Countryside Health Center Operations, LLC, DAB CR5951 (2021)

DECISION

Respondent, the Centers for Medicare & Medicaid Services (CMS), determined that Petitioner, Countryside Health Center Operations, LLC (Countryside or facility), was not in substantial compliance with Medicare participation requirements and that some of its noncompliance posed immediate jeopardy to resident health and safety.  CMS imposed per-day civil money penalties (CMPs) for the facility’s noncompliance.  

As explained below, I sustain the imposition of a $6,550 per-day CMP from June 16 through June 29, 2016 and a $100 per-day CMP from June 30 through July 14, 2016.  However, I find no basis to impose a $400 per-day from July 15 through August 13, 2016.  The total CMP is modified to $93,200.

I.  Background

Countryside is a skilled nursing facility (SNF) located in Topeka, Kansas participating in the Medicare and Medicaid programs.  Following two surveys completed on July 5 and July 15, 20161 by the Kansas Department Aging Disability Services (KDADS or state

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agency), CMS determined that Countryside was not in substantial compliance with multiple program requirements, including the following:

• 42 C.F.R. § 483.25(h) (Tag F323 – free of accident hazards/supervision/devices) 2  
• 42 C.F.R. § 483.12(a)(2) (Tag F201 – reason for transfer/discharge of resident); and
• 42 C.F.R. § 483.12(a)(4) (Tag F203 – notice requirements before transfer/discharge).

CMS Exhibit (Ex.) 12 at 1.  Tag F323 was cited at a scope and severity level3 “J,” meaning an isolated instance of noncompliance that poses immediate jeopardy to resident health and safety, while Tags F201 and F203 were cited at a level “D,” meaning an isolated noncompliance with no actual harm but with potential for more than minimal harm that is not immediate jeopardy.  CMS Ex. 12 at 1; State Operations Manual (SOM),

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Chap. 7, § 7400.5.1 at 92-93 (Rev. 63, eff. Sept. 10, 2010), available at https://www.cms.gov/Regulations-and-Guidance/Guidance/Transmittals/Downloads/R63SOMA.pdf.  

CMS imposed a $6,550 per-day CMP from June 16 through 29, 2016 for the deficiency cited under Tag F323 and a $100 per-day CMP from June 30 through July 14, 2016, after immediate jeopardy conditions were abated.  CMS Ex. 12 at 1.  CMS imposed a $400 per-day CMP from July 15 through August 13, 2016, for the deficiencies cited under Tags F201 and F203.  CMS Ex. 12 at 1; CMS Ex. 13 at 1.   

Countryside timely filed a request for hearing on October 5, 2016.  Administrative Law Judge Scott Anderson was initially designated to hear and decide this case.  Judge Anderson issued an Acknowledgment and Pre-hearing Order (Pre-hearing Order) that set deadlines for the parties to file pre-hearing exchanges, including briefs, exhibits, witness lists, and the direct testimony of any witnesses identified.  Pre-hearing Order at 3-6.  CMS and Countryside timely filed pre-hearing exchanges and pre-hearing briefs (CMS Opening Br. and P. Opening Br.).  On August 25, 2017, this matter was transferred to me to hear and decide. 

II.  Hearing and Admission of Exhibits.

CMS identified two witnesses in its exchange, Surveyors Ginger Love and Kim Barnes, and for each provided written direct testimony.  Petitioner identified and provided written direct testimony for eight witnesses.4   Both parties initially sought to cross-examine all the other party’s witnesses, but CMS subsequently withdrew its request.  Jun. 22, 2018 Order Modifying Hearing Dates.  On July 12, 2018, I held a videoconference hearing to allow Petitioner to cross-examine CMS’s witnesses. 

Petitioner broadly objected to CMS Exhibits 2 through 11 in its pre-hearing exchange on the basis that CMS did not cite those exhibits in its brief.  P. Opening Br. at 3-4.  Petitioner also objected to CMS exhibits that specifically reference a March 9, 2016 incident involving Resident 1, arguing that those facts were the subject of a prior survey that took place on March 29, 2016.  Id. at 4.  At the outset of the hearing, I overruled Petitioner’s objections as the exhibits provided foundation for the statement of

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deficiencies and were otherwise relevant to the outcome of this case.  Hearing Transcript (Tr.) at 8-9.  Meanwhile, Petitioner proposed 27 exhibits to which CMS raised no objection.  I entered into evidence CMS Exhibits 1 through 15 and Petitioner Exhibits 1 through 27.  Id. at 9.  Following the hearing, the parties filed post-hearing briefs (CMS Closing Br. and P. Closing Br.).

III.  Scope of Decision

Countryside challenges other deficiencies cited in the July 5, 2016 survey beyond Tag F323, namely those cited under 42 C.F.R. § 483.15(g)(1) (Tag F250), §§ 483.20(d)(3), 483.10(k)(2) (Tag F280), and § 483.45(a) (Tag F406).  P. Opening Br. at 22.  Countryside contends that because CMS failed to address these additional deficiency findings, I should assert jurisdiction and dismiss them.  Id.  Countryside’s claim is without merit.  The facility is not entitled to review of CMS’s determination that it was not in substantial compliance with 42 C.F.R. § 483.15(g)(1) (Tag F250), §§ 483.20(d)(3), 483.10(k)(2) (Tag F280), and § 483.45(a) (Tag F406) because CMS did not impose remedies based on those deficiencies. 

By regulation, a SNF has a right to a hearing before an ALJ where CMS has issued an “initial determination” of a kind specified in 42 C.F.R. § 498.3(b).  But it is only after CMS makes a finding of noncompliance and imposes a remedy under 42 C.F.R. § 488.406 that a SNF receives an “initial determination” subject to further review.5   Columbus Park Nursing & Rehab. Ctr., DAB No. 2316 at 6 (2010), dism. on other grounds, Columbus Park Nursing & Rehab. Ctr. v. Sebelius, 940 F. Supp. 2d 805 (N.D. Ill. 2013); see also 42 C.F.R. §§ 488.406, 498.3(b).  A SNF “has no right to an [administrative law judge] hearing to contest survey deficiency findings where CMS has not imposed any of the remedies specified in section 488.406 based on those findings.”  Columbus Park, DAB No. 2316 at 7.  The imposition of a remedy, not the citation of a deficiency, triggers the right to a hearing.  Schowalter Villa, DAB No. 1688 (1999); Arcadia Acres, Inc., DAB No. 1607 (1997).  Accordingly, where CMS finds a deficiency but does not impose a remedy, Petitioner has no right to a hearing.  Fountain Lake Health & Rehab., Inc., DAB No. 1985 (2005).

