SUBJECT:

Colonial Manor Nursing & Care Center of Lansing,

Petitioner,

Health Care Financing Administration

Colonial Manor Nursing and Care Center of Lansing (Petitioner) requested a hearing in this case on October 22, 1998, pursuant to section 1128A(c)(2) of the Social Security Act (Act) and 42 C.F.R. §§ 488.408(g), 498.3(b)(12), (13).⁽¹⁾

Petitioner is a skilled nursing facility participating in the Medicare program. On September 9, 1998, an onsite survey was completed at Petitioner's facility by the Kansas Department of Health and Environment (KDHE), to determine if Petitioner's facility was in compliance with the federal requirements for nursing homes participating in Medicare.

The September visit resulted in a finding that Petitioner was not in substantial compliance with participation requirements and that the conditions in the facility constituted immediate jeopardy to resident health and safety. As a result, the KDHE notified Petitioner that it would recommend termination of the facility's provider agreement and the imposition of a civil money penalty (CMP) to the Health Care Financing Administration (HCFA). HCFA concurred with the recommendations, and, on September 18, 1998, notified Petitioner that its Medicare provider agreement would be terminated on October 2, 1998. A CMP would also be imposed at the rate of $3,050 for each day of noncompliance with participation requirements, beginning September 7, 1998. Petitioner was advised that it could avoid termination by removing the immediate jeopardy to the health and safety of its residents by the established termination date. P. Ex. 2.

A revisit on September 21, 1998 established that the immediate jeopardy was removed on September, 14, 1998 and that the facility was in substantial compliance. Therefore, the facility's participation in the Medicare program would continue uninterrupted. However, a CMP would be imposed from September 7, 1998 through and including, September 14, 1998 in the amount of $3,050 per day.

On October 7, 1999, Petitioner filed a motion for summary judgment and supporting memorandum. For purposes of that motion, Petitioner accepted as true the findings set forth by the KDHE in the summary of deficiencies (Form HCFA 2567) which resulted from the survey completed on September 9, 1998. Petitioner submitted three exhibits with its motion for summary judgment. They have been identified as P. Ex(s). 1-3. HCFA responded by filing a cross-motion for summary judgment but offered no exhibits.

Based on the documentary evidence, the arguments of the parties, and the applicable law and regulations, I find that there are no genuine issues of material fact in dispute and that Petitioner is entitled to judgment as a matter of law. I further conclude that the survey findings do not support HCFA's determination of noncompliance.

Applicable Law and Regulations

A decision may be issued on the basis of statements and evidence presented for the record without a hearing if there is no dispute as to the facts of the case and one party is entitled to judgment as a matter of law.

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

Sections 1819 and 1919 of the Act confer upon the Secretary authority to impose CMPs against a long-term care facility for failure to comply substantially with participation requirements.

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

The regulations specify that a CMP that is imposed against a facility will fall into one of two broad ranges of penalties. 42 C.F.R. §§ 488.408, 488.438. The upper range of CMPs, from $3,050 per day to $10,000 per day, is reserved for deficiencies that constitute immediate jeopardy to a facility's residents, and, in some circumstances, for repeated deficiencies. 42 C.F.R. §§ 488.438(a)(1), (d)(2). The lower range of CMPs, from $50 per day to $3,000 per day, is reserved for deficiencies that do not constitute immediate jeopardy, but either cause actual harm to residents, or cause no actual harm, but have the potential for causing more than minimal harm to residents. 42 C.F.R. § 488.438(a)(2).

The terms "substantial compliance" and "immediate jeopardy" are defined in the regulations which govern participation of long-term care facilities in Medicare. "Substantial compliance" is defined as:

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 as:

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.⁽²⁾ Id.

Section 1128A (a) (2) of the Act, as well as sections 488.408 (c) and 468.3 (b) (12) and (13), make a hearing available to a long-term care facility against whom HCFA has determined to impose a CMP. 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).

