Country Lawn Center for Rehabilitation and Nursing Care, Inc., DAB CR5977 (2021)

DECISION

Petitioner, Country Lawn Center for Rehabilitation and Nursing Care, Inc. (Petitioner or “the facility”), is a long-term care facility located in Navarre, Ohio, that participates in the Medicare program.  Based on a survey that was completed on May 17, 2018, the Centers for Medicare & Medicaid Services (CMS) determined that Petitioner was not in substantial compliance with Medicare participation requirements and imposed a per-instance civil money penalty (PICMP) of $10,000 for immediate jeopardy noncompliance with 42 C.F.R. § 483.25(d).  For the reasons discussed below, I find that Petitioner was not in substantial compliance with Medicare program requirements and the remedy imposed is reasonable.

I.   Background

The Social Security Act (Act) sets requirements for skilled nursing facility (SNF) participation in the Medicare program.  The Act authorizes the Secretary of the United States Department 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. 

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A facility must maintain substantial compliance with program requirements in order to participate in the program.  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 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, 488.20.  The Act and its implementing regulations require that facilities be surveyed on average every twelve months, and more often if necessary, to ensure that identified deficiencies are corrected.  Act § 1819(g)(2)(A) (42 U.S.C. § 1395i-3(g)(2)(A)); 42 C.F.R. §§ 488.20(a), 488.308.

On May 17, 2018, surveyors from the Ohio Department of Public Health (state agency) completed a partial extended survey as part of a complaint investigation.  CMS Ex. 1.  The state agency found that the facility was not in substantial compliance with Medicare participation requirements and that one deficiency, cited under 42 C.F.R. § 483.25(d) (Tag F689, maintaining a resident environment free of accident hazards and ensuring each resident receives the supervision and assistance devices to prevent accidents), constituted immediate jeopardy1 to resident health and safety at the “J” level of scope and severity.2   CMS Ex. 1 at 1-16.  By letter dated September 24, 2018, CMS informed Petitioner that the cited deficiency posed immediate jeopardy, and that the noncompliance constituted “substandard quality of care.”3   CMS Ex. 5 at 1, 4.  CMS imposed a PICMP in the amount of $10,000.  CMS Ex. 5 at 3.

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On November 8, 2018, Petitioner requested an administrative law judge (ALJ) hearing.4   Thereafter, CMS submitted a pre-hearing brief with incorporated motion for summary judgment (CMS Br.) and 33 proposed exhibits (CMS Exs. 1-33).  Petitioner filed a brief with incorporated response to CMS’s motion for summary judgment5 (P. Br.) and 12 proposed exhibits (P. Exs. 1-12).  In the absence of objections, I admit CMS Exs. 1-33 and P. Exs. 1-12 into the evidentiary record.

CMS submitted the written testimony of a surveyor (CMS Ex. 26), and Petitioner submitted the written testimony of three witnesses (P. Exs. 9, 10, 12).6   The Pre-Hearing Order explained that a hearing would be necessary only if a party requested an opportunity to cross-examine a witness or witnesses for whom the opposing party submitted written direct testimony.  Pre-Hearing Order §§ 9-11.  Neither party has requested an opportunity to cross-examine witnesses.  Therefore, a hearing is unnecessary for the cross-examination of any witnesses, and the matter is ready for a decision on the merits.7

II.   Issues

 The following issues will be addressed in this decision:

1) Whether Petitioner failed to be in substantial compliance with the Medicare program participation requirement at 42 C.F.R. § 483.25(d).

2) Whether a $10,000 PICMP is a reasonable enforcement remedy.

III.   Findings of Fact and Conclusions of Law

1. Petitioner determined that Resident #1 was at high risk for elopement from the facility.

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2. Resident #1 made multiple attempts to exit the facility, with one attempted elopement on April 10, 2018, thwarted when a maintenance worker who was working outside the facility noticed him exiting a window.

3. On April 24, 2018, Resident #1 became “very aggressive” and hit a nurse aide on the chin with his fist when he was not allowed to leave the facility.

4. On April 26, 2018, Resident #1 opened windows and knocked out a screen.

5. On May 3, 2018, Resident #1 “took [an] entire window apart” with a fork and eloped from the facility via his room window.

6. Petitioner learned that a resident was missing after it received a call from a concerned motorist who saw an elderly man hitchhiking along a road approximately a half mile from the facility.  

