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                              Delmar Gardens of Lenexa, DAB CR5323 (2019)
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Delmar Gardens of Lenexa, DAB CR5323 (2019)








  
  
    

  
      
Department of Health and Human Services 
    DEPARTMENTAL APPEALS BOARD
          Civil Remedies Division





Delmar Gardens of Lenexa
(CCN:  17-5122),
Petitioner,
v.
Centers for Medicare & Medicaid Services.
Docket No. C-16-903Decision No. CR5323May 17, 2019

        
              
    

      DECISION
Delmar Gardens of Lenexa (Petitioner or facility), challenges the determination by the Centers for Medicare & Medicaid Services (CMS) that it was not in substantial compliance with the Medicare program participation requirement at 42 C.F.R. § 483.25(h) and that its noncompliance posed immediate jeopardy to resident health and safety. Petitioner also challenges the imposition of civil money penalties (CMPs). For the reasons discussed below, I affirm CMS’s determination. I conclude that Petitioner did not substantially comply with 42 C.F.R. § 483.25(h); CMS did not clearly err in determining that Petitioner’s noncompliance with 42 C.F.R. § 483.25(h) posed immediate jeopardy; and the proposed CMPs, $4,900 per day effective July 9 through July 14, 2016, and $100 per day effective July 15 through August 19, 2016, for a total CMP of $33,000, are reasonable in amount and duration.
I. Background and Procedural History
Petitioner is a skilled nursing facility (SNF) located in Lenexa, Kansas, that participates in the Medicare program. The Kansas Department for Aging and Disability Services (state agency) conducted a complaint investigation and a partial extended health survey
**Page 2**
of Petitioner’s facility, both of which were completed on July 22, 2016. CMS Exhibits (Exs.) 1, 2. In a letter dated July 22, 2016, the state agency informed Petitioner that it had determined that Petitioner was not in substantial compliance with 42 C.F.R. § 483.25(h) and that the deficiency constituted immediate jeopardy to resident health and safety at the scope and severity level of “J.”1
 *See*Docket Entry 1b in the Departmental Appeals Board (DAB) Electronic Filing System (E-File). The state agency stated that it would impose a denial of payment for new Medicare and Medicaid admissions (DPNA) on Petitioner effective August 11, 2016. *Id.*The state agency further informed Petitioner that it would recommend that CMS terminate Petitioner’s Medicare provider agreement on January 22, 2017, if Petitioner did not achieve substantial compliance by that date. *Id.*In addition, the state agency advised Petitioner that there was a finding of substandard quality of care based on its violation of 42 C.F.R. § 483.25(h) and that it was withdrawing approval of Petitioner’s nurse aide training and competency evaluation program because a partial extended survey had been conducted. *Id.* The state agency’s letter advised Petitioner of its appeal rights. *Id.*By letter dated August 10, 2016, CMS informed Petitioner that, based on the deficiency cited under 42 C.F.R. § 483.25(h), it would impose a CMP of $4,900 per day effective July 9 through July 14, 2016, the period of immediate jeopardy. *See*Docket Entry 1a in DAB E-File. The August 10 letter further stated that CMS was imposing a CMP of $100 per day effective July 15, 2016, and that the CMP would continue to accrue until Petitioner achieved substantial compliance. *Id.*
**Page 3**
By letter dated October 5, 2016, CMS informed Petitioner that a revisit conducted by the state agency on September 21, 2016, established that Petitioner had returned to substantial compliance, effective August 20, 2016. CMS Ex. 1. CMS stated that it had removed the DPNA as of August 20, 2016. CMS summarized the CMPs which had been imposed: a $4,900 per-day CMP from July 9 through July 14, 2016 (total $29,400) and a $100 per-day CMP from July 15 through August 19, 2016 (total $3,600). CMS Ex. 1.
On September 20, 2016, Petitioner requested a hearing. The case was assigned to me for hearing and decision. On October 4, 2016, I issued an Acknowledgment and Pre-hearing Order (Pre-hearing Order). Pursuant to the Pre-hearing Order, CMS filed a pre-hearing brief (CMS Br.) and 21 proposed exhibits (CMS Exs. 1-21) and Petitioner filed a pre-hearing brief (P. Br.) and 36 proposed exhibits (P. Exs. 1‐36).
On February 7, 2017, Petitioner filed a motion to compel the production of surveyor notes and records prepared during the July 14-22, 2016 survey of Petitioner’s facility. In a ruling dated April 3, 2017, I denied Petitioner’s motion.
As summarized in an Order dated August 23, 2017, I conducted a telephone pre-hearing conference with the parties on August 22, 2017. During the telephone conference, I overruled Petitioner’s pending objections to CMS’s exhibits and informed the parties that I anticipated admitting all of the parties’ proposed exhibits into evidence at the hearing.
On September 27, 2017, I convened a hearing, via video teleconference, from the offices of the DAB in Washington, D.C. At the hearing, Petitioner cross‐examined Dolores Gilliland, R.N., a state agency surveyor, and CMS cross‐examined Kathryn Allen, NHA, Petitioner’s Administrator; Sabrina Avila, a certified nurse aide (CNA) employed by Petitioner; Nancy Nderito, a licensed practical nurse (LPN) employed by Petitioner; and Wendi Patillo, R.N., Petitioner’s Director of Nursing (DON). *See* Pre-hearing Order, §§ 8, 9, 10 (a hearing is required only if a party requests to cross-examine a witness for whom the opposing party offered written direct testimony). I admitted into evidence CMS Exs. 1-21 and P. Exs. 1-36. Transcript (Tr.) 11, 17-19, 83, 94, 103, 128-29.
The parties filed post-hearing briefs (CMS Post-hrg. Br.; P. Post-hrg. Br.). Petitioner filed a reply brief (P. Post-hrg. Reply).
**Page 4**
II. Issues
The issues in this case are:
Whether Petitioner was in substantial compliance with the requirements of 42 C.F.R. § 483.25(h) (Tag F323, relating to accident prevention and adequate supervision) from July 9 through August 19, 2016;
If Petitioner was not in substantial compliance, whether CMS’s determination that immediate jeopardy existed at the facility from July 9 through July 14, 2016, was clearly erroneous;
If Petitioner was not in substantial compliance with program requirements, whether the penalties imposed – a CMP of $4,900 per day for the period of immediate jeopardy (July 9 through July 14, 2016) and a CMP of $100 per day for the period of substantial noncompliance that was not immediate jeopardy (July 15 through August 19, 2016) – are reasonable.
III. Jurisdiction
I have jurisdiction to hear and decide this case. Social Security Act (Act) §§ 1128A(c)(2), 1819(h)(2)(B)(ii) (codified at 42 U.S.C. §§ 1320a-7a(c)(2), 1395i‐3(h)(2)(B)(ii)); 42 C.F.R. §§ 488.408(g), 488.434(a)(2)(viii), 498.3(b)(13), (b)(14)(i).
