 1.

• Later on October 1, 1999, Resident # 1 entered another resident's room. The residents became involved in a physical confrontation when Resident # 1 didn't leave the room. CMS Ex. 7, at 1.

• In the early evening of October 1, 1999, Resident # 1 held another resident down on the resident's bed with his arm on the other resident's throat. CMS Ex. 7, at 2.

• Later that evening Resident # 1 confronted another resident in the hallway and put that resident in a headlock. CMS Ex. 7, at 2.

• Still later on the evening of October 1, 1999, Resident # 1 walked up to another resident, grabbed the resident, and pushed him over backwards. CMS Ex. 7, at 2.

• On the morning of October 2, 1999, Resident # 1 grabbed another person around the neck and both individuals fell to the floor. CMS Ex. 7, at 2.

• On the morning of October 4, 1999, Resident # 1 approached another male resident from behind and placed the other resident in a headlock. CMS Ex. 7, at 5.

• Later during the morning of October 4, 1999, Resident # 1 was involved in another altercation with another resident. On this occasion Resident # 1 struck the other resident in the nose and temple area causing the other resident to sustain a nosebleed. CMS Ex. 7, at 7.

• Later during that morning Resident # 1 entered another resident's room and broke a window with a board. CMS Ex. 7, at 7.

• Early in the evening of October 11, 1999, Resident # 1 approached a certified nursing assistant, drew his fist back, and told her he would "bust her in the nose." He swung at the assistant and missed. ⁽¹⁾

• On the morning of October 13, 1999, Resident # 1 became involved in a physical altercation with another, scooter-bound resident. CMS Ex. 7, at 9.

• During the afternoon of October 13, 1999, Resident # 1 approached a nursing assistant from behind and put her in a headlock. The resident was redirected but then grabbed a nurse around the neck. CMS Ex. 7, at 9.

• Later during the afternoon of October 13, 1999, Resident # 1 twice put his arm around a nurse's neck. CMS Ex. 7, at 10.

• During the evening of October 14, 1999, Resident # 1 went into another resident's room and began striking him with his fists. The altercation caused the other resident's wheelchair to tip over and both Resident # 1 and the other resident wound up on the floor. CMS Ex. 7, at 13.

• On the morning of October 15, 1999, Resident # 1 grabbed a nursing assistant around the neck and attempted to strangle her. CMS Ex. 7, at 13.

• Later on the morning of October 15, 1999, Resident # 1 went into another resident's room and became involved in a physical altercation with that resident. CMS Ex. 7, at 13.

• On the afternoon of October 15, 1999, Resident # 1 approached a nursing assistant and punched her in the stomach with his closed fist. CMS Ex. 7, at 13 - 14.

• On the evening of October 15, 1999, Resident # 1 attempted to kick and strike out at Petitioner's staff when the staff attempted to administer medication to the resident. CMS Ex. 7, at 14.

• On the evening of October 18, 1999, Resident # 1 was involved in an altercation with another resident. CMS Ex. 7, at 15.

The foregoing summary documents nearly 20 physical altercations between Resident # 1 and other residents or members of Petitioner's staff occurring between October 1 and 19, 1999. Resident # 1 was out of Petitioner's facility from October 4 through 11, 1999 - he was being evaluated at a psychiatric institution - so he engaged in these nearly 20 altercations at Petitioner's facility during a time period that spanned only about two weeks. In fact, Resident # 1 was involved, on average, in more than one physical altercation during each day that he resided at Petitioner's facility.

Moreover, the resident engaged in numerous other behaviors during this approximately two week period that either were precursors to altercations, triggered altercations, or showed the resident's propensity to become involved in altercations. Resident # 1 was frequently noted to be pacing the hallway in Petitioner's facility, to enter other residents' rooms uninvited, and to climb into other residents' beds. He was observed to ball up his fists and to strike out with them. On more than one occasion the resident was observed striking the walls with his fists. CMS Ex. 7.

Petitioner's staff clearly was aware that Resident # 1 posed a potentially serious threat to the safety and welfare of other residents. The staff knew that he had a great propensity to commit bodily harm against others and that he frequently acted on his instincts. That concern is reflected in the nurses' notes that I have discussed. Furthermore, the staff knew that Resident # 1 did not respond to the staff's efforts to prevent the resident from engaging in violent actions. He persisted in provoking violent confrontations occurring, on average, more than daily despite the staff's redirection efforts, close monitoring of the resident on occasion, and administration of sedatives to the resident when he became most violent. CMS Ex. 7.

The staff's realization that Resident # 1 was dangerous to other residents motivated it to attempt to transfer the resident out of the facility. CMS Ex. 11, at 1-10. Between October 1 and October 20, 1999, Petitioner contacted several facilities and the police, seeking, without success, to find an entity that would accept Resident # 1. The urgency of these efforts is reflected in a statement by Ms. Dawne Cardini, who is a registered nurse and who served as Petitioner's Administrator in Training during the period when Resident # 1 was at Petitioner's facility. She relates that, on the evening of October 15, 1999:

I kept in touch with . . . [the Director of Nursing] and facility during the evening hrs., spoke . . . [with the resident's treating physician] from my home trying to figure a way to get resident [# 1] out of our facility before he hurt someone bad.

