SUBJECT:

Sonogee Rehabilitation and Living Center,

Petitioner,

Health Care Financing Administration

I decide that the Health Care Financing Administration (HCFA) is authorized to impose civil money penalties against Petitioner, Sonogee Rehabilitation and Living Center. The civil money penalties that I sustain include penalties in the amount of $3,050 per day for each day of a period that begins on May 15, 1999 and which runs through May 19, 1999. The civil money penalties also include penalties in the amount of $150 per day for each day of a period that begins on May 20, 1999 and which runs through July 8, 1999.

I. Background

The Social Security Act (Act) authorizes HCFA to impose against a long-term care facility that participates in the Medicare or Medicaid programs a civil money penalty of up to $10,000 for each day that the facility is found not to be complying substantially with Medicare and Medicaid participation requirements. Social Security Act (Act), sections 1819 and 1919. This case is brought pursuant to sections 1819 and 1919 of the Act and implementing regulations at 42 C.F.R. Parts 483, 488, and 498. Relying on these authorities, HCFA has determined to impose civil money penalties against Petitioner.

Petitioner is a long-term care facility located in Bar Harbor, Maine. It participates in the Medicare program and in the Maine Medicaid program. Residents of Petitioner's facility are individuals who are eligible to receive nursing care benefits from Medicare or who are eligible to receive State Medicaid benefits.

From May 17 through May 20, 1999, surveyors from the Maine Department of Human Services (State survey agency) conducted an annual recertification survey (May 1999 survey) of Petitioner's facility. The purpose of this survey was to ascertain the state of Petitioner's compliance with federal Medicare and Medicaid participation requirements. The surveyors found Petitioner not to be complying substantially with 11 participation requirements and determined that there was immediate jeopardy to resident health and safety with regard to four of these alleged episodes of noncompliance. Subsequently, and after three informal dispute resolution sessions, the State survey agency rescinded three of the four immediate jeopardy level findings.

One alleged immediate jeopardy level deficiency remained as did several alleged non-immediate jeopardy level deficiencies. The alleged immediate jeopardy level deficiency which remained was cited at Tag 324 in the report of the May 1999 survey. Under this deficiency tag the surveyors found that Petitioner was not complying substantially with the Medicare participation requirement that is stated at 42 C.F.R. § 483.25(h)(2). The State survey agency determined that the alleged immediate jeopardy level deficiency was corrected on May 19, 1999. The State survey agency found Petitioner to have attained compliance with the remaining alleged non-immediate jeopardy level deficiencies as of July 8, 1999.

"Immediate jeopardy" is a situation in which a facility's noncompliance with one or more participation requirements has caused, or is likely to cause, serious injury, harm, impairment, or death to a resident. 42 C.F.R. § 488.301. HCFA is authorized to impose civil money penalties in amounts ranging from $3,050 to $10,000 per day for each day that a facility's noncompliance poses immediate jeopardy to its residents. 42 C.F.R. § 488.438. HCFA is authorized to impose civil money penalties in amounts ranging from $50 to $3,000 per day for each day that a facility's noncompliance poses a risk of more than the potential for minimal harm to resident health or safety but where the harm or potential for harm caused by the deficiency does not rise to the level of immediate jeopardy. Id.; see 42 C.F.R. § 488.301.

HCFA concurred with the State survey agency's findings and determined to impose civil money penalties against Petitioner of $4,000 per day for the period of alleged immediate jeopardy (May 15 through 19, 1999). HCFA determined to impose civil money penalties against Petitioner of $150 per day for the remaining period of alleged non-compliance.

Petitioner requested a hearing and the case was assigned to me for hearing and decision. Initially, the parties requested time to pursue settlement negotiations. I scheduled an in-person hearing to take place on October 16, 2000, after the parties advised me that they were unable to settle the case. Prior to the commencement of the hearing the parties informed me that they were no longer contesting the non-immediate jeopardy level citations. They requested that I hear their arguments regarding only the immediate jeopardy level deficiency identified at Tag 324 in the report of the May 1999 survey. The parties also requested that they be allowed to make written submissions in lieu of offering exhibits and testimony in person. I granted the parties' requests. See October 3, 2000 Order and Schedule for Filing Briefs.

