Morris View Healthcare Center, CR6304 (2023)

DECISION

I enter summary judgment in favor of the Centers for Medicare & Medicaid Services (CMS) and against Petitioner, Morris View Healthcare Center, a skilled nursing facility.  I sustain CMS’s determination to impose a per-instance civil money penalty of $17,210. 

I.  Background

CMS filed proposed exhibits with its motion, identified as CMS Ex. 1-CMS Ex. 70.  Petitioner filed exhibits in opposition, identified as P. Ex. 1-P. Ex. 31.  CMS objected to my receiving several of Petitioner’s exhibits into evidence. 

It is unnecessary that I rule on the admissibility of exhibits because I grant summary judgment.  I cite to some of the exhibits in this decision but only to illustrate material facts that are undisputed. 

Page 2

II.  Issues, Findings of Fact and Conclusions of Law

A. Issues

The issues are whether undisputed facts establish that Petitioner failed to comply substantially with Medicare participation requirements and whether the facts also establish that a per-instance civil money penalty is a reasonable remedy for any noncompliance that I find. 

The parties have addressed an additional issue, that being whether Petitioner’s noncompliance was so egregious as to cause residents of Petitioner’s facility to be in immediate jeopardy.  Below, I explain why it is unnecessary that I decide this issue. 

B. Findings of Fact and Conclusions of Law

1. Noncompliance

This decision addresses Petitioner’s noncompliance with a single regulation, 42 C.F.R. § 483.25(d)(1) and (2).¹  The regulation mandates a skilled nursing facility to ensure that its resident environment remain as free from accident hazards as is possible and to ensure that each resident of the facility receives adequate supervision and assistance devices to prevent accidents. 

The regulation imposes a duty of care on facilities.  A facility must identify all foreseeable accident hazards and must take all reasonable measures to protect its residents against accidents.  Woodstock Care Ctr., DAB No. 1726 (2000) aff’d, Woodstock Care Ctr. v. Thompson, 363 F.3d 583 (6th Cir. 2003).  To satisfy this requirement, the facility must evaluate its premises for hazards.  Are there physical hazards that pose a risk to residents – for example, are there unsecured doors or windows through which residents with dementia or confusion might elope?  The facility must also assess each of its residents individually to determine whether that resident is likely to be injured by something in the facility that might not necessarily pose a threat to the general resident population.  Does a particular resident suffer from dementia that might cause the resident to be confused and to walk into potentially hazardous areas? 

The regulation additionally requires a facility to protect its residents.  Protective measures might be general – i.e., securing an unlocked exit door.  Also, they might be designed to benefit an individual resident, such as providing enhanced supervision for a resident who evidences dementia or confusion. 

Page 3

Furthermore, the regulation requires a facility to address potentially changed circumstances, both in general and as respects individual residents.  The possibility of changed circumstances imposes a duty of ongoing vigilance.  Hazards that did not exist previously might arise with the passage of time.  For example, a door lock that secures an exit might become nonfunctional.  Or a resident’s dementia might worsen.  To satisfy its obligations, the facility must periodically and thoroughly assess its premises and the condition of its residents and must take appropriate remedial measures. 

At issue is the care that Petitioner gave to two of its residents.  One resident, identified as R206, died after exiting from Petitioner’s premises through an unlocked and unwatched exit door.  Another resident, identified as R191, suffered aspiration pneumonia after being given unthickened milk despite an order that the resident be given thickened liquids due to swallowing problems and an identified risk for aspiration.  CMS alleges that Petitioner’s staff failed to adequately assess R206, failed to protect the resident, and failed to ensure that its exit door was appropriately locked or surveilled.  CMS asserts that staff failed to follow treatment orders to R191’s detriment. 

I base my decision entirely on undisputed facts.  I have examined the facts closely to determine whether I may draw inferences from them that are favorable to Petitioner.  I find that the undisputed material facts amply support CMS’s assertions.  Petitioner failed to raise facts or arguments that create a legitimate dispute concerning its compliance.  

a. Failure to protect R206

This resident had impairments that included a seizure disorder, atherosclerotic heart disease, dementia, a head injury, and an affective mood disorder.  CMS Ex. 5 at 1-2. R206’s mental impairments left him in a state of near-constant confusion.  The resident’s physicians found on multiple occasions that R206 had cognitive issues.  CMS Ex. 45 at 38-47.  The resident did not know where he was most of the time.  CMS Ex. 68 at ¶ 37. 

