Bria of Columbia, DAB CR6428 (2024)

DECISION

I enter summary judgment in favor of the Centers for Medicare & Medicaid Services (CMS) and against Petitioner, Bria of Columbia, a skilled nursing facility in the state of Illinois.  I sustain the imposition of remedies consisting of a per-instance civil money penalty of $14,335 and denial of payment for new admissions for a period that began on December 20, 2022, and continued through February 2, 2023.

I.  Background

This case originally was assigned to another administrative law judge and was transferred to me in September 2023.

With its motion for summary judgment, CMS filed supporting exhibits identified as CMS Ex. 1 – CMS Ex. 51.  In opposition, Petitioner filed exhibits identified as P. Ex. 1 – P. Ex. 4.  I do not receive the parties' exhibits into evidence because I find no disputed issues of material fact.  However, I cite to some of these exhibits to illustrate facts that are undisputed or to address a party's contentions and arguments.

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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 Medicare participation requirements and whether CMS's remedy determinations are 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 undisputed facts.  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 in favor of the non-moving party.

Fundamentally, the question 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 and Human Servs., 604 F.3d 445, 449 (7th Cir. 2010).

There is no such issue in this case.  As I discuss below, the undisputed facts unequivocally establish Petitioner's noncompliance.  The undisputed facts also establish that CMS's remedy determinations are reasonable.

1. Noncompliance

At issue in this case are findings of noncompliance that were made at two surveys of Petitioner's facility:  an annual health and life safety code survey completed on November 18, 2022 (November survey), and an annual health survey revisit completed on January 13, 2023 (January survey).  See CMS Exs. 2, 30, 31.  The November survey yielded findings that Petitioner failed to comply substantially with six Medicare participation requirements.  CMS Ex. 2.  The January survey found failure by Petitioner to comply with one additional participation requirement. CMS Ex. 30.

CMS imposed a per-instance civil money penalty to remedy the noncompliance finding made at the January survey.  CMS Ex. 30 at 2.  That penalty does not depend on any noncompliance findings made at the November survey.  Additionally, CMS imposed a denial of payment for new admissions that addresses findings of noncompliance made at the November survey and findings of additional noncompliance made at the January survey.  CMS Ex. 32.

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a. November survey

CMS may impose the remedy of denial of payment for new admissions for a single failure by a skilled nursing facility to comply with a Medicare participation requirement and may continue to impose that remedy until the facility establishes that it has regained compliance.  42 C.F.R. § 488.417(a); Rosewood Care Ctr. of Rockford, DAB No. 2466 (2012).

It is unnecessary that CMS establish by undisputed facts all six noncompliance findings made at the November survey.  Even one established finding will suffice to sustain CMS's determination in this case to impose denial of payment for new admissions and that finding will be enough to sustain the duration of the denial of payment, absent facts from which I could infer that Petitioner corrected its noncompliance prior to the denial of payment for new admissions' end date.

I find that the undisputed material facts sustain at least two of the noncompliance findings made at the November survey.  I do not address the remaining noncompliance findings in this decision because it is unnecessary that I do so.¹

i.  Failure to comply with 42 C.F.R. § 483.12(a)(1)

CMS found that Petitioner failed to comply substantially with the requirements of 42 C.F.R. § 483.12(a)(1).  A skilled nursing facility must protect its residents against verbal and physical abuse.  The regulations define "abuse" to include the willful infliction of injury, unreasonable confinement, intimidation, or punishment against a resident with resulting physical harm, pain, or mental anguish.  42 C.F.R. § 488.301.  The regulation's prohibitions apply both to abuse directed against residents by facility staff and resident-on-resident abuse.

In the regulation's context, "willful" means "deliberate."  An injurious act is abusive if it is volitional without regard to the abuser's underlying intent.  It is no defense, for example, to assert that a resident is demented if that resident punches, hits, or insults another resident.

