SUBJECT:

Parkview Terrace,

Petitioner,

Centers for Medicare & Medicaid Services.

DECISION

I sustain the determination of the Centers for Medicare & Medicaid Services (CMS) to impose a per instance civil money penalty (CMP), denial of payment for new admissions (DPNA), and directed in-service training against Petitioner, for failure to comply substantially with federal requirements governing participation of long term care facilities in Medicare and Medicaid programs. The per instance CMP of $3,050.00 is based on a finding of immediate jeopardy.

I. Background

This case came before me pursuant to a request for hearing filed by Petitioner, Parkview Terrace, on May 23, 2003, in accordance with section 1128A(c)(2) of the Social Security Act ("Act") and 42 C.F.R. §§ 488.408(g) and 498.40.

On May 16, 2003, CMS informed Petitioner that based on a survey completed on April 9, 2003, it was imposing selected remedies due to Petitioner's failure to be in substantial compliance with the applicable federal requirements for nursing home participants.

CMS concurred with the state survey agency's recommendations and imposed the following remedies:

•Directed in-service training to be completed by May 4, 2003;

•Denial of payment for new admissions (DPNA) effective May 4, 2003 and ending May 9, 2003; and

•A per instance CMP in the amount of $3,050.00. CMS Exhibit (Ex.) 4.

The parties have agreed to waive their right to an in-person hearing and have the case decided on the basis of documentary evidence and written memoranda. ⁽¹⁾ See Parties' Joint Response To Order Directing Statements On Waiver Of Oral hearing dated March 10, 2004. CMS proposed 26 exhibits. I admit these into the record without objection, as CMS Exs. 1 - 26. Petitioner proffered two exhibits and an unmarked three page affidavit of David Serrano, Parkview Terrace's Administrator. I have labeled that affidavit as Petitioner's Exhibit (P. Ex) 3. Without objection, I admit P. Exs. 1 - 3 into the record. Each party submitted written briefs and response briefs in support of their respective contentions.

Based on the affidavits, the documentary evidence, the written arguments of the parties, and the applicable law and regulations, I conclude that Petitioner was not in substantial compliance with Medicare participation requirements at the immediate jeopardy level.

II. Applicable Law and Regulations

Petitioner is considered a long term care facility under the Act and regulations promulgated by the Secretary of Health and Human Services (Secretary). The statutory requirements for participation by a long term care facility are found at sections 1819 and 1919 of the Act, and at Title 42 C. F. R. part 483.

sections 1819 and 1919 of the Act invest the Secretary with authority to impose CMPs and DPNAs against a long term care facility for failure to comply substantially with participation requirements.

Pursuant to the Act, the Secretary has delegated to CMS and the states the authority to impose remedies against a long term care facility that is not complying substantially with federal participation requirements. Part 483 of 42 C.F.R. provides that facilities which participate in Medicare may be surveyed on behalf of CMS by state survey agencies in order to ascertain whether the facilities are complying with participation requirements. 42 C.F.R §§ 488.10 to 488.28. The regulations contain special survey conditions for long term care facilities. 42 C. F. R. §§ 488.300 to 488.335. Under Part 488 a state or CMS may impose a CMP against a long term care facility where a state survey agency ascertains that the facility is not complying substantially with participation requirements. 42 C.F.R. §§ 488.406, 488.408 and 488.430. The penalty may start accruing as early as the date that the facility was first out of compliance until the date substantial compliance is achieved or the provider agreement is terminated.

The regulations specify that CMS may impose a CMP for an instance of noncompliance in the range of from $1,000 to $10,000. 42 C.F.R. § 488.438(a)(2). A per instance CMP may be imposed regardless of whether or not the deficiencies constitute immediate jeopardy. 42 C.F.R. § 488.430(a).

The regulations define the term "substantial compliance" to mean:

. . . a level of compliance with the requirements of participation such that any identified deficiencies pose no greater risk to resident health or safety than the potential for causing minimal harm.

42 C.F.R. § 488.301.

"Immediate jeopardy" is defined to mean:

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

Id.

