1999.11.09 CR626 Greenbriar Convalescent Center vs HCFA

I make the following separately numbered findings of fact and conclusions of law (findings) to support my decision in this case. I sate each finding, in bold print below, as a separate heading and discuss each finding in detail.

1. Petitioner was not in substantial compliance with 42 C.F.R. з 483.25(h)(2) for Resident 28, who was placed in a situation constituting "immediate jeopardy" by Petitioner's noncompliance.

No genuine factual dispute exists as to Resident 28's tendency to wander out of Petitioner's building by herself. Nor does any genuine factual dispute exist as to Resident 28's inability to care for herself independently. The evidence of record establishes without any significant controversy that Resident 28 suffered from cognitive impairments. According to the records generated by Petitioner's professional staff while assessing Resident 28's needs and planning for her care, this resident was suffering from Alzheimer's disease, short- and long-term memory loss with poor decision-making skills, and she had been transferred from an assisted living center because she had wandered alone out of the center. Petitioner's records for Resident 28 noted a problem of wandering, with no rational purpose and no apparent awareness of her needs or safety. P. Ex. 41 at 33, 55; HCFA Ex. 1 at 7 - 8. During the March 1997 survey, the Ohio Department of Health discovered from the records maintained by Petitioner's nursing staff that Resident 28 had left Petitioner's building unnoticed and unsupervised by Petitioner's staff on 22 occasions between December 6, 1996 and March 16, 1997. HCFA Ex. 1 at 7-11. On these occasions, Resident 28 was found wandering on public streets, on the top of a hill, around the facility's unenclosed parking lot, or on a neighbor's porch, among other places. Id. ; P. Ex. 41. Petitioner's records included its nursing staff's notations that Resident 28 had returned on some occasions because she had gotten too cold in the falling snow (P. Ex. 41 at 259), that people living in the area had found her on their porch (P. Ex. 41 at 183), that she had been combative when staff attempted to return her from the facility's parking lot (P. Ex. 41 at 260), and that she was holding her stomach and complaining of being sick when staff returned her to the facility (P. Ex. 41 at 104).

Several entries in the nursing notes indicated that Resident 28 had been leaving through Petitioner's front door. Those notes indicated also that she was able to leave the facility unnoticed several times on the same day. On March 16, 1997, while the survey was being conducted, Resident 28 wandered outside of the facility by herself four separate times before she was escorted back by Petitioner's staff. HCFA Ex. 1 at 11; P. Ex. 41 at 359 - 60.

At the time of the survey, Resident 28 occupied the first room in Petitioner's "B" wing, which led directly to Petitioner's front door. Petitioner's front door then opened onto a circular drive and a parking lot used by cars and ambulances. The parking lot led into a public street in a residential area. Near Petitioner's front door were also other public roads and a two lane highway called Dogwood Ridge. Tr. 37, 39, 215 - 17, 239 - 40. Petitioner did not have an enclosed outdoor area for its residents' use at the time of the March 1997 survey. Tr. 40.

The testimony of witnesses at the hearing establishes that Resident 28 used to leave through Petitioner's front door, which was close to her room, and the front door did not have an alarm on it. Tr. 37, 45. A large number of visitors came in and out of the front door on a 24-hour basis. Tr. 293. Petitioner provided no monitoring of its front door on a regular basis even though a business office and a nursing station were located nearby. Tr. 38, 322 - 23.

On March 18, 1997, while the survey was still being conducted, Petitioner moved Resident 28 away from the front door and placed her in a different room in another wing which had alarms on its exits. Tr. 37, 45 - 46, 219. HCFA acknowledges that Resident 28 has not wandered away from the building since Petitioner moved her into the different room on March 18, 1997. Tr. 51, 220.

HCFA posits that, given Resident 28's cognitive and memory impairments, Petitioner's failure to provide adequate supervision for her inclination to wander from the facility had placed her at risk for sustaining serious harm, injury, or death. HCFA Br. at 17 - 18. HCFA determined that noncompliance at the "immediate jeopardy" level had resulted due to Petitioner's failure to provide supervision in accordance with the requirements of 42 C.F.R. з 483.25(h)(2).

That regulation states:

Accidents. The facility must ensure that -

(2) Each resident receives adequate supervision and assistance devices to prevent accidents.

