Fort Worth Transitional Care Center, DAB CR6211 (2023)

DECISION

I grant summary judgment in favor of the Centers for Medicare & Medicaid Services (CMS).  I find that the undisputed material facts establish that Petitioner, Fort Worth Transitional Care Center, a skilled nursing facility, failed to comply with a Medicare participation requirement.  The undisputed material facts additionally support my finding that Petitioner’s noncompliance was so egregious as to put residents of its facility at immediate jeopardy.  The undisputed material facts also support remedies consisting of civil money penalties of $7,320 for each day of a period that began on April 18, 2022, and that ended on April 29, 2022, and $360 for one day, April 30, 2022.

I. Background

CMS filed exhibits in support of its motion for summary judgment, identified as CMS Exhibit (Ex.) 1-CMS Ex. 11.  In opposing CMS’s motion Petitioner filed exhibits that it identified as P. Ex. 1-P. Ex. 5.  Additionally, Petitioner objected to my receiving some of CMS’s exhibits into evidence, either entirely or in part.

Page 2

It is unnecessary that I rule on the admissibility of exhibits as I find no disputed issues of material fact.  I cite to some of the exhibits in this decision, but only to illustrate facts that are not in dispute or to explain why some of the facts averred by Petitioner are not relevant to my decision.

II. Issues, Findings of Fact and Conclusions of Law

A. Issues

The issues are whether undisputed material facts establish that:  Petitioner failed to comply substantially with a Medicare participation requirement; Petitioner’s noncompliance was so egregious as to put residents of Petitioner’s facility at immediate jeopardy; and CMS’s remedy determinations are reasonable.

B. Findings of Fact and Conclusions of Law

CMS alleges that Petitioner failed to comply substantially with the requirements of 42 C.F.R. § 483.25(d)(1)-(2).  This regulation requires a skilled nursing facility to ensure that its residents’ environment remains as free of accident hazards as is possible and additionally, to ensure that each of its residents receives adequate supervision and assistance devices to prevent accidents.

CMS centers its allegations of noncompliance on the care that Petitioner provided to a resident who is identified as R1.  CMS contends that undisputed facts establish that Petitioner’s staff knew that R1, a newly admitted resident, was at risk for eloping Petitioner’s premises.  It alleges that, despite this knowledge, the staff failed to supervise the resident closely on the evening of April 18, 2022, and failed to respond promptly to the alarms that the resident triggered when he exited Petitioner’s premises.  CMS asserts that these failures to supervise and respond not only contravened regulatory requirements but that it put R1 in immediate jeopardy

CMS contends also that undisputed facts prove that regulatory noncompliance extended to other residents because staff failed to timely develop plans to protect these residents from possible elopement or wandering.

I am mindful that in deciding whether to grant summary judgment I must base my decision only on undisputed material facts.  I understand also that I must draw inferences from the facts that are favorable to the party opposing the motion for summary judgment, assuming that such inferences are reasonable.

1. Noncompliance

I find the following facts to be undisputed.

Page 3

Petitioner admitted R1 to its facility on the afternoon of April 18, 2022.  CMS Ex. 5 at 1.  The resident was 82 years old and suffered from various impairments including dementia, high blood pressure, kidney disease, heart disease, diabetes, and emphysema.  Id. at 1-2; CMS Ex. 10 at 2.

The resident immediately sought to leave Petitioner’s premises.  Although R1 was in the company of members of his family, he nonetheless was very upset and agitated.  CMS Ex. 5 at 3.  He requested to leave the facility.  He was confused.  He paced the facility’s hallways, attempting to open all doors that he encountered.  Id.  The nursing staff determined that the resident’s behavior required that he be always within line of sight of the staff.  Id.  The only reasonable conclusion that I can draw from this determination is that staff knew that the resident needed to be kept under continuous supervision so long as he was in his agitated state and seeking to leave the premises.

