Emerald Terrace Convalescent Hospital, DAB CR6127 (2022)

DECISION

Emerald Terrace Convalescent Hospital (Petitioner or the facility) challenges the determination by the Centers for Medicare & Medicaid Services (CMS) that it was not in substantial compliance with Medicare program participation requirements at 42 C.F.R. § 483.25(d)(1), (2) and that the noncompliance posed immediate jeopardy to resident health and safety.  Petitioner also challenges the imposition of a $10,205 per‑instance civil money penalty (CMP).  For the reasons discussed below, there is a basis for the imposition of enforcement remedies and the $10,205 per-instance CMP is reasonable.

I. Background and Procedural History

Petitioner is a skilled nursing facility (SNF) located in Los Angeles, California that participates in the Medicare program.  The California Department of Public Health (state agency) completed a complaint survey at Petitioner’s facility on March 26, 2019.  CMS Exhibit (Ex.) 1; Petitioner (P.) Ex. 2; Departmental Appeals Board (DAB) E-File Docket # 1b at 1.  Based on the survey findings, the state agency determined that Petitioner was not in substantial compliance with 42 C.F.R. § 483.25(d)(1), (2) (Tag F689) (Free of Accident Hazards/Supervision/Devices) at scope and severity level “J,” which constituted

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immediate jeopardy to resident harm or safety.¹  CMS Ex. 1; DAB E-File Docket # 1b at 1-2.

On April 23, 2019, Petitioner requested a hearing before an administrative law judge (ALJ).  The case was docketed as C‑19‑695 and assigned to ALJ Leslie C. Rogall, who issued an acknowledgment and standing pre-hearing order (Pre-hearing Order) on April 23, 2019.²

By letter dated May 3, 2019, CMS informed Petitioner that a per‑instance CMP of $10,205 was imposed, along with a denial of payment for new admissions (DPNA) effective May 18, 2019.³  CMS Ex. 9 at 2.  CMS informed Petitioner that these remedies would remain in effect until Petitioner resumed substantial compliance or CMS terminated its provider agreement, which CMS warned would happen no later than September 26, 2019.  CMS Ex. 9 at 2.  CMS further advised that as a result of the imposition of the DPNA and CMP, it was withdrawing approval of Petitioner’s nurse aide training and competency evaluation program (NATCEP).  CMS Ex. 9 at 3.

On May 20, 2019, Petitioner filed a second hearing request appealing CMS’s May 3, 2019 imposition of remedies.  The case was docketed as C‑19‑806 and also assigned to

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Judge Rogall.  Judge Rogall ordered consolidation of the cases under C‑19‑806 and dismissed C‑19‑695.

In accordance with Judge Rogall’s Pre-hearing Order, CMS filed a pre-hearing brief (CMS Br.) and 12 proposed exhibits (CMS Exs. 1‑12), including the written direct testimony of one proposed witness (CMS Ex. 12).  Petitioner filed a pre-hearing brief (P. Br.) and 11 proposed exhibits (P. Exs. 1-11), including the written direct testimony of five proposed witnesses (P. Exs. 6, 8-11).  Petitioner also filed objections to CMS’s evidence (P. Obj.).  This case was reassigned to the undersigned on July 21, 2021.

II. Evidentiary Rulings and Decision on the Record

CMS did not object to any of Petitioner’s proposed exhibits. Therefore, Petitioner’s exhibits 1-11 are admitted into evidence.

Petitioner objected to portions of CMS Ex. 12, specifically the last sentence of paragraph 27 and the entirety of paragraphs 32 and 34.  P. Obj. at 1-2.  Petitioner argues that the witness’ statements in paragraphs 27 and 32 are inadmissible hearsay, irrelevant, and lack foundation.  P. Obj. at 1-2.  Petitioner objected to paragraph 34 as unqualified opinion testimony.  P. Obj. at 2.  Petitioner argues that the witness had only been a registered nurse in the United States for approximately four years, most of which was not related to SNFs, and had less than one year of experience as a surveyor.  P. Obj. at 2.  Petitioner further argues the state surveyor was not the person who made the immediate jeopardy determination.⁴  P. Obj. at 2.

Petitioner’s objections are overruled.  In this administrative proceeding, all relevant and material evidence must be admitted into the record.  42 C.F.R. § 498.60(b)(1).  Any evidence that is relevant and material, even evidence, such as hearsay, that would be inadmissible under the Federal Rules of Evidence, may be considered.  42 C.F.R. § 498.61 (“Evidence may be received at the hearing even though inadmissible under the rules of evidence applicable to court procedure.”); 42 C.F.R. § 498.60(b)(3) (“The [administrative law judge] inquires fully into all of the matters at issue, and receives in evidence the testimony of witnesses and any documents that are relevant and material.”).

The surveyor’s testimony in paragraph 34 does not constitute expert medical or societal testimony.  The surveyor cited to the resident’s medical records in support of his statement that the resident was unable to care for herself.  In addition, the surveyor’s

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statements regarding the dangers the resident faced are supported by the facility’s memo on wandering and elopement (CMS Ex. 7).

The principal purpose of a surveyor’s testimony is to establish the facts that existed at the facility at the time of the survey, not to determine ultimate questions of law.  Whatever may be in a surveyor’s mind when he or she (and possibly others within the state agency) decides to cite a deficiency and decides what scope and severity to assign, that initial decision is merely a recommendation to CMS.  See, e.g., Britthaven of Chapel Hill, DAB No. 2284 at 6-7 (2009) (state agency merely recommends a finding of compliance or noncompliance; CMS ultimately determines whether the facility is in substantial compliance and whether immediate jeopardy exists).  Any of the surveyor’s testimony that purports to opine on legal issues will be disregarded.  Therefore, CMS Exs. 1-12 and P. Exs. 1-11 are admitted into the record.

Though both parties offered the written direct testimony of witnesses, neither party requested to cross‑examine the opposing party’s witnesses.  Per Judge Rogall’s Pre-hearing Order, a hearing is only necessary if a party requests to cross-examine a witness.  Pre-hearing Order ¶ 13.  Because an in-person hearing to cross-examine witnesses is not necessary, this case will be decided on the written record.

III. Issues

1. Whether Petitioner was in substantial compliance with Medicare participation requirements at 42 C.F.R. § 483.25(d)(1), (2) (Tag F689);
2. If Petitioner was not in substantial compliance with 42 C.F.R. § 483.25(d)(1), (2) (Tag F689), then whether CMS’s immediate jeopardy determination is clearly erroneous; and
3. Whether the $10,205 per-instance CMP imposed is reasonable.

IV. Jurisdiction

This tribunal has jurisdiction to hear and decide this case.  Social Security Act (Act) §§ 1128A(c)(2), 1819(h)(2)(B)(ii) (codified at 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).

V. Legal Authorities

The Act sets requirements for SNFs to participate in the Medicare program and authorizes the Secretary of Health & Human Services (Secretary) to promulgate regulations implementing those statutory provisions.  Act § 1819 (42 U.S.C. § 1395i-3).  The Secretary’s regulations are found at 42 C.F.R. part 483 and 488.

