SUBJECT:

Alden Estates of Evanston,

Petitioner,

Centers for Medicare & Medicaid

I sustain the determination of the Centers for Medicare & Medicaid Services (CMS) to impose civil money penalties of $50 per day against Petitioner, Alden Estates of Evanston, for each day of a period that began on December 15, 1999 and which ran through February 15, 2000.

I. Background

Petitioner is a skilled nursing facility that is located in Evanston, Illinois. It participates in the Medicare program. Its participation in that program is governed by federal regulations at 42 C.F.R. Parts 483, 488, and 498.

Petitioner was surveyed on behalf of CMS by representatives of the Illinois Department of Health on December 8, 1999, December 15, 1999, January 28, 2000, and February 16, 2000. At the December 8, 1999 survey, the surveyors found that Petitioner was not complying substantially with two federal participation requirements. At the December 15, 2000 survey, the surveyors found that Petitioner also was not complying with requirements of the Life Safety Code. At the January 28, 2000 survey, the surveyors found that Petitioner remained out of compliance with Life Safety Code requirements. Petitioner was found to be complying substantially with all participation requirements as of the February 16, 200 survey.

CMS determined to impose remedies based on the noncompliance findings that were made at the December 8, 1999, December 15, 1999, and January 28, 2000 surveys. Petitioner originally requested a hearing as to all of the noncompliance findings that the Illinois Department of Health surveyors made, and as to all of the remedies imposed by CMS. However, the parties agreed to narrow the issues to the single question of whether there is a basis to impose civil money penalties against Petitioner of $50 per day from December 15, 1999 through February 15, 2000, based on the Life Safety Code deficiency findings that were made at the December 15, 1999 and January 28, 2000 surveys.

Additionally, the parties agreed that this case may be heard and decided without an in-person hearing and based on their written submissions. Each side submitted briefs and proposed exhibits. CMS's proposed exhibits are: CMS Ex. 2; CMS Ex. 3; CMS Ex. 4; CMS Ex. 5; CMS Ex. 11; CMS Ex. 23; CMS Ex. 24; CMS Ex. 25; and CMS Ex. 26. Additionally, CMS submitted a written declaration from Ms. Monique D. Bruns. CMS did not designate this declaration with an exhibit number. In order to identify the exhibit for the record, I am identifying it as CMS Ex. 27. I note that CMS Ex. 27 contains a number of attachments. I am not identifying them as separate exhibits, and I am considering the attachments to be part of CMS Ex. 27.

Petitioner's proposed exhibits consist of: P. Ex. 1; P. Ex. 12; P. Ex. 13; P. Ex. 14; and P. Ex. 15. Additionally, Petitioner submitted a written declaration from Ms. Elise S. Aron. Ms. Aron's declaration contains several attachments. Petitioner did not designate Ms. Aron's declaration with an exhibit number. I am identifying it as P. Ex. 16. I am not identifying the attachments separately, these remain part of the exhibit.

I am receiving into evidence all of the foregoing exhibits, including the attachments to CMS Ex. 27 and P. Ex. 16.

II. Issues, findings of fact and conclusions of law

A. Issues

The issues in this case are whether:

1. Petitioner failed to comply substantially with a Life Safety Code requirement during the period that ran from December 15, 1999 through February 15, 2000; and

2. Civil money penalties of $50 per day are reasonable for each day of the period.

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. Petitioner did not comply substantially with a Life Safety Code requirement during the period that ran from December 15, 1999 through February 16, 2000. Petitioner attained substantial compliance by February 16, 2000.

Regulations governing nursing facilities provide, at 42 C.F.R. § 483.70, that a facility must meet the applicable provisions of the 1985 edition of the Life Safety Code of the National Fire Protection Association. At issue in this case is Petitioner's compliance with a Life Safety Code requirement which states that:

Operation of any activating device in the required fire alarm system shall be arranged to automatically accomplish, without delay, any control functions to be performed by that device.

Life Safety Code Handbook § 13-3.4.4, at 561 (1985). CMS has interpreted this language to mean, in the context of nursing facilities, that:

Required sprinklers, detectors, etc. are arranged to automatically activate the fire alarm system and operate protective devices such as dampers, door holders, etc.

CMS Ex. 5, at 20. I accept this interpretation as authoritative in the absence of any assertion by Petitioner that it is not a valid interpretation of the Life Safety Code. The gravamen of CMS's allegations of Life Safety Code violations is that, at the December 15, 1999 and January 28, 2000 surveys, Petitioner's fire alarm system failed to operate properly because doors that the system was supposed to close (smoke doors) in order to impede the passage of smoke throughout Petitioner's facility failed to close when the surveyor activated a resident's room smoke detector. This, according to CMS, was a failure to "operate protective doors" as is required by CMS's interpretation of the Life Safety Code. Specifically, it is alleged that:

• On December 15, 1999, Ms. Bruns, who conducted the Life Safety Code survey on that date, observed that, when the smoke detector was activated, it closed the resident's room door and operated both visual and audible devices within Petitioner's facility. CMS Ex. 3, at 2; CMS Ex. 27, at 1 - 2. However, the system failed to close smoke doors. Id.