Petitioner’s staff discussed R1’s condition with the resident’s daughter.  Staff advised the daughter that the resident’s agitation and behavior demonstrated that he would be better protected if he were placed in a locked memory unit.¹  CMS Ex. 5 at 3.

The resident continued to be agitated.  Staff fed him dinner in the presence of his family.  He continued to insist that he wanted to leave the facility and staff had to redirect him frequently.  CMS Ex. 5 at 3.

Staff took R1 to his room at about 7:00 p.m. on the evening of April 18.  CMS Ex. 5 at 3.  The resident remained agitated.  He continued to attempt to open all doors and to summon the elevator (the resident’s room was on the second floor of Petitioner’s facility).  Id.

Despite the resident’s continued agitation and exit-seeking behavior, staff placed a Wanderguard on the resident’s ankle and left the resident unattended after returning him to his room.  CMS Ex. 5 at 3.

A Wanderguard is a bracelet that is designed to trigger an audible alarm when a person wearing the device comes within five feet of an exit door.  CMS Ex. 2 at 7-8; CMS Ex. 10 at 2.  Petitioner’s exit doors were also equipped with alarms that were designed to sound when their door release bars were depressed.  CMS Ex. 2 at 7-8.

At about 7:15 p.m. on the evening of April 18, Petitioner’s director of nursing heard alarms sounding.  CMS Ex. 5 at 3.  At the time the director of nursing was providing care to another resident.  P. Ex. 5 at 3.  She was unable to immediately discontinue the care that she was providing, so she finished that care and then went to check for open doors.

Page 4

Id.  She found an open exit door to a stairwell leading downstairs from the second floor.  No other facility doors were open.  Id.

No other staff responded immediately to the alarms that were triggered on the evening of April 18, 2022.  Consequently, R1 was able to elope Petitioner’s facility unobserved by any member of Petitioner’s staff.

In addition to door alarms Petitioner had security cameras at its exit doors.  However, staff did not monitor them, and they were not set to record.  CMS Ex. 10 at 2.  Consequently, the cameras offered no protection against residents eloping Petitioner’s facility.

Petitioner’s staff was unable to find R1.  CMS Ex. 10 at 2.  The resident was not found until about 11:00 a.m. on the morning of April 19, when a distant relative found him in a restaurant about four miles away from Petitioner’s facility.  CMS Ex. 10 at 2; P. Ex. 5 at 3. 

These undisputed facts plainly establish that Petitioner’s staff failed to provide R1 with the assistance and supervision that he needed to protect him against eloping Petitioner’s premises.  Petitioner’s staff knew on April 18, 2022, the day of R1’s admission, that he was agitated and was seeking to leave the facility.  He displayed continuous agitation and exit-seeking behavior even when accompanied by members of his immediate family.  The resident was so agitated and so determined to leave that Petitioner’s staff concluded that it was necessary to keep the resident within line of sight, in other words, to supervise him continuously.

In fact, Petitioner’s staff were concerned that they were unable to provide R1 with the supervision that he needed.  The inevitable conclusion is that staff believed it necessary to transfer the resident to a facility with a locked memory unit.

Inexplicably, Petitioner’s staff ceased supervising R1 on the evening of April 18 even though he continued to be agitated and continued to express a desire to leave Petitioner’s premises.

I can only attribute R1’s elopement and his prolonged absence to Petitioner’s staff’s failure to supervise the resident.  A Wanderguard bracelet is no substitute for close supervision.  It doesn’t prevent a resident from eloping; it only serves as a warning to staff that a resident is attempting to elope.  It is of little value if staff is unwilling to respond immediately or incapable of responding when the device triggers an alarm.

In this case, staff did not respond immediately to the alarms that the resident triggered when he eloped Petitioner’s premises on the evening of April 18.  As Petitioner acknowledges, the only member of the staff who responded was the director of nursing,

Page 5

and she did not respond immediately.  Whether other staff members ignored the alarms or did not hear them, they failed to respond.  The consequence was that R1 was not only able to elope Petitioner’s premises but remained absent for more than 15 hours until he was found by a relative at a location approximately four miles from the facility.