IV. Discussion
**A.****Statutory and Regulatory Background**
The Act sets forth requirements for SNFs to participate in the Medicare program and authorizes the Secretary of Health and Human Services (Secretary) to promulgate regulations implementing those statutory provisions. *See*Act § 1819 (42 U.S.C. § 1395i‐3); 42 C.F.R. parts 483 and 488.2
 To participate in the Medicare program, a SNF
**Page 5**
must maintain substantial compliance with program participation requirements. To be in substantial compliance, a facility’s deficiencies may pose no greater risk to resident health and safety than “the potential for causing minimal harm.” 42 C.F.R. § 488.301. A deficiency is a violation of a participation requirement established by sections 1819(b), (c), and (d) of the Act (42 U.S.C. § 1395i-3(b), (c), and (d)), or the Secretary’s regulations at 42 C.F.R. pt. 483, subpt. B. *Id.* “Noncompliance” means “any deficiency that causes a facility to not be in substantial compliance.” *Id.*
The Secretary contracts with state agencies to conduct periodic surveys to determine whether SNFs are in substantial compliance with the participation requirements. Act § 1864(a) (42 U.S.C. § 1395aa(a)); 42 C.F.R. §§ 488.10, 488.20. The Act and regulations require that facilities be surveyed on average every twelve months, and more often if necessary, to ensure that identified deficiencies are corrected. Act § 1819(g)(2)(A) (42 U.S.C. § 1395i-3(g)(2)(A)); 42 C.F.R. §§ 488.20(a), 488.308. The Act also authorizes the Secretary to impose enforcement remedies against SNFs that are not in substantial compliance with the program participation requirements. Act § 1819(h)(2) (42 U.S.C. § 1395i-3(h)(2)). The regulations specify the enforcement remedies that CMS may impose. 42 C.F.R. § 488.406. Among other enforcement remedies, CMS may impose a per-day CMP for the number of days a SNF is not in substantial compliance. 42 C.F.R. § 488.430(a). A per-day CMP may range from either $50 to $3,000 per day for less serious noncompliance, or $3,050 to $10,000 per day for more serious noncompliance that poses immediate jeopardy to the health and safety of residents. 42 C.F.R. § 488.438(a)(1). “Immediate jeopardy” exists when “the provider’s noncompliance with one or more requirements of participation has caused, or is likely to cause, serious injury, harm, impairment, or death to a resident.” 42 C.F.R. § 488.301.
If CMS imposes a remedy based on a noncompliance determination, then the facility may request a hearing before an administrative law judge to challenge the noncompliance finding and enforcement remedy. Act §§ 1128A(c)(2), 1819(h)(2)(B)(ii) (42 U.S.C. §§ 1320a-7a(c)(2), 1395i‐3(h)(2)(B)(ii)); 42 C.F.R. §§ 488.408(g), 488.434(a)(2)(viii), 498.3(b)(13).
**B.****Findings of Fact, Conclusions of Law, and Analysis**
***1.******Petitioner was not in substantial compliance with 42 C.F.R. § 483.25(h) because Petitioner did not take all reasonable steps to ensure that a resident who was assessed as an elopement risk was provided with adequate supervision to prevent accidents, namely his elopement from the facility.3***
**Page 6**
The quality of care regulation set forth in 42 C.F.R. § 483.25 states that “[e]ach resident must receive and the facility must provide the necessary care and services to attain or maintain the highest practicable physical, mental, and psychosocial well-being, in accordance with the comprehensive assessment and plan of care.” Subsection 483.25(h) imposes specific obligations upon a facility related to accident hazards and accidents, as follows:
(h) *Accidents*. The facility must ensure that—
(1) The resident environment remains as free of accident hazards as is possible; and
(2) Each resident receives adequate supervision and assistance devices to prevent accidents.
In a number of decisions, appellate panels of the DAB have explained that subsection 483.25(h)(2) requires that a facility take “all reasonable steps to ensure that a resident receives supervision and assistance devices that meet his or her assessed needs and mitigate foreseeable risks of harm from accidents.” *Briarwood Nursing Ctr.*, DAB No. 2115 at 11 (2007), (citing *Woodstock Care Ctr. v. Thompson*, 363 F.3d 583, 590 (6th Cir. 2003) (facility must take “all reasonable precautions against residents’ accidents”), *aff’g* *Woodstock Care Ctr.*, DAB No. 1726 (2000)). As another appellate panel observed, “Though a facility has the flexibility to choose the methods of supervision and assistance used to prevent accidents, it must also ‘provide supervision and assistance devices that reduce known or foreseeable accident risks to the highest practicable degree, consistent with accepted standards of nursing practice.’” *Heritage Plaza Nursing Ctr.*, DAB No. 2829 at 6 (2017), (citing *Century Care of Crystal Coast*, DAB No. 2076 at 6-7 (2007), *aff’d*, *Century Care of Crystal Coast v. Leavitt*, 281 F. App’x 180 (4th Cir. 2008)).
CMS alleges that Petitioner failed to comply with 42 C.F.R. § 483.25(h) because it failed to adequately supervise a cognitively impaired and independently mobile resident, Resident 1, who had a history of wandering daily and was assessed as an elopement risk. CMS alleges that, as a result of Petitioner’s inadequate supervision, Resident 1 eloped from the facility early one morning. A passing motorist noticed Resident 1 walking along the highway over two miles from the facility and gave the resident a ride to a community center, which was five miles from the facility. CMS alleges that Petitioner’s violation of 42 C.F.R. § 483.25(h) constituted immediate jeopardy.
Petitioner does not dispute that Resident 1 eloped from its facility. However, Petitioner argues that it had identified “the small but reasonably foreseeable risk that Resident 1 would elope,” and provided Resident 1 with adequate supervision and reasonable safety measures to keep him from eloping. P. Post-hrg. Reply at 2. Petitioner contends that it
**Page 7**
had mitigated Resident 1’s foreseeable risk of elopement to the extent possible while balancing Resident 1’s overall needs. Further, Petitioner argues that the finding of immediate jeopardy from July 9 through July 14, 2016, is clearly erroneous. P. Post‐hrg. Br. at 22-23.
The weight of the evidence establishes that Petitioner did not comply substantially with 42 C.F.R. § 483.25(h). Although Petitioner used various measures to protect Resident 1, I find that its staff failed to take all reasonable steps to provide the resident with adequate supervision to prevent accidents, namely his elopement from the facility.
**a.****Facts**
At the time of the events at issue, Resident 1 was a 73-year-old male with diagnoses including hypertension, cerebrovascular accident, transient ischemic attack, non-Alzheimer’s dementia, depression, and generalized anxiety disorder. CMS Ex. 8 at 1; CMS Ex. 11 at 18-19. Resident 1 had been admitted to Petitioner’s facility on May 12, 2014, and was readmitted on February 22, 2016, following a psychiatric hospital stay. CMS Ex. 8 at 1; CMS Ex. 11 at 4.