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To participate in the Medicare program, a SNF must maintain substantial compliance with program requirements.  42 U.S.C. § 1395i-3(a)(3), (b)-(d); 42 C.F.R. pt. 483, subpt. B.  To maintain 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 section 1819(b)-(d) of the Act (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.

Broadly, noncompliance that subjects an SNF to enforcement remedies is divided into two levels.  The first level is comprised of deficiencies that immediately jeopardize the health or safety of residents, while the second level is composed of deficiencies that do not.  42 U.S.C. § 1395i-3(h)(1).  “Immediate jeopardy” exists when “the provider’s noncompliance with one or more requirements of participation has caused, or is likely to cause, serious injury, harm, impairment, or death to a resident.”  42 C.F.R. § 488.301.

The Secretary contracts with state agencies to conduct periodic surveys to determine whether SNFs are in substantial compliance with the participation requirements.  Act § 1864(a) (42 U.S.C. § 1395aa(a)); 42 C.F.R. § 488.10.  The Act also authorizes the Secretary to impose enforcement remedies against SNFs that do not comply with the participation requirements.  Act § 1819(h)(2) (42 U.S.C. § 1395i-3(h)(2)).  The regulations specify the enforcement remedies that CMS may impose if a facility is not in substantial compliance.  42 C.F.R. § 488.406.  When CMS selects an enforcement remedy to impose on an SNF, it determines the scope (i.e., the number of residents affected or potentially affected) and severity (i.e., the degree of harm or potential harm) for each deficiency.  See 42 C.F.R. § 488.404(a)-(b); see also 42 U.S.C. § 1395i-3(h)(2)(B)(ii)(III)(bb).

CMS may impose a per-instance CMP for each instance that a facility is not in substantial compliance.  42 C.F.R. § 488.430(a).  The regulations specify that the per-instance CMP will range from $2,140 to $21,393, for each instance of noncompliance.⁵  42 C.F.R. § 488.438(a)(2); 45 C.F.R. § 102.3; 83 Fed. Reg. 51,369, 51,370 (Oct. 11, 2018).  CMS may also impose a DPNA when a SNF is not in substantial compliance.  Act § 1819(h)(2)(B)(ii) (42 U.S.C. § 1395i-3(h)(2)(B)(i)); 42 C.F.R. §§ 488.406(a)(2)(ii), 488.417(a).

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Depending on the nature of a facility’s noncompliance and the type of remedy imposed by CMS, a facility may also by operation of law lose its ability to offer or conduct a NATCEP for two years.  42 C.F.R. § 483.151(b)(2).  Pursuant to 42 C.F.R. § 483.151(b)(2) and (f), a state may not approve and must withdraw any prior approval of a NATCEP offered by a SNF or nursing facility that has been:  (1) subject to an extended or partial extended survey under sections 1819(g)(2)(B)(i) or 1919(g)(2)(B)(i) of the Act; (2) assessed a CMP of not less than $10,697 (45 C.F.R. § 102.3 (Table) (2018)); or (3) subject to termination of its participation agreement, a DPNA, or the appointment of temporary management.  Ineligibility or withdrawal of approval to conduct a NATCEP is mandatory if the conditions are satisfied; it is not a remedy that the state agency or CMS may decline to impose.  See 42 C.F.R. § 488.406.

If CMS imposes a remedy based on a noncompliance determination, then the facility may request a hearing before an administrative law judge 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.  Act §§ 1128A(c)(2) (42 C.F.R. § 1320a-7a(c)(2)), 1819(h)(2)(B)(ii) (42 C.F.R. § 1395i(h)(2)(B)(ii); 42 C.F.R. §§ 488.408(g), 488.434(a)(2)(viii), 498.3(b)(13).  However, the facility may not appeal CMS’s choice of remedies.  42 C.F.R. § 488.408(g)(2).

A facility may only challenge CMS’s determination as to the scope and severity of noncompliance if a successful challenge would affect the range of the CMP that may be imposed or impact the facility’s authority to conduct a NATCEP.  42 C.F.R. § 498.3(b)(14), (d)(10)(i).  The CMS determination as to the level of noncompliance, including the finding of immediate jeopardy, “must be upheld unless it is clearly erroneous.”  42 C.F.R. § 498.60(c)(2); Woodstock Care Ctr., DAB No. 1726 at 9, 39 (2000), aff’d, Woodstock Care Ctr. v. Thompson, 363 F.3d 583 (6th Cir. 2003).  Appellate decisions of the DAB have long held that the net effect of the regulations is that a provider has no right to challenge the scope and severity level assigned to a noncompliance finding, except in the situation where that finding was the basis for an immediate jeopardy determination.  See, e.g., Koester Pavilion, DAB No. 1750 (2000).

CMS must make a prima facie showing that the facility 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 to prevail.  Hillman Rehab. Ctr., DAB No. 1611 at 8 (1997), aff’d sub nom Hillman Rehab. Ctr. v. U.S. Dep’t of Health & Human Servs., No. Civ. A 98-3789 (GEB), 1999 WL 34813783 (D.N.J. May 13, 1999); Batavia Nursing & Convalescent Ctr., DAB No. 1904 (2004), aff’d sub nom Batavia Nursing & Convalescent Ctr. v. Thompson, 129 F. App’x 181 (6th Cir. 2005); Emerald Oaks, DAB No. 1800 (2001); Cross Creek Health Care Ctr., DAB No. 1665 (1998).

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VI. Findings of Fact

Resident 1, a 61-year-old woman, was initially admitted to the facility on March 27, 2008, and readmitted on February 10, 2013.  CMS Ex. 5 at 3.  Resident 1’s diagnoses included unspecified psychosis, bipolar disorder, paranoid schizophrenia, hypertension, chronic atrial fibrillation, and hypertensive heart disease with heart failure.  CMS Ex. 5 at 3.  Resident 1 also had right hemiplegia due to a cerebrovascular accident in 2018.  CMS Ex. 5 at 43, 46, 47.  The Los Angeles County Office of the Public Guardian is the conservator of Resident 1’s person and estate.  CMS Ex. 5 at 32-41.

The record shows Resident 1 suffered from significant cognitive impairment and was at risk for elopement.  CMS Ex. 5 at 5, 9, 44, 62, 63, 70-74, 91, 92, 134, 163; P. Ex. 4.  Upon Resident 1’s readmission to the facility on February 10, 2013, the physician ordered monitoring of the resident’s behavior for wandering out of the facility and placing a code alarm on Resident 1’s lower extremities.  CMS Ex. 5 at 76.  A History and Physical dated February 11, 2013, indicated the resident did not have the capacity to understand and make decisions.  P. Ex. 2.  A History and Physical dated August 23, 2018, noted the resident had the capacity to understand and make decisions (CMS Ex. 5 at 43).  However, the remainder of the record notes that Resident 1 had cognitive impairments and was an elopement risk.  Interdisciplinary Progress Notes dated February 17, 2018, indicated that Resident 1 “was alert and responsive with periods of confusion, disorientation and forgetfulness,” “was able to express needs by nodding her head, uses signs and gestures/sounds and sometimes able to answer yes or no to questions,” “has altered perception of surroundings as well as memory problems [due to] cognitive deficit,” and “does not have the capacity to understand and make decisions [due to] cognitive impairment.”  CMS Ex. 5 at 163.  Progress notes state that Resident 1 was on behavior monitoring for wandering out of the facility manifested by staying close to exit doors.  CMS Ex. 5 at 163.

