Windsor Care Center of Sacramento, DAB CR5564 (2020)

DECISION

Petitioner, Windsor Care Center of Sacramento (Petitioner or “the facility”), is a long-term care facility that participates in the Medicare program.  Based on surveys that were completed on January 19, February 22, and April 3, 2017, the Centers for Medicare & Medicaid Services (CMS) determined that Petitioner was not in substantial compliance with Medicare participation requirements and imposed against Petitioner a per-instance civil money penalty (CMP) of $14,913 and a denial of payment of new admissions (DPNA) from March 14 through April 2, 2017.  For the reasons discussed below, I find that Petitioner was not in substantial compliance with Medicare program requirements and the remedies imposed are reasonable.

I. Background

The Social Security Act (Act) sets requirements for skilled nursing facility (SNF) participation in the Medicare program.  The Act authorizes the Secretary of the United States Department of Health & Human Services (Secretary) to promulgate regulations implementing those statutory provisions.  Act § 1819 (42 U.S.C. § 1395i-3).  The Secretary’s regulations are found at 42 C.F.R. part 483.

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A facility must maintain substantial compliance with program requirements in order to participate in the program.  To be in substantial compliance, a facility’s deficiencies may pose no greater risk to resident health and safety than “the potential for causing minimal harm.”  42 C.F.R. § 488.301.

The Secretary contracts with state agencies to conduct periodic surveys to determine whether SNFs are in substantial compliance with the participation requirements.  Act § 1864(a) (42 U.S.C. § 1395aa(a)); 42 C.F.R. §§ 488.10, 488.20.  The Act and its implementing regulations require that facilities be surveyed on average every twelve months, and more often if necessary, to ensure that identified deficiencies are corrected.  Act § 1819(g)(2)(A) (42 U.S.C. § 1395i-3(g)(2)(A)); 42 C.F.R. §§ 488.20(a), 488.308.

On January 19 and February 22, 2017, surveyors from the California Department of Public Health (“state agency”) completed surveys to investigate an entity-reported incident that occurred on January 18, 2017.  CMS Exhibits (Exs.) 1 at 1-2; 2 at 1; 3 at 1.  The state agency found that the facility was not in substantial compliance with Medicare participation requirements and that the cited deficiency constituted immediate jeopardy to resident health and safety.1   CMS Ex. 1 at 1-2.  The state agency determined that the facility was not in substantial compliance with the participation requirement that it ensure that the resident environment remains as free of accident hazards as is possible and that each resident receives adequate supervision and assistance devices to prevent accidents (42 C.F.R. § 483.25(d)2 (Tag F323)3 at the “J” level of scope and severity).4   CMS Ex. 1

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at 1.  By letter dated February 27, 2017, CMS informed Petitioner that the cited deficiency posed immediate jeopardy on January 19, 2017, and that the noncompliance constituted “substandard quality of care.”5   CMS Ex. 2 at 1.  CMS imposed a per-instance CMP in the amount of $14,913.  CMS Ex. 2 at 2.  CMS also imposed a discretionary DPNA, effective March 14, 2017, that would remain in effect until Petitioner returned to substantial compliance.  CMS Ex. 2 at 2. 

On or about March 1, 2017, Petitioner submitted a plan of correction in which it reported that corrective actions would be completed by March 8, 2017.  P. Ex. 10.  On April 19, 2017, after the state agency conducted a follow-up survey on April 3, 2017, CMS informed Petitioner that it had returned to substantial compliance, effective April 3, 2017.  CMS Ex. 3 at 1-2.  At that time, CMS discontinued the DPNA.  CMS Ex. 3 at 2.

On April 20, 2017, Petitioner requested an administrative law judge (ALJ) hearing.  Pursuant to my Acknowledgment and Pre-Hearing Order (Pre-Hearing Order), CMS submitted a pre-hearing brief (CMS Br.) incorporating a motion for summary judgment, along with 10 exhibits (CMS Exs. 1-10).  Petitioner filed an opposition to CMS’s motion for summary judgment and a pre-hearing brief (P. Br.), and also submitted 12 exhibits (P. Exs. 1-5 and 7-13).  CMS submitted a reply, which was not contemplated by the Pre-Hearing Order and not accompanied by a motion for leave; therefore, I do not address that submission. 

Petitioner submitted the written direct testimony of five witnesses.6   P. Exs. 1-5.  Pursuant to my Pre-Hearing Order, I explained that a hearing would be necessary only if a party requested an opportunity to cross-examine a witness or witnesses for whom the opposing party submitted written direct testimony.  Pre-Hearing Order §§ 8-10.  CMS has

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not requested an opportunity to cross-examine Petitioner’s witnesses.7   Therefore, a hearing is unnecessary for the cross-examination of any witnesses.  Because a hearing is unnecessary, I need not address CMS’s motion for summary judgment, and I issue this decision on the merits. 