In determining the amount of the CMP, the following factors specified at 42 C.F.R. § 488.438(f) must be considered:

1. The facility's history of non-compliance, including repeated deficiencies.

2. The facility's financial condition.

3. The seriousness of the deficiencies as set forth at 42 C.F.R. § 488.404.

4. The facility's degree of culpability.

CMS must make a prima facie case that the facility has failed to comply substantially with participation requirements. To prevail, a long term care facility must overcome CMS's showing by a preponderance of the evidence. 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).

The Act and regulations make a hearing available before an administrative law judge to a long term care facility against whom CMS has determined to impose a CMP. Act, section 1128A(c)(2); 42 C.F.R. §§ 488.408(g), 498.3(b)(12) and (13). The hearing before an administrative law judge is a de novo proceeding. Anesthesiologists Affiliated, et al, DAB CR65 (1990), aff'd 941 F.2d 678 (8^th Cir. 1991).

III. Issues

A. Whether the facility was complying substantially with federal participation requirements on the dates CMS determined to impose a CMP and other remedies.

B. Whether CMS's determination of immediate jeopardy is clearly erroneous.

C. Whether the amount of the penalty imposed by CMS is reasonable, if non-compliance is established.

IV. Findings and Discussion

The findings of fact and conclusions of law (findings) noted below in italics are followed by a discussion of each finding.

A. The facility was not in substantial compliance with federal participation requirements on March 19-20, 2003 because it failed to ensure that each resident receives adequate supervision and assistance devices to prevent accidents.

Based on interviews, observations and record review, the state survey agency determined that the facility failed to implement sufficient interventions to provide supervision to prevent Resident 3 from leaving the facility unnoticed. The facility also failed to follow its own policy regarding missing residents and elopements by not determining why a door alarm was triggered on March 19, 2003. On that date Resident 3 left the building unnoticed and was found on his hands and knees by the edge of the driveway. This failure resulted in immediate jeopardy. CMS Ex. 6.

At the time of the incident giving rise to the deficiency involved in this case, Resident 3 was a 71 year old man who was diagnosed with Alzheimer's, depression, anxiety, a history of a brain tumor and stroke, bone cancer, and a seizure disorder. CMS Ex. 15, at 3. He was admitted to the facility on March 19, 2003 at 1:50 p.m.

At the time of admission Resident 3 exhibited much anxiety, and after his daughter who had been visiting with him departed, he stated that he did not want to be left in the nursing home. At 5:30 p.m. the alarm sounded and the Assistant Director of Nurses, (ADON), identified by the surveyors as "E6" (CMS Ex. 7, at 2) caught Resident 3 half way through the front door in his wheelchair. After the attempt to exit the building, Resident 3 was returned to the dining room. Another facility employee, identified by the surveyors as "E4" (CMS Ex. 7, at 2), a Licensed Practical Nurse (LPN), communicated to the staff that Resident 3 was an elopement risk. CMS Ex. 6, at 2.

At 6:40 p.m. the door alarm went off again while the ADON was in the break room. When she heard the alarm, the ADON walked toward the nurse's station but conducted no inquiry when the alarm stopped sounding. At approximately 6:40 p.m. a staff employee, identified by the surveyors as "E9" (CMS Ex. 7, at 2) walked into the facility with a body alarm in her hand. She indicated that she found the alarm sounding and an empty wheelchair in the parking lot. The resident care manager, identified by the surveyors as "E1" (CMS Ex. 7, at 2), and E9 then went outside and located the empty wheelchair about 25 to 30 feet from the front door of the facility on the west side of the driveway. They also found Resident 3 on his hands and knees about 45 feet from the wheelchair, at the edge of the driveway closer to the street. It was dark outside and the temperature was between 35 and 40 degrees Fahrenheit. Resident 3 was clad in flannel pants and a long sleeve shirt. After being returned to the facility the resident told the Director of Nursing (DON) that he went outside because he needed to go home, adding they had left him there and were not coming back. CMS Ex. 6, at 3.