In its August 1, 2016 imposition notice, CMS imposed a $6,550 per-day CMP “for the deficiency cited at tag:  F323 – (S/S:  J – 483.25(h) – Free of Accident Hazards/Supervision/Devices).”  CMS Ex. 12 at 1.  CMS stated that, “[a]s a result of the removal of the IJ, the civil money penalty was reduced to $100 per-day, effective June 30, 2016, and continued thru July 14, 2016.”  Id.  Finally, CMS advised Petitioner that the per-day CMP “increased to $400 on July 15, 2016 due to the deficiencies cited at . . .

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Tags F201 . . . [section] 483.12(a)(2) . . . [and] F203 . . . [section] 483.12(a)(4).”  Id. 

Because CMS specifically imposed CMPs only for the deficiencies cited under sections 483.25(h) and 483.12(a)(2), (4) (Tags F323, F201, and F203), those are the only deficiencies properly before me in this case.  Id.

IV.  Issues

The issues presented are:

Whether Countryside was in substantial compliance with 42 C.F.R. § 483.25(h) (Tag F323); if so, whether the noncompliance posed immediate jeopardy to resident health and safety, and whether the immediate jeopardy period, from June 16 through 29, 2016, was clearly erroneous;

Whether Countryside was in substantial compliance with 42 C.F.R. § 483.12(a)(2), (4) (Tags F201 and F203); and

If Countryside was not in substantial compliance, whether the CMPs imposed are reasonable.

V.  Jurisdiction

I have jurisdiction to hear and decide this case.  42 U.S.C. § 1395i-3(h)(2)(B)(ii); 42 C.F.R. §§ 488.408(g), 488.434(a)(2)(viii), 498.3(b)(13).

VI.  Statutory and Regulatory Background

The Social Security Act (Act) sets forth requirements for a SNF’s participation in the Medicare program and authorizes the Secretary of Health and Human Services to promulgate regulations implementing those statutory provisions.  42 U.S.C. § 1395i-3.  These implementing regulations are found at 42 C.F.R. Parts 483 and 488. 

To participate in the Medicare program, a SNF must maintain substantial compliance with program participation requirements.  To be in substantial compliance, a SNF’s deficiencies may “pose no greater risk to resident health or safety than the potential for causing minimal harm.”  42 C.F.R. § 488.301.  A deficiency is a violation of a participation requirement established by 42 U.S.C. § 1395i-3(b)-(d) or the Secretary’s regulations at 42 C.F.R. pt. 483, subpt. B.  Id.  “Noncompliance” means “any deficiency that causes a facility to not be in substantial compliance.”  Id.  The Act authorizes the Secretary to impose enforcement remedies against SNFs that are not in substantial compliance with the program participation requirements.  42 U.S.C. § 1395i-3(h)(2).

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If CMS imposes a CMP based on a noncompliance determination, then the facility may request a hearing before an ALJ to determine whether there was a basis for the deficiency findings that led to the imposition of the remedy and whether the CMP imposed was reasonable.  42 U.S.C. §§ 1320a-7a(c)(2), 1395i-3(h)(2)(B)(ii); 42 C.F.R. §§ 488.408(g), 488.434(a)(2)(viii), 498.3(b)(13). 

At the hearing level, CMS must first make a prima facie showing that a SNF failed to comply substantially with federal participation requirements.  If this occurs, the facility must prove substantial compliance by a preponderance of the evidence in order to rebut CMS’s showing and prevail.  Hillman Rehab. Ctr., DAB No. 1611 at 8 (1997); Batavia Nursing & Convalescent Ctr., DAB No. 1904 (2004); Emerald Oaks, DAB No. 1800 (2001); Cross Creek Health Care Ctr., DAB No. 1665 (1998).

VII.  Discussion

A.  Applicable Law

42 C.F.R. § 483.25(h) requires a facility to ensure that residents receive the necessary care and services in accordance with the comprehensive assessment and plan of care to “attain or maintain the highest practicable physical, mental, and psychosocial well-being.”  To that end, this regulation imposes specific obligations upon a facility related to accident hazards and accidents:

The facility must ensure that –

(1) The resident environment remains as free of accident hazards as is possible; and

(2) Each resident receives adequate supervision and assistance devices to prevent accidents.

42 C.F.R. § 483.25(h).

The first provision of this regulation requires a facility to address foreseeable risks of harm from accidents “by identifying and removing hazards, where possible, or where the hazard is unavoidable because of other resident needs, managing the hazard by reducing the risk of accident to the extent possible.”  Me. Veterans’ Home – Scarborough, DAB No. 1975 at 10 (2005); see also SOM, App. PP at 271-72 (rev. 70 eff. Aug. 17, 2007) (providing facilities are expected to:  identify, evaluate, and analyze hazards and risks; implement interventions to reduce hazards and risks; and monitor the effectiveness of interventions and modify them when necessary.), available at https://www.cms.gov/Regulations-and-Guidance/Guidance/Transmittals/Downloads/R70SOMA.PDF. 

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The second provision requires a 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.”  Briarwood Nursing Ctr., DAB No. 2115 at 11 (2007) (citing Woodstock Care Ctr. v. Thompson, 363 F.3d 583, 590 (6th Cir. 2003) (providing a facility must take “all reasonable precautions against residents’ accidents”)).  Facilities are afforded “the flexibility to choose the methods” to provide supervision or assistive devices to prevent accidents, so long as the chosen methods “constitute an ‘adequate’ level of supervision under all circumstances.”  Windsor Health Care Ctr., DAB No. 1902 at 5 (2003), aff’d, Windsor Health Care Ctr. v. Leavitt, 127 F. App’x 843 (6th Cir. 2005) (unpublished).

B.  Relevant Facts

Prior to his admission to Petitioner’s facility, Resident 1 resided in a group home in Olathe, Kansas.  P. Ex. 8 at 1.  He received assistance from Johnson County Medical Health Center, which advised Countryside that Resident 1 needed assistance or supervision with his medications and grooming.  Id. (¶ 6).  A February 14, 2014 Preadmission Screening and Resident Review (PASRR) screening conducted by KDADS advised that Resident 1 “require[s] the level of services provided in a nursing facility for mental health for a temporary period of time.”  P. Ex. 11.  KDADS opined that Resident 1 would benefit from facility placement in five areas:  compliance with medication regimen; consistent programs designed to teach daily living skills to be more independent and self-determining; balancing a diet with good nutrition; utilizing adaptive equipment to communicate; and discharge planning for a safe and successful transition to community living.  Id.  KDADS estimated Resident 1 would benefit from a temporary stay at a nursing facility for up to nine months.  Id. at 1. 

