SUBJECT:

Westgate Healthcare Center,

Petitioner,

Centers for Medicare & Medicaid Services

DECISION

I sustain the imposition of civil money penalties against Petitioner, Pine River Healthcare Center (formerly Westgate Healthcare Center), by the Centers for Medicare & Medicaid Services (CMS, formerly the Health Care Financing Administration, or HCFA) of $3,050 per day for each day of a period that began on June 2, 1999, and which ran through September 6, 1999. I find no basis to sustain the imposition of civil money penalties against Petitioner of $50 per day for each day of a period that began on September 7, 1999, and which ran through September 9, 1999.

I. Background

Petitioner is a long term care facility that is located in St. Louis, Michigan. Petitioner participates in federally funded health care programs including Medicare and Michigan's Medicaid program. It is governed by federal statutes and regulations which govern participation of long term care facilities in these programs. In 1999 Petitioner was surveyed several times by surveyors employed by the Michigan Department of Consumer and Industry Services (MDCIS) in order to determine whether it was complying with federal participation requirements. These surveys included a "standard" survey that was completed on May 28, 1999 (May 1999 survey), a revisit survey that was completed on August 16, 1999 (August 1999 survey), and subsequent revisit surveys that were completed on September 1, 1999 (September 1, 1999 survey), and on September 9, 1999 (September 9, 1999 survey).

The MDCIS surveyors found Petitioner not to be complying substantially with federal participation requirements at each of these surveys. Most pertinent to this case are findings that they made at the August 1999 survey that Petitioner was failing to comply substantially with two participation requirements at a level of noncompliance that was so egregious as to place residents of Petitioner in a state of immediate jeopardy.

The term "immediate jeopardy" is defined under federal regulations to mean 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. The surveyors, and ultimately CMS, concluded that this alleged state of immediate jeopardy began at Petitioner's facility on June 2, 1999. They subsequently concluded that it was not abated until September 7, 1999.

Based on the MDCIS findings CMS determined to impose civil money penalties against Petitioner which included civil money penalties of $3,050 per day for each day of the period that began on June 2, 1999, and which ran through September 6, 1999, and $50 per day for each day of the period that began on September 7, 1999, and which ran through September 9, 1999. Petitioner requested a hearing and the case was assigned to me for a hearing and a decision.

I held an in-person hearing in Lansing, Michigan on April 10 - 12, 2001, in which I heard the testimony of various witnesses. I received into evidence exhibits offered by CMS consisting of HCFA Ex. 1 - HCFA Ex. 37, and HCFA Ex. 39 - HCFA Ex. 40. I note that the exhibits offered by CMS were marked with the acronym "HCFA." In this decision I refer to these exhibits as they were identified at the hearing. I received into evidence offered by Petitioner consisting of P. Ex. 1 - P. Ex. 139. Additionally, I received into evidence an exhibit identified as ALJ Ex. 1 and another exhibit identified as Joint Ex. 1. I note also that Petitioner attached several documents to its Post Hearing Brief and its Response Brief which it labeled "exhibits." Petitioner has not requested that I mark these documents as exhibits or to receive them into evidence and I do not do so.

II. Issues, findings of fact and conclusions of law

A. Issues

The issues in this case are whether:

a. Petitioner failed to comply substantially with a federal participation requirement to the extent that Petitioner's noncompliance comprised immediate jeopardy for Petitioner's residents;

b. I must sustain civil money penalties against Petitioner of $3,050 per day for each day of a period that began on June 2, 1999 and which ran through September 6, 1999; and

c. I find no basis to impose additional civil money penalties against Petitioner for each day of a period that began on September 7, 1999, and which ran through September 9, 1999.

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. I set forth each Finding below as a separately numbered heading. I discuss each Finding in detail.

This case involves several surveys. Multiple deficiency findings were made at some of these surveys. However, at the heart of this case are findings of immediate jeopardy level deficiencies that were made at the August 1999 survey. CMS determined that these deficiencies had their inception on June 2, 1999, and that Petitioner did not abate these alleged immediate jeopardy level deficiencies until September 7, 1999. The $3,050 per day civil money penalties that CMS determined to impose for the period which began on June 2, 1999, and which ran through September 6, 1999, are predicated on these alleged deficiencies and on their alleged duration.

