SUBJECT:

Brightview Care Center,

Petitioner,

Centers for Medicare & Medicaid Services.

DECISION

I sustain the determination of the Centers for Medicare & Medicaid Services (CMS) to impose a per instance civil money penalty (CMP) of $3,050 against Petitioner, Brightview Care Center.

I. Background

From May 8 - 16, 2003, the Illinois Department of Public Health (IDPH) conducted an incident report investigation and partial extended survey of Petitioner's facility. On the basis of this survey, CMS determined that Petitioner failed to comply substantially with two participation requirements stated at 42 C.F.R. �� 483.15(g) and 483.25(h)(2). The deficiency found at 42 C.F.R. � 483.25(h)(2) was determined to be at an immediate jeopardy level. Following a revisit survey on June 11, 2003, to investigate unrelated complaint allegations at which no additional deficiencies were found and another revisit survey on July 23, 2003, Petitioner was found to be in substantial compliance, effective June 11, 2003. By letter dated August 12, 2003, CMS imposed upon Petitioner the final remedies of a directed inservice training, effective June 11, 2003; a per instance CMP of $3,050; and, due to a finding of substandard quality of care, a two-year Nurse Aide Training and/or Competency Evaluation Program (NATCEP) prohibition, effective May 16, 2003.

Petitioner requested a hearing and the case was assigned to me for a hearing and a decision. CMS moved for summary judgement. The parties submitted a Stipulation of Facts (SOF) and 26 joint exhibits (Jt. Exs. 1 - 26) in support of the SOF. CMS submitted its brief with two supplemental exhibits (CMS Supp. Exs. 1 - 2). Petitioner submitted its brief with one supplemental exhibit (Brightview Supp. Ex. 1). CMS submitted its reply brief and two additional supplemental exhibits (CMS Supp. Exs. 3 - 4). Petitioner submitted its reply brief with one additional supplemental exhibit (Brightview Supp. Ex. 2). I receive all of the parties' exhibits into evidence.

II. Applicable law and regulations

Petitioner is considered a long-term care facility under the Social Security Act (Act) and regulations promulgated by the Secretary of Health and Human Services (Secretary). The statutory and regulatory requirements for participation by a long-term care facility are found at sections 1819 and 1919 of the Act and at 42 C.F.R. Part 483.

Sections 1819 and 1919 of the Act invest the Secretary with authority to impose CMPs against a long-term care facility for failure to comply substantially with federal participation requirements.

Pursuant to the Act, the Secretary has delegated to CMS and the states the authority to impose remedies against a long-term care facility that is not complying substantially with federal participation requirements. 42 C.F.R. Part 488 provides that facilities participating in Medicare may be surveyed on behalf of CMS by state survey agencies in order to determine whether the facilities are complying with federal participation requirements. 42 C.F.R. �� 488.10 - 488.28. The regulations contain special survey conditions for long-term care facilities. 42 C.F.R. �� 488.300 - 488.335. The regulations at 42 C.F.R. Part 488 give CMS a number of different remedies that can be imposed if the facility is not in compliance with Medicare requirements. Under Part 488, a state or CMS may impose a per instance or per day CMP against a long-term care facility when a state survey agency concludes that the facility is not complying substantially with federal participation requirements. 42 C.F.R. �� 488.406, 488.408, 488.430.

The regulations specify that a CMP that is imposed against a facility can be either a per day CMP for each day the facility is not in substantial compliance, or a per instance CMP for each instance that a facility is not in substantial compliance. 42 C.F.R. � 488.430(a). When penalties are imposed for an instance of noncompliance, the penalties will be in the range of $1,000 - $10,000 per instance. 42 C.F.R. � 488.438(a)(2).

The regulations define the term "substantial compliance" to mean "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.

Substantial noncompliance that is immediate jeopardy is defined 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." Id.

Substandard Quality of Care is defined as "one or more deficiencies related to participation requirements under � 483.13, Resident behavior and facility practices, � 483.15, Quality of life, or � 483.25, Quality of care . . . , which constitute immediate jeopardy to resident health or safety . . . ." A finding of substandard quality of care, triggers an extended survey, which in turn results in the loss of approval for a facility of its NATCEP. 42 C.F.R. � 498.3(b)(13), (14) (i)-(ii).