Petitioner has raised vague and undeveloped evidentiary objections to CMS Exhibits (Exs.) 1, 4, 5, 6, 8, and 10, which it submitted in the form of a half-page table that is devoid of any narrative discussion, references to particular statements, or citations to specific page numbers.  For example, Petitioner objects to CMS Ex. 5, a 60-page document consisting of handwritten surveyor notes and approximately 40 pages of Petitioner-generated documents that include resident records, staff training records, staff members’ written statements, facility policies, and a map of the facility.  Without any specificity, Petitioner broadly objects to this exhibit on the bases of relevance, hearsay, lack of personal knowledge, improper expert opinion, and failure to authenticate.  Petitioner’s objections are so inadequate that it appears that Petitioner expects me to articulate and develop objections on its behalf, which I will not do.  Likewise, Petitioner baselessly objects to CMS Ex. 4, which is the “CASPER” Report that details Petitioner’s history of deficiencies with respect to Medicare participation requirements, on the basis of “relevance”; however, I am required to consider this history when assessing the reasonableness of the CMP.  42 C.F.R. § 488.404.  Similarly, Petitioner does not provide even the barest of explanations for its objections to CMS Exs. 1, 6, 8, and 10, and once again, I will not endeavor to formulate objections and supporting arguments on Petitioner’s behalf.  I add that while I may apply the Federal Rules of Evidence, they are not strictly binding on these proceedings.  See 42 C.F.R. § 498.61 (“Evidence may be received at the hearing even though inadmissible under the rules of evidence applicable to court procedure.”).  Therefore, I am not required to exclude evidence on the basis of vague objections raised pursuant to the Federal Rules of Evidence, and absent any assertions of why these exhibits or portions thereof are irrelevant, are the product of hearsay, are based on a lack of personal knowledge, are premised on improper expert opinion, or are unauthenticated, I will not speculate as to the specific bases for Petitioner’s objections.

Petitioner filed an opposed motion (P. Motion) seeking the admission of P. Ex. 6, an item of “physical evidence.”  Specifically, Petitioner seeks the admission of a “small triangular metal clamp, known in the construction industry as a ‘hog ring.’”  P. Motion at 1; see P. Ex. 7 (photograph of a hog ring).  Petitioner argues that the “central issue in this case is the suitability and quality of . . . Petitioner’s fence extension,” and the admission of this physical evidence “will be useful . . . in assessing whether Petitioner reasonably should have been able to predict that a skilled nursing facility resident would be able to pry apart the hog rings and create a breach in the fence.”  P. Motion at 1-2.  I deny Petitioner’s

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motion because I do not need to examine a hog ring to accept as true Petitioner’s claim that it would be very difficult, if not impossible, to pry apart a hog ring without an appropriate tool.8   P. Motion at 1-2; see P. Ex. 2 at 2.

I admit CMS Exs. 1-10 and P. Exs. 1-5 and 7-13 into the evidentiary record.

II. Issues

The following issues will be addressed in this decision:

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

2) If Petitioner was not in substantial compliance with 42 C.F.R. § 483.25(d), whether the finding of immediate jeopardy subject to review.

3) If Petitioner was not in substantial compliance with 42 C.F.R. § 483.25(d), whether the enforcement remedies, to include a $14,913 per-instance CMP and a DPNA, are reasonable.

III. Findings of Fact and Conclusions of Law

 A. Background

Petitioner is located in Sacramento, California.  CMS Ex. 1 at 1.  According to Petitioner’s administrator, Petitioner is a “locked facility” with a perimeter that “is secured by a nine-foot chain link fence.”  P. Ex. 1 at 3.  Petitioner’s administrator testified that its fence was originally six feet tall and had been extended to a height of nine feet.  P. Ex. 1 at 3.  The administrator explained that the adjacent property has a seven-foot tall wooden fence (P. Ex. 1 at 3), and based on photographs and a map of the Petitioner’s facility, the wooden fence runs along the north edge of Petitioner’s property.  CMS Ex. 5 at 59; P. Exs. 8-9.  A handwritten notation on the facility map indicates that the elopement incident that is the basis for the cited deficiency took place on the perimeter fence on the northern edge of Petitioner’s property, behind Petitioner’s laundry and boiler rooms.  CMS Ex. 5 at 59.

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Mario Gutierrez, the operator of a construction company that added the three-foot extension to Petitioner’s fence, testified that his company built the extension in January 2015.  P. Ex. 2 at 1-2.  Mr. Gutierrez explained that the three-foot extension “was stretched taut between each set of posts, attached to the posts using tension bands, and then attached to the existing six-foot fencing using devices known as ‘hog rings.’”9   P. Ex. 2 at 2.  Mr. Gutierrez explained that a hog ring “is essentially a triangular metal clamp,” and that it is “tightened and clamped into place using a special tool called a ‘hog ring pliers.’”  P. Ex. 2 at 2; see P. Ex. 7 (photograph of hog ring).  He further explained that the hog rings were placed 6-12 inches apart in order to hold the three-foot fence extension in place.  P. Ex. 2 at 2.  Mr. Gutierrez testified that a hog ring “is extremely difficult or even impossible to remove without a tool,” and a bolt cutter would ordinarily be used to remove a hog ring.  P. Ex. 2 at 2.

