SUBJECT:

Salem Lutheran Home,

Petitioner,

Centers for Medicare & Medicaid

DECISION

Petitioner, Salem Lutheran Home (hereafter "Petitioner" or "facility") is a 97-bed nursing facility located in Elk Horn, Iowa, that is certified to participate in the Medicare and Medicaid programs as a provider of services. Petitioner challenges the Centers for Medicare & Medicaid Services' (CMS's) ⁽¹⁾ decision to impose a $1,000 per instance civil money penalty (CMP). Petitioner argues that because the state survey agency granted it an opportunity to correct, without imposing any penalty, CMS may not impose a CMP for a subsequent deficiency that occurs within the "period of correction."

For the reasons set forth below, I conclude that because the facility was out of substantial compliance with the program participation requirements for "Quality of Care," CMS had a basis for imposing a CMP. Because I find that the basis for imposing a CMP exists, I have no authority to review CMS's exercise of its discretion to impose a per instance CMP. 42 C.F.R. § 488.438(e); 42 C.F.R. § 408(g)(2). Inasmuch as CMS has imposed the minimum amount for a per instance CMP, I must also sustain the amount of the CMP.

BACKGROUND

On October 6, 2000, two days after his admission to the facility, Resident #1 eloped. Responding to the facility's report of the incident, the Iowa Department of Inspections and Appeals ("State Agency") conducted a complaint investigation survey on October 10, 2000. Amended Stipulations ¶¶ 1, 2. ⁽²⁾ Based on the survey findings, the State Agency found the facility out of compliance with requirements for 42 C.F.R. § 483.25(h) (Tag F-324) (Quality of Care). Amended Stipulations ¶ 2. By letter dated October 24, 2000, the State Agency advised Petitioner that its surveyor found "isolated deficiencies that constitute no actual harm with potential for more than minimal harm that is not immediate jeopardy." The letter instructed Petitioner to submit a plan of correction by November 8, 2000, and warned that it would expect correction of all deficiencies by November 10, 2000, and would recommend the imposition of remedies if the facility failed to achieve substantial compliance by that date. The letter also warned that a change in the seriousness of the facility's noncompliance "may result in a change in the remedy selected." Amended Stipulations ¶ 4; CMS. Ex. 1, at 1.

On October 26, 2000, Resident #1 again eloped from the facility, apparently by breaking the screen and climbing through the window of another resident's room. Staff found him in a car parked across the street from the facility. Amended Stipulations ¶¶ 6, 12. Advised of the second elopement, the State Agency sent a survey team back to the facility and, from October 30 through November 1, 2000, the team conducted a second complaint investigation survey. The surveyors found the facility still out of substantial compliance with the requirements set forth in 42 C.F.R. § 483.25(h) (Tag F-324) (Quality of Care), and determined that its deficiencies under that Tag constituted immediate jeopardy. They also found the facility out of substantial compliance with 42 C.F.R. § 483.20(k) (Tag F-279) (Resident Assessment). CMS Ex. 2; Petitioner's Memorandum in Support of its Motion for Summary Judgment at 3.

By letter dated December 26, 2000, CMS advised the facility that, based on the November 1, 2000 survey findings, the State Agency concluded that it was not in substantial compliance with program participation requirements. CMS concurred and imposed a $1,000 per instance CMP for the immediate jeopardy deficiency cited at Tag F- 324. The letter warned that if the facility were not in substantial compliance by the revisit, CMS would also deny payment for new admissions. CMS Ex. 2.

Petitioner timely requested a hearing, and the matter was assigned to me. The parties have filed cross motions for summary judgment, accompanied by written stipulations and exhibits. With its motion for summary judgment, Petitioner submitted 11 exhibits. CMS attached two exhibits to its motion. I have marked these documents as P. SJ Ex. 1-11 and CMS SJ Ex. 1 and 2. ⁽³⁾ In the absence of any objection, and, for purposes of deciding these motions, these summary judgment exhibits are admitted.

ISSUES

I first consider whether the facility was out of substantial compliance with program participation requirements.

If I determine that the facility was not in substantial compliance, I consider whether I may review CMS's exercise of its discretion to impose a CMP.

STATUTORY AND REGULATORY BACKGROUND

The Social Security Act ("Act") sets forth requirements for skilled nursing facility and nursing facility ("nursing facility") participation in the Medicare and Medicaid programs, and authorizes the Secretary of Health and Human Services (Secretary) to promulgate regulations implementing the statutory provisions. Act, sections 1819 and 1919. The Secretary's regulations governing nursing facility participation in the Medicare program are found at 42 C.F.R. Part 483.