The Act and regulations make a hearing before an administrative law judge (ALJ) available to a long-term facility against whom CMS has determined to impose a CMP. Act, section 1128A(c)(2); 42 C.F.R. �� 488.408(g), 498.3(b)(12), (13). The hearing before an ALJ is a de novo proceeding. Anesthesiologists Affiliated, et al., DAB CR65 (1990), aff'd, 941 F.2d 678 (8^th Cir. 1991). A facility has a right to appeal a "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, the choice of remedies by CMS or the factors CMS considered when choosing remedies are not subject to review. 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 that could be collected by CMS or impact upon the facility's nurse aide training program. 42 C.F.R. �� 498.3(b)(14) and (d)(10)(i). CMS's determination as to the level of noncompliance "must be upheld unless it is clearly erroneous." 42 C.F.R. � 498.60(c)(2). This includes CMS's finding of immediate jeopardy. Woodstock Care Center, DAB No. 1726, at 9, 38 (2000), aff'd Woodstock Care Center v. U.S. Dept. of Health and Human Services, 363 F.3d 583 (6th Cir. 2003).

When a penalty is imposed and appealed, CMS must make a prima facie case that the facility has failed to comply substantially with federal participation requirements. To prevail, a long-term care facility must overcome CMS's showing by a preponderance of the evidence. Batavia Nursing and Convalescent Center, DAB No. 1904 (2004); Batavia Nursing and Convalescent Inn, DAB No. 1911 (2004); Emerald Oaks, DAB No. 1800 (2001); Cross Creek Health Care Center, DAB No. 1665 (1998); Hillman Rehabilitation Center, DAB No. 1611 (1997), aff'd Hillman Rehabilitation Center v. U.S. Dept. of Health and Human Services, No. 98-3789 (D.N.J. May 13, 1999).

III. Issues

The issues in this case are:

(1) whether a decision on summary judgment is appropriate;

(2) whether CMS has shown a basis upon which to assess a penalty against Petitioner for substantial noncompliance of requirements for participation in Medicare and Medicaid; if so,

(3) whether the noncompliance posed immediate jeopardy; and

(4) whether the amount of the assessed penalty is reasonable.

IV. Findings of fact and conclusions of law

I make findings of fact and conclusions of law (Findings) to support my decision in this case. I set forth each Finding below as a separate heading. I discuss each Finding in detail.

A. Summary judgment is appropriate in this case because neither party has demonstrated any dispute over genuine issues of material fact.

Unless the parties raise a genuine issue of material fact, an ALJ may decide a case on summary judgment without an evidentiary hearing. Livingston Care Center, DAB No. 1871 (2003); Crestview Parke Care Center, DAB No. 1836 (2002); Everett Rehabilitation and Medical Center, DAB No. 1628, at 3 (1997); Carmel Convalescent Hospital, DAB No. 1584, at 27 (1996). The Board reiterated in Livingston Care Center that:

CMS is entitled to summary judgment if it has (1) made a prima facie showing that [the facility] was not in substantial compliance with one or more participation requirements, and (2) demonstrated that there is no dispute about any material fact supporting its prima facie case and that it is otherwise entitled to judgment as a matter of law. CMS is not entitled to summary judgment if [the facility] has proffered evidence that would permit an ALJ to conclude that it was in substantial compliance with Medicare participation requirements during the relevant time.

Livingston Care Center at 6.

In this case, the parties do not dispute the facts, discussed below. The parties submitted a SOF and 26 supporting joint exhibits (Jt. Exs. 1 - 26). As stated in Big Bend Hospital Corp. d/b/a Big Bend Medical Center, DAB No. 1814 (2002): "[t]o convene an in-person hearing where no proffered evidence would have any affect [sic] on the outcome would be an empty formalism and a waste of administrative and litigant resources." Big Bend at 15. There is no need for an in-person hearing "where no testimony (including cross-examination, regardless of how credible it might be), could alter the relevant factual findings." Id. at 16. I conclude, therefore, that summary judgment is appropriate in this case.

I do not discuss herein both deficiencies cited in the May 16, 2003 survey. The Departmental Appeals Board (Board) has previously approved an ALJ's discretion to exercise judicial economy and not discuss every alleged deficiency. Beechwood Sanitarium, DAB No. 1824 (2002), at 22; Beechwood Sanitarium, DAB No. 1906 (2004); Western Care Management Corp., d/b/a Rehab Specialties Inn, DAB No. 1921 (2004). Substantial noncompliance with only one participation requirement can support the imposition of a penalty. Beechwood Sanitarium, DAB No. 1824 (2002). In the matter before me I discuss only the elopement of Resident 2 (R2) that is the subject of Petitioner's noncompliance with 42 C.F.R. � 483.25(h)(2) at an immediate jeopardy level. Petitioners noncompliance with 42 C.F.R. � 483.25(h)(2) at an immediate jeopardy level amply supports the remedies imposed.