Resident 1 was admitted to Countryside on March 5, 2014 with diagnoses including non-speaking deafness, schizophrenia, unspecified intellectual disabilities, and major depressive disorder.  P. Ex. 10.  Being deaf and non-speaking, Resident 1 had difficulties communicating his needs and understanding others.  CMS Ex. 9 at 28.  However, Resident 1 was able to communicate and make his needs known by writing notes, shaking his head “yes” or “no,” and using hand gestures, including some sign language.  See, e.g., P. Ex. 2 at 1; P. Ex. 7 at 1; CMS Ex. 7 at 29 (providing Resident 1 could make himself understood and was able to understand others). 

Resident 1’s care plan in effect from June 2014 reflected him to be “a very independent person,” though he had “the potential for alterations in cognition as a result of [his] diagnoses.”  P. Ex. 15 at 2-3.  In November 2014, Resident 1’s care providers indicated he did not have a history of elopement and was able to demonstrate signing in and out to

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leave the facility.  Id.  They assessed Resident 1 to be capable of doing so independently but believed he might not do so consistently, and therefore educated him on the importance of signing in and out.  Id.  

Resident 1’s care providers continued to document interventions they introduced in response to his behavior.  In January 2015, they educated Resident 1 to ask for new inventory items he had lost due to his habit of trading, pawning, or selling his belongings.  Id. at 6.  In March 2016, acknowledging Resident 1’s practice of seeking out community assistance to increase his income, Countryside’s staff advised him that he did not qualify for such assistance while residing at the facility.  Id. 

At the end of March 2016, Countryside updated Resident 1’s MDS6 assessment to reflect a significant change in his status.  CMS Ex. 7 at 24.  The MDS indicated that he received antipsychotic and antidepressant mediations daily.  Id. at 51.  Facility staff conducted an elopement risk assessment and concluded “[Resident 1] is alert and oriented and familiar with community.  He has in the past always made his own appointments while in the community.  Has been encouraged to allow nursing staff to assist him with making his appointments.  [Resident 1] leaves the facility independently and knows he should sign in and out but often chooses not to.”  P. Ex. 14 at 2. 

An April 2016 fall risk assessment contained in Resident 1’s MDS reflected his medications could cause dizziness, drowsiness, or orthostatic hypertension, but concluded that he was ultimately not at risk for falls.  CMS Ex. 7 at 67.  The assessing care provider stated:

[Resident 1] communicates through writing and gestures.  Answers best to yes/no questions, but is able to make needs and wants known.  No memory problems observed.  Independent with leaving the facility by himself.  Scored 15 on BIMS7 assessment.  Using written words, [Resident 1] is able to communicate his wants and needs effectively, but does continue to pursue his own thoughts independently and needs reminders to go through nursing for his appointments.  [Resident 1] is independent with [activities of daily living].

Id. 

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In May 2016, Resident 1’s care plan documented the following additional intervention:  “When I go outside, I sometimes wear a wet towel on my head under my hat when it is warm outside.  Please get me a towel for this if I ask for one.”  P. Ex. 15 at 6.

Based on its assessment of his needs and limitations, Countryside determined Resident 1 could leave the facility without supervision and at his discretion.  However, the facility did employ a sign-out policy that required “[e]ach resident leaving the premises (excluding transfers/discharges) [to] be signed out” and further requiring “[r]esidents must be signed back in . . . upon return to the facility.”  CMS Ex. 4 at 27.8

On June 3, 2016, Resident 1 left the facility without signing out and was found at the KDADS office about two miles away, seeking a “Vision card” and a place to live.  CMS Ex. 1 at 7; P. Ex. 19 at 1.  According to one KDADS staff member, Resident 1 “looked rough.”  CMS Ex. 1 at 7.  KDADS contacted Countryside’s Administrator, who was unaware of Resident 1’s location but indicated the resident typically “walked all over town.”  Id. at 2, 7.  Countryside later retrieved Resident 1 from KDADS’ office.  Id. at 7. 

On June 16, 2016, at around 11:37 a.m., Resident 1 was again discovered at the KDADS office.  This time, Resident 1 had signed out at 8:50 a.m. for a “walk of Kansas st [sic]” with an expected return time of 12:25 p.m.  CMS Ex. 1 at 6; P. Ex. 20 at 1.  When contacted by KDADS staff, the Administrator confirmed Resident 1 had signed out to walk to the State of Kansas building.9   CMS Ex. 1 at 6.

On June 26, 2016, Resident 1 signed out of the facility at 8:00 a.m. to go to the “store.”  P. Ex. 23.  He did not provide an expected time of return.  Id.  While out of the facility, Resident 1 was found sitting at the kitchen table of a private residence and was arrested for criminal trespass and misdemeanor damage to property.  CMS Ex. 2 at 35-36.  Resident 1 allegedly forced entry through the back door while the homeowner was tending to her plants in the front.  Id. at 33-37.  He fled when the homeowner entered the house but later returned and was arrested by police responding to a report of burglary.  Id. at 34, 36.

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C.  CMS has not established a prima facie case that Petitioner failed to substantially comply with 42 C.F.R. § 483.12(a)(2), (4), Tags F201 and F203.

As Countryside observes, KDADS cited deficiencies under Tags F201 and F203 based on a second survey that concluded on July 15, 2016, and CMS later imposed a CMP based on those deficiencies.  P. Closing Br. at 18.  Countryside contends CMS failed to offer any evidence of the July 15, 2016 survey and therefore failed to meet its prima facie burden with respect to those two deficiencies, which should then be dismissed.  Id.

Countryside’s argument is well-taken.  The August 1, 2016 imposition notice in this case provides that CMS imposed a $400 per-day CMP due to the deficiencies cited at two specific tags:  “F201–(S/S:  D–483.12(a)(2) Reason for Transfer/Discharge of Resident” and “F203–(S/S:  D–483.12(a)(4) Notice Requirements Before Transfer/Discharge.”  CMS Ex. 12 at 1.  A subsequent letter notified the facility that the $400 per-day CMP ran from July 15, 2016 through August 13, 2016.  CMS Ex. 13. 

However, CMS has offered no argument in any of its pleadings concerning the deficiencies cited under Tags F201 and F203.  Indeed, CMS has failed to present evidence related to those deficiencies, even the Statement of Deficiencies that identified deficiencies based on the July 15, 2016 survey.  There is no basis in the record before me for the imposition of the $400 per-day CMP imposed from July 15, 2016 through August 13, 2016.  I therefore find CMS failed to meet its prima facie burden to establish Countryside’s noncompliance with 42 C.F.R. § 483.12(a)(2), (4) (Tags F201 and F203).

