Park Valley Inn Health Center, DAB CR6470 (2024)

DECISION

I grant summary judgment in favor of the Centers for Medicare & Medicaid Services (CMS) and against Petitioner, Park Valley Inn Health Center, a Medicare-participating skilled nursing facility in the State of Texas.  I sustain imposition of the following remedies:

• A per-instance civil money penalty of $15,000;
• A civil money penalty of $7,000 for each day of a period that began on September 7, 2021, and that ended on September 20, 2021;
• A civil money penalty of $250 for one day, September 21, 2021; and
• Denial of payment for new Medicare admissions for a period that began on September 18, 2021, and that ended on September 21, 2021.

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I. Background

This case was very recently reassigned to me from the docket of another administrative law judge.

CMS moved for summary judgment and Petitioner opposed the motion.  CMS filed supporting exhibits identified as CMS Ex. 1 – CMS Ex. 18.  With its opposition, Petitioner filed exhibits identified as P. Ex. 1 – P. Ex. 14.  I do not receive these exhibits into evidence because I decide this case based on undisputed facts.  I cite to some of the parties' exhibits in this decision, but only to illustrate facts that are not disputed or to address a party's argument.¹

II.  Issues, Findings of Fact and Conclusions of Law

A.  Issues

This case encompasses issues of compliance and of remedy.  Respecting compliance, CMS alleges that Petitioner failed to comply substantially with a Medicare participation requirement stated at 42 C.F.R. § 483.12, a regulation that requires participating facilities to protect its residents against abuse and neglect, and 42 C.F.R. § 483.15, which articulates residents' admission, transfer, and discharge rights.²  CMS alleges that Petitioner's noncompliance with these two sections was so egregious as to put a resident at immediate jeopardy.³

As to the remedies, CMS imposed an immediate-jeopardy level civil money penalty to remedy Petitioner's alleged noncompliance with the requirements of 42 C.F.R. §§ 483.12 and 483.15.  Petitioner opposes the findings of noncompliance and the remedy determination.

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CMS also imposed a per-instance civil money penalty to remedy Petitioner's noncompliance with another regulation, 42 C.F.R. § 483.80(a), which defines a facility's duty to develop and implement policies and procedures to prevent and control infections.  Petitioner concedes its noncompliance with this regulation but challenges the penalty amount as unreasonable.

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. Department of Health and Human Services, 604 F.3d 445, 449 (7^th Cir. 2010).

There is no such issue in this case.  The undisputed facts sustain CMS's noncompliance determinations and its remedy determinations as well.  There are no disputed issues of material fact:  indeed, the facts alleged by Petitioner and contained in the exhibits that Petitioner filed, are of themselves sufficient to sustain CMS's determination of immediate jeopardy level noncompliance with the requirements of 42 C.F.R. §§ 483.12 and 483.15 and also to sustain CMS's remedy determinations.

1. Noncompliance

The issue of Petitioner's noncompliance centers on Petitioner's treatment of a resident, identified as Resident # 1.  As of September 2021, the resident was 68 years old.  He suffered from bipolar mental illness, with episodes of mania and depression.  P. Ex. 4 at 1.  He had been hospitalized to treat his mental illness but was discharged back to Petitioner's facility at the beginning of September.  The resident was being treated with anti-psychotic and psychotropic medications that included Seroquel, Xanax, and Risperdal.  CMS Ex. 6 at 3-4; CMS Ex. 8 at 90-92.

The resident's mania rendered him extremely difficult to deal with.  At times he was angry and profane.  P. Ex. 2 at 7.  He refused, at times, to speak with health care providers.  Id.  In early September 2021 he grew increasingly frantic.  He paced Petitioner's hallways and angrily talked to himself.  Id. at 8.  He was aggressive and verbally abusive towards Petitioner's staff.  On September 7, 2021, Resident # 1 yelled at

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a member of Petitioner's staff, grabbed her by the arm and threatened to break her fingers.  P. Ex. 10 at 2-3, 6.  On that same date or thereabouts, the resident wandered uninvited into another resident's room, patted her on the head, and told her that she was a "good resident."  P. Ex. 1 at 1.