Issues

1. Whether the facility was in substantial compliance with federal participation requirements on the dates HCFA determined to impose a CMP, and;

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

Findings and Discussion

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

1. Summary Judgment is appropriate in this case.

Summary judgment is appropriate when there is no genuine issue as to any material fact and one of the parties is entitled to judgment as a matter of law. In the case before me, Petitioner has filed a request for summary judgment and HCFA responded by filing a cross-motion for summary judgment. Petitioner concedes the specific findings of fact set forth in the summary of deficiencies (Form HCFA 2567) prepared by the KDHE on September 9, 1998. P. Ex. 1, attachment A. HCFA does not dispute those facts. Inasmuch as there are no material facts in dispute, and the findings made by the KDHE are sufficient to resolve the issues in this case, summary judgment is proper without an evidentiary hearing.

2. The facility was in substantial compliance with federal participation requirements from September 7, 1998 through September 14, 1998.

The KDHE concluded that Petitioner's facility had identified seven cognitively impaired residents, out of a population of 57, who were elopement risks. The KDHE conducted a record review and staff interviews and concluded that the facility failed to provide adequate supervision and assistive devices to prevent the unauthorized exits of two of seven sampled residents (#101 and #102). P. Ex. 1, attachment A. This was deemed a violation of 42 C.F.R. § 483.25(h).

Resident #101

The facts regarding Resident #101, as set forth in the statement of deficiencies, P. Ex. 1, attachment A, are summarized below.

Resident #101 was admitted to the facility on August 27, 1998, with a diagnosis of dementia. The resident had a history of wandering, and, on admission, had a Wanderguard bracelet placed on him to prevent elopement. Upon arrival, he refused the walker he had been using and ambulated without assistance. On August 28, 1998, at 5:30 p.m. and again at 6:20 p.m., the resident was found by staff leaving the facility unassisted. He was placed in a wheelchair with a "lap buddy" on August 30, 1998. On September 2, 1998, the resident exited the facility unassisted through the north hall door several times. The following day, Resident #101 again left the premises unnoticed through the north hall door. He was found walking down a steep hill before staff could escort him back into the facility. That same day, at 6:10 p.m., staff noticed that Resident #101 was not in his room. A room to room search produced no results. The staff looked in the parking lot and around the building without success. At 6:25 p.m., a police officer informed the facility staff that a "disoriented gentleman" was found in a yard close by. Upon examination, vital signs were normal and he suffered no apparent injuries.

On September 8, 1998, an interview of facility staff confirmed that Resident #101 was observed to be missing around 6:00 p.m. and was returned to the facility around 7:00 p.m. He had walked approximately 150 yards and had crossed a residential street. He was found one and a half blocks away in a yard behind a private residence. It was confirmed that the west hall door alarm did not sound. The alarm was repaired on September 4. On that same day, Resident #101 was transferred to another facility.

Petitioner's contention

Petitioner's contentions are mainly supported by the affidavit of Mr. Thomas J. Denzel, the facility administrator. P. Ex. 1. Below, I will summarize the pertinent claims set forth in that document.

In late August 1998, in response to concerns about the reliability of the two fire exit door alarms, Mr. Denzel ordered a new alarm system, agreeing to pay an additional fee for express delivery. Due to a back order, however, delivery could not be assured until the third week in September. Starting August 24, 1998, Mr. Denzel began conducting daily inspections of the facility's fire exit door alarms to verify proper functioning. Since each door had its own independent alarm that was supposed to sound when either door was opened, the administrator had not previously seen the need for additional alarm devices.

On the evening of September 3, 1998, when Resident #101 was discovered to be missing, the west hall fire exit door was found ajar. When a search of the premises was unsuccessful in finding the resident, the staff alerted police. A short time later, a policeman informed the facility that the resident had been found. Staff dispatched transportation, and the resident was escorted back to the facility. He was immediately assessed and was determined to have suffered no injuries.

The administrator had personally checked the west door on the morning of September 3rd, and it appeared to be working properly. Nonetheless, the alarm failed to sound when Resident #101 exited through it later that day. The administrator later learned that a ball bearing malfunction prevented triggering of the alarm.

