SUBJECT: Lake Park Nursing and Rehabilitation Center,

Petitioner,

Centers for Medicare & Medicaid Services

FINAL DECISION ON REVIEW OF
ADMINISTRATIVE LAW JUDGE DECISION

Lake Park Nursing and Rehabilitation Center (Lake Park), a North Carolina skilled nursing facility (SNF), appeals an August 25, 2005 decision by Administrative Law Judge (ALJ) Carolyn Cozad Hughes in which she upheld a $3,050 civil money penalty (CMP) imposed by the Centers for Medicare & Medicaid Services (CMS). Lake Park Nursing and Rehabilitation Center, DAB CR1341 (2005) (ALJ Decision). The ALJ upheld the CMP because she concluded that on two days -- January 26 and 27, 2003 -- Lake Park was not in substantial compliance with 42 C.F.R. � 483.25(h)(2), which requires a SNF to ensure that each resident receives "adequate supervision and assistance devices to prevent accidents." Lake Park challenges this conclusion on various grounds. As we discuss below, we find none of Lake Park's arguments persuasive. Accordingly, we affirm the ALJ Decision in its entirety.

Background

A SNF is subject to enforcement remedies, including the imposition of a CMP, if it is not in "substantial compliance" with the Medicare participation requirements in 42 C.F.R. Part 483. See 42 C.F.R. �� 488.402(c), 488.408. A SNF is not in [Page 2] substantial compliance if (1) it has one or more "deficiencies" -- i.e., one or more violations of a Medicare participation requirement, and (2) the deficiency or deficiencies are of sufficient severity that they create at least the potential for more than "minimal harm" to resident health or safety. See 42 C.F.R. � 488.301; The Windsor House, DAB No. 1942, at 2-3, 61 (2004). The regulations use the term "noncompliance" to refer to "any deficiency that causes a facility to not be in substantial compliance." 42 C.F.R. � 488.301.

In February 2003, a compliance survey found that Lake Park had "failed to supervise" a resident -- Resident 3 -- with "known wandering behaviors" and had also "failed to respond to exit door alarms when this resident wandered out of the facility" on January 27, 2003. CMS Ex. 3, at 1. Based on these findings, the state survey agency determined that Lake Park was not in substantial compliance with section 483.25(h)(2) on January 26 and 27, 2003, and that the noncompliance was at the level of "immediate jeopardy." Id.; CMS Ex. 5. CMS accepted these survey findings and imposed a $3,050 per day CMP for the two days of alleged noncompliance. CMS Ex. 7.

Lake Park appealed CMS's enforcement action. The parties later consented to have the dispute resolved by the ALJ without an in-person evidentiary hearing. See January 10, 2005 Waiver of Oral Hearing.

Based on the parties' documentary evidence and briefs, the ALJ found the following facts: Resident 3 was admitted to Lake Park on January 15, 2003. She was then 71 years old and suffered from congestive heart failure, hypertension, osteoporosis, Parkinson's disease, and chronic obstructive pulmonary disease (for which she needed supplemental oxygen). Resident 3 had a history of serious mental illness, including paranoid schizophrenia and multiple personality disorder. She had long and short-term memory problems, and her cognition was severely impaired.

From the day of her admission, Resident 3 exhibited wandering behavior and attempted to leave the facility. Lake Park's nursing staff responded by having her wear a Wanderguard, a device that triggers an alarm when the resident approaches a door that is wired to the alarm system. According to a January 17, 2003 nursing note, Resident 3 needed "'close supervision [at] all times.'" ALJ Decision at 6 (quoting LP Ex. 6, at 46).

On January 20, 2003, Lake Park completed a formal risk assessment in which Resident 3 was rated as a "high risk" for wandering and possible elopement.

[Page 3] In addition to her penchant for wandering, Resident 3 was unsteady on her feet. On January 19, 2003, the nursing staff found her on the floor next to her wheelchair. A nursing note that discussed the incident indicates that Resident 3 had fallen while attempting to walk. In response, Lake Park placed her in a "merry walker," a device that helps a person with impaired balance to ambulate. An oxygen tank was attached to the back of the merry walker. After receiving the merry walker, Resident 3 continued to wander, sometimes going into other residents' rooms uninvited.

By January 20, 2003, Lake Park had formulated a written plan of care that addressed Resident 3's wandering. The plan stated the following goal: "Whereabouts [of Resident 3] will be known to staff at all times as demonstrated by no events of leaving facility." ALJ Decision at 8 (quoting LP Ex. 6, at 11). The ALJ found that to minimize the potential that Resident 3 would suffer injury as a result of her wandering Lake Park's nursing staff "put into place" the following "interventions": "1) frequent checks of the resident's location; 2) ensuring that the resident's identification bracelet was on at all times; 3) ensuring that alarmed exits were functional at all times; 4) orienting the resident to surroundings and room number as frequently as needed; 5) counsel wandering and praise appropriate behavior; 6) post the resident's name on her door; 7) ensure that the resident's picture and name were placed on the 'wandering resident board'; and 8) involve the resident in activities as appropriate." Id. (quoting LP Ex. 20, � 7). In addition, Lake Park moved Resident 3 to a room nearer the nurses' station so that she could be observed more closely. Lake Park also attempted to schedule a psychiatric consultation for Resident 3.