Mr. Paul Veronin, Petitioner’s maintenance director, testified that he inspected the perimeter fence on January 19, 2017, the day after a resident eloped from the facility.  P. Ex. 3 at 1-2.  Mr. Veronin reported that “some of the metal clamps joining the three-foot fence extension to the six-foot main fence were missing” and that he “found several metal clamps on the ground by the fence.”10   P. Ex. 3 at 2.  Mr. Veronin reported that Petitioner later reinforced the fence and added motion detector lights.  P. Ex. 3 at 2.  Neither Mr. Gutierrez nor Mr. Veronin testified that they had previously inspected the fence to verify that all of the hog rings that had been installed in January 2015 continued to remain in place prior to the resident’s elopement.  P. Exs. 2, 3; see P. Ex. 10 at 3-4 (March 1, 2017 statement by Petitioner, in its plan of correction, that it would perform preventative maintenance on the fence on a weekly basis).

On January 18, 2017, Resident # 1 was discovered to be missing from the facility.  CMS Ex. 5 at 14 (Petitioner’s January 19, 2017 letter to the state agency); 22 (January 18, 2017 6:00 pm progress note reporting that Resident # 1 was “noted missing”).  Resident # 1 was a 67-year-old male who had initially been admitted to the facility on December 30, 2016.  CMS Ex. 5 at 16.  An admission record documents that Resident # 1 had a primary diagnosis of early onset Alzheimer’s disease, and additional diagnoses that included altered mental status, affective disorder, and major depressive disorder.  CMS Ex. 5 at 16-17.  On January 6, 2017, Resident # 1 was unable to complete a Brief Interview for Mental Status.  CMS Ex. 5 at 18-19.  An alternative assessment revealed that Resident # 1 had problems with short-term and long-term memory, an inability to recall the current season or his current status in a nursing home, that his cognitive skills for daily decision-making were severely impaired, and that he “never/rarely made decisions.”  CMS Ex. 5 at 19.  A wandering risk assessment, completed on December 30, 2016, reported that

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Resident # 1 was forgetful and had a short attention span, did not understand his surroundings, and had a loss of self-control.  CMS Ex. 5 at 20.  Resident # 1 had “[k]nown wandering/[history] of wandering,” and ambulated independently without assistance.  CMS Ex. 5 at 20.  Evidence submitted by Petitioner indicates that Resident # 1 had a recent three-week hospitalization, from November 15 through December 7, 2016, for a principal diagnosis of altered mental status, at which time imaging “showed changes suggestive of anoxic brain injury [versus] metabolic insult such as hypoglycemia.”  P. Ex. 11 at 1.  Resident # 1 had “remained in the hospital due to lack of capability to make decision[s].”  P. Ex. 11 at 1.  The hospital discharge report indicated recent improved speech and communication, and that “[i]t is possible that he has sustained some degree of cognitive deficit due to chronic anoxic injury to [the] brain as the result of microvascular disease and drug use.”  P. Ex. 11 at 1.  

Resident # 1 had a care plan, initiated on January 11, 2017, in place to address his “risk for elopement [related to] [p]oor cognition, [d]ementia with behaviors, [and] depression [as evidenced by] wishes to return to ‘the streets.”  CMS Ex. 5 at 21.  The care plan reported that Resident # 1’s discharge goal for an alternative placement was known to Petitioner, and that Petitioner’s discharge planning staff “will be assisting . . . in pursu[it] of finding functionally appropriate location for transition.”  CMS Ex. 5 at 21.   

A “Nurses’ Weekly Look Back Summary,” dated January 10, 2017, reported that Resident # 1 was disoriented to place and did not exhibit wandering behavior.  P. Ex. 12 at 1, 3.  Resident # 1 performed activities of daily living independently, did not use an ambulation aid, and had no functional limitations.  P. Ex. 12 at 2-5.  A subsequent Nurses’ Weekly Look Back Summary, dated January 17, 2017,11 reported similar information.  P. Ex. 13. 

On January 18, 2017, Resident # 1 a had psychiatric consultation “due to irritability and [prescribing] of psychotropic med[ications].”  CMS Ex. 5 at 22.  The consultation report, which was entered as a progress note at 3:32 pm that same day, provided diagnoses of major neurocognitive disorder, polysubstance dependence, and antisocial traits.  CMS Ex. 5 at 23.  The psychiatrist documented a past medical history that included anoxic brain injury.  CMS Ex. 5 at 22.  The report stated that Resident # 1 was “labile and easily agitated,” and documented that the psychiatrist increased the dosage of Depakote to address irritability.  CMS Ex. 5 at 23.  The history of present illness included the following discussion:

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Patient upset about the psychiatric referral, repeatedly saying that he is not crazy and he needs to get out of here.  Says he will jump the fence next week[12 ] if he is not released.  Says that he has at least $8000 and can live in an apartment by himself.  He says that he has fled facilities before and can do it again.

CMS Ex. 5 at 22. 

A certified nursing aide reported that she left a dinner tray for Resident # 1 on January 18, 2017.  CMS Ex. 5 at 44.  After discovering that Resident # 1 had not touched his tray, she attempted to locate the resident and also notified the charge nurse.  CMS Ex. 5 at 44.  Staff members reported that they last saw Resident # 1 at approximately 4:30 pm that day.  CMS Ex. 5 at 41, 49.  A number of statements submitted by staff members detail efforts to locate Resident # 1 beginning at 6:00 pm that same day.  CMS Ex. 5 at 35-55.

