Sheepshead Nursing and Rehabilitation Center, DAB CR6383 (2023)

DECISION

I enter summary judgment in favor of the Centers for Medicare & Medicaid Services (CMS), sustaining its determination to impose a per-instance civil money penalty (PICMP) of $20,780 against Petitioner, Sheepshead Nursing and Rehabilitation Center, a skilled nursing facility located in Brooklyn, New York.

I.    Background

This case was very recently transferred to my docket from that of another administrative law judge.  The case file includes a motion for summary judgment by CMS that Petitioner opposed.

With its motion, CMS filed exhibits that it identified as CMS Ex. 1 – CMS Ex. 24.  With its opposition, Petitioner filed exhibits that it identified as P. Ex. 1 – P. Ex. 9.  I do not receive these exhibits into evidence because I issue summary judgment based on undisputed material facts.  However, I refer to some of the exhibits in this decision, either to illustrate facts that are not in dispute or to address a party’s contentions.

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II.    Issues, Findings of Fact and Conclusions of Law

A.    Issues

The issues are whether Petitioner failed to comply substantially with a Medicare participation requirement and whether CMS’s remedy determination is reasonable.

B.    Findings of Fact and Conclusions of Law

I apply the principles of Rule 56 of the Federal Rules of Civil Procedure in deciding whether to grant summary judgment.  I base my decision on facts that are undisputed.  I make no fact finding that requires a credibility determination.  I find no impediment to deciding a case if resolving a fact dispute in favor of one party or the other would make no difference to the outcome.  Where reasonable inferences may be made from the undisputed facts, I make those inferences that are favorable to the party against whom the motion for summary judgment is filed.

At bottom, the question that I ask in any case where a party moves for summary judgment is this:  is there any issue that would benefit from being resolved in an evidentiary hearing?  Fal-Meridian, Inc. v. U.S. Dep’t of Health & Human Servs., 604 F.3d 445, 449 (7th Cir. 2010).  As I explain below, there is no such issue in this case.

1.    Noncompliance

At issue is Petitioner’s compliance with 42 C.F.R. § 483.25(d)(1) and (2).  This regulation directs a skilled nursing facility to ensure that its resident environment remains as free from accident hazards as is possible and that each resident receives adequate supervision and assistance devices to prevent accidents.

The regulation’s requirements have been addressed in numerous decisions.  While the regulation does not impose strict liability on a facility, it does require a facility to take all reasonable measures to protect its residents against foreseeable risks of harm.  Briarwood Nursing Ctr., DAB No. 2115 at 11 (2007).

The regulation does not direct a facility to implement any specific measures to protect a resident.  Rather, it allows the facility flexibility to decide what measures it will implement.  But whatever measures a facility implements, they must be implemented effectively, that is to say, they must actually protect residents against foreseeable harm.  Briarwood, DAB No. 2115 at 5.

Petitioner failed to implement effectively measures that it intended to protect a resident from eloping its premises in violation of the requirements of 42 C.F.R. § 483.25(d)(1) and

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(2).  The resident, Resident # 1, was a known elopement risk.  Petitioner decided to protect her with alarm systems that would sound when she strayed into off-limits areas or left the facility.  As an additional protective measure, Petitioner’s staff determined to monitor the resident at 30-minute intervals.  However, the alarms proved to be ineffective and the surveillance unreliable.  Resident # 1, a demented and debilitated individual, successfully eloped Petitioner’s premises and wandered in a congested urban neighborhood for seven hours before family members found her.  The failure to protect Resident # 1 revealed system-wide flaws in Petitioner’s alarm and surveillance mechanisms that increased the probability that any resident who might wander from Petitioner’s facility could do so undetected.

Resident # 1 came to Petitioner’s facility in August 2020.  The resident suffered from dementia among other medical problems.  CMS Ex. 6 at 1; CMS Ex 12 at 1.  Petitioner’s staff assessed the resident as suffering from moderately-impaired cognition.  CMS Ex 12 at 9.  She had significant impairment in her ability to care for herself:  she needed supervision with bed mobility as well as extensive assistance by a facility staff member for transfers – i.e., from bed to walking – and she needed supervision when she walked within the facility.  The resident at times used mobility devices such as a walker and a wheelchair.  Id. at 14-15; CMS Ex. 7 at 2.

Petitioner’s staff determined that the resident was an elopement risk.  In the months following her admission, Resident # 1 made several attempts to elope Petitioner’s facility.  CMS Ex. 16 at 2; CMS Ex. 18 ¶¶ 14-15.

