The Voorhees Care and Rehabilitation Center, DAB CR5853 (2021)

DECISION

I enter summary judgment in favor of the Centers for Medicare & Medicaid Services (CMS) and against Petitioner, The Voorhees Care and Rehabilitation Center, a skilled nursing facility.  I impose the following civil money penalties: 

• $21,393 for each day of a period of immediate jeopardy that began on June 28, 2019 and that ran through July 2, 2019.
• $2,670 for each day of a period of continued noncompliance that began on July 3, 2019 and that ran through September 11, 2019.
• $10,015 for one day of immediate jeopardy, September 12, 2019.
• $110 for each day of a period of continued noncompliance that began on September 13, 2019 and that ran through November 7, 2019.

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I. Background

Recently, I received this case as a transfer from the docket of another administrative law judge.  Upon reviewing the record I discovered that the parties had completed pre-hearing exchanges of proposed exhibits and briefs.  CMS had moved for summary judgment on all issues and Petitioner opposed the motion.

Although this case is docketed as a single case, it is in reality, two cases with separate findings of noncompliance and remedy determinations.  It involves two compliance surveys of Petitioner’s facility consisting of one survey conducted on July 2, 2019 and another conducted on September 24, 2019.  In this decision I address the noncompliance findings arising from each survey.

CMS filed a total of 35 exhibits, identified as CMS Ex. 1-CMS Ex. 35.  Petitioner filed a total of 19 exhibits, identified as P. Ex. 1-P. Ex. 19.  CMS objected to my receiving some of Petitioner’s exhibits into evidence, and Petitioner opposed the objections.

It is unnecessary that I rule on the objections nor do I receive any of the parties’ exhibits into evidence.  I grant summary judgment based on undisputed material facts.  In this decision I cite to some of the parties’ exhibits but only to describe facts that are undisputed or to address fact allegations that I find not to be relevant.

II. Issues, Findings of Fact and Conclusions of Law

A. Issues

The issues are whether Petitioner failed to comply substantially with Medicare participation requirements and whether CMS’s remedy determinations are reasonable.

B. Findings of Fact and Conclusions of Law

In deciding whether to grant summary judgment I am mindful that I must base my decision only on material facts that are undisputed.  Also, I recognize that I must draw all reasonable inferences from facts – even undisputed facts – that favor the party opposing a motion for summary judgment.  For these reasons I rely only on those material facts that are not in genuine dispute.  I note any fact dispute, where one actually exists, and explain why that dispute does not vitiate my overall conclusions as to noncompliance and remedy.  I also address the parties’ legal arguments.

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1. July 2, 2019 survey – Petitioner’s Noncompliance with the Requirements of 42 C.F.R. §§ 483.12 and 483.25(d)

 A skilled nursing facility must ensure that its residents are free from neglect.  42 C.F.R. § 483.12.  “Neglect” means failure by a facility or its staff to provide services to a resident that are necessary to avoid physical harm, pain, mental anguish or emotional distress.  42 C.F.R. § 488.301.  A skilled nursing facility must also protect its residents from sustaining foreseeable accidents and must provide the residents with the assistance that is needed to protect them.  42 C.F.R. § 483.25(d).

CMS alleges that Petitioner failed to comply with the requirements of 42 C.F.R. §§ 483.12 and 483.25(d) in providing care to a resident identified in the July 2, 2019 survey report as Resident 2.  It alleges that Petitioner failed to comply with the requirements of 42 C.F.R. § 483.25(d) in providing care to residents identified as Residents 3 and 4 in the July 2, 2019 survey report.

The undisputed facts unequivocally support CMS’s allegations.  I discuss the care that Petitioner gave to Resident 2 first, addressing the facts and the parties’ arguments.  Then, I address the care that Petitioner gave to Residents 3 and 4.

a. Resident 2

These facts are undisputed:

Petitioner first admitted Resident 2 to its facility on March 7, 2019.  The resident was 44 years old.  On admission he was noted by Petitioner’s staff to be suffering from bipolar disorder.  CMS Ex. 6 at 1-3, 12.  Staff characterized the resident’s impairment as a “major mental illness.”  Id. at 24.  He had a history of drug abuse, including intravenous illegal drugs.  There had been multiple instances in the past in which the resident exhibited suicidal thoughts.  He had attempted suicide at least once.  Id. at 174, 176.

The resident’s recent history included a suicide attempt (an intentional drug overdose) related to extreme depression.  CMS Ex. 8 at 2, 51.  Just a few weeks prior to his admission to Petitioner’s facility, Resident 2 had been found lying unresponsive on the floor of his home with empty bottles of Diazepam, Morphine, and Oxycodone nearby.  The resident’s family believed that the resident had consumed 96 pills of these medications in an attempted suicide.  Id.  The resident was resuscitated in a hospital emergency room.  Id.

Effective March 2019, Petitioner had a care plan policy that instructed its staff on how to plan the care of each resident and identified the items that a plan of care must address.  CMS Ex. 11.  The policy specifically directed staff to develop an interim plan of care for each resident within 24 hours of that resident’s admission that addressed “high-risk

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problems, including major medications or diagnoses,” and safety problems.  Id. at 1-6.  The policy instructed staff to incorporate risk factors in a care plan that are associated with identified problems and to describe all interventions and approaches that would be utilized to address these issues.  Id.

Petitioner also had a suicide prevention policy that directed its staff to develop and implement interventions for residents who voiced or displayed suicidal thoughts or actions.  CMS Ex. 28 at 1-2.  The policy directed the staff to develop a precautionary plan for monitoring and assessing the mental status of a resident who is not acutely suicidal.  Id.

Petitioner’s staff prepared a care plan for Resident 2, dated March 7, 2019.  The plan stated that the resident had a history of “accidental poisoning of an unknown substance.”  CMS Ex. 6 at 56.  The plan did not identify or discuss the resident’s past history of suicide attempts, his suicidal thoughts, or his recent intentional drug overdose.  Id.  The care plan did not identify or direct any interventions by Petitioner’s staff to deal with the possibility that the resident might be suicidal, other than administering medication for depression.  Id. 