7. Resident #1’s care plan required that staff “frequently” check on him.

8. The evidence does not indicate that Petitioner established a protocol for staff to frequently check on Resident #1.

9. Petitioner’s staff did not check on Resident #1 beginning from when he took his window apart with a fork and continuing through his discovery alongside Route 62 by a concerned motorist.

Resident #1’s first four weeks at the facility

On April 5, 2018, Resident #1, a man born in 1939, was admitted to Room 232-1 in Speret Hall, the facility’s secure unit.  CMS Exs. 10 at 1; 11 at 2; 14 at 1; see CMS Exs. 20 at 3 (statement of nurse, “This unit is designed for exit seekers; that[’]s why [Resident #1] is down there.”); 28 at 1.  At the time of a hospital discharge preceding his admission, an attending physician assessed that Resident #1 “[n]eeds placement unless family has 24 [hour] supervision as he wanders outside per wife.”  CMS Ex. 11 at 2.  

A facility assessment completed on the date of his admission reported that Resident #1 had a primary admitting diagnosis of “acute delusions,” along with other diagnoses that included dementia with behavioral disturbances, major depressive disorder with a history of suicide attempt, restlessness and agitation, cognitive communication deficit, difficulty walking, and muscle weakness.  CMS Ex. 12 at 1.  The assessment determined that Resident #1 was at “Moderate Risk” for elopement.  CMS Ex. 12 at 7.  Resident #1’s attending physician at the facility conducted a history and physical within a week of his admission, and reported that in addition to his recent hospitalization for “acute delirium,”

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his medical history was significant for numerous conditions, to include dementia, depression, insomnia, agitation, and irritability.  CMS Ex. 14 at 1. 

Resident #1’s first-floor room in Speret Hall had an exterior window that was approximately three feet above the floor.  CMS Ex. 24 at 3-4.  The window had plastic window guards placed in the tracks to prevent the window from opening more than six inches.  CMS Ex. 28 at 1. 

Exit-seeking behavior is first documented on April 9, 2018, at which time Resident #1 stated he “want[s] out of here now” and was observed “walking to doors to courtyard and shaking doors trying to open door.”  CMS Ex. 18 at 9.

The following day, on April 10, 2018, Resident #1 “ran off the unit through opened door and ran to Grace [H]all and attempted to leave through door at the end of Grace [H]all.”  CMS Ex. 18 at 9.  After re-direction, Resident #1 returned to Speret Hall.  CMS Ex. 18 at 9.

A few hours later that same day, Resident #1 “attempted to exit the building” through a window in another resident’s room.  CMS Ex. 28 at 1.  It appears that Resident #1 selected that window because a box fan was in the window, and it therefore lacked plastic window guards in the rails that would mechanically prevent the complete opening of the window.8   CMS Ex. 28 at 1.  Addressing the incident, Petitioner’s maintenance director reported the following in an April 10, 2018 statement:  

I was outside near the sprinkler . . . when I saw [Resident #1] open the window and [tear] off the screen in room 218.  He then threw out some clothing.  Attempted to exit threw [sic] the window.  I braced his shoulders to prevent him from exiting.  I yelled for help from the nursing staff.  Nursing responded and re-directed the res[ident].  The res[ident’s] head [and] right arm were all that was outside the window.

CMS Ex. 20 at 1.  A progress note authored by a nurse that day documented that Resident #1 “was found with top half of body hanging out of window in room 218 in an attempt to elope.”  CMS Ex. 18 at 9.  The maintenance director reported that he installed window guards in that window and inspected the other windows on the unit.  CMS Ex. 20 at 1. 

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An April 13, 2018 observation detail list report documented that Resident #1 was at high risk for elopement.  CMS Ex. 13 at 5.  The same report documented that Resident #1 was at high risk for falls.  CMS Ex. 13 at 4. 

Also on April 13, 2018, staff documented that Resident #1, who “continued to pace [the] hallway,” had exhibited agitation and exit-seeking behavior.  CMS Ex. 18 at 8.

