SUBJECT:

The Care Center at Martins Run,

Petitioner,

Centers for Medicare & Medicaid Services.

DECISION

The Care Center at Martins Run, Petitioner, requested a hearing to challenge the determination, made by the Centers for Medicare & Medicaid Services (CMS), to impose against it a per instance civil money penalty (CMP) of $5,000, based on deficiencies cited following a survey completed on January 9, 2004. For the reasons set forth below, I decide that CMS had the authority to impose the CMP because Petitioner was not in substantial compliance with a Medicare participation requirement.

I. BACKGROUND

Petitioner is a skilled nursing facility located in Media, Pennsylvania. CMS determined that Petitioner was not in substantial compliance with federal participation requirements for long term care facilities participating in the Medicare and Medicaid programs based on a survey by the Pennsylvania Department of Health (State survey agency) which was completed on January 9, 2004. The State survey agency found Petitioner out of substantial compliance with the participation requirement at 42 C.F.R. � 483.25(h)(1) (F Tag 323 on the statement of deficiencies) and found further that the noncompliance constituted immediate jeopardy. ⁽¹⁾ CMS exhibit (Ex.) 7. By letter dated February 26, 2004, CMS informed Petitioner that it would be imposing a remedy based on the deficiency (the $5,000 per instance CMP recommended by the State survey agency for F Tag 323). CMS Ex. 6.

Petitioner requested a hearing and the case was assigned to me for hearing and decision. I held a hearing in the case in Philadelphia, Pennsylvania, from April 4-6, 2005, and continued the hearing on May 6, 2005. ⁽²⁾ Testifying at the hearing for CMS were: Thomas J. Murray, at the time of the survey an Assistant Fire Chief and Fire Marshal with the Broomall Fire Company and a Lieutenant with the Marple Township Police Department (Transcript (Tr.). 43-67, May 6 Tr. 7-73); Carl E. Drake, Chief of the Broomall Fire Company (Tr. 67-101); Donna McPartland, R.N. and Rosemary K. Moyer, R.N., surveyors with the State survey agency (Tr. 102-80, 181-248); and Frank Scipione, an expert in fire safety (Tr. 261-308). Testifying for Petitioner were: John L. Boskoski, Petitioner's Director of Maintenance and Security (Tr. 310-458); Margaret McMullen, Petitioner's Director of Nursing (Tr. 460-527); Robert Buckley, an expert in the cause and origin of fires (Tr. 528-677); and Linda Sterthous, Petitioner's Executive Director (Tr. 678-812). ⁽³⁾ I admitted CMS Exs. 1-15, 18-36, and 39-41, and Petitioner's (P.) Exs. 1-29, and 31-37. Tr. 9-17, 827-28. CMS submitted a brief (CMS Br.), to which Petitioner responded (P. Br.), and CMS replied (CMS Reply Br.). Petitioner did not request the opportunity to file a sur-reply, and I closed the record of the case on November 23, 2005.

II. APPLICABLE LAW

Long term care providers, such as Petitioner, participate in the Medicare program by entering into provider agreements with the United States Department of Health and Human Services (HHS). Requirements of participation are imposed by statute and regulation. Act, sections 1819, 1919; 42 C.F.R. Parts 483, 488, and 489. In order to continue to participate in Medicare (and Medicaid), providers must remain in substantial compliance with participation requirements. The regulations define "substantial compliance" as "a level of compliance with the requirements of participation such that any identified deficiencies pose no greater risk to resident health or safety than the potential for causing minimal harm." 42 C.F.R. � 488.301.

The purpose behind imposing remedies for noncompliance is to "ensure prompt compliance with program requirements." 42 C.F.R. � 488.402(a). Remedies are applied in light of the scope and severity of the noncompliance found during a survey. The regulations specify that when penalties are imposed for an instance of noncompliance, the penalties will be in the range of $1,000 to $10,000 per instance. 42 C.F.R. � 488.438(a)(2). When penalties are imposed on a daily basis, the CMP imposed against a provider will fall into one of two broad ranges of penalties. 42 C.F.R. �� 488.408; 488.438. The lower range of CMPs, from $50 per day to $3,000 per day, is reserved for deficiencies that do not constitute immediate jeopardy, but either cause actual harm to residents, or cause no actual harm, but have the potential for causing more than minimal harm. 42 C.F.R. � 488.438(a)(1)(ii). The upper range of CMPs, from $3,050 per day to $10,000 per day, is reserved for deficiencies that constitute immediate jeopardy to a provider's residents, and, in some circumstances, for repeated deficiencies. 42 C.F.R. �� 488.438(a)(1)(i), (d)(2). The regulations define "immediate jeopardy" as "a situation in which 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.

In setting the amount of a CMP, CMS considers: (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. The absence of culpability is not a mitigating factor. 42 C.F.R. � 488.438(f). The factors found at 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, specifically with reference to the cited deficiencies.

When CMS imposes an enforcement remedy, the facility has a right to appeal the "certification of noncompliance leading to an enforcement remedy." 42 C.F.R. � 488.408(g)(1); see also 42 C.F.R. �� 488.330(e) and 498.3. However, a facility may not appeal the choice of remedies by CMS or the factors CMS considers when choosing remedies. 42 C.F.R. � 488.408(g)(2). A facility may only challenge the scope and severity level of noncompliance found by CMS if a successful challenge would affect the amount of the CMP CMS could collect or affect the facility's nurse aide training program. 42 C.F.R. � 498.3(b)(14).