CMS Ex. 11, at 5 (emphasis added). In an addendum to her notes of October 15, Ms. Cardini added, plaintively, "we are caught in middle." Id.

In its post-hearing brief, Petitioner attempts to minimize the risks posed by Resident # 1 to other residents. It asserts that the surveyors' findings in the report of the October 1999 survey are plagued by inconsistencies and are not accurate. But, whether or not there are minor inconsistencies in the surveyors' findings or in their testimony about their findings, those inconsistencies do not detract from the overall picture of Resident # 1 and his behavior. Indeed, I draw my findings concerning Resident # 1 almost entirely from statements made by Petitioner's own staff about Resident # 1 and the problems he created. CMS Exs. 7, 11.

Petitioner also attempted to show that Resident # 1 was not so violent as is depicted by the nurses' notes. Ms. Barbara Winters, who is vice president for operations of Petitioner's parent corporation, testified that Resident # 1 was not in fact a violent man. Transcript (Tr.) at 201. According to her, the behavior that is described in the nurses' notes as "headlocks" was, in fact, affectionate behavior by the resident in the nature of a bear hug. Id.

This testimony is unpersuasive. Ms. Winters was not a witness to the events that are described in the nurses' notes. Those descriptions are first-hand eyewitness accounts and speak for themselves. There is nothing in those notes to suggest that the confrontations that Resident # 1 provoked were gestures of affection. To the contrary, the nurses' notes suggest that they were irrationally violent behavior which was dealt with as such by the staff.

Implicit in 42 C.F.R. § 483.25(h)(2) is a rule of reason. The regulation obligates a facility to take necessary measures to deal with hazards that are reasonably foreseeable. A facility is not liable per se for every accident that occurs on its premises nor is it charged with liability for hazards that a reasonable person would not foresee.

What was reasonably foreseeable here? It was obvious that Resident # 1 posed a serious threat to other residents so long as he resided at Petitioner's facility. He reacted in hair trigger fashion to minimal provocations such as being touched. He also frequently engaged in unprovoked and violent attacks on other residents. His tendency to wander and to invade other residents' space inappropriately meant that he would insert himself into situations even when others might want to avoid him. It was, therefore, foreseeable that Resident # 1 was likely to become involved in physical altercations with other residents any time he was in their presence unless Petitioner's staff could physically intervene to prevent confrontations and altercations from occurring. It was also foreseeable that these altercations could be violent and that there was a great risk of injury from these altercations.

What reasonable steps could Petitioner and its staff have taken to prevent such confrontations and altercations from occurring? The resident's tendency for unprovoked and violent behavior leads inescapably to the conclusion that even close monitoring of the resident might not have been enough to prevent him from committing unprovoked attacks on other residents. At a minimum, the resident needed to be monitored on a one-on-one basis throughout his stay at Petitioner's facility. Alternatively, the staff might have isolated the resident from contact with other residents. Additionally, it could have - based on the orders of a physician - kept the resident sedated during those times and in those locations when the resident was in contact with other residents. Or, it could have engaged in a combination of the above approaches. But, whatever approach the staff might have adopted in the case of Resident # 1, one thing was clear. Resident # 1 could not be permitted to come into contact with other residents at any time absent extremely close monitoring or equivalent interventions because he was so prone to violent and irrational outbursts.

There is nothing in 42 C.F.R. § 483.25(h)(2) that explicitly requires a facility to monitor its residents on a one-on-one basis. Nor does the regulation on its face authorize a facility to sedate a violent resident. But, the rule of reason that I find to be implicit in the regulation would certainly permit a facility to utilize these techniques if that is what is necessary to protect the safety and welfare of other residents. In reaching this conclusion, I am mindful that another regulation, 42 C.F.R. § 483.13(a), provides that a resident has a right to be free from any physical or chemical restraints imposed for purposes of discipline or convenience and not required to treat the resident's medical symptoms. But, this regulation would not impede a facility from sedating a resident if sedating the resident is what must be done to protect the welfare and safety of other residents and if it is found to be medically necessary by the resident's physician.

There is no question that Petitioner's staff attempted to provide a level of supervision and monitoring of Resident # 1. But, the efforts that the staff engaged in fell short of what I have described as being necessary. These efforts were manifestly unsuccessful in protecting Petitioner's other residents from Resident # 1.

It is apparent from the nurses' notes that Petitioner's staff attempted the following interventions when Resident # 1 engaged in provocative or violent behavior:

• Redirecting the resident. The nurses' notes are replete with documented efforts to redirect the resident when the resident acted inappropriately. At times, these efforts succeeded. Indeed, there are several notations to the effect that the resident was redirected easily. CMS Ex. 7. But, on many other occasions, the efforts did not succeed.

• One-on-one monitoring of the resident. The nurses' notes indicate that one-on-one monitoring was authorized and was utilized on occasion to prevent the resident from acting inappropriately. But, it does not appear to have been used consistently.