D.  Petitioner failed to substantially comply with 42 C.F.R. § 483.25(h), Tag F323.

1.  Countryside did not fail to provide adequate assistive devices.

42 C.F.R. § 483.25(h) requires facilities to minimize the possibility of accidents by keeping residents’ environments as free of hazards as possible, and by providing adequate supervision and assistive devices.10   CMS argues that Countryside failed to meet this obligation by failing to comply with Resident 1’s care plan, which the agency contends contemplated several interventions that would make the resident’s at-will departures from the facility safer, including the provision of paper and pen11 to assist with communication,

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water, and a towel for his head to prevent overheating on hot days.  CMS Closing Br. at 15, citing Heritage Plaza Nursing Ctr., DAB No. 2829 at 10 (2017) (providing failure by a facility to provide assistive measures contained in a resident’s care plan “amply demonstrates” failure to provide adequate supervision and assistive devices required by 42 C.F.R. § 483.25(h)). 

CMS’s attempt to establish substantial noncompliance under 42 C.F.R. § 483.25(h) by demonstrating Countryside’s failure to follow Resident 1’s care plan is without merit because, as Countryside points out, none of these measures were actually mandated by Resident 1’s care plan as necessary conditions for his departure from the facility on his daily outings.  P. Closing Br. at 10; P. Ex. 15.  Contrary to CMS’s assertion, the provision of a towel to wear on hot days was a comfort measure to be provided at Resident 1’s request.  P. Ex. 15 at 6 (“When I go outside, I sometimes wear a wet towel on my head under my hat when it is warm outside.  Please get me a towel if I ask for one”). 

Similarly, Resident 1’s care plan did not mandate the provision of water based on weather conditions before his departure from Countryside.  Instead, the care plan documented education provided by facility staff to Resident 1 to “drink plenty of fluids and even take water with [him] while [he was] walking in the community to stay hydrated, especially when temperatures are warmer.”  P. Ex. 15 at 4.  And, Resident 1’s care plan did not require the facility to provide him pen and paper on his departure, which Countryside characterizes as a “practice” exercised by the facility, not a care plan intervention.  P. Closing Br. at 10.  Finally, Resident 1’s care plan did not expressly mandate that he sign in and out of the facility so much as memorialize the fact that he was able do so independently but not consistently.  P. Ex. 15 at 3, 6.12  

CMS otherwise argues Resident 1’s care plan was inadequate and that Countryside should have afforded Resident 1 more assistive measures in order to provide him adequate supervision.  CMS Opening Br. at 16-18, citing CMS Ex. 1 at 56-57.  CMS broadly claims Countryside did not provide adequate supervision because Resident 1 left the facility “for extended periods of time and during inclement weather” and did not have proper “safety awareness.”  Id. at 16.  CMS also asserts the facility should have provided writing materials to assist Resident 1 on his outings. 13   Id.

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But the only evidence cited by CMS to support its argument that the facility had designed an inadequate care plan for Resident 1 are assertions recorded by one of the state surveyors purportedly made by mental health consultant Yong S. “Cookie” Cork.14   Id. at 17.  According to CMS, Ms. Cork had grave concerns with the level of independence afforded by the facility to Resident 1, claiming she believed him to be “barely above minimal functioning” and possessed of “far-below-average abilities.”  Id. at 16, citing CMS Ex. 1 at 56-57.  CMS contends Ms. Cork questioned Resident 1’s ability to seek shelter from or take precautionary measures against inclement weather and communicate his needs effectively.  Id.  CMS also claims Ms. Cork expressed concern at Countryside’s lack of awareness as to Resident 1’s location or the duration of his outings, and opined the facility “needed to develop a plan to monitor the resident’s whereabouts if he left the building.”  Id.

In response, Countryside submitted a sworn declaration from Ms. Cork wherein she repudiated these statements and claimed the state surveyor did not accurately record their conversation.  P. Ex. 7 at 2-3.  CMS has made no effort to explain this significant disparity or otherwise contest the admissibility or veracity of Ms. Cork’s sworn declaration, made under penalty of perjury.  Therefore, I find Ms. Cork’s declaration to be an accurate characterization of her views and reject the memorialized report of her opinion contained in the SOD and submitted by CMS as incredible and inaccurate.15  

Ms. Cork’s declaration is therefore a far more accurate reflection of her view of Resident 1’s level of independence and the adequacy of the facility’s care plan.  She indicated that Resident 1 had communicated effectively with her and others since she began interacting with him in 2014.  P. Ex. 7 at 1.  Ms. Cork also opined that Resident 1 had the requisite cognitive abilities and communication skills to make his needs known and follow simple

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instructions, leave the facility, and independently visit the community.  Id. at 1-2.  In short, Ms. Cork’s declaration entirely undermines CMS’s reliance on her so-called opinion to call into question the adequacy of the facility’s care plan for Resident 1.  Instead, she confirms that Resident 1 retained the judgment, cognitive abilities, and communication skills to enjoy a high level of independence with respect to outings from the facility.  

CMS has failed to identify interventions set forth in Resident 1’s care plan that Countryside did not provide.  CMS has also failed to demonstrate that Resident 1’s care plan was itself inadequate to provide him adequate assistive devices required by 42 C.F.R. § 483.25(h). 

2.  Countryside did not provide adequate supervision to Resident 1 as required by 42 C.F.R. § 483.25(h).

42 C.F.R. § 483.25(h) requires facilities to provide not only adequate assistive devices, but also adequate supervision.  Countryside had a policy that required residents to sign out each time they left the facility premises of their own accord.  CMS Ex. 4 at 27; see also P. Ex. 9 at 7 (demonstrating that, as of March 2016, the facility had a policy directing residents to sign out before leaving the building and sign in when returning).  Countryside does not dispute the existence of this policy or its applicability at the time of the incidents at issue here.  The facility instead argues it in fact had no basis in Resident 1’s personal history or its assessments and evaluations of his capacities to apply its own policy and limit his ability to depart and return at will.  P. Closing Br. at 6. 

The record confirms Resident 1 was an unusually independent resident whose supervision needs bore little resemblance to those of typical elderly nursing home residents.  Aside from deafness, Resident 1 had no significant physical limitations; he scored 15 out of 15 on the BIMS test, indicating no cognitive limitations.  P. Ex. 12 at 7; CMS Ex. 7 at 30.  When assessed for behavioral risks, he exhibited no maladaptive behaviors and was not determined to be an elopement risk.  P. Ex. 13; P. Ex. 14; P. Ex. 15 at 3.  Resident 1 was independent with activities of daily living.  CMS Ex 7 at 67.  He was considered to be capable of leaving the facility independently and in fact consistently did so without incident.  P. Ex. 3 at 1, 3.  In short, the record largely corroborates Countryside’s characterization of Resident 1 as a highly independent resident with little need for additional supervision or specific assistive measures.