If an administrative law judge (ALJ) finds that a basis for imposing a CMP exists, the ALJ may not set the penalty at zero or reduce the penalty to zero. 42 C.F.R. � 488.438(e).

The preponderance of the evidence standard is applied to resolve disputed issues of fact, except as provided by 42 C.F.R. � 498.60(c)(2), which states that, in CMP cases, CMS's determination as to the level of noncompliance must be upheld unless it is clearly erroneous. CMS bears the burden of coming forward with evidence sufficient to establish a prima facie case that a provider was not in substantial compliance with the participation requirements at issue. Once CMS has established a prima facie case, the provider has the ultimate burden of persuasion: to prevail, the provider must prove by a preponderance of the evidence that it was in substantial compliance with each participation requirement at issue. Batavia Nursing and Convalescent Center, DAB No. 1904 (2004); Batavia Nursing and Convalescent Inn, DAB No. 1911 (2004); Hillman Rehabilitation Center, DAB No. 1611 (1997), aff'd, Hillman Rehabilitation Center v. United States, No. 98-3789 (GEB) (D.N.J. May 13, 1999); see South Valley Health Care Center, DAB No. 1691 (1999), aff'd, South Valley Health Care Center v. HCFA, 223 F.3d 1221 (10^th Cir. 2000).

CMS seeks to impose a per instance CMP here. Unlike in a situation where CMS imposes a per day CMP, there is no distinction in the regulations between the range of per instance CMPs available to CMS for deficiencies CMS determines to constitute immediate jeopardy and those CMS does not determine to constitute immediate jeopardy; the range is between $1,000 to $10,000 for per instance CMPs whether or not CMS determines a deficiency constitutes immediate jeopardy. Since the regulations limit my review of the scope and severity determination to cases where a successful challenge would affect the range of CMPs applicable to a deficiency, it is beyond the scope of my review to decide whether the immediate jeopardy level citation is appropriate or not, and I do not address it here. ⁽⁴⁾

III. STIPULATIONS

The parties have stipulated (and the following is reproduced verbatim from their stipulation) that:

1. On January 9, 2004, a heat pump located in room 148 in the West Wing of the Care Center at Martins Run malfunctioned, causing a fire.

2. CR2, the 96 year old resident, who occupied room 148, sustained serious injuries as a result of the fire, including burns and a bronchial blister.

3. CR2 was transported by ambulance to Crozer-Chester Medical Center ("Crozer") where she was intubated and placed on a ventilator in the Emergency Room. She was then admitted to Crozer's Burn Treatment Unit and treated for her serious inhalation injuries.

March 21, 2005 Stipulation Regarding Injuries Sustained By Resident, CR2.

IV. FINDINGS OF FACT AND CONCLUSIONS OF LAW

1. Petitioner was out of substantial compliance with the participation requirement at 42 C.F.R. � 483.25(h)(1) (F Tag 323), as of the survey ending on January 9, 2004.

F Tag 323 reflects a deficiency at 42 C.F.R. � 483.25(h)(1). This regulation provides that a facility must ensure that "[t]he resident environment remains as free of accident hazards as is possible." The Departmental Appeals Board (Board) has opined that,

As our prior cases have recognized, a facility's duty to eliminate accident hazards under section 483.25(h)(1) must be read in the context of the preamble to the Quality of Care regulations. This preamble requires care and services necessary for residents to attain or maintain "the highest practicable . . . physical or mental well being." 42 C.F.R. � 485.25 (emphasis added); Woodstock Care Center v. CMS, DAB No. 1726, aff'd, Woodstock Care Ctr. v. Thompson, 363 F.3d 583 (6^th Cir. 2003). In Woodstock, based in part on this preamble language, the Board concluded "Thus, while the regulations do not make facilities unconditional guarantors of favorable outcomes, the quality of care provisions do impose an affirmative duty to provide services . . . designed to achieve those outcomes to the highest practicable degree." DAB No. 1726, at 25. The Sixth Circuit upheld the Board and specifically rejected Woodstock's argument that common law standards of reasonable care governed. "The regulations can and do set a higher standard than the common law." 363 F.3d at 590. The Sixth Circuit held that a facility must take "all reasonable precautions against residents' accidents." Woodstock Care Ctr. v. Thompson, 363 F.3d at 589 (emphasis in original).

Estes Nursing Facility Civic Center, DAB No. 2000, at 6-7 (2005).

The statement of deficiencies asserts that "[b]ased on observation, interview with facility staff, review of facility policies, facility documentation, and hospital records, it was determined that the facility failed to ensure the prevention of fire safety hazards was enforced. The facility's failure placed the health and safety of 46 of 46 residents in immediate jeopardy. A fire occurred on January 9, 2004, which resulted in one resident [Resident CR2] being admitted to a hospital burn unit." CMS Ex. 7, at 1.