• Sedating the resident. When the resident returned to Petitioner's facility on October 11, 1999, he had a prescription for the administration of Ativan, a sedative, p.r.n. (as needed). The resident was, on several occasions, sedated by Petitioner's staff after he engaged in violent outbursts. But, it does not appear that the resident was consistently sedated. Petitioner evidently did not consider sedating the resident subject to the guideline used by the facility where Resident # 1 was a patient prior to becoming a resident at Petitioner's facility. That facility had sedated the resident whenever he wandered into other patients' rooms. CMS Ex. 4, at 3.

Petitioner's staff did not use any of these interventions, either singly or in combination, with sufficient consistency to prevent Resident # 1 from engaging in violent behavior. Indeed, the nurses' notes strongly support the conclusion that Petitioner's use of redirection, monitoring, and sedation was reactive. In other words, the staff would redirect, monitor, or sedate Resident # 1 only after the resident engaged in violent behavior. That might have been effective in preventing the resident from repeating his behavior so long as the intervention was being attempted. But, it did nothing to prevent the incident that triggered the intervention. As a consequence Petitioner's staff appears always to have been one step behind the problems created by Resident # 1.

Petitioner argues that it did, in effect, prevent any of the observed violent behavior by Resident # 1 from escalating to the point where serious harm occurred to another resident. It offered testimony to show that its staff always were close enough to the resident to prevent serious harm and that this arguably amounted to a kind of continuous one-on-one monitoring of the resident. Petitioner argues that the only thing that it did not attempt was "elbow to elbow" monitoring of the resident, which would have been impractical and counterproductive because it would have provoked the resident to become even more violent than he was.

I am not persuaded by this argument. If Petitioner's staff was watching the resident closely, it was not watching the resident closely enough to prevent the resident from engaging in violent and potentially very injurious conduct. Petitioner's own records show that, whatever level of supervision its staff gave to Resident # 1, it was insufficient to prevent the resident from entering other residents' rooms, and from engaging in violent confrontations which included his kicking, punching, and throttling others. I am not convinced that anything other than good luck prevented this resident from seriously harming other residents. Moreover, why didn't Petitioner attempt other interventions given the obvious failure of whatever monitoring it provided to the resident? Petitioner had authority to sedate the resident on an as-needed basis. It was aware that sedation had been used aggressively at the facility where the resident had been a patient prior to his residing at Petitioner's facility. But, evidently, it did not consider using sedation as a more aggressive preventive measure.

I am not suggesting by this analysis that any facility should resort to sedating a resident as a first form of intervention. But here, the close monitoring that Petitioner alleges it used was an obvious failure, judging from the violent acts perpetrated by Resident # 1. In that event, Petitioner had a duty to be more aggressive in order to protect other residents from serious harm.

Thus, Petitioner's interventions failed to protect other residents from the reasonably foreseeable hazards caused by Resident # 1's presence in Petitioner's facility. They were inadequate and, more important, Petitioner failed to attempt interventions that were available to it and which might have been adequate. For these reasons I find that Petitioner was not complying substantially with the requirements of 42 C.F.R 483.25(h)(2).

CMS presented strong prima facie evidence that Resident # 1, if inadequately supervised, was likely to cause serious injury or worse to Petitioner's residents. The evidence offered by CMS establishes a prima facie case that the resident's unsupervised behavior put other residents of Petitioner's facility in a state of immediate jeopardy.

In applicable regulations, the term "immediate jeopardy" is defined to mean a situation in which a facility's noncompliance with a participation requirement or requirements has caused, or is likely to cause, serious injury, harm, impairment, or death to a resident. 42 C.F.R. § 488.301. The evidence of an immediate jeopardy level deficiency in this case consists of the record of the numerous assaults that the resident perpetrated against other residents and Petitioner's staff which demonstrate that the resident had a propensity for uncontrolled violence. His documented behavior included punching other residents or staff, kicking them, putting them into headlocks, attempting to strangle them, and pulling them or pushing them to the ground. Some individuals sustained injuries, albeit minor, as a result of this conduct. Petitioner's own Administrator in Training recognized that, eventually, the resident might hurt someone badly if his behavior continued unchecked.

I do not find that Petitioner offered any evidence to show that CMS's determination of an immediate jeopardy level deficiency was clearly erroneous. It is true that no one was seriously hurt by the resident's conduct. But, the high potential for such harm occurring eventually is manifest.

Petitioner argues that no evidence suggests that there was any danger of an imminent or probable injury to any resident at the time of the October 1999 survey. Petitioner's post-hearing brief at 7. Petitioner seems to be suggesting by this argument that an immediate jeopardy situation was not present at Petitioner's facility because Resident # 1 arguably did not engage in sufficiently violent behavior during the course of the survey as to pose immediate jeopardy.

I disagree with this argument. The regulation does not suggest that surveyors must "catch a facility in the act" in order for an immediate jeopardy level deficiency to be present. Here, the evidence of an immediate jeopardy level deficiency emerges from the cumulative evidence of Resident # 1's history as a resident at Petitioner's facility and the unsuccessful interventions attempted by Petitioner's staff. Moreover, I note that the resident did engage in provocative behavior that was not atypical for him during the course of the October 1999 survey. CMS Ex. 2, at 9.

