Fruitvale Long Term Care, LLC d/b/a Fruitvale Healthcare Center, DAB CR5710 (2020)

DECISION

Petitioner, Fruitvale Long Term Care, LLC, is a long-term care facility, located in Oakland, California, that participates in the Medicare program.  One of its at-risk residents eloped from the facility and spent a November night on the streets of Oakland.  Police eventually found him and returned him to the facility.  The Centers for Medicare & Medicaid Services (CMS) subsequently determined that the facility was not in substantial compliance with Medicare program requirements and imposed a per-instance civil money penalty (CMP) of $15,000.  Petitioner has appealed, and CMS moves for summary judgment, which Petitioner opposes.

For the reasons set forth below, I grant CMS’s motion; Petitioner has not come forward with evidence that (if believed) would show that it did everything possible (within the meaning of the regulation) to minimize the risks of accidents.  Indeed, the undisputed evidence establishes that the facility was not in substantial compliance with Medicare program requirements and that the penalty imposed is reasonable.

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Background

The Social Security Act (Act) sets forth requirements for nursing facilities to participate in the Medicare program and authorizes the Secretary of Health and Human Services to promulgate regulations implementing those statutory provisions.  Act § 1819.  The Secretary’s regulations are found at 42 C.F.R. Part 483.  To participate in the Medicare program, a nursing facility must maintain substantial compliance with program requirements.  To be in substantial compliance, a facility’s deficiencies may pose no greater risk to resident health and safety than “the potential for causing minimal harm.”  42 C.F.R. § 488.301.

The Secretary contracts with state survey agencies to conduct periodic surveys to determine whether skilled nursing facilities are in substantial compliance.  Act § 1864(a); 42 C.F.R. § 488.20.  Each facility must be surveyed annually, with no more than fifteen months elapsing between surveys.  Facilities must be surveyed more often, if necessary, to ensure that identified deficiencies are corrected.  Act § 1819(g)(2)(A); 42 C.F.R. §§ 488.20(a), 488.308.  The state agency must also investigate all complaints.  Act § 1819(g)(4).

In this case, after the facility’s staff reported an elopement, a surveyor from the California Department of Public Health (state agency) went to the facility and completed an investigation on February 1, 2018.  CMS Ex. 2.  Based on her findings, CMS determined that the facility was not in substantial compliance with one Medicare participation requirement:  42 C.F.R. § 483.25(d) (Tag F689 – quality of care:  accident prevention),1 cited at scope and severity level J (isolated instance of substantial noncompliance that poses immediate jeopardy to resident health and safety).  CMS Ex. 1; CMS Ex. 2 at 1.  

Thereafter, CMS determined that the facility returned to substantial compliance on March 14, 2018.  CMS Ex. 4.

CMS has imposed against the facility a per-instance penalty of $15,000.  CMS Ex. 1 at 2; CMS Ex. 4 at 1.

Petitioner appeals, and CMS has moved for summary judgment. 

CMS has filed a motion for summary judgment and brief in support (CMS Br.), along with 17 exhibits (CMS Exs. 1-17).  Petitioner filed its brief (P. Br.) with nine exhibits (P. Exs. 1-9).

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Issues

As a threshold matter, I consider whether summary judgment is appropriate. 

On the merits, the issues are:

• Was the facility in substantial compliance with 42 C.F.R. § 483.25(d); and
• If the facility was not in substantial compliance, is the penalty imposed – $15,000 per-instance – reasonable?

I have no authority to review CMS’s immediate jeopardy determination.  I may review CMS’s scope and severity findings (which include immediate jeopardy) if:  1) a successful challenge would affect the range of the CMP; or 2) CMS has made a finding of substandard quality of care that results in the loss of approval of a facility’s nurse aide training program.  42 C.F.R. § 498.3(b)(14), (d)(10); NMS Healthcare of Hagerstown, DAB No. 2603 at 6-7 (2014); Cedar Lake Nursing Home, DAB No. 2344 at 9 (2010); Heritage Park Rehab. and Nursing Ctr., DAB No. 2231 at 15-16 (2009); Evergreen Commons, DAB No. 2175 (2008); Aase Haugen Homes, DAB No. 2013 (2006). 

For a per-instance penalty, the regulations provide only one range ($2,097 to $20,965), so the level of noncompliance here does not affect the range of the CMP.  42 C.F.R. § 488.438(a)(2); 45 C.F.R. § 102.3; 82 Fed. Reg. 9174, 9182-83 (Feb. 3, 2017).2  If I approve a penalty of $10,483 or more, which I do here, CMS’s scope and severity finding will not affect approval of the facility’s nurse aide training program.  Under the statute and regulations, the state agency cannot approve the program if CMS imposes a penalty of $10,483 or more.  The facility thus loses its approval without regard to the immediate jeopardy finding.  Act § 1819(f)(2)(B); 42 C.F.R. § 483.151(b)(2)(iv); 82 Fed. Reg. at 9188.