As I discuss below, the evidence in this case sustains the conclusion that Petitioner manifested at least one immediate jeopardy level deficiency during the June 2 - September 6, 1999, period consisting of its failure to have on duty an adequate number of nursing personnel as is required by 42 C.F.R. § 483.30(a)(1)(ii). It is unnecessary for me to analyze any other deficiency findings that were made during this period inasmuch as they are not necessary elements of my decision to sustain the imposition of immediate jeopardy level civil money penalties.

I sustain civil money penalties of $3,050 per day against Petitioner for each day of the June 2 - September 6, 1999, period because penalties in that amount are the minimum amount that may be imposed for immediate jeopardy level deficiencies and because CMS is authorized to impose such penalties retroactively. I have no authority to curtail or reduce the penalties given the requirements of the regulations and the facts of this case. However, as I discuss below, I have serious reservations as to whether the duration of the penalties and the total amount of penalties that I sustain fulfills a remedial purpose. I am concerned that the effect of these penalties - although entirely justified by regulations - may be punitive.

This case also involves findings by CMS of deficiencies at Petitioner's facility which led to its determination to impose $50 per day civil money penalties for the period which began on September 7, 1999, and which ran through September 9, 1999. I discuss these deficiency allegations below and conclude that CMS failed to establish a prima facie case that there were deficiencies at Petitioner's facility during the September 7 - September 9, 1999 period.

1. Beginning June 2, 1999 Petitioner failed to comply substantially with 42 C.F.R. § 483.30(a)(1)(ii).

The surveyors who conducted the August 1999 survey concluded at Tag 353 of their survey report that, beginning June 2, 1999, Petitioner failed to comply substantially with the requirements of 42 C.F.R. § 483.30(a)(1)(ii). HCFA Ex. 4 at 24 - 26. This deficiency finding was one of two immediate jeopardy level deficiency findings that were made in the report of the August 1999 survey. See HCFA Ex. 4 at 3 - 17, 27 - 41.

The regulation at issue requires that a facility must have sufficient staff to provide nursing and related services to residents so that each resident attains his or her highest practicable level of physical, mental, and psychosocial well being. More specifically, it requires that a facility must provide services "by sufficient numbers" of personnel, including "other nursing personnel," on a 24-hour basis to provide nursing care to all of the facility's residents in accordance with the residents' individual care plans. 42 C.F.R. § 483.30(a)(1)(ii).

CMS established a prima facie case of noncompliance with this requirement which Petitioner did not rebut by the preponderance of the evidence. Petitioner did not have an adequate number of nursing personnel at work during its nursing staff's night shift in its special dementia unit for residents who suffer from Alzheimer's disease or other dementia. From June 2, 1999, through September 6, 1999, Petitioner had only one nursing assistant working in the dementia unit during the night shift when at least two assistants were needed given the configuration of the unit, the number of residents, and the residents' mental conditions, and other associated medical problems.

Petitioner housed its demented residents in a specialized dementia unit. Petitioner separated its demented residents from other residents who were not demented so that it could give specialized care to the demented residents and so that it could protect its non-demented residents from demented residents' disruptive behavior. Tr. at 533 - 534.

During the June 2 - September 6, 1999, period the resident census of Petitioner's dementia unit ranged from 10 - 11 individuals. Id. at 566. The majority of these residents' dementia had progressed to the point where their developmental state was that of a four or five-year-old child. Tr. at 676. Many of these residents had a propensity to wander. At least some of them exhibited restlessness and would wander at night. Some of the residents were agitated at times. Some of them were prone to engaging in altercations either with other residents or with Petitioner's staff. Others would engage in inappropriate behaviors in addition to wandering such as obsessive patting and rubbing of objects or persons or climbing into other residents' beds.

The dementia unit is a one-floor residential unit that is separated from the remainder of Petitioner's facility by a locked doorway. HCFA Ex. 37 at 1. It is divided into two areas: an indoor area containing residents' sleeping quarters; a bathroom; a day room; a dining area and additional space; and, an outdoor aisle way and courtyard. Id. at 1 - 2. The indoor part of the dementia unit is divided into six rooms. Id. at 1. The rooms are separated by three hallways. Id.