Resident 1’s Minimum Data Set (MDS) assessment, with an assessment reference date of May 3, 2016, noted that he had a Brief Interview for Mental Status (BIMS) score of 3, which indicated severe cognitive impairment. CMS Ex. 2 at 2; CMS Ex. 11 at 7. The MDS assessed Resident 1 as having disorganized thinking at times. CMS Ex. 11 at 8. The MDS noted that Resident 1 exhibited wandering behavior on a daily basis, but the wandering did not put him at significant risk of getting to a potentially dangerous place, nor did it intrude on others’ privacy or activities. CMS Ex. 11 at 12.
There is conflicting evidence in the record regarding the degree of Resident 1’s cognitive impairment. Petitioner’s witness Wendy Patillo, R.N., stated in written direct testimony that Resident 1’s low BIMS score was indicative of “expressive and receptive aphasia” (a word-finding impairment) which interfered with his ability to “participate in a question/answer type of dialogue.” P. Ex. 19 at 2. In Nurse Patillo’s opinion, the BIMS score did not offer an accurate picture of Resident 1’s cognitive function. *Id.* Nevertheless, I find, based on Resident 1’s documented diagnosis of non-Alzheimer’s dementia, that he experienced some degree of cognitive impairment, though perhaps not as severe as a BIMS score of 3 would otherwise indicate. *See*CMS Ex. 8 at 6.
Resident 1’s care plan documented that, as of December 2, 2014, the resident was at risk for wandering and elopement. CMS Ex. 8 at 8. According to the care plan, Resident 1 had “verbalized not wanting to be here” and “had episodes of exit seeking behaviors.” *Id.* The care plan listed the following interventions: check the placement of the
**Page 8**
Wanderguard4
 bracelet at every shift and its functioning every night; have maintenance check the Wanderguard alarm system routinely; ensure that Resident 1’s picture is in the elopement book; and redirect the resident with activities during exit-seeking behavior. CMS Ex. 8 at 8; *see* P. Ex. 29 at 2. According to the care plan, on June 2, 2015, staff implemented checks of Resident 1 every thirty minutes because he was refusing to wear the Wanderguard. CMS Ex. 8 at 8; *see* P. Ex. 29 at 2. A handwritten entry dated July 7, 2016, states that Resident 1 was wearing a Roam Alert for safety and that staff were to check its functioning every day as well as its placement at every shift. CMS Ex. 8 at 8. The care plan also assessed Resident 1 as a fall risk due to his psychotropic drug usage, history of behaviors, and impaired memory related to his dementia. CMS Ex. 8 at 4.
In a May 2016 quarterly assessment, Resident 1 was assessed to be a continued risk for elopement. Staff indicated that Resident 1 was not “cognitively impaired to place;” was physically able to leave the building on foot or by assistive device; had not left or attempted to leave the building in the last three months; and had voiced statements about leaving to go home. CMS Ex. 10 at 2; *see* CMS Ex. 9 at 2. In addition, staff assessed Resident 1 as having diminished safety awareness and at risk for falls. CMS Ex. 10 at 1.
On July 7, 2016, as documented in the nursing notes, Resident 1 transferred from the 100 hall (secured unit) to room 502B on the 500 hall (unsecured unit).5
 CMS Ex. 12 at 2-3. Resident 1’s new room had a sliding door that opened onto a shared patio or courtyard. P. Ex. 35 at 2. The purpose of the courtyard is to permit residents to sit outside. P. Ex. 21 at 2; P. Ex. 35 at 3. The courtyard was fenced in and had a gate. P. Ex. 35 at 3. Both the sliding glass door and the courtyard gate were equipped with alarms that would sound when the door or gate was opened. *Id.* at 2-3. Staff made Resident 1 aware of smoke breaks and placed a Roam Alert bracelet on him for his safety. CMS Ex. 12 at 3.
**Page 9**
Staff noted that the Roam Alert’s placement was to be checked every shift, and its functioning checked every day. *Id.*; *see also* CMS Ex. 8 at 8.
Based on the record, including nurse’s notes, notarized witness statements, and written direct testimony of Petitioner’s witnesses, LPN Nderito and CNA Avila, the following events occurred on July 8, 2016, into the morning of July 9, 2016:
**July 8, 2016**: A nurse’s note entered at 1400 (i.e., 2 p.m.), documented that Resident 1 remarked that his home and family were gone and he would be better off dead. CMS Ex. 12 at 3. The note documented that staff talked with the resident and he appeared to be calm. *Id.* Around 4:00 p.m., Nurse Nderito heard the alarm on the sliding door in Resident 1’s room going off. CMS Ex. 15 at 1; P. Ex. 21 at 2. Nurse Nderito went into the room and discovered that Resident 1 had opened the sliding door. P. Ex. 21 at 2. Resident 1 was sitting on his bed, and he told Nurse Nderito that he wished to enjoy the breeze. *Id.* Nurse Nderito left the sliding door open and the alarm on the door disengaged. *Id.* She initiated visual checks every 15 minutes to keep track of Resident 1’s whereabouts, and assigned this task to herself and two aides. CMS Ex. 15 at 1; P. Ex. 21 at 2. Around 8:30 p.m. Nurse Nderito went into Resident 1’s room and closed the sliding door. CMS Ex. 15 at 1; P. Ex. 21 at 2. Another staff member, CNA Avila, stated that she started working on the 500 hall around 11:30 p.m. CMS Ex. 16 at 1; P. Ex. 20 at 2. CNA Avila noticed during one of her visual checks of Resident 1 that the sliding door to the patio was open. CMS Ex. 16 at 1. She stated that she closed the door from Resident 1’s room to the hallway at his request, because he was trying to sleep. P. Ex. 20 at 2.
**July 9, 2016**: Nurse Nderito saw Resident 1 in bed around 4:45 a.m. CMS Ex. 15 at 2; P. Ex. 21 at 2. No further checks of Resident 1 were documented after 4:45 a.m. CMS Ex. 14. Around 5:45 a.m., CNA Avila went to check on Resident 1 and discovered that he was not in his room and the sliding door to the patio was open. CMS Ex. 16 at 1‐2; P. Ex. 20 at 2. CNA Avila went out to the patio and saw the courtyard gate was open. CMS Ex. 16 at 2; P. Ex. 20 at 2. Nurse Nderito stated that staff came to her around 6:00 a.m. and told her that Resident 1 was not in his room. CMS Ex. 15 at 2; P. Ex. 21 at 3. Staff then began to search the premises for Resident 1, and Nurse Nderito informed the DON of Resident 1’s elopement and called 911.6
 CMS Ex. 15 at 2. Upon investigating, Petitioner discovered that none of the alarm systems – Resident 1’s Roam Alert, the sliding patio door alarm, or the courtyard gate alarm – were triggered. CMS Ex. 7 at 1-2; P. Ex. 35 at 4.