In any event, Petitioner is simply incorrect that a finding of immediate jeopardy requires “dangerous, grave, grievous, or life-threatening” harm that is “outside the ordinary, requiring extraordinary care, or [has] lasting consequences.”  P. Br. at 10.  The Departmental Appeals Board has concluded that a facility’s deficiencies may pose immediate jeopardy even though they do not create such a “crisis situation.”  Miss. Care Ctr. of Greenville, DAB No. 2450 at 16 (2012).  A facility’s deficiencies may pose immediate jeopardy even though the potential harm is not likely to occur in the near future.  See Agape Rehab. of Rock Hill, DAB No. 2411 at 19 (2011); Barbourville

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Nursing Home, DAB No. 1962 at 16-18 (2005).  Moreover, whenever a confused and vulnerable resident is able to leave a facility undetected, the Board has had no trouble finding that a facility’s deficiencies posed immediate jeopardy.  Glenoaks Nursing Ctr., DAB No. 2522 at 17 (2013); Miss. Care Ctr., DAB No. 2450 at 16; Century Care of Crystal Coast, DAB No. 2076 at 24 (2007).

Discussion

Summary judgment.  Summary judgment is appropriate if a case presents no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law.  Bartley Healthcare Nursing & Rehab., DAB No. 2539 at 3 (2013) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-25 (1986)); Ill. Knights Templar Home, DAB No. 2274 at 3-4 (2009), and cases cited therein.

The moving party may show the absence of a genuine factual dispute by presenting evidence so one-sided that it must prevail as a matter of law or by showing that the non-moving party has presented no evidence “sufficient to establish the existence of an element essential to [that party’s] case, and on which [that party] will bear the burden of proof at trial.”  Livingston Care Ctr. v. Dep’t of Health & Human Servs.,388 F.3d 168, 173 (6th Cir. 2004) (quoting Celotex, 477 U.S. at 322).  To avoid summary judgment, the non-moving party must then act affirmatively by tendering evidence of specific facts showing that a dispute exists.  Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,475 U.S. 574, 586 n.11 (1986); see also Vandalia Park,DAB No. 1939 (2004); Lebanon Nursing & Rehab. Ctr., DAB No. 1918 (2004).  The non-moving party may not simply rely on denials, but must furnish admissible evidence of a dispute concerning a material fact.  Ill. Knights Templar, DAB No. 2274 at 4; Livingston Care Ctr., DAB No. 1871 at 5 (2003).  In doing so, the non-moving party must show more than “some metaphysical doubt as to the material facts.”  W. Tex. LTC Partners, Inc., DAB No. 2652 at 6 (2015), aff’d sub nom. W. Tex. LTC Partners, Inc. v. U.S. Dep’t of Health & Human Servs., 843 F.3d 1043 (5th Cir. 2016); 1866ICPayday.com, L.L.C., DAB No. 2289 at 3 (2009) (quoting Matsushita, 475 U.S. at 587).

In examining the evidence for purposes of determining whether summary judgment is appropriate, I must draw all reasonable inferences in the light most favorable to the non-moving party.  Brightview Care Ctr., DAB No. 2132 at 2, 9 (2007); Livingston Care Ctr., 388 F.3d at 172; Guardian Health Care Ctr.,DAB No. 1943 at 8 (2004); see also Brightview, DAB No. 2132 at 10 (entry of summary judgment upheld where inferences and views of non-moving party are not reasonable).  However, drawing factual inferences in the light most favorable to the non-moving party does not require that I accept the non-moving party’s legal conclusions.  W. Tex. LTC Partners, Inc., DAB No. 2652 at 6-7 (2015); cf. Guardian, DAB No. 1943 at 11 (“A dispute over the conclusion to be drawn from applying relevant legal criteria to undisputed facts does not preclude summary

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judgment if the record is sufficiently developed and there is only one reasonable conclusion that can be drawn from those facts.”).

Summary judgment applied to administrative review in Medicare cases.  It is well-established that an administrative law judge is empowered to decide a case on a motion for summary judgment, without an evidentiary hearing.  Shah v. Azar, 920 F.3d 987, 996 (5th Cir. 2019) (citing Cedar Lake Nursing Home v. U.S. Dep’t of Health & Human Servs., 619 F.3d 453, 457 (5th Cir. 2010)); see Fal-Meridian, Inc. v. U.S. Dep’t of Health & Human Servs., 604 F.3d 445, 449 (7th Cir. 2010).  Nevertheless, there seems to be some confusion about applying such well-founded principles of civil litigation to these proceedings, with some suggesting that, to do so, denies a party a fundamental right.  In one succinct observation, Judge Posner of the Seventh Circuit Court of Appeals gave lie to such misapprehensions:  “All it means for a decision to be based on a grant of summary judgment is that there are no issues that would benefit from being resolved in an evidentiary hearing.”  Fal-Meridian, 604 F.3d at 449 (emphasis added).