A nursing note written at 8:00 p.m. on January 26, 2003 states that Resident 3 was found sitting on a table in the facility's lobby, with excrement on the seat of her pants and legs and scrapes and abrasions on her left elbow and knee. Her merry walker was found in one of the facility's courtyards.

On January 27, 2003, the nursing staff noted that Resident 3 was "'wandering all around the building,'" going into other residents' rooms and taking their belongings. ALJ Decision at 10 (quoting LP Ex. 6, at 54). At 7:35 or 7:40 p.m., an alarm sounded. According to a nursing note, two nurses checked the alarm system, and a nurse and housekeeper searched the carport area and the side of the building but saw no one and returned to the facility. Later, a visitor entered the facility and reported seeing a wheelchair in a ditch. Two nurses then went outside and found Resident 3 sitting in the ditch between some rocks. She [Page 4] was muddy and bleeding, had a lump on the back of her head, and had abrasions on her shoulder, arm, and hip. A nursing note stated that Resident 3's "'unobserved fall'" had occurred at 8:00 p.m. Id. at 11 (quoting LP Ex. 6, at 65)).

Based on the foregoing facts, the ALJ determined, in section IV-A of her decision, that Lake Park had failed to provide Resident 3 with adequate supervision on January 26 and 27, 2003 and was therefore not in substantial compliance with section 483.25(h)(2) on those days. ALJ Decision at 11, 15.

The ALJ's determination that Lake Park was not in substantial compliance with section 483.25(h)(2) on January 26^th was based on the incident in which Resident 3 was found in the facility's lobby, separated from her merry walker, with scrapes and abrasions on the left side of her body. See ALJ Decision at 9-10. The ALJ observed that Lake Park made "no apparent effort" to determine when and how Resident 3 was injured, noting that Lake Park had merely speculated that the injuries "'could have occurred while getting out of the Merry Walker or during her re-entry from the enclosed courtyard back into the lobby, given that she had a[n] unsteady gait.'" Id. at 9 (quoting from a Lake Park brief). The ALJ found that Resident 3's "unexplained" injuries, coupled with the discovery of her merry walker in the courtyard, "certainly suggest an accident, most likely a fall." Id. The ALJ also found that Lake Park would have been able to explain how or why the incident occurred had Resident 3 been adequately supervised:

The uncontroverted evidence establishes that, notwithstanding its stated goal -- R3's "whereabouts [would] be known to staff at all times" -- and its plan for "frequent checks of the resident's location," sometime on January 26, 2003, R3 injured herself, soiled herself, and left her merri-walker (to which she and her compulsory supply of oxygen were purportedly attached) outside in the courtyard. And the facility offers no explanation as to what happened, nor exactly when it happened. That the facility made no apparent effort to figure this out hardly strengthens its case. It recognized that R3 needed "close supervision at all times," but provides no evidence as to where, how, or even when, within hours, R3's injuries occurred. Had R3 been appropriately supervised, injuries might still have occurred, but the facility would be able to explain something about the circumstances surrounding their occurrence.

[Page 5] Id. at 9-10. The ALJ concluded that, with respect to the January 26^th incident, CMS had made a prima facie showing of noncompliance with section 483.25(h)(2) "based on [Resident 3]'s unexplained injuries and the abandonment of her merri-walker in the courtyard," and that Lake Park had "essentially offered no response" to CMS's prima facie case. Id. at 10.

As for Resident 3's supervision on January 27^th, the ALJ found "[n]o credible evidence" that the nursing staff had been monitoring Resident 3's whereabouts in the hours prior to her elopement that day, even though Resident 3's plan of care called for "frequent checks" of her location. ALJ Decision at 11. The facility did produce documents showing hourly checks of Resident 3's location, but, according to the ALJ, these documents show only that hourly checks were performed on January 28, the day after Resident 3's elopement. Id.

The ALJ also found that Lake Park had responded inadequately to the exit door alarm that Resident 3 apparently triggered on January 27^th. ALJ Decision at 13-15. According to the ALJ, the nursing staff "did not understand how to determine which door alarm was sounding," and when the correct exit door was identified by checking each door, the staff "took only a perfunctory look around the immediate vicinity." Id. at 15. In addition, said the ALJ, none of the nursing staff indicated that a head count was performed -- or would have been performed -- to determine if a resident had in fact eloped. Id. The ALJ noted that a frail and confused resident who succeeds in leaving the facility is "at increased risk when outside the facility without supervision," and, therefore, a SNF must "develop practices designed to return that resident quickly and safely to the facility." Id. at 12.