The evidence establishes that Petitioner was deficient at the immediate jeopardy level during a period that began on October 13, 1999, and which ran through October 20, 1999. It is unclear to me why CMS determined that Petitioner became deficient on October 13, 1999, inasmuch as the evidence in this case shows that the dangers posed by Resident # 1 predated that date. However, CMS has not asked me to establish noncompliance at an earlier date, and the evidence clearly shows noncompliance at the immediate jeopardy level as of October 13, 1999. It is clear that the deficiency persisted while Resident # 1 remained at Petitioner's facility and the resident was not discharged until the evening of October 20, 1999.

2. Civil money penalties of $3,050 per day for each day of a period that began on October 13, 1999, and which ran through October 20, 1999, are reasonable.

CMS determined to impose civil money penalties of $3,050 per day against Petitioner for each day of the period that began on October 13, 1999, and which ran through October 20, 1999. I conclude that this determination is reasonable inasmuch as the penalty amount of $3,050 per day is the minimum civil money penalty amount that may be imposed for an immediate jeopardy level deficiency. 42 C.F.R. § 488.438(a)(1)(i).

III. Decision in Case 479

A. Issues

The issues in this case are whether:

1. Beginning December 15, 1999, and continuing through January 3, 2000, Petitioner failed to comply substantially with a participation requirement to the extent that residents of Petitioner were placed at immediate jeopardy; and

2. Civil money penalties of $3,550 per day for each day of a period that began on December 15, 1999, and which ran through January 3, 2000, are reasonable.

As I discuss above at Part I of these decisions, these cases involved multiple surveys of Petitioner's facility. Surveys which relate to Case 479 potentially include the December 1999 survey, the January 2000 survey, the February 2000 survey and the April 2000 survey. The compliance findings that were made at these surveys include three findings of immediate jeopardy level deficiencies made at the December 1999 survey. These are cited at Tags 324, 490, and 492 of the December 1999 survey report. CMS Ex.1, at 51-67, 99-103. There were numerous other non-immediate jeopardy level deficiency findings that were made at the December 1999 survey, the January 2000 survey, and the February 2000 survey.

However, the issues in this case are limited to the question of whether Petitioner was noncompliant with the requirements of 42 C.F.R. § 483.25(h)(2), cited at Tag 324 of the December 1999 survey; whether Petitioner's noncompliance, if it was noncompliant, was at the immediate jeopardy level; and whether civil money penalties of $3,550 per day may be imposed based on that noncompliance finding. ⁽²⁾ I base this conclusion on the following:

• Prior to the July 24, 2002 hearing in this case, the parties stipulated that the issues in Case 479 would be limited to those arising from the December 1999 survey. Tr. at 231. That stipulation precluded consideration of issues arising from the January 2000 and February 2000 surveys, including questions of whether civil money penalties of $100 per day could be imposed based on the January deficiency findings and whether civil money penalties of $150 per day could be imposed based on the February deficiency findings.

• The parties' stipulation left open issues arising from the December 1999 survey. The report of that survey cited a total of 16 deficiencies, 15 of which allegedly constituted substantial noncompliance with participation requirements.

• CMS could have offered evidence and arguments to address any of these 15 allegedly substantial deficiencies. However, both its evidentiary presentation and its post-hearing arguments focused on only one alleged deficiency, that being the deficiency that is cited at Tag 324 of the December 1999 survey report. See CMS's post-hearing brief at 5-15. In fact, as is made abundantly clear by my comments to the parties at the close of the hearing, I left the hearing with the distinct impression that the only alleged deficiency that CMS was advocating was the one described at Tag 324.

• At the close of the hearing in Case 479, I gave very explicit instructions to the parties as to how they should address issues in their post-hearing briefs. I instructed the parties that they must address every issue in their post-hearing briefs that they wanted me to consider. I made it plain to them that I would not consider any issue which a party did not brief. Tr. at 489-490.

• In light of those instructions, I was very surprised to see a footnote in CMS's post-hearing brief in which CMS claimed that it was not waiving its arguments with respect to deficiencies which it did not discuss. CMS asserted that:

Due to space limitations, not all of the 16 deficiencies in the December survey are discussed in detail in this brief . . . CMS does not intend to waive its arguments with regard to these deficiencies. Rather, CMS relies upon the observations recorded in the . . . [December 1999 survey report] and - regarding F241, F248, and F465 - CMS's exhibits and surveyor testimony to support the citations not discussed in greater detail herein . . . .

CMS's post-hearing brief at 5, n.4 (citations omitted).

• CMS did not just fail to discuss "in greater detail" alleged deficiencies other than that which was cited at Tag 324 of the December 1999 survey report. CMS made no discussion of these other alleged deficiencies. See CMS's post-hearing brief and post-hearing reply brief.

• CMS's disclaimer in its post-hearing brief does not excuse it from complying with the explicit instructions I gave to the parties at the close of the hearing. Indeed, CMS is advocating the precise thing that I warned the parties against doing, which is to assert the presence of "issues" without providing me with any argument, analysis, or discussion of evidence which relates to those "issues." It was obvious from my instructions that I expected that a party would do more than assert the presence of an issue if it wanted me to decide it. My instructions required the parties to analyze issues in their post-hearing briefs and not just list the ones that they wanted me to decide.