The undisputed facts establish that Petitioner was not sufficiently attentive to the need to protect residents other than R1 from elopement.  On February 23, 2022, the staff assessed a resident identified as R3 as being at a moderate risk for wandering.  CMS Ex. 6 at 3-4.  However, staff did not write a plan of care with interventions designed to protect the resident until April 28, 2022, a lapse of more than two months.  Id. at 34.  Similarly, on February 8, 2022, and again on March 17, 2022, staff assessed a resident identified as R5 as being at risk for wandering.  CMS Ex. 8 at 3, 5.  But the staff did not write a plan of care for this resident until April 19, 2022.  Id. at 32.

These failures to write care plans for these residents who were at risk for wandering meant that Petitioner had not devised protections for them based on their risk assessments.  Petitioner offered no facts to show that these residents – identified as being at risk for wandering – received enhanced supervision or were given other assistance in order to address their proclivity to wander aside from being furnished with Wanderguards.

Petitioner contends that CMS has either misstated the facts or that it would have me draw impermissible inferences from them.  Petitioner’s contentions notwithstanding, I find no dispute as to the material facts.

Petitioner offers the testimony of two witnesses in opposing CMS’s motion.  These are William Hooper, LFNA, who was the administrator of Petitioner’s facility as of April 18, 2022, and Susanna Hendrick, LFNA.  P. Exs. 1, 5.  Both of these witnesses opine that Petitioner’s staff correctly and appropriately cared for R1 and both witnesses aver that Petitioner’s care was not deficient in any respect.

However, neither Mr. Hooper nor Ms. Hendrick witnessed any of the events that underpin the material facts of this case.  Mr. Hooper was Petitioner’s administrator on April 18, 2022.  P. Ex. 1 at 1.  He participated in the search for R1 after the resident eloped.  Id.  However, he did not aver that he was a witness to any of the events leading up to and including the resident’s elopement.  He did not aver that he personally checked the alarms at Petitioner’s nursing station for audibility.  Ms. Hendrick is neither employed by Petitioner nor was she on Petitioner’s premises on April 18.  She bases her testimony on a review of Petitioner’s records.  P. Ex. 5.

Thus, neither witness directly rebuts any of the facts that I have cited as material.  In particular, neither witness rebuts fact findings made by State Agency surveyors based on observations and interviews.  For these reasons I find that their testimony raises no issue

Page 6

of disputed fact.  W. Tex. LTC Partners, Inc., DAB No. 2651 at 14-15 (2015), aff’d, 843 F.3d 1043 (5th Cir. 2016).

Significantly, Petitioner did not attempt to rebut CMS’s case by offering the testimony of any member of its staff who was involved in providing care to R1.  It did not, for example, offer the testimony of its director of nursing, the individual who responded to the sound of alarms on the evening of April 18, 2022.

Petitioner challenges an assertion by CMS that R1 had a history of elopement, contending that the resident had no elopement history as he had only been in Petitioner’s facility for a few hours when he eloped.  Petitioner’s Response to MSJ and Pre-hearing Brief (Petitioner’s brief) at 9.  I agree that the resident had no history of eloping from Petitioner’s facility.  Furthermore, I do not rely on a related contention that CMS makes, that is, that R1’s family members told Petitioner’s staff that the resident had a history of eloping, because, arguably, they did not offer that revelation until after R1 had eloped from Petitioner’s premises.  Petitioner’s brief at 10; see P. Ex. 2 at 2.  That said, the resident’s demands to leave and his behavior gave Petitioner’s staff ample reason to conclude that the resident was an elopement risk, or at least a risk to wander into dangerous situations, and consequently, the staff had a duty to protect the resident.

Petitioner seeks to draw a distinction between “wandering,” which according to Petitioner, merely is “random or repetitive motion,” and elopement.  Petitioner’s brief at 11.  Petitioner argues that it cannot be held liable for failure to protect R1 from eloping because its staff knew only that he was a wanderer and had no reason to suspect that he might try to elope.