To participate in the Medicare program, a nursing facility must maintain substantial compliance with program requirements. To be in substantial compliance, a facility's deficiencies may pose no greater risk to resident health and safety than "the potential for causing minimal harm." 42 C.F.R. § 488.301.

The facility must develop a comprehensive care plan for each resident. The plan must include measurable objectives and time-tables to meet a resident's medical, nursing, and mental and psychosocial needs that are identified in the comprehensive assessment. Specifically, the plan must describe: 1) the services to be furnished; and 2) services not provided due to the resident's exercise of his/her right to refuse treatment. The comprehensive plan must be developed within seven days of completion of the comprehensive assessment. It must be prepared by an interdisciplinary team, including the attending physician, a registered nurse with responsibility for the resident, and other appropriate staff, and, to the extent practicable, the resident, resident's family or legal representative. The plan must be reviewed periodically by a team of qualified persons after each assessment. The services provided or arranged by the facility must meet professional standards of quality, and be provided by qualified persons in accordance with each resident's written plan of care. 42 C.F.R. § 483.20(k).

Under the "Quality of Care" requirement, each resident must receive and a facility must provide the necessary care and services to attain or maintain the highest practicable physical, mental, and psychosocial well-being, in accordance with the resident's comprehensive assessment and plan of care. 42 C.F.R. § 483.25. Specifically, with regard to the subsection of the requirement regarding "Accidents," a facility must ensure that: 1) the resident environment remains as free of accident hazards as possible; and 2) each resident receives adequate supervision and assistance devices to prevent accidents. 42 C.F.R. § 483.25(h).

If a facility is not in substantial compliance with program requirements, CMS has the authority to impose one or more of the enforcement remedies listed in 42 C.F.R. § 488.406, which include imposing a CMP. See Act, section 1819(h). CMS may impose a CMP for each instance that the facility is not in substantial compliance with program requirements. 42 C.F.R. § 488.430(a). When CMS imposes a CMP for an instance of noncompliance, the penalties are in the range of $1,000 to $10,000 per instance. 42 C.F.R. § 488.438(a)(2). In reviewing CMS's action, if I sustain the basis for imposing the CMP, I may not set a penalty of zero, reduce the penalty to zero, nor review CMS's discretion to impose the CMP. 42 C.F.R. § 488.438(e). Under 42 C.F.R. § 488.408(g)(2), the facility may not appeal CMS's choice of remedy.

DISCUSSION

I make findings of fact and conclusions of law to support my decision in this case. I set forth each finding, in italics and bold, as a separate heading.

1. Petitioner was not in substantial compliance with the program participation requirements, specifically 42 C.F.R. § 483.25(h).

In order to meet the overall "Quality of Care" requirement that it provide what is necessary for each resident to attain or maintain the highest practicable physical, mental, and psychosocial well-being, the facility must ensure that its supervision is adequate to prevent accidents. This requirement does not amount to strict liability or require absolute success in an obviously difficult task. Using an outcome-oriented approach, facilities have the flexibility to use a variety of methods, but they are responsible for achieving the required results. In ensuring adequate supervision, the facility is not required to do the impossible or be a guarantor against unforeseeable occurrence, but it "is required to do everything in its power to prevent accidents." (emphasis added). 42 C.F.R. § 483.25(h); Asbury Center at Johnson City, DAB No. 1815, at 12 (2002); Koester Pavilion, DAB No. 1750, at 24-25 (2000); Woodstock Care Center, DAB No. 1726, at 25 (2000).

That a resident elopes does not, by itself, demonstrate noncompliance with the quality of care requirements. However, a review of the uncontroverted evidence shows that facility conditions in October 2000 were chaotic and dangerous. Resident #1 and other residents with dementia were persistent in their efforts to leave the facility, and staff seemed ill-equipped to protect them. Indeed, Petitioner does not suggest that it was in substantial compliance at the time of the October 10, 2000 complaint investigation survey, nor that it had achieved substantial compliance by the October 30-November 1, 2000 revisit. ⁽⁴⁾

Resident #1 was a 74-year old man who was admitted to the facility on October 4, 2000, with diagnoses of Alzheimer's disease, dementia, chronic obstructive pulmonary disease, and anxiety. Amended Stipulations ¶ 1; P. SJ Ex. 3, at 1. He had a history of elopement. P. SJ Ex. 6, at 1-2; P. Memorandum in Support of its Motion for Summary Judgment at 4. At about 8:00 P.M. on October 6, 2000, someone found him wandering about the neighborhood, and took him to the home of a facility employee. Although she did not recognize him as a facility resident, the employee called the facility. Until receiving that call, facility staff were not even aware that Resident #1 was missing. Responsible staff could not say when they had seen him last. The facility never figured out how or when he left. See P. SJ Ex. 2, at 3; P. SJ Ex. 3, at 3; P. SJ Ex. 6, at 2-3.