Resident 1’s Minimum Data Set (MDS) assessment, with an assessment reference date of February 23, 2019, noted that she had a Brief Interview for Mental Status (BIMS) score of 0, which indicated severe cognitive impairment.  CMS Ex. 5 at 9.  The MDS also indicated that Resident 1 required limited assistance and one-person physical assist for transfer, walk in room, walk in corridor, locomotion off unit, and dressing.  CMS Ex. 5 at 13.  Resident 1 required supervision for locomotion on unit.  CMS Ex. 5 at 13.

Resident 1’s Risk of Elopement/Wandering Review dated February 11, 2019, assessed the resident to:  be cognitively impaired with poor decision-making skills, intermittent confusion, cognitive deficits or disorientation; have pertinent diagnoses of schizophrenia and manic depression; have a history of leaving the facility without informing staff; and have expressed the desire to go home, or packed belongings to go home, or stayed near the exit door.  CMS Ex. 5 at 44.

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Resident 1 had a long history of wandering and exit-seeking behavior.  Resident 1’s care plan dated April 1, 2008, developed upon her initial admission to the facility, noted the resident wore an alert system to prevent her from wandering out of the building alone.  CMS Ex. 5 at 70.  Resident 1’s subsequent care plans also noted that she wandered out of the facility.  CMS Ex. 5 at 71-74.

Resident 1’s care plan, initiated February 11, 2019, documented a tendency to wander out of the facility.  CMS Ex. 5.  The care plan also noted that Resident 1 had impaired cognitive function, thought processes, and decision making.  CMS Ex. 5 at 63.  Resident 1’s behavior manifested by staying close to exit doors and a history of leaving the facility.  CMS Ex. 5 at 62.  The care plan listed the following interventions:  have an available picture of the resident to show the authorities if needed; obtained an order for a Wanderguard alarm; notify the resident’s public guardian of the use of the Wanderguard; explain consequences of leaving the facility from time to time; visual checks when resident frequents being near exit doors; allow to verbalize through gestures what triggers the resident’s outbursts; and notify public guardian, local authorities, and physician if the resident elopes.⁶  CMS Ex. 5 at 62.

Resident 1 had numerous incidents of wandering out of the facility. A Monthly Behavior Summary showed that Resident 1 wandered out of the facility 36 times in October 2018 and nine times in November 2018.  CMS Ex. 5 at 89.  Medication Administration Records (MAR) showed that Resident 1 wandered out of the facility every day in October 2018, daily from November 1 through 7, 2018, on November 13, 2018, and daily from December 1 through 23, 2018.  P. Ex. 4.  A February 2019 MAR showed that Resident 1 wandered out of the facility at least once a day from February 18 through February 28, 2019.  CMS Ex. 5 at 91, 134.  Resident 1 also wandered out of the facility numerous times in the several days before the March 21, 2019 incident.  CMS Ex. 5 at 92.

Petitioner placed Wanderguards on residents identified as at risk for wandering and elopement.  The Wanderguard sounds a monitor alarm attached to a door (resident alarm) and an alarm in the nurses’ station when a resident wearing the band approaches within eight feet of an exit door and sounds more forcibly if an exit door is opened while the resident is in close proximity to that exit.  CMS Ex. 1 at 11; P. Ex. 6 ¶ 4.  The Wanderguard system is armed at all times.  P. Ex. 6 ¶ 4.  If the resident alarm is triggered, it must be reset by entering a code on the keypad at the door where the alarm was triggered and at the nurses’ station.  P. Ex. 6 ¶ 4.

In addition to utilizing Wanderguards, Petitioner had a perimeter alarm system (door alarm), which was armed from 7:30 p.m. to 6:30 a.m. daily.  P. Ex. 6 ¶ 5.  The door alarm

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is triggered when an exterior exit door is opened without bypassing the alarm through a keypad by the door.  P. Ex. 6 ¶ 5.  A bypass can only be performed from inside the facility.  P. Ex. 6 ¶ 5.  As soon as the door closes, the system is reactivated, which is confirmed by a single high-pitched beep.  P. Ex. 6 ¶ 5.  If the alarm is triggered by a non-bypassed door, the alarm can only be reset at the nurses’ station.  P. Ex. 6 ¶ 5.  Petitioner also maintained a video surveillance system in the Administrator’s office, which was “merely for incidentals, for observing and recording personnel movement, defending injury claims and generally promoting security.”  P. Ex. 6 ¶ 7.

The record shows Resident 1 was included on Petitioner’s list of residents who were at risk for wandering and wore a code alarm device.  P. Ex. 3.  Petitioner tested Resident 1’s Wanderguard device weekly in January, February, and March 2019.  CMS Ex. 5 at 107-109.  The record shows that staff conducted visual checks and verifications of Resident 1’s Wanderguard placement every two hours in January, February, and March 2019 (except for two shifts in January and three shifts in February).  CMS Ex. 5 at 157-159.  In addition, the facility provided an in-service training on wandering and elopement on February 11, 2019.  CMS Ex. 5 at 119.

At approximately 6:30 p.m. on March 21, 2019, the Registered Nursing Supervisor (RNS) administered medicine to Resident 1 and informed Resident 1 that he was going to be the charge nurse until approximately 7:30 p.m.  P. Ex. 11 ¶ 3.  The RNS also noted that Resident 1’s code alarm was intact on her left ankle and Resident 1 was calm and cooperative.  P. Ex. 11 ¶ 3.  Prior to the end of his shift, the RNS informed Licensed Vocational Nurse (LVN) 1 that he was going to his car to retrieve a telephone number for LVN 2.  P. Ex. 9 ¶ 4; P. Ex. 11 ¶ 4.  The RNS exited the facility through door # 3 at around 7:48 p.m. and “kicked the door shut and heard the alarm turn on immediately.”  CMS Ex. 11 at 2-4; CMS Ex. 12 ¶ 11; P. Ex. 1 at 2; P. Ex. 11 ¶ 5.  The RNS decided to leave the facility rather than go back inside.  CMS Ex. 11 at 8-11; P. Ex. 1 at 3-6; P. Ex. 11 ¶ 5.