The outdoor aisle way and courtyard area is separated from the indoor area by a door which has an alarm system. This door opens into the outdoor aisle way, which is about 30 feet by about 12 feet, and which leads into the area that comprises the courtyard proper. HCFA Ex. 37 at 2. The courtyard is a rectangular area with dimensions of about 65 feet by about 35 feet. Id.

The aisle way and the courtyard form an "L" shaped exercise area with the aisle way running parallel to the side of the dementia unit and at a right angle to the courtyard. The aisle way connects with the courtyard at the point where two of the courtyard's sides form a right angle. HCFA Ex. 37 at 2. The courtyard is in the shape of a rectangle that is located at the rear of the dementia unit. Id. There is a concrete walk in the aisle way. This merges into a concrete walk which follows the circumference of the courtyard. Id. There are trees and a table in the courtyard. Id. The borders of the aisle way and courtyard that are not abutted by Petitioner's facility are bounded by a fence that is approximately eight feet high at its highest point. Id. Throughout the period covered by the surveys in 1999 there was no exterior lighting system for the aisle way and courtyard although an adjacent parking area did have outdoor lighting which provided some illumination to the aisle way and courtyard at night.

Some of Petitioner's residents wore "tethers" that would trigger the alarm if they opened the door to the aisle way and courtyard. Other residents did not wear tethers. The alarm would be triggered if a tethered resident walked through the doorway. It would not be triggered if an untethered resident walked through the doorway. However, at no time during the June 2 - September 6, 1999, period was the doorway locked. Thus, both tethered and untethered residents could enter and leave the aisle way and courtyard at will. Access to the aisle way and courtyard was not restricted during night time hours.

During daylight hours throughout the June 2 - September 6, 1999 period Petitioner staffed its dementia unit with two nursing assistants. Tr. at 99 - 101; 471. At night during this period Petitioner had only one nursing assistant on duty full time in the dementia unit. Id. After August 13, 1999, Petitioner also assigned a nursing assistant to assist at night in performing bed checks in the dementia unit at two hour intervals. Id. at 474. However, this staff member was not in the dementia unit on a full time basis.

I infer from Petitioner's decision to create a dementia unit that was separated from the remainder of Petitioner's facility by a locked door and which was surrounded by a high fence that at least some of the unit's residents had a propensity to wander into circumstances where, if unsupervised, they were susceptible to injury. See Tr. at 533 - 534. However, it is not necessary for me to rely on this inference to conclude that the dementia unit's residents were vulnerable if unsupervised. The care records of the residents who were housed in Petitioner's dementia unit provide extensive evidence of these individuals' vulnerabilities and the need to watch them closely.

The residents who were in Petitioner's dementia unit during the June 2 - September 6, period included individuals who are identified in survey reports as Residents 3, 4, 21, 22, and 25. These residents acted out their dementia in unique ways. But, a common trait that was shared by these residents, particularly Residents 3, 4, 21, and 25, is that they had a tendency to wander at night. The conduct that these residents engaged in during the course of their night time wandering endangered their well-being and the well-being of other residents. This conduct included falls while wandering unescorted, disruptive behavior, and agitated interactions with other residents.

• Resident 3. This resident had diagnoses which included Alzheimer's dementia with delusions and agitation, insomnia, depression, and chronic obstructive pulmonary disease. HCFA Ex. 15 at 17. The resident had a history of wandering which included wandering at night and during early morning hours. Id. at 29, 31, 34. The resident's agitation included frequent episodes of yelling, pacing, and moving furniture, and many of these episodes occurred at night. Id. at 29 - 35. Resident 3's treatment records establish that the resident had a propensity for falling and that the resident had fallen on some occasions. On August 1, 1999, at 1:10 a.m., Resident 3 fell when he attempted to sit on a bed that moved out from underneath him. Id. at 13.