**Page 10**
Around 7:00 a.m., the police notified Petitioner’s facility that a motorist had found Resident 1 walking on the highway and taken him to a community center five miles from the facility. CMS Ex. 2 at 1, 3; CMS Ex. 6 at 2; CMS Ex. 12 at 3, 5. The police described Resident 1 as uninjured. CMS Ex. 6 at 2. Because Resident 1 would not allow the police to take him back to the facility, the DON and another nurse manager went to pick him up. CMS Ex. 12 at 5. While being transported back to the facility, Resident 1 stated to the DON that he did not want to go back and would try to leave again. CMS Ex. 12 at 6. Upon his return to Petitioner’s facility, Resident 1 was placed back on the dementia (secured) unit. CMS Ex. 7 at 2; CMS Ex. 12 at 4, 6. The nurse’s notes document that Resident 1 made suicidal comments and refused a head to toe assessment. CMS Ex. 7 at 2; CMS Ex. 12 at 4, 6. Resident 1’s physician ordered that Resident 1 be sent to the ER for evaluation, and he went to the hospital around 10:00 a.m. CMS Ex. 7 at 2; CMS Ex. 12 at 4. Resident 1 returned to the facility with a diagnosis of a urinary tract infection. CMS Ex. 7 at 2.
**b.****Analysis**
Petitioner argues that the safety measures implemented by staff to protect Resident 1 from elopement represent adequate supervision and establish that it substantially complied with the requirements of 42 C.F.R. § 483.25(h). Petitioner points to the following safety precautions taken by its staff: 1) placing Resident 1 in a room next to the nurses’ station; 2) using three different alarm systems; and 3) conducting frequent visual checks. P. Post-hrg. Br. at 15. Petitioner argues that these measures were “more than adequate” (P. Post-hrg. Br. at 20) and “[b]ut for a malfunctioning courtyard gate alarm that could not have been foreseen, . . . [Resident] 1 would not have eloped.” P. Post‐hrg. Reply at 10.
I am not persuaded by Petitioner’s arguments. The evidence shows that Petitioner failed to take all reasonable measures to protect Resident 1 from accidents and mitigate his foreseeable risk of elopement. Although Petitioner makes much of its efforts to prevent Resident 1’s elopement, its arguments ignore or minimize the fact that its staff failed to properly implement the measures Petitioner itself had determined were necessary to prevent Resident 1’s elopement. As a result of Petitioner’s lax supervision of Resident 1, Resident 1 eloped unobserved from the facility sometime after 4:45 a.m. and before 5:45 a.m. on July 9, 2016.
As Petitioner notes, it had implemented three separate alarm systems to prevent Resident 1 from eloping. First, Petitioner’s staff had given Resident 1 a Roam Alert bracelet to wear for his safety, and it “was connected to all major exits.” P. Post-hrg. Reply at 2. However, Resident 1’s room had a sliding glass patio door which was not connected to the Roam Alert system. *See, e.g.*, P. Ex. 19 at 4. Instead, the patio door was equipped
**Page 11**
with a separate alarm, which would trigger when the door was opened. *Id.*at 3. The third alarm system in place was yet another separate alarm system on the courtyard gate. P. Post-hrg. Br. at 15, 20; P. Post-hrg. Reply at 2.
Although Petitioner explicitly recognized that additional alarm systems, in addition to Resident 1’s Roam Alert, were necessary to prevent him from eloping (P. Ex. 35 at 2), the evidence shows a glaring lapse by staff with respect to the alarm on the sliding door in his room. The sliding door alarm was triggered when the door was opened. There is no dispute that the alarm on the sliding door in Resident 1’s room was disengaged at 4:00 p.m. on July 8, 2016, when Resident 1 opened the door. CMS Ex. 15 at 1; P. Ex. 21 at 2. Nurse Nderito closed the sliding door around 8:30 p.m., but CNA Avila observed that the sliding door was again open around 11:30 p.m., and she did not close it. *See, e.g.*, CMS Ex. 15 at 1; CMS Ex. 16 at 1. For the duration of the time that the sliding door was open, the alarm on the door would have been disengaged. Nothing in the record suggests that Petitioner’s staff ensured that the alarm on the sliding door was re-engaged at any point between CNA Avila’s observation late on July 8, through the time Resident 1 was discovered missing on the morning of July 9, 2016.
Petitioner does not dispute that the sliding door was open, thus rendering the alarm nonfunctional. However, Petitioner argues that the visual checks every 15 minutes which were initiated by Nurse Nderito, together with the Roam Alert and courtyard alarm systems, were appropriate and effective measures to address any risk of elopement while the sliding door in Resident 1’s room was open. Petitioner asserts that its staff performed 58 visual checks, and each time, they verified that Resident 1 was in his room. P. Post‐hrg. Br. at 20.
Petitioner’s arguments regarding the visual checks do not establish that Petitioner’s supervision of Resident 1 was adequate. Petitioner acknowledges that visual checks of Resident 1 every 15 minutes were needed because staff was aware the sliding door was open. Yet, Petitioner did not ensure that all the required visual checks occurred on the morning of July 9, 2016. Petitioner’s log shows that Nurse Nderito, CNA Avila, and another aide conducted checks of Resident 1 every 15 minutes, beginning at 2:30 p.m. on July 8, 2016.7
 CMS Ex. 14. However, the last documented visual check of Resident 1 occurred at 4:45 a.m. on July 9, 2016. *Id*. After 4:45 a.m., the next visual check did not take place until 5:45 a.m. At that time, CNA Avila discovered that Resident 1 was not in his room and the sliding door to the patio was open. CMS Ex. 16; P. Ex. 20.