But even for competent residents, “[a facility] clearly has some responsibilities when a resident chooses to leave the facility.”  Venetian Gardens, DAB No. 2286 at 17 (2004) (emphasis omitted).  More precisely, “a facility has some obligation ‘to take steps to protect residents from harm when they temporarily [leave] the facility,’ by being aware of the circumstances of a resident’s departure.”  Id. at 22 (2004), citing Heritage Park Rehab. and Nursing Ctr., DAB No. 2231 (2009).  A facility “should be aware of when a

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resident is expected to return to the facility and consider factors that would impact the resident’s health and safety when away, such as the resident’s need for medication.”  Id., citing Eastwood Convalescent Ctr., DAB No. 2088 (2007).

Applying these principles here, Countryside failed to meet the minimal requirements to provide adequate supervision for a resident leaving its facility.  Despite its sensible policy requiring residents to sign out each time they left the facility premises, CMS Ex. 4 at 27, Countryside failed to consistently enforce this policy with respect to Resident 1, who left the facility June 3, 2016 and June 26, 2016 without signing out at all, meaning no member of staff had any knowledge as to why Resident 1 left or when he might return on those days.  P. Ex. 20 at 1. 

Countryside seeks to minimize the probative value of its own policy as to its regulatory obligation to provide adequate supervision for residents who leave the facility, arguing it “was not the imperative that CMS makes it out to be.”  P. Closing Br. at 10.  But I see no reason not to rely on the facility’s own determination of what it determined as essential to attain or maintain its residents’ “‘highest practicable physical, mental, and psychosocial well-being’ as required by the overarching quality-of-care requirement.”  Heritage Plaza Nursing Ctr., DAB No. 2829 at 6.  

In any event, there is no reason to find the facility’s sign-out policy exceeded the standard set forth by the regulations.  Countryside’s basic failure to account for the whereabouts of Resident 1 meant that it could not take appropriate and timely action if he failed to return to the facility within a reasonable timeframe.  In addition, Resident 1 took antipsychotic and antidepressant medications daily and was in fact admitted to Countryside in part to receive assistance with medication management.  CMS Ex. 7 at 51; P. Ex. 11.  By failing to consistently enforce its sign-out policy, Countryside could not ensure Resident 1 had taken his medications or provide him additional medication in the event he intended to extend his time out of the facility. 

Nor could Countryside take appropriate action if Resident 1 did not leave the facility but had instead been injured on the facility’s grounds; Countryside’s staff would not know to look for him, as they would simply assume he left the facility.  See CMS Ex. 1 at 8 (during an interview with the state surveyor, one staff member stated “I do not know where he goes when he leaves, he just goes on walks.  I do not do anything specifically for him when he leaves the building because he is independent and I do not have to.”)  

Countryside concedes that Resident 1 did not always sign out when leaving the facility.  P. Closing Br. at 10; P. Ex. 15 at 3, 6.  But the facility claims that it applied the appropriate intervention for Resident 1’s inconsistent compliance with that policy, namely providing him education and reminders.  P. Closing Br. at 6-7, 10.  Countryside claims it had no ability to mandate Resident 1’s cooperation with its sign-out policy and that preventing Resident 1 from leaving altogether would have impermissibly restricted

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Resident 1’s freedom of movement.  Id. at 10, citing P. Ex. 8 at 2-3; P. Ex. 1 at 2. 

The documented instances of Resident 1’s departures from the facility without signing out show Countryside’s efforts to educate and to remind Resident 1 to sign out were ineffective.  P. Ex. 8 at 2-3 (“I and other staff members continually remind [Resident 1] to sign out and sign back into the Facility.”); P. Ex. 20; P. Ex. 22.  Resident 1’s repeated failures to sign out should have prompted Countryside to try other approaches to ensure Resident 1 complied with the facility’s policy.

In any event, I am unpersuaded by Countryside’s claim that it had no choice but to allow Resident 1 to come and go as he pleased or in essence incarcerate him.  I have already explained the former option is inconsistent with the regulations.  And the regulations do not require Countryside to confine Resident 1 to its premises.  Countryside could have endeavored to comply with its own policy and the regulation by simply ensuring that Resident 1 signed out before leaving.  Such a solution was clearly within the facility’s grasp, because it fashioned a simple and effective “door code” system as part of its plan of correction: 

The door code system has been updated to require a code to be entered before residents can exit through the front door.  The code is not being provided to the residents in order to ensure staff must assist them when they leave the facility in order to ensure sign-out data is recorded and the residents can be provided education on the weather, their clothing and other needs. 

P. Ex. 25 at 2.  When forced by circumstance to do so, Countryside adeptly created an effective system that struck an appropriate balance between allowing Resident 1 to maintain his independence and ensuring staff were aware of his departures.  The facility’s claim that it could not find a middle path between permitting Resident 1 to leave at will and impermissibly restricting his freedom is clearly without merit.  

Finally, Countryside contends it has been subject to the imposition of strict liability for an unforeseeable circumstance stemming from Resident 1’s arrest during his outing on June 26, 2016.  P. Closing Br. at 12.  Countryside explains Resident 1 left the facility independently “hundreds of times,” to visit public or social services agencies with which he was familiar and “never had an instance of criminal activity or intrusion into a private residence.”  P. Closing. Br. at 12. 

Countryside is correct to assert it would be improper to impose liability for Resident 1’s criminal conduct on June 26, 2016, as the record does not suggest such acts were at all foreseeable.  But the facility’s argument is nevertheless without merit because the finding of noncompliance here is not based on Resident 1’s conduct outside the facility on June

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26, 2016.  Instead, as I have explained, Countryside more generally failed to provide adequate supervision to Resident 1 by ensuring its staff knew when he left and when he was expected to return.16   Resident 1’s unexpected criminal acts on June 26, 2016 merely demonstrate the necessity of ensuring residents signed out of the facility and provided an estimated time of return.  They are not the basis for a finding of liability.

E.  CMS’s immediate jeopardy determination is not clearly erroneous

Based on the findings of the July 5, 2016 survey, CMS cited Countryside for noncompliance at a “J” scope and severity level, meaning isolated noncompliance that poses immediate jeopardy to resident health and safety.  SOM, Chap. 7, § 7400.5.1 at 92-93.  Countryside disputes the immediate jeopardy determination and argues that because Resident 1 had the capacity to leave the facility and independently engage with the community, he was not subject to the likelihood of serious injury, harm, impairment, or death.  P. Closing Br. at 15.  Countryside otherwise claims that CMS has not identified any situation where the alleged lack of assistance devices impacted Resident 1’s well-being.  Id. at 15-16. 