• On January 28, 2000, Ms. Bruns again observed that the fire alarm system did not close required smoke doors when it was activated. CMS Ex. 4, at 2; CMS Ex. 27, at 2.

• On February 16, 2000, Ms. Bruns reinspected the facility. On that occasion the smoke doors did work. However, certain horns and strobe lights which should have been activated by the smoke detectors were not activated. Petitioner made corrections to its system in Ms. Bruns' presence, and Ms. Bruns then concluded that Petitioner had attained compliance with Life Safety Code requirements. CMS Ex. 27, at 2.

CMS argues that the foregoing evidence establishes a more than minimal failure by Petitioner to comply with participation requirements. It contends that failure of the smoke doors to operate properly posed a potential for endangering the safety of Petitioner's residents.

CMS's allegations and the evidence it offers in support of them establish a prima facie case of noncompliance by Petitioner with requirements of the Life Safety Code. The Life Safety Code requires that Petitioner's fire alarm system close smoke doors. The evidence offered by CMS shows that, as of the two surveys in question, the system did not close smoke doors. I agree with CMS that this evidence establishes a potential for more than minimal harm to Petitioner's residents. Implicit in the Life Safety Code is the conclusion that failure of a fire alarm system to work properly is a safety risk.

Petitioner offers several arguments to challenge this prima facie case. I have considered them and the supporting evidence offered by Petitioner, and I find that Petitioner has not offered either evidence or arguments that overcome CMS's prima facie case of noncompliance for the period beginning on December 15, 1999 and which ran through February 16, 2000.

First, Petitioner does not contest CMS's allegations that its system failed to activate the smoke doors as of December 15. Rather, Petitioner argues that it hired a contractor to assure that the smoke doors were activated by the alarm system, and that the contractor certified that the smoke doors were working properly by no later than January 21, 2000. Petitioner's brief at 4; P. Ex. 12; P. Ex. 13. I conclude from Petitioner's argument and evidence, therefore, that there is no issue in this case that Petitioner was deficient from December 15, 1999 through January 20, 2000.

Petitioner's assertions of compliance focus entirely on the period that began with January 21, 2000. It argues, first, that I should accept the assertions by its contractor that the smoke doors operated properly after January 20, 2000. However, the evidence offered by Petitioner does not prove its assertion that the contractor fixed the problem by January 21, 2000. One of the exhibits on which Petitioner relies to support its assertion is P. Ex. 12. This is a copy of a memorandum of an agreement between Petitioner and an electrical contractor. The memorandum, which is dated January 10, 2000, contains a promise that:

We will program the Fire Alarm System that when any patient room smokes go off, that all fire doors will close. (This was not approved on 09-24-1998 on original install).

Id. at 1. This is a promise by the contractor to perform work. It is not proof that the work was actually performed, or that it was performed correctly. Moreover, the memorandum's reference to having the fire doors close on activation of alarms not being approved "on original install" is additional proof that the system had not been programmed previously to activate smoke doors.

Another exhibit relied on by Petitioner is P. Ex. 13. This exhibit is a copy of a fire alarm test report and certification performed by Fox Valley Fire & Safety on January 21, 2000. On close scrutiny, the report says nothing about whether smoke doors were activated by alarms. The exhibit contains a number of specific checkoffs on the first page. None of these address the question of whether smoke doors were activated by the alarm system. Id. at 1. The exhibit avers additionally that "all devices test in proper working order at this time." Id. at 2. This general assertion does not address the specific question of whether smoke doors were activated by smoke detectors in residents' rooms. Moreover, the assertion literally could be true and be consistent with the conclusion that smoke doors were not activated by smoke detectors in residents' rooms. That is because, previously, the system in Petitioner's facility was set up to operate without activating smoke doors. Thus, the system could be in perfect working order as of January 21, 2000, but smoke doors might not have been activated by smoke detectors as of that date, consistent with past operation of the system.

In her declaration, Ms. Aron asserts that she checked with Petitioner's administrator, maintenance director, and electrical contractor to determine whether further corrections had been made to Petitioner's alarm system after January 20, 2000, and all of these individuals and entities responded in the negative. P. Ex. 16, at 2. The inference that Petitioner obviously intends that I draw from this statement is that the system worked in the same manner on January 20, 2000, as it did on February 16, 2000, inasmuch as no further changes were made to the system in the period between those two dates. And, Petitioner also intends that I conclude that the system activated smoke doors on January 20, 2000, inasmuch as it did so on February 16, 2000.