In Fal-Meridian, the Seventh Circuit considered specifically the appropriateness of granting CMS summary judgment in a nursing home case involving (then) section 483.25(h) (now section 483.25(d)).3  The court sustained the administrative law judge’s granting summary judgment in CMS’s favor because the petitioner/nursing home did not tender “evidence that, if believed, would show that it had done everything possible (within the meaning of the regulation) to minimize the risks of an accident.”  Fal-Meridian, 604 F.3d at 451.  The relevant questions are:  1) whether the facility’s “handling of [the resident’s] physical and mental infirmities was consistent with its duty to keep the [facility] free as possible from hazards that might cause an accident,” and 2) if not consistent, whether the facility’s dereliction of its duty was likely to cause serious injury, harm, impairment, or death to a resident.  Fal-Meridian, 604 F.3d at 447. 

Ultimately, CMS is entitled to summary judgment because Petitioner presents no admissible evidence of specific facts showing that it did everything possible to minimize the risks of an accident.

Finally, I note that the courts that have considered applying principles of summary judgment to Medicare and other administrative proceedings have carefully avoided any suggestion that deciding a case on summary judgment means that it is decided without a hearing.  Throughout their decisions, they refer to deciding the case

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without an “oral hearing” or without an “evidentiary hearing.”  Although a case may be decided on summary judgment (or based on the written record), an administrative law judge, by considering the evidence and applying the law, has granted the petitioner a hearing, as required by sections 205(b) and 1866(h) of the Act.  See CNG Transmission Corp. v. FERC, 40 F.3d 1289, 1293 (D.C. Cir. 1994) (holding that a “paper hearing” satisfies statutory requirements for “notice and opportunity for hearing.”).

1. CMS is entitled to summary judgment because the facility did not tender evidence showing that it did everything possible (within the meaning of 42 C.F.R. § 483.25(d)) to minimize the risks of accidents posed to vulnerable residents.4

Program requirement:  42 C.F.R. § 483.25(d) (Tag F689).  The statute requires that the facility ensure that each resident receive, and the facility provide, the necessary care and services to allow the resident to attain or maintain the highest practicable physical, mental, and psychosocial well-being, in accordance with the resident’s comprehensive assessment and plan of care.  Act § 1819(b)(2).  To this end, the “quality of care” regulation mandates, among other requirements, that the facility “ensure” that each resident’s environment remain as free of accident hazards as possible and that each resident receive adequate supervision and assistive devices to prevent accidents.  42 C.F.R. § 483.25(d).  The facility must therefore eliminate or reduce a known or foreseeable risk of accidents “to the greatest degree practicable.”  Del Rosa Villa, DAB No. 2458 at 7 (2012); Clermont Nursing & Convalescent Ctr., DAB No. 1923 at 9-10 (2004), aff’d sub nom. Clermont Nursing & Convalescent Ctr. v. Leavitt, 142 F. App’x 900 (6th Cir. 2005); accord Briarwood Nursing Ctr., DAB No. 2115 at 5 (2007) (holding that the facility must “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.”).  A facility is permitted the flexibility to choose the methods it uses to prevent accidents, but the chosen methods must constitute an “adequate” level of supervision under all the circumstances.  42 C.F.R. § 483.25(d); Briarwood, DAB No. 2115 at 5; Windsor Health Care Ctr., DAB No. 1902 at 5 (2003), aff’d sub nom. Windsor Health Care Ctr. v. Leavitt, 127 F. App’x 843 (6th Cir. 2005).

“Where a facility policy or a resident’s care plan requires staff to take specific measures in caring for a resident, the Board has repeatedly held that those measures reflect the facility’s own determination of what it must do to attain or maintain the resident’s ‘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 (2017).

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Facility policies.  The facility had in place policies to prevent a vulnerable resident’s elopement.  The policies’ stated goal is to provide “a safe environment and preventive measures for elopement.”  CMS Ex. 15 at 3. 

According to the policies, when a resident is admitted, staff are required to complete an elopement risk form.  Residents who are at risk for elopement are to have a wander guard band, which is a security alarm that attaches to a resident’s wrist or ankle.  It sounds an alarm to alert staff that the at-risk resident has approached an exit.  CMS Ex. 15 at 6; CMS Ex. 17 at 2 (Carlos Decl. ¶ 11); P. Ex. 3 at 1 (Nortado Dec. ¶ 5); P. Br. at 3-4.

Staff are required to complete an elopement identification form, with a photo attached.  The form is placed in an elopement binder, maintained at the reception desk.  CMS Ex. 15 at 6.