The parties complied with the schedule for submitting briefs and proposed exhibits that I established. I am admitting HCFA's exhibits (HCFA Ex.) 1 - 16 and Petitioner's exhibits (P. Ex.) 1 - 27 into evidence in the absence of any objection to the admission of these exhibits.

HCFA has the burden of coming forward with sufficient evidence to prove a prima facie case of noncompliance with a participation requirement where the facility contends that it in fact was complying with that requirement. In that circumstance a skilled nursing facility has the ultimate burden of rebutting, by a preponderance of the evidence, prima facie evidence of noncompliance that is introduced by HCFA. Hillman Rehabilitation Center, DAB No. 1611 (1997), aff'd Hillman Rehabilitation Center v. United States, No. 98-3789 (GEB) (D.N.J. May 13, 1999).

The standard of proof differs where a deficiency is established but where the facility challenges the level of that deficiency (i.e., whether a deficiency is at the immediate jeopardy level). In that event the facility must show HCFA's determination of the level of the deficiency to be clearly erroneous. 42 C.F.R. § 498.60(c)(2).

II. Issues, findings of fact and conclusions of law

A. Issues

The issues in this case are as follows:

1. Was Petitioner in substantial compliance with the participation requirement that is stated at 42 C.F.R. § 483.25(h)(2) from May 15 through May 19, 1999?

2. If Petitioner was not complying substantially with the participation requirement that is stated at 42 C.F.R. § 483.25(h)(2), did such noncompliance constitute immediate jeopardy for Petitioner's residents?

3. What, if any, civil money penalties are reasonable?

B. Findings of fact and conclusions of law

I make findings of fact and conclusions of law (Findings) to support my decision in this case. My Findings are set out below in italics. I discuss each of my Findings in detail.

1. Prior to May 19, 1999, Petitioner did not prevent one of its residents from eloping Petitioner's facility

At the heart of this case is the care that Petitioner gave to a resident who is identified in the report of the May 1999 survey as Resident 11. During the period between the resident's admission to Petitioner's facility on April 27, 1999 and May 19, 1999, the resident made numerous attempts to elope Petitioner's facility. Petitioner was ineffective in preventing the resident from eloping during this period.

At the time of the May 1999 survey, Resident 11 was an 84-year old man with multiple diagnoses including Alzheimer's Disease, congestive heart failure, and prostate cancer. HCFA Ex. 5 at 1 - 16; HCFA Ex. 9 at 5. The resident had well-known tendencies to wander and to attempt to elope. Resident 11 was transferred to Petitioner's facility from another facility so that he could reside in a secure facility that would be able to deal effectively with his propensity to elope. See P. Ex. 2 at 1 - 2; P. Ex. 17; P. Ex. 20.

Resident 11 was placed in Petitioner's Eden Unit or Wing (Eden Wing) which is a secured unit for individuals with dementia. See P. Ex. 14. One of the specific objectives for individual care plans for residents of the Eden Wing is for the behavior of the residents to be managed by the least restrictive method that promotes self-control but which is consistent with necessary measures to provide security for the resident. P. Ex. 14. The Eden Wing's statement of philosophy of care provides that residents will:

reside in a comfortable setting that encourages movement, involvement in normal daily activities of living, [which] recognize[s] the values and characteristics of their past lives and provides interventions necessary to prevent or delay complications of disuse.

Id.

When Petitioner's staff assessed Resident 11 on May 3, 1999, they rated his cognitive skills for daily decision making as severely impaired and noted that the resident had short- and long-term memory problems. HCFA Ex. 9 at 1. Petitioner's staff found that Resident 11 manifested distinct behavioral and mood problems which included wandering and elopements. Id. at 17, 20. The staff observed that Resident 11 wandered on a daily basis and found that he possessed limited intellectual ability due to Alzheimer's related dementia. Id. at 1, 3, 14, 15, 17, 20.