42 C.F.R. з 483.25(h)(2). Noncompliance refers to deficiencies which pose greater risk to the residents' health or safety than the potential for only minimal harm. 42 C.F.R. з 488.301. For HCFA to find "immediate jeopardy" and impose a corresponding amount of CMP as a remedy, there does not need to be proof that any resident had died or suffered any actual harm. "Immediate jeopardy" means--

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

42 C.F.R. з 488.301(emphasis added). Moreover, the regulation codified at 42 C.F.R. з 498.60(c) specifies that I must affirm a finding of immediate jeopardy unless I find that HCFA's determination was clearly erroneous.

Applying the content of these regulations to the above incontestable facts HCFA has culled from Petitioner's own records concerning Resident 28's known mental deficits and her repeated unnoticed departures from the facility within a period of about three months during winter, I conclude that HCFA has made a prima facie showing that Petitioner was out of substantial compliance with 42 C.F.R. з 483.25(h)(2) for Resident 28 and that the noncompliance was at the immediate jeopardy level for this resident.

The CMP rate for "immediate jeopardy" was imposed by HCFA for only two days: March 16 and March 17, 1997. For March 16, 1997, the evidence shows that, while the survey was being conducted, Resident 28 had left the building unnoticed four times. P. Ex. 41 at 359. Between 5:26 and 5:55 P.M. of that day, Petitioner's staff brought Resident 28 back three times. Id . No unnoticed departure was reported for March 17, 1997. However, as noted previously, Petitioner did not move Resident 28 to a room located away from the front door and in a wing with alarms on the exits until March 18, 1997.

Even though the evidence establishing HCFA's prima facie case does not show that Resident 28 was at greater risk on March 16, 1997 and March 17, 1997 than on any of the other days during the preceding three months, I cannot assign clear error to HCFA's decision to assess a CMP at the "immediate jeopardy" rate ($3,050 per day) for only those two days. HCFA's notice letter stated that "[t]he documentation indicates that there were other days of immediate jeopardy." HCFA Ex. 5. Additionally, since HCFA has the discretion to choose which (if any) enforcement remedy to impose, HCFA's waiver of its right to impose a CMP at the "immediate jeopardy" rate for any of the additional days prior to March 16, 1997 is beyond the scope of my authority to consider. See 42 C.F.R. зз 498.3, 488.438(e)(2).

As a preliminary matter to defending against the noncompliance citation relating to Resident 28, Petitioner has developed a line of argument concerning the communication between the Ohio Department of Health and HCFA. Petitioner posits that I should give weight to the seeming reluctance of HCFA to agree to the immediate jeopardy determination as an indication that HCFA's ultimate adoption of that determination was motivated by something other than an impartial review of the facts and circumstances concerning Resident 28. However, HCFA's motives are not actionable in these proceedings. No matter what factors may have motivated HCFA to adopt the State surveying agency's conclusions for Resident 28, both parties have had the opportunity to place into the record evidence which I have analyzed in accordance with the evidentiary burdens outlined in Hillman, above, and with application of the "clearly erroneous" standard specified by 42 C.F.R. з 498.60(c), where appropriate. Analyzed in such a manner, Petitioner's evidence and arguments concerning Resident 28 are unpersuasive, and Petitioner has not proven that its care of Resident 28 was in substantial compliance with the requirements of 42 C.F.R. з 483.25(h)(2). Petitioner has also failed to show that HCFA's immediate jeopardy determination for Resident 28 was clearly erroneous.

Petitioner also disputes HCFA's noncompliance findings by arguing that it would have been illegal to restrain Resident 28, and, in any event, the potential for harm to this resident was only minimal and no more unusual than those which would be present for any individual who chooses to walk outside alone into areas which Petitioner considers to be safe. Both lines of arguments rest on the fact that Resident 28 has not been adjudicated mentally incompetent.

In a recent decision involving like fact patterns, I rejected defenses very similar to those now before me. Heath Nursing and Convalescent Center, DAB CR610 (1999).⁽⁵⁾ The Heath case also involved a long-term care facility's failure to provide adequate supervision for a cognitively impaired resident who had not been adjudicated mentally incompetent, but who had a history of wandering off unnoticed without having ever sustained any serious injury while he was away. I explained several legal conclusions which are equally applicable to my rejection of Petitioner's evidence and arguments herein concerning Resident 28.

