SUBJECT:

Capitol Hill Healthcare Center,

Petitioner,

Centers for Medicare & Medicaid

DECISION

I enter summary disposition in favor of the Centers for Medicare & Medicaid Services (CMS) and against Petitioner, Capital Hill Health and Rehabilitation Center. I affirm the imposition of remedies against Petitioner consisting of civil money penalties of $3,050 per day for each day of a period that began on June 14, 2002 and which ran through June 21, 2002 and $100 per day for each day of a period that began on June 22, 2002 and which ran through August 2, 2002.

I. Background

Petitioner is a skilled nursing facility that is located in Montgomery, Alabama. Petitioner participates in the Medicare program. Its participation is governed by sections 1819 and 1866 of the Social Security Act and by regulations at 42 C.F.R. Parts 483 and 488.

The Alabama Department of Public Health conducted a survey of Petitioner's facility in June 2002 (June 2002 survey) in order to determine whether Petitioner was complying substantially with Medicare participation requirements. The surveyors concluded that Petitioner was not complying substantially with several requirements. In one instance, the surveyors determined that Petitioner's noncompliance was so severe as to put residents of Petitioner's facility at immediate jeopardy. The surveyors subsequently determined that Petitioner abated its immediate jeopardy level deficiency on June 22, 2002 and that Petitioner regained substantial compliance with all participation requirements on August 3, 2002.

CMS accepted the surveyors' findings and determined to impose remedies against Petitioner. These remedies consisted of: civil money penalties of $3,050 per day for each day of a period which ran from June 14 through June 21, 2002; and additional penalties of $100 per day for each day of a period which ran from June 22 though August 22, 2002.

Petitioner requested a hearing in order to challenge CMS' determinations and the case was assigned to me for a hearing and a decision. I scheduled a hearing to take place in Montgomery, Alabama on August 28, 2002. However, prior to the hearing, CMS moved for summary disposition and Petitioner replied to the motion. I reviewed the parties' fact allegations and arguments and concluded that there were no disputed issues of material fact. I canceled the hearing but afforded each party the opportunity to file a closing brief. ⁽¹⁾

CMS filed a total of 21 proposed exhibits (CMS Ex. 1 - CMS Ex. 21) to support its contentions of fact. Petitioner filed 21 proposed exhibits as well (P. Ex. 1 - P. Ex. 21). Neither party has objected to my receiving any of these proposed exhibits into the record of this case and, so, I receive CMS Ex. 1 - CMS Ex. 21 and P. Ex. 1 - P. Ex. 21 into the record. ⁽²⁾

II. Issues, findings of fact and conclusions of law

A. Issues

The surveyors who conducted the June 2002 survey determined that Petitioner was not complying substantially with five distinct participation requirements. Petitioner's alleged noncompliance is described in the June 2002 survey report at Tags 225, 272, 279, 282, and 324. CMS Ex. 4. The surveyors determined Petitioner's alleged noncompliance at Tag 324 to be at the immediate jeopardy level. Id. All other alleged deficiencies, albeit allegedly substantial, were not found to be so egregious as to pose immediate jeopardy to Petitioner's residents. Id.

Petitioner has not filed arguments or evidence to challenge any of the alleged deficiencies except the deficiencies that are cited at Tags 279 and 324 of the report of the June 2002 survey. Based on the parties allegations of fact and arguments, I find that the issues in this case are as follows:

1. Did Petitioner fail to comply substantially with the requirements of 42 C.F.R. § 483.25(h)(2) as is alleged at Tag 324 of the June 2002 survey report?

2. Was CMS' determination that Petitioner's noncompliance with the requirements of 42 C.F.R. § 483.25(h)(2) placed Petitioner's residents at immediate jeopardy clearly erroneous?

3. Did an immediate jeopardy level deficiency persist at Petitioner's facility during the period which ran from June 14 through June 21, 2002?

4. Are civil money penalties of $3,050 per day for each day of the period that ran from June 14, 2002 through June 21, 2002 reasonable?

5. Did Petitioner fail to comply substantially with other participation requirements during the period which ran from June 22, 2002 through August 2, 2002?