On April 28, 1999, Resident 11 eloped from Petitioner's Eden Wing when the doors apparently did not latch shut. HCFA Ex. 1 at 8; HCFA Ex. 8 at 1; P. Ex. 2 at 2. On this occasion Resident 11 was apprehended before he left the building which comprises Petitioner's facility. The resident's elopement on April 28, 1999, constituted a security failure inasmuch as the doors to the Eden Wing were supposed to remain locked in order to prevent residents of the wing from leaving the wing unsupervised.

On April 29, 1999, Resident 11 eloped from Petitioner's facility twice. HCFA Ex. 1 at 8 - 9; HCFA Ex. 6 at 5; HCFA Ex. 8 at 2. In both of these episodes the resident successfully exited the building. In the first episode, Resident 11 was found by facility staff in the parking lot and brought back into the building. Id. Just ten minutes after the first elopement episode, Resident 11 was again found outside, this time by a visitor, who returned him to the building. Id.

Petitioner's staff considered the possibility that Resident 11 had walked out of the building while deliveries were being made. HCFA Ex. 1 at 8 - 9; HCFA Ex. 6 at 5; HCFA Ex. 8 at 2. However, it was noted that a window was open with its screen removed, and Petitioner's staff concluded that it was likely that the resident had eloped through the window. Id. Petitioner's facility, including its Eden Wing, is at ground level. HCFA Ex. 12; P. Ex. 26 at 1. Windows in the Eden Wing consist of vertical panels that may be cranked open. If they are open they provide an individual with easy access to the outside. P. Ex. 26 at 1 - 3.

Petitioner amended Resident 11's care plan after his April 29, 1999 elopements. HCFA Ex. 4 at 3. The amended care plan stated as a goal that the resident would not elope from Petitioner's building or the Eden Wing. Id. The plan listed approaches that would be used to achieve this goal which included: making certain that unit doors were secured; making certain that windows were locked; medicating the resident as needed as a last resort; taking the resident to day room activities; reporting any elopement efforts immediately to Petitioner's director of nursing; and, checking on the resident's status at 15 minute intervals. Id.

At first, Petitioner attempted to implement the amended care plan by locking doors and windows in all rooms in the Eden Wing, removing the crank handles to the windows, and providing Resident 11 with one-on-one supervision. HCFA Ex. 6 at 5; P. Ex. 2 at 2 - 3. Petitioner also changed the security code signs on the locked doors and had the magnets on the Eden Wing doors serviced to assure that the doors were functioning properly. P. Ex. 2 at 2. However, the window crank handles were put back on, apparently in some cases by April 30, 1999, as other residents and their families complained about lack of ventilation. P. Ex. 1 at 2; P. Ex. 2 at 2 - 3. Moreover, Petitioner's staff continued one-on-one supervision of Resident 11 only through April 30, 1999. P. Ex. 2 at 3.

Resident 11 was evaluated by a psychologist on April 30, 1999. HCFA Ex. 7 at 10. The psychologist observed the resident's dementia. The psychologist found that the resident had a high energy level and was quite strong. Id. The psychologist recommended that: medication might be helpful in aiding Resident 11's adjustment to Petitioner's facility; a safe place should be found to allow the resident to wander and pace; and, a behavior management evaluation should be conducted of the resident. Id. On May 6, the same psychologist made a brief visit to Resident 11. Id. He opined that back and leg pain might be at the root of Resident 11's behavior problems and suggested that Resident 11 be checked for infection. Id. However, as of May 19, 1999, the psychologist's recommendations had not been implemented. See P. Ex. 8 at 9.