On September 7, 2021, Petitioner's staff determined that Resident # 1 needed inpatient psychiatric care.  P. Ex. 1 at 1.  Staff attempted to speak with the resident.  He refused to speak to Petitioner's social worker, with a psychologist, and with a psychiatric nurse practitioner.  Id. at 1-2.  He eventually spoke with a nurse practitioner who concluded that Resident # 1 was not able to make his own decisions.  Id. at 2.  Petitioner's staff began the process of having Resident # 1 readmitted to an inpatient psychiatric facility.  Id.  The resident refused to be voluntarily admitted to that facility.  Id.

At about 1:30 p.m. on September 7, Resident # 1 informed Petitioner's charge nurse that he wanted to leave Petitioner's facility on a pass.  P. Ex. 1 at 2.  This was not a new development; the resident had received passes previously to leave Petitioner's facility unescorted.  He had always returned to the facility.  Id. at 3.

The resident left Petitioner's facility at about 4:00 p.m. on September 7.  P. Ex. 1 at 2.  A nurse attempted unsuccessfully to stop the resident from leaving and to redirect him.  He left Petitioner's facility by a side door, violating Petitioner's procedure that residents were supposed to follow when they left on passes, and took a taxi that he had called for transport.  Id. at 2-3.

Petitioner's staff notified the police about Resident # 1's departure from the facility.  The police intercepted the taxi and spoke with the resident.  The police determined that the resident was able to make his own decisions and refused to take the resident into custody or to transport him to a psychiatric hospital.  P. Ex. 1 at 3.

After speaking with the police, Petitioner's management decided to treat Resident # 1 as having discharged himself from the facility against medical advice:  "due to the resident being alert and oriented, [and his] refusal to go to the accepting psych facility."  P. Ex. 1 at 3.  Management made this decision without first discussing the matter with the resident and without first consulting with the resident's treating physician.  Management did no discharge planning and made no attempt to arrange for another facility to house the resident after the resident refused to be transported voluntarily to a psychiatric hospital.   See, Id.

Resident # 1 did not become aware that Petitioner's management had deemed him to be discharged until about 5:30 p.m. on September 7.  At that time the resident returned to Petitioner's facility and attempted to enter the premises.  P. Ex. 1 at 3.  Petitioner's administrator spoke with the resident.  The administrator denied the resident entry into

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the facility but offered to facilitate transportation to a psychiatric hospital or to an emergency room.  Id.

Resident # 1 became agitated.  He urinated at the facility pond and smeared saliva on the facility's front door and front windows.  He made obscene gestures towards the facility administrator, who he could see through the facility's glass front door.  P. Ex. 1 at 3.  The administrator called the police.  Id.

The police arrived at about 7:45 p.m. on September 7 and attempted, unsuccessfully, to find a psychiatric facility that the resident would go to voluntarily or that would accept Resident # 1.  P. Ex. 1 at 4.  The resident refused to go to a local psychiatric hospital.  Id.  The police refused to detain Resident # 1.  He wandered off the premises for a while but returned at around 11:00 p.m.  He attempted to break a side glass door.  Petitioner's management again called the police, who refused to detain the resident.  Id.

The resident left Petitioner's premises again but returned between 7:00 and 8:00 a.m. on September 8, 2021.  He walked around Petitioner's grounds but was not aggressive.  P. Ex. 1 at 4.  Petitioner again called the police.  The police spoke with Resident # 1, who agreed to be transported to a psychiatric facility.  Before leaving he was allowed to use a facility bathroom while observed by the police.  He again acted aggressively towards Petitioner's administrator as he was escorted from the bathroom before finally being transported.  Id. at 4-5.

The undisputed facts – based almost entirely on Petitioner's recitation of what transpired between its management and staff and Resident # 1 – lead to two obvious conclusions.  First, Petitioner's staff could not manage Resident # 1's behavior.  The resident was hostile and uncooperative and at times, highly disruptive.  He threatened a member of Petitioner's staff.  Clearly, something had to change.  Either the resident's medication needed to be adjusted to improve his mental status or he had to be transferred to a facility that was capable of dealing with him and his manic behavior and agitation.

Second, Petitioner's solution to the problems caused by Resident # 1 plainly violated Medicare conditions of participation for skilled nursing facilities.  Petitioner seized the opportunity created by the resident's leaving the facility on September 7, 2021, to claim that the resident discharged himself against medical advice.  But the "discharge" wasn't a discharge so much as it was an eviction, an eviction without any lawful justification.  Washing their hands of the problems caused by Resident # 1, Petitioner's management locked him out of the facility and put him on the streets.  Management pretended that Resident # 1 was capable of voluntarily choosing to discharge himself from the facility when they knew that he was incapable of making informed decisions in his self-interest.  P. Ex. 1 at 2.