• I imposed no "space limitations" on CMS that would have prevented it from briefing fully any issue that it desired to advocate. I note that CMS's post-hearing brief in this case is a scant 15 double-spaced pages, four of which consist of a boilerplate statutory and regulatory background section. The remaining 11 pages are devoted entirely to analysis of Petitioner's alleged deficiency at Tag 324 of the December 1999 survey report.

• CMS's failure to comply with the instructions I gave at the end of the hearing is a basis for me to impose sanctions against it pursuant to section 1128A (c)(4) of the Social Security Act.

In light of my instructions to the parties and CMS's failure to comply with those instructions except in respect to Tag 324, I am under no constraint to decide whether Petitioner is deficient under any of the tags that are cited in the December 1999 survey report except for Tag 324. I therefore decline to decide any issue except those which are raised by the allegations made at Tag 324 of the December 1999 survey report.

B. Findings of fact and conclusions of law

I make findings of fact and conclusions of law (Findings) which I set forth below as separate headings. I discuss each Finding in detail.

1. The preponderance of the evidence does not support CMS's allegation that Petitioner failed to comply substantially with the requirements of 42 C.F.R. § 483.25(h)(2).

The allegations that Petitioner failed to provide adequate supervision of its residents to protect them against accident hazards are set forth in detail in the report of the December 1999 survey. CMS Ex. 1, at 51-67. The allegations focus to some extent on Petitioner's alleged failure to provide supervision of a resident who is identified in the survey report as Resident # 2. However, the allegations discuss alleged failures by Petitioner's staff to supervise other residents, as well. The report describes a variety of interactions and altercations between and among residents which the surveyors contend is evidence of Petitioner's failure to supervise these residents adequately.

Below, I discuss in detail the episodes that are cited in the survey report. However, in order for my analysis to make any sense, it is necessary as a predicate to discuss Petitioner's facility and its resident population. It is also necessary to define Petitioner's duties to its residents pursuant to 42 C.F.R. § 483.25(h)(2) in light of the nature of its facility and its resident population.

Petitioner's facility is one which differs significantly from typical skilled nursing facilities in that its resident population consists generally not of individuals of advanced age but of persons who are developmentally disabled. Tr. at 450. Petitioner's resident population is similar to that of a group home for mentally retarded individuals.. Id. at 450 - 451.

The individuals who reside in Petitioner's facility are, given the nature of their impairments, likely to engage in behavior that would be considered to be socially unacceptable in other settings. Developmentally disabled individuals may at times act out verbally, and sometimes, physically. See Tr. at 463 - 464. Resident behavior that might rarely be encountered in other skilled nursing facilities is commonplace in a facility such as Petitioner's, where the resident population is composed predominately of developmentally disabled individuals. For example, the noise level in Petitioner's facility is much higher than that of a typical nursing facility. Tr. at 421. The activity level is higher than that of a typical nursing facility as well, demanding a greater degree of staff attention than would be required in a typical nursing facility. Id. Petitioner attempts to minimize staff turnover at its facility by showing to prospective employees the environmental differences between its facility and that of other nursing facilities. Id.

In summary, Petitioner's facility is one that is noisier and with a much higher level of resident activity than would be encountered at a typical nursing facility. Its residents are more active than those of a typical nursing facility and, due to their impairments, more likely to engage in verbal and physical acting out than would be encountered with typical nursing facility residents.

42 C.F.R. § 483.25(h)(2) does not impose on a facility a duty to prevent all accidents from occurring. Rather, the regulation requires a facility to protect its residents from accidents that are reasonably foreseeable. A facility must protect its residents from a hazard that it knows about or should know about. The regulation does not require a facility to provide its residents with unreasonably strict or intrusive supervision. Under the regulation, a facility must provide each resident with supervision that is commensurate with the risk posed to or by that resident.

What risks were foreseeable and what level of supervision are required at Petitioner's facility? The fact that the residents at Petitioner's facility are more active than are residents at a typical nursing facility and the additional fact that these residents are prone to act out by engaging in verbal and sometimes unusual physical actions, including, occasionally, striking out or making repetitive motions, suggests a heightened possibility of inappropriate contact between residents and a higher risk of interpersonal conflict than would be encountered in a typical nursing facility. From these facts I conclude that Petitioner had a duty to provide a higher level of supervision to its residents to ward off interpersonal conflict than would be expected in a typical nursing facility. Petitioner's staff needed to keep a relatively close watch on the residents to assure that they did not engage in altercations or other behavior that might lead to injury. Tr. at 428.

But, the obligation to provide heightened supervision does not mean that Petitioner necessarily was obligated to provide intense, one-on-one supervision of all of its residents at all times. Nor was it required to restrain, sedate, or isolate its residents as a matter of course. Petitioner was required only to supervise its residents commensurate with the risks that they posed. If Petitioner provided such supervision, then it was not liable for an unexpected or atypical incident that did not comport with the patterns of behavior that its residents had demonstrated previously.

