SUBJECT:

Estes Nursing Facility Civic Center,

Petitioner,

Centers for Medicare & Medicaid Services.

DECISION ON REMAND

In this decision on remand I reaffirm the decision that I issued originally in this case in which I found that the preponderance of the evidence established that Petitioner, Estes Nursing Facility Civic Center, complied with Medicare participation requirements. Consequently, the Centers for Medicare & Medicaid Services (CMS) is not authorized to impose remedies against Petitioner.

I. Background

Petitioner is a skilled nursing facility in Birmingham, Alabama. It participates in the Medicare program. Its participation in Medicare is governed by sections 1819 and 1866 of the Social Security Act (Act) and by regulations at 42 C.F.R. Parts 483 and 488.

Petitioner was surveyed for compliance with Medicare participation requirements in a survey that extended from April 22, 2003, until its completion on May 5, 2003. CMS determined, based on the survey findings, that Petitioner failed to comply with Medicare participation requirements. It found that, during a period that ran from April 20, 2003 through April 24, 2003, Petitioner's noncompliance was so egregious as to comprise immediate jeopardy for Petitioner's residents. It found that Petitioner remained noncompliant between April 25 and May 10, 2003, albeit at a level of noncompliance that was less than immediate jeopardy. CMS determined to impose civil money penalties against Petitioner of $5,000 per day for each day of the April 20 - 24, 2003 period and $300 per day for each day of the April 25 - May 10, 2003 period.

Petitioner requested a hearing and the case was assigned to me for a hearing and a decision. I held a hearing in Birmingham, Alabama, on June 15, 2004. Each party then submitted post-hearing briefs. On October 22, 2004, I issued a decision in the case in which I found that the preponderance of the evidence that I had received at the hearing established that Petitioner had complied substantially with Medicare participation requirements. Consequently, no basis existed for CMS to impose remedies against Petitioner. Estes Nursing Facility Civic Center, CR1240 (2004).

CMS appealed my decision to the Departmental Appeals Board (Board). On October 13, 2005, an appellate panel of the Board issued a decision remanding the case back to me with specific instructions. Estes Nursing Facility Civic Center, DAB No. 2000 (2005). The appellate panel instructed me to consider certain specific items of evidence in the record of the hearing which it found I had not addressed in my original decision. It also directed me to clarify the legal standard by which I evaluated the evidence in the case.

I have reviewed the evidence of record including the specific items cited by the appellate panel in its decision. Additionally, I have reconsidered all of my findings pursuant to the applicable legal standard. I have not requested additional briefing or evidentiary submissions from the parties.

II. Analysis on remand

In my original decision I found the issue to be whether Petitioner complied with Medicare participation requirements between April 20 and May 10, 2003. The appellate panel's remand to me raised no new issues of fact or law. Consequently, the issue in this case remains the same as when I decided it originally. ⁽¹⁾

The question of Petitioner's compliance with Medicare requirements focuses on how Petitioner protected its residents, particularly its demented residents, against the possibility that they might attempt to elope from Petitioner's facility. That broad question subsumes the issue of whether Petitioner protected its residents against elopement from the windows in their rooms. CMS argued that Petitioner failed to protect its residents from a foreseeable hazard, that being the risk that a resident might attempt to elope via a window and as a consequence be seriously injured or die. The evidence presented at the hearing by both sides centered on, but was not limited exclusively to, an incident involving a resident who fell to her death from a window on the second floor of Petitioner's facility. The window had been equipped with a stop screw to prevent it from being opened more than six inches. However, after the resident fell it was determined that the screw had sheared off flush with its base, thereby allowing the window to be opened to a width of about 16 inches. By virtue of that, the resident was able to climb through the opened window and fell.

In my original decision I discussed: Petitioner's general precautions against resident elopement; its knowledge that its windows posed a potential hazard to residents; Petitioner's decision to install stop screws in those windows in order to limit the extent to which the windows could be opened by a resident; the nature of the screws and their function; how the windows were maintained by Petitioner's staff and the manner and extent to which the staff performed safety checks on the windows; and the circumstances that resulted in the fatal fall from a second floor window by a resident. I concluded that: Petitioner properly identified the potential risks associated with elopement in general and its windows in particular; provided reasonable safeguards to protect its residents; and maintained the windows in a reasonable fashion. At bottom, I concluded that the resident's fall was not due to a failure by Petitioner to protect its residents against accident hazards.

In its decision the appellate panel found that I had not considered certain evidence. That evidence consists of a surveyor's note of an interview conducted with a member of Petitioner's staff (CMS Exhibit (Ex.) 35, at 3 - 4); and an excerpt from the transcript (Tr.) of the hearing. Tr. at 133. ⁽²⁾ The evidence shows that Petitioner's staff acknowledged that there were occasions prior to the episode of the resident falling where stop screws were found to be missing from windows at Petitioner's facility or where stop screws were broken. The appellate panel directed that I evaluate this evidence in order to decide whether Petitioner had, in fact, taken all reasonable steps to protect its residents.