CMS contends that the facility failed to do all that it could to prevent a foreseeable accident from occurring; specifically, the elopement of Resident 3 on March 19, 2003, at 6:40 p.m. From the moment of admission, CMS asserts, Resident 3 gave signs that he would be an elopement risk, yet the facility did not exercise appropriate supervision to prevent him from eloping. According to CMS the Admission Nursing Assessment that was completed at 1:50 p.m. showed Resident 3 to be afflicted with Alzheimer's, depression, anxiety, and a history of a brain tumor. It was noted also that he had slow comprehension, was not oriented to place, and was confused. There was additional reason to believe that Resident 3 was an elopement risk when he was caught attempting to elope at 5:30 p.m. on the day of admission. CMS also asserts that the facility committed an even more egregious failure to provide adequate supervision to R3 when its staff ignored the front door alarm that sounded when he successfully eloped at approximately 6:40 p.m. In this regard, argues CMS, the facility did not adhere to its policy "Regarding Missing Residents and Elopements." That policy requires that the facility staff immediately respond to, investigate and determine the cause of a door alarm that sounds. CMS's brief (Br.) at 22-23.

Petitioner contends that Resident 3 did not have a history of elopement and that prior to his elopement at 6:40 p.m. on March 19, 2003, there had been no previous attempt to elope on the part of the resident. According to Petitioner, the fact that Resident 3 was found at the front door with the door held ajar by the wheelchair at 5:30 p.m. on March 19, 2003, is not evidence that the resident was attempting to elope. Petitioner's brief (P. Br.) at 3. Additionally, Petitioner contends that the facility did not have an adequate opportunity to assess the resident for risk of elopement. P. Br. at 4. In this regard Petitioner asserts that the federal regulation governing assessments of newly admitted residents provides for 14 days to complete the assessments. Id. Concerning the elopement that occurred at 6:40 p.m. on March 19, 2003, Petitioner contends that the resident was returned to the facility almost immediately after the elopement. Id. at 2, 12. Thus, Petitioner argues, there was no opportunity to respond in accordance with the

policy "Regarding Missing Residents and Elopements." Petitioner's (P.) Response Brief at 4. Finally, Petitioner argues that an unauthorized exit does not automatically constitute noncompliance, and that the decision in Colonial Manor, DAB CR693 (2000), is dispositive. P. Br. at 6.

A facility must ensure that each resident receives adequate supervision and assistance devices to prevent accidents. A facility's duty of care pursuant to 42 C.F.R § 483.25(h)(2) is not absolute. The measures undertaken by a facility for the protection of its residents, however, must be adequate. In the case here under consideration, for the reasons discussed below, I find that Petitioner did not provide Resident 3 with adequate supervision to prevent accidents.

Resident 3 was a 71 year old man who had been diagnosed with Alzheimer's, depression, anxiety, a history of a brain tumor and stroke, bone cancer, and a seizure disorder. CMS Ex. 15, at 3. He was admitted to the facility on March 19, 2003 at 1:50 p.m. The Admission Nursing Assessment completed at that time, stated that the resident required a walker and one person assist to ambulate. CMS Ex. 15, at 1. His cognitive function denoted confusion, dementia, and Alzheimer's. CMS Ex. 15, at 2. The nursing staff also determined that the resident was a wandering and elopement risk. CMS Ex. 15, at 2-3.

At approximately 5:30 p.m. Resident 3 attempted to leave the facility, but was stopped by the ADON, who caught him in the door with his wheel chair. She brought him back inside and placed him in the dining room area.

Petitioner argues that the state survey agency was careful in its choice of words in describing the 5:30 p.m. incident. Petitioner notes that the statement of deficiencies states that the resident "was in the door with his wheelchair-halfway through-and the alarm was set off." P. Br. at 3, citing CMS Ex. 6, at 2. According to Petitioner, the statement of deficiencies does not say that the resident was trying to elope. Thus, contends Petitioner, there is no indication that Resident 3 was trying to leave the facility. He was simply at the front door with the door being held ajar by his wheelchair. P. Br. at 4,5. This argument is baseless.