In the Heath decision, I noted that neither 42 C.F.R. з 483.25(h)(2) nor the regulatory definition of "immediate jeopardy" may be interpreted as meaning that the wandering resident must necessarily suffer actual or discernable harm. Heath at 11, 14. A facility participating in the Medicare and Medicaid programs is required by law to provide adequate supervision for the purpose of preventing accidents, which are, by definition, occurrences which are outside of the victim's expectations or ability to control. Id. at 11. Therefore, the fact that the resident had not suffered any actual injuries in the past while he was without supervision does not prove that this resident was immune from the risk of accidents, or that the facility was without an obligation to help prevent accidents from occurring by complying with 42 C.F.R. з 483.25(h)(2). Id. I held also that, even if a resident had the mental capacity to make the choices alleged by the facility, the facility may not abdicate its responsibility to provide supervision that is adequate and appropriate to enabling this resident to exercise and effectuate his choices safely, without placing his health at risk for more than minimal harm. Heath at 5. I explained that, while 42 C.F.R. з 483.25(h)(2) does not impose strict liability upon the facility for instances where a resident wanders unsupervised, the relevant inquiry is whether there was supervision which was adequate for the resident's situation. Id. At 6.

In this case, even Petitioner's records show that Resident 28 needed supervision. She was not like the majority of people walking about outdoors in the same area, as suggested by Petitioner's arguments.⁽⁶⁾ Resident 28 was in the care of Petitioner, a Medicare and Medicaid certified long-term care facility. These facts alone would distinguish Resident 28 from the average person walking about unsupervised outside of Petitioner's building. She is also different from others likely to be walking unsupervised in the area because she has mental impairments and was placed into Petitioner's care for reasons that are significantly linked to her wandering tendencies, as shown by Petitioner's own records. Treva Ellison, Petitioner's Director of Nursing, gave testimony showing that Petitioner was aware that Resident 28's family had placed her in Petitioner's care so that she would receive appropriate supervision for her wandering tendencies. According to Ms. Ellison, Resident 28 was transferred from another facility which did not feel it had enough people to properly "keep tabs" on Resident 28, and because Resident 28's incontinence was increasing, and she was--

overtiring from her ambulation to the point sometimes that she would just get so short of breath that she needed oxygen possibly. They [the other facility] felt that was more than they could handle in the setting she was in and her family agreed with that.

I was not persuaded by Petitioner's arguments about the absence of actual harm to Resident 28 on 22 prior occasions, nor was I persuaded by Petitioner's complaint that HCFA's witnesses had relied on speculations to conclude that Resident 28 has been at risk for sustaining more than minimal injuries.⁽⁷⁾ It was appropriate for HCFA to rely on the provisions of the law which permitted it to determine the existence of noncompliance and "immediate jeopardy," respectively, on the basis of whether there is a "potential" for more than minimal harm to the resident, and whether the noncompliance is "likely to cause" serious injury to the resident, respectively. 42 C.F.R. з 488.301. Unlike Petitioner, HCFA and the surveyors did not have the responsibility for providing care to Resident 28. Therefore, unlike Petitioner, they had no duty to observe or supervise her activities on a daily basis. HCFA and the surveyors could not have been expected to know first hand precisely what circumstances were encountered by Resident 28 after Petitioner allowed her to wander outside by herself. Petitioner itself had no first-hand knowledge of what this resident had encountered during her previous 22 elopements.

In the foregoing context, HCFA's witnesses properly provided their professional opinions on the issue of whether there was the potential for more than minimal harm and whether there was the likelihood of serious injury to the mentally impaired resident, whom Petitioner had already allowed to leave unnoticed and unaccompanied on 22 prior occasions, on her walks outdoors during the winter months in Ohio. Their opinions were logical and consistent with the contemporaneous records generated by Petitioner. Contrary to the arguments submitted to justify the dereliction of its supervision responsibilities, notes taken by Petitioner's nursing staff upon Resident 28's return mention, for example, her complaints of having become too cold while walking in the falling snow with a blanket on her during the morning of February 9, 1997, and of feeling sick and holding her stomach when she was returned from the outside after two additional unsupervised wandering episodes later that same day. P. Ex. 41 at 104, 259. It was, of course, Petitioner's good fortune that this mentally impaired resident committed to Petitioner's care had been found and was returned on 22 occasions without showing any visible wounds or injuries, despite Petitioner's willingness to allow Resident 28 to wander outside its building unnoticed and at will from December 1996 until March 18, 1997. However, Petitioner's good fortune did not prove that it was in compliance with the requirements of 42 C.F.R. з 483.25(h)(2).