At 7:48 p.m., Resident 1 approached LVN 1 at the nurses’ station in front of room # 113 and requested juice.  CMS Ex. 5 at 1; P. Ex. 1 at 1; P. Ex. 9 ¶ 2.⁷  LVN 1 observed that Resident 1 was calm and not agitated.  P. Ex. 9 ¶ 2.  At that time, the CNAs had completed visual checks of the residents at risk for wandering.  P. Ex. 9 ¶ 3.  At approximately 7:48 p.m., Resident 1, using her feet to propel herself in her wheelchair, passed LVN 1, who was working at a medication cart across from the nurses’ station.  CMS Ex. 11 at 26-29; CMS Ex. 12 ¶¶ 11-12; P. Ex. 1 at 2, 3.  Resident 1 then headed toward door # 3, which was close to the nurses’ station.  P. Ex. 1 at 4, 5; see CMS Ex. 5

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at 1.  At approximately 7:49:20 p.m., Resident 1 opened door # 3 and exited the facility, triggering the door alarm.  CMS Ex. 5 at 101; CMS Ex. 12 ¶ 13; P. Ex. 1 at 6.

After exiting door # 3, Resident 1 sat outside door # 3 from 7:49:20 to 7:49:47 p.m., waiting for the RNS to leave the parking lot.  CMS Ex. 12 ¶ 14; P. Ex. 1 at 6.  At 7:49:48 p.m., Resident 1 stood up behind her wheelchair and walked across the parking lot until she reached the sidewalk outside the parking lot at approximately 7:50:45 p.m.  CMS Ex. 11 at 12-16; CMS Ex. 12 ¶¶ 15-16; P. Ex. 1 at 7.

The door alarm continued to sound.  At 7:50:01 p.m., a staff member pushed a resident in a wheelchair past the nurses’ station and ignored the door alarm.  CMS Ex. 11 at 30-31; CMS Ex. 12 ¶ 17.  Both CNA 1 and LVN 1 were in room # 113 changing and administering medication to a resident.  CMS Ex. 12 ¶ 26; P. Ex. 9 ¶ 5; P. Ex. 10 ¶ 2.  CNA 2 was cleaning a resident in room # 112.  CMS Ex. 12 ¶ 25.  CNA 1 and LVN 1 came out of room # 113 at 7:52:24 p.m.  CMS Ex. 11 at 33; CMS Ex. 12 ¶ 18.  CNA 1 checked on door # 3 and LVN 1 reset the alarm and walked backed to the medication cart.  CMS Ex. 11 at 33-38; CMS Ex. 12 ¶¶ 18, 19; P. Ex. 9 ¶¶ 7, 9; P. Ex. 10 ¶ 5.  Later, LVN 1 appeared to reset the door alarm two more times and returned to the medication cart at 7:53:16 p.m.  CMS Ex. 11 at 39-52; CMS Ex. 12 ¶¶ 19-21.  Approximately one minute later, LVN 1 walked towards door # 3.  CMS Ex. 11 at 53; CMS Ex. 12 ¶ 22.

Because CNA 1 could not determine who had triggered the door alarm, LVN 1 and CNA 1 conducted a resident head count and discovered Resident 1 was missing.  CMS Ex. 12 ¶ 27; P. Ex. 9 ¶ 9; P. Ex. 10 ¶ 5.  Surveillance video shows that staff searched the facility’s exterior and surrounding area by foot and by car beginning at approximately 8:02 p.m.  CMS Ex. 5 at 101, 102; CMS Ex. 11 at 17-22; P. Ex. 9 ¶ 10; P. Ex. 10 ¶ 5.  According to Petitioner, LVN 1 reviewed surveillance video at 8:27 p.m. and confirmed Resident 1 had eloped.  P. Br. at 7, 17.  After being unable to locate Resident 1, Petitioner notified the police and Resident 1’s physician and public guardian.  CMS Ex. 5 at 101, 102, 104-105, 162.  The next day, Petitioner called area hospitals and shelters and followed up with the police.  CMS Ex. 5 at 101, 103-105.

Petitioner was not able to determine why the resident alarm did not sound when Resident 1 approached door # 3 and exited the facility.  P. Ex. 11 ¶ 11.  Resident 1 remained missing for 48 days until May 8, 2019, when police found her in an agitated state and called Petitioner to request that a staff member help calm her down.  CMS Ex. 12 ¶ 32.

Petitioner had policies and interventions to address resident wandering and elopement.  Petitioner’s Policy and Procedure for Code Alert Monitoring System required identification of residents who have wandering tendencies upon admission, placement of a code alarm on residents identified to be at risk for wandering, and weekly checks of resident’s code alarm.  CMS Ex. 6 at 8.  The policy also required “all facility personnel to respond to alarming doors set off by resident activity trying to get out” and specifies that

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although certified nursing assistants (CNAs) are primarily responsible for responding to alarming doors, “other personnel are also required to monitor doors.”  CMS Ex. 6 at 8.

The record includes three nearly identical versions of Petitioner’s Policy and Procedure for Elopement.  CMS Ex. 6 at 3, 4, 6.  Petitioner’s Change in a Resident’s Condition or Status policy required identifying residents at risk for elopement, obtaining a physician’s order for a code alarm, weekly testing of code alarms, hourly visual checks by CNAs, and assessment of triggers during visual checks that can cause a resident to elope.  CMS Ex. 6 at 3, 4, 6.  The policy stated that “immediate response to a code alarm is first priority of all staff.”  CMS Ex. 6 at 4, 6.  In the event of an elopement, staff were directed to search the inside and outside vicinity of the facility, notify local authorities and other relevant parties, document the incident, and follow up with local authorities, hospitals, and shelters every couple of days following the incident.  CMS Ex. 6 at 3, 4, 6.  Further, the policy stated that charge nurses would have easy access to the administrator’s office to view surveillance video.  CMS Ex. 6 at 4, 6.

At the time of this incident, the facility had a memo entitled “Wandering and Elopement in Nursing Homes” which discussed the risks of wandering behavior in cognitively impaired individuals, interventions to minimize and prevent wandering and elopement behavior, and the importance of establishing a plan in the event of an elopement.  CMS Ex. 7.

VII. Analysis and Conclusions of Law

1. Petitioner was not in substantial compliance with Medicare participation requirements as required by 42 C.F.R. § 483.25(d)(1), (2) (Tag F689).

The regulations require a facility to ensure that residents receive treatment and care in accordance with professional standards of practice, a comprehensive person-centered care plan, and the resident’s choices. 42 C.F.R. § 483.25. A facility must also 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(d).

