I uphold the Centers for Medicare & Medicaid Services' (CMS) determination to impose a civil money penalty against Hillcrest North (Petitioner or facility). Petitioner failed to comply substantially with the requirement for participation in Medicare that each resident receive adequate supervision and assistance devices to prevent accidents. 42 C.F.R. § 483.25(h)(2) (this requirement is referred to by CMS as F-Tag 324 (F-324)). Petitioner failed also to comply substantially with the requirement that nurses' stations be equipped to receive resident calls through a communication system from resident rooms and toilet and bathing facilities. 42 C.F.R. § 483.70(f) (this requirement is referred to by CMS as F-Tag 463 (F-463)). CMS determined that Petitioner's deficiencies constituted immediate jeopardy. CMS assessed the civil money penalty in the amount of $3,050 per day for 34 days from August 4, 2000 through September 6, 2000. I decide that CMS's determination that the deficiencies constituted immediate jeopardy was not clearly erroneous. I decide that the amount of the civil money penalty is reasonable and the duration appropriate.

I. Procedural History

Pursuant to CMS's authority to enforce compliance with the participation requirements for Medicare and Medicaid, the Tennessee State Survey agency, the State survey agency (surveyors), conducted a survey that concluded August 16, 2000. CMS Exhibit (CMS Ex.) 12. In a letter to the facility dated August 21, 2000, CMS notified the facility of CMS's determination that the facility failed to substantially comply with program requirements. CMS imposed a per day civil money penalty of $3,050 for the deficiencies cited as F-324 and F-463. CMS Ex. 12. The surveyors revisited the facility on September 7, 2000; and as a result of that revisit, CMS deemed Petitioner in substantial compliance as of September 7, 2000. Petitioner's brief at 2; CMS's brief at v.

Petitioner requested review of CMS's determination by submitting a request for hearing dated October 20, 2000. I convened a hearing at Knoxville, Tennessee on March 31, 2003, and I concluded the hearing on April 1, 2003. At the hearing, I admitted CMS's Exhibits 1-38 and Petitioner's Exhibits (P. Exs.) 1-41 into the record. Hearing Transcript (Tr.) 18. Subsequent to the hearing, on June 30, 2003, I received CMS's brief. I received Petitioner's brief on August 5, 2003.

II. Issues, Authority, Findings, Conclusions and Analysis

The issues are: (1) Whether Petitioner substantially complied with the participation requirements cited at the August 16, 2000 survey; (2) Whether, if Petitioner did not substantially comply with participation requirements, CMS's determination that the failure to comply constituted immediate jeopardy was clearly erroneous; and (3) Whether, if Petitioner failed to substantially comply, the amount of the civil money penalty is reasonable.

CMS cited numerous deficiencies in the Statement of Deficiencies (see CMS Ex. 12) which I do not address in this decision. Two of the deficiencies cited under F-tags 324 and 463, respectively, are sufficient to support the remedy imposed by CMS. It is not necessary for me to decide whether Petitioner was compliant with the deficiencies alleged under the remaining F-tags noted in the Statement of Deficiencies because the amount of the civil money penalty would not be effected if I concluded Petitioner substantially complied with any of those. I exercise my discretion, therefore, to limit my decision to the deficiencies alleged under F-324 and F-463 only. My judgment to so limit the decision is consistent with the holding in Beechwood Sanitarium, DAB No. 1824 (2002). In Beechwood, an appellate panel of the Departmental Appeals Board held that the administrative law judge's (ALJ) decision not to make findings on all the deficiencies disputed by the petitioner was an exercise of judicial economy that is within an ALJ's discretion. The ALJ in that case chose to discuss several deficiencies that he determined to be persuasively established. But, he chose to leave unaddressed several other alleged deficiencies that had been appealed, and about which the parties had presented evidence and argument. The ALJ determined that based on section 1866(b)(2) of the Social Security Act (Act), and 42 C.F.R. § 488.456(b)(1)(i), he needed only make findings on enough of the deficiencies to support the remedy because the Act and the regulation authorize a remedy when a provider is out of compliance with even a single requirement. Although, unlike the instant matter, the remedies at issue in Beechwood were solely denial of payment for new admissions and termination of the provider agreement, it is logical to extend the principle of judicial economy espoused in Beechwood to appeals of civil money penalties. The relevant regulation at 42 C.F.R. § 488.430 provides that CMS or the State may impose civil money penalties for days or instances when a participating facility does not comply substantially with "one or more participation requirements." Thus, I need only make findings and conclusions concerning a sufficient number of the F-tags to support the amount of the civil money penalty in this case.