In practice, a skilled nursing facility's duty to protect its residents against abuse means that the staff must assess the conditions in the facility, including the behavior of its residents, to determine whether the potential for abuse exists.  Staff has a duty to implement protective measures whenever there is reason to believe that abuse might

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occur.  Kindred Transitional Care & Rehab – Greenfield, DAB No. 2792 at 10 (2017).  Half-hearted measures will not suffice.  A facility's staff must do everything within their power to protect residents.  Golden Living Ctr. – Trussville, DAB No. 2937 at 11 (2019).

Undisputed facts sustain CMS's determination that Petitioner failed to protect its residents against abuse.  They establish that Petitioner's staff persisted in housing a demented resident – R57 – with roommates whom she abused repeatedly.  R57 assaulted her roommates, verbally and physically, on multiple occasions.  The staff failed to assess the resident as a likely abuser of her roommates, failed to develop measures to protect those residents, and subjected not one, but three separate residents, to R57's abuse.

R57 was a long-term resident of Petitioner's facility and was well-known to staff as extremely difficult to work with.  R57's diagnoses included Alzheimer's disease, dementia, a mood disorder, and anxiety; her documented behaviors included both verbal and physical aggression.  CMS Ex. 28 at 18.

Petitioner's staff developed a care plan for R57 on June 11, 2021.  The care plan's instructions to Petitioner's staff about caring for the resident clearly reflect the resident's potential for aggressive behavior.  CMS Ex. 28 at 18.  Recognizing the resident's explosive potential, the care plan instructed Petitioner's staff to be extremely circumspect whenever they interacted with her:

Accept what the resident says (not doing so can create an argument).  Keep [your] voice calm, modulated, and firm (do not shout).  Remove from situation and take to alternate location as needed.  Maintain a distance; do not crowd.  Honor interpersonal space needs.  Don't stand over the resident, but rather come down to eye level.  Keep your posture relaxed and your hands open in front of you.  Keep your back to the door if possible.

CMS Ex. 28 at 19.

Petitioner's staff and management knew that R57, in addition to being aggressive and demanding, did not tolerate roommates.  In an interview, Petitioner's interim administrator acknowledged that R57 didn't like having a roommate, although she (or presumably, her family or guardian) did not want to pay for her to reside in a private room.  Multiple members of Petitioner's staff averred that R57 did not tolerate having roommates.  CMS Ex. 28 at 15.

Petitioner persisted in assigning roommates for R57 despite the staff's recognition of the resident's explosive temperament and her clear intolerance of roommates.  Doing so was

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a recipe for abuse and, in fact, R57 proceeded to physically and verbally abuse three other residents who were assigned to share a room with her.

From July 28 through August 9, 2022, Petitioner housed R57 with R39.  R57 reacted immediately – and completely predictably.  On July 28, R57 loudly complained about having a roommate.  CMS Ex. 27 at 117.  R39's nursing notes for August 9, 2022, state:

CNA heard yelling from room.  When entering room residents (R39 and R57) were near each other still yelling.  Immediately separated and brought [R39] to this nurse for assessment.  [R39] noted to have an open area below left eye 1.4 cm (centimeters) x 0.5 cm which was an old injury from previous fall.  [R39] unable to explain what happened except that "[R57] was trying to get me to do things I didn't want to do."  [R39] denies being hit or scratched by [R57] but still cannot explain how area below the eye was opened up. . . . [R39] immediately relocated to a different room.

CMS Ex. 28 at 21.

From September 29 through September 30, 2022, Petitioner housed R57 with another resident, R63.  Petitioner's staff reported that R57 was disruptive throughout the night and threatened R63.  CMS Ex. 28 at 21.  R63 left her room and sat at Petitioner's nurse's station during the night because she was afraid to be with R57.  CMS Ex. 28 at 23.

Petitioner then assigned yet another resident, R240, to live with R57.  This arrangement lasted from November 4 through November 10, 2022.  A nurse documented that R57 became physically aggressive toward R240 during the night of November 10, and that R57's behavior included hitting and bumping R240 with her wheelchair.  As a result of R57's behavior, R240 was moved to a different room.  CMS Ex. 28 at 22.

Petitioner offered no facts to suggest that a single room was unavailable to R57.  The only explanation that Petitioner's management offered for the repeated decision to house R57 with other roommates was financial – that R57 (or someone acting on the resident's behalf) did not want to pay to house her in a single room.