Whether staff identified R1’s behavior as wandering or attempts to elope is a distinction without a difference because in this case staff knew that the resident wanted to leave the facility and that his behavior – trying doors, summoning the elevator to his floor – was entirely consistent with that intent.  That knowledge imposed a duty on the staff to supervise and protect the resident.

Furthermore, the resident was at risk whether he wandered or eloped.  The undisputed facts show that the resident eloped by walking down a flight of stairs, unobserved by Petitioner’s staff.  The danger of harm to an 82-year-old individual who descends a flight of stairs unsupervised while beset with numerous medical conditions and dementia-related confusion, is obvious.  That danger existed even if the resident never left Petitioner’s facility.

Petitioner disputes CMS’s assertion that alarms were insufficiently loud to warn Petitioner’s staff of a possible elopement.  According to Petitioner, when R1 eloped: “[t]he alarm sounded, it was heard and staff responded.”  Petitioner’s brief at 10; see P. Ex. 1 at 3.

Page 7

CMS’s assertion that the alarms were not audible addresses their audibility at Petitioner’s nursing station.  The undisputed facts sustain this assertion.  CMS offers the testimony of Gary Potter, RN, a surveyor, who avers that the alarms were barely audible at Petitioner’ nursing station when they were tested on April 29, 2022.  CMS Ex. 2 at 10; CMS Ex. 10 at 2.  Petitioner offered no facts to rebut this assertion.  It asserts that the director of nursing heard alarms sounding on the evening of April 18.  But she was not at the nursing station when she heard the alarms, she was providing patient care elsewhere.  Petitioner also relies on the testimony of Mr. Hooper and Ms. Hendrick, but neither of these individuals avers that he or she personally checked the sound level of the alarms at Petitioner’s nursing station on or before April 29, 2022.  See P. Exs. 1, 5.

The undisputed facts are that only one member of Petitioner’s staff, the director of nursing, responded to the alarms on April 18 and she did not respond immediately.  As for other staff members, no one responded to the alarms.  Their failure to respond – whether it was due to the alarms being inaudible or whether the staff ignored the alarms – was a clear failure to provide R1 with adequate protection against eloping.

Petitioner makes additional arguments that I find to be without merit.

It asserts that, whether it provided adequate supervision to R1, it complied literally with the requirements of 42 C.F.R. § 483.25(d)(1)-(2).  It argues that the test for its compliance with the regulation is:  did it have the appropriate mechanisms and procedures to identify, monitor, and manage residents to minimize the risk of a resident leaving a safe area and eloping?  Petitioner’s brief at 17.

That is not the test for compliance with the regulation.  Enacting mechanisms and procedures may be a requisite first step to protecting residents from sustaining accidents.  But a facility must do much more than just enact mechanisms and procedures, it must actually protect its residents.  Its duty to protect residents compels it to assess each resident individually to ascertain the accident risks that the resident might encounter and to take action that explicitly addresses those identified risks.

Petitioner’s elopement policy identified the actions that staff should take in the event of an elopement.  CMS Ex. 4 at 1.  However, it said nothing about prevention of elopement.  Petitioner offered no policy or plan showing how its staff would prevent elopements.  And as I have discussed, Petitioner’s staff failed abjectly to supervise R1 after 7:00 pm on the evening of April 18, 2022.

Petitioner asserts that:  “there is a distinction between voicing a wish to leave and leaving.”  Petitioner’s brief at 18.  I assume that Petitioner means by this assertion that the resident’s expressions of intent were insufficient to put Petitioner’s staff on notice that the resident was an elopement risk.  I disagree.  The undisputed facts show clearly that the resident intended to leave the facility.  The undisputed facts describing his

Page 8

behavior are compelling proof that he was trying to act on his intent.  Staff understood that Petitioner’s expressed intent and actions put him at risk.  That was the basis, not only for staff’s determination that the resident needed line of sight supervision but also its recommendation that the resident be transferred to a facility with a locked memory unit.