Petitioner’s administrator testified that its social services director was working to find another placement and testified that she “did not know he was planning to elope before his discharge process was complete.”  P. Ex. 1 at 2.  She explained that although she was aware “that he did have an elopement risk, [she] did not perceive it as a risk that our usual and customary anti-elopement precautions would be insufficient” to address because Resident # 1 “had not exhibited any wandering tendencies since he had been at Windsor.”  P. Ex. 1 at 2.  The administrator stated that the psychiatrist did not inform Petitioner’s staff “of any issues with Resident [#1] after her consultation with him on January 18.”  P. Ex. 1 at 3.  The administrator reported that she inspected the perimeter fence on the evening of January 18 and did not see a breach, and that Petitioner’s maintenance director identified a breach through his discovery of “triangular metal clamps on the ground near the fence.”  P. Ex. 1 at 4.

The psychiatrist submitted written testimony summarizing her January 18, 2017 consultation with Resident # 1.  P. Ex. 4.  The psychiatrist did not perceive Resident # 1’s comments that he would elope by scaling the fence to be “a credible threat of imminent elopement.”  P. Ex. 4 at 2.  Petitioner’s social services director testified that she was working with Resident # 1 to find another living situation and that while she was aware he was an elopement risk, she “did not perceive it as a risk that our usual and customary anti-elopement precautions would be insufficient to guard against.”  P. Ex. 5 at 2.

The facility’s “Elopement Prevention” policy, which had last been revised in November 2012, stated that the facility will “provide a safe and secure environment and ensure the safety of any resident attempting to elope from the facility.”  CMS Ex. 5 at 56.  The

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policy further required that “[r]esidents determined to be at risk for elopement upon admission or during their stay will have an exit alarm device placed (i.e., Code Alert, Wanderguard bracelet, etc.) comfortably on their arm or ankle to alert staff of attempts to exit the facility.”13   CMS Ex. 5 at 56.  Petitioner had an “Elopement Response” policy, which had been last revised in November 2012, that listed such interventions as wander/wrist-anklet and/or bed alarms, staff alerts to keep frequent watch, stop signs on doors, and Velcro wander strip on doors.  CMS Ex. 5 at 58.

B. Analysis

Petitioner was not in substantial compliance with 42 C.F.R. § 483.25(d) because it did not take all reasonable steps to ensure that a resident with a foreseeable risk of elopement was given adequate supervision and assistance devices to prevent elopement from the facility.

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

(d) Accidents. The facility must ensure that –

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

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

42 C.F.R. § 483.25(d).

The Departmental Appeals Board (DAB) has explained that the stated goal of 42 C.F.R. § 483.25(d)14 is “to prevent ‘accidents’ that might harm a SNF resident.”  Crawford Healthcare & Rehab.,DAB No. 2738 at 5 (2016).  A facility must “take all reasonable steps to ensure that a resident receives supervision and assistance devices that meet his or her assessed needs and mitigate foreseeable risks of harm from accidents.”  Briarwood Nursing Ctr., DAB No. 2115 at 5 (2007); Guardian Health Care Ctr., DAB No. 1943 at 18 (2004).  The facility must anticipate what accidents might befall a resident and take steps to prevent them.  “A facility is permitted the flexibility to choose the methods it

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

The statement of deficiencies reported that “[b]ased on observation, staff interview[s], and clinical record and facility policy review, the facility failed to identify that 1 of 5 sampled residents (Resident 1) was missing from the facility for 1 hour and 35 minutes.  This failure placed all residents (113) at risk for elopement.”  CMS Ex. 1 at 2.  The surveyors noted that the facility had “limited video surveillance,” and that the facility had determined, the day immediately after the elopement, that Resident # 1 “went through the fence.”  CMS Ex. 1 at 5.  The surveyors also documented Petitioner’s allegation that Resident # 1 had “disconnected the metal clamps connecting the 3 foot fence to the top of the 6 foot fence and climbed through.”  CMS Ex. 1 at 5.  The state agency determined that the deficiency “had the potential to result in serious death or injury for Resident 1.”  CMS Ex. 1 at 2.   

In its plan of correction, Petitioner reported that it had secured additional clamps to the fence, installed additional and overlapping fencing that was secured with galvanized braided cable wire and solar light sensors to “four (4) areas of the external facility,” and scheduled weekly preventative maintenance to monitor the fence.  P. Ex. 10 at 3-4.  

Petitioner “does not dispute that Resident # 1 exited the facility at approximately 4:30 pm on January 18, 2017.”  P. Br. at 1-2.  Petitioner puts forth the following theory of how Resident # 1 eloped:

[A] 67-year-old formerly homeless resident with psychiatric and substance abuse issues who was bound and determined to leave the facility and return to the homeless community in Chico apparently scaled a nine-foot fence, pried apart metal clamps joining the bottom six feet of the fence to the top three feet, acrobatically crawled through a small opening between the fence sections, and somehow subsequently maneuvered over a second, seven-foot wooden fence.

P. Br. at 1-2.  Petitioner reported that, the morning after Resident # 1’s elopement, it “identified the breach in the fence created by Resident # 1.”  P. Br. at 9.  Petitioner

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explained that Resident # 1 “would have had to climb up the fence and vertically slide between the overlapping portions of chain link,” and that the only visual evidence of the breach in the fence “was the missing clamps.”  P. Br. at 9.  Petitioner explained that its fence contractor opined that “someone would usually need a bolt cutter in order to remove a hog ring,” and the contractor was “very surprised to learn that someone was able to remove one hog ring, let alone multiple hog rings.”  P. Br. at 8, citing P. Ex. 2 at 2.  A facility map indicates that the site of the suspected breach was at the far right corner of the northern edge of Petitioner’s property, behind the part of the building housing Petitioner’s laundry and boiler rooms.  CMS Ex. 5 at 59.