I reject also Petitioner's arguments that it should be found in compliance with 42 C.F.R. з 483.25(h)(2) because it could not lawfully use physical restraints on Resident 28 or confine her (P. Br., 40 - 41), because physically restraining this resident "to keep her from walking" would have caused her to "become agitated, hostile and potentially injurious to herself and others" ( P. Br., 26 ), and because Petitioner felt that "the greater risk to Resident #28 would lie with trying to prevent her ambulation rather than allowing her to walk indoors and/or outdoors" (id.). These arguments seek to make issues of non-issues. The applicable legal requirement is adequate supervision for the prevention of accidents to Resident 28, as measured against her needs and limitations. No one, except Petitioner, by use of its inapposite arguments, has suggested confining Resident 28 or restraining her from walking altogether inside or outside of the building.

Petitioner has wrongly equated the supervision requirement of 42 C.F.R. з 483.25(h)(2) with the use of physical restraints against Resident 28. Petitioner's arguments about its inability and unwillingness to physically restrain Resident 28 suggest that there existed no other reasonable means for providing adequate supervision of her. The equation and suggestions posited by Petitioner are incorrect as a matter of law, and they are disingenuous on the face of this record.

HCFA has never indicated that Resident 28 should be physically restrained from walking. Nor has HCFA asked Petitioner to keep Resident 28 indoors at all times. The regulation cited by HCFA, 42 C.F.R. з 483.25, states very clearly that Petitioner must provide supervision services which would allow the resident to attain and maintain her highest practicable level of physical, mental, and psychological well-being. The record evidence in this case establishes not only Petitioner's awareness that physical restraint was not necessary, but also Petitioner's knowledge during the relevant time period that less drastic, reasonable, and readily available measures were appropriate for bringing itself into compliance with the supervision requirements of 42 C.F.R. з 483.25.

When Petitioner was informed of the "immediate jeopardy" citation pursuant to the March 1997 survey, it changed Resident 28's room from one that was near the facility's front door (which did not have an alarm on it and through which this resident had wandered repeatedly), to another room in a wing which did have alarms on its doors and which had constant monitoring from the nursing station. E.g., HCFA Ex. 1 at 12; P. Ex.1 at 23; Tr. 37 - 38. When a resurvey was conducted on May 29, 1997, the team found that Resident 28 had not wandered alone outside of the facility since Petitioner had changed her room location. Tr. 50 - 51. Psychologists involved in Petitioner's care of Resident 28 also indicated that changing the location of her room seemed sufficient for dealing with her wandering behavior. P. Ex. 1 at 5 - 6; P. Ex. 41 at 80.

Nothing of record shows that it was impossible or unfeasible for Petitioner to change the location of Resident 28's room until March 18, 1997. Additionally, in order to properly supervise her Petitioner was not required to keep Resident 28 inside its building at all times. The testimony introduced by HCFA shows also that Petitioner would not have been found out of compliance with the requirements of 42 C.F.R. з 483.25(h)(2) if, for example, Petitioner had assigned a staff member to accompany Resident 28 on her walks outside of the facility, instead of having allowed her to wander outside alone and unsupervised. Tr. 21, 42, 44 - 47, 247, 254. Accordingly, I reject Petitioner's argument that it had no choice but to allow Resident 28 to wander away from its building at will because there was no legal or reasonable means for supervising her movements.

For the reasons set forth above, I find that Petitioner was not in substantial compliance with 42 C.F.R. з 483.25(h)(2) for Resident 28, who was placed into a situation of "immediate jeopardy" by Petitioner's noncompliance.

2. HCFA has properly used the 1973 edition of the Life Safety Code (Code), as incorporated by 42 C.F.R. з 483.70(a)(1), to make its prima facie showing of Petitioner's noncompliance with certain requirements of the Code.