CMS argues that, as a result of Petitioner’s deficient practices, Resident 1 eloped from the facility at 7:49 p.m. on March 21, 2019, and remained missing for 48 days.  CMS Br. at 1; CMS Ex. 1 at 9; CMS Ex. 12 ¶ 32.  CMS argues that Petitioner was not in

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substantial compliance with 42 C.F.R. § 483.25(d)(1), (2) because it failed to immediately respond to a door alarm, check the immediate area for any residents that may have eloped, identify the cause of the door alarm before resetting the alarm, and check video surveillance to identify possible elopement.  CMS Br. at 4-11.  CMS determined that Petitioner’s noncompliance with 42 C.F.R. § 483.25(d)(1), (2) constituted immediate jeopardy.  CMS Br. at 12-13.  According to CMS, Petitioner failed to take all reasonable steps to ensure that Resident 1, who was at risk for elopement and had displayed increased episodes of wandering out of the facility, was provided adequate supervision to prevent her elopement from the facility.  CMS Br. at 4-11.  Each allegation is discussed in detail below.

Petitioner does not dispute that Resident 1 eloped from its facility.  However, Petitioner argues that it took all reasonable measures to minimize the risk of an elopement, including developing and updating a care plan annually to address wandering, monitoring a Wanderguard device placed on the resident’s lower extremities, conducting annual elopement assessments, maintaining a list of residents at risk for wandering, and conducting regular staff training on resident wandering.  P. Br. at 10-11.

CMS asserts that Petitioner’s staff failed to immediately respond to a door alarm and to determine the cause of the door alarm before resetting the alarm.  CMS Br. at 8-11.  It is undisputed that the alarm sounded for at least three minutes before staff members responded to the alarm.  Petitioner argues that the triggered alarm was a separately maintained perimeter alarm and that staff responded within three minutes of the alarm sounding.  P. Br. at 3-4.

Resident 1 exited the facility, setting off the door alarm, at approximately 7:49:20 p.m.  CMS Ex. 5 at 101; CMS Ex. 12 ¶ 13; P. Ex. 1 at 6.  At 7:50:01 p.m., a staff member pushed a resident in a wheelchair past the nurses’ station, ignoring the door alarm that had already been sounding for 40 seconds.  CMS Ex. 11 at 30-31; CMS Ex. 12 ¶ 17.
CNA 1, CNA 2, and LVN 1 were caring for residents in resident rooms close to door # 3 when the door alarm sounded.  CMS Ex. 5 at 1; CMS Ex. 12 ¶ 18, 25, 26; P. Ex. 9 ¶ 5; P. Ex. 10 ¶ 2.  CNA 1 finally came out of a resident’s room at approximately 7:52:24 p.m. and checked on door # 3.  CMS Ex. 11 at 33-38; CMS Ex. 12 ¶¶ 18, 26; P. Ex. 9 ¶¶ 7, 9; P. Ex. 10 ¶ 5.

CNA 1 stated that she heard the door alarm and “tried to finish changing the resident as soon as possible” because she knew that the alarm was not a resident alarm.  P. Ex. 10 ¶ 2.  CNA 1 stated that if the resident alarm had sounded, she “would have immediately covered [her] patient and gone to check right away, as that [is] the facility’s policy and [her] ordinary practice.”  P. Ex. 10 ¶ 4.  LVN 1 heard the door alarm sound and could see the keypad at the nurses’ station indicating that it was the door # 3 alarm sounding.  P. Ex. 9 ¶ 5.  LVN 1 explained that because she expected the RNS to return to the facility, she assumed that the RNS triggered the door alarm when he reentered the

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facility.  P. Ex. 9 ¶ 6.  LVN 1 stated that if she had heard the resident alarm, she would have “checked on the alarming door immediately.”  P. Ex. 9 ¶ 6.  There is no indication in the record that CNA 2 responded to the door alarm at all.

The alarm that sounded was a perimeter alarm, not a resident alarm, which caused staff members to believe that “something other than a resident caused the alarm to trigger.”  P. Br. at 12, 14, 16.  LVN 1 mistakenly believed that the RNS triggered the door alarm when returning to the facility.  CMS Ex. 5 at 101; P. Ex. 9 ¶ 6.  Petitioner argues that despite the fact that only the door alarm sounded, staff immediately checked door # 3 and reset the alarm.  P. Br. at 12, 14.  Petitioner argues that staff responded to the alarm within three minutes and four seconds which constitutes an immediate response.  P. Br. at 14-15.  However, in a facility with residents who may be prone to wandering and elopement, immediate attention should be given to any door alarm that sounds.  It is absurd to think that a resident who displayed wandering behavior in the past and had expressed the desire to leave the facility, would only try to escape through doors covered by the resident alarm.  Additionally, three minutes is not a reasonable response time to any sounding door alarm in a facility where some residents are prone to wandering.  The delayed response time allowed Resident 1, a resident in a wheelchair who required assistance with walking in rooms and corridors, to self-propel herself out of the door, remove herself from the wheelchair, and push the wheelchair off of the facility’s property.  Resident 1 sat outside door # 3 for 27 seconds before she walked across the parking lot and reached the sidewalk outside the parking lot at around 7:50:45 p.m.  CMS Ex. 11 at 12-16; CMS Ex. 12 ¶¶ 15-16; P. Ex. 1 at 7.  If staff had immediately checked door # 3 when the alarm sounded at 7:49:20 p.m., it is probable that they would have seen Resident 1 sitting outside the door or walking across the parking lot.  A more immediate response may have prevented Resident 1 from eloping from the facility.

The Board has held that facilities are required 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.”  Meadowwood Nursing Ctr., DAB No. 2541 at 2 (2013) (citing Me. Veterans’ Home – Scarborough, DAB No. 1975 at 10 (2005)).⁸  In addition, a facility is required to take “all reasonable steps to ensure that a resident receives

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supervision and assistance devices that meet his or her assessed needs and mitigate foreseeable risks of harm from accidents.”  42 C.F.R. § 483.25(d); Briarwood Nursing Ctr., DAB No. 2115 at 11 (2007) (citing Woodstock Care Ctr. v. Thompson, 363 F.3d 583, 590 (6th Cir. 2003) (facility must take “all reasonable precautions against residents’ accidents”)).  Facilities are given “the flexibility to choose the methods” they use 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 sub nom Windsor Health Ctr. v. Leavitt, 127 F. App’x 843 (6th Cir. 2005).

Petitioner argues that it took reasonable measures to minimize the risk of elopement.  Petitioner asserts that its policies and procedures mitigated Resident 1’s elopement risk during her 10-year stay at the facility.  P. Br at 9-10.  Petitioner points to the following measures taken in accordance with the facility’s policies:  1) updating Resident 1’s care plan annually which specifically addressed her wandering behavior; 2) placing a Wanderguard on Resident 1’s ankle; 3) conducting annual elopement assessments; 4) administering weekly Wanderguard device checks (both the Wanderguard device and the resident alarm); 5) conducting visual checks/verifications of Wanderguard placement every two hours; and 6) providing regular staff training on wandering and elopement.  P. Br. at 10-11.

Despite the measures cited by Petitioner, the weight of the evidence establishes that Petitioner did not comply substantially with 42 C.F.R. § 483.25(d)(1), (2).  Petitioner’s arguments do not establish that Petitioner’s supervision of Resident 1 was adequate to prevent accidents and mitigate the foreseeable elopement risk.  Despite the measures taken, Petitioner’s arguments minimize the fact that staff failed to properly implement some of the policies and procedures Petitioner itself determined were necessary to prevent Resident 1’s elopement.  Petitioner’s staff failed to respond immediately to a sounding door alarm, which allowed Resident 1 enough time to walk across the facility’s parking lot and elope from the facility.