The appellate panel also expressed concern whether I had applied the proper legal standard. The panel directed me to address the issue of whether Petitioner's windows posed an accident hazard to all of Petitioner's residents and not just to the resident who fell. Additionally, it agreed that I had found correctly that the legal standard governing Petitioner's obligation to protect its residents against accident hazards required it to take all reasonable steps to protect against such hazards. However, it concluded that my decision was in some respects ambiguous because, in discussing what Petitioner did to protect its residents, I held only that Petitioner had taken reasonable actions to protect its residents without addressing the broader question of whether it had taken all possible actions that are reasonable. It directed that, on remand, I clarify whether I meant to say that Petitioner had taken all reasonable actions to protect all of its residents.

In this decision I evaluate the evidence under the legal standard expressed by the appellate panel. I decide that Petitioner took all reasonable steps to protect its residents against the possibility of falling from its windows. And, I consider the evidence in terms of what it shows about how Petitioner protected residents of its facility, not just the resident who fell. That is the identical standard that I used to decide this case originally. As the appellate panel noted, I stated the standard correctly at the outset of my first decision in this case. I had intended my decision to reflect application of that standard.

In my original decision I found - citing the testimony of CMS's own expert - that Petitioner's duty to its residents consisted of having a facility in which all exit doors are secured, thus preventing a resident from eloping through a doorway, and in which all windows are secured, thereby preventing elopement through a window. CMS Ex. 64, at 5. That is a standard of general applicability and it covers all of the reasonable precautions that a facility might take to protect against elopement, including precautions to protect against the possibility of a resident eloping through a window.

The safety precautions that Petitioner undertook at its facility plainly were intended to address safety hazards as they applied to all of its residents and not just the resident who fell. Those precautions included: putting stop screws in all of the facility's windows and not just in the window of the room of the one resident whose fall and death prompted the finding of noncompliance; inspecting all of the facility's windows each day; having Petitioner's management supervisor perform monthly safety checks that were in addition to daily inspections; and putting into effect anti-elopement precautions that applied to all of the residents and not just to the resident who fell, including installing keypad-activated delayed access doors to the facility.

Obviously, the evidence relating to the resident who fell is relevant to the issue of whether Petitioner took all reasonable measures to protect its residents against accident hazards. However, the evidence relating to this resident's accident is merely a part of the overall picture of Petitioner's actions. It might be reasonable to generalize from the actions that Petitioner took with respect to the resident. But, in fact, the evidence in this case encompassed more than just those actions. I based my original decision, and I base this one, on all of the evidence.

In my original decision I analyzed the clinical record of the resident who fell in order to decide whether Petitioner's staff knew or should have known that their general precautions against elopement were inadequate to protect its residents. I found that nothing in the resident's record put Petitioner's staff on notice that their general precautions would be insufficient in that resident's case. But, I did not limit my analysis to the resident in question. Rather, I discussed the overall adequacy of Petitioner's precautions. I concluded there, and I reiterate here, that Petitioner's overall precautions against elopement satisfy the test stated by CMS's expert and Petitioner's obligation under the regulations to protect residents against accident hazards.

Turning to the specific evidence that the appellate panel cited, I find it to be insufficient to alter my decision. In my original decision I held that the approach that Petitioner used to prevent its windows from being opened too wide was a reasonable safety precaution. And, although I held that Petitioner undertook all reasonable steps to protect its residents, I did not hold that the action Petitioner undertook made its windows elopement-proof. I held there, and I reiterate, that such would have been impossible to accomplish short of putting bars on the windows or putting residents in windowless rooms. Windows are made from glass and glass easily can be shattered. Any resident who is sufficiently determined to elope via a window, including any of the windows of Petitioner's facility, can easily do so simply by breaking out the window's glass. What Petitioner did fulfilled its obligation to do everything that was reasonable to protect its residents given that no approach, short of barring or bricking up the windows would have protected residents completely.

In my original decision I held that Petitioner had discharged its obligation to protect residents from hazards relating to its windows by putting stop screws in the window frames, in order to prevent the windows from being opened more than six inches, and by inspecting the frames and screws daily. The screws were six-sided sheet metal screws with a tensile strength in excess of 150 pounds. Tr. at 133. This meant that the screws were strong enough to resist all but the most forceful efforts to overwhelm them. In my original decision I held that it was possible, by dint of main force, to break a stop screw. That could be accomplished through leverage (it was speculated but not proven that the resident who fell might have used the metal leg of a stool as a lever to pry open her room window) or by repeated or especially forceful efforts to slam a sliding pane against a screw. Such a result could have been accomplished by a resident or a staff member who was sufficiently determined to force a window open. Additionally, it was possible that a screw could be sufficiently weakened over the passage of time by metal fatigue so that it would break with minimal force.

Petitioner was aware of these possibilities. That is made clear by the fact that its staff inspected its windows daily and also by the fact that its maintenance supervisor conducted monthly safety checks.