The surveyors did not couch the incident that occurred at 5:30 p.m. on March 19, 2003, in language designed to constitute a balancing act, as suggested by Petitioner. They simply cited the statement provided by Ms. Linda Kammerer, the ADON. In fact, she clearly stated to the surveyors when interviewed on March 31, 2003, that "the resident tried to leave the building at approximately 5:30 p.m. The alarm sounded and I caught him in the door with his wheelchair." CMS Ex. 10, at 7 (italics added). In this regard, the facility documented in its elopement assessment of Resident 3 that on March 19, 2003, the resident had two elopement incidents. The first of these was for one minute. The second elopement was for a period of 5 to 10 minutes. CMS Ex. 17, at 2. Petitioner cannot deny now that its own facility treated the 5:30 p.m. incident as an elopement. Consequently, when viewed in its totality, the evidence is transparent that Resident 3 was attempting to exit the facility building on March 19, 2003, at 5:30 p.m. I am mindful that when the resident was admitted, the nursing staff was prompt to note that he was an elopement risk. CMS Ex. 15, at 3. Additionally, LPN Jeanine Cagle stated, when interviewed on March 31, 2003, that the resident followed his daughter out the door at approximately 5:30 p.m. having stated earlier that he did not want to be left there. This was an indication that the resident did not want to be left in the facility and wanted to go home with family. CMS Ex. 10, at 8, 10. Furthermore, the LPN reminded the staff at that time that Resident 3 was an elopement risk. Resident 3's proclivity had been evident to the staff on admission, and was confirmed at 5:30 p.m. when he attempted to exit the building. CMS Ex. 6, at 2.

At approximately 6:40 p.m., on March 19, 2003, when the alarm went off again, the ADON was in the break room. She got up and began walking toward the nurse's station. However, when the alarm stopped sounding she did not go on to investigate. CMS Ex. 6, at 2. During an interview with the state agency surveyor, Mr. George Marshall, the resident care manager, stated that at approximately 6:40 p.m. he observed Ms. Nadine Brinker ("E9"), a CNA, enter the facility with a body alarm in her hand. Mr. Marshall related that Ms. Brinker explained that she had found the body alarm sounding and an empty wheelchair in the parking lot. At that moment they both went outside and located an empty wheelchair approximately 25 to 30 feet from the front door on the side of the west driveway. Resident 3 was found on his hands and knees in the driveway, about 45 feet from the wheelchair. It was dark and chilly outside (the temperature was approximately 35 to 45 F), ⁽²⁾ and the resident was wearing flannel pants and a long sleeve shirt. CMS Ex. 10, at 13.

Petitioner argues that CMS's assertion that there was no supervision of Resident 3 between 5:30 p.m. and 6:40 p.m. is a mischaracterization of the facts. It states that during the first 20 minutes of that 70-minute period the resident was having dinner, and for the next 45 minutes he was seated by the nurse's station under continuous observation. During the remaining 5 minutes, he was allegedly under the visual control of the staff in the dining room area. P. Response Br. at 6. Petitioner makes these claims without citing support in the record. I note, however, that the affidavit of Mr. David Serrano, the facility administrator, does state that from 5:30 p.m. until 5:50 p.m., Resident 3 ate his meal and remained calmly in the dining room. Mr. Serrano adds that from approximately 5:50 p.m. until approximately 6:35 p.m., Resident 3 was sitting beside the nurse's station, which is adjacent to the dining room. During this period, the resident was allegedly under continuous observation. Although at approximately 6:40 p.m. the ADON left the nurse's station briefly, the station remained under visual control/line of sight by staff in the dining room area, says Mr. Serrano. ⁽³⁾ At approximately 6:40 p.m. a door alarm sounded, and the ADON allegedly responded to the alarm immediately and began to take steps called for in the facility protocol. P. Ex. 3, at 2.