After April 30, 1999, Resident 11 continued to attempt to elope from Petitioner's facility. Nursing notes which cover the period from April 29 through May 15, 1999, record that Resident 11 wandered daily, expressed a wish to leave the facility, showed signs of anxiety, and at times displayed physically aggressive behavior towards the nursing staff. HCFA Ex. 8 at 2 - 7. On May 4, 1999, Resident 11 was "more aggressive about getting out of building." Id. at 4. On May 6, 1999, Resident 11 was observed taking a screen off a window in one room in an attempt to push the window out and was later found in another room removing a screen, opening a window, and trying to crawl out of the window. Id. at 14. Notwithstanding the resident's additional attempts to elope, Petitioner's staff decided not to write additional amendments to the resident's care plan and to "continue with the successful interventions we have been using." P. Ex. 1 at 3.

Resident 11 again eloped from Petitioner's facility on the evening of May 15, 1999. HCFA Ex. 1 at 9; HCFA Ex. 8 at 7; P. Ex. 24 at 7. A visitor to the facility found Resident 11 about a quarter of a mile from Petitioner's grounds, walking unattended alongside a highway in a direction that was away from the facility. P. Ex. 24 at 7. The visitor stopped her car when she recognized Resident 11 and got out in an attempt to direct traffic while Resident 11 "bolted" across the highway towards her without checking for on-coming traffic. Id. Resident 11 told the visitor he had back pain. Id. at 7 - 8; HCFA Ex. 1 at 9. When the resident was returned to the Eden Wing the nurse on duty appeared to be unaware that the resident had eloped. P. Ex. 24 at 8; HCFA Ex. 1 at 9; see HCFA Ex. 6 at 2; P. Ex. 8 at 6.

Petitioner's staff checked the Eden Wing's doors in response to Resident 11's elopement. The charge nurse was notified to monitor the resident for safety. HCFA Ex. 6 at 2. The next day, May 16, 1999, Resident 11 was still confused, alert, pacing, and wandering the unit, stating he wanted to go home, and complaining of back pain. HCFA Ex. 8 at 7. Resident 11 was checked for safety every 15 minutes, and a decal was written on the door to the Eden Wing reminding staff to close the door tightly when leaving or entering the wing. Id.

On May 17, 1999, Resident 11 again eloped. HCFA Ex. 1 at 9 - 10; HCFA Ex. 6 at 1; HCFA Ex. 8 at 8. The resident was observed to crank open the window in the Eden Wing's day room and to step outside onto the grass. P. Ex. 5 at 1; see HCFA Ex. 1 at 9 - 10. Various individuals called for help and some aides went out and brought Resident 11 in. HCFA Ex. 1 at 10; P. Ex. 5; P. Ex. 6. The aides experienced some difficulty returning the resident because he was uncooperative. HCFA Ex. 8 at 8.

On May 19, 1999, Petitioner implemented a variety of measures to assure that Resident 11 did not again elope the premises. These measures succeeded in preventing further elopements by the resident. Petitioner fitted all of the windows on the Eden Wing with chains which prevented them from opening to a greater distance than four to six inches. Petitioner decided to install an alarm system which would activate if a resident wearing a bracelet monitor approached the doors to the Eden Wing. Petitioner placed Resident 11 on one-on-one monitoring until the alarm system was operational and sufficiently tested. It scheduled an evaluation for Resident 11 with a psy-geriatric team. P. Ex. 23, at 1 - 2; P. Ex. 1, at 4; HCFA Ex. 1, at 8.

2. Beginning with May 15, 1999 and continuing through May 19, 1999, Petitioner failed to comply substantially with the requirements of 42 C.F.R. § 483.25(h)(2).

The report of the May 1999 survey alleges at Tag 324 that Petitioner failed to comply with the requirements of 42 C.F.R. § 483.25(h)(2). HCFA Ex. 1 at 8 - 10. This regulation provides that a long term care facility must ensure that each resident receives adequate supervision and assistance devices to prevent accidents.