The decision to room other residents with R57 was unacceptable.  Petitioner's staff knew that it had to handle R57 with kid gloves to avoid explosive outbursts and aggression.  Considering that, the repeated efforts to house R57 with individuals who, by definition, were too frail and infirm to survive independently and without skilled nursing care, were absurd.  That was a recipe for confrontation and abuse.  And yet, Petitioner repeated this action multiple times, despite the completely predictable results of doing so.

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Petitioner offered neither facts nor argument justifying its repeated and disastrous attempts at housing R57 with roommates.  In fact, Petitioner makes it very clear that it did have single rooms available, for a premium, without taking into consideration that R57's roommates were the ones left to pay the price for R57's dissatisfaction with her rooming situation.

Petitioner recites at length the interventions that Petitioner's staff developed to address R57's aggression.  Petitioner's Combined Prehearing Brief and Response in Opposition to Respondent's Motion for Summary Judgment (Petitioner's brief) at 3-4.  That Petitioner developed these interventions is undisputed.  But none of them addressed R57's violent opposition to having roommates.

Indeed, R57's care plan reveals not only how potentially dangerous the resident was, but also how aware Petitioner's staff were of the resident's potential for violent outbursts.  CMS Ex. 28 at 18-19.  As I have discussed, staff knew that they had to be extremely circumspect when providing care to this resident so as not to provoke an outburst.  The extensive care planning that the staff did to address R57's temperament only underscores the manifest folly of housing her with other residents—individuals who clearly lacked the training, skills, and personal advocacy of Petitioner's staff.

Petitioner argues that, when R57 became aggressive toward her roommates, staff addressed the problem by immediately separating the roommates from R57 and housing them elsewhere.  Petitioner's brief at 13.  That is true.  But then, Petitioner repeatedly replaced R57's abused roommates with new ones, effectively subjecting each new roommate to abuse.

Petitioner also denies – without citing any facts – that R57 abused her roommates.  See Petitioner's brief at 13 ("Further, it is clear that no abuse or neglect took place at all.").  Petitioner's assertion notwithstanding, the undisputed facts amply support a finding that the roommates were abused.  R39 sustained a cut to her head after her altercation with R57.  CMS Ex. 28 at 21.  R63 was so intimidated by R57 that she spent a night sitting at Petitioner's nurse's station.  CMS Ex. 28 at 23.  R240 was at the receiving end of R57's verbal abuse and was physically abused as well, as R57 hit and bumped her with her wheelchair.  CMS Ex. 28 at 22.

ii.  Failure to comply with 42 C.F.R. § 483.25(k)

A skilled nursing facility "must ensure that pain management is provided to residents who require such services, consistent with professional standards of practice, the comprehensive person-centered care plan, and the residents' goals and preferences."  42 C.F.R. § 483.25(k).  In practice, the regulation requires that a skilled nursing facility do whatever is necessary to provide appropriate care to residents who are in pain.  That includes ensuring that medication is on hand so that residents receive their prescribed

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medication.  The facility should anticipate medication supply shortages and do what it can to alleviate them.  The facility must seek alternatives to minimize its residents' pain when there is a disruption in medication supply.  That duty may require the facility to consult with its residents' treating physicians and to seek alternate medications or attempt to obtain medications from sources outside of its normal supply chain.  Universal Healthcare/King, DAB No. 2215 (2008).

The undisputed material facts establish that Petitioner and its staff failed to take any measures required by the regulation to alleviate a resident's pain after the facility's supply of pain relief medication ran out.

As of November 2022, Petitioner's residents included a resident who is identified as R14.  This resident suffered from pain in her hip, shoulders, lower back, and neck.  She also suffered from chronic generalized pain.  CMS Ex. 17 at 2-3.  To alleviate the resident's pain, her physician had prescribed a pain‑relieving medication, hydrocodone‑acetaminophen, to be administered three times per day.  CMS Ex. 20 at 6.