On April 15, 2019, Resident 2 expressed suicidal thoughts.  Petitioner’s staff sent the resident to a local crisis center for evaluation.  CMS Ex. 6 at 130-31.  The crisis center discharged the resident on the same day, and he returned to Petitioner’s facility.  For a period of about two days, Petitioner’s staff engaged in enhanced monitoring of Resident 2.  Id. at 117, 246.  Such monitoring was discontinued on April 19, 2019.  That brief period of enhanced monitoring aside, Petitioner did not modify the resident’s overall treatment regimen in response to this event other than to include instructions to allow Resident 2 to choose activities of interest daily.  Id. at 56.  The staff did not develop or implement a precautionary plan to deal with possible renewed suicidal thoughts or actions by Resident 2, nor did the staff identify the resident as being at high risk.

On April 16, 2019, Resident 2’s physician ordered a psychiatric consultation for Resident 2.  CMS Ex. 6 at 123-26.  He repeated that order on April 17, April 18, and April 19, 2019.  Id. at 115-23.  On April 18, 2019, Petitioner’s social worker also requested that the resident be seen for psychiatric or psychological evaluation.  Id. at 118.

CMS asserts, and I find, that no psychiatric consultation occurred in specific response to these physician’s orders or the social worker’s request.  A psychiatrist associated with Petitioner advised CMS’s surveyor that she did not evaluate the resident after his return from the crisis center.  CMS Ex. 17 at 11; CMS Ex. 18 at 47.  The psychiatrist speculated that she did not evaluate the resident because no one at Petitioner’s facility expressed any concern to her about Resident 2.  CMS Ex. 17 at 11; CMS Ex. 18 at 47.

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Petitioner contends that the resident, in fact, received a psychiatric consultation in response to the physician’s orders and the social worker’s request, asserting that there are disputed facts concerning whether the consultation occurred.  See CMS Ex. 6 at 31-37; Petitioner, The Voorhees Care & Rehabilitation Center’s Pre-hearing Brief and Opposition to Motion for Summary Judgment (Petitioner’s brief) at 4.  Petitioner’s assertion notwithstanding, the undisputed facts show that no such consultation occurred.  Petitioner offered nothing to show that a psychiatrist associated with Petitioner ever evaluated the resident as a specific response to his referral to the crisis center, the resident’s physician’s repeated orders, or the social worker’s request.  Petitioner did not obtain a statement from the psychiatrist in which the psychiatrist attested to consulting with Resident 2 concerning the events surrounding the resident’s suicidal ideation and referral to the crisis center for evaluation.  There are no progress notes or treatment orders from a psychiatrist in the resident’s record that suggest that a psychiatrist evaluated Resident 2 in response to the April 15 event, the physician’s orders, or the social worker’s request.  See CMS Ex. 6 at 70-131, 246-53.

The document that Petitioner relies on as purporting to show a fact dispute consists of a report, signed by a psychiatrist, that was generated as a pre-admission screening of Resident 2 to determine his suitability for skilled nursing care.  That document was not generated in response to the resident’s April 15 suicidal thoughts, the subsequent physician’s orders, or the social worker’s request.  Indeed, there is nothing in the report that suggests that the psychiatrist who signed it knew about or considered the implications of what happened on April 15, 2019.  CMS Ex. 6 at 30-38.

On March 7, 2019, a registered nurse – evidently a member of Petitioner’s staff – requested that the resident receive a “level II pre-admission screening and resident review (PASRR) evaluation.”  CMS Ex. 6 at 30-38.  I take notice that this evaluation is a prerequisite for admission to a skilled nursing facility of residents who show a history of or signs of significant mental illness.  A report of the PASRR II evaluation was signed by a psychiatrist on April 26, 2019.  Id. at 37.  It was not transmitted to Petitioner until May 20, 2019.  Id. at 38. 

I do not make a finding as to the exact date when the psychiatrist saw Resident 2 to perform the PASRR II evaluation.  It could have been on any date between March 7 and

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April 26, 2019.1   Suffice it to say that the PASRR II consultation was not the consultation that was ordered in response to the resident’s expression of suicidal thoughts on April 15, 2019.  Nothing in the PASRR II report refers to those orders or to the resident’s suicidal thoughts that were the basis for them. 

The PASRR II evaluation found that Resident 2 was not homicidal or suicidal.2   CMS Ex. 6 at 34.  It found that the resident had mental health treatment needs that could be met in a skilled nursing facility.  Id. at 37.  However, it found also that the resident suffered from a serious mental illness.  Id.  The report conditioned admission to a facility on the facility addressing Resident 2’s treatment needs, including:  a psychiatric consult on admission to Petitioner’s facility; routine follow up visits with a psychiatrist; medication monitoring; supportive counseling; routine laboratory testing; formulating and administering a behavioral modification plan to address any behavioral disturbance; educating the resident and his family on mental illness and medication; and developing a crisis intervention and safety plan for the resident.  Id. at 38.

The PASRR II report was of no benefit to Resident 2.  No matter when it was actually prepared, the report says absolutely nothing about the resident’s April 15, 2019 suicidal thoughts.  It recommends no care relating to the April 15 incident.  As I have stated, there is no record showing that Petitioner received this report prior to May 20, 2019.

There are also no facts showing that Petitioner addressed the conditions for admission that the report identified.  In particular, the record is devoid of any facts showing that Petitioner:  assured that Resident 2 received follow up psychiatric visits; developed and implemented a behavioral modification plan for the resident; or developed a crisis intervention and safety plan for Resident 2.

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Resident 2 did not vocalize suicidal thoughts after his return from the crisis center to Petitioner’s facility on April 15, 2019.  However, both a physician and a nurse practitioner noted that the resident displayed a “flat affect” after his return.  CMS Ex. 6 at 115-30.  I take notice that a flat affect is a sign of ongoing depression.  On April 19, the resident denied having suicidal thoughts, but he averred that he felt as if he had a dark cloud over him and he stated that he was having difficulty completing basic tasks.  Id. at 115.  A physician specifically noted that the resident displayed a flat affect on that date.  Id.