I want to make it clear at the outset that Petitioner is not being cited for any deficiencies with regard to the origin and cause of the fire itself or for the injury to and ultimate demise of Resident CR2. The fire, as the State survey agency recognized (P. Ex. 1, at 1), "was a devastating accident that the facility couldn't have prevented from happening." Further, Petitioner appears to have done a good job providing medical care for and re-housing its residents within the facility after the fire. I also have no doubt from the testimony of Petitioner's witnesses Ms. Sterthous, Ms. McMullen, and Mr. Boskoski, that they were genuinely concerned with the welfare of the residents on the day of the fire and that they were trying to do the best they could in an extremely difficult situation. My inquiry here is limited and goes to whether, after the fire, Petitioner failed to ensure that its resident environment remained as free of accident hazards as is possible. To decide, I must determine whether Petitioner took all reasonable precautions against resident accidents when, as CMS alleges and I discuss below, Petitioner failed to remove furniture and other combustibles from proximity to heaters in its residents' rooms. After reviewing the record in its entirety (consisting of the transcript of hearing, the documentary exhibits, and the arguments presented in the parties' briefs) I find that the preponderance of the evidence shows Petitioner should have removed, and failed to remove, combustibles from near the heat pumps in its facility before being told by the surveyors to do so, that it thus did not take all reasonable precautions against resident accidents, and that its resident environment did not remain as free of accident hazards as possible. Below, I discuss the time-line of events which led up to the fire, the events unfolding on the day of the fire, and some of the fire's aftermath, and then explain my determination regarding Petitioner's noncompliance.

A. Circumstances surrounding the fire on January 9, 2004, and its aftermath.

Petitioner is part of a large, not-for-profit continuing care retirement community, which consists of assisted living and independent apartments, as well as the skilled nursing facility at issue here, which has a licensed capacity of 60 beds. Tr. 679. Resident rooms in all areas of the community are heated primarily by heat pumps. Tr. 312. Approximately 95% of the heat pumps at the facility operate with auxiliary heating coils, which come on only when the temperature is below approximately 40 degrees Fahrenheit. Tr. 318. On the day of the fire there were approximately 350 heat pumps in the complex, including heat pump units manufactured by General Electric, York, Carrier, and two models by Friedrich, the "T" series and the "P" series (the T series being the original model at the facility and the P series replacing it in approximately 2002). Tr. 316, 319. Specifically, there were 54 P series heaters in the complex, nine of them in the Care Center (as opposed to the assisted living or independent living apartments), with three of the units installed in resident rooms and six units in areas of the Care Center later rendered uninhabitable by the fire. CMS Ex. 8, at 20; CMS Ex. 26, at 1; Tr. 709-10.

In October of 2003, Mr. Boskoski recognized that the Friedrich heat pumps, especially the P series, required more service calls. Tr. 320; CMS Ex. 24, at 3. At the time he questioned the dependability of the systems, but he did not believe a fire hazard existed. Tr. 320, 332, 420, 451. On October 23, 2003, Mr. Boskoski informed the manufacturer, Friedrich, among other issues, that a blower wheel "melted" in a P series and a grill and LRA on a compressor "melted" in a T series. P. Ex. 5, at 40. Mr. Boskoski later testified that when he cited "melted" he really meant "warped," and that use of the word melted was "a bit strong." Tr. 331-32. However, he did not consider these "melted" components to be a fire hazard because the "safeties" in the heat pump shut the unit down when there was a threat. Tr. 332.

On December 12, 2003, a Friedrich P series heat pump malfunctioned, causing a fire in one of the independent apartments. Tr. 334-35, 376; CMS Ex. 10, at 7-8. The fire caused property damage, but no injuries. CMS Ex. 11, at 10. The manufacturer, Friedrich, assessed the cause of the malfunction and had the heating coils replaced in all P series heat pumps by Sassmore & Associates, its authorized maintenance company. Tr. 338-39; P. Ex. 2, at 2; P. Ex. 3; P. Ex. 32, at 1 � 4. Petitioner relied upon Friedrich's assurances that the units were safe and would not cause another fire. Tr. 391.

After the December 12, 2003 fire, Fire Chief Drake toured the independent living apartment in which the fire occurred with Mr. Boskoski. Tr. 69. Fire Chief Drake testified that he told Mr. Boskoski that the fire started in the heater and that what caused the fire to spread were combustibles close to the heater. Tr. 70. Fire Chief Drake testified that his understanding was that after the discussion combustibles would no longer be stored around and on top of heaters. Tr. 71. Although Mr. Boskoski confirmed that he toured the scene with Fire Chief Drake, he testified that he did not recall discussing the combustibles. ⁽⁵⁾ Tr. 337, 420.

On January 9, 2004, in the early morning hours, a fire originated in a Friedrich P series heat pump in Room 148 of Petitioner's West Wing. ⁽⁶⁾ The Broomall Fire Company (the responding fire department) run report indicates that fire personnel were dispatched at 4:47 a.m. On arrival, they found smoke in the West Wing, two sprinkler heads activated in Room 148 (which sprinklers extinguished the fire), and multiple residents trapped in their rooms. Petitioner's employees had broken out the window in Room 148 from outside the facility and the resident in the room, CR2, was removed by a Marple Township police officer (police officers arrived at the facility at 4:51 a.m.) and CR2 was then transferred to the hospital. Seventeen residents were removed from a smoke filled hallway to a safe hallway by police and fire personnel and protected in place, and emergency personnel conducted triage. An additional resident was then transported to hospital. Fire personnel conducted ventilation and salvage operations in the West Wing, and these operations were then completed by building representatives. Water and smoke damage was extensive in the hallway and rooms across from and adjacent to the fire room. CMS Ex. 10, at 4-5; CMS Ex. 11, at 6-7.