According to the policies, when an audible alarm sounds, employees must check the door.  If no resident is in sight, an employee should seek assistance from another employee to search the vicinity adjacent to the door inside the facility.  If no resident is there, the employee should search outside the door, the parking lot, exit area, or other adjacent areas.  If two employees are responding, one should simultaneously search the nearby vicinity.  The charge nurse or nursing supervisor must conduct a resident count to ensure that all residents are accounted for.  CMS Ex. 15 at 7.

If a resident is missing, the policy directs staff to:  1) determine if the resident is out on an authorized leave or pass; 2) if not, notify the administrator and the director of nursing (DON); and 3) thoroughly search the building and premises.  If the resident is not located, the administrator, DON, or a designee must:  1) notify the resident’s legal representative; 2) notify the attending physician; 3) notify the sheriff and police  department; 4) notify the state agency, “if required”; 5) notify volunteer agencies, if necessary; 6) provide search teams with resident identification information; and 7) extensively search the surrounding area.  CMS Ex. 15 at 4 (emphasis in original).

When, following the elopement, the resident is returned to the facility, the DON or charge nurse should:  1) contact the administrator; 2) examine the resident for injuries; 3) contact the attending physician to report findings and the condition of the resident, and follow the physician’s orders; 4) notify the resident’s legal representative; 5) notify search teams; 6) complete and file an incident/accident report; 7) make appropriate entries into the resident’s medical record; 8) investigate how the resident eloped and make recommendations on safety measures to the safety team; and 9) update the resident’s care plan with interventions to prevent future elopements.  CMS Ex. 15 at 4-5.

The facility also had policies in place regarding the “wander/elopement” system.  The policies emphasize that regular testing of the system is essential and notes that regular

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testing of door monitors and signaling devices in the alarm system “verifies the integrity of the system and helps to maintain employee awareness and vigilance.”  CMS Ex. 15 at 1.

For “tester” maintenance, staff are instructed to replace the internal batteries at least once a year or when the red light does not come on when pressed.  If the tester does not function correctly, staff are to call the manufacturer’s technical service department.  Staff are required to perform “regular and frequent” checks to verify that the signaling devices work properly.  Employees are reminded to do a quick visual check each time they see a monitored resident to make sure that the device is in place.  CMS Ex. 15 at 1.

The policy directs staff to test signaling devices at least daily and to test the “tester.”  They are supposed to record the test results in the “PM Monthly Checklist.”  Staff are also instructed to check wrist bands for tears or other damage and to replace damaged bands immediately.  CMS Ex. 15 at 1.  They are supposed to inspect and test each door monitor daily; because it is common for the alarm to sound several times per day, those alarms count as a test.  Any door alarm that is not otherwise tested at least once per shift should be activated intentionally at least once a day.  CMS Ex. 15 at 2.  The policy directs staff to test the range of the door monitors at least monthly and to record the test results on the PM Monthly Checklist.  CMS Ex. 15 at 2.  Although not specified in the written policy, the facility’s DON, Edelma Nortado, indicates that, if a resident wearing a wander guard approaches any door, and the alarm does not sound, staff are supposed to inform her and the maintenance director that the alarm did not sound.  She would make sure that the maintenance director inspects the alarm.  P. Ex. 3 at 1 (Nortado Decl. ¶ 6).

Nursing personnel are also required to report and investigate all reports of missing residents.  CMS Ex. 15 at 3.  The policies require staff to “[d]ocument verification of placement and test for all signaling devices (wristbands) daily.”  They must also record service, repair, and tester battery replacements on page two of the “Equipment/Utility Inventory & Service Log” and record alarm system range tests on the “Preventive Maintenance Monthly Checklist.”  CMS Ex. 15 at 2.

Resident 1 (R1).  These facts are undisputed:  R1 was a 73-year-old man, admitted to the facility on October 30, 2017, with diagnoses of failure to thrive, muscle weakness, and unspecified dementia.  At the time of his admission, he was disoriented and confused.  He had a history of falling and, in the past, had suffered an intracranial injury.  CMS Ex. 6 at 1; see P. Ex. 1 at 1; P. Ex. 2 (reporting that R1 could not return to his single room occupancy hotel due to “frequent confusion” that led to emergency room visits).  He had “abnormalities of gait and mobility” and required assistance with ambulation.  CMS Ex. 6 at 2; CMS Ex. 7 at 3; CMS Ex. 9 at 3.  His psychological symptoms included agitation/anger and aggressive/combative behavior.  CMS Ex. 7 at 1.

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R1 was at risk for elopement.  CMS Ex. 8 at 1; CMS Ex. 11 at 7, 10 (incorporating R1’s wandering behavior into his care plan).  Consistent with facility policy, at the time of his admission, staff attached a wander guard band to his left wrist, and his physician ordered that it “be worn at all times.”  CMS Ex. 6 at 3; CMS Ex. 9 at 2; P. Br. at 4.  Nurse’s notes indicate that staff were to monitor his whereabouts and observe fall and safety precautions.  CMS Ex. 6 at 3; CMS Ex. 11 at 6.