B. The parties stipulated to the facts in this case.

The parties stipulated to the facts of this case. This deficiency is based on an incident where R2, who was identified as an elopement risk by the facility, was allowed to go outside on the facility's porch unattended by staff on April 19, 2003. Although R2 was within the line of sight of the receptionist, it is undisputed that the receptionist looked away, and the resident eloped at approximately 9:25 p.m. The resident was found by the police several hours later and was taken to the hospital, where he was deemed to be unharmed. He was returned to the facility at 11 a.m. the next morning. CMS cited this deficiency at a scope and severity level J which constitutes immediate jeopardy. SOF 4.

R2 was a 71 year old male suffering from organic brain syndrome, hypothyroidism, hypertension, osteoporosis, dementia, bipolar disorder with psychotic features, chronic obstructive pulmonary disease, disorientation and confusion. SOF 14. R2 underwent heart surgery in January or early February, 2003. SOF 16.

His Minimum Data Set (MDS), updated on February 14, 2003, upon his readmission from the heart surgery, indicated that he suffered from short and long term memory problems. SOF 17. He was not able to recall the current season or the location of his room, but was able to recall staff names and faces and that he was in a nursing home. His cognitive skills were assessed as "moderately impaired" meaning he had poor decisional abilities and required cues or supervision. He had "indicators of delirium and periodic disordered thinking [and] awareness." Id. R2 had periods of altered perception or awareness of surroundings, episodes of disorganized speech, periods of restlessness, lethargy, and varying mental functioning over the course of the day. Sometimes, R2 moved his lips to talk to someone who was not present, believed he was somewhere else, and/or confused night with day, would ramble incoherently, fidget or pick at himself, call out, engage in repetitive physical movements, or stare into space. Id. At the time of the February 14, 2003 MDS, R2's psychotropic medications were Lithium Carbonate and Zyprexa. Id.

R2 was assessed "at risk for falls secondary to psychotropics." SOF 18.

On February 27, 2003, R2 was assessed by the facility to be an elopement risk under its Elopement Risk Assessment Protocol (ERAP). SOF 19. The facility's ERAP indicated that R2 had a diagnosis of dementia and/or severe confusion or delirium, lacked orientation as to place, an inability to know where he was, an inability to find his way back to the facility or give the name of the facility, and an inability to function safely in the community due to his inability to recognize danger (such as crossing streets). Id. However, at the time of this ERAP, R2 was assessed as not having the physical capacity to leave the facility. SOF 19. R2's February 14, 2003 MDS indicated that he was totally dependent on staff for moving between his room and the adjacent corridor and for moving to and from off-unit locations. SOF 20. His lack of mobility was attributed to his recent heart surgery.

By April 12, 2003, his recovery from the heart surgery resulted in improved cognitive skill for daily decision making, improved activities of daily living, and improved mobility. SOF 21. R2 eloped on April 19 - 20, 2003. A significant change MDS commenced on April 12, 2003 but completed on April 22, 2003, after R2's elopement, indicated that R2 no longer had periods of altered perception or awareness of surroundings and no longer had disorganized speech or periods of lethargy. Id.

However, R2 was still "easily distracted" and had a mental function that varied over the course of a day. Id. R2's cognitive status was still assessed as "moderately impaired." Id. R2's only psychotropic medication at the time of the April 22, 2003 MDS was Risperdal. Id.

An April 14, 2003 note records that R2 became independent in locomotion. SOF 22. A May, 2003 note records that he could "ambulate without a device - with supervision and cues for safety" and that he could walk in his room and in the halls "with supervision." Id.

The facility's April 19, 2003 Incident report indicates that R2 could locate his room and go to the dining room and smoking room without assistance or direction. The report noted that R2 had never attempted to leave the facility and had never verbalized his intention to leave the facility. SOF 23.

On April 19, 2003, at approximately 9:25 p.m., R2 went to smoke outside on the facility's front porch. It was between 66 - 68 degrees outside. The facility is located in Chicago. The receptionist's report stated:

[R2] told me that he wanted to go out to the front porch to take some fresh air. I knew he was an Elopement Risk, but I let him go out because he promised me that he would stay on the front porch with another resident who was out there. He was under my supervision; I could clearly see him by looking out the window. I received a phone call at this time and within 10 minutes he was not on the porch. I reported this to the supervisor - Malou.

SOF 24.

The Incident report narrated the events as follows: "The receptionist could clearly see them on the porch. Then she leaned down to get something from her desk drawer and when she looked again, she noted [R2] was not there." SOF 25. Although there is a discrepancy as to the cause of the receptionist's distraction - a telephone call in the receptionist's report and leaning down to get something from a drawer in the Incident Report - there is no dispute that the receptionist became distracted. The cause of the distraction is not material to the facts of the incident before me.