Had Petitioner put stop screws in its windows and done nothing else to protect against resident elopement I would be inclined to hold that its action was insufficient in light of evidence showing that the screws could be defeated by sufficient use of force. But, by assessing residents for elopement risks, by putting general safeguards into place to prevent residents from eloping, by inspecting windows daily, and by performing additional monthly window checks, Petitioner fulfilled its obligation to protect its residents from hazards.

The evidence cited by the appellate panel in its decision does not detract from my conclusions. In an interview with a surveyor Petitioner's maintenance supervisor acknowledged that sometimes he had found a stop screw to be missing. CMS Ex. 35, at 3. He speculated that this might be the consequence of a new employee attempting to open a window. Id. At the hearing, the projects administrator for the corporation that owns Petitioner was asked if he was aware that Petitioner's maintenance supervisor had found stop screws to be broken in the past. Tr. at 133. His answer was: "we all do. That's why we check them." Id. He qualified that answer by observing that he'd observed broken screws in other facilities. I infer from that answer that he had not observed them in Petitioner's facility.

The evidence cited by the appellate panel simply underscores my original conclusion in this case. Petitioner's system of window stop screws was not, in and of itself, an airtight guarantee that Petitioner's windows were elopement-proof. Screws could be broken if enough force was utilized. Windows could be used as exits if the glass was broken. Regular window inspections certainly functioned to minimize the risk of elopement through windows. But, as I found in my original decision and as I find again here, no system could be perfect. That is because there would always be ways to defeat the screws, either by forcing the windows open, or simply by breaking the window panes.

So long as Petitioner's facility has windows without bars a resident will be able to attain access outside of the facility through a window if he or she is sufficiently determined to do so.

The fact that Petitioner's staff conducted daily inspections of the windows and found occasional broken or missing screws is not proof that the system employed by Petitioner was a failure. To the contrary, I conclude that the detection of occasional missing or broken screws by the staff is evidence that Petitioner's system worked, in the sense that Petitioner detected and corrected problems on a daily basis. Obviously, problems could develop in between inspections as they did in the case of the resident who fell. But, no safety system could have prevented that short of keeping the windows under continuous surveillance, barring them, or eliminating them. ⁽³⁾

CMS found Petitioner to have corrected its alleged deficiency after it installed larger stop screws in the windows (and a device to prevent panes from being lifted over stop screws). The fact that Petitioner addressed the alleged deficiency by installing larger stop screws raises the question of whether its detection of occasional missing or broken screws at dates prior to the survey put it on notice that it should have installed larger screws prior to the survey.

I am not persuaded that the occasional detection of missing or broken screws by Petitioner's staff put Petitioner on notice prior to the survey that it needed to install larger screws in its windows. First, there is nothing in the record to support an inference that larger screws might be less vulnerable to falling out of frames than were the screws that Petitioner used prior to the survey. Presumably, screws fall out of sockets because they are loosened. Nothing in the record of this case suggests that larger screws are less vulnerable to this problem than are smaller ones. Nor am I persuaded that larger screws necessarily would be meaningfully less vulnerable to becoming sheared off as a result of hidden defects, repeated impacts, a single violent impact, or leveraged force, than were the smaller screws that Petitioner used prior to the survey. Logically, one might assume that a larger screw would be more resistant to force than would be a smaller one. How much more resistant the larger screw would be is but a matter for speculation absent any evidence showing the relative tensile strengths of the screws used before and after the survey and the amount of force that would be required to defeat a larger screw. Absent such evidence it would simply be speculation to conclude that a larger screw is significantly less vulnerable to the forces that defeated the smaller screws. Neither side presented evidence to address that issue and I will not speculate about it absent such evidence. ⁽⁴⁾

Steven T. Kessel

Administrative Law Judge

1. In my original decision I observed that there were other potential issues that would arise only if I found that Petitioner failed to comply substantially with participation requirements. I do not alter or amend that conclusion here.

2. The surveyor also paraphrased her note in an affidavit. CMS Ex. 65.

3. The window inspection system employed by Petitioner is analogous to what skilled nursing facilities do to ensure that bed and wheelchair alarms function effectively. Such alarms are used to warn facility staff of attempts by demented and/or severely disabled residents to get out of beds or wheelchairs in situations where the residents' personal safety would be compromised. Typically, facilities check the alarm batteries daily to ensure that the alarms are functioning correctly. In other cases I have held that a failure by the facility staff to do so is inadequate protection of residents' safety. See Madison Health Care, Inc., DAB CR1325 (2005). But, the fact that daily checks are necessary underscores the reality that, occasionally, alarm batteries will fail despite daily checks. Clearly, a facility can be diligent and do all that is reasonable to ensure that alarm batteries work and a battery might still fail despite these efforts. Such a failure in the face of a facility's diligent checking of batteries would not evidence deficient conduct by the facility.

4. The fact that CMS accepted the use of larger screws as a correction does not mean necessarily that larger screws were more effective than the ones used previously by Petitioner. CMS offered no evidence to show that it had evaluated the strength of the larger screws and had concluded, objectively, that they were more effective than were their predecessors.