Title XVIII (Medicare) and Title XIX (Medicaid) of the Act (42 U.S.C. §§ 301-1397jj) set forth requirements for long-term care facilities, both skilled nursing facilities and nursing facilities, participating in the Medicare and Medicaid programs, and authorize the Secretary of Health and Human Services (Secretary) to promulgate regulations implementing the statutory provisions. Act, sections 1819, 1919. The Secretary's regulations governing skilled nursing facility and nursing facility participation in the Medicare program are found at 42 C.F.R. Part 483.

If CMS finds 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 civil money penalties. See Act, section 1819(h). CMS is authorized to assess civil money penalties when a facility is not in compliance with one or more participation requirements. 42 C.F.R. § 488.430(a). The civil money penalties range from $50 to $3,000 per day for deficiencies that do not constitute immediate jeopardy, but either cause actual harm, or cause no actual harm, but have the potential for causing more than minimal harm. The civil money penalties range from $3,050 to $10,000 per day for deficiencies which constitute immediate jeopardy. 42 C.F.R. § 488.438(a)(i) and (ii).

The purpose of the authorized remedies is to "ensure prompt compliance with program requirements." 42 C.F.R. § 488.402(a). The remedies are applied in light of the scope and severity of the noncompliance found during a survey. In setting the amount of the civil money penalties, CMS considers: (1) the facility's history of noncompliance; (2) the facility's financial condition; (3) the factors specified in 42 C.F.R. § 488.404; and (4) the facility's degree of culpability, which includes neglect, indifference, or disregard for resident care, comfort, or safety. The absence of culpability is not a mitigating factor. 42 C.F.R. § 488.438(f). The factors found at 42 C.F.R. § 488.404 include: (1) the scope and severity of the deficiency; (2) the relationship of the deficiency to other deficiencies resulting in noncompliance; and (3) the facility's prior history of noncompliance in general, specifically with reference to the cited deficiencies.

When CMS imposes an enforcement remedy on a skilled nursing facility or nursing facility, the facility has a right to appeal the "certification of noncompliance leading to an enforcement remedy." 42 C.F.R. § 488.408(g)(1); see also 42 C.F.R. §§ 488.330(e) and 498.3. However, a facility may not appeal the choice of remedies by CMS or the factors CMS considered when choosing remedies. 42 C.F.R. § 488.408(g)(2). A facility may only challenge the scope and severity level of noncompliance found by CMS if a successful challenge would affect the amount of the civil money penalty CMS could collect or affect the facility's nurse's aide training program. 42 C.F.R. § 498.3(b)(14).

CMS's determination regarding the level of noncompliance must be upheld unless clearly erroneous. 42 C.F.R. § 498.60(c)(2). This includes instances where CMS has determined that the level of noncompliance is at the immediate jeopardy level. Woodstock Care Center, DAB No. 1726, at 9, 38 (2000).

In this case the following program requirements are at issue:

CMS has the initial burden of coming forward with evidence on any disputed facts showing that the provider was not in substantial compliance with Medicare participation requirements. However, the provider bears the ultimate burden of persuasion that it was in substantial compliance with those requirements. See South Valley Health Care Center, DAB No. 1691 (1999), aff'd, South Valley Health Care Center v. HCFA, 223 F.3d 1221 (10^th Cir. 2000); see, also, Batavia Nursing and Convalescent Center, DAB No. 1904 (2004).

CMS cited the facility under F-324 for failure to comply substantially with the requirement at 42 C.F.R. § 483.25(h)(2) that each resident receive adequate supervision and assistance devices to prevent accidents. CMS determined that the facility had failed in this regard concerning its care of 13 of 40 sampled residents. Some of CMS's findings under F-324 concern allegations of problematic sexual behavior and related allegations that the facility responded inadequately to said behavior. I do not address the sexual-behavior-related allegations under this F-tag. CMS's findings concerning residents' having eloped the facility, and residents' having suffered skin tears and falls are sufficient to uphold CMS's determination that the facility failed to comply substantially with section 483.25(h)(2).