To participate in the Medicare and Medicaid programs, long-term care facilities like Petitioner "must be designed, constructed, equipped, and maintained to protect the health and safety of residents, personnel and the public." 42 C.F.R. з 483.70. The Life Safety Code of the National Fire Protection Association is incorporated by reference in 42 C.F.R. з 483.70(a) to ensure that residents and other occupants of the long-term care facilities are adequately protected against the dangers of fires.

While inspecting Petitioner's physical structure for compliance with the Life Safety Code, the May 1997 survey team found three groups of problems. HCFA agreed with the surveyors' conclusion that each group of deficiencies was at a level which evidenced Petitioner's failure to comply substantially with federal program participation requirements. HCFA Ex. 1 at 20, 21, 24. HCFA determined also that said noncompliance lasted 52 days, from March 18, 1997 until and including May 8, 1997. HCFA then assessed a CMP for that period at the rate of $50 per day.

During the May 1997 survey, the 1973 edition of the Life Safety Code was used. HCFA acknowledges in its posthearing brief that there exist also a 1985 edition and a 1967 edition of the Code. However, HCFA interpreted the exceptions provided by 42 C.F.R. з 483.70(a) as authorizing the use of the 1973 edition for a facility such as Petitioner, which had been in operation since the late 1960's. HCFA Br., 46 - 47.

In its posthearing brief, Petitioner takes exception to HCFA's use of the 1973 Life Safety Code. No such objection had been raised previously. However, Petitioner argues in its posthearing brief that no rational explanation has been provided by HCFA as to why the 1973 edition had been used. P. Br., 42. Petitioner contends that at page 46 of HCFA's posthearing brief, HCFA noted that either the 1967 or 1973 edition would apply to Petitioner because it had been in operation since the late 1960's. P. Br., 42.

Petitioner's description of HCFA's position is not entirely accurate. In mentioning both the 1967 and 1973 editions of the Code, HCFA was summarizing the regulatory exceptions, which state in pertinent parts:

Except as provided in paragraph (a)(1) . . . of this section, the facility must meet the applicable provisions of the 1985 edition of the Life Safety Code . . .

(1) A facility is considered to be in compliance with this requirement as long as the facility -

(i) On November 26, 1982, complied . . . with the requirements of the 1967 or 1973 editions of the Life Safety Code and continues to remain in compliance with those editions of the Code . . .

Given HCFA's knowledge that Petitioner has been in operation since the late 1960's, HCFA appears to have made an assumption that, as of November 26, 1982, Petitioner must have already been found in compliance with either the 1967 or the 1973 edition of the Life Safety Code, or with both editions. To date, Petitioner has not disputed the validity of this assumption, which appears to be a facially reasonable one. Nor has Petitioner disputed HCFA's determination to apply section 483.70(a)(1)(i) as an exception to using the 1985 edition of the Code. Therefore, the only remaining question left under this regulatory exception was whether Petitioner "continues to remain in compliance with those editions of the Code" (42 C.F.R. з 483.70(a)(1)(i)) when the May 1997 survey was conducted.

Given the regulation's requirement for compliance with "those editions of the Code" (emphasis added), together with Petitioner's failure to object to HCFA's use of the 1973 edition in the request for hearing or when evidence was being received in this case, I find that HCFA had the right to use only the 1973 edition to make the prima facie showing of Petitioner's noncompliance. At the hearing, HCFA had the burden of coming forward with evidence related to disputed findings that was sufficient (together with any undisputed findings and relevant legal authority) to establish a prima facie case that HCFA had a legally sufficient basis for its determination. Hillman at 8. It was not until after the close of the evidence in this case that the 1973 edition of the Code became a disputed legal authority. I formally closed the evidentiary record in this case on the last day of the hearing. Tr. at 462.

Petitioner was on notice prior to and during the hearing that the physical environment citations had been made only under the provisions of the 1973 edition. I note, for example, that HCFA's Exhibit 2 is titled "Fire Safety Survey Report - 1973 Code," and it was completed for the May 1997 survey. HCFA Ex. 2 at 1. Prior to the hearing, HCFA had provided a copy of this same document to Petitioner as a proposed exhibit in accordance with my prehearing directives. If Petitioner believed that it was in compliance with the requirements of either the 1967 edition or the 1985 edition, and such compliance was material to the outcome of this case, Petitioner had the opportunity to raise those matters as affirmative defenses and submit evidence to prove the affirmative defenses at the hearing. Petitioner did not make use of these opportunities.