Petitioner averred that it and its staff have adopted the following approaches to protect Petitioner's resident population:

• Petitioner's facility is designed to assure that residents do not escape the staff's observation. The facility has no wings and, therefore, residents who are in the corridor are within view of Petitioner's staff at all times. Tr. at 400, 468. The facility's lounge and two dining rooms are set up so that they may easily be viewed by Petitioner's staff. The two dining rooms are separated by a wall that contains a window which runs the entire length of the wall. Id. Activity in the residents' lounge may at all times be viewed through a window that separates the lounge from the nurses' station. Id. at 402; P. Ex. 99.

• Petitioner's staff is present in the dining areas during meal times. Tr. at 405.

• The staff prepares a specific care plan for each resident in order to deal with that resident's behaviors. Tr. at 459 - 460.

• Petitioner's staff seeks to teach residents to use stress relieving behaviors in lieu of aggressive behavior. Tr. at 463. For example, residents are taught to scream as a way of reducing stress. Id.

• The staff attempts to give residents some opportunities to socialize free from intrusive supervision. Tr. at 466. In doing so, the staff attempts to balance any risks of altercations against the need to give residents the opportunity to live with the minimum necessary level of observation and supervision. Id. at 466 - 467.

• Petitioner's management looks for patterns of conduct in the facility in order to decide whether adjustments need to be made in the way that residents are observed or supervised. Tr. at 469.

I find these assertions to be credible and to describe accurately the overall level of observation and supervision that Petitioner and its staff provide to residents of Petitioner's facility. CMS has offered no evidence that would contradict these assertions and, indeed, to some extent, the surveyors' findings at the December 1999 survey corroborate them. For example, the notes of one of the surveyors state that, on December 13, 1999, Petitioner's staff was providing constant supervision of the residents while they were in the lunch room. CMS Ex. 16, at 41.

Nor is there any reason for me to conclude that the overall level of observation and supervision that Petitioner and its staff provide to its residents is inadequate to meet the observation and supervision needs of Petitioner's resident population. CMS has not averred that the general levels of observation and supervision that Petitioner and its staff provide to residents are inadequate.

The allegations of noncompliance that are stated at Tag 324 of the report of the December survey consist primarily of incidents that the surveyors contend to have observed which involved individual residents. Petitioner challenges the accuracy of the accounts of these alleged incidents. However, assuming these incidents indeed occurred, they raise this question about Petitioner's compliance with the requirements of 42 C.F.R. § 483.25(h)(2): Do the incidents depict a failure by Petitioner's staff to execute the observation and supervision policies and procedures that I have described above? In other words, was Petitioner remiss in carrying out its policies notwithstanding that the policies would have provided effective protection to Petitioner's residents against accident hazards had they been implemented?

I am not persuaded that these incidents establish a failure by Petitioner to implement its policies. There are substantial inaccuracies in the depiction of these incidents in the report of the December survey which renders suspect the credibility of the surveyors' accounts. Furthermore, the incidents as they actually appear to have occurred do not, individually or in the aggregate, demonstrate that Petitioner failed to supply adequate supervision to its residents.

The incidents alleged in the survey report consist of the following:

• On November 29, 1999, a resident who is identified as Resident # 2 was observed to become involved in an altercation with another resident who is identified as Resident # 18. As described in the survey report, Resident # 18 began yelling at Resident # 2 to get away from him as she approached him while both residents were in the facility's main dining room. Resident # 2 was observed to stand up from her wheelchair and to walk unsteadily towards Resident # 18. She was observed to grab the handles at the rear of Resident # 18's wheelchair, at which time Resident # 18 struck Resident # 2 across her arms and chest. Resident # 2 was then observed to fall backwards into her wheelchair. According to the surveyors, no staff were in the dining room to provide assistance or supervision to the residents. CMS Ex. 1, at 53; Tr. at 264.

• On December 1, 1999, Resident # 2 was observed to be seated in the facility's main dining room with 12 other residents. Allegedly, no facility staff were in the dining room at that time. The resident began yelling and hitting the dining room table with her fists. Another resident allegedly then began yelling obscenities. Resident # 2 then began yelling more loudly and she was observed to bite her hand. Two nursing assistants were observed to enter the dining room and leave without intervening. CMS Ex. 1, at 55.

• On November 30, 1999, five residents were allegedly observed in a lounge area with no staff present in the lounge. Subsequently, other residents were observed in the lounge, including residents with "noted aggressive behaviors," without the presence of Petitioner's staff. CMS Ex. 1, at 55 - 57.

• An interview with Petitioner's administrative staff allegedly established that Petitioner had not provided for supervision of residents to prevent accidents from occurring. Furthermore, Petitioner's administrative staff allegedly was unable to explain how staff was instructed to or educated as to how to intervene to prevent residents from engaging in uncontrollable behaviors. CMS Ex. 1, at 61.

• On December 13, 1999, Resident # 18 allegedly asserted that there was "going to be a good fight" in regards to Resident # 2. Resident # 18 allegedly also contended that Resident # 2 had been pushing his chair. CMS Ex. 1, at 61.

• Review of Petitioner's incident and accident log on December 13 and 14, 1999, allegedly established that Resident # 2 had been involved in two altercations with other residents since December 3, 1999. In both instances, the resident allegedly had been pushed from her wheelchair. In one instance, the resident allegedly struck her head on the floor. In the other instance, staff allegedly was not present when the incident occurred. CMS Ex. 1, at 61 - 63.