The regulation does not make a facility strictly liable for accidents that may occur to its residents. A facility is obligated to take measures that are designed, to the extent that is practicable, to assure that residents do not sustain accidents that are reasonably forseeable. Woodstock Care Center, DAB No. 1726 (2000), aff'g DAB CR623 (1999).

Petitioner failed to comply with this standard in providing care to Resident 11. It was obvious that Resident 11 would elope from Petitioner's facility if not prevented from doing so. Petitioner failed to take reasonable precautions to prevent the resident from eloping in the face of certain knowledge that the resident would elope if Petitioner failed to take these precautions.

Petitioner offers a number of explanations of its efforts to protect Resident 11 from eloping and the consequences of such actions. The gravamen of these explanations is that the resident presented an extremely challenging management problem and that Petitioner did all that it reasonably could be expected to do to address that problem. The subtext of Petitioner's contentions concerning the care that it gave to Resident 11 is that it had to balance the need to address the resident's propensity to elope against the needs of other residents and limitations on Petitioner's resources.

Petitioner argues that it took extraordinary and timely steps to supervise Resident 11 adequately. It asserts that it engaged in a comprehensive assessment process that included reviewing Resident 11's records from prior placements, contacting staff from the prior placements, and consulting with Resident 11's daughter on his past preferences and needs. Petitioner's asserted efforts to address the resident's symptoms included behavioral management, and pharmacological and environmental interventions. According to Petitioner, the resident's attempts to elope and his elopements occurred despite the reasonable precautions that Petitioner's staff took to prevent the resident from eloping. Therefore, according to Petitioner, the elopement attempts and elopements, while regrettable, were unavoidable.

I find Petitioner's arguments not to be persuasive. I agree that Petitioner undertook all of the measures that it avers it took. But, Petitioner's assertions notwithstanding, it did not take reasonable measures prior to May 19, 1999, to prevent Resident 11 from eloping the facility. My conclusion emerges from the following considerations:

• Petitioner knew that Resident 11 was a very high risk for elopement. Petitioner's staff frequently observed the resident attempting to elope Petitioner's premises. Petitioner was warned by a clinical psychologist that the resident posed a risk for elopement. Petitioner's staff assessed the resident to be a high risk for elopement. The staff dutifully recorded the resident's numerous elopement attempts and occasional successful elopements.

• Petitioner held itself out as a facility that could deal with residents who were elopement risks. It accepted Resident 11 from another facility knowing that the resident was an elopement risk. Indeed, the reason that the resident was transferred to Petitioner's facility was because Petitioner's facility was supposedly capable of dealing with residents who were elopement risks.

• Petitioner knew that the resident's preferred methods for eloping included escaping through ground floor windows that were located in the Eden Wing. In order to prevent the resident from eloping, Petitioner had to make certain that the resident would not escape the premises through the windows. Petitioner's choice was either to make sure that the windows could not be opened so wide as to enable the resident to exit through them or to monitor the resident continuously.

• Petitioner did not consistently implement measures that would have prevented Resident 11 from eloping. For example, Petitioner's staff concluded that they needed to keep the windows in the Eden Wing locked. But, shortly after removing the cranks from these windows, they reinstalled them in the face of complaints from residents other than Resident 11 and family members of these residents. Inexplicably, they stopped providing one-on-one monitoring of Resident 11 even as they were making it possible for a determined resident to crank open a window and elope through that window.

• The measures that Petitioner needed to implement in order to prevent Resident 11 from eloping were not unusually burdensome nor were they exceptionally difficult for Petitioner to implement. They were common sense measures that Petitioner should have known were necessary early in its care of the resident. Petitioner merely had to make sure that the resident would be unable to open the Eden Wing's windows or, alternatively, had to keep the resident under observation. Petitioner's decision on May 19, 1999, to place chains on its windows in the Eden Wing to assure that a resident could not open the windows so wide as to facilitate an elopement was a measure that should have been an obvious action given Resident 11's well documented propensity to elope through the windows. Petitioner's staff could have taken other actions to prevent the resident from eloping - such as implementing continuous monitoring of the resident - well in advance of their doing so on May 19, 1999.