Thereafter, Resident #1 continued with his exit-seeking behavior. The record is replete with examples of his frequent efforts to leave, and the facility's inadequate response. At 4:00 P.M. on the afternoon of October 7, he attempted to head out the door as a nurse was coming in. He resisted staff efforts to prevent his departure, putting his foot in the door, and fighting them. Three staff members were required to get him back into the facility and in the process Resident #1 suffered a skin tear and bruising on his wrist. P. SJ Ex. 3, at 3, 4. Two hours later, he was caught standing on a window ledge, attempting to push through the glass. The nurse persuaded him to abandon the effort, but he then went from one door to another, trying to get out. Staff gave him Ativan. Id.; P. SJ Ex. 2, at 4.

Resident #1 was care-planned for his exit-seeking behavior on October 7, 2000. Amended Stipulations ¶ 3; P. SJ Ex. 4, at 1. The facility's plan to keep Resident #1 safe consisted of the following: 1) allow frequent rest periods throughout the day; 2) allow him to wander in designated areas; ⁽⁵⁾ 3) monitor whereabouts every 15-30 minutes; 4) monitor behavior per facility protocol; ⁽⁶⁾ and 5) remove objects if endangering self or others. P. SJ Ex. 4, at 1; P. SJ Ex. 10.

At 11:00 in the morning on October 8, staff found Resident #1 standing up on his bed, attempting to remove the glass from his window in order to escape. Staff persuaded him to stop. P. SJ Ex. 2, at 5; P. SJ Ex. 3, at 4. At 1:30 P.M., however, he continued his "vigorous" efforts to leave every time a visitor entered or staff left. He was given Ativan. P. SJ Ex. 3, at 4. The following day, staff gave him Ativan prophylactically to prevent anxiety and his exit-seeking behavior; they put an identification band on his wrist and began monitoring his whereabouts every 15-30 minutes. Id. at 4, 8; P. SJ Ex. 2, at 6.

At about 9:50 A.M. on October 10, 2000, the state surveyor observed Resident #1 with his coat on, wanting to leave the facility. At 10:00 A.M. he was standing by the door, wearing his jacket, playing with his hat, pushing on the door that exited to the parking lot. Although the medication aide tried to get him to remove his coat, he refused. At 11:30 A.M., he was still there when a visitor came through the door from the parking lot. He said to the visitor, "I better go now;" the visitor held the door open for him, and he would have left had the surveyor not intervened to prevent his departure. The two staff members responsible for him were in another resident's room and did not observe any of this. Although the door to the parking lot had a lock alarm that prevented residents from leaving, no alarm sounded when visitors entered, and the facility had no system in place to prevent residents from leaving when someone entering the facility opened the door. P. SJ Ex. 6, at 3.

Progress notes indicate that at 4:50 P.M. on October 10, Resident #1 was found in another resident's room standing on the back of an occasional chair that he had moved to the window. He had opened the window as far as he could and was standing with his foot on the sill trying to escape. At 6:30 P.M. staff gave him Ativan. At 7:15 P.M., responding to the sound of breaking glass, staff found him in another resident's room, standing with one foot on a bed and the other on the window sill. He was bumping his left hip against the window, and had broken the glass. P. SJ Ex. 3, at 6.

Following the October 10 survey, ⁽⁷⁾ Resident #1's exit-seeking continued, with no identifiable change in either his behavior or the staff response, except to change his prn (as needed) order for Ativan to a regularly scheduled dose. Amended Stipulations ¶ 9. Late at night on October 13, he became very restless, walking into the rooms of other residents, moving their furniture and waking them. He repeatedly tried to leave via the east doors. Efforts to redirect him were unsuccessful. He finally lay down and went to sleep. The following night, at 7:20 P.M., he was again pacing and "working on [the] windows," trying to get out. He forcibly shook one of the doors. Efforts to redirect were unsuccessful. He was given Ativan. P. SJ Ex. 3, at 10. He nevertheless continued his exit-seeking behavior. At 9:20 P.M. staff gave him more Ativan as he continued to go to the windows and doors. Id.; P. SJ Ex. 2, at 11.