6. Are civil money penalties of $100 per day for each day of the period which ran from June 22, 2002 through August 2, 2002 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. Petitioner failed to comply substantially with the requirements of 42 C.F.R. § 483.25(h)(2) as is alleged at Tag 324 of the June 2002 survey report.

At Tag 324 of the June 2002 survey report the surveyors alleged that Petitioner failed to comply with the requirements of 42 C.F.R. § 483.25(h)(2). The regulation requires that each resident of a facility receives adequate supervision and assistance devices to prevent accidents.

The regulation has been the subject of much administrative litigation and the compliance standards imposed by the regulation are well-established. It has been interpreted as not imposing a strict liability standard on a facility. A facility is not responsible for preventing accidents that are unforeseeable. However, a facility must take all steps within its power to prevent residents from sustaining accidents that are reasonably foreseeable. Woodstock Care Center, DAB No. 1726 (2000). A facility must provide supervision and assistance devices to protect against hazards that it knows about, but also, to protect against hazards that it should know about. JFK Hartwick at Edison Estates, DAB CR840 (2001).

CMS asserts the following facts to be undisputed and to establish a prima facie case of noncompliance by Petitioner with the requirements of 42 C.F.R. § 483.25(h)(2):

• Resident # 1 was admitted to Petitioner's facility on May 3, 2002 with diagnoses including Alzheimer's disease, dementia with delusions, and depression. CMS Ex. 7, at 3. The resident had a long history of trying to elope from nursing care. She had attempted to elope from her residence at another nursing home on at least seventeen occasions. CMS Ex. 17, at 1.

• Petitioner's staff assessed Resident # 1 to have short and long-term memory problems and moderately impaired cognitive skills. CMS Ex. 7, at 50. The resident was delusional, believing that a stuffed monkey she carried with her was her "baby." Id. at 27 - 28, 30. However, the resident was physically independent and was well-groomed. Id. at 16; CMS Ex. 11, at 22, 37, 57.

• Petitioner housed Resident # 1 on its second floor dementia care unit. CMS Ex. 7, at 31. During the period between May 3 and June 14, 2002, Petitioner's staff observed that the resident was confused, that she manifested continuous wandering behavior, and that she expressed a desire to leave Petitioner's facility. Id. at 20 - 23.

• Petitioner's staff completed a comprehensive care plan for the resident on May 23, 2002. CMS Ex. 7, at 41. The plan cited the resident as being at risk for elopement. It contained interventions which included redirecting the resident away from exits and informing staff in units other than the dementia unit about the resident's potential for elopement. Id.

• On the evening of June 14, 2002, at 7:08 p.m., a fire alarm sounded at Petitioner's facility. The alarm disengaged the magnetic locks on Petitioner's facility's exterior doors. Once the locks were disengaged, they no longer functioned to prevent a person from gaining access to the exterior of the facility through the exterior doors.

• As of June 14, 2002, Petitioner did not have a policy or procedure in place to conduct a census of its resident population after a fire alarm had sounded. P. Ex. 20.

• After the fire alarm sounded on June 14, 2002, Petitioner's staff did not conduct a census to determine whether all of Petitioner's residents remained on the premises of Petitioner's facility. CMS Ex.11, at 14 - 15, 32, 55. Members of Petitioner's staff were not aware on June 14, 2002 that the fire alarm automatically disengaged the magnetic locks on the facility's exterior doors. Id. at 35, 44.

• Resident # 1 eloped from Petitioner's facility on the evening of June 14, 2002 at some point in time after the fire alarm sounded. At approximately 9:10 on the evening of June 14, 2002, the local police department responded to a call from an individual concerning an attempt by Resident # 1 to enter that person's home. CMS Ex. 12, at 5. That individual's home is approximately 1.7 miles from Petitioner's facility. CMS Ex. 21.