Staff were obligated to assist and supervise Resident # 1 when it became apparent that she was an elopement risk.  CMS Ex. 3.  Staff decided to rely on an alarm system to protect Resident # 1.  Id.; CMS Ex. 9 at 5.  That meant that the system had to be functioning and that individuals responsible for monitoring the system had to perform their assigned duties.  Any system failure deprived Resident # 1 of the surveillance that she required, and that Petitioner had pledged to provide.

In this case the undisputed facts establish that Petitioner’s system to protect Resident # 1 failed, not because the system was flawed, but because it was not implemented effectively.

The alarm system that staff relied upon to protect Resident # 1 included a wander guard bracelet on her left ankle.  Additionally, staff determined to monitor Resident # 1 at 30-minute intervals.  CMS Ex. 17 at 2; CMS Ex. 20 ¶¶ 20, 24.

Skilled nursing facilities typically use wander guards to protect residents against possible elopements.  The wander guard sends a signal that may be received by a sensor.  In Petitioner’s facility, when a sensor received a signal from a wander guard that was within roughly 15 feet, it sent a wireless signal to another device – an annunciator located at

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Petitioner’s security desk – that triggered an audible alarm at that location.  CMS Ex. 22 ¶ 12.  Petitioner assigned to its security staff the responsibility for monitoring alarms and Petitioner’s security cameras.  See CMS Ex. 24 ¶ 13-14.  There were six security cameras that focused on Petitioner’s basement.  Id. 

Petitioner’s facility is a multi-story building.  Petitioner installed wander guard sensors adjacent to its elevators.  CMS Ex. 22 ¶ 12.  Additionally, Petitioner equipped some of its exit doors with alarms separate from the wander guard system.  These alarms sounded when someone opened an exit door.  The alarmed doors included a set of double exit doors in Petitioner’s basement.  Id.  

On June 11, 2021, Resident # 1 attempted to elope the facility.  On that date she sought to enter an elevator at around one or two p.m.  CMS Ex. 17 at 2.  A member of Petitioner’s staff observed the resident and redirected her.  Id.  This episode served as a warning to Petitioner’s staff about Resident # 1’s continued proclivity to elope.

Before 5 a.m. on June 12, 2021, a member of Petitioner’s staff observed Resident # 1 to be sitting in a hallway.  CMS Ex. 16 at 2-3.  The staff member left the resident to perform an assigned duty.  Id.  The resident was missing when the staff member returned.  Id.

A kitchen staff member reported to work at around 5:00 a.m. on June 12.  Upon entering the basement, the staff member heard an alarm sounding – apparently, the alarm on the basement exit door.  CMS Ex. 15 at 1.  The staff member immediately notified Petitioner’s security personnel.  CMS Ex. 24 at 14.  A security guard called Petitioner’s nursing supervisor to inform her that that an alarm had been triggered in the basement of the facility.  CMS Ex. 20 ¶ 23.  After having searched the facility and surrounding grounds, staff determined that Resident # 1 was missing and made a call to 911 at about 5:30 a.m.  Id.

Subsequent review of security camera footage revealed that the resident had eloped from the facility.  CMS Ex 18 ¶ 17; CMS Ex. 15 at 1.  The footage shows that, at about 4:48 a.m. on June 12, Resident # 1 exited an elevator in the basement of Petitioner’s facility.  Id.  After wandering briefly in the basement, the resident pushed open the basement exit door and entered Petitioner’s parking lot.  Id.  The resident then headed for a heavily trafficked urban street and disappeared at about 4:55 a.m. on June 12.  CMS Ex. 18 ¶ 19.

A security guard later claimed that when he was seated at the security desk on June 12, 2021, he did not hear the wander guard annunciator, did not hear a basement alarm, and did not see security camera monitors showing the resident exiting the facility.  CMS Ex. 22 ¶ 13; CMS Ex. 24 at 14.

Resident # 1 was eventually found by family members around noon on June 12, on the Coney Island boardwalk after having wandered on urban streets for about seven hours.

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CMS Ex. 8 at 4.  The family returned the resident to Petitioner’s facility at about 1:40 p.m. on that date.  Id.

Petitioner’s staff were required to fill out a form recording the 30-minute intervals when they monitored Resident # 1 and the resident’s location within the facility at those times.  CMS Ex. 6.  On June 12, 2021, in fourteen separate entries, the staff recorded the resident as being present in her room from 5:00 a.m. until noon.  Id. at 24.