• Resident # 2 allegedly was observed to be calling out repeatedly for various items during the lunch meal on December 14, 1999. During the meal, the resident allegedly was observed to push her wheelchair back from the table, entangling it with the wheelchair that was occupied by Resident # 18. Resident # 18 was allegedly observed to turn around and to raise his arm until he noticed that he was being observed by surveyors. Throughout these alleged interactions, Petitioner's staff allegedly failed to intervene to separate Residents #s 2 and 18. CMS Ex. 1, at 63 - 65.

• Review of the clinical record of a resident, apparently Resident # 4, allegedly established that, on an unidentified date, the resident was choked by another resident who is identified in the survey report as Resident # 8808. CMS Ex. 1, at 65.

• Nurses notes' allegedly showed that, on December 7, 1999, Resident # 4 created a disturbance in the dining room by banging his hands on a table and making verbal noises. Other residents allegedly asked Resident # 4 to stop making a disturbance and Resident # 4 allegedly became upset and hit the top of another resident's hands. Another resident, identified as Resident # 38, then allegedly attempted to wrap an oxygen cord around Resident # 4. Petitioner's staff then intervened to stop the disturbance. Allegedly, the staff member who intervened was only able to determine what had led up to the event by interviewing other residents in the area. CMS Ex. 1, at 67.

• Resident # 4 allegedly had a history of hitting the tops of tables in the dining room, upsetting other residents when he engaged in such behavior. CMS Ex. 1, at 67.

As I note above, Petitioner disputes many of the fact allegations made by the surveyors. Petitioner does not deny that there was an altercation between Residents #s 2 and 18 on November 29, 1999. But, Petitioner denies that the altercation occurred in its dining room while residents sat unsupervised. Petitioner produced several exhibits, consisting of nurses' notes and two incident reports, which recount that this episode occurred in a hallway and was witnessed by members of Petitioner's staff. P. Ex. 2, at 110; P. Ex. 11, at 34; P. Ex. 21, at 15, 103. Petitioner also does not deny that, on December 1, 1999, a second episode occurred involving Resident # 2. But, Petitioner disputes a surveyor's assertion that Petitioner's staff did not intervene when the resident began acting out or that no intervention occurred prior to the resident biting her hand. Petitioner argues that the surveyor's own notes disclose that Petitioner's staff intervened before the resident began to bite her own hand. CMS Ex. 12, at 215. Petitioner notes that asking the resident to return to her room - the intervention recorded by the surveyor in her notes - is completely consistent with the resident's care plan which provides that the resident would be asked to go to her room if she yelled inappropriately. P. Ex. 2, at 62; See CMS Ex. 12, at 215.

Furthermore, Petitioner disputes that the resident's behavior during the December 1, 1999 incident caused another resident, Resident # 31, to flail his arms or to strike out. Petitioner asserts that it was common for the resident to engage in such behavior and that the behavior was unrelated to Resident # 2's behavior on December 1, 1999. Tr. at 406.

Petitioner also denies the allegation that, on November 30, 1999, five residents were observed to be unattended in Petitioner's lounge area. Petitioner points out that a surveyor's notes originally reported an observation that there were "no staff" present during this incident but that the surveyor had crossed out this observation to write in the phrase "nurse in station." CMS Ex. 16, at 74. Moreover, Petitioner asserts (see discussion above) that the lounge area is in full view of Petitioner's nurses' station.

Petitioner argues additionally that there are discrepancies between the survey report's allegations that residents were left unsupervised and the surveyors' notes. According to Petitioner, the notes show that there was supervision of residents. For example, a surveyor's note concerning lunch service on December 13, 1999, recites that there was "constant supervision" of residents in Petitioner's dining room. CMS Ex. 16, at 41. During cross-examination of the surveyor, the surveyor acknowledged that her notes contained this observation, but averred that she did not add the observation to the survey report because she had been trained not to include observations in the report that were favorable to a facility. Tr. at 322.

Petitioner also denies the surveyors' account of Resident # 2's behavior during lunch on December 14, 1999. It contends that, contrary to the account stated in the survey report, Resident # 2's calling out for food (a hot dog) during lunch did not cause distress to other residents. Nor did the momentary entanglement of Resident # 2's wheelchair with Resident # 18's wheelchair precipitate an altercation. Petitioner asserts that its staff appropriately intervened to disentangle the residents. Tr. at 384 - 387.

Finally, Petitioner disputes the surveyors' account of the altercation between Resident # 4 and Resident # 38. It notes that no one actually witnessed the alleged attempt by Resident # 38 to wrap an oxygen cord around Resident # 4. This assertion, as Petitioner notes, is based on a hearsay assertion by Resident # 38 and CMS has offered nothing to show that the assertion is credible. Petitioner notes, moreover, that both Residents #s 4 and 38 were discharged from Petitioner's facility on December 7, 1999, nearly a week prior to the alleged inception of the immediate jeopardy level deficiency that is asserted at Tag 324 of the report of the December 1999 survey.