On April 18, 2018, Petitioner implemented care plans to address, inter alia, Resident #1’s risks for falls and elopement.  CMS Ex. 17 at 6-7, 13, 18-19.  In particular, Petitioner initiated a care plan to address an identified problem of “elopement risk.”  CMS Ex. 17 at 13.  Petitioner listed the following approaches in furtherance of the goal that Resident #1 “will not exit the facility without staff knowledge thru [sic] the next 90 days”:

• Check Resident frequently and re-direct from exit doors as needed.
• Inform facility staff including [interdisciplinary team] and receptionist of potential for elopement.
• Complete Resident Identification sheet due to risk factors.
• Encourage Activity involvement.
• Staff to report immediately to the nurses any statements by the resident of needing to leave bank, work, home, etc.
• Attempt to determine what Resident wants or is searching for and try to convince resident that there is no need to look outside.
• Notify family of potential for elopement, and encourage their help keeping resident safe.
• Resident to outside only with staff 1:1 SUPERVISION AND INSTRUCTION OF THE NURSE.
• Educate/encourage family/friends to inform staff prior to [sic] resident is leaving the facility with them.

CMS Ex. 17 at 13.

On April 24, 2018, Resident #1 became “very aggressive towards [a nurse aide] and began kicking the wall across from the sensory room” after the nurse aide did not allow him to leave through a door.  CMS Ex. 18 at 6.  Resident #1 “hit [the nurse aide] in the chin with his fist.”  CMS Ex. 18 at 6.

On April 26, 2018, Resident #1 “was near the door with his bag packed,” at which time he banged on the door.  CMS Exs. 18 at 6; 20 at 3.  The nursing staff re-directed Resident #1 and unpacked his bag.  CMS Exs. 18 at 6; 20 at 3.  Exit-seeking behavior continued that day, with a progress note documenting that Resident #1 “tried to exit his room by knocking the screen out of his window.”  CMS Ex. 18 at 5.  According to the maintenance director, staff informed him that Resident #1 “was ‘opening windows and

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pushing out the screens in two rooms.’”  CMS Ex. 20 at 4.  The maintenance director reported that staff replaced one of the screens, and that the other screen was “unaffected.”  CMS Ex. 20 at 4.

Resident #1’s May 3, 2018 elopement

On May 3, 2018, a facility receptionist received a telephone call “from a lady who was concerned about a[n] elderly gentleman walking on [Route] 62 hitchhiking.”  CMS Ex. 20 at 5; see CMS Ex. 24 at 5 (surveyor notes, documenting that the motorist reported that she was “driving South on 62, about ½ mile past Country Lawn, [maybe] a little more, before the railroad tracks”).  The caller described the gentleman as “tall with glasses,” and reported that he was heading toward Brewster.  CMS Ex. 20 at 5.  

The receptionist “notified everyone for a head check” in order to ascertain whether a resident was missing, and Petitioner determined Resident #1 was missing.  CMS Ex. 20 at 5.  A nurse aide reported that Resident #1 sat in the TV room after dinner, and that she was unaware of his absence from the facility until staff “got a call to do a head count.”  CMS Ex. 20 at 6.  The nurse aide observed that the window to Resident #1’s room was closed and initially believed that “someone let him out of the main door.”  CMS Ex. 20 at 6.  A nurse reported that the window in Resident #1’s room was “unlocked [and] the screen was cut out and the window stoppers were missing.”  CMS Ex. 20 at 8.  

One of Petitioner’s nurses left the facility in her vehicle and “drove down [Route] 62 toward Brewster to look for [Resident #1].”  CMS Ex. 20 at 11.  After she did not see Resident #1 along Route 62, she stopped at a gas station and asked the staff to notify the facility if they saw Resident #1.  CMS Ex. 20 at 11.  After a passing motorist picked up Resident #1 and brought him to the Stark County Sheriff’s Office, the nurse met Resident #1 at that location.  CMS Ex. 20 at 11.  Resident #1 informed the nurse that he “didn’t want to come back to Country Lawn,” but he “agreed to go to the [h]ospital.”  CMS Ex. 20 at 11.

Petitioner’s social services director also assisted with the search for Resident #1 and documented her involvement, as follows:  

I received a phone call from [the nurse who looked for Resident #1 on Route 62] that [Resident #1] was missing.  I was at home and immediately got into my car and started looking for [Resident #1].  I drove up past [Baylor Beach Park] got to Wilmot and got a call from a girl . . . I know who lives in the area that she picked up a guy that she thinks walked down the street from our facility.  So she took him to the Brewster police station.  I called the Administrator . . . and told her he was at Brewster police station then called [a facilty nurse] and told her that [Resident #1] was at Brewster police station.  I arrived at the Brewster police station and [Resident #1]

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was upset saying he wasn’t going back to that jail.  I attempted to talk resident into coming back with me he said no way no how.  Then he talked to his son and he wanted his son to come get him and take him home.  His son told him he was bring[ing] him back to the facility.  So the police offered him to go [to] the hospital and he agreed.  I came back to the facility and [Resident #1]’s wife . . . called in and she was notified of the incident.  I also notified [Resident #1’s physician] and [the nurse who had also searched for Resident #1 on Route 62] notified [a nurse practitioner].