On April 19, 2019, the physician prescribed an anti-depressant, Wellbutrin, for Resident 2.  CMS Ex. 6 at 115-17.  Wellbutrin has known possible side effects, including worsening depression, suicidal thoughts, anxiety, agitation, and panic attacks.  The manufacturer’s instructions for administering this medication instruct users to pay close attention to personality changes, including sudden changes in mood, behaviors, thoughts or feelings.  CMS Ex. 29 at 2-3, 9.  Petitioner’s staff neither issued nor implemented instructions to monitor Resident 2 for the side effects of Wellbutrin, despite the PASRR II report’s condition that Petitioner educate Resident 2 on mental illness and medication.  See CMS Ex. 6 at 38.  The record of the resident’s care is devoid of any observations of the resident for side effects.  See CMS Ex. 6.

The resident was hospitalized from May 11 to May 15, 2019 for medical reasons unrelated to his drug abuse or his expression of suicidal thoughts.

On May 23, 2019, a facility housekeeper found Resident 2 lying unresponsive on a bathroom floor, with an uncapped syringe lying next to him.  CMS Ex. 7 at 1-2.  Attempts by paramedics to resuscitate the resident failed, and he was pronounced dead.  Id.  A Medical Examiner’s report described the cause of the resident’s death as “Diazepam, Heroin, and Fentanyl Intoxication.”  CMS Ex. 27 at 2.

The only reasonable conclusion that I may draw from these facts is that the resident died from a self-administered overdose of controlled substances.  The facts are inconclusive whether he committed suicide or died involuntarily from that overdose.

Petitioner’s administrator prepared an investigative report about the circumstances of Resident 2’s death.  CMS Ex. 7.  The report acknowledges that the resident may have died from a drug overdose.  However, it does not explain how the resident obtained the drugs that caused his death or the syringe that he used to administer them.  Id.

These undisputed facts lead only to the conclusion that Petitioner persistently neglected to care for Resident 2’s obvious psychiatric problems and failed to protect him against accidents, including a self-administered drug overdose.  This neglect and failure plainly contravene the requirements of 42 C.F.R. §§ 483.12 and 483.25(d).

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There were numerous derelictions of care by Petitioner’s staff that establish a pattern of neglect to address Resident 2’s psychiatric needs, his history of suicidal thoughts and recent suicide attempt, and his controlled substance abuse.  Petitioner knew at the inception of Resident 2’s stay that this resident had a history of suicidal thoughts and at least one recent attempted suicide.  That history – and Petitioner’s own policies – mandated that Petitioner carefully and thoroughly develop measures to protect Resident 2 and to implement them.  However, the care plan developed by Petitioner’s staff fails to state any instructions for observing and protecting the resident.  In fact, the plan doesn’t acknowledge that the resident had a history of suicidal thoughts and at least one attempted suicide.

Petitioner also knew at the inception of the resident’s stay that he had a history of substance abuse.  Petitioner’s staff failed to develop or implement interventions that were intended to address that issue.

The undisputed facts establish that Petitioner failed to provide Resident 2 with any meaningful psychiatric care, notwithstanding the fact that the staff knew that the resident suffered from a serious mental illness.  The record contains only one report of a visit by Resident 2 to a psychiatrist and that was for a PASRR II screening.  The PASRR II report states explicitly that:  “The Psychiatrist or Psychiatric Advanced Practice Nurse conducting the Evaluation shall not be directly involved in treating the client nor otherwise responsible for or involved in the person’s care.”  CMS Ex. 6 at 31.  That report was not furnished to Petitioner until May 20, 2019, seven weeks after the resident’s admission to Petitioner’s facility and only three days prior to his death.

The staff failed to closely monitor Resident 2 with the exception of a two-day period following his referral to a crisis center on April 15, 2019, after he had expressed suicidal thoughts.  It is true that the resident denied contemplating suicide after April 15.  However, he continued to manifest a flat affect – a sign of ongoing depression – and he stated that he felt as if he were under a dark cloud.  Given this resident’s history, these signs should have been red flags to Petitioner’s staff.

The staff failed to closely monitor Resident 2 for the possible side effects of Wellbutrin after it was prescribed to him, despite the fact that the known side effects of that drug included possible suicidal thoughts.

These failures by Petitioner fall squarely within the regulatory definition of neglect.  Petitioner’s staff knew that the resident was at risk for suicide based on his history of suicidal thoughts, at least one prior attempted suicide, and his serious mental illness that manifested as depression.  Petitioner’s policy demanded that the staff develop and implement measures to protect the resident.  The undisputed facts establish multiple failures by the staff to provide the resident with the care and protection that he deserved.

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Also, they establish a failure by Petitioner to protect Resident 2 against sustaining a foreseeable accident.  42 C.F.R. § 483.25(d) does not hold skilled nursing facilities strictly liable for accidents.  It requires that the facility assess its residents and its premises for accidents that are foreseeable and to take all reasonable measures to protect the residents against such accidents.  Woodstock Care Ctr., DAB No. 1726 (2000), aff’d, Woodstock Care Ctr. v. Thompson, 363 F.3d 583, 590 (6th Cir. 2003).  Here, Petitioner’s staff knew both that the resident was at risk for suicide and that he had a history of substance abuse.  The staff failed to develop and implement measures to protect Resident 2 against either hazard.

I have considered Petitioner’s arguments concerning the care that its staff provided to Resident 2, and I find them to be without merit.  The facts on which I rely are undisputed. 

Petitioner attempts to raise a dispute about whether Resident 2 was examined by a psychiatrist in the wake of the resident’s April 15, 2019 expression of suicidal thoughts.  Petitioner’s brief at 4.  However, and as I have explained, nothing raised by Petitioner suggests that a psychiatrist saw the resident in specific response to the April 15 event.

Petitioner complains that the report of the July 2, 2019 survey concludes that Resident 2’s death was a suicide.  It contends that the thrust of CMS’s case against it originally was that Petitioner failed to prevent the resident’s suicide.  According to Petitioner, CMS framed a new argument in its brief – contending only then that the alleged deficient care of Resident 2 related to Petitioner’s failure to monitor and supervise the resident.  Petitioner’s brief at 1-2. 