R206 was usually mobile.  Petitioner’s staff consistently assessed the resident as being able to walk in his room and in Petitioner’s corridors or to use a wheelchair independently.  On most days he was able to navigate the corridors of Petitioner’s facility.  CMS Ex. 40 at 1-3.  However, he often got lost and was unsteady when he was on his feet.  CMS Ex. 5 at 1-2; CMS Ex. 41 at 20. 

In December 2020 and again in August 2021, Petitioner’s staff concluded that R206 had problems that predisposed him for elopement from the facility.  CMS Ex. 41 at 20; CMS Ex. 9 at 13-14.  The resident was observed to frequently wander within the facility while in a wheelchair.  He was found to be unaware of his whereabouts.  CMS Ex. 41 at 20.  Staff fitted the resident with a Wanderguard as a protective device.  CMS Ex. 45 at 99. 

Page 4

I take notice that a Wanderguard is a device that will trigger an audible alarm if the individual who wears it approaches an exit door that is equipped with a receiver. 

On March 29, 2022, a physician ordered that the Wanderguard be discontinued.  CMS Ex. 61 at 3.  There is indication in the record that R206 had ceased engaging in or had reduced behaviors that may have originally been the basis for the staff’s determination to fit him with a Wanderguard.  Petitioner contends that the physician discontinued the Wanderguard because R206 remained in his room most of the time with his wife.  Petitioner, Morris View Healthcare Center’s Pre-hearing Brief and Opposition to CMS’s Motion for Summary Judgment (Petitioner’s brief) at 13.²  

Petitioner concedes that its staff failed to perform a quarterly assessment of R206’s elopement risk in February 2022.  Petitioner’s brief at 9.  That aside, Petitioner’s staff did find after August 2021 that the resident was not at risk for eloping or wandering.  Id.  Petitioner offered evidence to show that its staff had assessed R206 on several occasions after August 2021 for propensity to elope the facility or for wandering and had concluded that the resident posed no risk for either behavior.  I accept this evidence as true for purposes of deciding whether I should grant CMS’s summary judgment motion. 

I make no finding that Petitioner’s staff erred in March 2022 by discontinuing R206’s Wanderguard.  Nor do I question staff’s assessments that the resident did not show a propensity to elope or to wander.  But discontinuing the Wanderguard, and staff’s assessments of the resident’s risk to elope or wander, did not end the staff’s duty to protect R206 against the dangers posed by his dementia, his confusion, and his unsteadiness. 

Those dangers were substantial.  R206 – even if he had no demonstrated propensity to elope or to wander – had significant cognitive deficits that put him at risk when he traveled about Petitioner’s facility unaccompanied.  Those risks were compounded by the size of the facility and by locations within the facility within which a confused resident might become lost.  And they were compounded further by Petitioner’s failure to secure and police an exit and its staff’s failure to monitor security footage. 

Staff knew that this resident was constantly confused.  They knew also that he was unsteady when ambulating.  Although the resident remained with his wife in his room most of the time, there existed the potential for him to become lost or to encounter a hazardous situation on those occasions when he left his room.  These risks existed even if he was traveling with a purpose and not attempting to elope or to wander. 

Page 5

A psychiatric review of the resident on August 29, 2022, just five days before the resident’s death, concluded that R206 was experiencing memory loss, confusion, anxiety and depression, cognitive deficits, thought content with preoccupation and paranoid delusions, and poor insight, judgment, and impulse control.  CMS Ex. 18.  That review in many respects mirrored previous psychiatric reviews of the resident.  CMS Ex. 19; CMS Ex. 20; CMS Ex. 21. 

Petitioner describes its facility as a very large building of more than 250,000 square feet, housing as many as 280 residents on three levels.  Petitioner’s brief at 4-5; P. Ex. 25 at ¶ 15.  As Petitioner acknowledges, its facility has several long corridors that connect to resident rooms but also to other areas including the facility’s main kitchen, the dieticians’ offices, staff dining facilities, and a subacute care area.  Id.  These corridors and the places to which they connect present ample opportunities for a confused and demented resident to become lost or to navigate into trouble. 

Staff should have addressed these potential hazards, but they did not.  The failure by Petitioner’s staff to continue to assess R206 for hazards associated with moving about unattended constitutes noncompliance with the requirements of 42 C.F.R. § 483.25(d)(1) and (2). 