The residents who were noted as not adequately safeguarded from accidents unrelated to the sexual-behavior-related allegations are Residents 2, 3, 4, 12 and 24.

CMS alleged in the Statement of Deficiencies (also referred to as Form-2567 or '2567') that Resident 2 was found outside the building on four occasions in the Fall of 1999 but that Resident 2's treatment plan indicated Resident 2 should not have been permitted to wander beyond the front porch. CMS Ex. 12, at 14. CMS neither produced witnesses to testify about Resident 2's alleged wandering or elopement, nor did CMS address the allegation in its brief or otherwise cite to the record to support its allegation. Taking as true the description in the 2567 that Resident 2 was found "outside" the building, and assuming the 2567 is correct also that Resident 2's treatment plan was that he not be permitted beyond "the front porch," I conclude that CMS failed to present evidence that proves, prima facie, CMS's contention concerning Resident 2 and wandering and/or elopement. The evidence presented by CMS is sufficiently ambiguous to allow for multiple interpretations of the facts, including, for instance, that Resident 2 was supervised by staff who allowed him to set foot on the lawn just off the porch and then redirected him or took other appropriate action to protect him. Strict liability is not the standard by which a facility's conduct in meeting the requirements of participation is judged. Presented with only the facts offered by CMS, I can conclude that Resident 2 was found outside the facility, and I can conclude that his being outside does not require I find also that the facility failed to comply substantially. Thus, I conclude that the allegations concerning Resident 2 being found outside the facility are, without elaboration, not enough to demonstrate that the facility was deficient in some respect, or that there existed the potential for more than minimal harm to Resident 2.

CMS alleged that Resident 3, whose diagnoses included Alzheimer's disease and who the facility assessed as having moderate cognitive impairment, wandered away from the facility on October 10, 1999.

It is undisputed that Resident 3 left the facility on his own on October 10, 1999. The parties differ, however, on what the incident demonstrates about the facility's supervision of the Resident 3. On October 10, 1999, Resident 3's daughter came to visit and took Resident 3 outside to a picnic pavilion on the facility's grounds. Tr. 261; P. Ex. 27. At the end of the visit Resident 3's daughter escorted Resident 3 only as far as the facility's elevator, not all the way back to Resident 3's floor. Resident 3's daughter was apparently assured by Resident 3 that he could make it the rest of the way on his own. P. Ex. 27. Instead of returning to his floor, however, Resident 3 left the facility. Resident 3 apparently decided to walk to his ex-wife's home, which was in the vicinity of the facility, and finding her not at home, Resident 3 began to walk to a nearby shopping mall. He was found by facility staff approximately three miles from the facility at 6:15 p.m. CMS Ex. 12, at 19.

Petitioner suggests that Resident 3's absence was noted during the distribution of medication (see Petitioner's brief at 30-33). CMS has indicated, however, that Resident 3's absence was discovered at supper service. CMS Ex. 12, at 19; CMS's brief at xix. Neither party has offered precise testimony or documentary evidence about whether the facility discovered Resident 3 was absent earlier (during the distribution of medication) or later (when supper was being served). Nevertheless, I need not make any finding concerning those disputed facts because the undisputed facts are sufficient to uphold CMS's determination.

CMS avers that Resident 3's elopement shows that the facility did not have a policy in place to prevent residents' wandering. And, CMS argues, the fact the facility did not know how long Resident 3 was missing demonstrates its inadequate supervision. CMS's brief at xix. Petitioner contends that it should not be faulted for Resident 3's elopement because facility staff reasonably assumed that Resident 3 was with his daughter. Petitioner's brief at 30-33.