Ms. Sterthous and Mr. Boskoski testified that they were notified of the fire alarm about 4:45-4:48 a.m. and, upon ascertaining that there actually was a fire, contacted each other and staff to formulate an action plan even before reaching the facility. Tr. 340-41, 682-83. On his way to the facility, Mr. Boskoski called in his maintenance supervisor, Carl Reckner. Tr. 341. Ms. Sterthous called Ms. McMullen to report in right away. Tr. 683-84. Ms. Sterthous reached the facility at about 5:20 a.m. She testified that she assessed the situation and made sure resident needs were addressed. Tr. 686-88. She set up a command center in an office near the nurses' station and worked initially to relocate residents at an EMT's directive. Tr. 690-91. That turned out to be unnecessary, however. She also called in additional staff, including all members of Petitioner's executive management team, her secretary, and other administrative employees. Tr. 692-93, 696.

At 5:30 a.m., Ms. Sterthous had a brief conversation with Fire Chief Drake. He told her what the fire department was doing and that he would take her on a fire scene tour later. Tr. 75, 687. Before leaving at 6:49 a.m., Fire Chief Drake took Ms. Sterthous on a tour of the fire site. Tr. 75. He "showed her where the fire started, how it went up the wall, how it set the bedding on fire and the combustibles in front of the heater. There was a chair that was very specific in front of that heater that caught on fire and helped spread that fire." Id. Fire Chief Drake testified that he instructed Ms. Sterthous that the combustibles "should be moved at least two feet away from the heaters." Tr. 96. Fire Chief Drake testified he understood that upper management would be getting combustibles away from the heaters and would act quickly because of the fire the previous month. Tr. 80, 94-96. However, he also testified that he did not give Ms. Sterthous a directive to do so. Tr. 89-90, 95. He did ask Ms. Sterthous to meet with him and Fire Marshal Murray about noon to discuss issues related to the fire. ⁽⁷⁾ Ms. Sterthous recalls that "some point early in that morning" Fire Chief Drake showed her the fire scene in Room 148 and "indicated the sort of pathway of the fire." Tr. 698.

Ms. McMullen arrived between 6:00 and 6:30 a.m. She attended to resident needs, checked residents who had been displaced, ordered the nurses to take residents' vital signs every 15 minutes, and arranged for extra staffing to assure staff could do the 15-minute vital sign checks. Tr. 463-65, 694-95. She made sure residents had blankets and were kept warm. Tr. 464. She made rounds with the medical director, who wrote a progress note on everyone, a process completed about 8:30-9:00 a.m. Tr. 465, 693. She also helped Ms. Sterthous relocate the residents. Tr. 466, 695-96.

Mr. Boskoski arrived about 7:00 a.m. and Ms. Sterthous put him in charge of "stabilizing the facility." Tr. 696. Mr. Boskoski put strategies in place to protect the residents. He asked Mr. Reckner to check the Friedrich P units and to lower the limit switches on the Friedrich P units so the heat pack would not come on unless it was 25 degrees or colder outside. Tr. 409-10, 434-45. At the same time, he told Mr. Reckner to make sure nothing was in front of the units. Tr. 409-10. He supervised restoration of the fire safety systems and clean-up of the facility, getting housekeeping and maintenance crews cleaning the West Wing, moving furniture to facilitate water extraction, and checking rooms for electrical hazards and calling vendors to locate and secure delivery of replacement heat pumps. He called Foulke Security to set up a fire watch (which was not in place until afternoon). Tr. 345-47; CMS Ex. 22, at 2.

Between 8:30 and 9:00 a.m., Ms. McMullen and Ms. Sterthous notified the State survey agency about the fire. Tr. 467.

Between 9:00 and 10:00 a.m., Ms. McMullen testified she asked one of her nurses, Joyce Lyman, to make sure there was nothing near the heaters. Tr. 501-02. She asked Ms. Lyman to remove any such items as "a safety precaution." Tr. 507. She intended to tell her other staff but did not have time to do so until about 3:00 p.m. Tr. 501-02, 507. Ms. Sterthous testified that this direction "would be perfectly appropriate." Tr. 782.

At 10:45 a.m., Mr. Buckley, an expert in the cause and origin of fires (who had been contacted by Petitioner's attorney) arrived. Tr. 542-43. Mr. Buckley examined Room 148 and determined that the fire originated in the heat pump unit itself. Tr. 546-48. Mr. Buckley determined that the fire ignited the curtains and moved to the chair adjacent to the heater. Tr. 550, 586, 636-38. The fire spread, feeding on paint and curtains, until the temperatures rose enough to set off the sprinklers. Mr. Buckley's assessment was consistent with that of Fire Chief Drake and Fire Marshal Murray. Fire Marshal Murray stated in his supplement to the police report of the fire:

The fire appears to have originated in the area of a built in heater/air conditioner. A closer examination points patterns consistent with the fire originating inside the heater and quickly spreading up the wall, igniting the curtins (sic) and a chair directly in front of the heater. Two sprinkler heads in the room activated extinguishing the fire before it could spread any further . . . . This heater [Friedrich P model] appears to be the same model as the one involved in the fire in December of 2003 . . . . They appear to be similar in that the fires both start within the heater and extend up the wall. Both units were recently installed. Proir [sic] to these two fires this complex has not experienced any serious fires involving their heating units.

CMS Ex. 11, at 7.

The State surveyors, Ms. McPartland and Ms. Moyer, arrived about 10:30 a.m. When they arrived the scene was "a little bit chaotic." Tr. 189. Ms. McMullen met them and they also met with Ms. Sterthous and Mr. Boskoski. The surveyors testified that Mr. Boskoski informed them that preliminary findings indicated the fire started in the heat pump itself, the electrical elements stuck in a closed position, the unit overheated and caught a chair on fire. Tr. 108, 194-95, 215, 349; CMS Ex. 8, at 1. Mr. Boskoski told them that after the earlier fire new heat packets were installed, which he was assured would resolve any problems with the units. Tr. 338, 340. Mr. Boskoski told them that they weren't sure exactly what had caused the fire at that time. He stated that they were in the middle of an investigation and there were no answers yet. Tr. 241.