CMS Ex. 20 at 9-10.

A sergeant from the Sheriff’s Office, who is identified as the “reporting officer,” responded to the facility.  CMS Ex. 22 at 4.  The sergeant’s investigative notes, completed at 8:11 pm on May 3, 2018, report the following, in pertinent part:

I responded to the listed address, Country Lawn Nursing Care.  I made contact with . . . an employee.  She advised they were attempting to stop [Resident #1] from leaving the facility and he would not comply and took off walking.  She advised that another employee had also contacted this office in regards to the incident.  I advised her that he had been located.  She stated that [Resident #1] was not happy with being at the facility and has tried to leave many times.

CMS Ex. 22 at 4. 

In advance of Resident #1’s return to the facility, Petitioner’s maintenance director “secured [the] window in [Resident #1’s] room with [metal] screwed[-]in stoppers,” and ensured that “[a]ll windows in [the] facility were checked for secureness.”  CMS Ex. 20 at 16.  The administrator also directed that Resident #1 be “placed on 1 to 1 [observation] once returned [to the] facility.”  CMS Ex. 20 at 16.  The administrator reported that “[s]taff were in-serviced on social media, Facebook, [HIPAA], confidentiality and facility missing person policy and elopement assessment policy.”  CMS Ex. 20 at 16.  The administrator directed maintenance to “screw the plastic stops into the window frame in all rooms in Speret Hall and Sunshine Hall.”  CMS Ex. 20 at 16.  Petitioner also directed that the staff member providing one-on-one observation carry a “cell phone on their person and . . . call police immediately if [Resident #1] becomes agitated and tries to leave.”9   CMS Ex. 20 at 16. 

Petitioner initiated one-on-one observation of Resident #1 upon his return to the facility on May 3, 2018, which continued through May 7, 2018.  CMS Ex. 28 at 2-3.  On May 7,

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2018, Petitioner reassigned Resident #1 to a room with a window that egresses to a secure courtyard.  CMS Ex. 28 at 3.  Petitioner also installed a television in Resident #1’s room.  CMS Ex. 28 at 21.

Petitioner determined that Resident #1 had removed the plastic window guards on the window in his room by using a fork “as a tool.”  CMS Ex. 28 at 30; see CMS Ex. 28 at 2 (“A search of his room indicated that he had used a fork to and [sic] pry open the grids on his windows and cut out the screen.  He then took the entire window apart and appeared to have exited through the window.”). 

Discussion

10. Petitioner failed to comply with 42 C.F.R. § 483.25(d) when it did not take all reasonable steps to ensure that a resident with a foreseeable risk of elopement, to include having previously partially egressed  from a window, was given adequate supervision and assistance devices to prevent his elopement from the facility.

Pursuant to 42 C.F.R. § 483.25(d), a facility has specific obligations related to accident hazards and accidents.  That provision states, in relevant part:  

(d) Accidents. The facility must ensure that –

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

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

42 C.F.R. § 483.25(d).

The Departmental Appeals Board (DAB) has explained that the stated goal of 42 C.F.R. § 483.25(d)10 is “to prevent ‘accidents’ that might harm a SNF resident.”  Crawford Healthcare & Rehab.,DAB No. 2738 at 5 (2016).  A 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.”  Briarwood Nursing Ctr., DAB No. 2115 at 5 (2007); Guardian Health Care Ctr., DAB No. 1943 at 18 (2004).  The facility must anticipate what accidents might befall a resident and take steps to prevent them.  “A facility is permitted the flexibility to choose the methods it

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uses to prevent accidents, but the chosen methods must constitute an ‘adequate’ level of supervision under all the circumstances.”  Windsor Health Care Ctr., DAB No. 1902 at 5 (2003).  A facility must 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.”  Maine Veterans’ Home - Scarborough, DAB No. 1975 at 10 (2005) (explaining the inherent standard of care in section 483.25(d)(1)).  The provisions of section 483.25(d) “come into play when there are conditions in a facility that pose a known or foreseeable risk of accidental harm.”  Meridian Nursing Ctr.,DAB No. 2265 at 10 (2009), aff’d sub nom Fal-Meridian, Inc. v. U.S. Dep’t of Health & Human Servs.,604 F.3d 445 (7th Cir. 2010). 