Petitioner argues that Resident # 1’s elopement was not foreseeable, stating:

Resident 1’s elopement resulted from a series of extremely unlikely events.  Windsor could not have reasonably foreseen that a resident would:  1) have the physical strength necessary to dissemble [sic] the clamps, which were six feet above the ground and usually require a bolt cutter to remove; 2) be able to climb up to the height at which the sections of the fence overlap and are attached; 3) have the strength to wrest apart the overlapping portions of chain link and create an opening large enough for a person to climb through; 4) have the agility to actually climb through such an opening; and 5) then scale or otherwise get himself over, under, or through the neighbor’s seven-foot wooden fence.  Such an elopement would have taken a herculean effort.  The probability that a resident might manage to elope in such a manner was minuscule, and Windsor could not reasonably have been expected to predict such a remote occurrence.  The possibility of a second resident eloping in such a manner was even more remote.

P. Br. at 9-10.

The parties largely agree on the facts; in fact, Petitioner does not dispute the majority of facts presented by CMS.  Petitioner disagrees with CMS’s allegation that Resident # 1 was at a “high risk’ of elopement,” because CMS cited supporting evidence that Resident # 1 was at “high risk for wandering” rather than at high risk for elopement.  P. Br. at 10; see CMS Ex. 5 at 20.  Regardless, Resident # 1’s care plan recognized that he had “a risk for elopement.”  CMS Ex. 5 at 21.  Petitioner also disputes CMS’s factual statement that Resident # 1 was last seen on video at 3:00 pm, not because this statement is untrue, but because a staff member reported that she saw Resident # 1 in person at approximately 4:45 pm.  P. Br. at 10, citing CMS Br. at 3 (citing CMS Ex. 5 at 23).  Petitioner also disputes CMS’s allegation that it performed 30-minute checks of the outside area, and argues that it completed laps outside of the facility every 15 minutes.  P. Br. at 10-11; P. Ex. 1 at 3.  Petitioner also disputes the duration that Resident # 1 was missing before staff began to search for him, arguing that he was last seen at 4:45 pm and determined to be missing when staff noticed that he had not touched his dinner tray.  P. Br. at 11.  Even

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assuming that Resident # 1 was last seen at 4:45 pm, Petitioner did not discover that he was missing until 6:00 pm.  See CMS Ex. 5 at 22.

Petitioner is a locked facility (P. Br. at 8, citing CMS Ex. 1 at 5), and its own policy requires it “to identify residents at risk [for elopement] and intervene accordingly.”  CMS Ex. 5 at 56.  Although the administrator testified that Petitioner’s staff “complete[s] laps around the exterior of the facility approximately every 15 minutes” and “regularly monitored Resident 1, checking on him at least every 2 hours,” it produced no records or logs documenting that staff performed such monitoring and did so at the stated frequency.  P. Ex. 1 at 3.  Resident # 1, a cognitively impaired resident who had been identified as an elopement risk, exited the facility into a storm without Petitioner’s knowledge, and no one had seem him for at least an hour and fifteen minutes prior to the discovery that he was missing.  P. Br. at 11 (discussing when Resident # 1 was last seen); see P. Br. at 9 (reporting “high winds and rain” at the time Resident # 1 eloped); P. Br. at 12 (reporting “no evidence that other residents were out in the storm in the outside fenced area on the evening of January 18 following Resident 1’s elopement.”).  Likewise, Resident # 1 remained missing until 5:00 pm the following day, January 19, 2017.  CMS Ex. 5 at 10.  Although Petitioner argues that Resident # 1 “apparently scaled a nine-foot fence, pried apart metal clamps . . . acrobatically crawled through a small opening . . . and somehow subsequently maneuvered over a second, seven-foot wooden fence” (P. Br. at 1-2) and “apparently removed” the metal clamps attaching the sections of the fence (P. Br. at 9), Petitioner has merely offered an educated guess about how Resident # 1 eloped.  Petitioner has qualified its theory with terms such as “apparently” and “if,” presumably because it is unable to explain how Resident # 1 could perform the difficult (or even impossible) task of opening multiple hog rings without any tools.  See P. Br. at 1 (Resident # 1 “apparently scaled a nine-foot fence”) (emphasis added); P. Br. at 11, citing P. Exs. 1 at 3; 3 at 2 (“If Resident 1 did in fact elope over or through the nine-foot chain link fence, he would have also had to maneuver over or around the neighboring seven-foot wooden fence.”) (emphasis added).  In fact, Petitioner recognizes that, for its theory to be true, Resident # 1’s efforts would have been “acrobatic” and “herculean.”  P. Br. at 1, 9-10.  Even Petitioner’s fence contractor explained that, based on Petitioner’s theory of how the elopement occurred, it would have been “extremely difficult or even impossible . . . without a tool.”15   P. Ex. 2 at 2; see P. Br. at 8.  Specifically, the fence contractor opined that a bolt cutter was necessary to remove the multiple hog rings connecting the fence extension.  P. Ex. 2 at 2.