Immediately after the meeting the surveyors toured the facility and "noticed that the facility had chairs, clothing, foam positioning pads up next to the heating systems, next to heat pumps." Tr. 111; CMS Ex. 19, at 20-26. They also viewed Room 148. During the tour of Room 148, Ms. Moyer testified that "[T]here was a melted radio, the melted side of a dresser, a chair that there was nothing left but the wood frame. The stuffing had been burnt up that was in it. The bed was brown, and there was an image on the sheet of where the resident had been." Tr. 189; CMS Ex. 19, at 12-16. In their walk through the West Wing they saw someone taking pictures (who, apparently, was Mr. Buckley). They spoke to Mr. Buckley. Mr. Buckley told the surveyors that he was in the middle of an investigation and had no answers yet. Tr. 241.

At about 11:45 a.m., Mr. Buckley experimented with a P series heat pump exemplar unit in Petitioner's maintenance shop. Tr. 637. He showed Ms. Sterthous and Mr. Boskoski how, when the fan control knob was in the same position that the control knob in Room 148 was in, mid-position between the high and low heat setting, the fan shut off but the heating coil continued to heat and, due to air not blowing over it, started to turn cherry red, and smoke came from the plastic parts. Tr. 359, 558, 601, 645-647. The surveyors did not attend this demonstration, nor were they informed of this demonstration. Tr. 427. Additional testing was done at Dawson Engineering after January 9, 2004, which confirmed Mr. Buckley's theory as to the cause of the fire. Tr. 560-61; P. Ex. 7.

At noon, Fire Marshal Murray, Fire Chief Drake, and an assistant fire marshal met with Ms. Sterthous and Ms. McMullen. ⁽⁸⁾ Tr. 716. Fire Marshal Murray testified that he told the facility representatives that they "needed to remove any combustibles from the vicinity of the heaters, that obviously there was a problem and that the combustibles were contributing to that problem. We needed the combustibles moved away from the heaters." Tr. 49. Fire Marshal Murray did not specify any particular type of heater. Id. Fire Marshal Murray testified that Petitioner "seemed receptive to the issue. It appeared to me that they understood the issue and that they would take care of it. There was no argument from them whatsoever that it would be a problem." Tr. 65. Fire Marshal Murray testified he told them that combustibles had to be moved "right away." May 6 Tr. 56. By that he meant that they should move combustibles near heaters in all parts of the Martins Run complex. May 6 Tr. 8. He testified it was "absolutely not logical" to create a limitation to just the apartments or to the Friedrich P heat pumps. May 6 Tr. 65. He testified he was concerned about "all self-contained units in the individual rooms." May 6 Tr. 34. He testified that by the noon meeting "[w]e could definitely identify the P-series as problematic. We couldn't rule out the others as a potential problem." May 6 Tr. 62.

Fire Marshal Murray did not, however, specify a time-frame by which Petitioner had to move furniture away from heat pumps and noted that Petitioner would have complied with his directive if they had moved the combustibles by early evening. Requiring them to move the combustibles more quickly, given the size of the facility and the time it takes to move furniture might be "unrealistic." May 6 Tr. 57. However, he testified that moving the items sooner was better (3:00 p.m. as opposed to 6:00 p.m.). May 6 Tr. 64.

Fire Chief Drake testified that the participants discussed why the fire spread, the combustibles around the heater, the relationship between the December and January fires, and the relationship between the two heaters. Tr. 81-82.

Ms. Sterthous testified that at the meeting she raised a concern that the apartments were not sprinklered and that 35 Friedrich P heat pumps were in the apartments and that there was some concern about waiting for replacement pumps. She testified that this is when Fire Marshal Murray and Fire Chief Drake suggested, as an interim precaution, combustibles should be moved away from heat pumps in apartments, and that that is where Mr. Boskoski and his staff removed combustibles. Tr. 718-19; 809-10. ⁽⁹⁾ Ms. McMullen also testified that it was her understanding that combustibles only needed to be moved from the apartments. Tr. 470-71. Ms. Sterthous testified that had she understood that Fire Marshal Murray wanted her to move items away from the heat pumps in the Care Center she would "absolutely" have done that as she was not in a position to ignore the direct order of someone in authority. Tr. 737. Ms. Sterthous testified that she told Mr. Boskoski to remove the combustibles in the apartments and that when he protested she told him it was absolutely necessary. ⁽¹⁰⁾ Tr. 719.

At 12:15 p.m., the surveyors returned to the facility and began taking pictures. Ms. McPartland took the photographs and Ms. Moyer wrote down what the photographs were of. Tr. 114-15; CMS Ex. 8, at 4, 6. The surveyors lost one camera and were not able to develop that roll of film. However, their notes regarding what they saw and photographed with that camera are at CMS Ex. 8, at 10, 12. The surveyors noted a chair and furniture against a P series heater in Room 136. Tr. 126-27, 198-99; CMS Ex. 8, at 12, 20. Five of six rooms depicted in CMS Ex. 19, at 21-26, and Room 136, were occupied after the fire. Tr. 123-25.