Immediate jeopardy exists if a facility’s noncompliance “has caused, or is likely to cause, serious injury, harm, impairment, or death to a resident.”  42 C.F.R. § 488.301.  I must uphold CMS’s determination as to the level of a facility’s noncompliance (including an immediate jeopardy finding) unless it is “clearly erroneous.”  42 C.F.R. § 498.60(c).  The Board has consistently observed that the “clearly erroneous” standard imposes on facilities a “heavy burden” to show no immediate jeopardy and has sustained determinations of immediate jeopardy where CMS presented evidence “from which ‘[o]ne could reasonably conclude’ that immediate jeopardy exists.”  Florence Park Care Ctr., DAB No. 1931 at 27-28 (2004), citing Koester Pavilion, DAB No. 1750 (2000); Daughters of Miriam Ctr., DAB No. 2067 at 7, 9 (2007). 

I cannot find CMS’s determination of immediate jeopardy to be clearly erroneous.  Countryside contends Resident 1 had “sufficient cognitive ability, awareness, and judgment” to leave the facility and go into the community for periods of time independently.  P. Ex. 6 at 1 (¶ 6); see also P. Ex. 1 at 2 (¶ 9); P. Ex. 5 at 1 (¶ 5); P. Ex. 7 at 1 (¶ 6).  But even allowing that Resident 1 retained the capacity to independently leave the facility, Countryside was nevertheless obligated, at minimum, to know of Resident 1’s departure and the timeframe for his return on any given day. 

As I have already explained, Countryside’s lax enforcement of its sign-out policy

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prevented it from verifying Resident 1 had taken his daily medications before leaving.  It deprived facility staff of the opportunity to provide or offer specific assistive measures that while not generally required, might be appropriate on a specific day, such as towels, hats, or water for inclement weather.  And the failure to ascertain whether Resident 1 had left the facility would prevent Countryside from reacting with appropriate speed and concern if Resident 1 failed to return as reasonably expected, or if Resident 1 had suffered an injury rather than leaving the facility at all.  It is not difficult to imagine how any of those scenarios would be likely to cause “serious injury, harm, impairment, or death.”  42 C.F.R. § 488.301. 

F.  CMS’s determination that the immediate jeopardy period ran from June 16 through 29, 2016 is not clearly erroneous.

Countryside also argues the duration of the immediate-jeopardy period imposed by CMS is clearly erroneous.17   CMS determined the period of immediate jeopardy ran from June 16, 2016 through June 29, 2016.  Countryside asserts I should find the period of immediate jeopardy concluded on June 17, 2016.  P. Opening Br. at 20-21; P. Closing Br. at 17-18.

To do so, Countryside has the burden to show “it timely completed the implementation of [its] plan [of correction] and in fact abated the [immediate] jeopardy (to reduce the applicable CMP range) or achieved substantial compliance (to end the application of remedies).”  Lake Mary Health Care, DAB No. 2081 at 29 (2007), citing Spring Meadows Health Care Ctr., DAB No. 1966 (2005). 

Countryside claims KDADS’ treatment of the survey and the immediate jeopardy determination belie the notion an actual “crisis situation” existed at the facility.  P. Opening Br. at 20.  Specifically, Countryside points out that:  the first day of the survey was June 16, 2016; surveyors held an exit conference on June 21, 2016; KDADS officials met with the facility again on June 28, 2016; and KDADS finally communicated the alleged immediate jeopardy to Countryside on July 1, 2016.  P. Closing Br. at 17.  Countryside argues KDADS would not have waited two weeks to make a genuine immediate jeopardy determination.  P. Opening Br. at 20-21. 

Countryside’s arguments related to the actions of the surveyors and the survey process are unpersuasive.  The process by which the surveyors and CMS came to determine the immediate jeopardy period is not material to my own de novo review.  See Jul. 5, 2018 Ruling Denying Petitioner’s Request for Subpoenas (explaining that the state agency’s

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decision-making process is irrelevant before me, as my determination of compliance is de novo). 

Countryside also asserts it completed its abatement plan by June 17, 2016.  P. Closing Br. at 17.  Countryside explains that the plan consisted of accounting for all the residents, posting signs about the weather, in-servicing staff about precautions for residents leaving the building, and re-evaluating all residents for safety when leaving the building.  P. Closing Br. at 17; CMS Ex. 2 at 1.  Countryside claims Surveyor Barnes confirmed at the hearing that the facility completed these actions on June 16 and 17, 2016, meaning it is clearly erroneous for CMS to maintain immediate jeopardy persisted until June 30, 2016.  P. Closing Br. at 17-18, citing Tr. at 66-68. 

Countryside’s effort to reduce the duration of the period of immediate jeopardy is unavailing.  First, Surveyor Barnes’ testimony does not establish Countryside completed its plan of abatement by June 17, 2016, as the facility now claims.  Surveyor Barnes simply agreed that, according to the written abatement plan, “Staff on duty were educated.”  Tr. at 67-68 (emphasis added); CMS Ex. 2 at 1.  But the surveyor’s testimony does not establish all staff underwent in-service training – only those who were on duty that day.  Indeed, contrary to Countryside’s claim, the facility’s own abatement plan confirms that, “[a]ll staff currently on duty on 6/16/16 were immediately educated regarding residents leaving the facility during inclement weather conditions.  All other employees were educated immediately upon reporting to work for their next scheduled shift.”  CMS Ex. 2 at 1 (emphasis added); see also P. Ex. 25 at 1. 

Other documentation in the record suggests Countryside did not complete in-service training related to Resident 1 until June 30, 2016; this includes an in-service attendance sign-in sheet dated June 30, 2016 for a training titled “Corporate Compliance, HIPAA, Advocate Duties, Dining Experience, [Resident 1] and Others Living here . . . Concerns/Issues.”  CMS Ex. 2 at 26.  The sign-in sheet includes signatures of the entire staff roster and includes notations of “@ 145” and “@ 630 PM,” consistent with the finding in the SOD that immediate jeopardy was abated on June 30 at 6:30 p.m.  Id. at 26-29. 

Based on this documentation, I cannot conclude that the facility abated the immediate jeopardy conditions related to Resident 1 before June 30, 2016.  CMS’s determination of a period of immediate jeopardy lasting from June 16 through 29, 2016 was therefore not clearly erroneous. 

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G.  The per-day CMPs imposed by CMS from June 16 to June 29, 2016 and June 30, 2016 to July 14, 2016 are reasonable.

CMS lacked a basis to impose the $400 per-day CMP imposed from July 15 through August 13, 2016.  I need not review that amount further and delete it from the total CMP.   