Resident 1 was just one of numerous residents at risk for elopement.  P. Ex. 3.  Petitioner contends that other than Resident 1, “none of the residents had the ability to avoid detection of the resident code alert.”  P. Br. at 20.  However, it is unreasonable to think that Resident 1 is the only resident with the desire and ability to elope Petitioner’s facility.  Resident 1 had cognitive and physical limitations, including paralysis on the right side of her body, and managed to evade the resident alarm system.  CMS Ex. 5 at 3, 43, 44, 46, 47, 163.  The evidence shows that Resident 1 was equipped with a Wanderguard, which should have alerted staff that Resident 1 was attempting elopement.  See CMS Ex. 5 at 157-159.  However, the Wanderguard did not trigger an alarm and Petitioner has not offered an explanation as to why it malfunctioned.

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Petitioner argues that based on the sound of the alarm, CNA 1 determined that a perimeter alarm was sounding, not a resident alarm.  P. Br. at 15-16.  At the same time, LVN 1 reset the alarm.  P. Br. at 15-16.  Petitioner also maintains that staff only needed to reset the alarm at the nurses’ station rather than check an exit door because the door alarm, not the resident alarm, had sounded.  P. Br. at 16.  The record shows that CNA 1 went to check door # 3 but “did not find anything causing the alarm.”  P. Ex. 10 ¶ 5.  Rather than assist CNA 1 with determining what caused the alarm to sound, LVN 1 went back to the medication cart after resetting the alarm and appeared to reset the alarm two more times before returning to the medication cart at 7:53:16 p.m.  CMS Ex. 11 at 33-52; CMS Ex. 12 ¶¶ 18-21, 26; P. Ex. 9 ¶¶ 7, 9; P. Ex. 10 ¶ 5.  LVN 1 did not walk towards door # 3 until approximately one minute later.  CMS Ex. 11 at 53; CMS Ex. 12 ¶ 22.

After still being unable to determine the cause of the door alarm, CNA 1 and LVN 1 conducted a resident head count and determined Resident 1 was missing, at least six minutes after Resident 1 exited the facility.  CMS Ex. 12 ¶ 27; P. Ex. 9 ¶ 9; P. Ex. 10 ¶ 5.  At that point, staff finally searched for Resident 1 outside the facility.  Surveillance video showed that staff searched the facility’s exterior and surrounding area by foot and by car beginning at approximately 8:02 p.m.  CMS Ex. 5 at 101, 102; CMS Ex. 11 at 17-22; P. Ex. 9 ¶ 10; P. Ex. 10 ¶ 5.  Petitioner states that staff went outside to search the exterior of the facility at 7:56:59 p.m.  P. Br. at 7.  Even if staff had begun searching outside at 7:56:59 p.m., more than seven minutes had already elapsed since Resident 1 exited the facility.

CMS argues that Petitioner should have immediately reviewed the video surveillance footage to identify the cause of the alarm.  While Petitioner did not use video surveillance to monitor resident activity, Petitioner’s administrator stated that one of the purposes of the video surveillance system was to “promot[e] security.”  P. Ex. 6 ¶ 7.  However, when the door alarm sounded, staff did not immediately check door # 3 to determine the cause of the alarm, nor did staff check the surveillance video to ascertain whether a security breach had occurred.  Petitioner contends that video surveillance does not prevent an elopement but only confirms that an elopement occurred and that the first line of defense should be direct intervention from staff.  P. Br. at 17, 23.  Petitioner also argues that staff responded appropriately and immediately reviewing surveillance video would “impose more harm than good.”  P. Br. at 18.  Petitioner is correct that staff should immediately act to search the premises and conduct a head count.  However, if other staff had also immediately checked the surveillance video, the video would have shown that Resident 1 had eloped.

Finally, Petitioner argues that Resident 1 was “free to come and go from the facility” and the facility was “not a locked down secured facility and cannot guarantee the prevention of unforeseen occurrences.”  P. Br. at 10, 11.  Petitioner contends that if staff had found Resident 1, they “could not have restrained her, detained her or physically forced her back into the facility.”  P. Br. at 19.  However, this argument is without merit and not

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supported by the facts of this case.  If staff had immediately responded to the alarm, and caught Petitioner in the act of leaving, they could have taken reasonable steps to prevent Petitioner’s elopement.  Petitioner’s policy requires it to “prevent elopement of resident[s] . . . as reasonably possible” and identify residents with elopement tendencies.  CMS Ex. 6 at 4, 6.  The evidence establishes that it was foreseeable that Resident 1 could elope based on her history of elopement from the facility and Petitioner did not take all reasonable steps to prevent Resident 1’s elopement.
                                                                                                           
The record shows that Resident 1’s wandering incidents decreased from 69 incidents in the fourth quarter of 2018 to 22 incidents from January to March 2019.  P. Br. at 19. 
Although Resident 1 had fewer wandering incidents from January through March 2019, Resident 1 had a long history of wandering and exit-seeking behavior as documented in her care plans and an elopement risk assessment, which was completed about one month before the elopement incident.  CMS Ex. 5 at 44, 62, 70-74.  Petitioner deemed it necessary to place a Wanderguard on Resident 1 and include her on the facility’s code alarm list.  Petitioner’s assertions that Resident 1 was capable of eloping further supports that it was foreseeable that Resident 1 could elope.  As long as Resident 1 resided at Petitioner’s facility, Petitioner had a duty to take all reasonable steps to protect her from accidents.  Even if Resident 1 had never eloped from the facility before, it was foreseeable that Resident 1 could elope unbeknownst to facility staff, therefore Petitioner had an obligation to protect her from the risks of eloping from its facility.  Josephine Sunset Home, DAB No. 1908 at 14-15 (2004).

Petitioner notes that prior to Resident 1 eloping, the CNAs had completed visual checks of residents at risk for wandering and LVN 1 observed Resident 1 to be calm and not agitated.  P. Br. at 19.  However, staff did not provide adequate supervision of Resident 1 to ensure she did not leave the facility.  Resident 1 was unsupervised as she passed by the nurses’ station, walked towards door # 3, and exited the facility.  Resident 1’s care plan also required visual checks of the resident if she is near an exit door, yet she was able to exit door # 3 unobserved.  CMS Ex. 5 at 62.

After Resident 1 exited the facility, the alarm continued to sound for more than three minutes before any staff responded.  One staff member walked by the nurses’ station but did not stop to respond to the alarm.  Because staff failed to immediately respond to the sounding alarm and determine the cause of the alarm, Resident 1 was able to elope from the facility, wandering far enough away to evade being found when staff searched for her outside the facility, and remained missing for 48 days.  Despite Petitioner’s assertions, the evidence establishes that Petitioner did not adequately supervise Resident 1 and take all reasonable steps to prevent her elopement.  Therefore, Petitioner was not in substantial compliance with 42 C.F.R. § 483.25(d)(1), (2).