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A skilled nursing facility may not transfer or discharge a resident except in defined circumstances.  42 C.F.R. § 483.15(c).  A facility may transfer a resident involuntarily where the resident's clinical status or behavior endangers other residents or where the health of individuals in a facility would otherwise be endangered.  42 C.F.R. § 483.15(c)(1)(i)(C), (D).  The undisputed facts support a conclusion that grounds existed to involuntarily discharge Resident # 1.  His behavior, including invading another resident's room and physically engaging with her and threatening a member of Petitioner's staff, supports a finding that he was endangering others within the facility.

But justification for transfer or discharge does not allow precipitous action by a facility. Even the most disruptive resident who must be discharged in order to preserve the health and safety of other residents and staff is entitled to protection by a facility until discharge is effectuated.

A facility may not discharge a resident for reasons of safety or health unless a physician provides documentation that includes:  the basis for the transfer; the resident's needs that the facility cannot meet; the facility's attempts to meet the resident's needs; and the services available at a receiving facility that will meet the resident's needs.  42 C.F.R. § 483.15(c)(2)(i), (ii).  The facility is obligated to provide a wide range of information to a receiving provider when a resident moves from its premises.  42 C.F.R. § 483.15(c)(2)(iii).

When the facility decides to discharge a resident, it must immediately consult with the resident's treating physician.  42 C.F.R. § 483.10(g)(14)(i)(D).  The requirement to consult means more than notification.  Consultation means a dialogue with the physician and a responsive directive from that physician as to what actions may be needed.  Magnolia Estates Skilled Care, DAB No. 2228 at 8-9 (2009).

Petitioner failed to satisfy any of these requirements when it barred Resident # 1 from returning to its premises.  It did not consult with Resident # 1's treating physician immediately upon deciding that the resident had discharged himself.  Petitioner waited until September 8, 2021, to notify the resident's providers of the resident's departure from the facility.  CMS Ex. 8 at 14; CMS Ex. 17 at 3; CMS Ex. 18 at 3.  There are no facts showing that Petitioner actually consulted with the resident's providers as is required by 42 C.F.R. § 483.10(g)(14).  Nor are there facts showing that Petitioner complied with the requirements of 42 C.F.R. § 483.15(c).

CMS alleges that Petitioner's actions not only violated the requirements of 42 C.F.R. § 483.15(c) but were abuse or neglect that violated 42 C.F.R. § 483.12.  I find that the undisputed facts amply support CMS's assertion.

A resident of a skilled nursing facility has the right, among other things, to be free from abuse.  42 C.F.R. § 483.12.  A facility must not subject its residents to verbal, mental,

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sexual, or physical abuse, corporal punishment, or involuntary seclusion.  "Abuse" is defined as willful infliction of injury, unreasonable confinement, intimidation, or punishment, with resulting physical harm, pain, or mental anguish.  42 C.F.R. § 483.5. Abuse need not be intentional to violate the regulation.  All that is required is a deliberate act that has the consequence of causing harm, pain, or mental anguish.  Id.

There is no question that evicting Resident # 1 was a deliberate act by Petitioner's management.  The undisputed facts lead inescapably to the conclusion that Petitioner's decision to bar his reentry to the facility caused the resident to suffer mental anguish.  His behavior upon his discovery that he was barred from entering Petitioner's premises is ample evidence of the agitation and anguish that he experienced.  Whether Petitioner intended to punish Resident # 1, its eviction of that resident certainly was a form of punishment.  It was also a form of seclusion in that it isolated the resident from the staff and other residents with whom he lived.

Petitioner's abuse of Resident # 1 on the night of September 7 – 8, 2021 not only violated 42 C.F.R. § 483.12, but also violated Petitioner's own policy, which defines mental abuse as:  "humiliation, harassment, threats of punishment, or withholding treatment or services."  CMS Ex. 13 at 5.