Tellingly, Petitioner explains: "after this episode the facility adopted a policy that any resident taken off his floor by family had to sign the resident out and then sign him back in when returned to the floor." Petitioner's brief at 13. This is akin to an admission that there was a reasonable action the facility could have taken, but was lacking from its supervision of residents, Resident 3 in particular. A signing-in-and-out system is an obvious and simple safeguard for keeping track of persons needing supervision. As for Petitioner's suggestion that Resident 3's daughter's role in the incident absolves the facility of responsibility, I am unpersuaded. If Resident 3's daughter were subject to the requirements of participation in Medicare and Medicaid I might uphold CMS's determination to impose a remedy against her for her part in leaving Resident 3 at the elevator instead of making sure he had been returned to the supervision of the staff. Of course Resident 3's daughter is, in this context at least, exactly that: a facility resident's family member, and is not subject to the regulations governing participation in federal health care programs. Thus, the facility will have to bear the responsibility for failing to adequately supervise Resident 3 by itself.

CMS determined also that the facility had failed to adequately safeguard Resident 4 from falling. The parties do not dispute that Resident 4 fell. They dispute only whether the facility's interventions were sufficient.

As indicated in the 2567, CMS noted that facility records show Resident 4 fell 14 times between February and July, 2000; three of the falls resulted in minor injuries. CMS Ex. 12, at 19. CMS indicated that the facility initiated a care plan for Resident 4 on February 9, 2000, but did not update it until July 6, 2000 during which period Resident 4 fell 11 times. CMS Ex. 12, at 19-20. Additionally, CMS noted that Resident 4's medication was adjusted after the period from February 8 to July 7, 2000, but Resident 4 fell three times after the adjustment. CMS Ex. 12, at 20. And, CMS noted in the 2567, although facility staff posted a list of "falls precautions" at the nurses' station and in Resident 4's room on July 6, 2000, the facility did not document whether one of the listed precautions - 15 minute checks - were done. Id.

Petitioner does not dispute that Resident 4 fell, although Petitioner emphasizes that some of the incidents characterized as falls should be considered less serious because Resident 4 slid from a very low bed to the floor. Petitioner's brief at 32. Petitioner argues that the facility was obligated to give Resident 4 physical therapy and encourage him to walk, and thus, the facility could not consider restraining him. Petitioner's brief at 33. Instead, Petitioner argues, the facility provided Resident 4 extensive supervision, reminded Resident 4 to seek assistance (which, Petitioner asserts, Resident 4 refused to do), placed him in a low bed, and gave Resident 4 a lap cushion to remind him to call for assistance. Petitioner's brief at 32-33. Petitioner asserts that Resident 4's care plan goal was to keep him free from injury from falls, and that, because the "numerous incidents" resulted in only two slight injuries, and because there were no other interventions to be done, the facility was complying substantially. See Petitioner's brief at 33.

Petitioner's argument is unpersuasive. Petitioner leaves unanswered the most damning aspect of CMS's allegations: the facility did not update Resident 4's care plan for approximately five months, during which time Resident 4 fell 11 times; and it appears the facility did not check on Resident 4 every 15 minutes as planned for. Moreover, Petitioner's contention that its care choices for Resident 4 were the status quo, or restraint that would interfere with Resident 4's physical therapy and maintenance of his independence, seems an overly narrow characterization of the universe of reasonable interventions for falls. Petitioner mentions four interventions: "extensive supervision," reminding Resident 4 to call for help, a low bed, and a lap cushion to serve as further reminder. While it is laudable and proper for the facility to consider also Resident 4's rehabilitation needs and his independence, do the four named interventions really represent the only reasonable steps that could be taken? Resident 4 fell frequently, so why not provide more extensive supervision; or why not employ a body alarm device, of which, I have learned in previous cases, there are several types? Or, could the facility have attempted to track what times Resident 4 may have been more prone to restlessness or at what times he was more likely to use the restroom and attempt to plan accordingly? I do not say the facility should have done any of these things - I would not presume to offer my opinion of what the appropriate nursing care would have been - I ask these questions to exemplify how Petitioner has failed to persuade me that it had considered all the reasonable possible interventions. The undisputed facts are that Resident 4 fell persistently despite the four interventions the facility employed. The burden Petitioner bears requires that it show it took all reasonable steps to prevent the falls. See Koester Pavilion, DAB No. 1750 (2000); and Woodstock Care Center, DAB No. 1726 (2000). In this context Petitioner's assertion that the four steps it named were the extent of reasonable possible interventions is unpersuasive. I conclude that the facility failed to adequately supervise and provide assistance devices to Resident 4.