• Resident 4. This resident had diagnoses which included senile dementia and depression. HCFA Ex. 16 at 9. The resident had a tendency to sleep much of the time. Id. at 19. However, he also had a tendency to wander into other residents' rooms and to lie down there. Id. The resident could engage in abusive behavior when receiving care. Id. The resident's abusive behavior included pulling at Petitioner's staff's hair and striking them. Id. On one occasion, the resident attempted to get into another resident's bed, which led to Resident 4 and the resident whose bed he attempted to occupy striking out at each other. Id. at 31.

• Resident 21. This resident had diagnoses which included Alzheimer's type dementia with combativeness and agitation. HCFA Ex. 19 at 33. The resident had a history of depression and insomnia. Id. He was also diagnosed as having a potential for falling secondary to his use of psychotropic medications. Id. The resident occasionally wandered during the night. Id. at 41, 42, 45. On June 2, 1999, at 12:15 a.m., the resident was found in the dementia unit's outdoor courtyard sitting on the sidewalk. Id. at 11. On this occasion the resident received scrapes to his right elbow, his right ankle, right hand, and right pinkie finger. Id.

• Resident 22. This resident had diagnoses of dementia and occasional urinary incontinence. HCFA Ex. 20 at 9. On June 13, 1999, the resident was found on the floor at 6:30 a.m. Id. at 13. The resident was found to have sustained a fracture to her right hip. Id. at 11.

• Resident 25. This resident's diagnoses included Alzheimer's disease, cerebrovascular insufficiency, senile depression, and psychosis. HCFA Ex. 22 at 15. The resident manifested agitated and compulsive behavior. Id. Her compulsive behavior included repeatedly rubbing other residents. Id. at 15 - 16, 27. At times, the resident's compulsive rubbing of other residents caused them to become agitated which, in turn, would increase the resident's agitation. Id. at 27. On occasion Resident 25 would become combative when Petitioner's staff attempted to provide care for the resident or to stop her from rubbing other residents. Id. at 39 - 40. Some of these episodes occurred at night. Id. at 30, 35, 37, 39.

The conduct of these residents created a high potential for harm both to themselves and to other residents. Their unsupervised wandering, especially in light of the compromised physical state that some of them manifested, posed a substantial risk for injury. Some of these residents were at a high risk for sustaining injuries associated with falls. The record clearly shows that some of these residents, particularly Residents 21 and 22, did sustain injuries from falls. Resident 22's fractured hip was a very serious injury. The compulsive and highly agitated behavior that some of these residents demonstrated posed a great risk for causing physical conflict with other residents. That is evident from the episode in which Resident 4 attempted to enter another resident's bed and the subsequent altercation between Resident 4 and the other resident.

It is reasonable to infer that from 40 to 70 percent of the residents in Petitioner's dementia unit wandered at night. Tr. at 682. Indeed, the number of documented nocturnal episodes in Petitioner's dementia unit suggests that the need to monitor resident behavior may have been nearly as great during nighttime hours as it was during the day. One staff member could not possibly monitor the six rooms and three hallways in the dementia unit simultaneously. See HCFA Ex. 37. Furthermore, the fact that residents had access to the dementia unit's outdoor aisle way and courtyard at night meant that there was a large exterior area which was available to the residents and, essentially, cut off from view from the interior of the dementia unit. This comprised an additional large area that staff was obliged to monitor and which staff could not see if they were occupied within the dementia unit.

All of the foregoing sustains my conclusion that Petitioner did not have an adequate number of nursing assistants on duty full time in its dementia unit during nighttime hours to deal with the problems caused by the residents thereby contravening the requirements of 42 C.F.R. § 483.30(a)(1)(ii). This failure by Petitioner was substantial in that it posed the risk of more than minimal harm to residents of the dementia unit. The number of residents in the unit, the problems that these residents exhibited, and the size and configuration of the dementia unit made it impossible for a single employee to conduct effective monitoring and there was a more than minimal risk that unmonitored residents might harm themselves or other residents.

Petitioner argues that as a matter of law CMS failed to establish a basis for finding that Petitioner did not comply substantially with the requirements of 42 C.F.R. § 483.30(a)(1)(ii). It asserts that the allegations of noncompliance that are made at Tag 353 of the report of the August 1999 survey merely incorporate allegations made under another tag - Tag 224 - in the report of the same survey without explaining how these allegations describe a failure to comply with the staffing regulation.