**Page 12**
Petitioner disputes that there was a one-hour gap in time during which no visual checks were conducted. P. Post-hrg. Reply at 9. As support for its position, Petitioner cites the ACTS Complaint/Incident Investigation Report, which is a state agency report containing details of Resident 1’s elopement, as reported by Petitioner and the police on July 11, 2016. *See*CMS Ex. 6 at 1. Petitioner notes that this report states the following: “[Resident 1] was on 15 min checks and staff saw him at 0545 in his chair watching TV and then 15 min later he was not in the chair and his sliding door was open.” P. Post-hrg. Reply at 9 (citing CMS Ex. 6 at 2).8
The record does not establish as a matter of fact that Resident 1 was still in his room at 5:45 a.m. on July 9. To the contrary, I find it more likely than not that Resident 1 eloped sometime between 4:45 and 5:45 a.m. As I have found above, Petitioner’s log fails to document that any visual checks were performed after 4:45 a.m. on July 9, 2016. *See*CMS Ex. 14. Based on the absence of documentation, I infer that staff failed to perform visual checks of Resident 1 after 4:45 a.m. This inference is reinforced by Nurse Nderito’s testimony at the hearing. At the hearing, Nurse Nderito confirmed that the last documented visual check of Resident 1 took place at 4:45 a.m. on July 9. Tr. at 113. Nurse Nderito testified that she herself performed the 4:45 a.m. visual check. *Id*. Moreover, this testimony is consistent with the sworn written statement she gave to the state agency a few days after Resident 1’s elopement. In that statement, Nurse Nderito stated, “[d]uring my last round at around 4:45 a.m., . . . I checked on [Resident 1] and saw him in bed.” CMS Ex. 15 at 2. Nurse Nderito’s testimony is also consistent with her written direct testimony, in which she stated, “[m]y last visual check was at 4:45 a.m.” P. Ex. 21 at 2. I note that at the hearing Nurse Nderito confirmed that no further visual checks were documented between 4:45 a.m. and 5:45 a.m. because staff members were very busy with the residents during this hour. Tr. at 114. She also stated, somewhat opaquely, that she “had seen [Resident 1] at this time.” *Id.* In light of Nurse Nderito’s sworn written statements, I do not construe her testimony to suggest that she had seen Resident 1 again after 4:45 a.m. Rather, I understand her testimony to be that, consistent with the documentation, she last saw Resident 1 at 4:45 a.m. and that no other staff members performed visual checks between 4:45 a.m. and 5:45 a.m. because they were very busy taking care of other residents.
Moreover, CNA Avila corroborates Nurse Nderito’s statements. In her sworn statement to the state agency, CNA Avila stated that a nurse “checked [Resident 1’s] room at 4:45 a.m. and he was still in the bed.” CMS Ex. 16 at 1. According to CNA Avila, when she “was doing [her] last rounds at 5:00 a.m.,” she checked on Resident 1 at 5:45 a.m. and
**Page 13**
discovered that he was missing. *Id.*at 1-2. I note that CNA Avila’s written direct testimony is consistent with her sworn statement. P. Ex. 20. As such, there is no testimony to suggest that any checks took place after 4:45 a.m.
The finding that no visual checks occurred between 4:45 and 5:45 a.m. on July 9 is further reinforced by Administrator Allen’s testimony and her report to the state agency submitted July 15, 2016, following Petitioner’s investigation of the incident. Administrator Allen’s July 15 report to the state agency did not claim that Petitioner’s staff had observed Resident 1 in his room at 5:45 a.m. CMS Ex. 7 at 1. In fact, her report states that Petitioner’s “investigation shows that between 5:00 a.m. and 5:45 a.m., [Resident 1] left the community through his sliding glass patio door.” *Id.*;*see also*Tr. 84. At the hearing, Administrator Allen confirmed on cross-examination that Petitioner believed that the “correct timing of [Resident 1’s] departure from the facility” was “between 5 a.m. and 5:45 a.m.” Tr. 84-85.
The testimony of Administrator Allen, Nurse Nderito, and CNA Avila, as well as the documentation cited above, all consistently describe Resident 1 as having eloped sometime between 4:45 a.m. and 5:45 a.m. I therefore find insufficient support for the contrary assertion that Resident 1 was seen in his room at 5:45 a.m. Petitioner offered no records or testimony to establish that Resident 1 was in his room at 5:45 a.m. Further, to the extent the SOD includes a hearsay statement of a staff member asserting that Resident 1 was in his room at 5:45 a.m. (CMS Ex. 2 at 3), I find that statement less credible than the sworn testimony of Administrator Allen, Nurse Nderito, and CNA Avila.
Petitioner contends that, during the two years Resident 1 had resided at the facility, he had never attempted to elope or exhibited any exit-seeking behaviors prior to July 9, 2016. P. Post-hrg. Br. at 17-18, 20; Tr. 130; P. Ex. 17 at 2; P. Ex. 19 at 2, 5; P. Ex. 35 at 5. Petitioner notes also that, during the night of July 8, Resident 1 never went out to the courtyard nor did he leave his room. P. Ex. 16 at 3. However, Petitioner’s characterization of Resident 1 as posing little risk for elopement is contradicted by Petitioner’s own records, which document that Resident 1 had “episodes of exit seeking behaviors” and made statements about leaving the facility to go home. CMS Ex. 8 at 8; *see also* CMS Ex. 10 at 2. Petitioner documented that, on September 30, 2015, Resident 1 threatened to break a window if he was not allowed to go home. CMS Ex. 8 at 6.
Petitioner’s attempt to downplay Resident 1’s risk for elopement is further undercut by several facts. As the record shows, Resident 1 had resided on the secured unit up until the time he was transferred to the unsecured unit on July 7, 2016. P. Ex. 16 at 1-2; P. Ex. 21 at 1. It is therefore possible to infer that he may not have had an opportunity to elope prior to his transfer to the unsecured unit. In addition, throughout Resident 1’s records,
**Page 14**
Petitioner’s staff identified him as an elopement risk and care-planned interventions with the goal that he “will not be successful in [his] attempt to exit the building.” CMS Ex. 8 at 8. The care plan interventions included having Resident 1 wear a Wanderguard (or Roam Alert) bracelet and putting his picture in the facility’s elopement book. *Id*. Petitioner’s staff assessed Resident 1 as at risk for elopement from December 2, 2014, continuing through his May 2016 quarterly assessment. CMS Ex. 8 at 8; CMS Ex. 10 at 2. Moreover, although Petitioner determined that it was safe for Resident 1 to transfer to the unsecured unit on a trial basis, this did not indicate that Petitioner had concluded he no longer posed an elopement risk. Rather, I infer that Petitioner recognized that Resident 1 continued to be at risk for elopement, since he was given a Roam Alert bracelet to wear. *See, e.g.*, CMS Ex. 21 at 1.
Nevertheless, even if I were to agree with Petitioner that Resident 1 had never attempted to elope prior to July 9, 2016, this would not relieve Petitioner of its obligation to protect him from eloping Petitioner’s facility. As an appellate panel of the DAB has explained:
For a risk to be foreseeable, it need not have been made obvious by having already materialized. The regulation speaks in terms of ensuring that what is “practicable” and “possible” to do is done. What is thus required of facilities is not prescience but reason and professional judgment in assessing what can be done to make residents (given their special needs) safe, through removing accident hazards, providing appropriate devices, and ensuring adequate supervision.
*Josephine Sunset Home*, DAB No. 1908 at 14-15 (2004).