Based on her findings that Lake Park had failed to check on Resident 3's location and failed to respond adequately to the exit door alarm, the ALJ concluded that Lake Park "fell short of taking reasonable steps to mitigate foreseeable risks of harm" and therefore was not in substantial compliance with section 483.25(h)(2) on January 27, 2003. ⁽¹⁾ ALJ Decision at 16.

[Page 6] In section IV-B of her decision, the ALJ upheld, as not clearly erroneous, CMS's finding that Lake Park's noncompliance with section 483.25(h)(2) had placed one or more residents in "immediate jeopardy." ALJ Decision at 15-16.

Finally, having upheld CMS's immediate jeopardy finding, the ALJ concluded, in section IV-C, that she was bound by the regulations to sustain the $3,050 per day CMP imposed by CMS for Lake Park's noncompliance.

Standard of Review

We review an ALJ's decision to determine if it is supported by substantial evidence and free of legal error. Guidelines for Appellate Review of Decisions of Administrative Law Judges Affecting a Provider's Participation in the Medicare and Medicaid Programs, www.hhs.gov/dab/guidelines/prov.html (DAB Appellate Review Guidelines); Golden Age Nursing & Rehabilitation Center, DAB No. 2026 (2006).

Discussion

In this appeal, Lake Park takes issue only with the determination in section IV-A of the ALJ Decision. LP Br. at 1. Specifically, Lake Park contends that the ALJ erroneously concluded that its [Page 7] nursing staff failed to ensure that Resident 3 received "adequate supervision" on January 26 and 27, 2003. See id. at 4-17.

The participation requirement at issue here, section 483.25(h)(2), states that a facility "must ensure that . . . [e]ach resident receives adequate supervision and assistance devices to prevent accidents" (emphasis added). The requirements of this regulation have been explained in numerous Board decisions. Northeastern Ohio Alzheimer's Research Center, DAB No. 1935 (2004); Woodstock Care Center, DAB No. 1726, at 28 (2000), aff'd, Woodstock Care Center v. Thompson, 363 F.3d 583 (6th Cir. 2003). Although section 483.25(h)(2) does not make a facility strictly liable for accidents that occur, it does require the facility to take all reasonable steps to ensure that a resident receives supervision and assistance devices that meet his or her assessed needs and mitigate foreseeable risks of harm from accidents. Woodstock Care Center v. Thompson, 363 F.3d at 590 (a SNF must take "all reasonable precautions against residents' accidents"). A facility is permitted the flexibility to choose the methods of supervision it uses to prevent accidents, but the chosen methods must be adequate under the circumstances. Id. Whether supervision is "adequate" depends, of course, on the resident's ability to protect himself or herself from harm. Id.

We first consider the arguments supporting Lake Park's contention that the ALJ erroneously found a lack of substantial compliance with section 483.25(h)(2) on January 26^th.

1. The ALJ's conclusion that Lake Park failed to ensure that Resident 3 received adequate supervision and was not in substantial compliance with section 483.25(h)(2) on January 26, 2003 is supported by substantial evidence and free of legal error.

Based on evidence of the incident in which Resident 3 was found sitting on a table in the facility's lobby with scrapes and abrasions but without her merry walker, the ALJ concluded that CMS had made an unrebutted prima facie showing that Lake Park had failed to ensure that Resident 3 received adequate supervision on January 26, 2003. In reaching this conclusion, the ALJ noted that the circumstances of the incident, including the location of Resident 3's injuries, suggested that an "accident," probably a fall, had occurred.

Lake Park asserts that the mere occurrence of injuries, absent evidence of their cause (evidence that Lake Park says is absent [Page 8] here), is not proof of inadequate supervision. LP Br. at 11. Lake Park suggests that the ALJ found it noncompliant with section 483.25(h)(2) on January 26^th not because of any failure to provide adequate supervision, but because it could not explain how Resident 3 sustained her injuries. Id. at 13. Lake Park asserts that "[h]ow the facility investigated or explains the incident after the fact is irrelevant" in determining whether the facility had complied with section 483.25(h)(2). Id. at 14 (italics in original). Lake Park also suggests that the ALJ lacked a basis for supposing that Resident 3's injuries resulted from an "accident." Id. at 11.

We disagree, first of all, that the ALJ lacked a basis for suggesting that Resident 3 had had an accident on January 26^th. An "accident" is an "'unintended, unexpected event that can cause a resident bodily injury.'" Beechwood Sanitarium, DAB No. 1906, at 106 (2004) (quoting the CMS State Operations Manual). When Resident 3 was found in the lobby on January 26^th, she reportedly said, "'I just fell over in them trees.'" LP Ex. 6, at 54. Falling over in some trees appears on its face to be an unexpected or unintended event that can cause a nursing home resident bodily injury. ⁽²⁾ Resident 3's description of the incident, coupled with the fact that she was found in the lobby separated from her merry walker (which was discovered in the courtyard) with scrapes and abrasions on one side of her body, adequately support the ALJ's supposition that the resident's injuries were the result of a fall or other accident.