The state agency determined that Petitioner was out of compliance with 42 C.F.R. § 483.25(d) because it “failed to provide adequate supervision to prevent the elopement of one resident (Resident #1), who was cognitively impaired, independently mobile but unsteady while walking, and assessed as being at high-risk for elopement.”  CMS Ex. 1 at 1-2.  The state agency determined that the “potential for serious harm occurred when Resident #1 was observed approximately one-half mile away from the facility, walking on a two-lane road in heavy rain before being noticed by a concerned citizen who alerted the facility.”11   CMS Ex. 1 at 2.  CMS relied on these survey findings when it imposed remedies for Petitioner’s noncompliance with 42 C.F.R. § 483.25(d).  CMS Ex. 5 at 1.

Petitioner does not dispute that Resident #1 eloped and was found hitchhiking along Route 62.  Nevertheless, Petitioner claims it adequately supervised Resident #1 and took “reasonable” steps to prevent elopement.  P. Br. at 9.  Petitioner argues “that in addition to placing [Resident #1] in the secure dementia unit, the physician issued orders for Donepezil (Aricept) – for dementia; Olanzapine (Zypexa) – an antipsychotic order for delirium and dementia with behavioral disturbances (routine and ‘as needed’ (PRN)); and Trazadone – depression,” and “the windows in the dementia unit were also equipped with plastic window guards that kept them from opening more than six inches.”  P. Br. at 10.  Petitioner argues that, based on the aforementioned actions, it “certainly took reasonable and appropriate steps to address [Resident #1’s] elopement risk and behaviors on admission in [his] baseline immediate care plan.”  P. Br. at 10. 

Petitioner argues that, in taking reasonable and appropriate steps, it provided “the least restrictive environment as possible.”  P. Br. at 10-11; see CMS Ex. 21 (Petitioner’s elopement assessment policy and procedure requiring that it “provide a safe environment, while using the least restrictive means.”).  Petitioner argues that there was “no indication”

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that additional interventions were warranted, such as “every fifteen-minute checks,” because Resident #1 “had exhibited no exit-seeking behaviors” in the week preceding his elopement and “appeared to be acclimating well to the unit as his periods of agitation were less and less frequent.”  P. Br. at 18.  Such a rosy portrayal of Resident #1’s behavior preceding his elopement starkly contrasts with Petitioner’s contemporaneous report to law enforcement that Resident #1 “was not happy with being at the facility and has tried to leave many times.”12   CMS Ex. 22 at 4 (emphasis added).  

CMS argues that there is no evidence that Petitioner complied with the care plan requirement that it “frequently” supervise Resident #1.  CMS Br. at 16.  CMS also argues that Petitioner should have initiated other interventions, such as window alarms and more frequent checks, to address Resident #1’s risk of elopement.  CMS Br. at 16.  Regardless of whether additional interventions were warranted, the evidence shows that Petitioner neither adhered to the existing care plan approaches nor had developed a means to ensure adherence with the care plan that was in place.  

Significantly, Resident #1’s elopement risk care plan required staff to “frequently” check on him.  CMS Ex. 17 at 13.  However, Petitioner did not define “frequently” for purposes of monitoring Resident #1 (i.e., how many times per hour).  CMS Ex. 17 at 13.  Further, Petitioner did not assign an individual staff member (or members) on each shift the responsibility of “frequently” checking on Resident #1, nor did it maintain any records, such as progress notes or logs, to ensure that staff frequently checked on him.  See CMS Ex. 28 at 8-9 (log established after Resident #1’s elopement documenting that Resident #1 was checked every 15 minutes).  Inasmuch as Resident #1 took apart a window, exited the window, and traveled by foot to a location approximately a half mile from the facility, all unbeknownst to the facility at the time, the evidence demonstrates that Petitioner did not frequently check on Resident #1.  In fact, based on the lack of an established protocol for frequently checking on Resident #1, it is unclear how (or when) Petitioner would have discovered Resident #1’s elopement, being that Resident #1 ambulated independently and traveled throughout the secure unit at will.  See CMS Exs. 17 at 6 (behavior symptoms care plan reporting a history of wandering); 20 at 6-7 (statements reporting that Resident #1 independently ambulated throughout various locations in Speret Hall, to include his room, the day room, and the dining room, with little attention by staff).