It is irrelevant whether CMS shifted its contentions as Petitioner alleges.  Petitioner had ample notice of CMS’s argument once CMS filed its pre-hearing brief and it had plenty of time within which to formulate its defenses and reply.  There is no denial of due process to Petitioner and indeed, Petitioner has not claimed explicitly that there is.

Petitioner asserts that CMS relies on a “conclusion without any forensic or clinical evidence” that Resident 2 committed suicide.  Petitioner’s brief at 7.  However, and as Petitioner acknowledges, whether or not Resident 2 committed suicide is not important to CMS’s allegations.

It would, of course, be relevant to CMS’s allegations of neglect and failure by Petitioner to protect Resident 2 if undisputed facts established that Resident 2 committed suicide.  That said, the outcome does not depend on whether suicide was the cause of the resident’s death.  The issue here is whether Petitioner provided the preventive care that regulations and its own policies required that it provide.  It did not, and the possibility that Resident 2’s death was accidental does not derogate one iota from that conclusion.

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Even if entirely accidental, Resident 2’s death is relevant to my conclusion that Petitioner failed to protect the resident against sustaining accidents.  Petitioner knew about the resident’s history of substance abuse.  It failed to take specific measures to protect him.

Petitioner argues also that its staff had no reason to suspect or believe that Resident 2 might be at risk for suicide.  Petitioner’s brief at 7.  It asserts – without citing to anything in the record – that Resident 2 “was in good spirits, despite his diagnosis of depression and bipolar disorder.”  Petitioner’s brief at 7.  There are no facts to show that Resident 2 was in “good spirits.”  The undisputed facts show that he contemplated suicide just weeks prior to his death, that he manifested a flat affect – a sign of depression – and that he talked of being under a black cloud.  His physician obviously thought that the resident was decidedly not in “good spirits” in deciding on April 19, 2019 to prescribe Wellbutrin, an anti-depressant.

Petitioner also argues that CMS is wrong in asserting that a facility is deficient if a resident has suicidal thoughts but is not referred by the facility to a psychiatrist.  Petitioner’s brief at 19.  It asserts that suicide is unpredictable and that, therefore, suicide can never be linked as a consequence to failure to provide care.  Id. at 19-20.

This argument is a red herring.  CMS does not assert that Resident 2 committed suicide because Petitioner failed to provide him with care and, in particular, psychiatric care.  As CMS explains and I have found, Petitioner’s deficiency lies in its failure to plan for and provide protective care to Resident 2.  That deficiency occurred whether or not Petitioner’s failures resulted directly in the resident’s suicide. 

Petitioner asserts that its staff reacted with “care and attention” to Resident 2’s suicidal thoughts on April 15, 2019 and in the aftermath of the resident’s referral to a crisis center on that date.  Petitioner’s brief at 10.  As support, Petitioner recites that the staff closely monitored Resident 2 upon his return from the crisis center and then checked on him on a “daily basis” beginning on April 21, 2019.  Id.  Even if staff inquired of the resident daily about his mood, that does not substitute for the planning and crisis anticipation that are called for by regulations and Petitioner’s own policies.  Resident 2’s condition called for a careful and considered plan to address the resident’s known issues and proclivities.  Checking on the resident’s state of mind – even daily – might have been useful, but it was a far cry from the care that the resident was entitled to receive.

Finally, Petitioner asserts that the drug overdose that resulted in Resident 2’s death was unpreventable.  Petitioner’s brief at 22-23.  It describes the opioid crisis that presently plagues parts of the United States and, in particular, Camden County New Jersey, where Petitioner’s facility is located, and attempts to draw a connection between that crisis and Resident 2’s death.  Id.  Petitioner seems to be saying that if opioid abuse cannot be prevented or deterred nationally, then it shouldn’t be held responsible for opioid abuse within the four corners of its facility.

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However, the fact that opioid abuse is prevalent offers no excuse for failing to take measures to protect against it on one’s premises.  Petitioner may not use a generalized problem as a shield against responsibility to address that problem in a discrete setting.  As I have discussed, the undisputed facts are that Petitioner’s staff knew that the resident had a history of substance abuse, but the staff designed and implemented no meaningful interventions to protect Resident 2 from abusing controlled substances. 

b. Residents 3 and 4

These are undisputed facts concerning the care that Petitioner provided to Residents 3 and 4.

Resident 3 was admitted to Petitioner’s facility on March 6, 2019.  The resident’s medical conditions included opioid addiction.  CMS Ex. 13 at 1, 14, 30.  The resident received the drug Methadone as a treatment for his addiction.  In order to receive the drug he traveled weekly to a local Methadone clinic, accompanied by an escort from Petitioner’s facility.  Id. at 39-40, 52.

Petitioner’s staff developed and implemented a care plan for Resident 3 that identified his opioid addiction as a treatment focus area.  The plan stated as a goal that the resident would demonstrate good compliance with Methadone treatment and would not develop complications related to Methadone treatment.  CMS Ex. 13 at 7.  The plan contained several interventions that included:  educating the resident about his treatment, the goals of his therapy, and the importance of compliance; monitoring the resident for safety; and monitoring him for Methadone side effects. 

Resident 4 began her stay at Petitioner’s facility on June 18, 2018.  The resident had a known history of drug and alcohol and Heroin addiction, and was dependent on prescription opioids, including Oxycodone and Percocet.  CMS Ex. 14 at 1-5, 21.  Despite this history, Petitioner did not address the resident’s addiction in a care plan prior to July 2, 2019, the date of the survey of Petitioner’s facility.

On June 8, 2019, Resident 4 suffered a medication overdose that likely consisted of the drugs Ativan and Percocet.  CMS Ex. 14 at 15.  She was found slumped over and nonresponsive.  Id.  She was treated at a local hospital and returned to Petitioner’s facility that same day with instructions that she not take Ativan and Percocet together.  Id. at 42.  Shortly after her return, a member of Petitioner’s staff found the resident again in a state of semi-consciousness.  Id. at 15.  On this occasion the resident was observed in her bathroom, nodding forward, falling asleep, and close to striking her head on the sink.  Id.