Petitioner's staff failed to provide this medication to R14 on the evening of October 25, 2022, or at all on October 26.  CMS Ex. 21 at 7.  Facility records show that the medication was unavailable – that is to say, that Petitioner had run out of its supply – and that it had been reordered.  CMS Ex. 22 at 1.

The only reasonable inference I can draw from the undisputed facts is that when Petitioner's supply of the medication ran out it left R14 with unassessed and untreated pain.

The record is devoid of facts showing that Petitioner's staff assessed R14's pain in the absence of medication to determine whether a problem existed that called for immediate intervention.  There is nothing in the record to show that Petitioner's staff attempted to obtain pain medication from a source other than its regular supply chain.  Nor is there anything to show that staff consulted with the resident's treating physician about the resident's pain and how best to alleviate it considering the absence of hydrocodone‑acetaminophen.  In fact, the record indicates that Petitioner did not immediately reorder R14's medication until roughly 18 hours after it became aware that the drug was unavailable.  CMS Ex. 22 at 1.

Petitioner offered no facts to rebut the undisputed facts that I have recited.  It contends that the facts do not establish that it failed to comply with regulatory requirements.  Petitioner's brief at 18-19.  However, the facts recited by Petitioner are identical to those asserted by CMS.  Petitioner admits that its staff failed to administer pain medication to R14, asserting that staff failed to do so because the medication was "unavailable."  Petitioner's brief at 19.

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As I have explained, the unavailability of medication does not end a facility's duty to its residents.  The undisputed facts show unequivocally that when the medication ran out, Petitioner's staff did nothing to assist R14.

b. January survey

CMS found additional noncompliance at the January survey.  That was a failure by Petitioner to comply with the requirements of 42 C.F.R. § 483.25(d).

This regulation requires that a skilled nursing facility ensure that its premises remain as free from accident hazards as is possible.  Additionally, it requires that the facility provide each of its residents with adequate supervision and assistance devices to prevent them from sustaining accidents.  42 C.F.R. § 483.25(d)(1), (2).

The regulation imposes on skilled nursing facilities the duty to take all reasonable measures to protect its residents against sustaining accidents.  A facility must assess its premises to determine whether hazards exist and to remediate those hazards.  It must also assess each of its residents to determine that resident's unique problems and vulnerabilities.  It must plan each resident's care to address any accident hazards that its assessments identify.  And it must implement its plans of care to protect its residents.

Protecting residents against possible elopement from a facility is part of the facility's duty to protect its residents.  A facility must exercise extraordinary care to protect its residents against the dangers associated with elopement.  Many residents of skilled nursing facilities are extremely vulnerable to a wide array of hazards and dangers if they leave facility premises undetected and unsupervised.

CMS's allegations focus on the care that Petitioner gave to a resident identified as R2.  CMS contends that staff incorrectly assessed this resident as not being at risk for elopement.  CMS contends that the staff failed to revise its assessment when it became obvious that the initial assessment was wrong and that the resident, in fact, posed a substantial risk for elopement.  According to CMS, the resident's subsequent elopement was entirely foreseeable and therefore preventable.

Additionally, CMS contends that Petitioner's staff failed to respond to the resident's elopement in an organized manner, violating Petitioner's own elopement policy.  It avers that Petitioner's staff compounded their failures by writing a blatantly incorrect revised assessment of R2's potential for elopement.

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Petitioner admitted R2 to its facility in November 2022.  CMS Ex. 43 at 1, 4.²  The resident, 32 years old as of her admission, came to Petitioner's facility with a history of serious mental and emotional problems.  Her diagnoses included "unspecified intellectual disabilities," developmental disorder, bipolar disorder, metabolic encephalopathy, and altered mental status.  CMS Ex. 43 at 7-8.  Petitioner's staff assessed R2 as having the potential for "aggressive, inappropriate, attention-seeking and/or maladaptive behavior. . . ."  CMS Ex. 43 at 5.

On November 10, 2022, Petitioner's staff conducted an elopement evaluation of R2.  R2 was assigned an elopement score of two, indicating "No Risk" for elopement.  Staff concluded that the resident lacked the physical ability to leave Petitioner's premises and did not verbalize a serious intent to do so.  In a direct and unexplained contradiction of the resident's plan of care, the elopement assessment found that R2 did not become easily agitated or show poor judgment.  The assessment concluded that R2 was not eligible for independent pass privileges and could not assume responsibility for her own care.  CMS Ex. 37 at 1.