We agree, of course, that the mere occurrence of an accident does not, by itself, prove that a facility provided inadequate supervision. Beechwood Sanitarium. Conversely, the absence of an accident does not establish that the facility provided adequate supervision. Id.; Lakeridge Villa Health Care Center, DAB No. 1988 (2005). When an accident does occur, the circumstances surrounding an accident (or apparent accident) may support an inference that the facility's supervision of a resident was inadequate. St. Catherine's Care Center of Findlay, Inc., DAB No. 1964 (2005).

[Page 9] In this case, the ALJ did not find the facility noncompliant on January 26^th merely because an accident had occurred. Rather, she found that the circumstances of the accident together with the facility's failure -- or inability -- to suggest an explanation for Resident 3's injuries supports an inference that Resident 3 was not receiving the "close" supervision she required when the injuries occurred. The ALJ did not state or imply that the facility had to conclusively determine the cause of the injuries. She merely found that Lake Park would have been able to "explain something about the circumstances surrounding their occurrence" had Resident 3 been "appropriately supervised." ALJ Decision at 10.

We see no basis to reverse the ALJ's conclusion that CMS made an unrebutted prima facie showing of inadequate supervision on January 26^th. There is substantial evidence that Resident 3 needed "close" supervision, not only because she was an elopement risk but because she was at risk for falls. On January 17, a nurse wrote that Resident 3 needed "close supervision at all times." LP Ex. 6, at 46. Her plan of care stated that a goal for preventing injuries due to wandering was for the staff to know her whereabouts "at all times." Id. at 11. These measures are consistent with the evidence concerning her behavioral tendencies and overall medical condition. Medical records predating January 26^th show that Resident 3 was somewhat unsteady while standing (id. at 5 ("Test for Balance")), could not follow simple directions at times (id. at 45-46), had difficulty understanding others (id. at 25, 28), was frequently confused (id. at 45-53), had impaired decision-making ability (id. at 34), was at risk for falls due to her impaired mental and physical condition (id. at 35), and was generally at "risk for injury to self or others due to maladaptive behaviors" (id. at 34). Nurses noted that because of her confusion, Resident 3 sometimes needed "redirection" when using her merry walker. Id. at 53. Nursing notes indicate that on January 19 Resident 3 fell while attempting to ambulate without assistance. Id. at 49, 70. Although it appears that the facility responded to this incident by giving her a merry walker, there is no evidence, as the ALJ accurately noted, that Resident 3's use of the merry walker negated the risk of falling or need for supervision. If anything, the merry walker may have increased the need for supervision by enhancing Resident 3's mobility and, hence, the risk of accidents from wandering or elopement.

In addition, the ALJ reasonably inferred from Lake Park's failure or inability to know the circumstances of Resident 3's injuries that Resident 3 did not receive adequate supervision on January 26^th. If the nursing staff is watching or following a resident [Page 10] closely -- Resident 3's plan of care stated that its goal was to know Resident 3's whereabouts "at all times" -- it is fair to assume (absent contrary evidence) that the staff will have some ability, however imperfect or incomplete, to know or discern the circumstances of a resident's injuries. In this case, there is no evidence that the facility had any understanding, or capacity to reconstruct, the circumstances of Resident 3's apparent accident. For example, there is nothing in the available treatment records indicating that staff observed Resident 3 going out to or returning from the courtyard, where the injuries apparently occurred, much less observed her in the courtyard. In addition, the records do not indicate how long Resident 3 may have been sitting on the table in the lobby (itself an unsafe situation for a resident at risk of falls) before the staff found her. The facility's failure to have any grasp of these basic facts warranted an inference that Resident 3 was not getting the close supervision she required when her injuries occurred.

The reasonableness of the ALJ's inference is further confirmed by evidence that the facility did not begin to document periodic checks of Resident 3's location until after January 27^th. The ALJ found, and Lake Park does not dispute, that Resident 3's plan of care required frequent location checks. As we discuss in greater detail in section two, although the facility produced some records of location checks, these records show only location checks performed after Resident 3's elopement on January 27^th. The facility offered no explanation for the lack of similar documentation for January 26^th or 27^th. Absent such documentation, or a reasonable explanation for its absence, the ALJ could reasonably surmise that the nursing staff did not perform -- or consistently perform -- frequent location checks of Resident 3 on January 26^th.