Petitioner assumes that based on the fact that its maintenance supervisor found metal clamps on the ground, Resident # 1 had opened the exact same clamps when he carried

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out his acrobatic and herculean feat.  However, in the absence of any evidence that Resident # 1 had access to a bolt cutter or similar tool (P. Ex. 2 at 2), or that this 67-year-old cognitively impaired man was acrobatic enough to maneuver through overlapping fence sections, strong enough to pry metal when others would require a tool, and savvy enough to devise a scheme to deconstruct a fence in less than 15 minutes, I am skeptical that the “apparent” means of elopement is feasible.  I note that Petitioner’s sole support for this theory is its discovery of several clamps on the ground near the fence; Petitioner has not claimed that it regularly inspected the fence since its January 2015 installation, and to the contrary, it appears that it did not regularly inspect the fence until after the elopement.  See P. Ex. 10 at 3-4.  Petitioner explained that the breach was not easily detected, and it does not address whether this breach could have pre-dated Resident # 1’s elopement, remaining undetected until a motivated resident eagerly looking for a means to get out discovered it.  CMS Ex. 5 at 22; see P. Ex. 1 at 4 (administrator testimony that “[i]f our staff could not see the breach in the fence when they were looking for such a breach, I don’t see how another resident could have stumbled upon it.”).

I also consider that there were other plausible means for Resident # 1 to elope that would not require a herculean effort, the strength to pry metal, and an acrobatic ability to maneuver between overlapping sections of fence.  For instance, it appears that a physically capable resident could scale a nine-foot section of fence by climbing the fence at a stable point, such as a corner post, which would not necessitate prying open any hog rings.  Although more dangerous owing to the increased height, such an endeavor would be far less onerous if the resident had the assistance of other residents (i.e., to provide a boost or to carry a chair back into the facility).  See CMS Ex. 1 at 5 (noting last video footage prior to elopement showed Resident # 1 carrying a chair down the hall); P. Br. at 10 (Petitioner’s statement that Resident # 1 was last seen on video at 3:00 pm).  Further, it appears that Petitioner, based solely on its discovery of hog rings on the ground, determined that Resident # 1 eloped by breaching the fence, yet there is no evidence that Petitioner considered whether Resident # 1 eloped through other means and that its door alarms, cameras, and wearable alarm devices all functioned properly.16   The simple fact is, regardless of the height of the fence or how Resident # 1 was able to breach the fence (assuming he did), Petitioner has not shown how it provided the supervision and assistance devices to prevent Resident # 1’s elopement from the facility.  Petitioner allowed Resident # 1 to access an out-of-view corner of its yard, behind its laundry and boiler rooms, where he could presumably climb and deconstruct a fence

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without detection.17   And although Petitioner attested to checking on Resident # 1, who was a known elopement risk, every two hours and to walking a lap of the facility’s exterior every 15 minutes, such supervision, even if it occurred, was clearly inadequate for a resident who was a known elopement risk.

Further, I find it remarkable that in such an instance where a resident eloped, Petitioner did not immediately review the report of the psychiatric consultation that had been performed shortly before the elopement.  Although Petitioner denies that it needed to review such a report the very same day, it is difficult to comprehend why Petitioner would not review this report in order to identify any clues regarding Resident # 1’s mental state, potential elopement plans, or any statements regarding where he planned to go after he left the facility.  Had Petitioner reviewed this record, it would have immediately learned of Resident # 1’s plan to “jump the fence.”  CMS Ex. 5 at 22.  Instead, Petitioner did not learn of the fence breach until January 19, 2017, many hours after Resident # 1 purportedly created a breach that could be accessed by other residents.  P. Ex. 1 at 4.

I need only determine whether Petitioner substantially complied with 42 C.F.R. § 483.25(d), which means that I must determine whether Petitioner ensured that the resident environment was as free of accident hazards as possible and that each resident received adequate supervision and assistance devices to prevent accidents.  42 C.F.R. § 483.25(d).  Even if I accept that a cognitively impaired resident eloped from the facility through acrobatic maneuvers and a “herculean effort,” and was able to muster the remarkable strength to bend multiple hog rings without any tools, Petitioner was obligated to “provide a safe and secure environment and ensure the safety of any resident attempting to elope from the facility.”  CMS Ex. 5 at 56 (facility elopement prevention policy).  Not only did Petitioner’s fence fail to contain a resident who was a known elopement risk, but Petitioner failed to have the supervision and assistance devices (i.e., monitored alarms, motion sensors, cameras, wearable alarm devices) that could have prevented the elopement or notified Petitioner of the elopement.  Resident # 1 was a known elopement risk, and Petitioner failure to provide adequate supervision when he presumably created or accessed a breach in a corner of Petitioner’s perimeter fence that was likely out of view.  There is a sufficient basis to find noncompliance with 42 C.F.R. § 483.25(d).  Resident # 1 eloped and was not located for nearly 24 hours, and Petitioner did not substantially comply with 42 C.F.R. § 483.25(d).