On October 20 at 9:30 A.M., Resident #1 was in another resident's room "fiddling with the window." He was moving furniture and trying to remove the windows. He was hallucinating "quite a bit." Redirection was unsuccessful and staff gave him Ativan. P. SJ Ex. 3, at 11; P. SJ Ex. 2, at 14-15. In a particularly candid and compelling excerpt from the facility's 24-hour communication sheet, a staff member describes what went on during her shift the night of October 20. She writes: ⁽⁸⁾

J. tried to pull me into a room and kiss me. When I told him NO and pulled my hands from his, he said, "Sure, you always say no, I'm sore, I'm done." I am avoiding him & I need to pee but he's by his room.

Resident #1 standing on his bed trying to remove screen from window.

J. yelling obscenities into the air.

Resident #1 stealing clothes from J.'s room.

I'm going bonkers. How am I supposed to do rounds?

Dressed the men that are up & made their beds.

4:40 took R. to bathroom. Hear noises and look around corner. Resident #1 is back on bed (standing) trying to remove screen & knocks down curtain rod. R. peed in toilet.

Come out - J.'s missing, found him in T.'s room. Combative.

Come out R. walking (out of chair again).

Settle R. in chair - Resident #1 disappeared again - found on bed again - brought out & is now trying to get out other windows.

J. trying to get doors open again.

A.'s bed changed again.

J. now in B.'s room.

Resident #1 breaking branches off tree by birds. Trying to open bird cage. Upset it won't open.

R. up out of chair again. Put in merriwalker I found in kitchen.

T. & A. need changes. Can't do it. Gotta watch the guys.

Resident #1 using branch like a key to open bird cage.

R. trying to climb out top of merriwalker X4.

Resident #1 trying to push rocking chair thru door.

B.M.'s R. just smeared.

Resident #1 on chair by window in dining room under shade trying to remove screen again.

P. SJ Ex. 2, at 15-16; See Amended Stipulations ¶ 8. The staff member has described a dangerous situation. She was obviously overwhelmed, and unable to provide adequate care and supervision to any of the residents for whom she was responsible.

In light of his persistence and the facility's inadequate responses, it is not surprising that Resident #1 eventually managed to elope again. At 3:30 P.M. on October 26, he was found lying flat on his back on the floor of the dining area. He denied falling or hitting his head, and appeared to have no injuries. He was observed about an hour later, resting on his bed. P. SJ Ex. 3, at 12. At 7:20 that night a nursing assistant, who was passing out evening snacks, noticed that the door to another resident's room was closed. She opened the door, saw the television on the floor, the window open, and the window screen broken. She alerted the charge nurse. Staff members found Resident #1 sitting in a car across the street, apparently unharmed. Amended Stipulations ¶ 12. By stipulation, the parties agree that he was last seen "sometime between 7:00 and 7:15 P.M.." Amended Stipulations ¶ 6.

Later that night, at 9:20 P.M., Resident #1 was again agitated, kneeling on top of the dresser in his own room, attempting to open the window, saying "I have to get out." After he was helped down, he went to another window, attempting to leave. Staff coaxed him out of his room, but he ran into another resident's room and slammed the door shut, wanting to go out the window. He refused to rest and insisted that he would leave. He was given more Ativan. His agitation continued, as he attempted to leave by climbing the dresser near the window. P. SJ Ex. 3, at 12. At 12:30 A.M. a CNA found him on the floor. He had been moving his bedside stand across the room, bent over to stand on it, and fell. No injuries were noted, although he complained of some pain in his right hip. P. SJ Ex. 3, at 13. The following morning, staff arranged his transfer to a psychiatric hospital for evaluation. P. SJ Ex. 3, at 14.

Petitioner refers to Resident #1's second elopement as a "single episode of continued noncompliance." In fact, the noncompliance - which was the facility failure to do everything in its power to prevent accidents - was ongoing throughout this period and Resident #1's elopement was the predictable result of the noncompliance. ⁽⁹⁾ As the Board has repeatedly held,

any deficiency that has the potential for more than minimal harm is necessarily indicative of problems in the facility that need to be corrected. Lake City Extended Care Center, DAB No. 1658, at 14 (1998). [Where] the incidents in question have the potential for more than minimal harm . . . the facility was out of compliance "from the date of the completion of the survey in which this incident was cited until the date of the resurvey in which substantial compliance was established." Emphasis added; id. at 14-15. Substantial compliance means not only that the surveyors found no other incidents, but also that the facility has implemented a plan of correction designed to assure that no such incidents occur in the future.