• At some point between about 7:20 and 8:55 p.m. on the evening of June 14, 2002, an off-duty certified nursing assisted phoned Petitioner's staff and advised staff that she was observing an elderly individual who resembled a resident of Petitioner's dementia unit wandering the streets of downtown Montgomery, Alabama. CMS Ex. 11, at 17; CMS Ex. 21. The staff member who received the call asked the certified nursing assistant who was responsible for providing care to Resident # 1 whether all of the residents who were assigned to her were present. CMS Ex. 11, at 41; CMS Ex. 12, at 22. The nursing assistant averred that she was unaware of any missing residents. However, she did not conduct a census of the residents to whom she was responsible for providing care nor did she search specifically for Resident # 1. CMS Ex.11, at 54.

• It was not until about 10:30 on the evening of June 14, 2002 that Petitioner's staff initiated missing resident procedures after a certified nursing assistant reported that she was unable to locate Resident # 1. CMS Ex. 12, at 24.

I agree with CMS that these facts, if not refuted by Petitioner, establish a prima facie case of noncompliance with the regulation. They establish that Petitioner knew that it had at least one resident, Resident # 1, who was an extreme risk for elopement. The resident was demented and confused and more or less continuously expressed the desire to leave Petitioner's facility. The resident had attempted to elope on numerous occasions from the facility at which she previously resided. These facts, in and of themselves, put Petitioner on notice that it needed to put into place and vigorously enforce procedures designed to protect against elopements and to detect any attempts at elopement.

Petitioner also knew or should have known that a potentially serious flaw existed in its security. Petitioner had installed a fire alarm system that disengaged the magnetic locks on its exterior doors when a fire alarm sounded. As a consequence, the doors that were designed to protect against elopements were deactivated by a fire alarm, thereby giving residents access to the exterior of Petitioner's facility.

In light of that, Petitioner should have implemented procedures that would have ensured that all of its residents were accounted for after a fire alarm sounded. At a minimum, such procedures should have consisted of taking a census of all of Petitioner's residents immediately after a fire alarm sounded and immediately initiating search procedures for any residents who were missing.

However, Petitioner failed to have such a procedure in place and failed to take a census of its residents on the evening of June 14, after a fire alarm sounded. As a consequence, Petitioner's staff was unaware that Resident # 1 had eloped.

Furthermore, Petitioner should have put into place emergency procedures to deal with any reports of residents wandering outside of Petitioner's facility. Whatever procedures it might have had in place failed on the night of June 14, when Petitioner's staff failed to respond appropriately to a report that a person who resembled one of its residents was wandering in downtown Montgomery, Alabama.

The facts averred by CMS show that, as a consequence of Petitioner's omissions, Resident # 1 not only eloped Petitioner's facility but was away from Petitioner's premises for approximately three hours before her absence was detected by Petitioner's staff. This constitutes a prima facie case for noncompliance with the requirements of 42 C.F.R. § 483.25(h)(2) because it establishes a systemic failure by Petitioner to implement procedures to protect against and detect elopements.

Petitioner does not dispute the facts on which CMS relies and which I recite above. It asserts, however, that these undisputed facts do not establish a prima facie case of noncompliance with the regulation and it offers several fact contentions and arguments to support its overall assertion. I disagree with Petitioner's contentions and arguments and its overall assertions for the following reasons.

First, Petitioner contends that, in fact, it had multiple policies and procedures in place as of June 14, 2002 which were designed to prevent elopements. Petitioner's Opposition to Respondent's Motion for Summary Disposition (Petitioner's opposition) at 7 - 10. These included magnetic door locks on all exit doors that can only be opened by electronic buzzer or badge-swipe, video camera monitors on the two primary exit doors to Petitioner's facility, nighttime surveillance of the exterior of Petitioner's facility, and a wanderguard system. Id. at 7; P. Ex. 12; P. Ex. 20. Petitioner contends also that it had numerous policies and procedures that were designed to sure that residents did not elope from its facility. These policies and procedures include policies governing wandering and missing residents and the sounding of fire alarms. Petitioner's opposition at 8; P. Ex. 18; CMS Ex. 13. Furthermore, Petitioner contends that it had thoroughly trained its staff in policies and procedures that were intended to safeguard against elopements. Petitioner's opposition at 11 - 13.