CMS is correct in its assertion that Mr. Serrano did not have first hand knowledge of the events mentioned in his affidavit. From Mr. Serrano's interview of April 1, 2003, where he stated that there was no one "in the front office," it is evident that he was not present at the time Resident 3 eloped on March 19, 2003, at 6:40 p.m. CMS Ex. 10, at 4. Thus, he makes assertions without crediting the specific source of his information. More importantly, his November 28, 2003 recital of the events contradicts prior statements that he made the day after the elopement of Resident 3 as well as statements obtained from facility staff members that were present. In his March 20, 2003 statement Mr. Serrano had said that Resident 3 eloped for about 10 minutes, whereas in his November 28, 2003 affidavit he stated that the elopement lasted no more than a couple of minutes. CMS Ex. 21, at 1. His original statement was consistent with the observation of Ms. Karen Bystrom, the Director of Nursing (DON), who stated that the resident was returned to the facility at 6:50 p.m. This assertion was based on her personal knowledge inasmuch as she was present when Resident 3 was brought back into the facility. CMS Ex. 10, at 6. Also, in the Elopement Assessment conducted by the facility subsequent to the 6:40 p.m. incident of March 19, 2003, it was stated that the resident had eloped for a period of five to ten minutes. CMS Ex. 17, at 2.

Ms. Linda Kammerer, the ADON, indicated that she and the other nurses were in the break room when the alarm sounded. She rose to investigate the sounding of the alarm, but by the time she got up the alarm was shut off. The ADON did not indicate that she immediately proceeded to implement the facility protocol. CMS Ex. 21, at 3. Moreover, there is nothing in the record pointing to specific actions taken by the ADON immediately, to determine why the alarm was triggered or who turned it off. Additionally, there is no evidence that all of the residents known to be at risk for elopement were checked to ascertain that all were still accounted for. ⁽⁴⁾ It was necessary to determine the whereabouts of all at risk residents, even after Resident 3 was found, inasmuch as the facility had no assurance that Resident 3 was the only resident to exit the facility.

Thus, in spite of Petitioner's claim, there is no credible evidence that the ADON immediately initiated steps consistent with the facility protocol.

According to CNA Brinker, she found Resident 3's wheelchair and personal body alarm outside the facility at approximately 6:45 p.m. (about 5 minutes after the alarm was triggered). When Ms. Brinker entered the facility, she spoke to CNA Darryll Marshall, resident care manager, regarding the items she had found. It was then that Ms. Brinker and Mr. Marshall went outside and found the resident at the edge of the driveway near the street. CMS Ex. 21, at 3; CMS Ex. 10, at 13. In Ms. Brinker's recount of the events of March 19, 2003, she mentioned nothing regarding efforts by the ADON to determine the cause of the alarm when she first entered the facility, and the resident had not yet been found. While not determinative, I note that If the ADON had in fact been in the process of investigating the reason for the sounding of the alarm, it is likely she would have encountered Ms. Brinker when she entered the facility approximately five minutes after the alarm was triggered.

The inference that I draw from the evidence of record is that there was an absence of adequate supervision to prevent the elopement of Resident 3. This absence of supervision occurred in spite of the fact that the facility had determined upon admission that the resident was an elopement risk. The nursing staff's assessment regarding the resident's elopement potential was correct, as confirmed when he was caught attempting to exit the facility at 5:30 p.m. As stated earlier, at that time a CNA reminded the staff that Resident 3 was an elopement risk. From Petitioner's explanation of the type of supervision provided to Resident 3, I conclude that there was no one staff member entrusted with the task of supervising the resident. It appears to have been assumed that by placing the resident somewhere in the vicinity of the nurse's station, he would remain under the watchful eye of whatever staff member happened to be in the area at the time. Thus, no one in the facility could have felt a sense of personal responsibility for the safety of Resident 3. I agree with Petitioner that a facility is not required to provide constant individual supervision to all its residents. Woodward Hills Nursing Center, DAB CR991, at 6 (2003). That type of individual supervision is not required for all residents, but only those that need it. Under the particular circumstances of Resident 3, who had just been admitted to the facility, had expressed his dissatisfaction with being placed in a nursing home, and had made an attempt to elope, it was evident that he needed individualized attention. At the very least, Petitioner should have applied the "Facility Policy Regarding Missing Residents and Elopements." That policy states that "[s]hould a resident attempt an elopement, a review of their individualized care plan shall be triggered for possible changes in care practices or safety precautions for that resident." CMS Ex. 23, at 3. Petitioner, however, ignored the precautions called for in the facility policy and it disingenuously chose not to consider the incident that occurred at 5:30 p.m. on March 19, 2003, as an elopement attempt.