Barn Hill Care Center, DAB No. 1848, at 12-13 (2002), quoting Barn Hill Care Center, DAB CR902 (2002).

Although the facility does not claim that it was in substantial compliance with the quality of care requirements, it argues that Resident #1 was not in any danger. Of course, actual harm is not required to sustain a finding of substantial noncompliance. 42 C.F.R. § 488.301 ("Substantial compliance means . . . deficiencies pose no greater risk . . . than the potential for causing minimal harm."); see Lake City Extended Care Center, DAB No. 1658, at 14 (1998). Moreover, I reject the facility contention that, because his absence was noted and he was quickly located, uninjured, Resident #1 was not endangered when he successfully eloped for the second time. Resident #1 suffered from serious dementia and was not safe when unsupervised. The street he crossed may not have been well-traveled, but he could not safely cross any street. Moreover, although at times progress notes describe his gait as steady, other notes describe him as unsteady, with weak gait and poor balance, requiring 1-2 person assist for transfers and walking, and a wheel chair for going any distance. P. SJ Ex. 3, at 1, 2; P. SJ Ex. 2, at 1. The day before his first elopement he fell and suffered an abrasion to his forehead. P. SJ Ex. 2, at 2; P. SJ Ex. 3, at 2. With increasing frequency, he was administered Ativan, a drug that apparently did not decrease his exit-seeking behavior, but exacerbated his problems with balance. Yet, he regularly moved furniture, climbed up on furniture, and attempted to climb out windows. In light of his behavior, I do not consider adequate the facility response. It has not demonstrated that it was "doing everything in its power to prevent accidents." The facility was therefore not in substantial compliance with program requirements.

2. CMS had the authority under 42 C.F.R. § 488.430 to impose a per instance CMP, and its decision to exercise that authority is not reviewable. ⁽¹⁰⁾

The regulations provide that when an administrative law judge (ALJ) finds that the basis for imposing a CMP exists, as specified in 42 C.F.R. § 488.430, the ALJ may not review the discretion of CMS to impose a CMP. 42 C.F.R. § 488.438(e). Under 42 C.F.R. § 488.430, CMS may impose a CMP for each instance that a facility is not in substantial compliance, regardless of whether the deficiencies constitute immediate jeopardy. The facility may not appeal CMS's choice of remedy. 42 C.F.R. § 488.408(g)(2). Thus, because I find that the facility was not in substantial compliance, CMS had a basis for imposing a CMP. I have no authority to review CMS's exercise of its discretion to impose that remedy nor its selection of remedy.

3. Inasmuch as the amount of a per instance CMP must be at least $1,000, I must sustain the amount of the CMP.

When CMS imposes a CMP for an instance of noncompliance, the penalty must be in the range of $1,000 to $10,000 per instance. 42 C.F.R. § 488.438(a)(2). Although I generally have the authority to review the amount of a CMP (42 C.F.R. § 488.438(e)), where, as here, CMS imposes a penalty amount that is the minimum, I must sustain that determination.

4. Even if I had the authority to review CMS's decision to impose a CMP, Petitioner was not entitled to an opportunity to correct.

As noted above, Petitioner does not claim that, even as late as the second survey, it was doing "everything in its power" to prevent an elopement or other mishap. Instead, Petitioner argues that because, after the first survey, the State Agency gave it a November 10, 2000 deadline for correcting its quality of care deficiencies (42 C.F.R. § 483.25(h)), CMS may not impose a penalty "for the exact same outcome initially resulting in non-compliance [i.e. Resident #1's elopement] prior to the expiration of the window of opportunity to correct." P. Memorandum in Support of its Motion for Summary Judgment at 8, 13. Petitioner's argument fails for many reasons. I cite here two of the more obvious.

First, a facility that is not in substantial compliance is not entitled to an opportunity to correct. Under certain circumstances, CMS might opt to allow a facility an opportunity to correct prior to imposing a remedy, but no provision in the statute or regulations guarantees such an opportunity. See 59 Fed. Reg. 56,171 (Nov. 10, 1994) ("[N]either the Act nor the Constitution require that providers have the opportunity to correct deficiencies before sanctions are imposed."). See also Beechwood Sanitarium, DAB No. 1824, at 15 (2002). Petitioner seems to concede this well-settled point, but then, inconsistently, suggests that it had the right to continued noncompliance without penalty until November 10, 2000. Pointing to provisions in the State Operations Manual regarding plans of correction, Petitioner points out the obvious fact that a seriously deficient facility cannot immediately achieve compliance, and argues that there would be no need for such provisions as corrective action dates if all facilities were required to be in compliance immediately. P. Reply Memorandum in Support of its Motion for Summary Judgment at 7. Petitioner seriously misunderstands a basic requirement for program participation: A facility MUST be in substantial compliance with program requirements at all times. A noncompliant facility is subject to sanction, and must correct its deficiencies or face termination.