Nor has Petitioner shown good cause for excusing its failure to timely raise any issue as to whether the 1967 or 1985 edition should have been used instead of the 1973 edition. Since Petitioner has never suggested that the problems identified by HCFA under the 1973 edition would not have resulted in noncompliance findings under the 1967 Code, there is no basis for believing that HCFA's use of the 1973 edition constituted prejudicial error. The record is devoid of any indication that I should now review the requirements of the 1967 or 1985 edition in the interest of fairness or to avoid causing injustice to Petitioner.

For these reasons, I reject for being untimely and insubstantial Petitioner's intimations that HCFA might have used the incorrect edition of the Life Safety Code.⁽⁸⁾

1. For the 52 day period specified by HCFA, Petitioner was not in substantial compliance with the following requirements of the Fire Safety Code (1973 edition):

-- to maintain corridor doors as required by Section 10-2327 of the
Code, so that they would be able to resist the passage of smoke, and

-- to maintain its smoke walls in accordance with Section 6-611 of
the Code, so that they would remain an effective barrier to smoke.

A. HCFA's proof concerning various corridor doors

Section 10-2327 of the Life Safety Code (1973 edition) provides in relevant part:

[c]orridors in existing institutional occupancies shall be separated from use areas by walls constructed to resist the passage of smoke. . . . Doors shall be provided with latches of a type suitable for keeping the door tightly closed and acceptable to the authority having jurisdiction.

HCFA and the Life Safety Code surveyor interpreted the foregoing requirements as meaning that each corridor door must be able to close tightly into its door frame, and each such tightly fitted door must have a working latch that would keep the door tightly closed within its frame. As the Life Safety Code surveyor, Louise Mauch, explained at hearing, each door in the corridor must fit tightly into the frame to avoid smoke from passing through, and each such door should also have a working latch in order to prevent the door from swinging open with air currents to let smoke pass through. Tr. 135 - 37. These requirements were intended to contain smoke and fire in specific areas, for the safety of nursing home residents. Id.

Ms. Mauch made her inspection during May 1997 in the company of Petitioner's maintenance and housekeeping supervisors, and she found several corridor doors which did not meet the above-cited code requirements. HCFA relies on her findings concerning six corridor doors located at various sites in Petitioner's building to support its conclusion that the violations of Section 10-2327 of the 1973 Life Safety Code constituted noncompliance because, even though no resident had suffered actual harm, the violation had the potential for causing widespread harm at more than minimal level to Petitioner's residents. See , e.g., HCFA Br., 47 - 53.

HCFA relies on Ms. Mauch's findings that four corridor doors leading to utility rooms did not have any latching mechanism on them. These four doors were located at different wings of the facility (A Wing and C-D Wing). Additionally, she also found that the one panel of the double paneled door leading from the corridor to a large dining room would not latch into the doorframe when it was closed. She testified about the unsuccessful attempts she and Petitioner's maintenance supervisor had made to have the one panel of the dining room door go into the latched position. The sixth problem door identified in this group of citations was the corridor door leading to the D-Wing Central Supply Room. Ms. Mauch found a gap located at the top of this corridor door to the supply room, between the door itself and the door frame. She described the gap as of the size through which one could probably stick an index finger. Tr. 447.

[a]ny smoke partition, required by subsequent portion of this Code, . . . shall form an effective membrane, continuous from outside wall to outside wall and from floor slab to floor slab thereby including continuity through all concealed spaces, such as those found above a suspended ceiling, and including interstitial spaces.

The May 1977 survey report shows 12 areas wherein holes or gaps were found in Petitioner's fire walls. HCFA Ex. 1 at 4 - 5.

Ms. Mauch, one of HCFA's witnesses at the hearing, explained why Petitioner was cited for its failure to maintain its smoke walls in accordance with the above-quoted Life Safety requirements. She testified that she inspected those walls during the May 1977 survey in the company of Petitioner's maintenance supervisor. She inspected those walls from the floor to their highest points, which is usually above the ceiling tiles suspended from what is called a "drop ceiling." Tr. 125 - 26, 133. She said she inspected those walls above the ceiling tiles and in the attic areas with the use of a flashlight and a ladder, and she had Petitioner's maintenance supervisor verify her findings at the same time. Id. To prove Petitioner's noncompliance, HCFA especially relies on the following holes and gaps described by Ms. Mauch in her testimony.