Petitioner argues that the resident eloped at 6:40 p.m. and was brought back into the facility at the same time; that is, almost immediately. In fact, Petitioner asserts that the elopement and recovery of the resident was so immediate that the facility had no time to follow its policy regarding missing residents and elopement. I do not see how that could be possible. Several events occurred from the time the alarm sounded until Resident 3 was found on his hands and knees in the driveway. The chronology of events shows that when the alarm sounded the ADON left the break room and went to investigate, but went no further when the alarm was shut off. There is no evidence that at that moment, she attempted to determine what triggered the alarm or who turned it off. Sometime later when CNA Nadine Brinker arrived at the facility, she found the Resident 3's body alarm and wheelchair in the parking lot as she walked toward the entrance. The CNA went inside and made other staff members aware of what she had found in the parking lot. During all this time Resident 3 was outside in the dark crawling on the driveway. After falling from his wheelchair, Resident 3 was found a distance of approximately 45 feet along the driveway. Inasmuch as Ms. Brinker found the wheelchair coming from the east side of the driveway near the handicapped parking area, which is logically situated in close proximity to the building, and the resident was found about 45 feet from the wheelchair on the west side, it is reasonable to infer that he crawled that distance in view of his inability to ambulate. CMS Ex. 21, at 3. I cannot conceive, as Petitioner suggests, that the resident was able to exit the facility, travel in his wheelchair to the parking lot area, and then crawl on his hands and knees a distance of approximately 45 feet with minimal passage of time. The facility administrator's report to the Illinois Department of Health (IDPH) dated March 20, 2003, appears to be more accurate than the position taken by Petitioner in its brief. In that report, Mr. David Serrano, stated that Resident 3 was returned to the facility no more than ten minutes after the alarm sounded. CMS Ex. 21, at 1. The following day Mr. Serrano, sent IDPH a "final report" where he plays down the length of the elopement as well as the injury suffered by Resident 3. CMS Ex. Ex. 21, at 2. In this second report he asserts that Resident 3 was found no more than a few minutes after the alarm sounded, and that the resident suffered an insignificant abrasion, as opposed to a "minor abrasion" as he had previously stated. ⁽⁵⁾ I give little weight to the final report inasmuch as I perceive it as an attempt to reconstruct the facts in a manner more favorable to the facility, without any foundation. Even if Resident 3 moved quickly in his wheelchair as stated by Mr. Serrano in his second report, that does not explain how he supposedly quickly traveled some 45 feet on his hands and knees.

Further scrutiny also reveals that the facility failed to follow its policy regarding supervision of residents who were an elopement risk. Pertinent to this is the facility policy that states that: "[s]hould an alarm on one of the exits to the outside of the facility be sounded, staff shall immediately respond to and determine the cause of the alarm." CMS Ex. 23, at 2. Petitioner alleges that the resident was returned to the facility so rapidly that it did not have time to investigate the cause of the alarm. Additionally, Petitioner seems to assert that the cause of the alarm was determined; that is, it was determined that the front door alarm was set off. P. Response Br. at 13.

As I discussed above, the sounding of the alarm and the return of Resident 3 was not a simultaneous event as alleged by Petitioner. In fact, the record is clear that sometime after the alarm sounded and was shut off, CNA Brinker, who, per chance, happened to arrive at the facility at that moment, found the resident's personal alarm and wheelchair in the parking area through mere coincidence. It was not until she went inside the facility and reported her accidental finding that a search for an eloped resident began. That search resulted in finding Resident 3 on his hands and knees in the driveway of the facility approximately 45 feet from where the CNA had found the wheelchair and body alarm. After the alarm sounded and was turned off by an unknown individual, no aggressive investigation was immediately undertaken by the facility to determine why the alarm sounded. The staff assumed that it had been set off by a visitor and never determined who shut it off. From the chronology of events, I find that if CNA Brinker had not found Resident 3's wheelchair and body alarm, it is uncertain how much time would have transpired until someone in the facility realized that Resident 3 was missing. It is evident that the persons who were supposedly supervising Resident 3, and had him under "visual control," did not note his absence even after the alarm went off. P. Ex. 3, at 2. If adequate supervision had been in place, the resident would not have eloped undetected. And assuming that Resident 3 would have been able to elude the facility's best efforts, the staff should have located the resident well before CNA Brinker walked in with the news that she had found a wheelchair and body alarm in the parking lot, if it were true that Resident 3 was at all times under "visual control," as claimed by the administrator. Id.