CMS did have a basis to impose a remedy for the deficiency cited under Tag F323 and imposed a $6,550 per-day CMP from June 16 through 29, 2016, and a $100 per-day CMP from June 30 through July 14, 2016.  CMS Ex. 13 at 1. 

CMS is authorized to impose enforcement remedies against a facility that is not in substantial compliance with a participation requirement.  42 U.S.C. § 1395i-3(h)(2); 42 C.F.R. § 488.406.  Among other enforcement remedies, CMS may impose a per-day CMP for the number of days a facility is not in substantial compliance.  42 C.F.R. § 488.430(a).  At the time CMS imposed the remedies in this case, per-day CMPs ranged from either $50 to $3,000 per-day for less serious noncompliance or $3,050 to $10,000 per-day for more serious noncompliance that poses immediate jeopardy to the health and safety of residents.  42 C.F.R. § 488.438(a)(1). 

In determining the reasonableness of the penalty amount imposed, I look to the factors set forth at 42 C.F.R. §§ 488.438(f) and 488.404 (incorporated by reference into 42 C.F.R. § 488.438(f)(3)).  These factors include the seriousness of the deficiency, the facility’s compliance history, its financial condition, and its degree of culpability.  Id.  The Board has held that the CMP amount selected by CMS is presumptively reasonable based on the regulatory factors listed above, and that the burden is on the SNF “to demonstrate, through argument and the submission of evidence addressing the regulatory factors, that a reduction [in the penalty amount] is necessary to make the CMP amount reasonable.”  Crawford Healthcare & Rehab., DAB No. 2738 at 19 (2016). 

Because both CMPs are related to the deficiency identified under Tag F323, I address them together.  Upon consideration of the regulatory factors, I find these CMP amounts to be reasonable. 

The $6,550 per-day CMP is in the middle of the upper CMP range and the $100 per-day CMP is almost at the regulatory minimum.  42 C.F.R. § 488.438(a)(1).  Countryside has not proffered evidence of financial vulnerability that would warrant a reduction in the CMP amounts, or even discussed the other regulatory factors pertaining to reasonableness.  P. Closing Br. at 19.

With respect to prior history of noncompliance, Countryside was cited for another incident that also involved Resident 1 leaving the facility without the facility’s knowledge only a few months before the July 5, 2016 complaint survey at issue before

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me.  P. Ex. 9.  On March 9, 2016, at about 6:45 p.m., Resident 1 walked to a bus station and purchased a ticket to Kansas City, approximately 65 miles away.  P. Ex. 9 at 5; CMS Ex. 1 at 38.  Resident 1 did not notify staff when he would return.  P. Ex. 9 at 5.  At 10:00 p.m., members of staff were unable to find Resident 1 and notified the local police, who discovered Resident 1 in Kansas City two days later.  P. Ex. 9 at 5; CMS Ex. 6 at 35-37, 48-50; CMS Ex. 1 at 38.  This incident demonstrates Countryside had ample notice of the significant risk of harm that could arise from lax enforcement of its sign-out policy with respect to Resident 1.

Countryside had prior knowledge of Resident 1’s tendency to leave the facility without notice, suggesting a high degree of culpability in this matter and thus further justifying both immediate jeopardy and non-immediate jeopardy CMP amounts.  Finally, I note Countryside objects to the finding of deficiency, the finding of immediate jeopardy, and the duration of immediate jeopardy.  P. Closing Br. at 19.  But the facility does not object to the $6,550 per-day CMP for the period of immediate jeopardy or the $100 per-day CMP for the period of non-immediate jeopardy.  Id.  Absent any argument by Petitioner, I have no basis to reduce the per-day CMP amounts.  In light of Countryside’s prior history of noncompliance and culpability, I find the $6,550 and $100 per-day CMPs for the immediate and non-immediate jeopardy periods in this case to be reasonable. 

VIII.  Conclusion

Based on the foregoing, I conclude that Countryside was out of substantial compliance with Medicare participation requirements and that its noncompliance posed immediate jeopardy to resident health and safety.  I sustain the imposition of the $6,550 per-day CMP from June 16 through 29, 2016 and the $100 per-day CMP from June 30 through July 14, 2016, for a total CMP of $93,200.  There is no basis for the $400 per-day CMP from July 15 through August 13, 2016.