I disagree with this argument. The allegations that are made under Tag 353, when read in conjunction with those that are made under Tag 224, describe the inadequate staffing that Petitioner had in its dementia unit. In fact, Tag 224, which is incorporated by reference into Tag 353, avers explicitly that Petitioner had only one nursing assistant on duty in its dementia unit at night, and the view of the aisle way and courtyard from the interior of the dementia unit was obstructed. HCFA Ex. 4 at 3, 4, 6, 8, 15.

In two decisions which predate this decision, Carehouse Convalescent Hospital, DAB CR729 at 21 - 22 (2001), and Life Care Center of Hendersonville, DAB CR542 at 43 (1998), I held that as a matter of law CMS (then HCFA) had failed to make out a case that a nursing facility had inadequate numbers of professional staff. These cases are distinguishable from the present case. In both Carehouse and in Life Care CMS asserted that facilities had neglected the needs of their residents and asked that I infer from evidence purporting to show neglect that the facilities in question had insufficient numbers of professional staff. In neither case did CMS offer proof based on the facility's staffing pattern that the actual number of the facility's professional staff was inadequate. I held in those cases that it was not possible to infer an inadequate number of professional staff at a facility solely from evidence that residents were not receiving care of a high quality because factors other than inadequate staffing might account for poor quality of care.

Here, however, CMS has offered evidence which establishes the number of professional staff available to provide care to Petitioner's residents during night time hours. I may conclude that this staffing was inadequate from the evidence which shows what staff was on duty coupled with evidence about: the size and configuration of Petitioner's dementia unit; the mental and physical states of the residents; and, the behaviors that the residents engaged in. Indeed, whether Petitioner actually neglected the needs of its residents within the meaning of the regulation proscribing neglect is not relevant to my decision that Petitioner had inadequate numbers of staff in its dementia unit at night. The potential for harm to residents resulting from inadequate staffing is relevant and I have concluded that there was a substantial potential for harm in this case. Actual neglect is not relevant because staffing may be inadequate regardless of the quality of care that is being delivered moment-by-moment by a facility's staff.

Petitioner also relies on the testimony of two experts - William Silverstone, M.D., and Thomas Naughton, D.O. - as affirmative proof that it had an adequate number of professional staff in its dementia unit during night time hours. I have examined the testimony of these two witnesses closely. Although I find both of Petitioner's experts to be credible, generally, I am not persuaded by their testimony on the issue of adequacy of staffing. Dr. Silverstone testified that having one staff employee on duty at night "met the standard" for nursing facilities. Tr. at 641 - 642. However, he never identified what standard he was referring to. Moreover, his testimony did not address the specific problems associated with Petitioner's dementia unit. He did not explain how one staff member would be able to monitor adequately the 10 - 11 residents in the unit given the number of rooms and corridors in the unit, the unit's access to an outdoor aisle way and courtyard that could not be viewed in their entirety from the interior of the unit, and the propensity of the residents to wander. See Id.

Dr. Naughton did not aver that the number of professional staff on duty in Petitioner's dementia unit was adequate. He testified that he could not say whether one staff member would be sufficient to meet the needs of the residents. Tr. at 685. He testified that there was no specific ratio of staff to residents that was called for under the guidelines that he was familiar with. Id. He suggested that it might be possible to infer that Petitioner had an adequate number of staff on duty from the relative infrequency of falls that occurred at night. I find that this is not persuasive evidence of an adequate number of staff for the same reason that I found in Carehouse and in Life Care that evidence of poor quality of care is not proof of an inadequate number of staff. The problem with evidence showing fewer falls at night than at other times of day is that the relative reduction in falls at night might be explained by factors other than the number of staff on duty. Furthermore, the fact that there are, statistically, fewer falls in a particular time of day does not explain whether any of them would have been avoidable had Petitioner had a greater number of nursing assistants on duty.