The evidence establishes that Petitioner did not take all reasonable steps to protect Resident 1 and mitigate his foreseeable elopement risk. Despite Petitioner’s assertion that the sliding patio door and courtyard gate alarms “were specifically put in place to protect [Resident 1] against possible means of egress” (P. Post-hrg. Reply at 13), its staff knowingly left the sliding patio door open all night and into the morning, thereby causing the alarm to be disengaged for hours and rendering completely ineffective one of the safety measures Petitioner itself deemed necessary for Resident 1’s protection. With the patio door alarm disabled, staff chose to rely on visual checks as a substitute safety precaution. However, this intervention too proved ineffective, as it was not fully implemented. The last confirmed visual check of Resident 1 took place at 4:45 a.m. An hour later, staff discovered that Resident 1 was missing from his room, having eloped unobserved through the open sliding door. With the sliding door alarm disabled and no further monitoring or supervision of Resident 1 after 4:45 a.m., it was entirely foreseeable that Resident 1 would take advantage of the now-accessible exit path and elope or
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attempt to elope. I find that the failures by Petitioner’s staff plainly undermined the effectiveness of the very interventions put in place to protect Resident 1 from eloping and directly led to his elopement.
Petitioner points out that it was unforeseeable that the courtyard gate alarm system did not sound when Resident 1 went through the gate. *See, e.g.*, P. Post-hrg. Reply at 10. Considering the circumstances surrounding Resident 1’s elopement, I do not view the malfunctioning gate alarm as critical to my analysis. Resident 1 should never have been able to elope unobserved from his room in the first place and make his way through the courtyard. Regardless of whether or not the courtyard gate alarm malfunctioned, the fact that an exit path through the sliding door became accessible to Resident 1, allowing him access to the courtyard gate, shows that Petitioner’s staff failed to take all reasonable measures to adequately supervise him to prevent accidents.
Based on the foregoing, I conclude that CMS has made a prima facie case that Petitioner was not in substantial compliance with the requirements of 42 C.F.R. § 483.25(h). Petitioner has failed to rebut CMS’s prima facie showing by a preponderance of the evidence.
***2.******CMS’s immediate jeopardy determination was not clearly erroneous.***
CMS alleges that Petitioner’s violation of 42 C.F.R. § 483.25(h) constituted an isolated incidence of immediate jeopardy to resident health and safety (scope and severity “J”), from July 9 through July 14, 2016. CMS Ex. 2. Petitioner argues that the finding of immediate jeopardy is clearly erroneous.
Immediate jeopardy exists if a facility’s noncompliance has caused, or is likely to cause, serious injury, harm, impairment, or death to a resident. 42 C.F.R. § 488.301. The regulation does not require that a resident *actually*be harmed. *Lakeport Skilled Nursing Ctr.*, DAB No. 2435 at 8 (2012). I must uphold CMS’s determination as to the level of a facility’s substantial noncompliance (which includes an immediate jeopardy finding) unless it is “clearly erroneous.” 42 C.F.R. § 498.60(c). The “clearly erroneous” standard imposes on facilities a heavy burden to overcome a finding of immediate jeopardy. Appellate panels of the DAB have sustained determinations of immediate jeopardy where CMS presented evidence “from which ‘[o]ne could reasonably conclude’ that immediate jeopardy exists.” *See, e.g.*,*Barbourville Nursing Home*, DAB No. 1962 at 11 (2005) (citing*Florence Park Care Ctr.*, DAB No. 1931 at 27-28 (2004)), *aff’d*,*Barbourville Nursing Home v. U.S. Dep’t of Health & Human Servs.*, 174 F. App’x 932 (6th Cir. 2006).
**Page 16**
As discussed above, the evidence in this case supports a conclusion that Petitioner failed to comply substantially with 42 C.F.R. § 483.25(h). I further find that CMS’s immediate jeopardy determination was not clearly erroneous.
Despite having safety measures in place to protect Resident 1, Petitioner’s staff failed to implement them properly, which permitted Resident 1 to elope from the facility. A passing motorist found Resident 1 walking on the side of a highway 2.5 miles from Petitioner’s facility. Petitioner points out that Resident 1 “did not experience any serious harm or injury” when he eloped and that CMS did not offer any evidence that he “would suffer from long term adverse effects” as a result of his elopement. P. Post-hrg. Br. at 21. While it is fortunate that Resident 1 was not injured, actual harm is not a prerequisite for a finding of immediate jeopardy. *Lakeport*, DAB No. 2435 at 8. Rather, all that is required is a finding that there was or is a likelihood of serious injury, harm, impairment, or death. Petitioner ignores the fact that Resident 1 was a vulnerable individual whose safety was clearly jeopardized as a result of its staff’s failures to adequately supervise him. Resident 1 was cognitively impaired, with diagnoses of non-Alzheimer’s dementia and anxiety disorder; had diminished safety awareness; and was assessed as at risk for falls. CMS Ex. 8 at 1, 4, 6. Once Resident 1 eloped from Petitioner’s facility, he was exposed to a number of dangers, including falling and being struck by a motor vehicle. Thus, given Resident 1’s cognitive and physical impairments, there was a very high likelihood that he could face serious harm or death after leaving the facility.
Further, while I need not find that Resident 1 suffered actual harm to sustain the finding of immediate jeopardy, I am not convinced that Resident 1 experienced no “long term adverse effects” as a consequence of his elopement, as Petitioner claims. Petitioner’s witness, Nurse Patillo, testified on written direct that, after Resident 1 returned to Petitioner’s facility after his elopement, “[t]here was a marked change in his general mental status, and he began to verbally threaten to hurt himself, resulting in a transfer to the hospital for a medical evaluation.” P. Ex. 19 at 4. Resident 1’s behavioral changes at least suggest the possibility that he may have been traumatized by the incident.
CMS determined that the condition of immediate jeopardy continued from July 9 through July 14, 2016. Petitioner disputes this, arguing that immediate jeopardy was abated on July 9, 2016, and that there is no evidence of continuing noncompliance after that date. P. Post-hrg. Br. at 23; P. Post-hrg. Reply at 15-17.
CMS’s determination that a facility’s “ongoing compliance remains at the level of immediate jeopardy during a given period constitutes a determination about the ‘level of noncompliance’ and, therefore, is subject to the clearly erroneous standard of review under section 498.60(c)(2).” *Brian Ctr. Health & Rehab./Goldsboro*, DAB No. 2336 at 7-8 (2010). In addition, Petitioner bears the burden of persuasion regarding the entire
**Page 17**
duration of immediate jeopardy noncompliance. In *Owensboro Place & Rehabilitation Center*, the appellate panel stated:
The burden of persuasion is on the facility. The [DAB] has made it clear that the facility bears the burden of showing that it returned to substantial compliance on a date earlier than that determined by CMS and has rejected the idea that CMS must establish a lack of substantial compliance during each day in which a remedy remains in effect.
DAB No. 2397 at 12 (2011) (citations omitted).