Neither the quarterly assessments that staff made of R206 nor his care plan addresses the risks and hazards that the resident might encounter when he navigated the hallways of Petitioner’s facility unaccompanied.  Those risks and hazards should have been addressed.  The final quarterly assessment of R206, dated August 4, 2022, notes that the resident “likes touring the building.” CMS Ex. 11 at 2.  But it contains no analysis of the risks and hazards that the resident could encounter when he engaged in that activity.  Id. 

A resident’s plan of care is supposed to be a comprehensive roadmap of a resident’s impairments and problems and the interventions that a facility’s staff designs and implements to care for that resident.  42 C.F.R. § 483.21(b).  R206’s plan of care identifies several problems that collectively depict the resident as being seriously impaired and at obvious risk whenever he navigated the corridors of Petitioner’s facility unaccompanied.  CMS Ex. 13.  The plan stated that the resident had “decreased function in all areas of . . . [activities of daily living] due to gait/balance problems, muscle weakness, . . . [diagnosis] of dementia . . . .”  Id. at 5-6.  It listed several interventions for these problems.  None of them addressed the risks and hazards that the resident could encounter if he navigated Petitioner’s corridors unaccompanied.  Id.  The plan noted that the resident suffered from decreased cognition and was at risk for falling and seizures.  Id. at 10, 12, 15-16.  However, none of the interventions addressing these issues relate to the resident’s navigation of Petitioner’s corridors.  Id. 

R206 eloped Petitioner’s facility on September 3, 2022.  Sometime around midday on that date, a member of Petitioner’s staff noticed that the resident’s wheelchair was vacant. 

Page 6

CMS Ex. 26 at 4.  Another resident told the staff member that R206 had attempted to exit Petitioner’s facility through a patio door but was unable to do so because the door was locked.  Id. at 5.  The staff member then observed that an exit door was unlocked.  Id. 

Petitioner’s staff called 911 shortly after noon on September 3.  CMS Ex. 27.  When police arrived, staff informed the officers that they were unable to review footage produced by security cameras because the facility administrator, who evidently was the only person on Petitioner’s staff with access to security footage, was not present and was inaccessible by telephone.  CMS Ex. 24 at 2.  Police went to the administrator’s home and eventually were able to review security footage.  The police concluded that R206 was last visible at about 10:14 a.m. on September 3, walking towards a facility stairwell and exit.  Id. 

The police continued to search for R206.  Shortly before 4:00 on the afternoon of September 3, the police found R206 lying unresponsive in a field across the street from Petitioner’s facility.  He was pronounced dead shortly thereafter.  CMS Ex. 24 at 2. 

Petitioner’s staff conducted an internal investigation of R206’s elopement and death.  Although staff concluded that the resident’s elopement and death were unforeseeable, they found that the locking mechanism on the exit door had malfunctioned, thereby enabling R206 to leave the facility.  CMS Ex. 26 at 6.  Petitioner’s security supervisor subsequently acknowledged that prior to September 5, 2022, there had been no functioning locking mechanism (a “keypad”) on the exit door, thereby permitting anyone to exit the facility unhindered.  CMS Ex. 68 at ¶ 38.  Staff equipped the door with a keypad after the resident had eloped the facility.  Id. at ¶ 40. 

I do not find that Petitioner’s staff should have foreseen that R206 would elope the facility on September 3, 2022.  Staff had consistently assessed the resident as not being an elopement risk.  However, and as I have discussed, staff failed to assess R206 for the broader question of what hazards the resident faced when he moved around Petitioner’s very large facility unsupervised. 

Petitioner relies on the testimony of Gail Rader as support for its contention that it was not deficient in providing care for R206.  See P. Ex. 25.  Ms. Rader is a registered nurse and a nurse practitioner.  Petitioner offers her as an expert.  She is not a fact witness.  She was not present at Petitioner’s facility on September 3, 2022, and had no role in providing care to R206.  See Id.  Her opinion is no bar to my issuing summary judgment in that it offers no facts other than those that are of record in exhibits. 

Ms. Rader’s testimony addresses the question of whether Petitioner’s staff properly assessed R206 as neither being an elopement risk nor prone to wander within Petitioner’s facility.  I find no reason to disagree with her opinion on these questions.  But, and as I have explained, Petitioner’s duty to protect R206 extended beyond determining whether

Page 7

he was at risk to elope or wander.  Ms. Rader does not address Petitioner’s broader responsibility. 

b. Failure to protect residents from an unlocked and unguarded exit door and failure to monitor security footage

Staff should have considered the risks and hazards relating to having an unlocked and unwatched exit door.  On September 3, 2022, that unlocked and unguarded door enabled not just R206 to elope, but any other person desiring to leave.  That included any resident who suffered from dementia and confusion.  No one at the facility had access to surveillance footage on September 3, meaning that a resident could have walked out undetected, and that elopement might have remained undetected for hours. 