A social services note, dated November 6, 2017, reiterates that R1 had a history of falling, as well as short and long-term memory problems with moderately impaired cognitive status.  The note indicates that the resident was being monitored for wandering out of the facility and attempts to leave the facility.  CMS Ex. 11 at 5.

According to his Minimum Data Set (MDS) assessment, completed on November 12, 2017, R1’s cognition was moderately impaired; he scored 9 out of 15 on the Brief Interview for Mental Status (BIMS), a tool that assesses cognitive function.5  CMS Ex. 10 at 4.  His functional abilities were impaired; he needed supervision with most activities and limited assistance with dressing, toilet use, and hygiene.  He was not steady on his feet and required staff assistance to move from a seated to standing position or to move on and off the toilet.  CMS Ex. 10 at 8, 21; see CMS Ex. 11 at 8, 9 (incorporating R1’s functional limitations and cognitive losses into his care plan).

The November 17, 2017, incident.  R1 was seen in his room at about 8:10 a.m. on November 17.  At 8:30 that morning, a nurse aide reported that he was missing.  Staff searched the building and surrounding area.  At 10:30 a.m., the nurse supervisor called the police to report a missing person.  Staff also called R1’s brother and his physician.  CMS Ex. 6 at 6; CMS Ex. 11 at 4.

R1 was missing for the rest of that day and the entire night.

At 11:00 a.m. the following day, the police returned R1 to the facility.  The police told facility staff that they found him sleeping on the streets.  He was not wearing his wander guard band.  P. Ex. 3 at 2 (Nortado Decl. ¶ 12).  When asked about it, he told staff that he had removed it.  He also told them that he spent the night on the streets and that it was cold.  He said that he fell, and he complained of pain in his knee and fingers, although the nurse reported no swelling or discoloration.  CMS Ex. 6 at 9; CMS Ex. 11 at 1.

Based on the undisputed facts, CMS is entitled to summary judgment.  Petitioner did not tender “evidence that, if believed, would show that it had done everything possible

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(within the meaning of the regulation) to minimize the risks of an accident.”  See Fal-Meridian, 604 F.3d at 451.  Indeed, the facility fell short of doing everything possible to prevent accidents in two important respects:  first, the principal means by which it purported to prevent elopements – a wander guard system – was not properly monitored or maintained; and second, although they had acknowledged his vulnerability, staff did not have in place an effective means by which to monitor R1’s whereabouts. 

Malfunctioning wander guard system.  The undisputed evidence establishes that the facility’s wander guard system did not consistently perform properly.  The facility’s maintenance director, Thnam Kim, acknowledges that “in late December . . . an abnormality was detected.”  P. Ex. 6 at 1 (Kim Decl. ¶ 7).  In a letter dated February 1, 2018, the facility’s administrator, Greg Bogart, also conceded that the system malfunctioned in late December 2017.  CMS Ex. 13.  The facility contacted the vendor and someone repaired the system.  P. Ex. 6 at 1 (Kim Decl. ¶ 8).  According to Administrator Bogart, on December 22, 2017, the vendor reported “[a]ll system tests passed.”  CMS Ex. 13.  For purposes of summary judgment, I accept that the system was repaired and appeared to be working properly as of December 22, 2017.

Director Kim asserts that the “system continued to be tested and work well thereafter.”  P. Ex. 6 at 1 (Kim Decl. ¶ 9).  But the repairs were admittedly short-lived; on the morning of the survey, January 29, Administrator Bogart, DON Nortado, and Surveyor Carlos observed three residents (R2, R3, and R4) – each wearing a wander guard bracelet – approach a facility exit door without triggering the alarm.  In fact, one of the residents was able to leave the facility without triggering the alarm.  CMS Ex. 13; CMS Ex. 17 at 2 (Carlos Decl. ¶ 12).

An undated vendor visit report confirms that the system was broken; it was not detecting tags; the front door was not closing properly; and one of the tags worn by a resident was defective and had to be replaced.  CMS Ex. 14 at 1.  According to Petitioner, these problems were identified in late December, and CMS, in error, assumed they had been discovered on January 29 (when the system again broke down).  CMS’s confusion is understandable; handwritten, on the back of the report, is a note, dated January 29 at 2:30 p.m., indicating that the vendor representative visited the facility that day.  That is the only date on the document.  CMS Ex. 14 at 2.  Administrator Bogart’s February 1, 2018, letter does not mention that the system required any repairs in December.  In fact, his letter implies that no repairs were needed; he simply writes:  “On December 22, 2017, the vendor tested the system and reported, ‘All system tests passed.’”  CMS Ex. 13.