Lake Park asserts that it "was unable to determine how Resident #3 sustained minor scrapes and abrasions, despite investigation" (emphasis added). LP Br. at 11. This statement that the facility investigated the incident is at odds with the ALJ's finding that Lake Park had made "no apparent effort" to determine what happened. ALJ Decision at 9. However, the record supports the ALJ's finding: there is no evidence whatsoever that the facility tried to determine how or why Resident 3's injuries occurred. ⁽³⁾ The daily nursing notes do not show such an inquiry, [Page 11] merely the comment elicited from Resident 3 that she had fallen over in some trees. See LP Ex. 6, at 54. In addition, the record contains no investigative report reflecting interviews with nurses and other employees who were responsible for monitoring Resident 3 on January 26^th. The failure to investigate an accident can itself be evidence of inadequate supervision. The duty to ensure that a resident receives "adequate supervision and assistance devices" is one that requires the SNF to take all reasonable measures to mitigate foreseeable risks of harm from accidents. Aase Haugen Homes, Inc., DAB No. 2013 (2006). If a resident sustains what appear to be accidental injuries, a reasonable first step to prevent the recurrence of harm would be to inquire about how or why the injuries occurred and to review existing safeguards to ensure their adequacy and implementation. See Beechwood Sanitarium at 106-107 (affirming a finding of noncompliance with section 483.25(h)(2) based on the facility's failure to investigate an accident in which a resident sustained a hip injury and its not acting to prevent a recurrence of the injury until after the resident reported it to a doctor). A facility may not ignore a resident's injuries in the blind hope that they occurred despite all reasonable precautions.

Lake Park also contends that CMS was obligated to offer proof of the cause of Resident 3's accident, and suggests that CMS's failure to do so resulted in the facility being subjected to a deficiency citation under a "strict liability" standard. LP Br. at 11. We find no merit to this contention because proof of an accident is not a prerequisite for a deficiency finding under section 483.25(h)(2). Beechwood Sanitarium; see also St. Catherine's Care Center of Findlay, Inc. (indicating that section 483.25(h)(2) requires "adequate supervision and assistance devices to prevent accidents" but does not require a causal link to an actual accident or injury). To carry its burden of going forward before the ALJ, all that CMS needed to do was make a prima facie showing that Lake Park failed to ensure that one or more residents received adequate supervision. See Sancturary at Whispering Meadows, DAB No. 1925 (2004). CMS made that showing, for the reasons we have discussed. Furthermore, there is no merit to Lake Park's suggestion that the ALJ applied a strict liability standard. She did not uphold the deficiency finding based merely on the occurrence of Resident 3's injuries. Rather, [Page 12] the ALJ found that the circumstances surrounding the injuries and Lake Park's inability to explain how Resident 3 sustained them were evidence of the nursing staff's failure to provide Resident 3 with adequate supervision. Thus, the ALJ correctly applied the legal standard in section 483.25(h)(2). The quality of care requirements do not impose strict liability on nursing homes but they "do impose an affirmative duty to provide services . . . designed to achieve those [favorable] outcomes to the highest practicable degree." Woodstock Care Center, DAB No. 1726, at 25.

Lake Park makes much of the fact that prior to January 26^th, it developed a plan of care that specified numerous measures to ensure Resident 3's safety, including assessing her risk of elopement, putting a Wanderguard on her ankle, and moving her to a room closer to the nurses' station. See LP Br. at 4-8. Lake Park also asserts that "[a]ll appropriate interventions . . . were constantly and consistently being implemented" during her first weeks in the facility. Id. at 6, 8. However, Lake Park's evidence does not confirm this broad assertion of implementation, particularly with respect to the plan of care's requirement for frequent checks of Resident 3's location.

Lake Park also contends that the ALJ's findings regarding the incidents on January 26^th and 27^th imply a belief that the nursing staff should have been providing Resident 3 with "constant one to one monitoring," even though the regulations do not expressly require such monitoring, and even though the facility considered such monitoring to be appropriate only when Resident 3 was extremely agitated. LP Br. at 11-12. Lake Park also suggests that the ALJ improperly substituted her judgment about the level of monitoring needed by Resident 3 under the circumstances for the professional clinical judgment of the facility's nursing staff. Id. at 13.

We find no merit in this argument. The ALJ did not find, or even imply, that Resident 3 needed "constant one to one monitoring." Rather, she found that Resident 3 needed "close supervision at all times." ALJ Decision at 9. This is exactly how one of Resident 3's nurses described the level of supervision required, see LP Ex. 6, at 46, and the term "close supervision" is consistent with the plan of care's goal of ensuring that Resident 3's whereabouts were known "at all times." Furthermore, the ALJ did not substitute her judgment for the professional judgment of the nursing staff because she did not specify how the facility should have provided "close supervision" or find that the [Page 13] measures called for in Resident 3's plan of care were inadequate to achieve this level of supervision. ⁽⁴⁾

Finally, Lake Park appears to criticize the ALJ for having "converted" CMS's "justification" for the finding of noncompliance on January 26^th from an "elopement" to an "accident." ⁽⁵⁾ LP Br. at 11. However, an ALJ is not required to accept CMS's theory of a case, and Lake Park does not contend that it lacked sufficient advance notice of the grounds on which it was ultimately found to be noncompliant on January 26^th. In any event, Lake Park clearly did have notice. The Statement of Deficiencies gave Lake Park notice that it was not in substantial compliance with section 483.25(h)(2) for failing to provide adequate supervision to prevent accidents and stated all of the facts on which CMS based its determination and on which the ALJ relied.