1.   As I explain in section VII.C infra, CMS failed to provide any argument or evidence in support of the deficiencies cited during the second survey, which concluded on July 15, 2016.  The August 1, 2016 imposition notice does not expressly refer to a second survey, though it does address the per-day CMP imposed for two deficiencies, Tags F201 and F203, which were not cited in the July 5 survey.  CMS Ex. 12 at 1; see also CMS Ex. 1 (statement of deficiencies for the July 5, 2016 survey).  Absent any facts or argument from CMS in contradiction, I accept Countryside’s representation that KDADS conducted a second survey concluding on July 15, 2016 for which it cited the facility for deficiencies under Tags F201 and F203.  P. Opening Br. at 11; P. Req. for Hearing at 1, 8-11. 
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2.   Effective November 28, 2016, CMS revised and reorganized many of the participation requirements for skilled nursing facilities.  81 Fed. Reg. 68,688 (Oct. 4, 2016).  The requirement to keep resident environments free of accident hazards and provide residents adequate supervision and assistive devices is now housed at 42 C.F.R. § 483.25(d).  Id. at 68,870.  CMS subsequently reassigned deficiency tags related to the reorganized regulations on June 30, 2017, though these changes did not become effective until November 28, 2017.  Ctrs. for Medicare & Medicaid Servs., Center for Clinical Standards and Quality/Survey & Certification Group, Revisions to State Operations Manual (SOM) Appendix PP for Phase 2, F-Tag Revisions, and Related Issues, available at   https://www.cms.gov/Medicare/Provider-Enrollment-and-Certification/SurveyCertificationGenInfo/Downloads/Survey-and-Cert-Letter-17-36.pdf (eff. Nov. 28, 2017).  CMS now associates accident hazards with Tag F689.  SOM, App. PP at 284, available at https://www.cms.gov/Medicare/Provider-Enrollment-and-Certification/GuidanceforLawsAndRegulations/Downloads/Appendix-PP-State-Operations-Manual.pdf (last rev. Nov. 22, 2017).  There was no substantive change in either the regulation or the tag.  But because the date of the survey preceded CMS’ reorganization, I refer to the version of the regulations and corresponding deficiency tags in effect at the time of the survey.
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3.   Scope and severity levels are designated by letters “A” through “L,” selected from the scope and severity matrix published in the SOM, Ch. 7, § 7400.5.1 (Rev. 63, Sep. 10, 2010).  Facilities with deficiencies of levels A, B, or C remain in substantial compliance.  Id., citing 42 C.F.R. § 488.301.  Levels D, E, or F indicate a deficiency that presents no actual harm but has the potential for more than minimal harm that does not amount to immediate jeopardy.  Id.  Levels G, H, or I indicate a deficiency that involves actual harm that does not amount to immediate jeopardy.  Id.  Scope and severity levels J, K, and L contain deficiencies that constitute immediate jeopardy to resident health or safety.  Id.  The matrix specifies which remedies are required and optional at each level based upon the pervasiveness of the deficiency (isolated, pattern, or widespread). 
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4.   Petitioner twice sought subpoenas to secure the testimony of adverse witnesses and I denied each request.  Apr. 13, 2018 Order Denying Request for Subpoenas and Scheduling Hearing; Jul. 15, 2018 Ruling Denying Petitioner’s Request for Subpoenas.  Petitioner’s first request identified three witnesses but failed to specify pertinent facts Petitioner expected to establish through the witnesses and why those facts could not be adduced by any other means.  Apr. 13, 2018 Order Denying Request for Subpoenas and Scheduling Hearing.  Petitioner’s second effort sought subpoenas for two of the same witnesses but failed to include their addresses and again failed to articulate the facts Petitioner expected to introduce into evidence through testimony that could not be adduced by other means.  Jul. 15, 2018 Ruling Denying Petitioner’s Request for Subpoenas.
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5.   The drafters made plain their intent to limit appeals to only those deficiencies resulting in penalties, stating:  “if no remedy is imposed, the provider has suffered no injury calling for an appeal.”  59 Fed. Reg. 56,116, 56,158 (Nov. 10, 1994). 
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6.   The Minimum Data Set or MDS is intended to provide a comprehensive assessment of a resident’s functional capabilities and health problems.  See 42 C.F.R. § 483.20(b). 
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7.   A Brief Interview for Mental Status (BIMS) is conducted to evaluate cognitive impairment; a BIMS score of 15 out of 15 indicates the individual tested is cognitively intact.  See Ctrs. For Medicare & Medicaid Servs., Long-Term Care Facility Resident Assessment Instrument 3.0 User’s Manual, Ver. 1.14, Chapter 3, Section C0500 at Page C-14, available at https://downloads.cms.gov/files/MDS-30-RAI-Manual-V114-October-2016.pdf (last rev. Oct. 2016).
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8.   The policy is undated but during the March 2016 survey, a facility staff member informed the state surveyor that Countryside had a policy requiring residents to sign out before leaving the building and sign in when returning.  P. Ex. 9 at 7.  This is sufficient for me to conclude the facility’s sign-in/sign-out policy was in effect by March 2016, and therefore in effect on the occasions Resident 1 left the facility in June 2016 at issue here.
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9.   In the SOD and in its brief, CMS asserts the Administrator stated he was not aware of  Resident 1’s current location, or when the resident was expected to return, but cites no evidence to support this assertion.  CMS Closing Br. at 7; CMS Ex. 1 at 41.  The incident investigation report attached to the SOD reflects the Administrator was aware of what Resident 1 wrote when signing out.  CMS Ex. 1 at 6.
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10.   It is clear from the parties’ arguments that the first clause of this regulation is not relevant here; the issue I must decide is whether Countryside provided adequate supervision and/or assistive devices to Resident 1 during the survey period. 
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11.   Petitioner argues writing materials are not assistive devices within the meaning of the regulations.  P. Closing Br. at 11.  I disagree.  42 C.F.R. § 483.25(h)(2) broadly requires facilities to provide “adequate…assistive devices to prevent accidents.”  The SOM similarly provides the term refers to “any item . . . that is used by, or in the care of a resident to promote, supplement, or enhance the resident’s function and/or safety.”  SOM, App. PP at 273 (emphasis added).  The provision of writing materials would almost certainly enhance a deaf resident’s safety or functional abilities.  I therefore conclude writing materials are assistive device within the meaning of the regulations. 
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12.   I address the failure to ensure Resident 1 signed in and out of the facility infra at 13 as a basis for liability under 42 C.F.R. § 483.25(h), but not because such a requirement was expressly set forth in Resident 1’s care plan as an assistive measure. 
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13.   While I have found writing materials could indeed be considered assistive devices, the record does not support CMS’s claim that it was in fact a necessary care plan intervention for this particular resident.  Resident 1’s deafness was hardly a novel condition to him; his ability to independently communicate with others or interact in the community at large was by no means contingent on the provision of paper and a pencil by the facility where he had only recently taken up residence.  Indeed, facility evaluators noted he was able to communicate and make his needs known and could ultimately make himself understood and understand others.  P. Ex. 2 at 1; P. Ex. 7 at 1; CMS Ex. 7 at 29.  Resident 1 otherwise expressed broad enjoyment of activities outside of the facility that did not suggest he required writing materials:  “I like to go shopping at thrift stores, walmart, or family dollar” and “I like attending outside events such as going to the theatre, feeding the ducks, going on walks, go to the library, community center, and going fishing and camping.”  P. Ex. 15 at 2.  CMS has not demonstrated the provision of writing materials were or should have been required as part of Resident 1’s care plan.
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14.   The SOD and CMS’s pleadings identify Ms. Cork only as “Consultant Practitioner W.”  In her sworn declaration submitted by Petitioner, Ms. Cork confirms she is the same individual.  P. Ex. 7. 
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15.   While surveyor notes are often considered more reliable than declarations made by facility employees at their employers’ behest in anticipation of litigation, here Ms. Cork included a copy of contemporaneous notes she made in July 2016 shortly after speaking with the state surveyor in which she memorialized her concern that the surveyor was “trying to get me to say what she wanted me to say….”  P. Ex. 7 at 5.  Ms. Cork’s sworn declaration thus enjoys far greater weight as it is based on her own contemporaneous written recollection of her conversation with the state surveyor. 
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16.   Countryside certainly had reason to anticipate unpredictable behavior from Resident 1 during his frequent outings.  Only a few months earlier, in March 2016, Resident 1 traveled to Kansas City without notifying facility staff of his plans.  Countryside’s staff did not discover Resident 1’s absence until 10:00 p.m., and the police did not find Resident 1 for another two days.  P. Ex. 9 at 5; CMS Ex. 1 at 38; CMS Ex. 6 at 35-37, 48-50. 
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17.   A “determination by CMS that [an] SNF’s ongoing compliance remains at the level of immediate jeopardy during a given period constitutes a determination about the ‘level of noncompliance’ and, therefore, is subject to the clearly erroneous standard of review under section 498.60(c)(2).”  Brian Ctr. Health & Rehab./Goldsboro, DAB No. 2336 at 7-8 (2010).
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