• Prior to May 19, 1999, the resident continued to elope through unlocked and unguarded windows in the Eden Wing as a direct consequence of Petitioner's failure to take adequate precautions to prevent the resident from eloping.

• Only after repeated elopements by Resident 11 did Petitioner take adequate measures to ensure that the resident would not elope.

3. Petitioner's failure to comply substantially with the requirements of 42 C.F.R. § 483.25(h)(2) during the period that ran from May 15 until May 19, 1999, put residents of Petitioner in a state of immediate jeopardy.

Petitioner did not prove to be clearly erroneous HCFA's determination that Petitioner's failure to comply with the requirements of 42 C.F.R. § 483.25(h)(2) placed residents of Petitioner's facility at immediate jeopardy. 42 C.F.R.§ 498.60. Indeed, the weight of the evidence in this case was that there was a very high likelihood of serious injury or death to Resident 11 during his elopements.

Resident 11 did not suffer harm or injury as a consequence of his elopements. But, the fact that he was not seriously injured was his good luck. There was a great likelihood that the resident would experience grievous injury or death during the course of his elopements.

As I have discussed above, at Finding 1, Resident 11 suffered from physical and mental impairments that caused him to be a highly compromised individual. As of May, 1999, the resident was 84 years old. He suffered from congestive heart failure and dementia. The resident's poor physical health and lack of judgment greatly increased the risks of harm or death to the resident when he was away from the facility's premises. The resident's behavior during his elopements is ample support for this conclusion. On May 15, 1999, during the course of one of his elopements, the resident bolted across a busy highway. P. Ex. 24 at 7.

The danger to the resident was exacerbated by the location of Petitioner's facility. The facility is located in such a way that any eloping resident would be in great danger if he or she wandered off the facility's premises. The facility is located between the Atlantic Ocean and a busy highway. P. Ex. 24 at 4. Although the grounds surrounding the facility are in part fenced it is possible for an eloping resident to have access either to the ocean or the highway. Id. That is made evident by the fact that, on May 15, 1999, Resident 11 was discovered wandering alongside the highway during one of his elopements.

The failure to provide care that was sufficient to meet the needs of Resident 11 represents a broader problem than just a single treatment error in the case of one resident. I find that Petitioner's shortcomings in providing care to Resident 11 demonstrate a more generalized failure by Petitioner and its staff to understand Petitioner's obligations under 42 C.F.R. § 483.25(h)(2). That is made evident by the fact that Petitioner did not recognize its responsibility to Resident 11 for more than two weeks after the resident eloped on April 29, 1999.

4. It is not reasonable to impose civil money penalties in the amount of $4,000 per day for each day of the period during which Petitioner was deficient to the extent that residents were in immediate jeopardy. Civil money penalties in the amount of $3,050 per day are reasonable.

A basis exists to impose civil money penalties against Petitioner of between $3,050 and $10,000 per day for each day of the period beginning on May 15, 1999 and running through May 19, 1999, because during that period Petitioner was deficient in complying with participation requirements to the extent that residents of Petitioner were in a state of immediate jeopardy. 42 C.F.R. § 488.438(a)(i). However, the fact that a basis exists for an upper range penalty does not justify per se HCFA's determination to impose a penalty of a particular amount that falls within that range.

There are factors which govern the amounts of civil money penalties. 42 C.F.R. §§ 488.438(f), 488.404 (incorporated by reference into 42 C.F.R. § 488.438(f)(3)). A civil money penalty is reasonable only if it comports with these factors.