Nevertheless, for purposes of summary judgment, I accept Petitioner’s representation that the specified problems were detected and repaired in late December and that Petitioner does not know why the system failed on January 29.  The issue is immaterial; the system was demonstrably not working correctly, and it does not help Petitioner’s case to argue that the facility has no idea why, in January, the system failed.

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Testing.  Although Petitioner asserts that the facility monitored the alert system daily, it did not produce evidence establishing that this was so.  P. Br. at 2.  For purposes of summary judgment, I need not accept the unsupported assertions of counsel.  Ill. Knights Templar, DAB No. 2274 at 4; Livingston Care Ctr., DAB No. 1871 at 5. 

The undisputed evidence establishes that the facility had not implemented a system that would assure that all signaling devices would be checked daily, as required by facility policies.  According to her written declaration, Director Kim told Surveyor Carlos that he was responsible for inspecting and testing the wander guard system but that he did not perform the tests as frequently as the policy required, and he did not document testing at all.  He told her that, rather than testing the door monitors daily, he tested weekly, although he conceded that he had not done so the prior week.  CMS Ex. 17 at 3 (Carlos Decl. ¶ 13). 

Director Kim denies none of this.  He affirmatively admits that he was responsible for checking the alarms weekly to ensure that the system remained fully functional.  P. Ex. 6 at 1 (Kim Decl. ¶ 2).  He does not claim that he tested the signaling devices daily or even that he tested most of them at all.  Instead, he suggests that the DON and other supervisory staff would let him know if the system was not working and that he “frequently and regularly” checked the system on the main door between November 2017 and January 2018.   P. Ex. 6 at 1 (Kim Decl. ¶¶ 3, 5).  However, on the Friday before the survey – when he was scheduled to test the system – he had not checked to see if the system was working.  P. Ex. 6 at 1 (Kim Decl. ¶ 10).  He does not claim that he ever checked the other four doors.

According to DON Nortado, the facility tested the system daily because residents would get near doors and trigger the alarms “at least 4-5 times a day, every day.”  P. Ex. 3 at 1 (Nortado Decl. ¶ 8).  I’ve no doubt that, when the system was working properly, residents approaching a door would trigger an alarm and, under the policy, that trigger would satisfy the testing requirement for that door for the day.  But, if the facility were going to rely on such haphazard incidents to ensure that the door alarms were working, it was incumbent on staff to document each occurrence in order to ensure that each door was tested each day.  Otherwise, the facility could not ensure that each door alarm was tested daily; in fact, on days when the alarm sounded just four times, which DON Nortado concedes occurred, all five doors would not have been tested, even assuming that these “tests” were evenly distributed among the facility’s five exit doors (which is highly unlikely) and not concentrated in the higher-traffic areas, such as the main door.6

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The undisputed evidence also establishes that the facility did not record test results.  Director Kim told Surveyor Carlos that he had not documented that he regularly checked the alarm system, and the facility produced no documentary evidence suggesting that anyone had done so.  CMS Ex. 17 at 3 (Carlos Decl. ¶ 13).  In his written declaration, Director Kim does not claim that the facility created or maintained the required documentation.  P. Ex. 6; see CMS Ex. 13.

The facility’s failure to follow its own policies for testing and maintaining the wander guard system put it out of substantial compliance with section 483.25.  Green Valley Healthcare and Rehab. Ctr., DAB No. 2947 at 6 (2019) (citing The Laurels at Forest Glenn, DAB No. 2182 at 18 (2008)); Hanover Hills Health Care Ctr., DAB No. 2507 at 6 (2013) (observing that “the Board has long held that a facility’s own policy may be sufficient evidence . . . of what the facility has determined is needed to meet the quality of care requirements in section 483.25”).

Petitioner points out that R1’s elopement was not the result of a malfunction in the alarm system; rather, the resident himself removed his wander guard.  P. Br. at 2.  This does not alter the undisputed facts that: 1) the facility relied on its wander guard system to prevent elopements; 2) the system was flawed; and 3) staff failed to test it as required by the facility’s policies.  Because the system was not working properly, all vulnerable residents were at risk.  It is well-settled that CMS need not establish that “the violation of section 483.25 had actually or potentially harmed a specific resident.”  A deficiency is severe enough to warrant a finding of substantial noncompliance “if it involves acts or omissions that, if repeated, have the potential to cause more than minimal harm to any of the [facility’s] residents, even if surveyors did not observe or identify a particular resident who was actually threatened with harm during the survey.”  Green Valley, DAB No. 2947 at 10 (quoting N. Las Vegas Care Ctr., DAB No. 2946 at 9 (2019)); see Harlan Nursing Home, DAB No. 2174 at 5 (2008) (“Thus, the regulation focuses on the need to prevent accident risks (such as elopements), not on whether an accident occurs.”). 