The undisputed facts do not explain how Petitioner's staff came to these conclusions. However, events beginning almost immediately after they completed the elopement assessment proved their conclusions to be entirely wrong.

On November 16, 2022, R2 yelled at and kicked members of Petitioner's staff.  Petitioner sent her to a local hospital for evaluation. R2 returned to Petitioner's facility the next day, November 17.  CMS Ex. 36 at 10.  On that day, R2 screamed at, punched, and threatened to kill staff, and attempted to leave the facility.  Petitioner's staff called the police and emergency medical services, who restrained her while she continued to act violently.  The resident again was sent to a local hospital.  R2 returned to Petitioner's facility that same day.  CMS Ex. 36 at 9.

On December 5, 2022, staff observed that the resident was capable of walking without assistance devices.  CMS Ex. 42 at 2.  This directly contradicted staff's November 10 elopement evaluation finding that the resident lacked the physical capacity to leave Petitioner's premises.  See CMS Ex. 37 at 1.  Also on December 6, 2022, staff members found R2 crying and sobbing, expressing that she did not want to be in Petitioner's facility and that she wanted to be home for Christmas.  CMS Ex. 36 at 6.

R2 had another violent outburst on December 18, 2022.  On that date, she was crying, she left her wheelchair, and punched and kicked staff.  She was transported to a local hospital and returned to Petitioner's facility later that day when she was observed to be propelling herself in her wheelchair.  CMS Ex. 36 at 5.

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These events should have made it patently clear to Petitioner's staff that their November 10, 2022, elopement assessment of R2 was entirely incorrect and urgently needed to be rewritten.  That assessment was wrong in every respect.  Whereas the assessment found the resident not to be easily agitated, the events of the following weeks showed she was not only susceptible to becoming agitated, but in fact, demonstrated that she could be violent.  The assessment's conclusion that the resident lacked the physical ability to leave the facility was belied by the staff's observations that R2 was far more mobile than had been assumed.  Most critically, in December, she demanded to leave Petitioner's facility, signaling a potential intent to elope.

There was not only an urgent need to reassess the resident's desire to elope and her ability to do so, but there was an equally urgent need for Petitioner's staff to develop plans to protect the resident.  The staff could have considered various measures ranging from heightened monitoring to diversion activities.  They did not.  They left in place an obviously wrong elopement assessment and they failed to amend the resident's plan of care.  In sum, Petitioner's staff continued to treat R2 as if she was not an elopement risk in the face of overwhelming evidence that she was just that.

R2 eloped from Petitioner's facility at about 7:40 a.m. on January 1, 2023.  CMS Ex. 39 at 3.  Her elopement triggered a door alarm, but staff did not respond to it.  CMS Ex. 38 at 2-3, 6-7, 14.  Petitioner's staff turned off the alarm and did not initiate a search.  Subsequently, a member of Petitioner's staff completed her shift and left Petitioner's facility.  The staff member encountered the resident about 300 meters (about 2/10^th mile) from Petitioner's facility.  CMS Ex. 39 at 3.  The resident refused to return, became physically aggressive, and hit another staff member's vehicle with a stick.  Staff summoned the police and R2 attacked them.  CMS Ex. 36 at 4.  Eventually, emergency medical technicians arrived at the scene and transported her to a local hospital.  CMS Ex. 39 at 1.

In a subsequent report, several of Petitioner's staff stated that the resident had exhibited previous behavior that indicated a desire to elope.  CMS Ex. 38 at 2, 4, 8, 9.

The failure by Petitioner's staff to respond to the alarm on January 1, 2023, was a gross dereliction of their responsibilities and a violation of Petitioner's elopement policy.  CMS Ex. 44 at 1.  Petitioner's policy designated members of the staff who were responsible for responding to an alarm.  The policy stated that when an elopement occurred, staff were to immediately initiate a search for the eloped resident.  CMS Ex. 44 at 2-3.  The inference that I draw from the staff's complete failure to respond when the alarm was triggered by R2 on January 1, was that Petitioner had not adequately trained its staff to understand and implement its elopement policy.