The facility implemented its procedure on missing residents and a search was conducted in and outside the building and in the immediate neighborhood. SOF 26. R2 was not found and the facility notified the Chicago police at 9:45 p.m. that R2 was missing. SOF 27. The police found R2 at an unknown hour. R2 was taken to the hospital at approximately 4:30 a.m. SOF 28. R2 was returned to the facility at 11 a.m. on the morning of April 20, 2003. R2 was unharmed. However, R2 remained confused and disoriented. SOF 29.

At the time of the incident, Petitioner had in place a written elopement prevention program which included a risk assessment instrument and guidelines. Petitioner's elopement guidelines provided that the receptionist be given photographs of residents assessed at risk for elopement. The guidelines provided in part that the "[s]upervisor notifies Reception and posts the photo there. Reception maintains vigilance to make sure that the resident does not leave the building and notifies the nursing department if resident behavior regarding leaving the building escalates." SOF 30. The receptionist involved in this incident, Gina Rodriquez, was instructed on these guidelines by the facility and had no documented disciplinary actions against her prior to the incident. Id.

Following R2's elopement, Petitioner took a number of corrective actions to prevent a reoccurrence including, in part, analyzing the April 19, 2003 incident, implementing a new system involving WanderGuard monitoring, various inservice trainings for facility staff (including the reception staff), and quality assurance surveillance. SOF 31. Ms. Rodriquez was given a written Employee Report where she was warned and "counceled [sic] today (4-22-03) for not following the proper procedures regarding residents on elopment [sic] percuntions [precautions]." Id.

The Facility's Quality Assurance Summary, dated June 9, 2003, indicated that "[t]he receptionist deviated from facility policy when she allowed the resident to go outside." It further indicated that R2's "physical and mental status improvements had not been addressed with care plan updates," and that "[t]here was no system in place to prevent wanderers from leaving when the receptionist was distracted from monitoring the door." SOF 32.

An updated care plan for R2 dated April 24, 2003, noted R2's "impaired mobility and a fluctuating ability to ambulate" as well as his decreased muscle strength and poor balance. SOF 33. The new care plan noted that R2 was at risk for falls and "tries to elope" and that R2 was "alert and oriented" and "able to follow simple instructions." Id.

One of the surveyors interviewed Maria Fernandez, Director of Nursing (DON), on May 8, 2003. During the interview, the DON indicated that at the time that R2 left the building, it was the responsibility of the front desk receptionist to watch the resident. SOF 37.

A surveyor interviewed Ms. Gaughan, Petitioner's Social Services Director, on May 8, 2003. During the May 8, 2003 interview, Ms. Gaughan indicated that R2 was on an elopement list. SOF 38. Ms. Gaughan further indicated that residents who are on an elopement list for which precautions are taken were not supposed to be allowed to go to the front porch area, but that there was another area - a fully enclosed back patio - where residents were authorized to go when they wanted to go outside. Id.

On May 9, 2003, R2 was assessed as being at risk for elopement pursuant to the facility's newly revised ERAP and was placed on modified elopement precautions, which included the use of a WanderGuard device. SOF 39.

C. Petitioner failed to comply substantially with the requirements of 42 C.F.R. � 483.25(h)(2).

The May 16, 2003 survey found that Petitioner was not in substantial compliance, at an immediate jeopardy level (level J), with the regulation at 42 C.F.R. � 483.25(h)(2) which provides:

Each resident must receive and the facility must provide the necessary care and services to attain or maintain the highest practicable physical, mental, and psychosocial well-being, in accordance with the comprehensive assessment and plan of care.

(h) Accidents. The facility must ensure that -

. . . .

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

This regulation does not require a facility to be free of all accidents (including elopements); it does not impose strict liability on a facility for accidents that a resident may sustain. See Koester Pavilion, DAB No. 1750 (2000); Heath Nursing and Convalescent Center, DAB CR610 (1999); Woodstock Care Center, DAB No. 1726 (2000); Carehouse Convalescent Hospital, DAB CR729 (2001); Price Hill Nursing Home, DAB CR745 (2001); Hermina Traeye Memorial Nursing Home, DAB CR756 (2001). In other words, simply because an elopement occurred does not mean necessarily that a facility failed to substantially comply with regulatory requirements. In cases concerning compliance with 42 C.F.R. � 483.25(h), the focus is on the language of the regulation; i.e., the facility must ensure each resident receives adequate supervision to prevent accidents according to a comprehensive assessment and a plan of care ⁽¹⁾ (emphasis added). The facility's duty, as stated in the regulation, is an affirmative duty.