Petitioner’s staff did not investigate either of these incidents.  There is no investigation report in the resident’s treatment records.  Petitioner did not develop a plan to monitor the resident in the wake of the overdoses, nor did it modify the resident’s plan of care.

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The staff did reduce the amounts of medication that it furnished to Resident 4.  CMS Ex. 14 at 12, 14-16.  Resident 4 complained about the medication reduction.  Id. at 12, 14.  Despite that, Petitioner did not modify the resident’s plan of care to explore alternative treatments in order to mitigate the effects of reduced medication. 

On June 21, 2019, Petitioner’s assistant director of nursing observed Resident 3 placing a small bag containing a white powder into Resident 4’s purse.  The staff called the police.  The police determined that the powder was an illicit drug, subsequently acknowledged by Resident 4 to be Heroin.  The police arrested Resident 3 who admitted that he had obtained Heroin from someone near the Methadone clinic that he attended.  CMS Ex. 10 at 1-2; CMS Ex. 2 at 2-3, 23.  A police search of Resident 3’s room discovered a syringe and a spoon.  CMS Ex. 2 at 22.

Petitioner implemented several interventions to address the incident involving Residents 3 and 4.  It revoked Resident 3’s “out on pass” privileges, prohibited visitors from entering his room, stopped his visits to the Methadone clinic, and required Resident 4 to undergo random drug tests.  CMS Ex. 10 at 2; CMS Ex. 13 at 7; CMS Ex. 14 at 7.

Petitioner had a policy entitled “Prevention/Possession of Illegal Drugs” that required its staff to care plan any incident involving a resident observed or suspected of taking illegal drugs.  CMS Ex. 15 at 2.  However, Petitioner delayed implementing revisions in Resident 3’s care plan until June 28, 2019.  CMS Ex. 13 at 7.  It did not revise Resident 4’s care plan until July 2, 2019, the date when Petitioner was surveyed.  CMS Ex. 14 at 7.

The undisputed facts concerning Residents 3 and 4 and their interaction establish a failure by Petitioner to protect these residents from accidents involving substance abuse in violation of 42 C.F.R. § 483.25(d).  Both of these residents had known histories of substance abuse.  It was obvious that these residents would likely attempt to obtain illegal drugs if given the opportunity.  In the face of this, Petitioner and its staff had the duty to undertake measures to protect the residents.  Those measures should have included care planning to assure that the residents were both closely monitored for substance abuse and received counseling and treatment for their addictions.  Petitioner failed to do that.

In the case of Resident 3, Petitioner did address his drug addiction in a care plan.  However, that care plan was deficient in critical aspects – it failed to offer the resident drug abuse counseling and more importantly, it failed to direct that the resident be closely monitored for substance abuse.  CMS Ex. 13 at 7.3

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Moreover, Petitioner failed to provide Resident 3 even with the protection that it had planned for him.  The resident was able to obtain Heroin on a visit to a Methadone clinic.  That was a visit in which he was escorted by a member of Petitioner’s staff.  The escort failed to prevent the resident from obtaining Heroin.  There are no facts of record showing that Petitioner investigated how Resident 3, ostensibly escorted, could nevertheless obtain Heroin.

In the case of Resident 4, Petitioner failed even to care plan the resident’s drug addiction.  It supplied the resident with opioids, including Oxycodone and Percocet, without addressing the fact that this resident was a known substance abuser.  It did nothing, prior to July 2, 2019, to address the resident’s history of Heroin use.

The fact that Petitioner waited until July 2, 2019, when it was being surveyed, to modify Resident 4’s care plan supports my conclusion that Petitioner was grossly deficient in protecting Residents 3 and 4.  The only reasonable inference that I can draw from the timing of the plan’s modification is that Petitioner modified the plan only because it was being surveyed and became concerned that it would be subject to remedies for noncompliance.

Petitioner does not challenge any of the undisputed facts that I have cited.  Rather, it argues that it did all that it could reasonably be expected to have done to protect Residents 3 and 4.  It asserts that, rather than being found noncompliant, it should be praised:  “Voorhees Center embarked on a noble cause of taking up the challenge to admit residents with a history of opioid addiction, fully aware of the risks.”  Petitioner’s brief at 23. 

However, Petitioner is not deficient because it agreed to accept individuals with substance abuse problems.  It is deficient because it failed to undertake basic measures to protect its residents, including care planning and monitoring.  Petitioner’s duty to protect Residents 3 and 4 is clear:  if it agrees to admit these residents, it must undertake all reasonable measures to protect them.  Planning these residents’ care with interventions intended to protect them against substance abuse, implementing monitoring when monitoring is appropriate, ensuring that a resident – a known Heroin addict – is watched closely when outside of facility premises, all are basic protective measures.  Petitioner failed to implement these measures and that is why it is deficient. 

Petitioner asserts that being held noncompliant for failing to monitor its residents for substance abuse is “preposterous [and] has no factual basis.”  Petitioner’s brief at 20.  There is nothing preposterous about holding a skilled nursing facility responsible for providing basic and obvious protective measures for its residents.

2. September 24, 2019 survey – Petitioner’s Noncompliance with the Requirements of 42 C.F.R. § 483.25(d)

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The findings of noncompliance made at the September 24, 2019 survey address Petitioner’s failure to comply with the accident prevention requirements of 42 C.F.R. § 483.25(d), but under different circumstances than those involving the residents whose treatment forms the basis for the July 2, 2019 survey deficiency citations.  The undisputed material facts are as follows: 

Resident 2(S) resided at Petitioner’s facility beginning February 22, 2019.  The resident was 79 years old and had numerous and severe medical problems including:  the consequences of a cerebral infarction (a stroke); cognitive communication deficit; aphasia (difficulty speaking); difficulty walking; muscle weakness; a major depressive disorder; an anxiety disorder; and an adjustment disorder.  CMS Ex. 22 at 4-5.  Petitioner’s staff assessed the resident as being moderately cognitively impaired.  He required limited assistance with the activities of daily living.  He walked with the aid of assistive devices.  Id. at 13.