Petitioner contends that, even if immediate jeopardy existed, it was fully abated on July 9, 2016, the date when its staff immediately placed Resident 1 back on the secured unit after he returned to the facility following his elopement that morning. Citing Surveyor Gilliland’s testimony, Petitioner asserts that this action should have abated the immediate jeopardy determination. P. Post-hrg. Br. at 22-23; P. Post-hrg. Reply at 15; Tr. 62. Petitioner argues that CMS was either unaware of Resident 1’s return to the secured unit or assumed incorrectly that Resident 1’s physical location was elsewhere during the immediate jeopardy period. Moreover, Petitioner claims that CMS argued for the first time in its post-hearing brief that in-servicing (i.e., training) of its employees on elopement and alarms was required before immediate jeopardy could be abated. P. Post‐hrg. Reply at 16. Petitioner argues that the SOD did not specifically cite any deficient practices by staff which needed to be addressed through in-servicing and claims that Resident 1’s elopement “occurred solely due to the malfunctioning courtyard alarm.” P. Post-hrg. Br. at 23; P. Post-hrg. Reply at 17-18. Petitioner appears to agree that, if staff retraining was necessary to abate the immediate jeopardy, all in-services were completed on July 14, 2016, the date on which CMS determined the immediate jeopardy condition ended. *See*P. Post-hrg. Br. at 23; *see also*CMS Ex. 1 at 1.
CMS argues that “[b]y July 14, 2016, [Petitioner] completed its investigation and provided re-education to all employees on elopement, alarm door/patio door, and unit coverage.” CMS Post-hrg. Br. at 7. Consistent with CMS’s assertion, the record shows that, on July 11, 2016, Petitioner held in-servicing for its staff on the topic of unit coverage, and on July 14, 2016, Petitioner held in-servicing for its staff on the topics of elopement and “alarm door/sliding patio.” CMS Ex. 19. I note further that Administrator Allen reported to the state agency that “[a]ll staff were in-serviced by the end of the business day on 7/15/16 on Elopement Policies and Procedures titled, ‘Residents at Risk’
**Page 18**
and ‘Missing Residents.’ In addition, all staff were in-serviced on the Policy and Procedure titled, ‘Securing the building with Locks and Alarms.’” CMS Ex. 7 at 4.9
I reject Petitioner’s contention that CMS could not insist on staff training before finding that Petitioner abated the immediate jeopardy at its facility. As explained above, I have concluded that, contrary to Petitioner’s argument, the immediate jeopardy condition occurred because staff failed to implement the safety procedures Petitioner had put in place to protect Resident 1. Further, Petitioner’s argument that the SOD did not find fault with its staff’s actions disregards the surveyor’s finding that “[t]he facility *failed to provide adequate supervision* to prevent an elopement for this cognitively impaired and independently mobile resident who exited the facility *unattended* . . . .” CMS Ex. 2 at 5 (emphasis added). This statement in the SOD is fully consistent with my conclusions in this decision. In addition, even if Petitioner undertook additional training of its staff following Resident 1’s elopement solely to prevent such incidents in the future, this would not render clearly erroneous CMS’s determination.10
For the reasons stated, I find that Petitioner has not met its burden to show that CMS’s determination regarding the duration of the period of immediate jeopardy was clearly erroneous. Accordingly, I find that CMS did not clearly err in finding that the period of immediate jeopardy existed at Petitioner’s facility from July 9 through July 14, 2016.
***3.******A CMP of $4,900 per day for the period of immediate jeopardy from July 9 through July 14, 2016, is reasonable; and a CMP of $100 per day for the period of non-immediate jeopardy from July 15 through August 19, 2016, is reasonable.***
I evaluate whether a CMP is reasonable by applying the factors listed in 42 C.F.R. § 488.438(f): 1) the facility’s history of noncompliance; 2) the facility’s financial condition; 3) the factors specified in 42 C.F.R. § 488.404; and 4) the facility’s degree of
**Page 19**
culpability, which includes neglect, indifference, or disregard for resident care, comfort, or safety. The absence of culpability is not a mitigating factor. The factors listed in § 488.404 include: 1) the scope and severity of the deficiency; 2) the relationship of the deficiency to other deficiencies resulting in noncompliance; and 3) the facility’s prior history of noncompliance in general and specifically with reference to the cited deficiencies. Unless a facility contends that a particular regulatory factor does not support the CMP amount that CMS proposed, the administrative law judge must sustain it. *Coquina Ctr.*, DAB No. 1860 at 32 (2002).
The regulations specify that a CMP that is imposed against a facility on a per-day basis will fall into one of two ranges of penalties. 42 C.F.R. §§ 488.408; 488.438. The upper range of a CMP, $3,050 per day to $10,000 per day, is reserved for deficiencies that pose immediate jeopardy to a facility’s residents and, in some circumstances, for repeated deficiencies. 42 C.F.R. § 488.438(a)(1)(i), (d)(2). The lower range of a CMP, $50 to $3,000 per day, is reserved for deficiencies that do not pose immediate jeopardy, but either cause actual harm to residents, or cause no actual harm but have the potential for causing more than minimal harm. 42 C.F.R. § 488.438(a)(1)(ii). In assessing the reasonableness of a CMP amount, an administrative law judge looks at the per-day amount, rather than the total accrued CMP. *See Kenton Healthcare, LLC*, DAB No. 2186 at 28 (2008). The regulations leave the decision regarding the choice of remedy to CMS, and the amount of the remedy to CMS and the administrative law judge, requiring only that the regulatory factors at §§ 488.438(f) and 488.404 be considered when determining the amount of a CMP within a particular range. 42 C.F.R. §§ 488.408; 488.408(g)(2); 498.3(d)(11); *see also*42 C.F.R. § 488.438(e)(2) and (3); *Alexandria Place*, DAB No. 2245 at 27 (2009); *Kenton Healthcare, LLC*, DAB No. 2186 at 28-29.
In this case, CMS imposed a CMP of $4,900 per day for the period of Petitioner’s immediate jeopardy noncompliance, July 9 through July 14, 2016, and a CMP of $100 per day for the period of Petitioner’s non-immediate jeopardy level noncompliance, July 15 through August 19, 2016, for a total of $33,000. CMS argues that these proposed CMPs are reasonable and, in particular, asserts that Petitioner’s noncompliance at the immediate jeopardy level was “egregious” and warrants a $4,900 per-day CMP. CMS Br. at 14.
Petitioner argues that the CMPs are unreasonable because there was no immediate jeopardy at the facility. Petitioner contends that even if immediate jeopardy was found, it was removed on July 9, 2016, and there was no noncompliance after that date. P. Post‐hrg. Br. at 23. Furthermore, Petitioner argues that CMS offered no evidence in support of the section 488.438(f) factors. *Id.*at 24.