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

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

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

Unlike per-day CMPs, under the regulations, there is only a single monetary range for a per-instance CMP regardless of whether or not immediate jeopardy is present.  42 C.F.R. §§ 488.408; 488.438(a)(2).  Consequently, because CMS only imposed a per-instance CMP against Petitioner, a successful challenge to the immediate jeopardy finding would not affect the range of CMP amounts that CMS could collect.  NMS Healthcare of Hagerstown, DAB No. 2603 at 6-7.  Further, the evidence does not indicate that Petitioner had a NATCEP, nor does Petitioner argue that it had one.  For these reasons, the immediate jeopardy finding is not subject to appeal, and I may not review it.

D. A per-instance CMP of $14,913 is a reasonable enforcement remedy for Petitioner’s noncompliance with 42 C.F.R. § 483.25(d).

If a facility is not in substantial compliance with program requirements, CMS has the authority to impose one or more of the enforcement remedies listed in 42 C.F.R. § 488.406, including a CMP.  In determining whether the CMP imposed against Petitioner is reasonable, I apply the factors listed in 42 C.F.R. § 488.438(f).  42 C.F.R. § 488.438(e)(3).  These factors include:  1) the facility’s history of noncompliance; 2) the facility’s financial condition; 3) the factors specified in 42 C.F.R. § 488.404; and 4) the facility’s degree of culpability, which includes neglect, indifference, or disregard for resident care, comfort or safety.  42 C.F.R. § 488.438(f).  The absence of culpability is not a mitigating factor.  Id.  The factors in 42 C.F.R. § 488.404 include:  1) the scope and severity of the deficiency; 2) the relationship of the deficiency to other deficiencies resulting in noncompliance; and 3) the facility’s prior history of noncompliance in general and specifically with reference to the cited deficiencies.

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I consider whether the evidence supports a finding that the amount of the CMP is at a level reasonably related to an effort to produce corrective action by a provider with the kind of deficiencies found, and in light of the above factors.  I am neither bound to defer to CMS’s factual assertions nor free to make a wholly independent choice of remedies without regard for CMS’s discretion.  See, e.g., Barn Hill Care Ctr., DAB No. 1848 at 21 (2002).  Unless a facility contends that a particular regulatory factor does not support the CMP amount, an ALJ must sustain it.  Coquina Ctr., DAB No. 1860 (2002).

At the time of the initial survey, the baseline CMP range was from $1,000 to $10,000 prior to adjustment for inflation.  42 C.F.R. § 488.438(a)(2).  With inflation adjustment, the CMP range was $2,063 to $20,628.  See 81 Fed. Reg. 61,538, 61,573-61,574 (Sept. 6, 2016).  CMS imposed a per-instance CMP of $14,913 for the noncompliance with 42 C.F.R. § 483.25(d).

Petitioner argues that its history of noncompliance “is not alarming and does not reveal a pattern of problems consistent with the current allegations.”  P. Br. at 20.  However, even if the prior survey history is not “alarming,” it is significant because it reveals that Petitioner had been cited for the same deficiency within the previous two years.  CMS Ex. 4 at 1.  Petitioner also argues that the “degree of potential or actual harm, the pervasiveness of the deficiencies, the relationship of one deficiency to others, and the facility’s prior history of noncompliance in general and specifically with reference to the cited deficiencies, supports no or low penalties.”  P. Br. at 20.  The fact that Resident # 1 was later, and fortunately, found to be safe does not negate the potential serious harm he faced:  a 67-year-old resident with a “major neurocognitive disorder” purportedly scaled and dismounted a nine-foot fence and possibly scaled and dismounted an adjacent seven-foot fence, in the midst of what Petitioner has described as wet and stormy conditions, which in and of itself exposed Resident # 1 to potential harm.  And after Resident # 1 successfully eloped, he was subject to storm conditions, darkness, winter temperatures, and a lack of any supervision, all of which exposed him to potential harm.  Further, assuming Resident # 1 created a breach in the fence, this breach remained available to other residents until Petitioner discovered it on January 19, 2017.

Petitioner’s deficiency was at the immediate jeopardy level, and Petitioner failed to provide the supervision and assistance devices necessary to prevent Resident # 1’s elopement.  Even if this deficiency did not amount to immediate jeopardy, which I do not find, a per-instance CMP at the upper mid-range of the penalty range is entirely appropriate for a deficiency that resulted in resident eloping and going missing for nearly 24 hours.  A $14,913 per-instance CMP is reasonable, although it may be too low in this instance to serve as a meaningful financial penalty.

Petitioner also disputes the imposition of a DPNA from March 14 through April 2, 2017.  P. Br. at 19.  CMS is authorized to impose a DPNA “for any days on which a SNF is not in substantial compliance.”  Rosewood Care Ctr. at Rockford, DAB No. 2466 at 20

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(2012), citing 42 C.F.R. § 488.417(a).  Petitioner argues that it was capable of returning to substantial compliance as of January 21, 2017.  P. Br. at 19, citing P. Ex. 1 at 5.  However, Petitioner, in its March 1, 2017 plan of correction, reported that it would complete various corrective actions by March 8, 2017.  P. Ex. 10.  Thereafter, the state agency completed a follow-up survey that determined that Petitioner had returned to substantial compliance as of April 3, 2017.  CMS Ex. 3 at 1.  It is “well-settled” that “the period of noncompliance continues until the facility affirmatively demonstrates a return to substantial compliance.”  Ridgecrest Healthcare Ctr., DAB No. 2493 at 15 (2013), citing Premier Living & Rehab. Ctr., DAB No. 2146 at 23 (2008); Lake City Extended Care, DAB No. 1658 at 12-15 (1998).  Not only is the burden on Petitioner to demonstrate that it returned to substantial compliance at a date earlier than that which CMS determined, but further, it must show that it was able to remain in substantial compliance as of the earlier date.  42 C.F.R. § 488.454(e); Hermina Traeye Mem’l Nursing Home, DAB No. 1810 at 13 (2002); Cross Creek Health Care Ctr., DAB No. 1665 (1998).  Petitioner has not shown that it returned to substantial compliance on January 21, 2017.