Petitioner argues also that the decision in Colonial Manor Nursing & Care Center of Lansing, DAB CR693 (2000), is dispositive of the of the matters here in controversy. P. Br. at 6. I disagree.

In Colonial Manor I found that based on the facts as presented by HCFA (now CMS) in the statement of deficiencies, petitioner was in substantial compliance. I concluded that on September 6, 1998, a resident designated in that case as "Resident 102" unsuccessfully attempted to exit the facility without detection or staff intervention. On that date, when the resident tried to leave the premises, the alarm signal alerted the staff, and Resident 102 walked out of the door with a staff member right behind her. The facility staff member remained in close proximity to the resident before escorting her inside. Resident 102 was neither injured nor exposed to risk of injury. The following morning, Resident 102 was placed under 24-hour observation by at least one member of the nursing staff. Resident 102 was discharged from Colonial Manor on September 11, 1998 ⁽⁶⁾. The facts in the case at hand are dramatically different from those in Colonial Manor. In the case now before me Resident 3 was able to elude the facility staff and was found by coincidence after an off duty staff member stumbled upon an empty wheelchair and a sounding body alarm by the parking area.

In view of the foregoing, I conclude that Petitioner failed to provide adequate supervision to Resident 3. That failure resulted in his elopement on March 19, 2003, at 6:40 p.m. Petitioner should have foreseen that in the absence of adequate supervision, Resident 3 would elope. I conclude that CMS has established a prima facie case that Petitioner was not in substantial compliance with federal requirements for nursing homes participating in the Medicare and Medicaid programs. Petitioner, on the other hand, has not overcome CMS's showing by a preponderance of the evidence. Furthermore, as discussed below, I sustain CMS's finding that Petitioner's level of non-compliance constitutes immediate jeopardy.

B. CMS's finding of immediate jeopardy was not clearly erroneous.

Petitioner contends that even if noncompliance is established in this case, such violation does not rise to the level of immediate jeopardy. Although Petitioner cites several cases, it does not articulate how those decisions support its argument. P. Br. at 8.

The regulations define immediate jeopardy as a situation in which a 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. 42 C.F.R. § 488.301. It is well settled that a finding of immediate jeopardy does not require "a finding of present harm, but also encompasses a situation that is [likely to cause] harm." Hermina Traeye Memorial Nursing Home, DAB No. 1810 (2002). The regulations further provide that CMS's determination of immediate jeopardy must be upheld unless it is clearly erroneous. 42 C.F.R. § 498.60(c)(2). The burden rests with the Petitioner to prove that CMS's determination of immediate jeopardy is clearly erroneous. As stated earlier, Petitioner has denied the existence of immediate jeopardy, but has failed to come forward with cogent reasons for its contention.

The evidence in this case is clear that the facility did not provide Resident 3 adequate supervision in order to prevent elopement. In its defense, Petitioner has relied on the affidavit of its administrator, Mr. David Serrano, yet chooses to ignore the fact that the administrator lacked personal knowledge of the matters referred to in his statement, and that he made no reference to statements of facility personnel who may have had such first hand knowledge. Thus, when Mr Serrano alleges that Resident 3 was under continuous observation from approximately 5:50 p.m. until 6:35 p.m. on March 19, 2003, and that after that time he remained under visual control by the staff in the dining area, he overlooks the DON's statement to the effect that the staff was not checking Resident 3 every 15 minutes during the initial 72 hours after his admission, although they had been told to do it. CMS Ex. 26, at 4. I infer that if the DON admits that checks every 15 minutes were not being done, then a more rigorous supervision such as "continuous observation" as alleged by the facility administrator, is out of the question. In fact it was not until March 20, 2003, the day following the elopement that the facility implemented an intervention that called for 15 minute checks for the next 72 hours, and 30 minute checks indefinitely thereafter. When Resident 3 was placed either in the dining room or near the nurse's station there was no one assigned to be alert for attempts at elopement nor to make periodic checks. The facility's approach to monitoring of the resident was shown to be flawed when he exited the building unnoticed, and no one in the facility was aware of his absence even after the door alarm was triggered upon his exit. Thus, I cannot find credible the administrator's assertion that Resident 3 was at all times under continuous observation or visual control. P. Ex. 3, at 2. With the kind of supervision claimed by Mr. Serrano I do not see how elopement would have been possible.