Petitioner has an “Elopement Prevention and Management Policy.”  CMS Ex. 20 at 1-3.  The policy requires Petitioner’s staff to identify cognitively impaired residents who are at risk for wandering and exit seeking behavior and implement individualized interventions, wandering devices, and observations of the whereabouts of the at-risk residents during staff rounds.  Id.

Resident 2(S) began exhibiting exit seeking behavior in July 2019.  On July 27, the resident manifested delusional ideation and paranoia.  He asserted that he would be leaving Petitioner’s facility on the following day to be with his friends and would be moving to a house and farm that he had purchased.  CMS Ex. 22 at 21. 

Petitioner’s staff modified the resident’s care plan in response to this incident.  The staff added new interventions to the plan.  These included:  encouraging the resident to be independent while in Petitioner’s facility; ensuring that staff is aware of the resident’s elopement potential; monitoring and recording the resident’s behavior; putting a picture of the resident at the facility’s front desk; and having the resident consulted by a psychologist as needed.  The staff also placed a Wanderguard on the resident’s ankle.

CMS Ex. 22 at 12.  I take notice that a Wanderguard is a device that will trigger an alarm if the individual wearing it attempts to leave a defined area.  In addition, the staff implemented close monitoring of the resident.  Id. at 21.

The resident wore a Wanderguard until August 9, 2019.  The resident removed his Wanderguard on that afternoon and again, on that evening.  CMS Ex. 22 at 18.

On August 10, 2019, Resident 2(S) refused to wear a Wanderguard.  That afternoon, the staff observed the resident walking back and forth.  The resident was agitated and asserted that he was going to the post office and would call the police.  CMS Ex. 22 at 18.

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The resident remained agitated.  On August 11 and 12, 2019, he made similar statements about leaving the facility and he continued to refuse to wear a Wanderguard.  CMS Ex. 22 at 17-18.

On August 30, 2019, Petitioner’s staff discontinued attempting to have Resident 2(S) wear a Wanderguard and discontinued closely monitoring him.  CMS Ex. 22 at 26-27.  Petitioner’s staff made these decisions without providing any written explanation for doing so.  The staff did not prepare a written assessment of the resident’s elopement proclivity.  The staff did not modify the resident’s care plan.  It did not discontinue elopement protection based on the advice of a medical professional such as a psychiatrist. 

On September 11, 2019, a nurse observed Resident 2(S) to be yelling and packing up his belongings by the facility’s elevator.  The resident stated that he was leaving.  CMS Ex. 22 at 15.  The nurse observed that the resident had begun taking Zoloft, an anti-depressant medication, two days previously, but that the resident remained in a sad mood and depressed and wanted to leave the facility.  Id.

Zoloft is a medication that can produce severe side effects, including suicidal thoughts and actions, seizures, agitation, hallucinations, and manic episodes that may include increased energy, racing thoughts, unusually grand ideas and reckless behavior.  CMS Ex. 23 at 1-3.  There is nothing in the record to show that Petitioner’s staff began enhanced monitoring of the resident for possible side effects of Zoloft.

Petitioner’s staff did nothing to modify Resident 2(S)’s care in response to the September 11 incident.  No new assessments were prepared, his care plan remained unchanged, and no protective interventions were implemented.

On September 13, 2019, Resident 2(S) did not appear for breakfast.  The staff noted the time as being about 8:50 a.m.  Staff checked the resident’s room and his residential unit.  The resident was gone.  The staff searched the facility grounds and discovered the resident’s cane, notebook, and hat in an outdoor area.  CMS Ex. 19 at 1-2.  The staff then notified the police.  At about 10:20 a.m. the police found the resident walking along a street about 1.4 miles from the facility.  Id.; see also Petitioner’s brief at 26 n.19 (estimating the walking distance from Petitioner’s facility to the location where Resident 2(S) was found).  The resident was disheveled, scared, and incontinent of bowels at the time of his discovery.  CMS Ex. 26 at 8.  Resident 2(S) told the police that he had left the facility a couple of hours previously and had a meeting with a couple of people at a local bank.  CMS Ex. 21 at 3.

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There is a dispute as to how long Resident 2(S) was outside of Petitioner’s premises.  CMS contends that the resident eloped on the night of September 12 and was located about 13 hours later.  CMS’s brief at 25-27.  Petitioner asserts that that the resident was outside the facility for less than two hours.  Petitioner’s brief at 27-28.  It is unnecessary that I resolve this dispute for purposes of issuing summary judgment.  It appears, however, that it is highly unlikely that an individual in Resident 2(S)’s condition could walk 1.4 miles in just two hours.  However long the resident was outside the facility, it is obvious that he managed to escape without being detected, despite the fact that he was a known elopement risk who frequently said that he wanted to leave.  The resident’s room was located on an upper floor of Petitioner’s facility.  He was able to dress, ride the elevator to the facility’s first floor, exit the facility to an outdoor patio, climb a fence, and disappear without anyone on Petitioner’s staff observing his departure.

Petitioner’s staff prepared an investigation report of the elopement incident.  However, the staff did not write the report until September 23, 2019, ten days after the elopement, and on the first day of the September 24 survey.  CMS Ex. 3 at 17-18; CMS Ex. 25 at 7-8.  The report did not address the length of time that Resident 2(S) was outside the facility, it did not identify the staff members responsible for supervising the resident, and it did not explain how the resident was able to leave the facility undetected.  See CMS Ex. 19.

These undisputed facts establish that Petitioner failed to provide Resident 2(S) with the supervision that the resident needed to prevent him from eloping.  That failure is an obvious violation of 42 C.F.R. § 483.25(d).

Petitioner’s staff knew that Resident 2(S) was an elopement candidate.  Indeed, the resident proclaimed his intention to elope on numerous occasions.  The staff initially recognized that the resident was a candidate to elope.  For that reason, they modified the resident’s care plan to provide him with increased supervision and a Wanderguard.  However, the staff decided to discontinue the enhanced supervision and the Wanderguard without providing any written explanation for doing so.  That unexplained discontinuation of interventions effectively blinded Petitioner’s staff, sharply heightened the chances that the resident would elope, and contravened Petitioner’s Elopement Policy.  Unsurprisingly, the resident eloped shortly after the staff discontinued the interventions.