Although the facility’s written policies for preventing elopements rely solely on the wander guard system, Petitioner tacitly acknowledges that, even if it were reliable, the system, by itself, would not relieve the facility of its obligation to supervise elopement-prone residents.  DON Nortado notes that a receptionist or another staff member supervises the main door from 8:00 a.m. to 8:00 p.m. each day and that the nurses’ station has a direct line of sight to the main door.  P. Ex. 3 at 1 (Nortado Decl. ¶ 3).  She does not claim that anyone supervised any of the other doors, including the one through which, she maintains, R1 left the facility.  See P. Ex. 3 at 2 (Nortado Decl. ¶ 13).  Nor does she (or

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anyone else) explain how staff supervised R1.  See Cedar Lake Nursing Home, DAB No. 2288 at 5, 8-9 (2009) (holding that the facility was required to show the frequency and means of supervision provided to prevent an elopement).

Inadequate supervision.  Indeed, with respect to providing R1 with the supervision necessary to keep him safe, Petitioner does not argue that facility staff adequately monitored R1’s whereabouts; it argues that they didn’t have to.  Notwithstanding the resident’s history, assessments, and care plan, Petitioner now claims that he had “the legal and mental capacity to leave the [f]acility of his own volition and to adequately care for himself when out of the [f]acility.”  P. Ex. 3 at 2 (Nortado Decl. ¶ 14); P. Br. at 2.  Even the most sympathetic factfinder could not find that this assertion – which is based on the thinnest of evidence – precludes my entering summary judgment.  See Green Valley, DAB No. 2947 at 8 (citing Johnson v. Perez, 823 F.3d 701, 705 (D.C. Cir. 2016)).  The facility may not so easily disavow its obligation to keep safe a 73-year-old man with cognitive impairments, history of falls, and an unreliable gait, who is admitted to the facility because he does not have the capacity to care for himself. 

No evidence supports Petitioner’s assertion that R1 was capable of deciding whether he wanted to leave the facility on his own.  Petitioner points to the resident’s mental status exam, which showed that he was cognitively impaired, and to a November 1 physician note that he had “the mental capacity to make decisions.”  P. Ex. 4 at 2; see P. Br. at 4.  The ability to make a decision is a far cry from the ability to leave the facility and successfully navigate the streets of Oakland, and nothing in the physician’s report nor any other assessment suggests that anyone thought that he was able to do so.  Significantly, physician orders indicate that the opposite is true:  given the opportunity to authorize R1 to go out on a pass, his physician did not do so.  CMS Ex. 9 at 2.  Nor has Petitioner produced any statements from R1’s physician – in the form of a written declaration or even a note – suggesting that R1 could safely leave the facility on his own.  

As the Board pointed out in a similar case, the resident’s physician determined that he was incapable of caring for himself and that he required skilled care:  “the doctor recommended that this resident, who was assessed as having ‘moderately-impaired cognitive skills and poor decision-making’ . . . live in a facility that is required by law to ensure adequate supervision to prevent accidents.”  Heritage Park Rehab. & Nursing Ctr., DAB No. 2231 at 14 (2009).  Moreover, the Board noted that, even if the physician had not imposed restrictions, the regulations impose on the facility, not the physician, the obligation to protect its residents from foreseeable risks of accidental injury or harm.  Id. at 14-15.

In Heritage, the Board faulted the petitioner for mischaracterizing the basis for a citation under section 483.25.  There (as here), CMS cited the deficiency because the resident’s departure was unknown and unsupervised, not as the petitioner suggested (and as Petitioner suggests here), because that the resident was precluded from leaving under any

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circumstances.  Heritage, DAB No. 2231 at 10.  The issue there (as here) “is whether the facility took reasonable steps in light of the foreseeable risk of elopement to ensure that [the resident] left the facility in an authorized manner.”  Id. at 10-11 n.8.7

Thus, the facility was not in substantial compliance with section 483.25(d) because it has not come forward with evidence establishing that it did everything possible, within the meaning of the regulation, to prevent R1’s elopement and to minimize his risks of accidents.

2. The undisputed evidence establishes that the penalty imposed is reasonable. 

Except to argue that it was in substantial compliance and to challenge the immediate jeopardy finding, Petitioner has not claimed that the amount of the penalty is unreasonable and has thus waived the issue. 

In any event, to determine whether a civil money penalty is reasonable, I apply the factors listed in 42 C.F.R. § 488.438(f):  (1) the facility’s history of noncompliance; (2) the facility’s financial condition; (3) 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.  The absence of culpability is not a mitigating factor.  The factors 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.

I consider whether the evidence supports a finding that the amount of the CMP is at a level reasonably related to an effort to produce corrective action by a provider with the kind of deficiencies found, and in light of the section 488.438(f) factors.  I am neither bound to defer to CMS’s factual assertions nor free to make a wholly independent choice of remedies without regard for CMS’s discretion.  Barn Hill Care Ctr., DAB No. 1848 at 21 (2002); Cmty. Nursing Home, DAB No. 1807 at 22 et seq. (2002); Emerald Oaks, DAB No. 1800 at 9 (2001); CarePlex of Silver Spring, DAB No. 1638 at 8 (1999).