The evidence further reflects that Resident 3 was exposed to the likelihood of serious injury, harm, impairment, or death. CNA Darryl Marshall, the resident care manager who assisted in locating Resident 3 stated that he found the resident on his hands and knees, at the edge of the driveway, near the street. He had suffered an abrasion to the right elbow. CMS Ex. 21, at 3; CMS Ex. 13, at 1. Ms. Rita Schipfmann, the surveyor, stated in her affidavit, that the street in front of the facility was a moderately busy street. Presumably, by that she meant that vehicles were passing by at the rate of approximately once every 10 to 20 seconds. Since it was dark and Resident 3 was low on the ground, because all he could do to move was crawl, he would have been difficult to see in the dark by passing motorists. He was also exposed to injury from exposure to cold weather inasmuch as he was only dressed in flannel pants and a long sleeve shirt, and it was between 35 and 45 degrees Fahrenheit outside. CMS Ex. 6, at 3.

Under the circumstances, it was not unreasonable for CMS to conclude that the circumstances surrounding the elopement of Resident 3 demonstrated a systemic failure to prevent residents at risk of eloping from leaving the facility undetected.

C. The amount of the penalty imposed by CMS is reasonable.

CMS imposed a $3,050.00 per instance CMP. In the notice of remedies sent to Petitioner by CMS on May 16, 2003, Petitioner was advised that in imposing a per instance CMP, the following factors were considered:

The facility's history, financial condition, and the factors enumerated in the federal requirement at 42 C.F.R.488.404. CMS Ex. 4, at 2.

The resident's exposure to the likelihood of injury, harm, or death, and the facility's apparent lack of concern for the safety of its residents is clear evidence of the seriousness of the deficiencies in this case. In addition, Petitioner has not shown that the CMP would be a significant detriment to its financial condition. I conclude, therefore, that the amount of the CMP is reasonable.

V. Conclusion

I conclude that CMS correctly determined that Petitioner was not complying with federal participation requirements in the Medicare program at the immediate jeopardy level, and that this authorizes the imposition of a CMP, DPNA and directed in-service training. I conclude also that the imposition of a per instance CMP of $3,050.00 is reasonable.

José A. Anglada

Administrative Law Judge

1. Although the parties initially filed motions and briefs in support of summary judgment, they later agreed to a decision based on a waiver of oral hearing. Consequently, in my decision I resolve all issues without regard to the rules applicable to summary disposition.

2. According to information provided by Climate Data Request, area temperature was 42ºF at 5:53 p.m., Central Standard Time, on March 19, 2003. CMS Ex. 6, at 5.

3. There are several references in the record that show that the ADON was taking a break in the break room during the 6:40 p.m. elopement on March 19, 2003. It is not appropriate to characterize that absence as "brief."

4. There were eight other residents in the facility that were at risk of elopement. CMS Ex. 6, at 6.

5. The nurse's notes reveal that Resident 3 suffered an abrasion to the right elbow.

6. Although there had been prior elopements at Colonial Manor, CMS chose to rely on the alleged elopement of September 6, 1998, with respect to Resident 102. There was really no issue as to another resident in that case designated "Resident 101," inasmuch as he was transferred to another facility on September 4, 1998. The parties in this case have mistakenly asserted in their briefs that Resident 101 eloped on September 8, 1998.