The care plan approach of requiring frequent checks of Resident #1 could have minimized, or eliminated, the opportunity for elopement by narrowing the amount of unsupervised time Resident #1 would have to both take apart his window and travel on foot away from the facility.  Resident #1 did not simply walk out an unlocked door when

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he eloped from the facility; he engaged in a laborious process to “[take] the entire window apart.”  CMS Ex. 20 at 16.  One staff member remarked “[t]he window was unlocked [and] the screen was cut out [and] the window stoppers were missing.”  CMS Ex. 20 at 8.  And the administrator reported that Resident #1 “used a fork and pried open the grids on his windows and cut out the screen to get out.”  CMS Ex. 20 at 16.  While the amount of time it took Resident #1 to take apart his window and exit the facility is unknown, it is apparent that frequent checks on him could have, and likely should have, thwarted this effort. 

Further, even after it took Resident #1, an elderly man with dementia, an undetermined amount of time to use a fork to take apart the window in his room, he then egressed through the window and then walked an indeterminate time and distance until he was spotted by a concerned motorist approximately a half mile from the facility.13   Petitioner did not learn of Resident #1’s elopement by conducting frequent checks on him, but rather, became aware that a resident may be missing after receiving a telephone call from the motorist.14   See CMS Ex. 20 at 5.  The period of time in which Petitioner did not check on Resident #1 was long enough for Resident #1 to both take apart his window and travel by foot until his discovery along the road.  The evidence indicates that Resident #1 was not frequently checked by staff, as required by his care plan.  See CMS Ex. 17 at 13.

The importance of the care plan approach of frequently checking Resident #1 cannot be understated, and Petitioner offered no response to CMS’s claim that “[t]here is no evidence that the facility . . . supervised [Resident #1] frequently as required by the plan of care.”  CMS Br. at 16.  Had Petitioner complied with the care plan requirement of frequent checks, it could have minimized the amount of time and opportunity for Resident #1 had to carry out his elopement.  Likewise, frequent checks may have enabled Petitioner to immediately initiate a search for Resident #1, thereby minimizing his risk of harm while outside the facility.  And had Resident #1 known that staff were frequently checking on him and that such a plan would likely be futile, he may have been discouraged from carrying out his elopement plan in the first place.

With respect to Petitioner’s claim that it “took reasonable and appropriate steps” to address Resident #1’s elopement risk by administering medications, to include

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psychotropic medications (P. Br. at 10), I observe that Resident #1’s April 2018 elopement risk care plan is silent for any approach involving the administration of psychotropic or other medications to support the goal that he would not exit the facility without staff knowledge.15   Compare CMS Ex. 17 at 13 with P. Br. at 10-13.  Petitioner has made no showing that the administration of medications could be a substitute for the level of supervision required by the care plan.

And to the extent that Petitioner argues that its installation of window guards addressed the risk of elopement and that it was unforeseeable that Resident #1 would devise a way to take apart his window with a fork (P. Br. at 10), I point out that this same resident, on April 10, 2018, nearly egressed from another resident’s room after he capably identified the sole window without window guards in Speret Hall.  CMS Exs. 18 at 9; 28 at 1.  Had a maintenance worker not been outside and in close proximity to that window, it is possible Resident #1 would have successfully eloped.  CMS Ex. 20 at 1 (statement of maintenance worker that he braced Resident #1’s shoulders to prevent his egress and “yelled for help from the nursing staff”). 

I need only determine whether Petitioner substantially complied with 42 C.F.R. § 483.25(d), which means that I must determine whether Petitioner ensured that the resident environment was as free of accident hazards as possible and that each resident received adequate supervision and assistance devices to prevent accidents.  42 C.F.R. § 483.25(d).  There is no doubt that Resident #1 was determined to exit the facility and had repeatedly attempted to do so.16   See CMS Ex. 22 at 4 (report to the Sheriff’s Office that Resident #1 tried to leave “many” times).  Petitioner correctly determined that frequent checks, among other approaches, supported its goal that Resident #1 “will not exit the facility without staff knowledge.”  CMS Ex. 17 at 13.  Yet, Petitioner failed to adhere to the first approach listed in the care plan, which may also be the most effective and consequential of the listed approaches.  Petitioner failed to provide Resident #1 with the supervision that it had deemed was necessary to prevent a foreseeable risk of elopement, and Resident #1 was thereby afforded the unsupervised time to take apart his window with a fork, exit the facility, and reach a roadside location where he attempted to hitchhike.  Petitioner has not demonstrated that it provided the supervision and assistance

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devices necessary to prevent the elopement of a resident who was a known elopement risk, and there is a sufficient basis to find noncompliance with the Medicare participation requirement at 42 C.F.R. § 483.25(d). 