The failure by the staff to continue to protect Resident 2(S) is only one element of Petitioner’s noncompliance.  A second lies in the staff’s failure to consider the possible side effects that Zoloft might produce and to monitor the resident closely for those side effects.

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A third failure lies in the delayed preparation of an investigation report and the failure to investigate obvious weak links in Petitioner’s surveillance of Resident 2(S).  The only reasonable inference that I can draw from the fact that Petitioner’s staff delayed producing a report until September 23, 2019, the first day of the September 24 survey, is that staff realized belatedly that they might be in trouble if they didn’t prepare something.  The report’s lack of details and its failure to address key issues proves that the investigation into the circumstances of the resident’s elopement was haphazard and incomplete.  More important, by failing to get to the bottom of the details of the elopement, Petitioner’s staff left possible vulnerabilities unaddressed.

Petitioner did not offer a valid defense to its failure to protect Resident 2(S). 

Petitioner offers the declaration of Nelia S. Adaci, RN, BSN, CDONA/LTC, DNS-CT, RAC-CTA as support for its contention that it complied with participation requirements in providing care to the resident.  P. Ex. 17.  Ms. Adaci is, among other things, a gerontological nurse.  She reviewed the exhibits in this case and her declaration contains her opinions.

Ms. Adaci is not a witness to the events at Petitioner’s facility.  She did not work there and she was not present when the events and decisions that form the basis for CMS’s case occurred.  Rather, she presents herself as an expert who formed her opinions upon review of the record.  Consequently, Ms. Adaci’s testimony adds no facts to the record.

However, it is apparent that Ms. Adaci’s opinions are in at least some respects not grounded on any of the exhibits that the parties offered.  For example, she avers that Resident 2(S)’s care plan was modified in late August in light of the resolution of a urinary tract infection that might have stimulated his desire to elope the premises in July and early August.  P. Ex. 17 at 28.  According to Ms. Adaci, the resident’s urinary tract infection was the “root of the altered mental state that triggered elopement fantasies.”  Id. at 32.  But, Ms. Adaci refers to absolutely nothing in the record to show that the staff found that the resident’s infection caused him to think about eloping.  Nor did she point to any documentation showing that Petitioner’s staff modified the resident’s care plan in response to the abatement of the resident’s urinary tract infection.  Id.  Her assertions are simply speculation and add no facts to this case.

Similarly, while Ms. Adaci concedes that Zoloft can have side effects, she asserts, baldly, that “it is a stretch to even imagine that it triggered exit-seeking behaviors.”  P. Ex. 17 at 33.  This statement is without basis in fact and, moreover, it is a straw man.  CMS does not assert that Resident 2(S)’s consumption of Zoloft triggered his desire to elope.  It simply points out that any prudent care giver should monitor an individual who is new to this medication for possible side effects that might include delusional thoughts, reckless behavior, and grandiosity. 

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Petitioner argues that there was a period running from mid-August 2019 to the date of Resident 2(S)’s elopement when the resident did not exhibit exit-seeking behaviors.  It asserts that discontinuation of the Wanderguard and enhanced supervision was therefore justified.  Petitioner’s brief at 27; P. Ex. 14 at 7-8.

The undisputed facts establish that Petitioner’s staff did not note that Resident 2(S) expressed a desire to leave the facility between August 12 and September 11, 2019, a period of about a month.  Perhaps Petitioner might have justified a relaxation of the surveillance of the resident during this period had its staff carefully assessed his elopement risk in light of his no longer vocalizing a desire to leave the premises.  However, there is nothing in the record to suggest that the staff did anything of the kind.  There are no written assessments, no revisions to the plan of care, no other documents suggesting that the staff actually made a reasoned judgment to relax surveillance and discontinue the Wanderguard.

Furthermore, Resident 2(S) began reasserting his desire to leave Petitioner’s premises on September 11, 2019, at least a full day before he eloped.  That, coupled with the fact that he’d recently begun taking Zoloft, was a flashing red light for Petitioner’s staff.  No matter what their previous assessment might have been, this was a marked change in the resident’s behavior, one that should have immediately prompted the staff to review the resident’s condition and implement necessary interventions.  The record reveals that the staff did nothing.

Petitioner casts the staff’s removal of the Wanderguard as a matter of the resident exercising his freedom to reject care.  According to Petitioner, it was respecting the resident’s rights when its staff removed the Wanderguard.  Petitioner’s brief at 27; P. Ex. 14 at 7-8.  This argument is unpersuasive.  If Petitioner wanted to respect the resident’s wishes by removing the Wanderguard, then it had to consider other interventions that would protect the resident against elopement.  A Wanderguard functions only as a substitute for close surveillance.  If no Wanderguard is in place, then, it becomes incumbent on staff to come up with some other intervention that substitutes for the device.  Petitioner’s staff did no such thing.  Indeed, it discontinued the Wanderguard and close monitoring of Resident 2(S) simultaneously, eliminating the protection against elopement that the staff had instituted previously.

3. Immediate Jeopardy

 Regulations define immediate jeopardy to be noncompliance so egregious as to cause, or to be likely to cause, serious injury, impairment, harm, or death to a resident.  42 C.F.R. § 488.301.  The undisputed facts establish that all three of the deficiencies that I have found were at the immediate jeopardy level of scope and severity.

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The failure to protect residents against drug abuse jeopardized these residents’ lives.  I take notice that in 2019, over 50,000 Americans died from opioid abuse, according to the Centers for Disease Control.  Petitioner clearly knew how deadly opioid abuse could be.  It also knew that Residents 2, 3, and 4 were addicts.  Despite that, it failed to provide necessary protections to these residents.  The failures were myriad:  failure to plan care; failure to implement facility policy; and failure to monitor and observe.  These failures put these residents at great risk for injury or death. 