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2. CMS’s finding of immediate jeopardy is not clearly erroneous.

CMS alleges that Petitioner’s violation of 42 C.F.R. § 483.25(d)(1), (2) constituted an isolated incidence of immediate jeopardy to resident health and safety (scope and severity “J”).  CMS Br. at 2, 12-13.  Petitioner argues that there is insufficient factual justification for a finding of immediate jeopardy.  P. Br. at 14.

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.  The regulation does not require that a resident actually be harmed.  Lakeport Skilled Nursing Ctr., DAB No. 2435 at 8 (2012).  CMS’s determination as to the level of a facility’s substantial noncompliance (which includes an immediate jeopardy finding) must be upheld unless it is “clearly erroneous.”  42 C.F.R. § 498.60(c).  The “clearly erroneous” standard imposes on facilities a heavy burden to overcome a finding of immediate jeopardy.  Appellate panels of the DAB have sustained determinations of immediate jeopardy where CMS presented evidence “from which ‘[o]ne could reasonably conclude’ that immediate jeopardy exists.”  See, e.g., Barbourville Nursing Home, DAB No. 1962 at 11 (2005) (citing Florence Park Care Ctr., DAB No. 1931 at 27-28 (2004)), aff’d, Barbourville Nursing Home v. U.S. Dep’t of Health & Human Servs., 174 F. App’x 932 (6th Cir. 2006).

Petitioner argues that CMS’s immediate jeopardy determination is clearly erroneous because staff immediately responded to the door alarm.  According to Petitioner, staff immediately checked door # 3, determined the cause of the alarm, conducted a head count, and searched the facility, all within six minutes of the door alarm sounding.  P. Br. at 12-18.  Petitioner also argues that Resident 1 had the ability and right to leave and it was not foreseeable that Resident 1 would elope because she recently had fewer wandering incidents and just prior to her elopement, staff observed Resident 1 to be calm and not agitated.  P. Br. at 19, 21.  Further, Petitioner contends that the risk of other residents eloping, even those assessed to have wandering behavior, was extremely remote.  P. Br. at 20.

The evidence supports that CMS’s finding of immediate jeopardy is not clearly erroneous.  As discussed above, the evidence establishes that Petitioner was not in substantial compliance with 42 C.F.R. § 483.25(d)(1), (2).  The facility’s failure to supervise Resident 1, a known elopement risk, and immediately check on door # 3 when the door alarm sounded allowed Resident 1 enough time to elope from the facility without Petitioner’s knowledge.  Despite Petitioner’s assertions that Resident 1 had the capacity and ability to leave the facility if she desired to, the record establishes otherwise.  The most recent wandering and elopement assessment indicated Resident 1 had poor decision-making skills, intermittent confusion, cognitive deficits or disorientation, and had diagnoses of schizophrenia and manic depression.  CMS Ex. 5 at 44.  Resident 1 had right hemiplegia and required one-person physical assist for walking.  CMS Ex. 5 at 13,

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43, 46, 47.  Resident 1 was also under the care of a public guardian, meaning that she was unable to care for herself.  CMS Ex. 5 at 32-41.  Additionally, records show that in 2013, it was noted that Petitioner did not have the capacity to make and understand decisions.  P. Ex. 2.  Therefore, Resident 1 was a vulnerable individual at risk for injuries and had diminished capacity to help herself if she was physically injured.

Police found Resident 1, 48 days after she had eloped, in an agitated state.  Given her physical and cognitive impairments, the totality of risks that Resident 1 faced made it likely that she would suffer some form of serious injury, harm, impairment, or even death after eloping from the facility.

Petitioner’s Wandering and Elopement in Nursing Homes memo acknowledges the serious risks that residents who wander and elope face.  The memo stated that “cognitively impaired individuals who wander are at high risk of injury” and “elopement . . . is the most dangerous type of wandering and has resulted in death.”  CMS Ex. 7 at 1. 
Petitioner’s failure to immediately respond to a sounding door also placed other residents in the facility at risk for serious harm.  As discussed above, other residents could have evaded the resident alarm and eloped from the facility unbeknownst to staff.

Lastly, Petitioner argues that there was no substantial basis for the immediate jeopardy determination because there were procedural irregularities during the survey.  P. Br. at 22-23.  Petitioner claims that the state surveyor’s supervisor failed to follow the process for issuing an immediate jeopardy determination and improperly dictated the content of the plan of correction according to the state agency’s preferences.  P. Br. at 22-23.  However, the relevant issue is whether Petitioner was in substantial compliance with Medicare participation requirements, not the conduct of the survey.  Beechwood Sanitarium, DAB No. 1906 at 44 (2004).  In addition, the manner in which the supervisor cited immediate jeopardy has no bearing on Petitioner’s obligation to meet Medicare participation requirements, nor does it invalidate adequately documented deficiencies.  42 C.F.R. § 488.318(b).

Petitioner did not provide adequate supervision to prevent Resident 1 from eloping and to mitigate the risks of harm from elopement.  Petitioner’s failures put Resident 1 and other residents in the facility at risk for serious injury, harm, impairment, or death.  Therefore, CMS’s immediate jeopardy determination is not clearly erroneous.

3. The $10,205 per-instance CMP is reasonable.

The factors listed in 42 C.F.R. § 488.438(f) apply when reviewing the CMP amount:  1) the facility’s history of noncompliance; 2) the facility’s financial condition; 3) the factors specified in 42 C.F.R. § 488.404; and 4) the facility’s degree of culpability, which includes neglect, indifference, or disregard for resident care, comfort, or safety.  See 42 U.S.C. §§ 1320a-7a(d)(2), 1395i-3(h)(2)(B)(ii)(I).  The absence of culpability is not a

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mitigating factor.  42 C.F.R. § 488.438(f).  The factors listed in 42 C.F.R. § 488.404 include:  1) the scope and severity of the deficiency; 2) the relationship of the deficiency to other deficiencies resulting in noncompliance; and 3) the facility’s prior history of noncompliance in general and specifically with reference to the cited deficiencies.  See 42 U.S.C. §§ 1320a-7a(d)(1), (3), 1395i-3(h)(2)(B)(ii)(I).

The regulations leave the decision regarding the choice of remedy to CMS, and the amount of the remedy to CMS and the ALJ, requiring only that the regulatory factors at 42 C.F.R. §§ 488.438(f) and 488.404 be considered when determining the amount of a CMP within a particular range.  42 C.F.R. §§ 488.408, 488.408(g)(2); 498.3(d)(11); see also 42 C.F.R. § 488.438(e)(2) and (3); Alexandria Place,DAB No. 2245 at 27 (2009); Kenton Healthcare, LLC,DAB No. 2186 at 28-29 (2008).  Unless a facility contends that a particular regulatory factor does not support the CMP amount, the administrative law judge must sustain it.  Coquina Ctr., DAB No. 1860 at 32 (2002).