Petitioner also argues that its resident/staff ratios conformed at all times to those which are required by Michigan State law governing nursing facilities. See Exhibit # 3 attached to Petitioner's Post-Hearing Brief. Under Michigan State law a facility must maintain a resident/staff ratio of 15/1 or less during a nighttime shift. Id. Petitioner argues that the ratio in its dementia unit was less than 15/1 (it was either 10/1 or 11/1 throughout the period that is at issue). It asserts that it should not be held liable for failing to comply with 42 C.F.R. § 483.30(a)(1)(ii) because that regulation contains no specific staffing ratio requirements and because the regulation should not supersede State requirements where the regulation is not specific and where State requirements are specific.

I am not persuaded by this argument. My conclusion that Petitioner did not adequately staff its dementia unit by having only one staff member assigned to the unit on a full time basis during the night is consistent with the requirements of Michigan State law and with the requirements of 42 C.F.R. § 483.30(a)(1)(ii).

The Michigan State law cited by Petitioner governs the staffing ratio that must be maintained at an entire facility. At issue here is not the staffing ratio that Petitioner maintained for its entire facility but the ratio that it maintained in a discrete and specialized unit within that facility. Moreover, the law in question contains a general requirement which is in addition to the specific ratio requirements. It provides that, in addition to the specific ratios prescribed by the statute, "there shall be sufficient nursing care personnel available on duty to assure coverage for patients at all times during the shift." Exhibit # 3 attached to Petitioner's Post-Hearing Brief. I read this language as requiring a facility to require a resident/staff ratio of less than 15/1 and as low as may be dictated by the needs of residents if that is what is required to provide adequate coverage to those residents. Here, the evidence shows that the ratio of Petitioner's demented residents to staff that Petitioner provided at night was objectively inadequate. A smaller ratio was needed to provide adequate coverage given the condition of the residents and the configuration of the dementia unit.

Finally, Petitioner argues that the unsupervised wandering of its residents at night and the occasional minor injuries and altercations that resulted from such wandering are consistent with its philosophy of giving the residents as much freedom as is possible in light of their circumstances. Petitioner asserts that the alternative - which it contends would be to restrain the residents - is contrary to modern medical principles for managing demented individuals and is contrary to CMS's own policy of minimizing the use of restraints.

Petitioner's decision to minimize the use of restraints is laudable. But, it begs the question of whether Petitioner was providing adequate supervision at night to the residents of its dementia unit. Put simply, residents might have been able to wander in much greater safety had there been an additional staff member on duty to keep track of their whereabouts.

2. Petitioner failed to comply substantially with the requirements of 42 C.F.R. § 483.30(a)(1)(ii) from June 2, 1999 until September 7, 1999, when it put a second nursing assistant on duty at night in its dementia unit.

There is no dispute that as of June 2, 1999 Petitioner was assigning only one nursing assistant to staff its dementia unit during night time hours. Petitioner did not assign a second nursing assistant to be present in the dementia unit throughout the night until September 7, 1999. HCFA Ex. 31 at 25 - 27. From this evidence I conclude that Petitioner was not complying with 42 C.F.R. § 483.30(a)(1)(ii) on June 2, 1999, and did not attain compliance with the regulation until September 7, 1999.

3. Petitioner did not prove to be clearly erroneous CMS's determination that Petitioner's failure to comply with the requirements of 42 C.F.R. § 483.30(a)(1)(ii) comprised immediate jeopardy for Petitioner's residents.

If the presence of a deficiency is established then I must uphold a determination by CMS that the deficiency comprises immediate jeopardy for residents unless that determination is clearly erroneous. 42 C.F.R. § 498.60(c)(2). At Finding 1 I conclude that Petitioner was deficient in complying with the requirements of 42 C.F.R. § 483.30(a)(1)(ii). CMS determined that Petitioner's failure to comply with the regulation was so egregious as to comprise immediate jeopardy for Petitioner's residents. Petitioner did not prove this determination to be clearly erroneous.

Petitioner argues strenuously that there is no persuasive evidence that anything it or its staff did or failed to do concerning the residents in its dementia unit caused any of the residents to be harmed. However, I need not make findings in this case that residents experienced harm in order to sustain CMS's determination of an immediate jeopardy level deficiency. The presence of actual harm is not a necessary prerequisite to finding an immediate jeopardy level deficiency. A deficiency comprises immediate jeopardy where that deficiency causes or is likely to cause serious injury, impairment, harm, or death to a resident of a facility. 42 C.F.R. § 488.301.