Even if Petitioner did not abuse Resident # 1 it neglected to provide for his needs on the evening of September 7 – 8, 2021.  A skilled nursing facility resident is entitled to be free from neglect.  42 C.F.R. § 483.12.  The regulations define "neglect" to be:  "the failure of the facility, its employees or service providers to provide goods and services to a resident that are necessary to avoid physical harm, pain, mental anguish, or emotional distress."  42 C.F.R. § 483.5.  Petitioner deprived Resident # 1 of food and shelter on the night of September 7 – 8, 2021, basic services that a skilled nursing facility must provide.  It also failed to administer Petitioner's medications to him during that night, medications that were prescribed to ameliorate Resident # 1's mental issues.  CMS Ex. 18 at 4.

I have considered Petitioner's arguments in opposition to CMS's motion, and I find them to be without merit.

Petitioner relies on a fiction – that Resident # 1decided on his own to leave Petitioner's facility and that this decision absolved Petitioner from any responsibility for his discharge, including satisfying the requirements of 42 C.F.R. §§ 483.12 and 483.15(c)(2).

But the undisputed facts do not support this fiction.  Resident # 1's highly irrational state – as recognized by Petitioner's staff – precluded him from making any reasoned decision about staying or leaving.  P. Ex. 1 at 2.  Furthermore, nothing that the resident did on September 7 or 8, 2021, would lead a reasonable individual to conclude that the resident intended to discharge himself from the facility.  The resident's request for a pass to leave the facility temporarily provided no justification for a conclusion that he was discharging

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himself.  The resident had received passes on previous occasions and had always returned to the facility.  When the resident left the facility on September 7, Petitioner's staff had no reason to conclude that he would stay away permanently.

It was obvious that the resident wanted to be allowed back into the facility when he returned to the premises late on the afternoon of September 7.  The fact that he was returning from a temporary pass plus his demand to be admitted back into the facility belied the fiction that he had decided to quit the facility.   He'd left his personal items in the facility, further belying the fiction that he intended to leave.  P. Ex. 1 at 8.  He told the police on the afternoon of September 7 that he wanted to return to his home.  CMS Ex. 8 at 17.  He refused to sign a discharge form.  Id. at 33.  In the hours that followed his return – throughout the night of September 7 and September 8, 2021, Resident # 1 repeatedly demanded to be admitted to the facility.  P. Ex. 1 at 4.

Petitioner contends that Resident # 1 was cognitively sound on September 7, 2021, and was capable of making his own medical and financial decisions.  Petitioner, Park Valley Inn Health Center's Response to CMS's Motion for Summary Judgment (Petitioner's brief) at 3.  Petitioner uses this contention as a buttress for its argument that the resident voluntarily discharged himself from Petitioner's premises on that date.  Petitioner's contention is not supported by the undisputed facts.  It is true that the resident was oriented as to time, place, person, and situation.  P. Ex. 2 at 8; P. Ex. 3 at 4.  But the fact that the resident was alert and oriented did not mean that his judgment was sound.  To the contrary, the resident's manic and irrational behavior made it abundantly clear to Petitioner's staff that the resident was not capable of reasoned decision-making.  P. Ex. 1 at 2.

The resident never expressed an intent or demonstrated by his actions on September 7 and 8, 2021, that he wanted to be discharged from Petitioner's facility.  As I have discussed, there was absolutely nothing about the resident's behavior to suggest that he intended to leave.  To the contrary, his words and actions conveyed the opposite intent.

Petitioner contends that Resident # 1 discharged himself from Petitioner's facility because, on the afternoon of September 7, 2021, he failed to comply with the facility's pass protocol when he exited the facility by walking out a side exit door.  P. Br. at 5, 8.  I find nothing in the manner of the resident's departure that supports an inference that the resident discharged himself from the facility on September 7.  The manner in which the resident exited certainly supports a conclusion that the resident was highly agitated and irrational on that date.  It supports nothing else about the resident's intent.

Petitioner contends that the resident refused to return to the facility when he was interviewed by the police on the afternoon of September 7, 2021.  That, according to Petitioner, supports a conclusion that the resident had discharged himself.  P Br. at 6.  But if one could infer that the resident did not intend to return from his refusal to allow the

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police to return him to the facility, that inference is certainly negated by the fact that the resident presented himself at the facility shortly after the interview and demanded to be admitted to the premises.