HCFA has not explained why it determined to impose penalties in the amount of $4,000 per day against Petitioner, except to assert that Petitioner was deficient at the immediate jeopardy level of noncompliance and that penalties of from $3,050 to $10,000 per day are justified in such circumstances. HCFA's brief at 18. HCFA has not offered any justification of why or how the immediate jeopardy level penalties that it determined to impose are justified by the factors that are stated at 42 C.F.R. §§ 488.438(f) and 488.404.

See Id.

I find that there is no basis to impose civil money penalties against Petitioner which exceed the minimum amount of $3,050 per day that may be imposed for an immediate jeopardy level deficiency. I base my conclusion on the factors that are set forth in the regulations.

First, there is no evidence that Petitioner has any prior history of noncompliance with participation requirements. 42 C.F.R. §§ 488.438(f)(1), 488.404(c)(2). HCFA presented no evidence to show that Petitioner had ever been found deficient previous to May 1999. Nor did HCFA argue that Petitioner's noncompliance as of May 1999 was part of a pattern of noncompliance by Petitioner.

Second, Petitioner's immediate jeopardy level deficiency was at a relatively low level of seriousness. 42 C.F.R. §§ 488.438(f)(3), 488.404(b). I take notice that State survey agencies use a rating system to describe the scope and severity of any deficiency that their surveyors may identify at a survey. The relative seriousness of a deficiency is identified by a letter of the alphabet. Under this system immediate jeopardy level deficiencies are given scope and severity ratings of "J," "K," or "L," with "J" representing the lowest degree of seriousness and "L" representing the highest. In this case the surveyors rated Petitioner's failure to comply with 42 C.F.R. § 483.25(h) at scope and severity level "J." HCFA Ex. 1 at 8.

I am not suggesting that Petitioner's deficiency was not a serious deficiency. It was a very serious deficiency that met all of the criteria for an immediate jeopardy level deficiency. However, there plainly are degrees of seriousness of even immediate jeopardy level deficiencies and any civil money penalties that are imposed should be commensurate with the actual seriousness of the deficiency. The fact that the regulations prescribe a range of penalties for immediate jeopardy level deficiencies is a basis for concluding that less serious immediate jeopardy level deficiencies justify lower penalties.

The relatively less serious nature of Petitioner's deficiency is shown by the fact that no resident, including Resident 11, actually was harmed. True, the potential for harm to Resident 11 was high. As I have discussed above, in this case the difference between actual harm and a potential for harm may be ascribed to the resident's good fortune. But, notwithstanding, no resident was harmed.

Moreover, this is not a case in which Petitioner willfully disregarded the needs of Resident 11. It is plain from the record of this case that Petitioner was both aware of the resident's needs and took measures to address those needs. Those measures were inadequate. But, it cannot be said that Petitioner was indifferent or callous.

Finally, I note that the difference between what HCFA determined to impose - $4,000 per day - and what I have decided is reasonable - $3,050 per day - is substantial. I would not be inclined to second guess HCFA if what HCFA determined to be reasonable and what I decided was reasonable were very close in amount. But, in this case, I find HCFA's determination to be unreasonable to a degree that approaches 25 percent of the penalty amount. That is a significant discrepancy between what HCFA determined to be reasonable and what I find to be reasonable, especially given HCFA's failure to provide any rationale for its determination and the impact of the regulatory factors which I have discussed in this Finding.

5. I sustain civil money penalties in the amount of $150 per day for each day of the period that begins on May 20, 1999 and which runs through July 8, 1999.

Petitioner has withdrawn its contest to the remaining non-immediate jeopardy level deficiencies that were found at the May 1999 survey. Nor does Petitioner contest HCFA's determination that Petitioner attained substantial compliance with all participation requirements, effective July 8, 1999. Therefore, I sustain HCFA's determination that Petitioner was not complying substantially with participation requirements from May 20, 1999 until it attained compliance on July 8, 1999. Finally, Petitioner has withdrawn its challenge of the $150 per day civil money penalties that HCFA imposed for each day of this period. Therefore, I sustain them.

Steven T. Kessel

Administrative Law Judge