The Springs at the Watermark, DAB CR5064 (2018)

DECISION

I sustain the determination of the Centers for Medicare & Medicaid Services (CMS) that Petitioner, The Springs at the Watermark, in Philadelphia, Pennsylvania, failed to comply with Medicare participation requirements at an immediate jeopardy level of scope and severity.  However, I do not concur with CMS’s findings as to duration of noncompliance.  I find that Petitioner was noncompliant during a three-day period that ran from September 12 through September 14, 2016.  I impose civil money penalties of $8791 against Petitioner for each day of this three-day period.

I. Background

Petitioner requested a hearing to challenge CMS’s noncompliance findings and remedy determination.  The parties stipulated that this case could be heard and decided based on their written exchanges.  I received an opening and a final brief (CMS Op. Br. and CMS Cl. Br., respectively) from CMS plus 18 exhibits that CMS identified as CMS Ex. 1-CMS Ex. 18.  I received an opening and a final brief, (P. Op. Br. and P. Cl. Br., respectively) from Petitioner plus 29 exhibits that Petitioner identified as P. Ex. 1-P. Ex. 29.

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II. Issues, Findings of Fact and Conclusions of Law

• A. Issues

The issues are whether Petitioner failed to comply substantially with a Medicare participation requirement at 42 C.F.R. § 483.25(d), whether CMS’s determination of immediate jeopardy level noncompliance is clearly erroneous, whether Petitioner proved that it attained substantial compliance at a date earlier than that determined by CMS, and whether the civil money penalty daily amount that CMS determined to impose is reasonable.1

This case focuses on a single noncompliance finding, CMS’s finding that Petitioner failed to comply substantially with 42 C.F.R. § 483.25(d).  In fact, CMS determined that Petitioner failed to comply substantially with additional participation requirements, albeit at a level of noncompliance that is not immediate jeopardy.  Neither CMS nor Petitioner filed arguments about these other noncompliance findings and I do not address them in this decision.

• B. Findings of Fact and Conclusions of Law

The evidence in this case establishes unequivocally that Petitioner failed to comply with the requirements of 42 C.F.R. § 483.25(d).  This regulation mandates a skilled nursing facility to provide each of its residents with adequate supervision and assistance devices to protect the resident against sustaining an accident and it also requires a facility to identify and remove all foreseeable accident hazards from its premises.  The evidence plainly establishes that Petitioner failed to protect one of its residents – Resident 72, an obvious elopement risk – from eloping Petitioner’s facility with the consequence that the resident eloped and sustained injuries.  It is also evident that this noncompliance put Resident 72 and other similarly situated residents in an immediate jeopardy status.  As I shall discuss, Petitioner’s noncompliance created a likelihood that residents of its facility would suffer from serious injury, harm, or death.

However, and as I shall also discuss, the duration of Petitioner’s noncompliance is for a much shorter period than CMS contends it to be.  I find that Petitioner identified and corrected its noncompliance within three days of Resident 72’s elopement from Petitioner’s premises.  Consequently, the remedy for Petitioner’s immediate jeopardy level noncompliance applies only for a three-day period.

During the relevant time period in September 2016, Resident 72 was 87 years old. She suffered from a variety of problems including Alzheimer’s dementia, depression, and confusion.  P. Ex. 12 at 1, 7.  Petitioner admitted Resident 72 on September 8, 2016. 

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P. Ex. 21 at 2.  Previously, the resident resided in an assisted living facility that is associated with Petitioner.  Her residence at the assisted living facility was in a locked memory care unit.  P. Ex. 21 at 1-2.  Petitioner’s skilled nursing facility and its assisted living facility are closely related to the extent that the resident’s rooms in both facilities were located on the same floor of the same building.  Id.; P. Ex. 12 at 12.

Resident 72 arrived at Petitioner’s facility as a known elopement risk.  She had attempted to elope her residence at the assisted living facility more than once.  P. Ex. 11 at 1-2.  Petitioner’s staff, in apparent recognition of the resident’s elopement potential, fitted the resident for a Wanderguard bracelet on her admission to the skilled nursing facility.  P. Ex. 12 at 12.  I take notice that a Wanderguard is a device that triggers an audible alarm when an individual who is equipped with the device attempts to pass through an alarmed doorway.  However, despite equipping the resident with a Wanderguard, the staff did not assess her initially to be an elopement risk.  P. Ex. 3 at 3.