Finally, Petitioner argues that R3 and R5 did not “exhibit unsafe wandering practices.”  Petitioner’s brief at 20.  Therefore, according to Petitioner, no adverse inferences may be drawn from its care of these residents.

Petitioner’s argument misses the point.  The undisputed facts establish that Petitioner’s staff assessed both residents as being at risk for wandering.  That assessment imposed a duty on the staff to develop a care plan for each resident that addressed the risk and contained interventions that would protect the resident.  Petitioner failed to do so in the case of each resident for weeks after the resident was identified as having a propensity to wander.

2. Immediate Jeopardy

Immediate jeopardy is noncompliance that is so egregious as to cause or is likely to cause serious injury, harm, impairment, or death to a resident or residents.  42 C.F.R. § 488.301.  In the instance where CMS finds immediate jeopardy-level noncompliance the burden falls on a facility challenging that finding to prove that the finding is clearly erroneous.  42 C.F.R. § 498.60(c)(2).  In an evidentiary hearing that means that a facility must offer evidence that proves that CMS’s immediate jeopardy determination is clearly erroneous.  The test is somewhat different when a party opposes a motion for summary judgment.  Here, Petitioner’s burden is to offer facts from which I might reasonably infer that CMS’s immediate jeopardy determination is clearly erroneous.

Petitioner asserts that there are no facts that support CMS’s determination, premising that assertion on the fact that R1 was found and returned to Petitioner’s facility unharmed after his more than 15-hour absence.  Petitioner’s brief at 21.  I agree that R1 was unharmed.  But that does not vitiate CMS’s finding of immediate jeopardy.  In this case the likelihood that R1 would suffer injury, harm, or worse was extremely high.  It was fortuitous that the resident was unharmed, but his good luck is not an affirmative defense.

The undisputed facts show that R1 was highly vulnerable when unsupervised.  The resident was demented, in addition to his several physical impairments.  His condition was so severe that his physician certified that he needed 24-hour care and attention.  P. Ex. 2 at 11.  The inescapable and only conclusion that I may draw from the resident’s condition is that he would likely suffer serious injury or worse if left unattended for an extended period, especially if exposed to the innumerable hazards that a demented individual might encounter when alone and outside of a protected environment.

Page 9

Moreover, it is reasonable to infer from the undisputed facts that R1 was not the only resident who faced a likelihood of serious injury or worse due to Petitioner’s deficient practices.  The failure of Petitioner’s staff to respond immediately to the alarms sounded by R1’s elopement is not a failure that attaches only to that resident.  When the alarms sounded on April 18, 2022, staff had no way of knowing at first which resident had triggered them.  It could have been any resident.  The non-responsiveness of the staff therefore establishes laxity in general, not just confined to the elopement of R1.

3. Remedies

CMS determined to impose remedies consisting of civil money penalties:  $7,320 for each day of a period that began on April 18, 2022, and that continued through April 29, 2022; and $360 for one day, April 30, 2022.  I find that the undisputed material facts establish these remedies to be reasonable.

CMS imposed the larger penalty amount to remedy Petitioner’s immediate jeopardy level noncompliance.  Regulations establish the range into which immediate jeopardy level penalties may fall.  The penalty that CMS determined to impose is close to the lowest possible amount for an immediate jeopardy level penalty.  42 C.F.R. § 488.438(a)(1)(i); 45 C.F.R. Part 102 (which adjusts the range of penalty amounts based on inflation).  CMS imposed the smaller penalty to remedy a single day of non-immediate jeopardy level noncompliance.  This, too, falls within the range established for such noncompliance.  42 C.F.R. § 488.438(a)(1)(ii); 45 C.F.R. Part 102.  It is at the bottom of the permissible range for non-immediate jeopardy level penalties, being only about five percent of the maximum allowable amount.