11. The immediate jeopardy determination is not subject to review because the amount of the per-instance CMP is not affected by a determination of whether there is immediate jeopardy.

CMS concluded that Petitioner’s noncompliance with 42 C.F.R. § 483.25(d) posed immediate jeopardy at the “J” scope and severity level.  Because CMS imposed a PICMP for this deficiency, I lack authority to review CMS’s immediate jeopardy determination.

The regulations are clear that an ALJ may review CMS’s scope and severity findings (which includes a finding of immediate jeopardy) only if a successful challenge would affect:  (1) the range of the CMP amounts that CMS could collect; or (2) a finding of substandard quality of care that results in the loss of approval of a facility’s nurse aide training program (NATCEP).  42 C.F.R. § 498.3(b)(14), (d)(10)(i)-(ii); NMS Healthcare of Hagerstown, DAB No. 2603 at 6-7 (2014).  Neither of these factors apply.

Unlike per-day CMPs, under the regulations, there is only a single monetary range for a per-instance CMP regardless of whether or not immediate jeopardy is present.  42 C.F.R. §§ 488.408; 488.438(a)(2).  Consequently, because CMS imposed a PICMP against Petitioner, a successful challenge to the immediate jeopardy finding would not affect the range of CMP amounts that CMS could collect.  NMS Healthcare of Hagerstown, DAB No. 2603 at 6-7.  The evidence does not indicate that Petitioner had a NATCEP, and Petitioner does not argue that it had a NATCEP.  See P. Br. at 18-19.  For these reasons, the immediate jeopardy finding is not subject to appeal, and I may not review it.

12. A PICMP of $10,000 is a reasonable enforcement remedy for Petitioner’s noncompliance with 42 C.F.R. § 483.25(d).

If a facility is not in substantial compliance with program requirements, CMS has the authority to impose one or more of the enforcement remedies listed in 42 C.F.R. § 488.406, including a CMP.  In determining whether the CMP imposed against Petitioner is reasonable, I apply the factors listed in 42 C.F.R. § 488.438(f).  42 C.F.R. § 488.438(e)(3).  These factors include:  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.  42 C.F.R. § 488.438(f).  The absence of culpability is not a mitigating factor.  Id.  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. 

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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 above 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.  See, e.g., Barn Hill Care Ctr., DAB No. 1848 at 21 (2002).  Unless a facility contends that a particular regulatory factor does not support the CMP amount, an ALJ must sustain it.  Coquina Ctr., DAB No. 1860 (2002).

At the time of the survey, the baseline per-instance CMP range was from $1,000 to $10,000 prior to adjustment for inflation.  42 C.F.R. § 488.438(a)(2).  With inflation adjustment, the CMP range at the time of the survey was $2,097 to $20,965.  42 C.F.R. § 488.438(a)(2); 45 C.F.R. § 102.3; 82 Fed. Reg. 9174, 9182 (Feb. 3, 2017) (setting 2017 inflation adjustments).  CMS imposed a PICMP of $10,000 for the noncompliance with 42 C.F.R. § 483.25.  Petitioner does not argue with any specificity that the per-instance CMP is unreasonable, which alone gives reason to sustain it.  Coquina Ctr., DAB No. 1860; 42 C.F.R. §§ 488.404, 488.438(f). 

Petitioner does not argue that any regulatory factor renders the CMP unreasonable, and it merely claims that it “has overcome CMS’ prima facie case and has demonstrated that it was substantially compliant with [section 483.25(d)] at the time of the survey.”  P. Br. at 18.  Petitioner’s deficiency was at the immediate jeopardy level, and Petitioner failed to provide adequate supervision to a cognitively impaired resident who was able to exit the facility through the aid of a fork and a lack of supervision.  Not only did Resident #1 depart into dangerous conditions,17 but he remained missing from the facility without detection.  A PICMP of $10,000 in the middle range of the penalty range is entirely appropriate, if not unreasonably low, for a serious deficiency involving the successful elopement of a resident who was not adequately supervised.