In this case there is considerable evidence of a likelihood that residents of Petitioner's dementia unit would experience serious injury, impairment, harm, or death from the failure of Petitioner to staff the unit adequately at night. By any definition the residents of the dementia unit were extremely vulnerable individuals. They had, on average, the developmental abilities of 4 or 5-year-old children. They had greatly diminished cognitive capacity. Some of them were agitated much of the time. Some were combative or aggressive as a consequence of their dementia. These circumstances were a recipe for injuries resulting from unsupervised wandering. And all of these residents were unsupervised at night when they wandered beyond the eyesight of the dementia unit's single staff member.

The fact that none of these individuals may have been injured seriously during their unsupervised night time wanderings does not suggest that the potential for such injuries did not exist. Indeed, one of the residents, Resident 21, sustained minor injuries from a fall that occurred while he was in the outdoor courtyard, unsupervised, at night. It is not a leap of logic to infer from that event that the potential for something much more serious was present. And, another resident, Resident 22, sustained a fractured hip from a fall that occurred while the resident was unsupervised. Although this injury may not have occurred during the night and may not have been the consequence of inadequate staffing, the fact that the resident sustained so serious an injury from a fall is a basis for concluding that the resident or others were likely to suffer serious injuries from falls resulting from unsupervised wandering.

4. It is not necessary that I make Findings concerning the presence of or levels of other deficiencies that are alleged to have been present at Petitioner's facility during the period that ran from June 2, 1999, through September 6, 1999.

CMS alleges that during the period which began on June 2, 1999, and which ran through September 6, 1999, Petitioner manifested deficiencies in addition to its failure to comply with the requirements of 42 C.F.R. § 483.30(a)(1)(ii). See HCFA Ex. 2; HCFA Ex. 4; HCFA Ex. 5. These additional deficiencies include a second alleged immediate jeopardy deficiency cited at Tag 224 in the report of the August 1999 survey. This second alleged immediate jeopardy deficiency is an alleged failure by Petitioner to implement written policies and procedures to prevent mistreatment, neglect, and abuse of residents as is required by 42 C.F.R. §483.13(c)(1). HCFA Ex. 4 at 3 - 17, 27 - 41.

It is not necessary that I make findings concerning these additional alleged deficiencies inasmuch as their presence or absence will add nothing to my decision in this case. The presence or absence of deficiencies in addition to the single immediate jeopardy level deficiency which is the basis for the penalties imposed in this case is irrelevant. CMS has the authority to impose immediate jeopardy level civil money penalties of $3,050 - $10,000 per day based on the presence of even a single immediate jeopardy level deficiency. 42 C.F.R. § 488.408(e)(2)(ii). In this case CMS determined to impose civil money penalties in amounts of $3,050 per day. That is the minimum civil money penalty amount for an immediate jeopardy level civil money penalty. The presence or absence of other deficiencies will not affect this penalty amount.

5. I sustain civil money penalties of $3,050 per day for each day of the period which began on June 2, 1999, and which ran through September 6, 1999.

As I discuss above, at Finding 4, the minimum daily civil money penalty amount that CMS may impose for an immediate jeopardy level deficiency is $3,050 per day. That is the amount that CMS imposed in this case. I sustain it because it is the minimum amount and because it is based on the presence of an immediate jeopardy level deficiency.

I also sustain CMS's determination to impose civil money penalties in amounts of $3,050 per day for each day of the period which began on June 2, 1999, and which ran through September 6, 1999. I do so although I have very strong reservations as to whether the total amount of civil money penalties that I am sustaining in this case - more than $296,000 - is remedial and not punitive.

The inception date of Petitioner's immediate jeopardy level noncompliance with the staffing requirement predates by nearly three months the notice that Petitioner received of noncompliance. It was not until August 16, 1999, that a surveyor employed by MDCIS made a finding that Petitioner was out of compliance with the staffing requirement and that this noncompliance began on June 2, 1999. Petitioner was not sent notice of the finding of an immediate jeopardy level noncompliance with the staffing requirement until August 26, 1999. HCFA Ex. 1 at 1 - 5.