Just before 1:45 p.m., the surveyors called their supervisors to acquaint them with their concerns and to alert them that they thought immediate jeopardy should be called. They also wanted permission to ask for monitoring every 15 minutes. Tr. 130-31. Ms. Moyer testified that Petitioner did not tell them they were doing regular checks to ensure safety, noted the fire safety system was not working, and that the combustibles observed near heaters indicated that no safety checks were being done. Tr. 131.

At 1:45 p.m., the surveyors met with Ms. McMullen to give Petitioner one more opportunity to explain "exactly what the facility was doing to ensure the safety of the residents." Tr. 128. Ms. McPartland's notes show Ms. McMullen stated "we just had a meeting [with] the fire marshal we are going to pull all the furniture away from the radiators." CMS Ex. 8, at 12. They did not talk about a fire watch. Tr. 128-29; CMS Ex. 8, at 12. Ms. Moyer's notes reflect the fire marshal's direction to take "all chairs . . . away from heaters." CMS Ex. 8, at 7. Ms. McMullen testified that she told the surveyors "we would move everything away from the heaters." Tr. 473-74.

Ms. Moyer testified that, at 2:30 p.m., she still observed items by heaters. Tr. 208. Immediate jeopardy was approved by the State survey agency. Tr. 120-21, 206, 208.

Between 2:30 and 3:00 p.m., the surveyors asked for a meeting with facility representatives to inform them that they were calling immediate jeopardy. Tr. 132, 208. The surveyors, Ms. Sterthous, Ms. McMullen, and Mr. Boskoski attended this meeting.

Ms. McPartland testified that immediate jeopardy was called because "we felt the building was still unsafe. We still had flammables up against the heat pumps. We had no monitoring being done by the facility to determine that no fire had started or that the flammables stayed away from the heat pumps." Tr. 132. Ms. McPartland testified that facility representatives told the surveyors that the combustibles had been removed from the heat pumps. Tr. 133. The surveyors took Ms. Sterthous and Ms. McMullen on a tour of the facility and pointed out items against heaters, including items depicted in their photographs, and items seen in Room 136. Tr. 134; see also Ex. 19, at 20-26.

Ms. Moyer testified that "we were telling them that the reasons for the immediate jeopardy were because they had combustibles against heaters, and they told us that that couldn't be. They'd been told to remove all the combustibles from close to heaters . . . I think they said the fire marshal told them earlier that day that they were to remove the combustibles from the areas of the heaters." Tr. 208-09.

Ms. Sterthous testified that this conference took place about 3:00 or 3:30. She testified that she was shocked immediate jeopardy had been called. Tr. 723-24. Ms. Sterthous also testified that none of the rooms depicted in CMS Ex. 19 contained a P series heater or anything out of the ordinary. Tr. 725-27, 744, 790. However, when the surveyors told Petitioner to move items away from the heaters, Ms. Sterthous testified that she told her staff to comply. Tr. 727-28, 764.

Once immediate jeopardy was called, the 15-minute checks for smoke and combustibles required by Ms. McPartland began. Tr. 137-38; CMS Ex. 27 � 2. The resident rooms were monitored, magnetic signs were posted to remind staff, residents and family to keep items away from heat pumps, and staff in-services were begun to remind staff to keep items away from heat pumps. Tr. 477, 497, 502, 728, 729, 735; CMS Ex. 2, at 2.

At about 3:00 p.m., the security guards Mr. Boskoski contracted for arrived from Foulke Security to formalize the fire watch. Tr. 347, 411, 701-02; CMS Ex. 2, at 2; P. Ex. 32, at 2 � 9. The guards had a list of locations of Friedrich P heaters and were told to patrol non-stop, 24 hours, for signs of smoke, in order to make sure the residents were safe. Tr. 411-12, 702, 709; CMS Ex. 8, at 20.

Ms. Moyer left the facility about 3:30. Tr. 137, 212.

By 7:00 p.m., Ms. McMullen testified that all the combustibles had been moved away from heaters. Tr. 526. Ms. Sterthous testified it was her understanding the combustibles had been moved by 6:00 p.m. Tr. 738; P. Ex. 32, at 3 � 10.

Ms. McPartland testified that on January 11, 2004, she found a floormat next to a heater and, on January 12, 2004, she found a floormat up against the same heater. Tr. 141. Ms. McPartland testified that on January 14, 2004, she found no items next to heaters, and also saw Petitioner implementing other provisions of its action plan, so immediate jeopardy was removed. Tr. 143; CMS Ex. 3, at 2.

On September 27, 2004, Dawson Engineering found that tests showed:

1. That if the mode selector rotary switch is placed midway between the low and high heat setting, the heating element will be energized, but the blower motor will not.

2. Without air passing over the energized heating element the temperature of the heating element increases uncontrollably until the element glows bright orange.

3. When the heating element glows bright orange the stalled plastic blower wheel begins to melt and smoke.

4. When heated to a sufficiently high temperature the plastic blower wheel will ignite and burn.

P. Ex. 7, at 2-3.

B. Analysis of the evidence

i. The cause of the fire was not known as of January 9, 2004.

The preponderance of the evidence is that Petitioner could not reasonably assume on January 9 that the Friedrich P series heaters were the only ones that could start a fire. Mr. Scipione testified that there was no way of knowing on January 9 whether the problem was isolated to the Friedrich P series heaters, stating there may have been a problem in the electrical system. Tr. 306-08.