Petitioner contends that its exit door was equipped with a Maglock when R206 exited the facility.  Petitioner’s brief at 5.  Petitioner describes the Maglock as a device that secures a door by means of a strong magnet that faces a metal plate.  One normally must disarm the magnet to open the door.  According to Petitioner, a bar had to be depressed and held for 15 seconds before the lock would release. 

As I note above, Petitioner’s security specialist averred that there was no keypad on the exit door prior to September 5, 2022.  CMS Ex. 68 at ¶  38.  It is unclear whether he was referring to a Maglock, a Wanderguard receiver, or both.  However, even if the door had a locking mechanism on it as of September 3, I do not find that a dispute of fact exists as to whether the door locking mechanism worked on that date.  Petitioner’s own investigation established that it malfunctioned on that date and Petitioner offered no facts to suggest otherwise.  CMS Ex. 26 at 6.  On September 3, 2022, the exit door freely permitted anyone to exit the facility. 

Subsequent repairs to the locking mechanism or the possible installation of a Maglock and/or a Wanderguard receiver provided no protection to the residents prior to the date when the locking mechanism was installed.  However, installing the mechanism or repairing the lock is an admission that the exit was insecure prior to the date of the repairs or new installation. 

There was also a flaw in Petitioner’s security monitoring system.  With the administrator being the only member of the staff with access to security footage, and being inaccessible by phone, hours transpired before the police were able to review the footage and determine that R206 had exited the facility via the unlocked door.  The security monitoring system was effectively useless due to its inaccessibility and due also to the fact that no one was monitoring it on September 3, 2022. 

The undisputed facts show that security footage revealed R206 walking in Petitioner’s corridors shortly before he exited the facility and approaching the exit door.  Petitioner’s

Page 8

staff might have been able to apprehend the resident either before he exited or immediately afterward had staff been monitoring the security footage. 

Staff’s failure to secure the exit door and to monitor security footage was a general failure to protect residents against accident hazards, not just a failure to provide care to R206.  That failure violates the requirements of 42 C.F.R. § 483.25(d).  That failure would be a violation even if R206 had not eloped Petitioner’s premises on September 3, 2022, because it posed a hazard to Petitioner’s residents in general.  Petitioner has offered no justification for having an unsecured, unprotected exit door. 

c. Failure to protect R191 from aspiration

R191 suffered from multiple medical issues including neurological problems related to cerebral palsy.  CMS Ex. 1 at 113.  Beginning in May 2022 the resident’s physician assessed the resident as experiencing swallowing difficulties.  CMS Ex. 49 at 5.  Petitioner’s staff referred R191 to a specialist because he suffered from choking episodes.  CMS Ex. 55 at 4.  A speech therapy plan concluded that R191 was at risk for aspiration.  Id.  I take notice that “aspiration” means inhaling food particles.  Aspiration can lead to serious complications including pneumonia. 

On May 26, 2022, a physician ordered that the resident receive pureed textured food with nectar thickened liquid consistency.  CMS Ex. 49 at 7.  Later that morning a nurse on Petitioner’s staff observed that R191 was having difficulty swallowing this prescribed diet.  CMS Ex. 50 at 1.  A physician then ordered that the resident receive a diet of honey thickened liquid consistency.  CMS Ex. 46 at 20; CMS Ex. 49 at 9. 

However, and despite the assessments and physicians’ orders, a member of Petitioner’s staff gave R191 unthickened milk to drink on the afternoon of May 27, 2022.  CMS Ex. 46 at 21; CMS Ex. 50 at 1.  The resident choked, vomited, and exhibited abnormal vital signs, including crackles in his lungs.  A physician ordered that the resident be hospitalized.  He was admitted and subsequently diagnosed with aspiration pneumonia.  CMS Ex. 46 at 1; CMS Ex. 52 at 1. 

An internal investigation by Petitioner’s management confirmed that R191 had been given unthickened milk.  The investigation report concluded that: “[t]he incident most likely occurred due to lack of knowledge regarding proper protocols in verifying fluid consistencies.” CMS Ex. 56 at 2. 