Petitioner also failed to protect Resident 2 against the possibility that the resident might attempt suicide, resulting in a likelihood of serious harm or death to the resident.  Petitioner knew that the resident had a history of expressing suicidal thoughts and at least one suicide attempt.  It failed to plan care for the resident, to assure that he timely received professional help, and to provide interventions that might have protected him.  The neglect of Resident 2 created an environment where a suicide attempt was likely to succeed, even if the resident’s death was an accidental overdose and not a suicide.

Petitioner’s failure to protect Resident 2(S) against elopement also constituted immediate jeopardy.  Petitioner inexplicably stopped supervising this resident and failed to resume supervision even as the resident packed his belongings and expressed an intent to elope.  Resident 2(S) had a number of potentially lethal medical problems and was at great risk for harm or worse if alone on the public streets.  Yet, Petitioner, through its staff’s inattention, allowed the resident to elope.

The standard for determining whether to sustain CMS’s determination of immediate jeopardy is whether that finding is clearly erroneous.  In an evidentiary hearing, I would weigh the evidence in order to determine whether Petitioner proved an immediate jeopardy finding is clearly erroneous.  The decision-making process is a bit different in evaluating whether to grant summary judgment on the issue of immediate jeopardy.  Here, I decide whether Petitioner offers facts or analysis that lead to a possible conclusion that CMS’s finding of immediate jeopardy is clearly erroneous.  I should deny a motion for summary judgment on the issue of immediate jeopardy if there are facts from which I can infer that a finding of immediate jeopardy is clearly erroneous.

Petitioner has not offered facts that might contradict what CMS offered.  It offers no challenge to CMS’s findings of immediate jeopardy level noncompliance at the July 2, 2019 survey.  Apparently, Petitioner contends that immediate jeopardy did not exist because it was compliant with participation requirements.  I have explained Petitioner’s noncompliance in detail.  There is no need to reiterate my findings here.

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As for the September 24, 2019 immediate jeopardy findings, Petitioner concedes that it may have violated participation requirements in some minor way, but anomalously, it asserts that no immediate jeopardy existed because it complied with participation requirements in providing care to Resident 2(S).  P. Ex. 17 at 34-36.  The undisputed facts belie this argument.  As I have stated, there was clear noncompliance with regulatory requirements and that noncompliance put the resident, an elderly individual with multiple impairments, at a great likelihood for harm.  The fact that he was not seriously harmed is fortuitous, but it does not derogate from the extreme danger that the resident was exposed to when he eloped.

4. Remedies

CMS determined to impose the following remedies against Petitioner.

For deficiencies identified at the July 2, 2019 survey:

• An immediate jeopardy level civil money penalty of $21,393 for each day of a period that began on June 28, 2019 and that ran through July 2, 2019.
• A non-immediate jeopardy level civil money penalty of $2,670 for each day of a period that began on July 3, 2019 and that ran through September 11, 2019.

For the deficiency identified at the September 24, 2019 survey:

• An immediate jeopardy level civil money penalty of $10,015 for one day, September 12, 2019.
• A non-immediate jeopardy level civil money penalty of $110 for each day of a period that began on September 13, 2019 and that ran through November 7, 2019. 

Petitioner adduced no facts to challenge the remedy determinations, nor did it argue that these determinations are unreasonable in amount or duration assuming that CMS’s noncompliance allegations are sustained.  I could end my analysis of the remedy determinations based on Petitioner’s failure to challenge them.  However, I have considered these determinations in light of the undisputed facts and I find them to be reasonable.

All of the remedies fall within the permissible regulatory ranges for per-diem civil money penalties.  42 C.F.R. § 488.438(a); 45 C.F.R. § 102.3.  There are regulatory criteria for determining whether a penalty amount that is within a permitted range is reasonable.  These criteria include:  the seriousness of a facility’s noncompliance; its compliance history; its culpability; and its financial condition.  42 C.F.R. §§ 488.438(f)(1)-(4), 488.404 (incorporated by reference into 42 C.F.R. § 488.438(f)(3)). 

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The seriousness of Petitioner’s noncompliance establishes ample justification for the remedy amounts.  The deficiencies that I have found each jeopardized the lives of residents.  There is also a pattern to these deficiencies consisting of a wholesale failure by Petitioner and its staff to address basic and obvious needs.  In the case of Resident 2, the staff ignored facts that made it obvious that the resident was in dire need of enhanced protection against the possibility that he might attempt to take his life or that he might abuse an illegal drug.  In the cases of Residents 3 and 4, Petitioner failed to take even basic measures to prevent these residents from substance abuse.  In the case of Resident 2(S), Petitioner’s staff unaccountably and without any assessment of record removed protections that plainly were necessary to prevent the resident from eloping.

I find also that Petitioner is culpable for its noncompliance.  Each of the deficiencies that I have found involve clear violations of Petitioner’s own policies. 

Finally, I find that the penalties are justified in part by Petitioner’s compliance history.  Petitioner has had multiple past deficiencies for which it was assessed civil money penalties.  CMS Ex. 35 at 1-2.

As I have discussed, Petitioner did not offer any evidence relating to the duration of its noncompliance.  I conclude that CMS’s determinations of duration stand, absent any challenge by Petitioner.

1. Although I make no findings as to when the psychiatrist actually saw Resident 2, the signature date of April 26, 2019 seems odd.  A purpose of the PASRR II report is to evaluate the suitability of skilled nursing care for an individual – like the resident – who is suffering from mental illness prior to the individual’s admission to Petitioner’s facility.  If the signature date is accurate, the resident was not evaluated until seven weeks after he was admitted (and seven weeks after the evaluation was requested).  If so, then Petitioner accepted Resident 2 without knowing whether he was a suitable candidate for skilled nursing care.
• back to note 1
2. The suspect signature date on the PASRR II report calls into question whether the report was generated before or after the resident’s suicidal ideation and his visit to the crisis center on April 15, 2019.  For that reason, the finding that the resident was not suicidal is of questionable value.
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3. The care plan directed that the resident be “monitored for safety.”  That monitoring, however, clearly was in the context of the resident’s Methadone consumption.  Petitioner does not assert and I do not infer that the plan directed that Resident 3 be closely monitored in order to prevent him from obtaining and using illegal drugs.
• back to note 3