Resident 72 eloped Petitioner’s premises on the evening of September 12, 2016.  P. Exs. 4-6; P. Ex. 12 at 11.  At 5:30 p.m. on that date a security guard at Petitioner’s front desk responded to an alarm at one of Petitioner’s exits.  P. Ex. 8 at 1.  The door led to a street in downtown Philadelphia.  The security guard checked the perimeter of Petitioner’s premises.  Finding nothing untoward, the guard returned to his post.  CMS Ex. 14 at 2.  There is no evidence that the guard brought the alarm’s sounding to the attention of other members of Petitioner’s staff or management. 

Petitioner’s staff did not realize that Resident 72 was missing until about 7:45 p.m. on the evening of September 12, more than two hours after the resident eloped.  It was not until about 8:15 p.m. on that date when the staff learned of the resident’s whereabouts after she had been taken to a hospital emergency room.  P. Exs. 4-6.  A passerby found the resident lying in the middle of a public street about a half-mile from Petitioner’s facility.  P. Ex. 6; P. Ex. 12 at 6, 11; CMS Ex. 14 at 4, 7.  The resident had sustained injuries that included lacerations to her head, arms, legs, and spleen.  Id.

Petitioner failed in several respects to comply with its duty of care to Resident 72.  First, it failed to identify the resident as an elopement risk.  Petitioner’s staff should have known about the resident’s propensity to elope when it received her from Petitioner’s affiliated assisted living facility.  The two facilities share a building.  The resident had attempted to elope the assisted living facility’s locked memory unit on more than one occasion.  This information should have been brought directly to Petitioner’s staff’s attention upon Resident 72’s admission.2 The failure of the staff to recognize Resident

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72 as elopement-prone meant that the staff did not take seriously the probability that the resident would attempt to elope and so, was not vigilant in protecting her.

Second, Petitioner’s staff failed adequately to provide protection against the resident eloping.  She was unsupervised on the evening of September 12, 2016, so much so that the staff wasn’t even aware that the resident was missing for more than two hours after the resident eloped.  Such lax supervision of an elopement-prone resident was practically an invitation for her to leave the premises.

Third, Petitioner’s security staff reacted inappropriately to the alarm’s triggering on the evening of September 12.  The security guard who heard the alarm merely checked the exterior of Petitioner’s premises.  Finding nothing, he did nothing else.  The sounding of a door alarm should have immediately alerted the security guard to the probability that someone had exited Petitioner’s facility.  At a minimum the guard should have communicated that information to Petitioner’s nursing staff so that the roster of residents could be checked.

At the time of the elopement, Petitioner’s nursing and security staffs were able to turn off door exit alarms.  CMS Ex. 14 at 2; P. Ex. 20 at 2; P. Ex. 21 at 2.  That broad authority to disable alarms plainly led to the possibility that staff might disable an alarm for some reason but fail to re-enable it. 

These failures by Petitioner’s staff to protect Resident 72 coupled with the easy ability of staff to disable alarms render it apparent that, as of September 12, 2016, Petitioner’s staff was insufficiently cognizant of the risk that elderly and infirm residents could elope the premises.  This evidence strongly supports a finding of a porous and unsecured facility.

Petitioner protests that it provided adequate supervision to Resident 72 up until her elopement on September 12, 2016.  P. Op. Br. at 7-8.  I am not persuaded by Petitioner’s contention.  It asserts, first, that the resident did not present herself as being at a high risk for elopement.  In fact, and as I have discussed, Petitioner’s staff certainly should have known that the resident was an elopement risk on the day that she entered Petitioner’s facility.  She came to Petitioner’s facility from an affiliated assisted living center located in the same building as the skilled nursing facility, where she had resided in a locked memory unit.  She’d attempted to elope the assisted living facility before she was accepted into Petitioner’s skilled nursing facility.  All of this should have been obvious to Petitioner’s staff.  Moreover, fitting the resident for a Wanderguard bracelet would have been pointless unless someone on Petitioner’s staff thought that the resident was an elopement risk.  That knowledge simply wasn’t disseminated among Petitioner’s staff.