Ms. Mauch discovered three openings on the same wall above the isolation room through which smoke could have penetrated. One was an unsealed hole of approximately six inches by six inches in diameter. Another space was found on the same wall around the perimeter of a two inch "pipe chase," the pipe into which wires are placed to traverse a wall. Neither area had been

sealed. Tr. 127 - 28. Additionally, the center of the pipe chase had not been plugged. In Ms. Mauch's opinion, smoke could also have penetrated this fire wall through the unplugged pipe chase. Id .

An additional problem especially relied upon by HCFA was found by Ms. Mauch in the smoke wall above Room 2. This wall also had two problems: a drywall seam three feet in length which had not been sealed around two metal supports, and a two-inch gap at the top of the wall between the roof support and the portion of the drywall that had been cut out to go around that support. Tr. 130 - 31.

HCFA also elicited testimony from Ms. Mauch concerning the holes and gaps she found in the smoke wall over Room 13, in the smoke wall by the computer room, and in the smoke wall by the chapel and the computer room. Tr. 132. She acknowledges that holes must be cut into the walls in order to run pipes, wires, and ducts through walls. She acknowledged also that such holes must be cut larger than what is intended to go through them. However, she provided her opinion that the one inch hole in the block wall by the chapel and computer room should not have been left unplugged when nothing had been run through it. Tr. 132 - 33. She testified also that, after wires and ducts have been placed through the holes made in the smoke wall above Room 13 and in the computer room, the remaining gaps should have been sealed to avoid the penetration of smoke. Tr. 132.

Petitioner's response to most of the foregoing evidence is that its building is old, has seen heavy use, and is large in size.⁽⁹⁾ Instead of denying the existence of apertures in the smoke barrier walls and around those corridor doors identified by the Life Safety Code surveyor, Petitioner committed much effort towards explaining the likely causes of those apertures. Petitioner introduced proof that weather and climate changes, the age of the building, as well as outside contractors who have worked there, were all possible causes.

Nor did Petitioner contend that all of its corridor doors had functioning latches which would have enabled those doors to close tightly against their frames during the 52 days in controversy. Instead, Petitioner attempted to show that Ms. Mauch's inspection for latches was not sufficiently thorough because she could not state with certainty at the hearing on which part of the the dining room door panel the broken latch was located. She knew only that the one door panel would not latch tightly against the door frame when she and Petitioner's maintenance supervisor had made their attempts during the March 1977 survey.

Petitioner relies on the fact that it had a full-time maintenance staff, and the maintenance staff was supposed to deal with matters like the out-of-code doors and fire walls. However, Petitioner did not attempt to show whether or when its maintenance staff had attempted to repair the problems identified by Ms. Mauch during March 1977. Nor did Petitioner offer any evidence to show that, after the March survey, the necessary repair work had been completed prior to the May 9, 1997 date determined by HCFA.

Based primarily on the fact that it employed four full-time maintenance workers during the period in controversy, Petitioner argues that HCFA's findings of noncompliance with Life Safety Code requirements should be set aside because HCFA has offered no evidence that Petitioner's staff had wilfully ignored the maintenance and upkeep of the building , and because HCFA has failed to establish that Petitioner's maintenance staff had allowed the conditions identified during the survey to persist over an unreasonable period of time. P. Br., 44.

I reject Petitioner's arguments. These arguments are not in accord with its burden of moving forward with evidence to rebut HCFA's evidence, nor with its burden of persuasion.

HCFA has proven a prima facie case against Petitioner. The relevant Life Safety Code provisions relied upon by HCFA apply whether or not a nursing home is large and old. They do not permit holes or gaps in smoke walls. Nor does the Code allow some corridor doors to have gaps or to swing open freely because a facility has hundreds of doors throughout the entire building. Smoke will penetrate through gaps and holes no matter how many doors are in the building, and no matter the building's size and age.