Petitioner contends that a resident has "an inalienable right to voluntarily self-discharge a skilled nursing facility that is not only protected and recognized under CMS's nursing regulations, but also under the federal constitution."  Id. at 14.  Petitioner argues that Resident # 1 exercised his "inalienable right" to leave Petitioner's facility and that action relieved it of the need to comply with the formalities of 42 C.F.R. § 483.15(c).  Id.  I find this argument without merit because the undisputed facts do not establish that Resident # 1 left Petitioner's facility voluntarily.  He was ousted by Petitioner's management.

Petitioner contends that it implemented several "reasonable interventions" to assure that Resident # 1 was not subject to abuse and that he made a safe transition to a mental health facility.  P. Br. at 11.  According to Petitioner: Resident # 1 was always within "line of sight" when he was locked outside of Petitioner's facility; Petitioner's staff had multiple calls and discussions with outside resources to obtain the resident's transition to another facility; Petitioner's management and staff spoke with a range of health care providers about Resident # 1; and Petitioner's management coordinated with the police.  Id.

These assertions provide Petitioner with no defense.  Nothing that Petitioner did after it locked Resident # 1 out of its facility ameliorated the resident's anguish and emotional distress.

Petitioner touts the various procedures and forms that it uses to protect its residents against abuse.  P. Br. at 11.  It asserts that it did not fail to implement and maintain its abuse prohibition policies "in connection with Resident # 1's . . . self-discharge."  Id. at 12.  However, whether or not Petitioner complied with the formalities of its abuse prohibition policy is not at issue in this case.  What is at issue is the anguish that Petitioner caused its resident when it locked him out of its facility.

2. Immediate Jeopardy

CMS determined that Petitioner's noncompliance with the requirements of 42 C.F.R. §§ 483.12 and 483.15(c) was so egregious as to comprise immediate jeopardy for Resident # 1.  Regulations define immediate jeopardy as 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.  It is not necessary that a resident experiences serious injury, harm, impairment, or death to be in immediate jeopardy.  It suffices that there is a likelihood of such consequences.

Where CMS determines that noncompliance is at the immediate jeopardy level the burden falls on the facility to prove that determination to be clearly erroneous.  42 C.F.R.

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§ 498.60(c)(2).  A finding of immediate jeopardy level noncompliance is presumptively correct.  Liberty Commons Nursing & Rehab Ctr. - Johnston, DAB No 2031 at 18-19 (2006), aff'd, Liberty Commons Nursing & Rehab Ctr, - Johnston v. Leavitt, 241 F. App'x 76 (4^th Cir. 2007).

In cases where I hold evidentiary hearings, I would evaluate a finding of immediate jeopardy by asking whether evidence proved that the finding is clearly erroneous.  My task is a bit different when deciding a motion for summary judgment.  Here, I ask:  has Petitioner offered facts that, assuming their truth, would show that CMS's immediate jeopardy determination is clearly erroneous?

I do not find anything in the record that could lead me to conclude that CMS's determination of immediate jeopardy level noncompliance is clearly erroneous.  To the contrary, the undisputed facts lead inexorably to the conclusion that Petitioner's noncompliance put Resident # 1 at immediate jeopardy.

The undisputed facts establish that Petitioner locked out of its facility an individual who was in the throes of a manic episode and who was extremely irrational and agitated.  Petitioner deprived Resident # 1 of the medications that a physician had prescribed to control his mania.  It also deprived him of food and shelter and left him to wander at night, unsupervised, in his manic state.  There is a palpable likelihood that Resident # 1 would suffer serious injury, harm, or worse.  His obviously impaired judgment, almost certainly made worse by his failure to receive his medications, is just sufficient ground to conclude that this resident was at risk as he wandered the streets alone, and at night.

Petitioner has offered no facts that show that CMS's immediate jeopardy determination is clearly erroneous.  Petitioner asserts that its staff took a number of steps that were designed to ensure that Resident # 1 was not in harm's way and receiving appropriate care on the night of September 7 – 8, 2021.  P. Br. at 19.  But Petitioner does not deny that:  it locked the resident out of its premises; allowed him to wander unsupervised during the night; failed to provide him with food; and failed to administer his medications.  None of the steps that Petitioner alleged that it took – calling the police, attempting to arrange a transfer of the resident, providing him with water, and watching him through the windows and glass doors of its facility – gainsay the failure to provide Resident # 1 with food, shelter, and medication.