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On January 1, 2023, staff completed a new elopement assessment.  The assessment at last recognized that R2 was a high risk for elopement, with an elopement score of 16.  But incredibly, the assessment now concluded that she was eligible for independent pass privileges – meaning that she was capable of leaving the facility unsupervised.  And, notwithstanding R2's multiple outbursts, the assessment continued to state that the resident does not become agitated or confused and does not exhibit poor judgment.  CMS Ex. 37 at 3.

Petitioner's staff also revised R2's plan of care on January 1, 2023, in evident response to her elopement.  The plan of care now recognized that the resident was at risk for elopement.  However, the plan minimized the extreme agitation that the resident displayed by concluding that she "treat[ed] her peers with respect."  It stated some interventions that included one-to-one visit with staff "as needed" and close observation of the resident for 72 hours, to be re-evaluated.  The plan stated also that staff should reward R2 for good behavior during periods of mood change, encourage her to keep busy with activities, praise her when she was cooperative, provide her with reality orientation if appropriate, and redirect her to activities.  CMS Ex. 43 at 7.

The resident later returned to Petitioner's facility from the hospital on January 1, 2023.  That evening, she violently attacked a nurse, punching and scratching her, and again attempted to elope.  Staff summoned police and emergency medical services and they transported the resident to a local hospital.  The nurse who had been on the receiving end of R2's attack that evening noted that the resident was dangerous to herself and others due to her physical aggression.  CMS Ex. 36 at 3-4.

R2 returned to Petitioner's facility from the hospital early in the morning on January 2, 2023.  Nursing notes indicate that the facility arranged to have R2 sent to a psychiatric hospital for an evaluation upon her return.  Emergency medical services then transported the resident from Petitioner's facility to a psychiatric hospital.  CMS Ex. 36 at 2-3.  She returned to Petitioner's facility that same morning.  Upon her return, the resident began breaking items in the facility.  She attacked staff and attempted to be hit by a car on the road outside of the facility.  CMS Ex. 36 at 2.  Police were summoned, R2 resisted them violently, and she was eventually returned to her room.  Shortly thereafter, the resident walked from her room to the nurse's station, threatened staff, attempted once again to elope, and stabbed herself in her arm with a pen.  CMS Ex. 36 at 1-2.

The undisputed facts describe multiple failures by Petitioner's staff to recognize the extreme risks and dangers posed by R2, and equally, multiple failures by Petitioner's staff to respond to information that made clear just how dangerous R2 was to her own safety.

Petitioner's staff made an initial assessment of R2's potential for elopement that was clearly incorrect.  It's baffling that Petitioner's staff failed to comprehend the resident's

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capacity for explosive outbursts and incorrectly assessed her mobility.  The staff's conclusion that the resident was not an elopement risk was plainly wrong.  Events that transpired beginning very soon after the resident's admission to Petitioner's facility should have made it obvious to any rational observer that the initial assessment was wrong.  Throughout November and December 2022, R2 expressed extreme discontent with her status and acted out increasingly violently.  She made it clear to several members of Petitioner's staff that she wanted to leave the facility—a warning sign that Petitioner's staff ignored.  Staff should have revised their assessment and used their revisions to develop interventions to protect the resident.  They completely failed to do so.

On January 1, 2023, when R2 eloped, staff was derelict in performing their duty to protect her.  They failed to comprehend the meaning of an alarm that signaled the resident's elopement.  Staff failed to comply with Petitioner's elopement policy in addressing the alarm.  They failed to organize an off-premises search for the resident.  The result of this dereliction was that R2 escaped a considerable distance from Petitioner's premises before being discovered by a chance encounter with an off-duty member of Petitioner's staff.