On the evening of September 3rd, the facility implemented the following remedial actions:

• Resident #101 was placed under continuous 24-hour observation, until transferred out for a previously scheduled psychiatric evaluation on September 4th; and,
  

• A chair alarm was installed at the top of all the facility's exterior doors as back-up, including the fire exit doors. On September 4th, the chair alarms were replaced with temporary magnetic alarms that were wired into place at the top of each door and door frame. These added measures were in place until the new, permanent system was installed.

Resident #102

The facts regarding Resident #102, as set forth in the statement of deficiencies, P.Ex. 1 attachment A, are summarized below.

Resident #102 was admitted to the facility on July 15, 1998 with a diagnosis of dementia. The nursing staff noted that on August 9, 1998, the resident was found wandering outside. The following day, a Wanderguard bracelet was placed on her. Notwithstanding the bracelet, the resident was found outside in the street on August 11th. Again, on August 16th, the resident wandered into the street unassisted and became agitated when being escorted back to the facility.

On September 6, 1998, the resident exited through the west door. At that time, she was assigned one-on-one supervision. Because of her numerous attempts to elope, and the difficulty encountered by the facility in keeping the resident in the building, the facility began to look for other placements.

Petitioner's contention

Mr. Denzel, the facility administrator stated in his affidavit that on September 6, 1998, Resident #102 unsuccessfully attempted to exit the building without detection or staff intervention. On that date, when she tried to leave the premises, the alarm signal alerted the staff, and she 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. She 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. P. Ex. 1.

HCFA's contention

It is HCFA's position that Petitioner failed to consider that although the facility purportedly placed a chair alarm on the west hall door on September 3, 1998, and temporary magnetic alarms on both north and west hall fire doors the following day, Resident #102 was still able to exit undetected through the west hall door on September 6th. HCFA further avers that the nursing notes do not indicate that the elopement was unsuccessful. Moreover, given the presence of "steep hills" and "residential streets" around the facility, an elopement for any length of time would constitute an immediate jeopardy. Finally, HCFA argues that given the unsuccessful attempts by the facility to prevent elopements, the situation was not resolved until a permanent alarm system was installed on all of the doors on September 14, 1998.

Conclusion

I conclude that Petitioner has shown that it was in substantial compliance with Medicare conditions of participation during the period of September 7, 1998 through September 14, 1998. HCFA had no legal basis for the imposition of a CMP in this case. I hereby find in favor of Petitioner and grant its motion for summary judgment.

HCFA contends that Petitioner failed to provide its residents with adequate supervision and assistive devices to prevent accidents between September 7, 1998 and September 14, 1998. It argues that although Petitioner took added measures to install chair and magnetic alarms on September 3, 1998, Resident #102 was able to elope undetected through the west door on September 6th. Consequently, the elopement problem was not resolved until a permanent alarm system was installed on September 14, 1998. I conclude from this argument that had Resident #102 not exited the facility on September 6th, HCFA would have found that the deficiency in question was abated on September 3, 1998, when additional alarms were installed.

It is true that immediate jeopardy findings may be grounded on past occurrences. However, events that pre-date the implementation of corrective action may not necessarily support a finding of immediate jeopardy after the implementation date. Beverly Health and Rehabilitation, DAB CR553 (1998), at 7.

I find that the corrective actions taken by Petitioner on September 3, 1998, and thereafter, effectively resolved the immediate jeopardy deficiency. Thus, the acts which occurred prior to September 7, 1998 are irrelevant to the issue of whether a deficiency existed after the implementation date.

Petitioner does not dispute that the facility administrator made a personal inspection of the alarm on the west hall fire exit door on the morning of September 3, 1998 and it appeared to be working properly. Thus, when Resident #101 eloped through that door on the evening of September 3rd, the alarm did not sound due to an unexpected malfunction. To correct the situation the facility took the following remedial actions:

1. Resident #101 was placed under continuous 24-hour observation;

2. A chair alarm was installed at the top of all of the facility's exterior doors, including each fire exit door to assure that a functioning alarm was immediately in place on the west hall fire exit door and that a backup alarm would protect against the potential failure of the other fire exit door alarm. Each alarm was attached with velcro strips to the top of the door frame and door beyond the reach of residents. The trigger cord on each alarm was shortened so that the alarm would sound whenever the door was opened two inches or more;

3.On September 4, 1998, the chair alarms on the fire exit doors were replaced with temporary magnetic alarms that were wired into place at the top of each door and door frame. The chair alarms and/or magnetic alarms were continuously in place and operational on each exterior door, including both fire exit doors, from the evening of September 3, 1999 until the new alarm system was installed; and

4. During the morning of September 7, 1998, Resident #102 was placed under 24-hour observation by at least one member of the nursing staff until the resident's discharge from the facility on September 11, 1998.