CMS alleges that there was a mechanical failure of Petitioner’s wander guard system, contending that the annunciator at Petitioner’s security desk failed to sound when the resident exited the elevator in the basement.  Petitioner denies this, asserting that the wander guard system was in working order at the time of the elopement and that the annunciator sounded.  Petitioner’s Pre-hearing Brief and Opposition to Respondent’s Motion for Summary Judgment (Petitioner’s brief) at 14-16.

I find it unnecessary to resolve this fact dispute because the facts do not benefit Petitioner no matter how I decide them.  If the annunciator failed to sound, as CMS contends, that inescapably leads to the conclusion that Petitioner’s alarm system was poorly maintained.  If on the other hand, it did sound, as Petitioner contends, the only reasonable inference that I can draw from that is that Petitioner’s security guard failed to perform his duty and immediately respond to the alarm.  Either resolution of the facts establishes that Petitioner’s surveillance system failed and that the measures that Petitioner employed to protect Resident # 1 were ineffective.

A skilled nursing facility is responsible for the performance of its employees.  Negligent performance by a staff member of assigned duties or nonperformance of those duties is a deficiency that is attributable to the facility.  Petitioner is responsible for the failure of its maintenance staff to assure that the wander guard annunciator worked, and it is also responsible for any failure of its security guard to perform his duty.  One way or another, these failures establish a breakdown of Petitioner’s surveillance system due to employees’ derelictions of duty.

There were other failures.  The basement door alarm evidently did sound when Resident # 1 exited the facility, but no one heard it until a kitchen staff member showed up about 10 minutes after it sounded, leading inescapably to the conclusion that the alarm was ineffective in alerting individuals who were not in its immediate vicinity.  CMS Ex. 4 at 3.  Petitioner’s security cameras were operational, but no one was watching them when the resident eloped.  CMS Ex. 22 ¶ 12; CMS Ex. 24 at 13-14.  There is a period of seven minutes when the resident wandered in sight of the security cameras during which no one saw her on the cameras’ monitors.  Id.

It is impossible to conclude that the staff were fulfilling their duty to observe Resident # 1 at 30-minute intervals.  The monitoring sheets for the morning of June 12, 2021, are not

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just inaccurate.  Rather, they falsely portray Resident # 1 as being in her room during seven hours when she was wandering the streets of Brooklyn.  CMS Ex. 6; CMS Ex. 20 ¶ 24.  The fourteen separate false entries on June 12 suggest deliberate falsification.  However, I do not need to find that staff intentionally falsified the monitoring sheets to conclude that they are useless as a measure of the care that Petitioner’s staff gave to the resident.

I have considered Petitioner’s contentions that there are disputed issues of material fact and its arguments that it was not deficient, and I find them to be unpersuasive.

Petitioner asserts that it was complying with participation requirements when surveyors and CMS determined to find immediate jeopardy level noncompliance.  Thus, says Petitioner, Resident # 1 wasn’t at risk when CMS determined that there was immediate jeopardy.  Petitioner’s brief at 17.  I discuss the significance of CMS’s finding of immediate jeopardy below at subheading 2.  However, Petitioner’s contention encompasses another argument by Petitioner about its compliance and that is its assertion that, once Resident # 1 left its facility, whatever noncompliance may have occurred ceased to exist at that moment.  Petitioner’s brief at 6, 17. That argument is fundamentally incorrect.

There is no question that the undisputed facts pertaining to the care that Petitioner’s staff gave to Resident # 1 establish that Petitioner’s alarm and surveillance system failed.  But that failure isn’t limited just to Resident # 1.  Rather, the failure was systemic. Whether the alarm system wasn’t working on June 12, 2021 due to negligent maintenance, or whether that failure was due to misfeasance by a security guard, it permitted not just Resident # 1 to elope, but left Petitioner’s facility unguarded against any resident leaving the facility without staff’s knowledge.  Petitioner’s system was nonfunctional with or without Resident # 1’s presence.  Indeed, Petitioner would have been deficient even had Resident # 1 not eloped, because the systemic failure of the alarm system nevertheless existed.

Petitioner argues that Resident # 1 was no longer at risk when she returned to Petitioner’s facility because staff monitored her continuously.  Petitioner’s brief at 18.  I do not disagree that Petitioner’s staff adequately protected Resident # 1 after she returned to the facility.  But that care begs the question of Petitioner’s noncompliance previously, when the resident eloped and when other residents could have left the facility without being detected.¹

Petitioner contends that there is a question of fact as to whether its staff monitored the resident at 30-minute intervals.  Petitioner’s brief at 18-19.  It asserts that the fact that the

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monitoring record is inaccurate doesn’t mean that the staff was remiss in monitoring the resident.  Id.