Neither the existence of those problems identified by HCFA, nor the potential dangers to residents, have been materially affected by Petitioner's proof of their likely causes. In the event of fire, smoke could have penetrated certain of Petitioner's barrier walls and corridor doors whether or not the gaps had been caused by weather changes, the work done by outside contractors, or the inattention of Petitioner's own maintenance staff. Similarly, the risks to Petitioner's residents were not lessened by Petitioner's proof that the surveyor had failed to note precisely where a non-functioning latch was located on the dining room door that could not be closed tightly against its frame. Petitioner's residents were placed at risk for more than minimal harm by corridor doors which could not be kept closed tightly against their frames either because they lacked the required latches or because the latches did not function properly. The surveyor's inability to identify the location of an improperly functioning door latch has no bearing on the validity of her testimony that this door, along with other corridor doors, could not be kept closed tightly against the door frames.

Even though Mr. Lawson, Petitioner's past owner and current president of the company which operates the facility, gave testimony concerning his opinion that the dining room door's upper latch was functioning properly, that opinion was apparently based on information provided to him by others. Mr. Lawson was not present when Ms. Mauch inspected the double-paneled dining room door and determined that the latching mechanism on one panel was not functioning. The supervisor of Petitioner's maintenance department was not called by Petitioner to testify about what he saw on the inspection tour with Ms. Mauch. Therefore, I gave more weight to Ms. Mauch's testimony on this point than to Mr. Lawson's. Moreover, even if this door panel had latched when Mr. Lawson or Petitioner's employees tested it, that fact would still not invalidate Ms. Mauch's finding that it had not latched when she made her inspection. The relevant Life Safety Code requirement does not permit a corridor door to have a latch that works occasionally or unpredictably.

Contrary to what has been implied by Petitioner's defenses, there was no allegation by HCFA that the above described Life Safety Code violations were committed intentionally by Petitioner. Nor does the definition of noncompliance mention intent. Petitioner was also without legal basis for suggesting that HCFA was under a duty to prove that Petitioner's maintenance staff had been dilatory in performing the work relevant to the matters in controversy. Petitioner had the burden of moving forward with evidence sufficient to establish the elements of any affirmative argument or defense it offered. Petitioner, bearing also the ultimate burden of persuasion, needed to prove by a preponderance of the evidence on the record as a whole, that it was in compliance with the relevant Life Safety Code provisions. It is Petitioner that has failed in these burdens.

To the extent Petitioner was attempting to show that it should have been found in substantial compliance because the cited problems with smoke walls and corridor doors were of very short duration, I find Petitioner's proof inadequate. Petitioner's showing that it employed a maintenance staff full-time to take care of its building did not prove that the problems noted by the surveyor had developed only shortly before the surveyor observed them. Petitioner has introduced no evidence showing, for example, that any outside contractor had been drilling holes in its smoke walls shortly before the survey team's arrival, or that certain unplugged openings occurred due to work that was being done on the walls while the survey was being conducted. Petitioner has also introduced no evidence about when, prior to the May 1997 survey, Petitioner's maintenance workers had last inspected the problem areas observed by Ms. Mauch.

The record contains some testimony that the maintenance supervisor who accompanied Ms. Mauch expressed surprise when the dining room door failed to latch because he thought the problem had recently been repaired. However, there was no evidence presented by Petitioner showing when this repair work was done, or whether it had been performed in fact prior to the May 1997 survey. Petitioner also did not prove that any of the problems identified by HCFA had been eliminated immediately after they were identified by the surveyor. At best, Petitioner's employment of a maintenance staff showed its willingness and capability for coming into compliance with the Code's requirements. It did not prove that Petitioner was in compliance during the May 1997 survey, or that compliance was attained sooner than the date determined by HCFA

For the foregoing reasons, I uphold HCFA's conclusion that Petitioner was out of substantial compliance with the 1973 Life Safety Code's requirements regarding smoke barrier walls and corridor doors for the 52 days from March 18, 1997 until May 8, 1997.

In imposing the CMP of $50 per day for the period from March 18 until May 8, 1997, HCFA has alleged also that Petitioner was out of compliance with additional program participation requirements, and that other residents' health or safety have been placed at more than minimal risk as well.

I do not find it necessary to determine the merits of those additional determinations. The $50 per day rate is at the very bottom of the CMP scale. 42 C.F.R. з 488.438(a). For the reasons explained in Finding 2 and Finding 3, I have already found that HCFA was authorized to impose the CMP of $50 per day for the 52 days in controversy. HCFA seeks no more than $50 per day for those 52 days. Therefore, my rendering a decision on the remaining citations of noncompliance would serve no useful purpose in this case.