These facts establish that Petitioner failed to protect R191 from harm.  Providing this resident with unthickened milk contravened a physician’s order but also violated Petitioner’s own plan to protect the resident.  It is evident noncompliance with 42 C.F.R. § 483.25(d)(2). 

Page 9

Petitioner does not deny any of the facts that I recite above.  Its defense appears to be that:  it had a policy in place for determining which residents needed specialized diets; its staff appropriately assessed R191 as needing a specialized diet; it educated its staff about how to care for residents who required specialized diets; and it had safeguards in place to assure that staff followed facility policy.  Petitioner’s brief at 23-33.  Petitioner argues that human error and not systemic failure by staff explains how R191 received unthickened milk on May 27, 2022. 

I accept all of Petitioner’s assertions as true for purposes of this decision.  I agree with Petitioner that it had policies and systems in place for assessing and caring for residents with special diets.  I agree also that there is nothing in the record establishing those policies and systems to be inadequate.  I agree also that human error was the cause of providing unthickened milk to R191. 

However, human error by a nursing facility staff member may be grounds for finding a facility to have provided deficient care.  A member of Petitioner’s staff failed to implement a physician’s order, causing R191 to choke on and aspirate unthickened milk.  The consequence of this dereliction was severe with the resident requiring hospitalization.  The deficient care resulting from human error plainly is a failure to protect a resident from an accident hazard.  42 C.F.R. § 483.25(d)(2); Cherrywood Nursing & Living Ctr., DAB No. 1845 at 8 (2002).  

It is not a defense to assert that the failure to provide prescribed care to R191 is limited to the dereliction by a single employee.  A skilled nursing facility assumes responsibility for all of the acts of its employees committed during the course of their employment.  Cherrywood, DAB No. 1845 at 14. 

2. Remedy

The remedy that CMS determined to impose for Petitioner’s noncompliance is a per-instance civil money penalty of $17,210.  The undisputed facts support this remedy. 

CMS determined that Petitioner’s noncompliance was so egregious as to be immediate jeopardy for residents of Petitioner’s facility.  The term “immediate jeopardy” is defined at 42 C.F.R. § 488.301 as noncompliance that causes, or is likely to cause, a resident or residents to suffer from serious injury, harm, impairment, or death. 

Petitioner argues that there is a fact dispute whether its noncompliance was at the immediate jeopardy level.  I find it to be unnecessary that I address whether there was immediate jeopardy noncompliance.  Per-instance civil money penalties are determined based on regulatory factors that do not necessarily include a finding of immediate jeopardy.  42 C.F.R. §§ 488.438(a)(2); 488.438(f)(1)-(4) (incorporating 42 C.F.R.

Page 10

§ 488.404 by reference)).³  I base my evaluation of the reasonableness of the civil money penalty imposed by CMS on the regulatory factors that apply directly to per-instance penalties. 

One of the principal factors used to determine the reasonableness of a per-instance penalty is the seriousness of a facility’s noncompliance.  Here, the undisputed facts show Petitioner’s noncompliance to have been extremely serious.  Failure to assess R206 for risks associated with unsupervised navigation of Petitioner’s corridors led in turn to a failure to consider that this resident might become lost or enter an unsafe area due to his frequent confusion.  Failure to assure that an exit door was properly locked and monitored gave not just R206 the opportunity to leave the premises unnoticed but gave other residents the same opportunity.  In R206’s case, his unnoticed elopement may have caused his death.  Failure by Petitioner’s staff to follow a physician’s order resulted in R191 being given unthickened milk, a likely proximate cause of the resident’s hospitalization and aspiration pneumonia. 

Although Petitioner challenges the findings of noncompliance that I have addressed in this decision it has not offered additional arguments that directly address the penalty amount.  The penalty amount of $17,210 is within a permissible range of per-instance penalties.  42 C.F.R. § 488.438(a)(2); 45 C.F.R. § 102.3.  I find it to be entirely reasonable in view of the seriousness of Petitioner’s noncompliance. 

---

Endnotes

¹ CMS found Petitioner to be noncompliant with additional regulations but did not impose remedies to address those findings. 

² R206’s wife was also a resident of Petitioner’s facility, and she shared a room with the resident. 

³ By contrast, a finding of immediate jeopardy is a necessary element of determining whether a per-diem civil money penalty – not at issue in this case – falls within the upper range of permissible penalty amounts.  42 C.F.R. § 488.438(a)(1)(i), (ii).