An appellate panel of the Board in Koester Pavilion, DAB No. 1750, at 24 (2000) has stated that ". . . a facility is not required to do the impossible or be a guarantor against unforeseeable occurrences, but is required to do everything in its power to prevent accidents." The facility's duty, pursuant to 42 C.F.R. �� 483. 25(h)(1) and (2), is expressed in a slightly different way in Woodstock Care Center, DAB No. 1726 (2000). In that case, the Board found that a facility is obligated to take measures that are designed, to the extent that is practicable, to assure that residents do not sustain accidents that are reasonably foreseeable. The fact that an elopement or accident actually occurred in a nursing home does tend to show that the facility's supervision was inadequate to prevent the occurrence; that is, the facility did not do everything in its power to prevent its occurrence. This is particularly true if, as in the case before me, the facility has foreseen the potential for a resident's accident or elopement.

Based on the standards expressed in Koester Pavilion and Woodstock Care Center, my decision in this case is based on my questioning whether Petitioner took measures, to the extent practicable, to assure that R2 did not elope given Petitioner's recognition that R2 was at risk for elopement.

At the time of the elopement of R2, Petitioner was using a non-mechanical, low technology system of placing pictures of residents assessed at risk of elopement with the receptionist located near the front door. In a previous case before me where a similar elopement prevention system was used, I found that "[i]t was incumbent on the Petitioner, in that situation, to keep its receptionist free enough from other duties and sufficiently trained in order that the receptionist would spot and stop a resident whose identification picture was in plain view. . . ." Alden-Princeton Rehabilitation and Health Care Center, DAB CR1196, at 9 (2004). Such a system, if fully implemented by trained personnel, would have prevented R2's elopement and might have satisfied federal regulations. However, Petitioner, in the case before me, failed to have an elopement prevention system that was fully implemented by trained personnel.

1. R2 was a known elopement risk.

It is undisputed that R2's picture was available to the Petitioner's receptionist. R2 was known to the facility as a resident at risk for elopement. R2 had been assessed as an elopement risk prior to his elopement on April 19, 2003. On February 27, 2003, R2 was assessed by the facility to be an elopement risk under its Elopement Risk Assessment Protocol (ERAP). SOF 19. The facility's ERAP indicated that R2 had a diagnosis of dementia and/or severe confusion or delirium, lacked orientation as to place, an inability to know where he was, an inability to find his way back to the facility or give the name of the facility, and an inability to function safely in the community due to his inability to recognize danger (such as crossing streets).

R2's condition improved as he recovered from heart surgery. A significant change MDS commenced on April 12, 2003 but completed on April 22, 2003, after R2's elopement, showed that R2 was still "easily distracted" and had a mental function that varied over the course of a day. SOF 21. R2's cognitive status was still assessed as "moderately impaired." Id. R2's only psychotropic medication at the time of the April 22, 2003 MDS was Risperdal. Id. R2's mobility improved significantly as he recovered from his heart surgery. An April 14, 2003 note records that R2 became independent in locomotion. SOF 22. A May, 2003 note records that he could "ambulate without a device - with supervision and cues for safety" and that he could walk in his room and in the halls "with supervision." Id. R2 was assessed at risk for falls. The facility's April 19, 2003 Incident Report indicates that R2 can go to the dining room and smoking room without assistance or direction. At the time of his elopement, R2 was an even greater elopement risk than when he was assessed by the facility in its February 27, 2003 ERAP because of his improved mobility.

On May 9, 2003, R2 was assessed as being at risk for elopement pursuant to the facility's newly revised ERAP and was placed on modified elopement precautions, which included the use of a WanderGuard device. SOF 39. Therefore, the facility, itself, assessed R2 both before and after his elopement on April 19, 2003 and determined that he was an elopement risk and provided the receptionist with his photograph. I find, therefore, that R2 was a resident that was a known elopement risk.

2. Petitioner's staff failed to follow Petitioner's own elopement prevention program and also failed to provide adequate supervision required by 42 C.F.R. � 483.25(h)(2).

At the time of the incident, Petitioner had in place a written elopement prevention program which included a risk assessment instrument and guidelines. Petitioner's elopement guidelines provided that the receptionist be given photographs of residents assessed at risk for elopement. The purpose of Petitioner's elopement program was to provide residents who were known elopement risks with adequate supervision to prevent any elopement. The guidelines provided in part that the "[s]upervisor notifies Reception and posts the photo there. Reception maintains vigilance to make sure that the resident does not leave the building and notifies the nursing department if resident behavior regarding leaving the building escalates."(emphasis added). SOF 30. The receptionist involved in this incident, Gina Rodriquez, was instructed on these guidelines by the facility and had no documented disciplinary actions against her prior to the incident. Id. However, it is clear that Ms. Rodriquez did not maintain vigilance to make sure that R2 did not leave the building. At the time of R2's elopement, it was Ms. Rodriquez's responsibility to supervise R2. SOF 37.