Petitioner argues that these devices, policies and procedures, and the training that it gave to its staff are proof that it was attentive to the needs of its residents and that it took every reasonable measure to guard against foreseeable events. It contends that Resident # 1's elopement was an unforeseeable event because it came about as a consequence of human error by members of Petitioner's staff that Petitioner could not have been expected to anticipate.

I am not persuaded by these facts and arguments. I do not deny Petitioner's efforts at securing its facility from possible elopements. Nor do I disagree that human error played a role in Petitioner's staff's failure to realize that Resident # 1 was missing on the evening of June 14 for nearly three hours after the fire alarm sounded. But, the undisputed facts of this case also show a systemic failure by Petitioner to protect its residents against elopement. Petitioner knew or should have known that a fire alarm would inactivate one of its principal protections against elopement, the magnetically operated exterior doors. But, it had no system in place to ensure that this security system would be reactivated immediately after a fire alarm. Nor did it have a system in place to ensure the presence of its residents after a fire alarm. Petitioner thus was vulnerable to an elopement or elopements in the wake of a fire alarm.

The undisputed facts underscore this vulnerability. On the evening of June 14, 2002, Petitioner did not immediately reactivate the magnetic doors after the fire alarm had sounded. Its staff did not conduct a census of its residents after the fire alarm had inactivated the magnetic doors and, consequently, the staff was unaware for up to three hours of the resident's absence while the resident wandered through the streets of Montgomery, Alabama.

Petitioner also argues that it had implemented multiple interventions for the supervision of Resident # 1. Petitioner's opposition at 10 -11. But, in fact, the elopement of this resident does not relate to a failure to implement the resident's care plan. Rather, the elopement occurred because of a systemic and foreseeable flaw in Petitioner's security, the failure to conduct a resident census after the fire alarm sounded on June 14, 2002.

The systemic failure of Petitioner's security system on June 14, 2002 clearly was a substantial failure to provide Petitioner's residents with required supervision. Residents were housed at Petitioner's facility precisely because they were vulnerable individuals. The fact that one of them could get away from the facility, undetected, for up to three hours, speaks for itself in terms of the potential for harm to that individual.

2. Petitioner did not prove CMS' determination that Petitioner's noncompliance with the requirements of 42 C.F.R. § 483.25(h)(2) placed Petitioner's residents at immediate jeopardy to be clearly erroneous.

"Immediate jeopardy" is defined at 42 C.F.R. § 488.301 to mean:

a situation in which the provider's noncompliance with one or more requirements of participation has caused, or is likely to cause, serious injury, harm, impairment, or death to a resident.

The burden is on the provider to prove a determination by CMS of an immediate jeopardy level deficiency is clearly erroneous.

Here, Petitioner has not proven to be clearly erroneous CMS' determination that Petitioner's failure to comply with the requirements of 42 C.F.R. § 483.25(h)(2) placed residents at immediate jeopardy. The likelihood of serious harm to Resident # 1 during the period of her elopement is evident from the undisputed facts of this case. The resident was extremely vulnerable to harm due to her dementia and lack of judgment. The fact that she was not harmed, despite wandering urban streets at night, does not in any respect detract from the probability of harm which existed after she eloped.

3. An immediate jeopardy level deficiency persisted at Petitioner's facility during the period from June 14 through June 21, 2002.

The undisputed material facts show that Petitioner did not correct its immediate jeopardy level failure to comply with the requirements of 42 C.F.R. § 483.25(h)(2) before June 22, 2002. Petitioner's Administrator, Hugh Davis, supplied an affidavit in which he detailed the corrective actions that Petitioner undertook to address the problems leading to Resident # 1's elopement on the night of June 14, 2002. P. Ex. 20. It is apparent from Mr. Davis' affidavit that these corrections were not completed prior to June 22. Id. at 8 - 10.

4. Civil money penalties of $3,050 per day for the period from June 14, 2002 through June 21, 2002 are reasonable.

CMS determined to impose civil money penalties of $3,050 per day against Petitioner for each day of the period that ran from June 14 through June 21, 2002. I find the penalties to be reasonable as a matter of law because they are the minimum civil money penalties that may be imposed for an immediate jeopardy level deficiency. 42 C.F.R. § 488.438(a)(1)(i).