CMS alleged that Resident 12 had fallen twice in a three month period and had suffered skin tears seven times between August 1999 and July 2000; and CMS asserted the last of the seven tears required that Resident 12 have sutures put in at the emergency room. CMS Ex. 12, at 21. And, CMS indicated, Petitioner did not make any changes in its care of Resident 12 to prevent more falls and skin tears. Id.

Petitioner acknowledges the falls and skin tears Resident 12 suffered. The essence of Petitioner's argument is that the skin tears and falls were a result of Resident 12's transferring to and from bed, and that in consideration of her need to be independent the facility refrained from using medication and physical restraints to restrain Resident 12. Petitioner's brief at 14-15. Petitioner explains that when Resident 12 eventually suffered an injury (the tear that required sutures be given at the emergency room), the facility reconsidered and implemented restraints. Petitioner's brief at 15. And Petitioner indicates that upon Resident 12's return to the facility from the hospital emergency room, she was required to have her legs elevated for therapeutic reasons. Accordingly, she was seated in a lounge chair. Because Resident 12 was able to get out of the lounge chair, however, the facility used restraints on Resident 12 to keep her in the lounge chair. Id.

Petitioner's characterization of its efforts on behalf of Resident 12 is that faced with her determination and independence, coupled with Resident 12's confusion and fragile skin, and her insistence on transferring in and out of bed without assistance (see, Petitioner's brief at 33-34), the facility did what was reasonably possible while balancing Resident 12's safety and independence. See Petitioner's brief at 14-15. Petitioner argues that when the risk of significant injury had increased, as was evident from the incident in July, 2000 when Resident 12 had to go to the emergency room, the facility acted appropriately by implementing restraints. Petitioner's brief at 34.

The answer Petitioner makes to CMS's charge that the facility failed to update its care plan is that prior to the July 1, 2000 fall, Resident 12 "had been transferring pretty well with only minor skin tears that healed." Petitioner's brief at 15, citing Tr. 430-431. Review of the testimony Petitioner relied on for this assertion, the testimony of the facility's Kathy Rose, R.N., shows that the facility apparently determined that there were no additional measures staff could take to protect Resident 12 from falls and tears. Tr. 430. Nurse Rose testified that padding her wheel chair, posed by counsel as a hypothetical measure, would have been ineffective because the tears were not caused by Resident 12 hitting her wheelchair but by Resident 12 "transferring to the toilet and in and out of the bed and things like that." Tr. 430.

The thrust of Petitioner's argument that it did all it could under the circumstances is not responsive to CMS's assertion that the facility did not make any planned change in care or interventions to prevent further falls or skin injuries. See CMS Ex. 12, at 21. Petitioner has cited no document or any other evidence in the record that demonstrates that the facility changed its approach to attempt to prevent the tears and falls from recurring.

Petitioner has conceded that Resident 12 had extremely fragile skin. So despite Petitioner's characterization of the tears as minor, the risk of injury was high, and the facility was obligated to take all reasonably possible measures to prevent accidents. Yet Petitioner is able to point to only one intervention, encouraging Resident 12, who was described as "confused," to seek assistance with transferring. That no other interventions were attempted until Resident 12 suffered a more serious injury is insufficient. Based on the facility's failure to at least attempt further interventions to protect Resident 12 from falls and tears I conclude that Petitioner failed to comply substantially with section 483.25(h)(2) in its care of Resident 12.

CMS asserted that Resident 24 had suffered 18 documented skin tears between August 13, 1999 and the survey. CMS Ex. 12, at 20. And, CMS indicated in the 2567 that the nursing record showed the skin tears occurred when Resident 24 became agitated and began removing or pushing down her padded bed rails and attempting to get out of bed. Id. CMS avers that there were no interventions indicated in Resident 24's care plan to address the prevention of skin tears. Id.