Ms. Rodriquez failed to follow the Petitioner's elopement prevention program. Ms. Rodriquez let R2 leave the building by letting him go smoke on the front porch. R2, as an elopement risk, was not to be allowed on the front porch, but instead was to be allowed on the fully enclosed back patio, which was a protected environment. SOF 38. As Ms. Rodriquez stated in her report:

[R2] told me that he wanted to go out to the front porch to take some fresh air. I knew he was an Elopement Risk, but I let him go out because he promised me that he would stay on the front porch with another resident who was out there. He was under my supervision; I could clearly see him by looking out the window. I received a phone call at this time and within 10 minutes he was not on the porch. I reported this to the supervisor - Malou.

SOF 24. Even Petitioner admits that Ms. Rodriquez failed to follow the Petitioner's elopement prevention program. Ms. Rodriquez was given a written Employee Report where she was warned and "counceled [sic] today (4-22-03) for not following the proper procedures regarding residents on elopment [sic] percuntions [precautions]." SOF 31.

Ms. Rodriquez also failed to provide R2 with adequate supervision in violation of federal regulations. Ms. Rodriquez erred first by allowing R2, a known elopement risk, to exit the premises to smoke on the front porch. Had R2 desired to smoke, Ms. Rodriquez should have directed him to the facility's smoking area on the back patio that was fully enclosed. Next, although Ms. Rodriquez admits that R2 was under her supervision and that she could clearly see him by looking out of the window, she allowed herself to become distracted (by either a telephone call or by reaching into a drawer) and R2 successfully eloped from the facility. R2, by being allowed onto the front porch, was no longer inside the facility's protected environment. Instead, it is completely foreseeable that a disoriented, confused, cognitively impaired resident with dementia who was let outside without constant and complete supervision might wander away. Any lapse in supervision of a resident who is a known elopement risk and who was already outside the facility cannot meet the federal requirement of adequate supervision.

Evidently, it was the facility's common practice to allow residents to go outside to smoke. R2 was joining "another resident who was out there." The fact that residents who are not at risk for elopement were allowed to go onto the front porch increased the probability that a resident who was an elopement risk would be allowed outside to smoke through either human error or in response to an appeal for companionship. The facility's common practice to allow residents to go onto its front porch only made R2's elopement more foreseeable.

Further, the Facility's Quality Assurance Summary, dated June 9, 2003, indicated that"[t]he receptionist deviated from facility policy when she allowed the resident to go outside." SOF 32. A dispute between the parties has arisen on whether I should rely on the findings of the Facility's Quality Assurance Summary. ⁽²⁾ I find the evidence provided by the Facility's Quality Assurance Summary admissible. Even if this evidence were not admissible, I find that the facts before me require the same conclusion: Petitioner did not provide adequate supervision of R2 in violation of federal regulations.

Petitioner admits that its elopement prevention program provided inadequate supervision, even for residents who were still within the walls of the facility, when the Facility's Quality Assurance Summary, dated June 9, 2003, indicated that "[t]here was no system in place to prevent wanderers from leaving when the receptionist was distracted from monitoring the door." SOF 32. This is evidence that Petitioner recognized a more systemic problem with its elopement prevention program, particularly, inadequate supervision to prevent elopement when the receptionist is distracted.

Petitioner had a duty to keep its receptionist sufficiently free of other duties, such as answering the telephone, so that the receptionist could provide adequate supervision to prevent elopement or to have an alternate system in place to prevent wanderers from leaving when the receptionist was distracted from monitoring the door. Petitioner also has a duty to sufficiently train its receptionist so that she would not allow a resident at risk for elopement outside onto the front porch, at all. Petitioner failed to adequately train its receptionist, failed to keep its receptionist sufficiently free of other duties so that she could provide adequate supervision, and failed to have an elopement prevention program that guarded against elopement when the receptionist was distracted.

Petitioner is responsible for the action and errors of its employees, including the receptionist's error in letting R2 outside onto the facility's front porch and her failure to constantly supervise R2 while he was in such a non-protected environment. As the Board noted in Emerald Oaks:

[An] employer cannot disown the consequences of the inadequacy of the care provided by the simple expedient of pointing the finger at [the employee's] fault, since she was the agent of her employer empowered to make and carry out daily care decisions.

DAB No. 1800, at 7, n. 3 (2001). See also Barn Hill, DAB No. 1848, at 18 (no "human error" exception to the regulatory requirements). Petitioner cannot disavow the actions of its employees undertaken while acting within the scope of their agency, regardless of whether the manner in which they undertake these actions are incorrect or contrary to facility policy. Ridge Terrace, DAB No. 1834 (2002); Cherrywood Nursing and Living Center, DAB No. 1845 (2002).