For the reasons above, we affirm the ALJ's conclusion that Lake Park failed to ensure that Resident 3 received adequate supervision to prevent accidents and was not in substantial compliance with section 483.25(h)(2) on January 26, 2003. We now turn to Lake Park's contentions regarding January 27^th.

2. The ALJ's conclusion that Lake Park failed to ensure that Resident 3 received adequate supervision on January 27, 2003 and was not in substantial compliance with section 483.25(h)(2) is supported by substantial evidence.

The ALJ concluded that Lake Park was not in substantial compliance with section 483.25(h)(2) on January 27, 2003 based on two key findings: first, that the facility's nursing staff failed to perform "frequent checks" of Resident 3's whereabouts during the afternoon and early evening hours prior to her [Page 14] elopement; and second, that the nursing staff responded inadequately to the exit door alarm that Resident 3's elopement apparently triggered.

Regarding the ALJ's first key finding, Lake Park does not dispute that Resident 3's plan of care called on the nursing staff to check on her location frequently. See LP Br. at 6 (indicating that frequently checking the resident's location was an element of Resident 3's plan of care). Lake Park claims that it produced documentation of "routine, hourly location checks." LP Br. at 16. But the ALJ found, and Lake Park does not dispute, that this documentation shows hourly location checks performed on January 28, the day after Resident 3's elopement. See LP Ex. 6, at 67-69. The record contains no comparable documentation of hourly checks performed prior to January 28^th and no testimony explaining the absence of such documentation. In addition, there is no testimony from members of the nursing staff who were on duty on January 27^th about how Resident 3 was monitored that day. Under the circumstances, the ALJ reasonably found Lake Park had failed to perform frequent location checks of Resident 3 during the afternoon and evening hours prior to her elopement. This finding alone warranted the ALJ's conclusion that Lake Park was not in substantial compliance.

In support of her second key finding -- that Lake Park responded inadequately to the exit door alarm -- the ALJ identified several problems: (1) the nursing staff "did not understand how to determine which door alarm was sounding"; (2) when the correct exit door was identified, the staff "took only a perfunctory look around the immediate vicinity"; (3) there was no indication that a head count was performed -- or would have been performed -- to determine if a resident had in fact eloped; and (4) Lake Park's Missing Resident policy did "not provide staff specific instructions for responding when an exit alarm sounds." ALJ Decision at 12-15.

Lake Park does not dispute that these problems existed on January 27^th, nor does it dispute the ALJ's conclusion that the problems amounted to a failure to ensure adequate supervision of Resident 3. In fact, Lake Park does not expressly assert -- or make an argument -- that the ALJ's second key finding is not supported by substantial evidence. Instead, it makes a single, conclusory assertion -- namely, that its "reaction to the alarm was entirely appropriate and consistent with the regulations as well as the facility's own policies and procedures and as such should not serve as the basis for the deficiency finding at issue." LP Br. at 17. Lake Park also refers us to briefs that it filed with the ALJ. Id.

[Page 15] The regulations and guidelines governing appeals to the Board require an appellant to identify the findings of fact and conclusions of law with which it disagrees and to specify the basis for contending that the disputed findings and conclusions are incorrect. See 42 C.F.R. � 498.82(b); DAB Appellate Review Guidelines. Lake Park has failed to comply with this requirement. As noted, Lake Park does not expressly challenge the ALJ's finding concerning its response to the exit door alarm. Instead, Lake Park asserts a bare conclusion that its actions on January 27^th were proper without citing any evidentiary support for that conclusion. Lake Park compounds this noncompliance by adopting an appellate briefing strategy -- incorporating by reference briefs submitted to the ALJ -- that is specifically prohibited by Board guidelines. See DAB Appellate Review Guidelines ("Do not merely incorporate by reference a brief previously submitted to the ALJ").

In any event, there is substantial evidence to support the ALJ's second key finding regarding the adequacy of Resident 3's supervision on January 27^th. The evidence includes statements by members of the nursing staff that their search for Resident 2 after the alarm sounded was limited to only two parts of the property (the carport and side of the building), as well as a statement by Lake Park's administrator that the nursing staff did not comply with the facility's procedure for responding to an exit door alarm. See CMS Ex. 3, at 5-6.

There is also an unrebutted survey finding that at least one nurse who was on duty in Resident 3's unit on January 27^th displayed confusion or uncertainty about how she should respond to the exit alarm. According to the Statement of Deficiencies, this nurse admitted, in front of the facility's administrator, that she "did not know what alarms were for what doors." CMS Ex. 3, at 8. After the nurse made this admission, Lake Park's administrator immediately directed the facility's Staff Development Coordinator to retrain the nurse on the door alarms. ⁽⁶⁾ Id.

In addition, a review of the record confirms the lack of evidence that the nursing staff performed, or intended to perform, a head [Page 16] count of residents after its initial search of the facility failed to locate Resident 3. Bronda Burton, R.N., an employee of the corporation that operates Lake Park, testified that "an appropriate initial response to the alarming door would have been to look briefly outside the building and conduct a headcount." LP Ex. 21, at 2.