Petitioner argues that due to Resident 24's age (she was 104 (Petitioner's brief at 34)) and fragile skin, the facility took appropriate action. Petitioner's brief at 34-35. Petitioner asserts that this action was to pad Resident 24's bed rails, apply lotion to her skin and assess her skin for irritation and breakdown. Petitioner asserts that "nutritional supplements can aid skin condition," but notes that Resident 24's advance directive precluded tube feeding, thus apparently barring nutritional supplementation as an intervention. Petitioner implies also that there were no other appropriate steps it could have taken and that Resident 24's skin tears were at an acceptable level given the circumstances. See Petitioner's brief at 35.

While it may be reasonable to expect that a resident of Resident 24's years and condition would have sustained some skin tears, Petitioner has not adequately responded to CMS's allegation. During the period from August, 1999 to the survey completed August 16, 2000, Resident 24 suffered many (18) skin tears. In December 1999, the facility implemented the interventions noted by Petitioner: padding and positioning Resident 24. CMS Ex. 17, at 32; CMS Ex. 12, at 21. The incidents of skin tears persisted in spite of those interventions, yet the facility apparently did nothing to alter or improve its approach. See, CMS Ex. 17, at 32; CMS Ex. 12, at 21. Eventually, given Resident 24's age and fragile state, it may have proved that all interventions to prevent skin tears were futile. But it simply is not enough for Petitioner to implement interventions that do not prevent the injury and stop there without making any effort to modify or improve its approach.

In light of Petitioner's failure to take all reasonably possible steps to supervise and assist Residents 3, 4, 12 and 24 so as to safeguard them from accidents, I conclude that Petitioner failed to comply substantially with the requirement at section 483.25(h)(2) that each resident receive adequate supervision and assistance devices to prevent accidents.

CMS alleged that Petitioner failed to comply with the requirement that nurses' stations be equipped to receive resident calls through a communication system from resident rooms and toilet and bathing facilities as set forth at 42 C.F.R. § 483.70(f). CMS's specific allegations were that seven private resident bathrooms did not have call lights installed, and that five of six call lights installed in a common bath on the facility's third floor were inoperative. CMS Ex. 12, at 26-27.

Petitioner did not dispute these allegations, and argued in response to them that the facility had never been cited for failing to comply with this deficiency in past surveys. Petitioner's brief at 40. In fact, Petitioner appears to agree that it was deficient: "Petitioner does not dispute that the call lights should have been in place and operating." Petitioner's brief at 44. I conclude, therefore, that Petitioner failed to substantially comply with the requirement to have the necessary communication equipment for residents to call staff as provided in section 483.70(f).

Petitioner argues that the incident concerning Resident 3's elopement did not constitute immediate jeopardy because at the time of the survey it had been ten months since the incident. Petitioner's brief at 43-44. Concerning the incidents of falling and skin tears effecting Residents 4, 12 and 24, Petitioner avers that of all the tears and falls only one incident, the skin tear Resident 12 suffered which required a visit to the hospital for stitches, was "significant." Petitioner's brief at 44.

While I agree generally with the principle that a single elopement episode sometime in the relatively distant past does not, barring the episode being the result of an uncorrected systemic problem, demonstrate that immediate jeopardy exists presently, I nevertheless conclude that Petitioner has not shown that CMS's determination was clearly erroneous. Petitioner's characterization of the injuries suffered by Residents 4, 12 and 24 as insignificant notwithstanding, the cumulative effect of the numerous incidents of falls and skin tears the residents suffered, coupled with the long period of time (months) the incidents continued to occur without any adequate response from the facility, persuades me that CMS's immediate jeopardy determination was reasonable. Accordingly, I conclude that CMS's determination was not clearly erroneous.

Petitioner argued also that the facility had substituted for call lights with staff monitoring, thus eliminating the risk. Petitioner's brief at 45. But it is not persuasive that the facility's staff coverage system was as sufficient as Petitioner suggests. Petitioner refers to its system as a "verbal call system." Petitioner's brief at 40. Apparently, as the name suggests, residents were encouraged to call staff orally, "out loud," for an escort. If, for instance, a resident needed to use the bathroom, the resident would call out for help and then a staff member would escort the resident to the bathroom and wait outside the door. Id.