There are regulatory factors that govern the reasonableness of a penalty amount.  These include the seriousness of a facility’s noncompliance, its culpability, its compliance history, and its financial condition.  42 C.F.R. §§ 488.438(f)(1)-(4); 488.404 (incorporated by reference into 42 C.F.R. § 488.438(f)(3)).  Petitioner argues that it is CMS’s burden to offer evidence (or, in a motion for summary judgment, undisputed facts) that relate to each of the factors.  Petitioner’s brief at 22.  Petitioner asserts that there is no basis to find the penalty amounts to be reasonable because CMS did not offer undisputed facts addressing each factor.

I disagree.  First, the penalty amounts in this case are close to being reasonable as a matter of law as they are at or very close to the bottom of the permissible ranges for immediate jeopardy level and non-immediate jeopardy level penalty amounts.

Second, the undisputed material facts clearly establish these penalties to be reasonable.

Petitioner’s arguments notwithstanding, CMS has no burden to prove that facts relating to each regulatory factor are present.  The factors set forth at 42 C.F.R. § 488.438(f) are a

Page 10

matrix.  Undisputed facts relating to any of these factors may, in and of themselves, be sufficient to support a penalty determination.  It is not necessary for CMS to show that all of the regulatory factors have been met.

The seriousness of Petitioner’s noncompliance is enough to justify the penalty amounts.  Petitioner’s staff failed to provide a demented, highly vulnerable resident with necessary supervision at a time when staff knew that the resident intended to leave the facility and was attempting to act on his intent.  Furthermore, the staff failed to respond immediately when R1, eloping, triggered alarms.  That failure to respond caused a likelihood of serious injury, harm, or worse, and not just for R1, but for any resident who was prone to wander or elope on the evening of April 18, 2022.

CMS determined that immediate jeopardy level noncompliance continued at Petitioner’s facility until April 29, 2022.  That was the date when Petitioner’s staff made alarms more audible at its nursing station.  Petitioner argues that in fact, the alarms at its nursing station were audible and that no additional amplification was necessary.  Consequently, according to Petitioner, CMS cannot reasonably find the duration of Petitioner’s noncompliance at the immediate jeopardy level to have lasted through April 29, 2022.  Petitioner’s brief at 23.

I have addressed the issue of the audibleness of alarms at Petitioner’s nursing station and have sustained CMS’s assertion that the sound levels were so low as to be practically inaudible.  CMS Ex. 2 at 10; CMS Ex. 10 at 2.  I will not repeat my analysis here except to say that Petitioner offered no testimony or other evidence to establish that these alarms were audible.  The facts offered by CMS are undisputed.  Consequently, CMS’s determination of duration of the immediate jeopardy level noncompliance is reasonable.

Petitioner argues that, as a matter of law, CMS may not impose a penalty for only a single day’s noncompliance.  Petitioner’s brief at 23.  Therefore, according to Petitioner, CMS’s penalty of $360 is unlawful.

This argument emanates from a misreading of the regulations governing penalties.  CMS has a choice of remedies:  per-diem penalties or per-instance penalties.  CMS has the authority to impose a civil money penalty for each day of a facility’s noncompliance, including noncompliance that is confined to one day, or it may impose a penalty for an instance of noncompliance, including an instance that might occur on a single day.  42 C.F.R. § 488.438(a).  That choice is CMS’s to make as a matter of discretion.

Here, CMS found that Petitioner abated its immediate jeopardy level noncompliance on April 29, 2022, when it increased sound levels at its nursing station of the facility’s alarms.  It found that Petitioner completely corrected its noncompliance on April 30.  It imposed a lower penalty amount – at the bottom of the non-immediate jeopardy level

Page 11

penalty amounts – for that single day of noncompliance.  That was a choice that rested within CMS’s discretion.²

---

Endnotes

¹  That would have required R1 to be transferred to another facility because Petitioner does not have a locked memory unit.

²  As a practical matter, terming the April 30 penalty “per-diem” or “per-instance” makes no difference.  CMS could have designated the April 30 penalty a per-instance penalty of $360.  That penalty was authorized by regulation even as a per-diem penalty of $360 was authorized.