IV. Conclusion

For the reasons discussed above, I find that the facility was not in substantial compliance with the Medicare participation requirements.  A $14,913 per-instance CMP is reasonable.

1. Immediate jeopardy exists when “the provider’s noncompliance with one or more requirements of participation has caused, or is likely to cause, serious injury, harm, impairment, or death to a resident.” 42 C.F.R. § 488.301.
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2. Federal long-term care facility regulations substantially changed beginning on November 28, 2016. 81 Fed. Reg. 68,688 (Oct. 4, 2016). Prior to the regulatory revisions, the deficiency cited under 42 C.F.R. § 483.25(d) was found at 42 C.F.R. § 483.25(h). For reasons that are not apparent to me, the parties cite to the previous version of the applicable regulation in their briefing. Throughout this decision, I refer to the current version of the regulation, 42 C.F.R. § 483.25(d), that was in effect at the time of the survey.
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3. The statement of deficiencies identifies Tag F323 with a corresponding regulatory participation requirement of 42 C.F.R. § “483.25(d)(1)(2)(n)(1)-(3),” which presumably refers to two separate accident prevention provisions found in 42 C.F.R. § 483.25:  section 483.25(d)(1),(2), pertaining to accident prevention, supervision, and assistance devices, and section 483.25(n)(1)-(3), pertaining to the use of bed rails.  CMS Ex. 1 at 1-2.  It is unclear why the state agency referenced section 483.25(n)(1)-(3), and I do not further address it.
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4. Scope and severity levels are used by CMS and state survey agencies when selecting remedies.  As relevant here, a scope and severity level of “J” indicates an isolated instance of immediate jeopardy to resident health or safety.  State Operations Manual (SOM), Ch. 7, § 7400.3.1, https://www.cms.gov/Regulations-and-Guidance/Guidance/Manuals/Downloads/som107c07.pdf  (last visited March 13, 2020); see 42 C.F.R. § 488.408.
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5. Substandard quality of care, as applicable here, “means one or more deficiencies related to participation requirements under . . . § 483.24, Quality of life . . . which constitute . . . immediate jeopardy to resident health or safety . . . .” 42 C.F.R. § 488.301.
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6. Petitioner submitted the testimony of its administrator (P. Ex. 1), a “fencing contractor” (P. Ex. 2), its maintenance director (P. Ex. 3), a psychiatrist (P. Ex. 4), and its social services director (P. Ex. 5).
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7. In its reply, which I otherwise do not consider for the aforementioned reason, CMS requested a decision on the record if summary judgment is not granted.
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8. Rather than requesting the admission of a physical exhibit, it would have been more useful and appropriate for Petitioner to submit objective evidence, such as information regarding the type of metal, the hardness of the metal, available manufacturer literature pertaining to the hog ring, and the dimensions and thickness of the hog ring.
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9. I refer to clamps and hog rings interchangeably.
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10. The clamp appears in a closed position in the photograph submitted by Petitioner. P. Ex. 7.
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11. There is reason to question the thoroughness of these assessments. In particular, I note that the evaluating nurse reported that all of Resident # 1’s teeth were present. P. Ex. 13 at 8. However, only a day later, on January 18, 2017, a psychiatrist reported that Resident # 1 was “missing a number of teeth.” CMS Ex. 5 at 22.
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12. Interestingly, the psychiatrist reported that Resident # 1 was not oriented to the day of the week or the date. CMS Ex. 5 at 22. Based on this assessment, it is unclear whether Resident # 1 had an awareness of “next week” versus the present moment.
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13. The record does not indicate whether Resident # 1 wore a Wanderguard bracelet or another wearable alarm-activating sensor.
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14. Due to the revisions in the nursing home regulations, the DAB’s references to provisions in 42 C.F.R. § 483.25(h) are applicable to 42 C.F.R. § 483.25(d), where the referenced provisions are now found.
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15. And assuming Petitioner’s staff walked the grounds every 15 minutes (P. Ex. 1 at 3), as Petitioner claims, then Resident # 1 would have had to work very quickly to pry open the hog rings.
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16. There is no indication that Petitioner, after Resident # 1 was located, interviewed him to determine how he eloped, nor that Resident # 1, a risk for elopement, was even wearing a wearable alarm device, notwithstanding that such a device was required under Petitioner’s elopement prevention policy.  See CMS Ex. 5 at 56.
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17. I observe that the facility map shows a patio in a much more central location that is presumably in view of staff members. CMS Ex. 5 at 59.
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