Petitioner's description of this system, however, highlights why call lights are an advantage over a "verbal call system." Staff cannot be expected to hear every voiced call for assistance; indeed, the main advantage of a call light system is that it can be utilized when a resident is unable to voice a call for assistance, or staff are out of ear-shot. In the nursing home setting, were there is a high likelihood some residents will need assistance at all hours of the day and night, it is reasonable to conclude it likely that some residents, perhaps some who staff believed could call for help, will encounter difficulty in the bedroom or bathroom and be unable to call out. Of course without a call light a resident in that situation will be unable to signal for help, and then could be seriously harmed or die as a result. It also may very well be expected that some residents might be embarrassed at calling out in the hearing of their neighbors, and that they might be driven by their modesty or their pride imprudently to attempt self-help or to refrain from calling out at all, with predictable and dangerous consequences. Petitioner has not provided evidence that demonstrates the likelihood of this scenario or a similar one is clear error. I find, therefore, that CMS's determination that the deficient call light system presented immediate jeopardy to residents was not clearly erroneous.

My conclusion that Petitioner failed to comply substantially with F-324 and F-463 provides a basis for the imposition of a civil money penalty. My conclusion that CMS's determination that the deficiencies constituted immediate jeopardy was not clearly erroneous authorizes CMS to impose a reasonable civil money penalty in the range of $3,050 to $10,000 per day. 42 C.F.R. § 488.438(a)(i) and (ii). CMS assessed the civil money penalty in the amount of $3,050 per day. This is the lowest amount authorized by the regulation. Based on my review of the relevant factors provided in 42 C.F.R. §§ 488.438(f) and 488.404, I conclude that the amount is reasonable.

Petitioner argues in the alternative that if the facility failed to comply substantially with requirements at the immediate jeopardy level, the deficiencies were corrected by August 25, 2000, and that, therefore, there is no basis to impose any civil money penalty for the days August 25 through September 6, 2000. Petitioner's brief at 42, 45. Indeed, CMS conceded that the deficiency based on the problems with the call light system were remedied by August 25, 2000 (CMS's brief at xxiii), so that deficiency does not form the basis for the civil money penalty continuing beyond that date. Concerning the failure to comply substantially with section 483.25(h)(2), however, Petitioner has not persuasively demonstrated it achieved compliance before September 7, 2000.

The Plan of Correction (recorded in the 2567 (see CMS Ex. 12)) indicates the steps the facility planned to address the deficiencies. What is evident from the plan is that many of the steps are prospective. Concerning F-324, the plan indicates that staff were in-serviced concerning residents with frail skin on August 24, 2000 -- a step that arguably could demonstrate compliance by August 25, 2000 -- but other steps are the kind that will take time to fulfill. CMS Ex. 12, at 20. The plan, for instance, states that the facility will continue to monitor skin tears through the quality assurance process, chart audits, conduct comprehensive assessments, care plan and will continue to intervene and reevaluate and monitor outcomes. Id. These sorts of steps are not completed in any real or meaningful sense simply by virtue of their having been written; thus the earliest date of their existence in a care plan is not sufficient evidence that substantial compliance was achieved on that date.

For deficiencies, such as the one at issue, F-324, that demonstrate repeated failures over a long period of time, as when, for instance, residents suffer numerous injuries over the course of months, with no additional planning or interventions undertaken by the facility, it is not enough for the facility to note in the plan of correction, 'henceforward the facility will take the following steps,' it requires that the facility's revised approach be verified by CMS. Or, failing verification by CMS, Petitioner bears the burden of persuasion to show that all necessary steps had been taken by the date Petitioner asserts. To be persuasive, Petitioner would have had to do more than rely on the statements in the plan of correction.

Petitioner's unsupported assertion in the plan of correction is insufficient to prove Petitioner was complying substantially between August 8 and September 7, 2000 when CMS's surveyors verified that the deficiencies were rectified and that immediate jeopardy was abated.

IV. Conclusion

In view of the forgoing I uphold CMS's determination to assess a civil money penalty against Petitioner for its failure to comply substantially with two requirements of participation in Medicare. I conclude also that the amount of the civil money penalty, $3,050 per day for the period August 4, 2000 through September 6, 2000, is reasonable.

Richard J. Smith

Administrative Law Judge