Petitioner's staff did not address R2's elopement propensity until it revised her care plan on January 1, 2023.  The interventions in the plan, including 72-hour direct monitoring, certainly were justified by the resident's behavior.  However, neither the plan nor any assessment of the resident, including the revised elopement assessment that the staff created on January 1, said anything about R2's motivation to elope.  R2 obviously was desperately unhappy with her residency at Petitioner's facility and her unhappiness was causing her to act out violently.  Petitioner's staff made little attempt to identify and address the reasons for the resident's unhappiness.  The consequence was that the interventions in the plan of care that the staff adopted on January 1, 2023, had the appearance of a band aid on a gaping wound.

Petitioner did not adduce any facts that challenge or refute the facts that I recite.  See Petitioner's brief at 11-12.  It has not, for example, asserted that its staff did anything more for R2 than that which I have described.  It has not explained how Petitioner's initial elopement assessment of R2 could have been so terribly wrong.  It has not provided facts to show that staff reassessed R2's elopement risk between November 2022 and January 1, 2023.  It has not offered anything to show that staff responded appropriately to the alarm that R2 triggered when she eloped.  It has not provided additional facts concerning the assessment and care planning that Petitioner's staff performed after the resident's January 1 elopement.

Petitioner contends that it "extensively care planned for R2's disturbed thought process . . . upon admission."  Petitioner's brief at 17.  That argument is a red herring because, whatever planning Petitioner's staff did at the inception of the resident's stay did not

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include planning for the possibility that the resident would elope.  Indeed, and as I have discussed, the staff failed to identify R2 as an elopement risk.

Additionally, Petitioner contends that CMS unfairly delayed giving Petitioner notice of its noncompliance findings.  Petitioner's brief at 17-18.  It asserts that CMS found that Petitioner became noncompliant with 42 C.F.R. § 483.25(d) beginning in mid-November 2022 when Petitioner admitted R2 but did not inform Petitioner of this noncompliance until January 12, 2023.  That allegedly late notice, according to Petitioner, precluded it from remediating its noncompliance at an earlier date.

However, nothing in the regulations bars CMS from finding noncompliance that has its inception prior to a survey.  Furthermore, Petitioner's noncompliance with 42 C.F.R. § 483.25(d) began at the completion of the November survey.³  Surveyors did not have the opportunity to review the record and to discover the noncompliance until the January survey.  There was no delay in providing notice to Petitioner.

Additionally, and as I discuss below, the civil money penalty that CMS imposed for Petitioner's noncompliance identified that the January survey is a per-instance penalty.  It does not depend on the number of days during which Petitioner was noncompliant.

2. Remedies

CMS determined to impose two remedies.  First, it imposed a denial of payment for new Medicare admissions for each day of the period that began December 20, 2022, and that continued through February 2, 2023.  CMS also imposed a per-instance civil money penalty of $14,335.  CMS Ex. 32 at 1.

I find that the undisputed material facts support the imposition of these remedies.

a. Denial of payment for new admissions

As I have explained, CMS may impose the remedy of denial of payment for new admissions as redress for even a single failure by a skilled nursing facility to comply with Medicare participation requirements.  42 C.F.R. § 488.417(a).  The scope and severity of the noncompliance is not a relevant factor in establishing that authority, just so long as the noncompliance is more than minimal.

I have found that as of the November survey, Petitioner was substantially noncompliant with two Medicare participation requirements, found at 42 C.F.R. § 483.12 and at

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42 C.F.R. § 483.25(k).  The presence of either of those deficiencies is enough to authorize CMS to impose denial of payment as a remedy.

The duration of denial of payment for new admissions is controlled by 42 C.F.R. § 488.454.  With exceptions that do not apply here, a denial of payment will continue in effect until:

The facility has achieved substantial compliance, as determined by CMS or the State based upon a revisit or after an examination of credible written evidence that it can verify without an on-site visit.

42 C.F.R. § 488.454(a)(1).

The regulation creates a presumption that noncompliance, once established, continues until CMS or a state agency can verify compliance through an on-site inspection.  CMS has no burden to establish continuing noncompliance during a period when a remedy is in effect.  N. Mont. Care Ctr., DAB No. 1930 at 8 (2004).  The burden falls entirely on a facility to establish that it has attained compliance.