The evidence in this case shows that Petitioner acted promptly to correct the staffing deficiency at its facility once it received the August 26, 1999, notice of that deficiency. It assigned two staff members to work full time in its dementia unit at night effective September 7, 1999.

The immediate jeopardy level civil money penalties that CMS determined to impose are largely retroactive. Of the more than $296,000 in total civil money penalties that CMS determined to impose as a consequence of Petitioner's immediate jeopardy level deficiency $262,300 is attributable to penalties that are for dates that predate the August 26, 1999, notice to Petitioner of an immediate jeopardy level failure by it to comply with the staffing requirement.

I would not sustain penalties in these amounts if I had the discretion not to do so. The purpose of the law governing civil money penalties is remedial and not punitive. Social Security Act (Act) sections 1819, 1128A. It is designed to induce facilities who are not complying with participation requirements to correct ongoing deficiencies. Imposition of civil money penalties is supposed to function as a spur to these facilities to correct their deficiencies. A noncompliant facility knows that penalties are likely to accrue until it corrects an outstanding deficiency. It is encouraged to correct that deficiency promptly by the likelihood that penalties will accrue until the deficiency is corrected.

However, the penalties that CMS determined to impose for the period prior to the August 1999 survey (indeed, prior to the August 26 notice of the findings that were made at that survey) do not appear to serve any remedial purpose. They cannot be viewed as an inducement to Petitioner to correct its deficiencies. There is no evidence in this case that Petitioner knew prior to the August 1999 survey that its staffing level failed to comply with the requirements of 42 C.F.R. § 483.30(a)(1)(ii) or that it was likely to incur civil money penalties at an immediate jeopardy level because it had decided to have only one staff member on duty full time in the dementia unit at night. Indeed, the MDCIS surveyors conducted a presumably thorough standard survey of Petitioner's facility in May 1999 and failed then to notice the staffing deficiency in Petitioner's dementia unit. See HCFA Ex. 2. How can Petitioner be induced to correct its inadequate staffing by penalties which apply retroactively to a period of time where the staffing was inadequate but where Petitioner was unaware of the deficiency, had no notice of it, and had not been informed that penalties might be imposed against it as an inducement to comply with participation requirements?

CMS argues that the civil money penalties that it determined to impose are remedial and not punitive. Its argument, essentially, is that the Act has been found to have a remedial purpose. Therefore, according to CMS, the actions it takes to apply the Act in an individual case are remedial and not punitive. I do not disagree that the Act is remedial. But whether a determination to impose civil money penalties is remedial depends on how those penalties are imposed in the context of a particular case. I cannot discern the remedial purpose of civil money penalties if those penalties do not serve as an inducement to a facility to correct its deficiencies. Labeling as a "remedy"a fine for past noncompliance does not make it a remedy.

However, I must sustain the civil money penalties notwithstanding my serious reservations about whether they are, in fact, remedial. Regulations governing the imposition of civil money penalties authorize CMS to impose civil money penalties retroactively precisely in the manner in which CMS has determined to impose them here. 42 C.F.R. § 488.430(b). The regulations do not give me the discretion to make civil money penalties prospective only. Nor do they give me the discretion to reduce civil money penalties for an immediate jeopardy level deficiency to an amount of less than $3,050 per day, which is the daily penalty amount that I am sustaining in this case.

6. CMS failed to establish a prima facie case to support the imposition of civil money penalties after September 6, 1999.

CMS bases its case for imposing civil money penalties against Petitioner of $50 per day for each day of the September 7 - September 9, 1999, period on a survey report that MDCIS completed after the September 9, 1999, survey of Petitioner. HCFA Ex. 6. The report cites several alleged deficiencies. Id. But, it recites no facts to support the surveyors' findings that these alleged deficiencies were present at the time of the survey. Furthermore, CMS offered no evidence at the in-person hearing to support its contentions that deficiencies persisted after September 6, 1999. In light of that, I find that CMS failed to present a prima facie case that Petitioner was deficient after September 6, 1999, and I find no basis to impose civil money penalties for any date after September 6, 1999.

Steven T. Kessel

Administrative Law Judge