In this case, CMS imposed a $10,205 per-instance CMP, which falls in the middle of the CMP range in effect at the time CMS imposed the remedy.  CMS Ex. 9 at 2; 42 C.F.R. § 488.438(a)(2); 45 C.F.R. § 102.3.  CMS argues that the proposed CMP is reasonable for Petitioner’s violation of 42 C.F.R. § 483.25(d)(1), (2) based on consideration of the regulatory factors at 42 C.F.R. § 488.438(f).  CMS Br. at 13-14.  Petitioner does not address the regulatory factors, except to state that it has not had a substandard quality of care or immediate jeopardy determination in the past four years.  P. Br. at 2; P. Ex. 6 ¶ 2.  The record shows that Petitioner does have a history of regulatory noncompliance, but that noncompliance did not cause actual harm.  CMS Ex. 8.

Although Petitioner does not contend that any of the other factors at 42 C.F.R. § 488.438(f) support a reduction of the $10,205 per-instance CMP, the factors support a conclusion that the CMP amount is reasonable in relation to Petitioner’s immediate jeopardy level noncompliance.  The seriousness of Petitioner’s noncompliance and Petitioner’s culpability are sufficient to justify the amount of the CMP.  Petitioner’s failure to adequately supervise Resident 1 to prevent her elopement placed Resident 1 at risk for serious injury, harm, impairment, or death.  It was foreseeable that Resident 1 could elope, yet staff failed to notice Resident 1 as she wheeled past the nurses’ station toward door # 3 nearby.  Resident 1 evaded the resident alarm but triggered the door alarm when she exited the facility unobserved.  Once outside the facility, Resident 1 remained by the door for almost 30 seconds before she stood up behind her wheelchair and walked across the parking lot.  Meanwhile, Petitioner’s staff ignored the alarm for over three minutes as it continued to sound.

In this case, staff unbelievably failed to consider that a resident could have triggered the alarm and thus, delayed in conducting a resident head count.  Moreover, the failure to respond to a sounding alarm that was utilized for security purposes also supports Petitioner’s disregard for resident safety.  Staff did not determine that Resident 1 was

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missing until approximately six minutes after Resident 1 triggered the door alarm.  Because of their delayed response, Resident 1, even with her physical deficits, had ample time to elope from the facility.  Further, as previously discussed, Petitioner’s failure to immediately respond to the door alarm placed the facility’s other residents at risk of serious harm or death.

Resident 1 was an extremely vulnerable individual due to her cognitive and physical impairments and could not care for herself.  Petitioner’s lack of adequate supervision and failure to prevent Resident 1’s elopement resulted in Resident 1 eloping from the facility and being exposed to risks of serious harm or death.  Resident 1 remained unaccounted for until police found her in an agitated state 48 days after she eloped from the facility.  During those 48 days, Resident 1 did not have necessary medical care and medications, and likely did not have adequate shelter, food, clothing, and water.  Based on the seriousness of Petitioner’s noncompliance and Petitioner’s culpability, the $10,205 per‑instance CMP is reasonable.

VIII. Conclusion

Petitioner was not in substantial compliance with the participation requirements at 42 C.F.R. § 483.25(d)(1), (2) (Tag F689).  CMS did not clearly err in determining that Petitioner’s noncompliance posed immediate jeopardy to resident health and safety.  Finally, the $10,205 per-instance CMP is reasonable.

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Endnotes

¹  CMS or the state agency designates the scope and severity level using a letter from A through L based on a scope and severity matrix published in the State Operations Manual (SOM), Ch. 7, § 7400.3.1 (Rev. 185, Eff. Nov. 16, 2018).  The matrix, which is based on 42 C.F.R. § 488.408, specifies which remedies are required and optional at each scope and severity level.  “Scope” describes how many residents are potentially affected by a particular deficiency.  Deficiencies may be “isolated,” “pattern,” or “widespread” in scope.  “Severity” describes the possible harm that a deficiency may cause.  A scope and severity level of A, B, or C describes a deficiency that causes no actual harm with the potential for minimal harm.  Facilities cited with deficiencies at level C or lower remain in substantial compliance.  42 C.F.R. § 488.301.  A scope and severity level of D, E, or F describes a deficiency that has caused no actual harm with the potential for more than minimal harm that is not immediate jeopardy.  A scope and severity level of G, H, or I describes deficiencies that have caused actual harm, but do not constitute immediate jeopardy.  Scope and severity levels J, K, and L describe deficiencies that pose immediate jeopardy to resident health or safety.

²  For the purpose of this matter, I adopt Judge Rogall’s standing order.

³  According to the hearing request, Petitioner was “declared back in compliance 12:00 noon, on May 9, 2019.”  Request for Hearing at 7.  Based on Petitioner’s representations, the DPNA would not have gone into effect since Petitioner returned to substantial compliance prior to the effective date of the DPNA, May 18, 2019.

⁴  The state surveyor’s supervisor issued the immediate jeopardy determination to Petitioner’s administrator, director of nursing, registered nursing supervisor, and social services/activity director over the phone on March 23, 2019.  CMS Ex. 1 at 4; P. Ex. 6 ¶ 9; P. Ex. 8 ¶ 7.

⁵  CMS increases the CMP amounts annually to account for inflation in compliance with the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015, Pub. L. No. 114-74, § 701, 129 Stat. 584, 599 (2015).  See 81 Fed. Reg. 61,538 (Sept. 6, 2016).

⁶  A Wanderguard is a band with a security alarm that is placed on a resident’s wrist or ankle.  Petitioner’s records also refer to the band as a “resident alarm,” “code alarm,” or “code alert.”

⁷  LVN 1’s declaration states that Resident 1 approached her at the nurses’ station and asked for juice at 7:40 p.m.  P. Ex. 9 ¶ 2.  However, the statement of deficiencies and surveillance video show Resident 1 by the nurses’ station at 7:48 p.m., which Petitioner cites to in its brief.  CMS Ex. 1 at 9; P. Br. at 19.

⁸  In 2016, CMS issued a final rule that re-designated and revised the provisions of 42 C.F.R. Part 483.  See Final Rule, Medicare and Medicaid Programs; Reform of Requirements for Long-Term Care Facilities, 81 Fed. Reg. 68,688, 68,828 (Oct. 4, 2016).  Prior to 2016, the content of subsections 483.25(d)(1) and (2) was codified at subsections 483.25(h)(1) and (2).  The Meadowwood decision interpreted 42 C.F.R. § 483.25(h)(1) and (2), as did the other decisions cited in this paragraph.  I find it appropriate to rely on the reasoning of these decisions in the present case because there was no substantive change to the language when 42 C.F.R. § 483.25(h)(1) and (2) were recodified as 42 C.F.R. § 483.25(d)(1) and (2).