A second obvious problem with Petitioner's position is that CMS, and not the State Agency, determines whether a penalty will be imposed. The Medicare statute reflects Congress' explicit intent that the Secretary bear ultimate responsibility for monitoring facility compliance with Medicare requirements. Act, section 1819(f) ("It is the duty and responsibility of the Secretary to assure that requirements which govern the provision of care in skilled nursing facilities under this title, and the enforcement of such requirements are adequate . . . "). In its letter, the State Agency repeatedly refers to its "recommending" actions to CMS. CMS is not bound to accept the State Agency's recommendations. Petitioner provides no authority (or logical argument) as to why CMS would be precluded from exercising its authority to impose a penalty.

CONCLUSION

Petitioner does not seriously dispute that it was out of substantial compliance with program requirements from October 6, 2000, and that its noncompliance continued through the time of the November 1, 2000 survey. CMS therefore had a basis for imposing a remedy. I have no authority to review its decision to do so nor its selection of remedy. CMS opted to impose a per instance CMP. Because it imposed the minimum amount for a per instance CMP ($1,000), I must also sustain the amount of the CMP.

Carolyn Cozad Hughes

Administrative Law Judge

1. The Health Care Financing Administration has been renamed the Centers for Medicare & Medicaid Services.

2. By electronic mail dated May 13, 2003, CMS stated that it "join[ed] in the Amended Stipulations filed by Petitioner." Moreover, CMS refers to them in its own submission. CMS's Memorandum of Law in Response to Petitioner's Motion for Summary Judgment and in Support of its Motion for Summary Judgment at 5, n.2.

3. As part of its general prehearing submissions, Petitioner earlier submitted proposed exhibits which it numbered 1 through 33. I refer to the documents specifically supporting the parties' motions for summary judgment as "P. SJ Ex." and "CMS SJ Ex." to avoid confusion with those other documents that have been proposed for submission, but are not offered or admitted into evidence in connection with these motions for summary judgment so are not contained in the record file of the case.

4. Petitioner disputes CMS's conclusion, following the second survey, that the facility was out of compliance with 42 C.F.R. § 483.20(k) (Resident Assessment, Tag F-279). See P. Motion for Summary Judgment ¶ 13. However, nowhere in its submissions does it challenge CMS's determination that it was out of compliance with 42 C.F.R. § 483.25(h) (Quality of Care, Tag F-324). Nor does Petitioner argue that it was in substantial compliance notwithstanding its failure to comply with the quality of care requirements.

5. Initially the plan read "allow to wander . . ." but at some point, probably November 1, 2000, the word "wander" was crossed out and "ambulate" was written in.

6. Someone later added "and document." Again, this appears to have been added on November 1, 2000. The record before me does not include an explanation of the "facility protocol."

7. Nor was Resident #1 the only resident of concern. Of the 10 residents that the facility identified as "wanderers," the surveyors identified concerns about three, including Resident #1. P. Ex. 6, at 1, 3-5. Record review found that other residents had, through persistence, successfully managed to elope from the facility. On the evening of August 23, 2000, Resident #2 was found across the street from the facility talking to a construction worker, staff having been alerted of her departure by another resident. On March 24, 2000, Resident #3 left the facility and walked to the corner gas station. Two nurses drove over and picked her up, "visibly shaken and upset." P. Ex. 6, at 5. The parties have not discussed the merits or impact of these findings and I do not rely on them in reaching this decision.

8. I refer to individuals by letter and to Resident #1 as Resident #1 to avoid using resident's names.

9. Petitioner's confusion may be due to CMS's decision to impose a per instance, rather than a per diem, CMP. In fact, a $1,000 per instance CMP is an extremely minimal penalty for ongoing noncompliance of this duration and severity.

10. Although remarkably, CMS did not raise this threshold issue, I have the authority to reach this conclusion in my own motion. See, e.g., 42 C.F.R. § 498.70. Nevertheless, I encourage CMS counsel to familiarize herself with her agency's regulation.