5. Petitioner failed to comply substantially with other participation requirements during the period from June 22, 2002 through August 2, 2002.

As I discuss above at Part II.A. of this decision, the report of the June 2002 survey alleges that Petitioner manifested a total of five failures to comply substantially with Medicare participation requirements. These alleged failures are cited at Tags 225, 272, 279, 282, and 324 of the survey report. CMS Ex. 4. Petitioner contested only the deficiency findings that were made at Tags 279 and 324. ⁽³⁾ The findings of noncompliance that were made at Tags 225, 272, and 282 are administratively final inasmuch as Petitioner did not contest them.

Nor has Petitioner challenged the duration of its noncompliance as alleged at Tags 225, 272, and 282. Indeed, in the plan of correction that Petitioner provided to show how it would correct these deficiencies, Petitioner averred that it would correct them by August 2, 2002, the date that CMS ultimately determined as the date when Petitioner attained substantial compliance. CMS Ex. 4, at 1 - 3. The determination that Petitioner was noncompliant with at least the requirements that are cited at Tags 225, 272, and 282 through August 2, 2002 is administratively final in light of Petitioner's failure to challenge that determination.

6. Civil money penalties of $100 per day for the period from June 22, 2002 through August 2, 2002 are reasonable.

CMS determined to impose civil money penalties against Petitioner of $100 per day for each day of the period which ran from June 22, 2002 through August 2, 2002 based on CMS' determination that non-immediate jeopardy level deficiencies persisted throughout this period. At Finding 5, above, I sustain CMS' determination that Petitioner manifested at least three non-immediate jeopardy level deficiencies during the June 22 - August 2, 2002 period. ⁽⁴⁾

Regulations which govern the imposition of civil money penalties provide for penalties ranging from $50 - $3,000 per day for deficiencies that are substantial but not at the immediate jeopardy level of scope and severity. 42 C.F.R. § 488.438(a)(1)(ii). The regulations also provide that penalty amounts falling within this range are to be determined based on consideration of factors which include: the scope and severity of deficiencies; a facility's compliance history; its culpability; and its financial ability to pay civil money penalties. 42 C.F.R. §§ 488.438(f)(1) - (4); § 488.404 (incorporated by reference into 42 C.F.R. § 488.438(f)(3)).

CMS has not offered evidence to show that any factor other than the seriousness of the non-immediate jeopardy level deficiencies should be a basis for deciding the penalty amounts. Petitioner has offered neither evidence nor argument to challenge the $100 per day penalties that CMS determined to impose for the non-immediate jeopardy level deficiencies.

I decide that $100 per day is a reasonable penalty amount to remedy the three non-immediate jeopardy level deficiencies that persisted at Petitioner's facility from June 22 through August 2, 2002. I base this finding entirely on the seriousness of these three deficiencies. These are low-level deficiencies, and the penalty amounts reflect that fact. $100 per day is a minimal civil money penalty amount, approaching the minimum amount that may be imposed as civil money penalties, and constituting only about three percent of the maximum amount that may be imposed for non-immediate jeopardy level deficiencies.

As I note above, it is unnecessary that I make findings concerning Petitioner's alleged noncompliance at Tag 279 of the June 2002 survey report in order to sustain civil money penalties of $100 per day. The penalty amount of $100 per day is justified by the presence of the three non-immediate jeopardy level deficiencies that Petitioner did not challenge.

Steven T. Kessel

Administrative Law Judge

1. I advised the parties that either party could assert in its closing brief that there remained a need to present evidence in-person. Neither party made that argument. I note that the evidence presented by each party in support of its case includes the written direct testimony, made under oath, of that party's witnesses.

2. Petitioner filed a motion to substitute two exhibits, P. Ex. 20 and P. Ex. 21, with notarized versions of those exhibits. I am accepting the substituted P. Ex. 20 and P. Ex. 21 into the record of this case.

3. At Finding 1 I sustain the findings of noncompliance that were made at Tag 324.

4. I make no findings in this decision as to whether Petitioner was deficient as alleged at Tag 279 of the report of the June 2002 survey. It is unnecessary that I make such findings for reasons which I explain below.