Petitioner argues that R2's elopement was not foreseeable and that the facility was not culpable. Petitioner argues that it could not foresee the actions of its receptionist. This argument is irrelevant because the facility is still held responsible for the acts of its employees. Petitioner also argues that a finding of immediate jeopardy requires a finding of culpability under Appendix Q of the State Operations Manual (SOM). I reject Petitioner's argument. The SOM provides guidelines to surveyors that are not regulations that bind me. Petitioner also states that all five elements in Appendix Q are necessary to a finding of culpability or immediate jeopardy. P. Br. at 23. Petitioner is mistaken. There is no such requirement in any regulation. Petitioner also repeatedly protests that it was not culpable, even though both it and the receptionist knew that R2 was an elopement risk. However, a finding of culpability is not required for a finding of immediate jeopardy, merely a finding of noncompliance with one or more requirements of participation that has caused, or is likely to cause, serious injury, harm, impairment, or death to a resident." 42 C.F.R. � 488.301.

D. CMS's determination that Petitioner's noncompliance was at the immediate jeopardy level is not clearly erroneous.

In this case, CMS determined that the facility was not in substantial compliance with the regulation found at 42 C.F.R. � 483.25(h)(2) at an immediate jeopardy level. As noted above, CMS assessed a per instance civil money penalty of $3,050.

Appeal rights attach to certain initial determinations made by CMS as set forth in the regulations. The level of noncompliance, in this case immediate jeopardy, can be appealed but only if the range of CMP that can be collected could change or if the facility's nurse's aide training program will be affected due to a finding of substandard quality of care. 42 C.F.R. �� 498.3(b)(14)(i), (ii) and 498.3(d)(10)(i), (ii).

A per instance CMP can be from $1,000 to $10,000. There is no specifically defined range of per instance penalty for findings of immediate jeopardy. 42 C.F.R. � 488.438(a)(2). Thus, a finding of immediate jeopardy can have no effect on a range of penalties. Nonetheless, CMS's determination of immediate jeopardy in this case is an appealable initial determination pursuant to section 498.3(b)(14)(ii) because the deficiency cited was a finding of substandard quality of care affecting the facility's nurse's aide training program.

Immediate jeopardy is defined in the regulations 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 any case where immediate jeopardy is at issue, CMS has the burden of coming forward with sufficient prima facie evidence to show that immediate jeopardy was present. The burden on a facility to disprove a determination of immediate jeopardy that is supported by prima facie evidence is very heavy. A facility may overcome a prima facie case of immediate jeopardy only by proving that CMS's determination was clearly erroneous. 42 C.F.R. � 498.60(c)(2).

The evidence offered by CMS establishes a prima facie case that Petitioner's noncompliance on April 19, 2003, was at an immediate jeopardy level. The evidence shows a likelihood of serious injury, harm, impairment, or death to R2 as a consequence of his elopement. To establish immediate jeopardy it is not necessary to show that a resident or residents sustained serious injury, harm, impairment, or died as a result of a deficiency. Immediate jeopardy exists also where there is no proof that a deficiency has actually harmed a resident but where the deficiency is likely to cause serious injury, harm, impairment, or death to a resident. 42 C.F.R. � 498.60(c)(2); Innsbruck HealthCare Center, DAB No. 1948 (2004).

Here, the prima facie evidence establishes a likelihood that serious injury, harm, impairment, or death to R2 from Petitioner's noncompliance. That evidence shows that R2 was allowed to exit the premises and was unsupervised for a time period of several hours. R2, demented, disoriented, confused, and frail, was at risk for falls. R2 was assessed as at risk for falls, secondary to his ingestion of psychotropic medication, Risperal. SOF 18, 21. R2 also suffered from decreased muscle strength and poor balance, increasing the risk for a fall. SOF 33. The facility is located in Chicago and is "in a very busy traffic area with fast moving and heavy traffic to the north, south and west streets adjacent to it." Jt. Ex. 1, at 4. R2 had been assessed as unable to function in the community due to his inability to "recognize danger (e.g., crossing streets)." SOF 19. Even though it was spring, R2 was exposed to the elements during his elopement during the late evening and the early hours of the morning when the temperature often dips. R2 is frail and elderly and vulnerable to the consequences of such exposure. R2 was missing from the facility for several hours, during which there was a likelihood of serious injury, harm, impairment, or death. Therefore, CMS's determination that Petitioner's noncompliance was at the immediate jeopardy level is not clearly erroneous.