I find Mr Scipione's testimony to be persuasive. I also find convincing Fire Marshal Murray's testimony that, by noon on January 9, it was clear there was a problem with the P series heaters, but he could not rule out other heaters as a potential problem. May 6 Tr. at 62. This is true despite Fire Marshall Murray contacting the Consumer Product Safety Commission about the P series heaters, which were the particular heating units which caught fire. P. Ex. 5, at 3. Moreover, Friedrich did not recall the P series heaters until July 28, 2004, and Dawson Engineering did not complete their final report until September 27, 2004.

ii. Combustibles near heating units here constitute a fire hazard.

If the cause of the fire was not known with certainty on January 9, then a potential for another fire remained and the preponderance of the evidence shows combustibles near heating units to be a fire hazard. CMS's witnesses testified credibly that combustibles close to heaters were dangerous. Fire Chief Drake told Mr. Boskoski after the December fire that combustibles near the heaters were dangerous and Fire Chief Drake believed that after this talk Petitioner would no longer be storing combustibles on top of or around heaters. Fire Marshal Murray testified that "[w]e had already had two fires in a 30-day period. Combustibles being close to the heaters, although not responsible for the fire per se, were a contributing factor to fire extension, and we needed to have those removed so that, in the event another fire occurred in a heater, we wouldn't have that extension possibility." May 6 Tr. 13. Fire Marshal Murray testified that if a chair is within close proximity to a normally operating heater "it presents a potential fire hazard." May 6 Tr. 34-35. He testified he was concerned about any "self-contained [heat pumps] in the individual rooms." May 6 Tr. 34. Moreover, when he looked at the photographs taken by the surveyors he noted items "precariously close to the heaters." Tr. 52; CMS Ex. 19, at 20-26 [chairs in close proximity to the heaters, a pad covered with linen directly up against a heating unit restricting airflow, a walker nosed into a heater, towels hanging over and laying on a discharge heater vent, a chair with a cushion on top resting against the side of a heater. Tr. 50-51.]

Fire Chief Drake reviewed the same photographs and testified that the combustibles depicted were "too close to the heaters." Tr. 78-79; CMS Ex. 19, at 20-26. The surveyors' supervisor, Ms. Dougherty, spoke with Fire Chief Drake after the fire and her notes corroborate that Fire Chief Drake was concerned with the combustibles near the heater units and noted that he went over his concern with facility staff. Tr. 92; CMS Ex. 8, at 17; CMS Ex. 35.

Mr. Scipione noted the spread of the fire and how, having ignited a chair, the fire was able to continue its spread into the room by igniting a dresser on the other side of the chair from the heater. Tr. 273-74. Mr. Scipione testified that the combustibles the surveyors saw and photographed near the heaters were a fire hazard. He stated that the purpose of moving the combustibles away from the heaters was "to mitigate against the potential propagation of a fire from the unit and thereby combustibles which would obviously be in the direct flame impingement of a fire involving that unit. Those combustibles would readily ignite and spread the fire, and that's exactly what we have on January the 9^th." Tr. 299.

Mr. Buckley, Petitioner's witness, testified that the most important step after the fire was to minimize the fire hazard itself. Although he believed that the two most important protections were to institute a fire watch and lower the limiting switches, and he testified that moving the combustibles described would have no measurable impact on the fire spread given the other objects and materials in the room (Tr. 564, 590), he also recognized that if something next to a heater will help the spread of the fire, an item further away will take longer to ignite (Tr. 661-62) - thus, taking items away from in front of a heater would alleviate problems once a fire started. Tr. 566.

Ms. Sterthous herself recognized that the closer an item is to a flame the greater the likelihood there was of ignition. Tr. 789. She testified one reason she didn't instruct her staff to remove the combustibles was because Mr. Boskoski and his staff changed the limiting switch and a fire watch was instituted. Tr. 772-75. However, lowering the limiting switch would not necessarily prevent the heating coils from coming on (Tr. 421-22) and, in spite of Ms. Sterthous' assertion that Petitioner's own maintenance staff performed a fire watch during the earlier part of the day (Tr. 702-04), the preponderance of the evidence is that the fire watch did not start as a non-stop patrol until later in the day. Tr. 139, 347-48, 411.

iii. Moving the combustibles would have taken minimal effort.

I am also convinced that, despite all the other activity going on at the facility, moving the combustibles away from the heating units would have taken minimal effort. I note that when facility staff met with the surveyors, according to Ms. McPartland, they stated their belief that the combustibles had already been moved. Ms. Sterthous herself testified that "[i]t wouldn't have taken very long" for five people to remove items such as those depicted in CMS Ex. 19, at 20-26, from the approximately 30 rooms in the Care Center occupied after the fire. Tr. 802. Even one person making continuous rounds would be able to remove them in "very short order." Tr. 784. It would take a manager eight minutes to walk down the halls and look in rooms to see if anything was on or against the heating units. P. Ex. 23. Ms. Sterthous testified that after the fire the Care Center was "swarming" with staff. Tr. 736. I note that Petitioner's entire executive staff was at the facility, Mr. Boskoski had a staff of six maintenance men and three housekeepers, and Ms. McMullen had an additional nurse. Tr. 346, 692, 696.

iv. Petitioner did not take all reasonable precautions against resident accidents, and its resident environment thus did not remain as free of accident hazards as possible.