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IV.   Conclusion

For the reasons discussed above, I find that the facility was not in substantial compliance with the Medicare participation requirements.  A PICMP of $10,000 is a reasonable enforcement remedy.  

• 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.
• 2. Scope and severity levels are used by CMS and state survey agencies when selecting remedies.  As relevant here, a scope and severity level of “J” indicates an isolated instance of immediate jeopardy to resident health or safety.  State Operations Manual,  Ch. 7, § 7400.3.1, https://www.cms.gov/Regulations-and-Guidance/Guidance/Manuals/Downloads/som107c07.pdf  (last visited October 22, 2021); see 42 C.F.R. § 488.408.
• 3. Substandard quality of care, as applicable here, “means one or more deficiencies related to participation requirements under . . . § 483.25 of this chapter ‘Quality of care’ . . . which constitute . . . immediate jeopardy to resident health or safety . . . .”  42 C.F.R. § 488.301.
• 4. This case was reassigned to me on March 8, 2019.
• 5. Although not captioned as a motion for summary judgment, Petitioner requested summary judgment in its favor.  P. Br. at 19.  CMS filed a reply to this request.
• 6. Petitioner submitted the testimony of a registered nurse (P. Ex. 9), the maintenance director (P. Ex. 10), and the plant maintenance manager for Schoer Property Management, Inc. (P. Ex. 12).
• 7. Because a hearing is unnecessary, I need not address the parties’ respective requests that summary judgment be granted in their favor.
• 8. The window guards consisted of “vinyl strips snapped within the window tracks.”  CMS Ex. 28 at 30.  Although Petitioner reported these snaps “cannot be removed by hand,” it appears that removal of these snaps does not require a precision tool.  CMS Ex. 28 at 30.
• 9. Petitioner later reported that it added (or else replaced) “L” brackets in common area windows and screwed in window track strips.  CMS Ex. 28 at 3.
• 10. Federal long-term care facility regulations substantially changed beginning on November 28, 2016.  81 Fed. Reg. 68,688 (Oct. 4, 2016).  The DAB referenced 42 C.F.R. § 483.25(h), which has since been redesignated as 42 C.F.R. § 483.25(d).
• 11. According to surveyor notes, the passerby who picked up Resident #1 stated that Resident #1’s “[c]lothes were wet because it was raining hard.”  CMS Ex. 24 at 5.  A National Weather Service – Cleveland report of the weather conditions on May 3, 2018 documents .42 inches of precipitation that day.  CMS Ex. 23 at 1.
• 12. I point out that circumstances of Resident #1’s elopement are inconsistent with Petitioner’s report to the Sheriff’s Office that staff “were attempting to stop [Resident #1] from leaving the facility and that he would not comply and took off walking.”  CMS Ex. 22 at 4.
• 13. The record does not indicate whether Resident #1 walked a half mile directly to the location where he was found on Route 62, or if he traversed a lengthier and less direct route that rainy evening.  Thus, the fact that Resident #1 was found approximately a half mile from the facility does not indicate the duration of his elopement.
• 14. After receiving the call, Petitioner conducted head counts of its residents and determined that Resident #1 was the missing resident.  CMS Ex. 20 at 5-8; see (motorist’s report that she was “concerned about an elderly gentleman walking on 62 hitchhiking she said he was tall with glasses”).
• 15. Resident #1’s “behavioral symptoms” care plan, which addressed wandering, attempting to open windows and pushing screens out (but not attempting to exit the windows), and getting upset and yelling at staff and other residents, included an approach of “[a]dminister medications.”  CMS Ex. 17 at 6.  However, Resident #1’s elopement risk care plan lacked any reference to pharmacological interventions.  CMS Ex. 17 at 13.
• 16. If there was any doubt regarding how determined Resident #1 was to leave the facility, on April 24, 2018, he became “very aggressive” and “hit [the nurse aide] in the chin with his fist” when she prevented him from exiting though a door.  CMS Ex. 18 at 6.
• 17. In addition to the expected risks attendant to environmental conditions, walking alongside a road, and being at risk for falls, I note that the possibility existed that Resident #1 could have succeeded in his efforts to hitchhike to an undetermined location.  He is fortunate that a concerned motorist cared for his well-being and brought him to a safe location.