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Petitioner cites the Wanderguard plus other precautions as providing adequate supervision to Resident 72.  P. Op. Br. at 7-8.  These include having combination keypads on the doorways between Petitioner’s wings and also requiring the use of a combination keypad to summon an elevator.  All of that may have been well and good, but there was an obvious and glaring hole in Petitioner’s security system that it did not attend to prior to September 12.  That was the accessibility of unlocked fire doors to any resident.  These doors, including the one via which Resident 72 exited Petitioner’s premises, were alarmed.  However, the alarms were susceptible to being disabled.  Moreover, Petitioner’s staff did not react appropriately to the alarm that Resident 72 triggered on the night of September 12, 2016, as I have discussed.

There is more than ample support for CMS’s allegation of immediate jeopardy level noncompliance.  Petitioner’s facility is located in an urban area and is near city streets.  CMS Ex. 1 at 29.  The risks that this environment poses to any infirm, elderly, and/or demented resident who wanders outside of Petitioner’s premises are obvious.  It was fortuitous that Resident 72 did not suffer lasting injury or death on the evening of September 12, 2016.  However, the likelihood of such injury, harm, or death, was certainly high.

The remaining questions are whether CMS correctly asserts that the duration of Petitioner’s noncompliance persisted over a period that began on September 12, 2016 and that ran through February 3, 2017, and whether the daily penalty amount of $8791 originally determined by CMS is reasonable. 

I find that CMS’s determination of the duration of noncompliance fails to take into account the extensive measures taken by Petitioner after September 12 to protect its residents against the risk of elopement.  Petitioner proved that it had taken all reasonable measures necessary to provide security to its elopement-prone residents by September 14, 2016, when it completed in-service training to re-educate its staff as to protecting residents against eloping.

The protection requirements of 42 C.F.R. § 483.25(d) do not establish a strict liability standard for skilled nursing facilities.  One cannot look retrospectively at an accident and automatically pin blame on the facility for that accident.  Rather, a rule of reason applies.  Did a skilled nursing facility take all reasonable measures to protect its residents?  That requirement of reasonableness does not translate to a duty by a skilled nursing facility to be perfect.  It recognizes, however, that a facility must do everything within its power to protect residents from any hazards or risks that it identifies or should identify.

I have found that Petitioner did not protect its residents adequately against the risk of elopement prior to September 12, 2016.  What did the facility do after September 12, and did those actions fulfill the facility’s duty to undertake all reasonable measures?

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In the immediate aftermath of Resident 72’s elopement Petitioner undertook the following measures:

• It addressed Resident 72’s condition by updating her care plan to add elopement as a risk factor and to include additional interventions designed to protect her.  These included a period of 1:1 supervision.  P. Ex. 11 at 1-2; P. Ex. 12 at 6, 10; P. Ex. 21 at ¶¶ 7, 14-15.  Petitioner’s staff supplied a photograph of Resident 72 to the facility’s front desk so that the security staff would recognize the resident.  P. Ex. 11 at 2.
• Petitioner conducted new elopement risk assessments of all of its residents and assured that the Wanderguards that had been assigned to those residents who the staff determined needed them were functioning properly.  P. Ex. 8; P. Ex. 20 at ¶ 8.
• It checked the door alarm function on all of its doors and changed key pad codes for the doors between its nursing facility and the adjacent assisted living facility on the third floor of its shared facilities and for the doors to its interior stairwell in order to prevent unauthorized access.  P. Ex. 8; P. Ex. 20 at ¶¶ 9-10.
• It completed in-service training of all staff concerning Petitioner’s elopement policy on September 14, 2016.  P. Ex. 7.
• Petitioner changed its door alarm protocol so that nursing staff on Petitioner’s third floor no longer was capable of resetting audible alarms.  Keys to the alarms were supplied only to Petitioner’s security personnel so that if an alarm sounded it would continue to sound until a member of the security staff manually reset it.  P. Ex. 8; P Ex. 20 at ¶ 9; P. Ex. 21 at ¶ 8.