In sum, I find that Petitioner did not take all reasonable precautions against resident accidents and that its resident environment did not remain as free of accident hazards as possible. I find from my analysis of the evidence presented that Petitioner did not move the combustibles until they were cited for non-compliance by the surveyors. I find that Petitioner understood they had to move the combustibles from near the heating units, that Petitioner had the staff to move the combustibles on hand, and that it would not have taken much time to move the combustibles depicted in CMS Ex. 19 away from the heaters. I base my finding on the credible testimony of Fire Marshal Murray that Petitioner needed to remove combustibles away from the vicinity of the heat pumps and that he did not believe Petitioner had questions about his instruction and understood his instruction. Tr. 49, 65. I do not find credible Ms. Sterthous' testimony that Fire Marshal Murray only "suggested" at the noon meeting that Petitioner remove combustibles from near heat pumps and that she understood the instruction was limited to the Friedrich P series heaters in the apartments. I find credible Fire Marshal Murray's testimony that it would be illogical for him to limit his instructions to the apartments. Fire Marshal Murray had nothing to gain or lose by testifying as he did, and his testimony was candid and credible. I also find credible Fire Chief Drake's testimony that before leaving the facility at 6:49 a.m. on the day of the fire he showed Ms. Sterthous that a chair in front of the heater had caught on fire and that he told her that combustibles should be moved two feet away from the heaters. Tr. 96.

Moreover, Petitioner's employees realized that they should move combustibles. As early as 7:00 a.m. Mr. Boskoski asked his maintenance supervisor, Carl Reckner, to "move things away" from the heat pumps. Tr. 409-410. Between 9:00 and 10:00 a.m., Ms. McMullen asked one of her nurses to remove items from in front of the heat pumps as a safety precaution while she was doing her vital sign checks. Tr. 498-99, 501-07. That she didn't tell her whole staff to move combustibles was because she didn't have "time" and assumed that maintenance was checking the heaters. Tr. 507. Even Ms. Sterthous recognized that moving the combustibles was "appropriate." Tr. 782. However, despite acknowledging that combustibles should be moved away from the heating units, combustibles remained near the units until the surveyors declared immediate jeopardy.

Finally, I do not find credible Petitioner's argument that Mr. Buckley had isolated the cause of the fire on January 9, 2004, and limited it solely to the Friedrich P series heaters, and that this apparently is a basis for Petitioner's not moving the combustibles away from the heat pumps. Mr. Buckley indicates he did not really know what caused the fire until additional tests were completed at Dawson Engineering, and the final Dawson Engineering report was not issued until September 2004. Also, as CMS points out, if Petitioner actually knew that the P series heaters where the only fire threat, Petitioner did not move combustibles away from those heaters either.

2. There is no reason to address whether or not the amount of the CMP is reasonable, as Petitioner has not contested the amount of the CMP.

Petitioner has argued that it was not in violation of participation requirements and that a CMP should, thus, never have been imposed. Petitioner has not, however, stated that if it was in violation of participation requirements the $5,000 CMP is unreasonable. Thus, I need not address the issue of the reasonableness of the CMP and I summarily affirm it.

V. CONCLUSION

I conclude that Petitioner was out of substantial compliance with a federal participation requirement. Accordingly, CMS was authorized to impose a CMP, and I summarily affirm the CMP here as Petitioner did not contest its reasonableness.

Alfonso J. Montano

Administrative Law Judge

1. The State survey agency identified other deficiencies, but the only deficiency imposed, the per instance CMP, is for the deficiency cited at F Tag 323. CMS Ex. 6.

2. With the agreement of the parties, I held the May 6, 2005 hearing by video-conferance. I was in Washington, D.C., and the parties were in Philadelphia, Pennsylvania.

3. A title since changed to Chief Executive Officer.

4. However, were I to address the issue in this case, I would find that the deficiency does constitute immediate jeopardy.

5. I find Fire Chief Drake's testimony to be credible and accept that he told Mr. Boskoski at that time that combustibles should no longer be stored around and on top of heaters.

6. Petitioner's facility is made up of three wings, East, South, and West. CMS Ex. 26, at 2.

7. There is some confusion about whether to characterize Fire Chief Drake's statements to Ms. Sterthous as instructions. However, I find to be credible Fire Chief Drake's testimony that he told Ms. Sterthous that the chair in front of the heater helped to spread the fire and that similar combustibles should be moved away from heaters. Tr. 100-01. I agree with CMS (CMS Reply at 16) that Fire Chief Drake's expectation did not exist in a vacuum, but was based on his understanding that Ms. Sterthous took their discussion seriously and understood that his expectation would be fulfilled. Tr. 96. Moreover, I note that in a noon meeting Chief Drake testified that, while he did not instruct the facility to move combustibles away from furniture, the fire marshals did. Tr. 89.

8. At the meeting the parties also discussed parking in fire lanes, the evacuation of residents, and access to a closet containing the fire alarm system. None of these issues are relevant to my decision and I simply note them here.

9. However, I note that in a July 2004 affidavit Ms. Sterthous stated that no one told her or her staff to remove the items noted by the surveyors. P. Ex. 32. Also in contradiction to Ms. Sterthous' understanding, is Mr. Boskoski's testimony that he was told to remove objects away from heat pumps in the Care Center before he was to remove objects in the apartments. Tr. 362.

10. Fire Marshal Murray, during questioning in May, was asked whether Ms. Sterthous might have misunderstood him during the noon meeting on January 9, 2004. Fire Marshal Murray testified that she could have understood that he was limiting his instructions to the Friedrich P series heaters as that was what they were discussing. However, even if Ms. Sterthous understood that combustibles be moved only from Friedrich P series heat pumps, the combustibles were not moved until after the surveyors cited the facility.