Lake Park remarks that "prior to the event of January 27, 2003, the resident did not make any actual attempts to leave the facility. As such, prior to the event at issue, the facility staff was not on notice that Resident #3 would attempt to leave the building." LP Br. at 15. This assertion is contradicted by Lake Park's own records, which show that Resident 3 attempted to leave the facility on January 15, shortly after her admission. LP Ex. 6, at 45. In addition, the facility's January 20^th risk assessment put her at "high risk" for wandering and possible elopement, with a risk assessment score one point less than the maximum. Id. at 9. On the risk assessment evaluation form, the nursing staff indicated that Resident 3 had had "one or more attempts to leave home/facility and/or wanders in past three months." Id. She was noted to be "frequently" agitated, have a "severe cognitive impairment," and be "[c]onfused most or all the time with no decision making ability." Id. Complicating this profile was the fact that she was "[a]mbulatory and/or self-mobile." Id. This evidence makes it clear that on January 27^th, Lake Park knew not only of the risk that Resident 3 would leave the building but of actual attempts to do so. ⁽⁷⁾

For the reasons above, we affirm the ALJ's conclusion that Lake Park failed to ensure that Resident 3 received adequate supervision to prevent accidents and was not in substantial compliance with section 483.25(h)(2) on January 27, 2003.

3. There is no basis to disturb the ALJ's conclusions with respect to the level of noncompliance or the amount of the CMP.

[Page 17] CMS determined that Lake Park's failure to comply with section 483.25(h)(2) had placed one or more residents in "immediate jeopardy," a "situation in which the facility's noncompliance "has caused, or is likely to cause, serious injury, harm, impairment, or death of a resident" and one that supports the imposition of a per day CMP between $3,050 and $10,000. See 42 C.F.R. � 488.301; 42 C.F.R. � 488.438(a)(1)(1). Applying the applicable standard of review, the ALJ concluded in section IV-B of her decision that CMS's immediate jeopardy finding was not "clearly erroneous." The ALJ also concluded in section IV-C that she was required to sustain the $3,050 per CMP under these circumstances. Lake Park disputes neither of these conclusions. See LP Br. at 4 (indicating that the "questions presented" for appeal relate only to section IV-A of the ALJ Decision). Accordingly, we affirm them without discussion. ⁽⁸⁾

Lake Park accurately contends that the ALJ did not mention or discuss certain opinions expressed by geriatric health care consultant David L. Jackson, M.D., Ph.D., a physician with expertise in geriatric medicine and long-term care. LP Br. at 17; see also LP Ex. 8. In particular, Lake Park pointed to statements by Dr. Jackson that Resident 3 had been "appropriately assessed" for accident risk and that the facility's nursing staff had devised an individualized plan of care that adequately balanced Resident 3's need for safety and the goal of maintaining her independence and quality of life. LP Br. at 18 (citing LP Ex. 8, at 2). Lake Park also quoted the following opinion, which appears in the final paragraph of Dr. Jackson's declaration:

I strongly believe that an episode of elopement should not, in and of itself, lead to the citation of a deficiency. Certainly when, as is the case with Resident #3, there are documented attempts to ameliorate and manage such risks [of falls and elopement], a citation at Level J [immediate jeopardy] is not justified. It is my strongly held judgment that a review of the entire record on this resident's care, the details of the episode of elopement itself and the [Page 18] allegations with accompanying details cited in the CMS 2567 [Statement of Deficiencies], taken in their entirety, do not justify citation at the level of immediate jeopardy.

Id. (citing LP Ex. 8, at 2). Lake Park asserts that Dr. Jackson's opinions were not challenged by CMS and suggests that the ALJ erred in failing to assign them "some weight" in her analysis. Id. at 19.

An ALJ is not required to discuss evidence that does not detract from the ALJ's findings. See Estes Nursing Facility Civic Center at 5 ("While an ALJ does not have to address every fact in the record, he/she must address the evidence that conflicts with the evidence supporting his/her findings of fact"). The statements by Dr. Jackson that Lake Park relies upon do not in any way detract from the ALJ's findings. Indeed, the statements cited by Lake Park are primarily legal conclusions, not evidence. Dr. Jackson simply stated his opinion, based on record review, that a facility should not be cited for a deficiency based on an episode of elopement or, more specifically, that it should not be cited for immediate jeopardy. Dr. Jackson's opinions on the quantum of evidence necessary to avoid findings of noncompliance or immediate jeopardy are irrelevant. Dr. Jackson's opinion on the issue of immediate jeopardy is also irrelevant because Lake Park did not appeal the ALJ's conclusion that CMS did not err in finding immediate jeopardy at Lake Park.