I find that, by September 7, 1998, Petitioner had abated the immediate jeopardy when it assigned one-on-one supervision to Resident #102. That was the final action that could have reasonably been taken to protect the residents at risk of elopement. Prior to that, not only was a new door alarm system ordered, but, in the interim, Petitioner made earnest efforts to secure the facility's exterior doors with different types of temporary alarms.

As stated earlier, for purposes of this summary judgment, Petitioner accepts the facts as set forth in the statement of deficiencies. P. Ex.1, attachment A. Thus, HCFA places reliance on its summary in Form 2567 to argue that although Petitioner placed a chair alarm on the west hall door on September 3, 1998, and subsequently placed temporary magnetic alarms on the north and west hall doors, Resident #102 was still able to elope undetected through the west hall door on September 6th. HCFA's rationale leads me to conclude that its case primarily relies on the weight given to the alleged elopement on September 6th of Resident #102. Form HCFA 2567, at page 5, states:

[n]ursing noted on 9/6/98 the resident exited unassisted out of the west hall door. Staff member to do one-on-one supervision with the resident at that time.

P. Ex.1, at 5, attachment A.

In its motion for summary judgment, HCFA premises its argument on the allegation that the resident exited the facility "undetected." There is a distinction between the resident exiting undetected and exiting unassisted. For purposes of this summary judgment, I must accept as true that the resident exited unassisted and not undetected, as now claimed by HCFA.

Petitioner is, therefore, correct in its assertion that Resident #102 unsuccessfully attempted to leave the facility "without detection or supervision." P. Ex. 1. However, Petitioner further clarifies, in Mr. Denzel's affidavit, that Resident #102 triggered the alarm when she opened the west hall fire exit door. The alarm alerted the staff, who immediately responded to the signal. A staff member followed the resident outside of the building, remaining in close proximity, and escorted her back into the facility. The temporary alarm functioned as expected and alerted the facility staff that the exit door had been opened. A staff member immediately reacted and was in close proximity to Resident #102 as she went through the exit door. Thus, the deficiency noted here posed no greater risk to the resident's health or safety than the potential for causing minimal harm. Had the resident exited the facility "undetected" and wandered outside without supervision she would have been at great risk of harm. However, as has been shown, that was not the case. The record reflects that Petitioner took all of the reasonable measures that it could have possibly taken to provide supervision and assistance to its residents in order to prevent accidents. HCFA has suggested no other possible action that the facility could have taken. It only asserts that if proper measures had been taken, Resident #102 would not have exited the building on September 7, 1998. It fails to note, that when Resident #102 opened the exit door on September 6th, the temporary alarms installed by Petitioner alerted the staff to the situation and immediate action was initiated. The facility staff "detected" the exit, and although they did not "assist" the resident in leaving the building, they were right there providing timely supervision and escort back into the facility. Additionally, one-on-one supervision was made available to this resident until transfer to another facility was arranged.

In view of the foregoing, I find that there was no immediate jeopardy present from September 7, 1998 to September 14, 1998 based on the survey conducted on September 9, 1998. Moreover, I find that during the alleged period of immediate jeopardy, Petitioner was in substantial compliance.

Jose A. Anglada

Administrative Law Judge

1. This matter was originally assigned to Administrative Law Judge Mimi Hwang Leahy. She dismissed the action for abandonment pursuant to 42 C.F.R. § 498.69 by Order dated May 19, 1999. On August 11, 1999, however, Judge Leahy reinstated the case on Petitioner's motion. Later, the parties filed a "Notice of Issues for Summary Judgment," and a briefing schedule was established.

2. See also Beverly Health & Rehabilitation-Springhill, DAB CR553 (1998).