The intent of these measures was to ensure that Resident 72 did not again elope Petitioner’s premises but also to protect all other elopement-prone residents against the dangers posed by elopement. 

Re-training staff and changing the alarm protocol were key to Petitioner’s protective efforts after September 12.  The failure to protect Resident 72 was not a mechanical failure or a failure due to the absence of protective systems.  Petitioner’s fire exits had alarms installed prior to September 12.  Had Petitioner’s security staff reacted appropriately to the alarm triggered by Resident 72’s exit on that date, her elopement could have been arrested and the risk to the resident could have been minimized.  The failure to protect the resident on September 12 arose from the security staff’s obvious failure to recognize the significance of an alarm sounding.  Once that alarm was triggered the staff should have immediately conducted a widespread search for a possible individual leaving the building and it should have immediately alerted Petitioner’s

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nursing staff.  The nursing staff should have reacted immediately by taking a census of residents.  Those steps, not taken on September 12, 2016, were the core of Petitioner’s noncompliance on that date.

Petitioner addressed those problems with the remedial measures it took beginning on September 12.  Most importantly, Petitioner sensitized its staff to the significance of alarms. 

After September 12, 2016, Resident 72 made additional attempts to elope.  CMS points to these additional attempts as evidence that Petitioner’s corrective measures failed.  A more reasonable inference, however, is that these attempts – which were all unsuccessful – are evidence that Petitioner succeeded in protecting the resident.  On the evening of October 2, 2016, the resident attempted to elope but was stopped on the third floor when she triggered the door alarm.  P. Ex. 12 at 5.  On October 13, 2016, she expressed a desire to leave the facility in order to meet up with her deceased husband.  Id.  Staff redirected the resident and she did not elope on this occasion. 

On November 6, 2016, the resident attempted to elope using the same exit that she’d used to elope on September 12, the facility’s third floor stairwell.  P. Ex. 12 at 4.  However, a security guard heard the exit door alarm, responded to it, and retrieved the resident just as she was exiting the building.  Id.; P. Ex. 10.

CMS does not criticize any of the specific remedial measures undertaken by Petitioner after September 12.  It contends, however, that these measures were inadequate.  CMS Op. Br. at 7-8, 17-19.  In criticizing Petitioner, CMS zeros in on what it contends to be Petitioner’s Achilles’ heel, the unlocked fire exit doors in Petitioner’s facility.  CMS asserts that, notwithstanding any other measures that Petitioner undertook, these doors continued to provide an easy means of egress for any resident who desired to elope.  It argues that Petitioner could not possibly eliminate its immediate jeopardy level noncompliance unless it assured that a resident never could leave the facility through a fire exit.  CMS Op. Br. at 19 and CMS Cl. Br. at 8-10.  And, although CMS doesn’t advocate any specific remedy for the asserted problem, it did not lift the immediate jeopardy citation against Petitioner until February 3, 2017, when Petitioner stationed employees next to all of its fire exit doors.  Id.

I am not persuaded by this argument.  It reads the reasonableness requirement out of 42 C.F.R. § 483.25(d) and substitutes for it a requirement that Petitioner do something that is not reasonable. 

As Petitioner points out, it cannot lawfully lock its fire exit doors.  P. Cl. Br. at 6-8.  Fire exit doors provide ready egress to facility staff and residents for an obvious reason; they exist as a safety measure in the event that the facility sustains a fire.  Indeed, if the doors were locked and Petitioner’s facility did have a fire, the resulting violation of 42 C.F.R.

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§ 483.25(d) would be far worse than the violation that occurred at Petitioner’s facility on September 12, 2016.

The need for accessible fire exit doors imposes on Petitioner the burden of taking all reasonable measures to assure that elopement-prone residents do not use these doors as a way of escaping the premises.  Here, Petitioner undertook such measures.  It put alarms on all of its doors.  It made certain that staff – other than security personnel – could not disable these alarms.  It trained its staff to respond to alarms.  These reasonable measures worked on November 6, 2016, when Resident 72 attempted to elope the premises through a fire exit.  Her attempt triggered an alarm; security staff responded immediately and retrieved the resident as she was exiting.  P. Ex. 10.