The obviously false monitoring records for June 12, 2021 support a conclusion that staff was not regularly monitoring Resident # 1 at 30-minute intervals as they had been directed to do.  CMS Ex. 6 at 24.  However, I do not have to reach that conclusion to decide that Petitioner was noncompliant.  I conclude only that the monitoring record is palpably unreliable, precluding any conclusion that the staff diligently monitored Resident # 1 on June 12, 2021.

2.    Remedy

CMS may impose a per-instance penalty to remedy any substantial noncompliance by a skilled nursing facility.  42 C.F.R. § 488.438(a)(2).  Petitioner’s noncompliance with 42 C.F.R. § 483.25(d)(1) and (2) justifies imposition of a per-instance penalty.

There are regulatory criteria for deciding what penalty amount is reasonable.  42 C.F.R. § 488.438(f)(1) – (4); 42 C.F.R. § 488.404 (incorporated by reference into 42 C.F.R. § 488.438(f)(3)).  These criteria include the seriousness of a facility’s noncompliance.

I find the penalty amount of $20,780 to be reasonable.  The penalty amount falls within the permissible range for per-instance penalties.  45 C.F.R. Part 102.  The seriousness of Petitioner’s noncompliance supports the penalty amount.

Resident # 1 was a debilitated and demented individual whose impairments were so grave that she required assistance with walking and getting in and out of bed.  Allowing a resident who was so impaired to elope from Petitioner’s facility in the pre-dawn hours and to wander the heavily trafficked streets of Brooklyn, New York for seven hours was a recipe for disaster.  The fact that the resident evidently was unharmed is fortuitous, but it doesn’t gainsay the risks that the resident encountered after she eloped.

CMS determined that Petitioner’s noncompliance was so egregious as to put Resident # 1 at immediate jeopardy.  “Immediate jeopardy” is defined at 42 C.F.R. § 488.301 to be noncompliance that causes or is likely to cause a resident or residents to experience serious injury, harm, impairment, or death.  Petitioner challenges that finding by claiming first, that it never failed to comply with participation requirements and second, that surveyors and CMS failed to apply applicable policy guidelines in determining that Petitioner’s noncompliance was at the immediate jeopardy level.  Petitioner’s brief at 19-22.

It is not necessary that I conclude that Petitioner’s noncompliance put Resident # 1 or anyone else in immediate jeopardy in order that I find the noncompliance sufficiently serious to justify the remedy.  A finding of immediate jeopardy is not a necessary element

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of a per-instance penalty amount.  See 42 C.F.R. § 488.438(a)(2).²  However, Petitioner may not challenge – and I lack jurisdiction to rule on Petitioner’s challenge – CMS’s finding of immediate jeopardy level noncompliance, because in this case the determination of immediate jeopardy does not affect the range of the civil money penalty that CMS determined to impose.

A party has no right to challenge a finding of immediate jeopardy unless that finding would affect the range of civil money penalties that may be imposed to remedy the facility’s noncompliance.  42 C.F.R. § 498.3(b)(14), (d)(10).³  That would be the case only if CMS determined to impose per-diem civil money penalties.

If CMS had determined immediate jeopardy level per-diem penalties, then Petitioner would have been entitled to challenge the immediate jeopardy finding.  42 C.F.R. § 488.438(a)(1)(i)-(ii).  But with per-instance penalties, such as the penalty imposed here, there is only one range of penalty amounts and that is unaffected by an immediate jeopardy finding.  42 C.F.R. § 488.438(a)(2).  Consequently, Petitioner has no right to challenge the finding.

Endnotes

¹  The civil money penalty that CMS imposed is a per-instance penalty and is not premised on Petitioner being noncompliant for an extended time period.

²  That is not to say that a finding of immediate jeopardy is irrelevant to deciding the amount of a per-instance penalty, because the immediate jeopardy finding is a measure of the seriousness of a facility’s noncompliance.

³  There are limited additional circumstances other than penalty range in which a facility may challenge a finding of immediate jeopardy.  These circumstances involve a finding of substandard quality of care that causes a facility to lose its authority to conduct a nurse aide training and competency program.  That is not at issue in this case because Petitioner does not conduct this program.