I do not draw this inference because the evidence that Petitioner offers to support its assertion that no further changes were made to the system is unreliable hearsay. I routinely admit hearsay evidence in cases involving CMS, but I do not necessarily afford much probative value to hearsay evidence. Here, there is no way to test the hearsay attributions that are the basis for Petitioner's argument. In fact, it is not even possible to identify from Ms. Aron's declaration the individuals with whom she allegedly spoke.

Next, Petitioner asserts that, in fact, all smoke doors did work properly when tested in the presence of Ms. Bruns on January 28, 2000. In her declaration, Ms. Arons asserts that an employee named Lee Frank was on the second floor of Petitioner's facility along with Ms. Bruns on January 28, 2000. P. Ex. 16, at 2. Ms. Arons avers as follows:

[Mr. Frank] told me that the test had been run from room 216, and that the surveyor was standing in front of room 216. Mr. Frank further stated that from that place in [the] hallway, one could see the smoke doors behind the nurses' station, but not the smoke doors by rooms 226 and 227, because they were around a corner. Mr. Frank stated that he saw all the 2^nd floor smoke doors close during the test.

Id. I find this statement not to be credible for two reasons. First, it manifestly contains unreliable hearsay. The probity of the second-hand account of Mr. Frank's recitation of the events of January 28, 2000, cannot be tested. Second, the statement that is attributed to Mr. Frank is internally inconsistent, further weakening its credibility. According to Ms. Arons, Mr. Frank asserted that he could not see the smoke doors by rooms 226 and 227 from the room where the test was conducted. But, in the same sentence Mr. Frank allegedly saw "all the 2^nd floor smoke doors close during the test." Id.

Petitioner argues that it conducted its own test of the smoke doors on February 7, 2000, and they were operating properly on that date. Ms. Arons avers that, on February 7, 2000, she personally observed the alarm system being tested and observed that all of the smoke doors on the second floor of Petitioner's facility operated properly. P. Ex. 16, at 2. She attaches to her declaration as Exhibit "E" a printout which she purports shows that the doors operated properly.

I find this evidence to be credible, and to prove that Petitioner's smoke doors were operating properly as of February 7, 2000. I have no reason to doubt Ms. Arons' credibility, and I accept as true her assertion that Exhibit "E" confirms that the smoke doors operated properly when they were tested on February 7, 2000.

However, the evidence offered by Petitioner does not address an additional problem with Petitioner's fire alarm system that was apparent as of February 16, 2000, and which Petitioner did not correct until that date. The undisputed testimony of Ms. Bruns is that, as of February 16, there remained a problem with operation of horns and strobe lights. That is evidence of continuing noncompliance through that date even if Petitioner may have corrected its smoke door problem at an earlier date.

Petitioner asserts that it was complying with all participation requirements as of February 16, 2000, even if the horns and strobe lights may not have operated properly on that date. It contends that the local fire code did not require the installation of horns and strobe lights, and that this feature was an optional extra safety feature. Therefore, according to Petitioner, the failure of the horns or strobe lights to operate properly on the 16^th of February is irrelevant to the question of Petitioner's compliance with Life Safety Code requirements. Moreover, according to Petitioner, there could be no finding that the failure of this feature to operate correctly constituted a potential for more than minimal harm to Petitioner's residents. Petitioner reasons that, if the feature was not required, then its malfunction was not a potential for harm.

I disagree with Petitioner's arguments. The Life Safety Code requires that smoke detectors, when activated, automatically operate a facility's fire alarm system. In this case, Petitioner elected to install horns and strobe lights as part of that system. The failure of the system to operate constituted a failure to comply with the Life Safety Code. Furthermore, the Life Safety Code does not suggest that effectiveness of operation of a fire alarm system may be measured by the degree to which the system complies with a local fire safety code. The Life Safety Code comprises a separate, federal safety requirement that operates independently in this instance from the requirements of local codes.

Moreover, I am unpersuaded that the failure of horns and strobe lights to operate correctly on February 16, 2000, was irrelevant to the issue of safety. There was an obvious reason that these devices were installed and that was to warn residents of Petitioner's facility of the dangers of smoke and fire. I conclude that failure of these devices to operate correctly certainly posed a risk of more than minimal harm to Petitioner's residents.

2. Civil money penalties of $50 per day are reasonable for each day of the period that began on December 15, 1999 and which ran through February 15, 2000.

Petitioner did not comply substantially with Life Safety Code requirements, and, therefore, the participation requirement that is stated at 42 C.F.R. § 483.70, during each day of the period which began on December 15, 1999, and which ran through February 6, 2000. CMS is entitled to impose remedies against Petitioner based on Petitioner's failure to comply substantially with a participation requirement. I find that the remedy that CMS elected to impose - civil money penalties of $50 per day for each day of this period - is reasonable. A $50 per day civil money penalty is the minimum civil money penalty amount that I may sustain where there is a failure to comply substantially with a participation requirement, and where CMS elects to impose that remedy. 42 C.F.R. § 488.438(a)(ii).

Steven T. Kessel
Administrative Law Judge