3. Remedies

CMS determined to impose several remedies against Petitioner.  These are:  a per-instance civil money penalty of $15,000, to remedy Petitioner's noncompliance with 42 C.F.R. § 483.80(a), a regulation that is commonly referred to as the infection prevention and control regulation; a civil money penalty of $7,000 for each day of a period that began on September 7, 2021, and that ended on September 20, 2021, to remedy

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Petitioner's immediate jeopardy level noncompliance with 42 C.F.R. §§ 483.12 and 483.15(c); a civil money penalty of $250 for one day, September 21, 2021, to remedy Petitioner's noncompliance at a level that is less than immediate jeopardy; and denial of payment for new Medicare admissions for a period that began on September 18, 2021, and that ended on September 21, 2021.  I find each of these remedies to be reasonable.  I discuss them in turn.

Regulations authorize CMS to impose per-diem and per-instance civil money penalties for both immediate jeopardy level and non-immediate jeopardy level noncompliance.  42 C.F.R. § 488.438(a)(1).  In assessing the reasonableness of any civil money penalty, one looks to regulatory factors that govern penalty amounts.  These factors may 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)).

The regulations establish ranges that describe minimum and maximum amounts for both immediate jeopardy and non-immediate jeopardy level penalties.  42 C.F.R. § 488.438(a)(1), 45 C.F.R. Part 102 (penalty amounts are adjusted annually to account for inflation).  The penalties that CMS imposed against Petitioner are within the allowed ranges for immediate jeopardy and non-immediate jeopardy level noncompliance.

1. Per-instance Civil Money Penalty

Petitioner does not dispute CMS's determination that it violated the infection control regulation.  It contends, however, that the $15,000 per-instance civil money penalty that CMS imposed is unreasonable.

I find the penalty amount to be reasonable in light of the seriousness of Petitioner's noncompliance and its compliance history.  Petitioner concedes that its staff failed to implement proper hand and glove hygiene techniques while providing care to multiple residents, placing those residents at risk for infection.  CMS Ex. 15 at 5-6.  I take notice that frail and immune-compromised residents of skilled nursing facilities are at high risk for suffering potentially serious infections where staff fails to comply with infection control protocols.

This deficiency was not the first time that Petitioner had been cited for violation of infection control protocols.  It was cited for violating 42 C.F.R. § 483.80(a) in August 2020 and again in January 2021.  CMS Ex. 14 at 1-2.

Petitioner contends that the per-instance penalty is unreasonable because: "there was no harm caused . . . [by the violations of infection control protocols] and the risk of any significant harm appears minimal under the circumstances."  P. Br. at 24.  But Petitioner cites to nothing to show that the risk of harm resulting from its infection control

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violations was minimal.  I do not find anything in the record that undercuts CMS's determination of potential harm.

Petitioner argues also that the penalty amount of $15,000 is excessive because it is at the high end of the permissible range for per-instance civil money penalties.  P. Br. at 24.  That assertion is incorrect.  The permissible range for per-instance penalties in effect in 2021 was from $2,233 to $23,220.  45 C.F.R. § 102.3.  The $15,000 penalty that CMS determined to impose falls only slightly above the mid-point of that range.

Petitioner asserts that it had "clear policies" in place to promote infection control.  That may be so, but noncompliance in this case does not result from a failure by Petitioner to develop infection control policies.  It results from Petitioner's failure to enforce them.

Petitioner does not address its history of noncompliance with the infection control regulations.

2. Per-diem Immediate Jeopardy Level Penalty

The immediate jeopardy level penalty that CMS determined to impose, $7,000 per day, falls at the bottom of the permissible range for immediate jeopardy level penalties, from $6,808 to $22,320, in effect in 2021.  45 C.F.R. § 102.3.  I find this minimal penalty amount to be reasonable, based on the seriousness of the noncompliance, Petitioner's culpability, and its compliance history.

I find it unnecessary to restate the likely consequences of Petitioner's locking Resident # 1 out of its premises except to reiterate that this resident, highly agitated and in a manic state, was abandoned by Petitioner to wander in the night without food or medication.  It is fortunate that no serious injury, harm, or worse, occurred.  But the seriousness of the noncompliance is in and of itself grounds for sustaining the minimal penalty amount that CMS determined to impose.