Here, CMS imposes a per-instance penalty of $15,000, which is in the mid- to upper-range for per-instance penalties ($2,097 to $20,965).  42 C.F.R. §§ 488.408(d)(1)(iv), 488.438(a)(2); 45 C.F.R. § 102.3 (2017); 82 Fed. Reg. 9174, 9182-83 (Feb. 3, 2017).  Considering what CMS might have imposed – a comparable per-day penalty for multiple days of substantial noncompliance – this penalty is modest.  See Plum City Care Ctr.,

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DAB No. 2272 at 18-19 (2009) (observing that even the maximum per-instance CMP can be “a modest penalty when compared to what CMS might have imposed.”).8

Applying the relevant factors here, the $15,000 per-instance penalty is reasonable.

Petitioner has a significant history of substantial noncompliance, including substantial noncompliance with section 483.25.  In surveys completed over the previous five years, the facility was consistently found out of substantial compliance, with deficiencies cited at scope and severity levels D (isolated instance of substantial noncompliance that causes no actual harm with the potential for more than minimal harm), E (pattern of substantial noncompliance the causes no actual harm with the potential for more than minimal harm), and F (widespread substantial noncompliance that causes no actual harm with the potential for more than minimal harm).  CMS Ex. 16 at 2-5.  Specifically with respect to section 483.25, surveys completed in October 2013 and February 2016 found substantial noncompliance at scope and severity level E.  CMS Ex. 15 at 2.  The facility’s history, by itself, justifies a significant penalty.

Petitioner does not claim that its financial condition affects its ability to pay this fairly modest amount. 

With respect to the remaining factors, a confused and vulnerable resident was able to remove his wander guard band and to leave the facility undetected.  Knowing that he was at risk, the facility nevertheless implemented no specific procedures for monitoring his whereabouts.  It relied on its demonstrably unreliable alarm system.  And even knowing that the alarm system had failed, responsible staff did not follow facility policies for testing and documenting the testing.  For this, the facility is culpable and the penalty imposed is modest, considering the seriousness of the deficiency.

Conclusion

For all of these reasons, I grant CMS’s motion for summary judgment.  The undisputed evidence establishes that the facility was not ensuring that R1 receive adequate supervision and assistive devices to prevent accidents.  The facility was therefore not in substantial compliance with 42 C.F.R. § 483.25(d).  The penalty imposed – $15,000 per-instance – is reasonable.

• 1. Although F-tags have no particular legal significance, they can be a useful shorthand for discussing deficiencies.  CMS has recently re-numbered the F-tags.  Tag F689 was previously Tag F323.  See, e.g., CMS Ex. 16 at 2.
• 2. Penalties are inflation-adjusted and change annually (more or less).  The amount is determined as of the date the penalty is assessed, in this case, on February 15, 2018.  See CMS Ex. 1; 82 Fed. Reg. at 9182.
• 3. The regulations governing long-term care facilities have been revised since the Seventh Circuit issued its decision in Fal-Meridian; the requirement that facilities minimize the risk of accidents is now found at section 483.25(d).  81 Fed. Reg. 68,688 (Oct. 4, 2016); 82 Fed. Reg. 32,256 (Jul. 13, 2017).  However, the substance of the “quality of care” requirements – which are also statutory – has not changed, so decisions that pre-date the regulatory changes remain valid.
• 4. My findings of fact/conclusions of law are set forth, in italics and bold, in the discussion captions of this decision.
• 5. See CMS, Long-Term Care Facility Resident Assessment Instrument 3.0 User’s Manual, Ch. 3. Section 3 ¶ C0200 (Oct. 2015), https://www.cms.gov/Medicare/Quality-Initiatives-Patient-Assessment-Instruments/NursingHomeQualityInits/Downloads/MDS-30-RAI-Manual-V113.pdf.
• 6. While DON Nortado may have been aware that alarms sounded several times a day, and likely witnessed some of them, much of her assertion is based on speculation.  She could not have been in all places at all times and could not possibly have witnessed alarms going off daily at all five doors.  Nor does she claim that she did so.  See W. Tex. LTC Partners, Inc., DAB No. 2652 at 15 (2015) (holding that a DON’s “unsupported speculation . . . does not even create ‘metaphysical doubt,’ much less raise a genuine dispute of material fact as required to preclude summary judgment.”).
• 7. Unlike the situation in Heritage, where the evidence established that the resident could leave the facility under the appropriate circumstances, no evidence in this record suggests that staff had considered how, or even whether, R1 could safely leave the facility.
• 8. A per-day penalty could be as high as $20,965 per day.  82 Fed. Reg. at 9182-83.