Petitioner’s use of fire exit alarms is analogous to it and other facilities’ use of Wanderguards with elopement-prone residents.  A Wanderguard does not prevent a resident from opening a door when the resident attempts an unauthorized exit from one part of a facility to another or from the facility to the outdoors.  Rather, it triggers an audible alarm that alerts the facility’s staff to the elopement attempt.  I take notice that many skilled nursing facilities equip their regular exits and entrances with alarm devices that are triggered by Wanderguards.  They do not lock the doors, because that would bar the public from entering and leaving.  But, they rely on the Wanderguards to set off alarms to alert the staff to an unauthorized egress.  That has the same effect as equipping a fire exit door with an alarm.  In both circumstances the key to protecting the resident is an audible alert that sounds when the resident attempts to take a prohibited action.  I am unaware of any decision holding that safety measure to be inadequate on its face. 

Having staff members stand by fire exit doors at all times exceeds the boundaries of reasonableness.  Doing so deprives Petitioner of the use of these staff members for other duties.  And, while personally barring access to fire exit doors would certainly work to prevent elopements, it doesn’t strike me as a necessary step so long as a facility has functional alarms that the staff is trained to respond to promptly.

CMS argues that Petitioner’s alarms were ineffective because they were not sufficiently loud.  I do not find this argument to be persuasive.  The stronger evidence – supplied by Petitioner – is that an alarm was loud enough to be heard on the entire floor on which the alarm is located.  P. Ex. 20 at ¶ 18.  CMS also claims to identify another flaw in Petitioner’s security system, claiming that there would be no one available to respond to an alarm if Petitioner’s security desk were left unmanned.  However, Petitioner successfully rebutted this argument by proving that when security personnel leave Petitioner’s front desk, concierge staff remain present and can access security personnel by radio.  P Ex. 29 at ¶ 5.  I find no gap in coverage of alarm systems, CMS’s arguments notwithstanding.

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Petitioner’s immediate jeopardy noncompliance persisted from September 12 through September 14, when it completed in-service training of its staff.  CMS determined to impose daily civil money penalties of $8791 for each day of Petitioner’s immediate jeopardy level noncompliance.  Petitioner asserts that CMS ought to have imposed a per-instance civil money penalty as opposed to a daily civil money penalty.  The choice of remedy in this case is a matter of CMS's discretion and I have no authority to address that.  42 C.F.R. §§ 488.438(a), 488.408(g)(2).

I find the per-day amount of $8791 to be reasonable to remedy the three days of immediate jeopardy level noncompliance that I sustain.  The penalty amount is near the bottom end of the range of permissible daily penalties for immediate jeopardy level noncompliance.  42 C.F.R. § 488.438(a)(1)(i).3 It is more than justified by the seriousness of Petitioner’s noncompliance.  It is fortuitous that Resident 72 wasn’t gravely injured or worse when she eloped on September 12, 2016.4

• 1. 42 C.F.R. § 483.25(d) previously was codified as 42 C.F.R. § 483.25(h).
• 2. The evidence strongly suggests that someone on Petitioner’s staff was aware of the resident’s propensity to elope when she was admitted, inasmuch as the resident was fitted for a Wanderguard bracelet two days after she was admitted. P. Ex. 12 at 12. That device is used only as a preventive measure against elopement. The failure here is that the resident’s elopement propensity wasn’t widely communicated to Petitioner’s staff so that the staff could assess the resident for broader precautions against elopement than simply fitting her with a Wanderguard.
• 3. CMP amounts increased, effective February 3, 2017, for violations occurring after November 2, 2015. See 82 Fed. Reg. 9,174 (Feb. 3, 2017).
• 4. The daily penalty amount of $8791 is what CMS originally determined to impose against Petitioner. CMS reduced that amount at a later date based on Petitioner’s proof that imposition of this amount for each day of a period that ran from September 12, 2016 through February 3, 2017, would impose unsustainable financial hardship on Petitioner. I reinstate the original daily penalty amount given that I am limiting Petitioner’s immediate jeopardy level noncompliance to a three-day period. There is no evidence showing that Petitioner would be unable to pay this original penalty amount for a period of three days. That is, in fact, a small fraction of what CMS originally determined to impose.