Furthermore, Petitioner's management were culpable for their treatment of Resident # 1.  The undisputed facts establish that management seized on the idea that Resident # 1 had discharged himself from the facility as a pretext for ridding themselves of a serious problem.  In doing so, management disregarded Petitioner's duty to provide care for Resident # 1 despite the many difficulties that the resident caused, at least until a transfer had been arrange to a facility more capable than Petitioner of providing care to the resident.

Finally, this was not the first immediate jeopardy level deficiency that had been discovered at Petitioner's facility.  Petitioner was cited for other immediate jeopardy level deficiencies in January and March 2021.  CMS Ex. 14 at 2-3.

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Petitioner asserts that the immediate jeopardy level penalty amount is excessive because the determination of immediate jeopardy is clearly erroneous.  P. Br. at 24.  I find it to be unnecessary that I restate my analysis of Petitioner's immediate jeopardy level noncompliance.

Petitioner attempts to minimize the seriousness of its noncompliance by averring that its noncompliance (if it existed) was isolated and did not involve a pattern of, or widespread, deficient practices.  P. Br. at 23.  That Petitioner's noncompliance did not involve multiple residents is true.  However, it was nonetheless at the immediate jeopardy level for reasons that I have discussed.  Moreover, the penalty amount is at the bottom of the immediate jeopardy level range, which certainly takes into consideration that the noncompliance was not widespread.

Petitioner argues also that its management did not demonstrate culpability for the immediate jeopardy level noncompliance, because: "[t]here is no evidence to suggest that the alleged deficiencies in question were result of indifference or disregard for resident care."  P. Br. at 23.  I disagree.  Allowing a highly agitated resident to wander alone in the darkness of night after locking him out of the facility is indifference and disregard for that resident's care by any measure.

Petitioner asserts that its compliance history should not be a factor in determining the penalty amount because it has not previously been cited for abuse or for failure to comply with admission and discharge requirements.  P. Br. at 23.  Assessment of a facility's compliance history as a basis for determining penalty amount is not limited by regulation to prior noncompliance that is the same as the noncompliance that is the basis for the current determination.  42 C.F.R. § 488.438(f)(1).  Repeated deficiencies may have greater weight in determining appropriate penalty amount, but any prior deficiency is relevant.

Petitioner has not offered any facts to challenge CMS's determination of the duration of immediate jeopardy level noncompliance, from September 7 to September 20, 2021.  It has not argued that it implemented corrective actions sooner than CMS determined they were implemented.  Petitioner argues that there was no need for immediate corrective action on September 15, 2021, when surveyors made the immediate jeopardy level noncompliance determination.  P. Br. at 20-21.  With this assertion I take it that Petitioner contends that its noncompliance self-corrected because Resident # 1 was no longer locked out of Petitioner's facility on September 15.

But this out of sight, out of mind assertion doesn't establish that Petitioner had corrected its immediate jeopardy level noncompliance by September 15, 2021, or at any date prior to September 20, 2021.  Correction in this case meant more than just eliminating mistreatment of Resident # 1.  Correction required understanding by Petitioner's management of Petitioner's responsibilities and assurance that what happened to the

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resident would not happen again when the next unruly or disruptive resident is admitted to Petitioner's facility.  CMS was entitled to receive those assurances from Petitioner.  Petitioner did not prove that it provided them earlier than September 20, 2021.

3. Non-immediate Jeopardy Level Per Diem Civil Money Penalty

Petitioner offered neither facts nor argument to challenge CMS's determination to impose a $250 civil money penalty to remedy Petitioner's noncompliance on September 21, 2021.  I find that determination to be administratively final.

4. Denial of Payment for New Medicare Admissions

Petitioner did not contest CMS's authority to impose a denial of payment for new Medicare admissions for the September 18 – 21, 2021 period.  That determination also is administratively final.

Endnotes

¹  CMS objected to my receiving some of Petitioner's exhibits into evidence.  I do not rule on those objections.  However, I accept as true facts stated in all of Petitioner's exhibits, including the exhibits objected to by CMS, for purposes of deciding the motion for summary judgment.

²  Additionally, CMS alleges that Petitioner failed to comply substantially with 42 C.F.R. § 483.10(g)(14)(i)(D), which requires immediate consultation with a resident's treating physician when a resident is to be discharged from a facility.

³  CMS determined also that Petitioner failed to comply substantially with two other regulations, at 42 C.F.R. §§ 483.10 and 483.25.  Petitioner withdrew its hearing request to challenge these determinations.  They are now administratively final.