We also note that Dr. Jackson made a statement, omitted from Lake Park's appeal brief, that suggests a concession by him that Lake Park may have been appropriately cited for noncompliance, albeit, in his opinion, not immediate jeopardy. He stated: "[T]he episode [on January 27^th] should [have been] cited, at the worst, at a Level G based on the abrasions and bump that occurred when the resident fell while outside the facility." LP Ex. 8, at 3. Thus, in addition to being irrelevant to the Board's decision because it contains conclusions of law rather than statements of fact, Dr. Jackson's declaration simply is not helpful to Lake Park. To the extent that Dr. Jackson's opinion did address factual issues, for example, his opinion on the adequacy of the assessment and plan of care, his opinions are not material because the ALJ's decision was not based on any deficiencies in those areas. Finally, contrary to Dr. Jackson's suggestion, the ALJ did not rely solely on the fact that Resident 3 eloped from the facility to support the finding of noncompliance on January 27, 2003. Rather, the ALJ considered all the facts and circumstances surrounding her elopement, including the facility's [Page 19] failure to monitor her whereabouts prior to the elopement and its deficient response to the exit door alarm. ⁽⁹⁾

Conclusion

For the reasons discussed above, we affirm all the ALJ's findings of fact and conclusions of law.

Judith A. Ballard

Donald F. Garrett

Sheila Ann Hegy
Presiding Board Member

1. At one point in her decision, the ALJ indicated that surveyors had found Lake Park in noncompliance with 42 C.F.R. � 483.25. ALJ Decision at 1-2 (referring to tag F309). The ALJ also stated, in a section heading (id. at 5) and in the decision's concluding paragraph (id. at 16), that Lake Park was not in substantial compliance with section 483.25 on January 26 and 27, 2003. Id. at 5, 16. The lead-in language in section 483.25 sets out the general or overarching quality of care requirement that a SNF must satisfy in caring for its residents and is the basis for deficiency citations under tag F309 on the survey form. This general requirement also encompasses (and prefaces) other, more specific quality requirements, including the "adequate supervision" requirement in section 483.25(h)(2). We note that the survey agency's Statement of Deficiencies, the basis for CMS's decision to impose a CMP on Lake Park, appears to cite only one deficiency -- namely, a failure to comply with section 483.25(h)(2). CMS Ex. 3. And notwithstanding the references to the general quality of care requirement, the ALJ's analysis and findings focus on whether Lake Park was in substantial compliance with the more specific quality of care requirement in section 483.25(h)(2). ALJ Decision at 10, 15. Of course, the more specific requirement must be read in a manner that is consistent with the overarching one, see Woodstock Care Center, DAB No. 1726 (2000), aff'd, Woodstock Care Center v. Thompson, 363 F.3d 583 (6th Cir. 2003), and the ALJ did that here.

2. An accident does not include "'adverse outcomes associated as a direct consequence of treatment or care (e.g., drug side effects or reactions).'" Beechwood Sanitarium at 106 (quoting the CMS State Operations Manual). Nothing in the record suggests that Resident 3's injuries on January 26^th were the direct consequence of treatment or care.

3. Doris Afam, Lake Park's nursing administrator, stated in her declaration that she investigated the "incident that occurred on January 26, 2003[.]" LP Ex. 19, � 7. However, the context of this statement makes it clear that she was referring to her investigation of Resident 3's January 27^th elopement. See id., � 8.

4. Although the ALJ remarked that she was "not convinced" that hourly location checks (a measure specified in Resident 3's plan of care) were "sufficient to protect an individual who needed "close supervision at all times," ALJ Decision at 11 n.13, she made no finding that this or any another planned precaution constituted inadequate supervision under section 483.25(h)(2).

5. The ALJ stated that she agreed with Lake Park that Resident 3 did not elope on January 26, as CMS had inaccurately stated in one of its briefs, but noted that Lake Park had been cited for failing to protect Resident 3 within the facility. ALJ Decision at 10, n.9.

6. The Statement of Deficiencies indicates that all other members of the nursing staff were promptly re-trained in the procedures for locating residents thought to be missing. CMS Ex. 3, at 8. Lake Park presented no evidence about the adequacy of its pre-January 27^th training in these procedures or the workings of the alarm system.

7. In describing the elopement, Lake Park states that Resident 3 "was able to exit the facility through an alarmed exit for a period of approximately five to ten minutes despite the numerous interventions which were put in place[.]" LP Br. at 14 (italics added). The ALJ expressly rejected the claim that Resident 3 was out of the facility for only five to ten minutes. ALJ Decision at 12. Lake Park does not dispute that ruling or contend that the ruling materially affected the ALJ's conclusion that it was not in substantial compliance with section 483.25(h)(2) on January 27^th.

8. Had Lake Park challenged the ALJ's conclusion on the immediate jeopardy issue, we would have had no difficulty upholding it. The record amply illustrates that Resident 3 suffered actual harm (scrapes, multiple abrasions, a lump on her head, and bleeding) that could be deemed serious. It also supports a likelihood of additional serious harm based on the dangerous circumstances in which Resident 3 was found on January 27^th - in a ditch between rocks.

9. We also note that Dr. Jackson's opinion does not address the noncompliance on January 26, 2003, and that noncompliance, by itself, would have been sufficient to support imposition of the CMP.