Here, Petitioner offers nothing to show that it corrected its noncompliance prior to February 3, 2023.  I therefore sustain the duration of the denial of payment for new admissions.

b. Per-instance civil money penalty

CMS imposed a per-instance civil money penalty as a remedy for the failure by Petitioner to comply with the requirements of 42 C.F.R. § 483.25(d) identified at the January survey.  This remedy is independent from the denial of payment for new admissions that I discuss above.

The regulatory authority to impose a per-instance penalty is at 42 C.F.R. § 488.438(a)(2).  The penalty is intended to redress an event or a discrete set of events that comprise noncompliance.  Duration is not an element of a per-instance penalty.

CMS found that Petitioner's noncompliance was so egregious as to put residents of the facility in immediate jeopardy.  "Immediate jeopardy" means noncompliance that causes or is likely to cause a resident or residents of a facility to experience serious injury, harm, impairment, or death.  42 C.F.R. § 488.301.

Neither CMS nor Petitioner addressed the issue of immediate jeopardy in their briefs.  In fact, a finding of immediate jeopardy is not a prerequisite to the imposition of a civil money penalty of any amount.  The range of permissible per-instance penalties, as set

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forth at 42 C.F.R. § 488.438(a)(2) and 45 C.F.R. Part 102 (which adjusts penalty amounts based on annual inflation) is not contingent on a finding of immediate jeopardy level noncompliance.  I do not address the issue of immediate jeopardy in this decision for that reason.

There are regulatory factors that govern civil money penalty amounts, including per-instance civil money penalties.  These are stated at 42 C.F.R. §§ 488.438(f)(1)-(4) and 488.404 (incorporated by reference into 42 C.F.R. § 488.438(f)(3)).  These factors include the seriousness of a facility's noncompliance and its culpability.  A facility may also offer evidence that it lacks the wherewithal to pay a civil money penalty.

In this case the penalty amount is amply justified by the seriousness of Petitioner's noncompliance and by its culpability.  The failure by Petitioner's staff to address R2's elopement proclivity put that resident at extreme risk.  In the days prior to her elopement, the resident exhibited behavior that put staff on notice that she was not only a high risk for elopement but that she was at great risk for harm.  The resident is an individual of obviously extremely limited judgment and insight who engaged in highly irrational behavior that verged into violence on multiple occasions.  Allowing her to elope the facility could only ever have ended in disaster.  That she was not harmed was fortuitous, but the potential for harm was enormous.

The seriousness of the facility's noncompliance is demonstrated by the failure of staff to reassess R2's elopement potential in the days prior to her January 1, 2023, elopement, despite the behaviors that she exhibited showing that she was a prime candidate to elope and despite the presence of evidence that she was much more mobile than staff originally thought to be the case.  Seriousness is demonstrated also by the lack of preparedness of Petitioner's staff to implement the facility's elopement policy on January 1 when the alarm sounded.

The failure of staff to respond to the alarm establishes that Petitioner was culpable for R2's elopement.  Petitioner had a policy that explained how staff should respond to an alarm.  The failures of Petitioner's staff to respond on January 1, and to comprehend Petitioner's elopement policy are undisputed proof that Petitioner's management had not trained the staff how to respond to an elopement.

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Petitioner asserts that the imposition of the per-instance civil money penalty will cause it to "suffer great financial hardship."  Petitioner's brief at 19.  Petitioner has presented no facts to support this contention.  I have examined all of Petitioner's exhibits, including the statement of Petitioner's administrator.  P. Ex. 4.  None of them contain any information about Petitioner's financial condition.

Endnotes

¹  I do not find that CMS's remaining findings of noncompliance (other than the two that I address) were incorrect.  Neither do I find that there are disputed issues of fact relating to these findings.  I find only that either of the two findings that I sustain is, without more, sufficient to authorize imposition of denial of payment for new admissions.

²  There is some conflict in Petitioner's records about R2's precise admission date.  That does not raise a dispute as to a material fact.

³  At the November survey, surveyors made a finding of noncompliance with 42 C.F.R. § 483.25(d) that rests on facts that are entirely separate from those which are the basis for the noncompliance finding made at the January survey.