On balance, I find Petitioner's assertions of what happened at its facility to be more credible than the accounts of the surveyors who wrote the report of the December 1999 survey. First, the surveyors' accounts are contradicted in key respects by notes and records that were generated contemporaneously by Petitioner's staff. For example, the weight of the evidence shows that the altercation between Resident # 2 and Resident # 18 that occurred on November 29, 1999, did not occur in Petitioner's dining room, as is alleged by the surveyors, but, in fact, occurred in the hallway within the view of Petitioner's staff. Second, and more significant, is the fact that surveyors admitted during the course of their cross-examination at the hearing that they deliberately withheld information from their survey report that was exculpatory or favorable to Petitioner. Tr. at 322. For that reason alone, I am not inclined to accept as credible the surveyors' allegations where they are not corroborated independently or where they are contradicted by other evidence.

What emerges from the conflicting accounts offered by the two sides is that there certainly were incidents where residents of Petitioner's facility acted out, both prior to and during the survey. These incidents included episodes of yelling and shouting, occasional banging on objects, and a few confrontations. But, there is no evidence in this case that these episodes were uncontrolled or that Petitioner's staff failed to intervene to prevent dangerous escalations. Moreover, there is every reason to conclude that the behaviors cited by the surveyors were typical behaviors for residents of Petitioner's facility, given the nature of these residents' impairments. There is nothing in the record of this case to show that Petitioner was lax in supervising these residents or indifferent to the need to assure that the residents' behaviors did not escalate dangerously.

For example, the voluminous treatment records of Resident # 2 that Petitioner offered into evidence establish that the yelling and occasional physically demonstrative behavior that she manifested during the survey was entirely typical for this resident. P. Ex. 2. This resident had a long history of acting out of which the staff was well aware. The resident's behavior included orchestrated falls by the resident as an attention-seeking behavior. P. Ex. 2, at 42. It also included yelling for attention. Id. The resident also had a history of incidents which led to minor abrasions and bruises. For example, on November 23, 1999, Resident # 2 was found on Petitioner's hallway floor, yelling and flailing at Petitioner's staff. P. Ex. 2, at 107. On that occasion two of Petitioner's staff were needed to calm the resident and to assist her back to her room.

However, although these incidents occurred - and were not out of character, given the level of functioning of Petitioner's resident - there is no evidence that they were the consequence of a failure by Petitioner's staff to provide adequate supervision to its residents. Rather, these episodes were a product of the kind of residents housed in Petitioner's facility and were inevitable absent use by Petitioner of sedation and restraints.

I draw a distinction between the facts of this case, where a series of minor episodes occurred despite adequate supervision of residents by Petitioner's staff, and the facts that I find in Case 071. In that case, Petitioner was faced with the problems created by a violent resident who was prone to perpetrate unprovoked assaults against Petitioner's staff and residents. The circumstances of that case demanded that Petitioner isolate or sedate the resident pending his transfer from Petitioner's facility. Here, by contrast, there is no evidence that residents were violent or assaultive. Some of Petitioner's residents - in particular, Resident # 2 - were demonstrative to be sure, and sometimes their behavior was inappropriate to the point of provoking reactions by other residents. But, there is no evidence that these residents were particularly violent and Petitioner's supervision of these residents was commensurate with the risks that the residents posed to themselves and others.

Could Petitioner have eliminated any risk of inappropriate resident-against-resident confrontations in this case? Perhaps it could have, if it sedated its residents or provided all or nearly all of them with continuous one-on-one supervision. Would such level of control been appropriate given the relatively low risk levels posed by these residents? I do not find that such would have been appropriate in light of the evidence. Petitioner, given the nature of its residents and facility, had to balance the residents' rights to live as independently as possible against the relatively low level of risks that were posed by the residents' behavior. The evidence demonstrates that Petitioner struck the right balance in this case.

I also note that, as Petitioner points out correctly, two of the residents, Residents #s 4 and 38, whose alleged conduct is the basis in part for the deficiency citation at Tag 324, were transferred from Petitioner's facility nearly a week prior to the alleged onset date of the immediate jeopardy level citation. Thus, whatever problems were caused by these residents had ceased to exist as of December 13, 1999.

2. There is no basis to impose civil money penalties against Petitioner.

I have not sustained CMS's allegation that Petitioner was deficient at Tag 324 of the report of the December 1999 survey. There exists no basis to impose remedies for Petitioner's alleged deficiencies under this tag. There is no basis to impose civil money penalties against Petitioner inasmuch as the allegations that were made at Tag 324 are the only allegations that are appropriate for me to hear and decide emanating from the December 1999 survey, and because the parties have stipulated that deficiency allegations made at the January 2000 and February 2000 surveys are not before me.

Steven T. Kessel
Administrative Law Judge

1. The nurse's notes state that "she swung + missed her." However, the context makes it clear that it was the resident who swung his fist at the nursing assistant. See CMS Ex. 7, at 8. The resident was a male and the nursing assistant was a female. The notes state that the nursing assistant was holding her arms in front of her face in a defensive posture when the incident occurred. See Id.

2. This alleged deficiency involves the same requirement that is at issue in Case 071, whether Petitioner failed to assure that each resident of its facility received adequate supervision and assistance devices to prevent accidents.