E. The amount of the per instance CMP assessed against Petitioner, $3,050, is reasonable.

As noted above, a per instance CMP can range from $1,000 to $10,000. In considering whether the amount of the $3,050 CMP imposed by CMS is reasonable, I applied the four factors listed in 42 C.F.R. � 488.438(f). The factors are: the facility's history of noncompliance; the facility's financial condition; the factors specified in 42 C.F.R. � 488.404; and the facility's degree of culpability which includes, but is not limited to, neglect, indifference, or disregard for resident care, comfort or safety. The factors to be considered under 42 C.F.R. � 488.404 include the scope and severity of the deficiency and the facility's prior history of noncompliance with reference to the cited deficiency.

There is evidence that Petitioner's financial condition is such that it could pay $3,050 as a penalty. Petitioner reported a net profit of $273,647, as defined in paragraph 19, line 43, of its Illinois Department of Public Aid Medicaid cost report, for the period of January 1, 2002 - December 31, 2002. Its total adjusted net profit, as defined in the same report, for the same period was $662,622. SOF 40. The scope and severity of the deficiency was an isolated incident, but at the immediate jeopardy level. Petitioner's financial condition and the scope and severity of the deficiency suggest that a CMP higher than the minimum of $1,000 is reasonable.

CMS made no argument concerning Petitioner's culpability, and I conclude that Petitioner's degree of culpability is relatively low in this situation. Petitioner discovered R2's absence very quickly and immediately started a search. Petitioner did an appropriate investigation of the elopement and took actions to improve its elopement prevention program. Its actions indicated concern and regard for R2's care. Nonetheless, although culpability can be used to substantiate a higher CMP, the absence of culpability is not a mitigating circumstance in reducing the amount of the penalty. 42 C.F.R. � 488.438(f)(4).

Petitioner has had a prior enforcement history. D and E level deficiencies were noted in a 1997 survey (no remedies imposed). SOF 41. Allegations of a G level deficiency was noted in July 1998 and another G level deficiency was noted in August 1998. Two D level deficiencies were also alleged in the same survey cycle that concluded in December of 1998 (a $4,900 CMP was imposed). Id. Between October 29, 1999 and January 20, 2000, surveyors documented an E and a G level violation, remedies were imposed, Petitioner appealed, and a decision (at the time of briefing) had not yet been issued. Id. Thus, Petitioner's history of noncompliance also suggests that a penalty higher than the minimum of $1,000 is reasonable.

A $3,050 CMP is the lowest per day CMP that can be imposed where a facility is found to be out of substantial compliance at a level of immediate jeopardy. If CMS had elected to impose a per day CMP, it would have amounted to more than $3,050 after the first day. Further, a $3,050 CMP is actually in the lower range of CMPs (from $1,000 to $10,000) allowed for per instance CMPs. Based on my de novo review of all of the applicable factors together and guided by the fact that $3,050 CMP is the lowest per day CMP that can be imposed where a facility is found to be out of substantial compliance at a level of immediate jeopardy, I find that CMS's assessment of a per instance CMP of $3,050 in this case is reasonable.

V. Conclusion

I grant CMS's motion for summary judgment and sustain CMS's determination against Petitioner of substantial noncompliance at the immediate jeopardy level and the imposition of a per instance CMP in the amount of $3,050.

Anne E. Blair

Administrative Law Judge

1. The facility's Quality Assurance Summary, dated June 9, 2003, also indicated that R2's "physical and mental status improvements had not been addressed with care plan updates." SOF 32. CMS argues that R2's improved ambulation directly affected the facility's assessment of R2's risk of elopement and that should have been reflected in R2's care plan. I agree. However, CMS then goes on to argue that the failure to initiate and update a resident's care plan is itself a violation of the federal requirement at 42 C.F.R. � 483.20(k). Indeed, there appears to be no evidence that any care plan specifically targeting elopement was ever prepared for R2 other than the words "tries to elope" added to an updated care plan on April 24, 2003, five days after R2's elopement. I agree that there is evidence that R2's care plan was lacking in this regard. However, that failure by the facility is not directly before me.

2. Petitioner urges that I do not rely on the findings of the Facility's Quality Assurance Summary, citing 42 C.F.R. section 483.75(o)(4) which provides, in part, that:

Good faith attempts by the [quality assurance] committee to identify and correct quality deficiencies will not be used as a basis for a sanction.

I find Petitioner's reliance on this regulation to be misplaced. CMS has not used the findings of the quality assurance committee as a basis for a sanction. This case was brought to the attention of the IDPH by an incident report, which triggered an incident report investigation and a partial extended survey. This deficiency was cited by IDPH in its letter dated May 22, 2003 prior to the issuance of the Facility's Quality Assurance Summary. SOF 5. Further, evidence of a facility's subsequent remedial measures where such measures are "mandated by superior governmental authority" are admissible. Fairfax Nursing Home, Inc., DAB No. 1794, at 9 - 11 (2001).