**Page 20**
It is well-settled that administrative law judges and appellate panels of the DAB “properly presume[] that CMS considered the regulatory factors and that those factors support the amount imposed.” *Pinecrest Nursing & Rehab. Ctr.*, DAB No. 2446 at 23 (2012) (underscore in original). Thus, CMS is not required to present evidence regarding the section 488.438(f) factors. Instead, the burden is on Petitioner “‘to demonstrate, through argument and the submission of evidence addressing the regulatory factors, that a reduction is necessary to make the CMP amount reasonable.’” *Id.* (quoting *Oaks of Mid City Nursing & Rehab. Ctr.*, DAB No. 2375 at 26-27 (2011)). Further, unless a facility presents evidence and argument that a particular regulatory factor does not support the CMP amount, an administrative law judge must sustain it. *Coquina Ctr.*, DAB No. 1860 at 32.
With respect to facility history, Petitioner claims that, prior to the July 22, 2016 survey, it “had not been cited with any deficiencies above scope and severity E in the past three years of survey data” and that CMS had not considered this information as part of its CMP determination. P. Post-hrg. Br. at 24. It is Petitioner’s burden to offer not only argument, but also specific evidence addressing the regulatory factors, if it wished to demonstrate that a reduction in the CMP amount was warranted. However, Petitioner offered no evidence of its compliance history. Similarly, Petitioner has not offered any evidence or argument that it is unable to pay the per-day CMPs. I presume that CMS properly considered Petitioner’s compliance history and ability to pay when it determined the CMP amount and therefore do not examine these factors further.
Petitioner’s argument that no CMP or a CMP of shorter duration is warranted because there was no immediate jeopardy is flawed inasmuch as I have found that noncompliance at the immediate jeopardy level existed from July 9 through July 14, 2016. Petitioner’s noncompliance in this case is serious, and I find Petitioner culpable (i.e., responsible) for the noncompliance. As discussed above, Petitioner failed to adequately supervise Resident 1, a known elopement risk, to prevent him from eloping. Although Petitioner had instituted safety measures for Resident 1’s protection, Petitioner failed to properly implement them, thereby undermining their effectiveness. The circumstances created by Petitioner’s lax supervision directly led to Resident 1’s elopement, putting him at serious risk of harm or death. It is mere good fortune, not thanks to any positive action taken by Petitioner, that Resident 1, who was also cognitively impaired and at risk for falls, was not seriously injured when he eloped from Petitioner’s facility. Furthermore, it is evident that Petitioner’s failures could have risked the safety of other residents who were assessed to be elopement risks.
The $4,900 per-day CMP that CMS imposed is in the lower half of the CMP range for immediate jeopardy level deficiencies ($3,050 per day to $10,000 per day). 42 C.F.R. § 488.438(a)(1)(i), (d)(2). I find that a CMP in the lower half of the immediate jeopardy range is reasonable, given the seriousness of the noncompliance. With respect to the
**Page 21**
duration, the record shows that Petitioner completed in-servicing of its staff on July 14, 2016. I thus conclude, based on the factors above, that a $4,900 per-day CMP for the period of immediate jeopardy from July 9 through July 14, 2016, is reasonable.
Petitioner also asserts that CMS failed to describe what deficient practice continued after July 14, 2016, to warrant the reduced per-day CMP. P. Post-hrg. Reply at 18-19. However, “the period of noncompliance continues until the facility affirmatively demonstrates a return to substantial compliance.” *Ridgecrest Healthcare Ctr.*, DAB No. 2493 at 15 (2013), (citing*Premier Living & Rehab. Ctr.*, DAB No. 2146 at 23 (2008); *Lake City Extended Care*, DAB No. 1658 at 12-15 (1998)). The burden is on the facility to prove that it is back in compliance, not on CMS to prove that deficiencies continued to exist. *Asbury Care Ctr. at Johnson City*, DAB No. 1815 at 19-20 (2002). The facility must show that the incidents of noncompliance have ceased *and* that it has implemented appropriate measures to ensure that similar incidents will not recur. *Libertywood Nursing Ctr.*, DAB No. 2433 at 15 (2011), (citing*Life Care Ctr. of Elizabethton*, DAB No. 2367 at 16 (2011)); *accord* 42 C.F.R. § 488.456(a) and (e). A facility’s return to substantial compliance usually must be established through a resurvey. 42 C.F.R. § 488.454(a); *Ridgecrest*, DAB 2493 at 2-3.
The record shows that the state agency conducted a revisit survey on September 21, 2016, which established that Petitioner returned to substantial compliance effective August 20, 2016. CMS Ex. 1 at 1. I find that Petitioner has failed to present evidence that it returned to substantial compliance with Medicare participation requirements prior to August 20, 2016. The per-day CMP of $100 is at the very low end of the authorized penalty range for non-immediate jeopardy level deficiencies ($50 - $3,000). 42 C.F.R. §§ 488.408(d)(1)(iii), 488.438(a)(1)(ii). Accordingly, I conclude the $100 per-day CMP imposed for the period of non-immediate jeopardy noncompliance from July 15 through August 19, 2016, is reasonable.
***4.******Other issues raised by Petitioner are without merit or not within my authority to decide.***
Petitioner argues that the SOD contains numerous erroneous findings, that Surveyor Gilliland made unreliable and inconsistent statements, and that, collectively, these failings invalidate any findings of noncompliance, either at an immediate jeopardy level or non‐immediate jeopardy level. P. Post-hrg. Br. at 5-10; P. Post-hrg. Reply at 3, 19. Petitioner’s argument is without merit. In this proceeding I have afforded Petitioner a *de novo* review. As an appellate panel of the DAB explained in *Avon Nursing Home*, a *de novo* review means that I decide the issues “without deference to CMS’s or the state survey agency’s factual findings or legal conclusions and based on [my] own evaluation
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of the credibility of the submitted evidence.” DAB No. 2830 at 12 (2017), (citing *N.C. State Veterans Nursing Home, Salisbury*, DAB No. 2256 at 24 (2009)).
Moreover, the regulations are clear that “inadequate survey performance does not . . . [i]nvalidate adequately documented deficiencies.” 42 C.F.R. § 488.318(b)(2). As the *Avon* decision explained:
The [DAB]’s holdings in this area emphasize that, under the governing administrative appeal regulations, the ultimate issue before an ALJ is not how the state agency performed the survey or what process it followed to reach its conclusions, but “whether the *evidence* as it is *developed before the ALJ* supports” CMS’s independent “finding of noncompliance” under the relevant participation requirements.
DAB No. 2830 at 11 (emphasis in original). The *Avon* decision also emphasized that “a state agency’s survey findings constitute *recommendations*to CMS.” *Id.* at 14 (emphasis in original), (citing 42 C.F.R. §§ 488.11, 488.12). The panel further explained that “CMS makes its own determination of noncompliance, and decides what enforcement action to take, based on the survey’s findings.” *Id.*Thus, it is clear that Petitioner’s attempt to discredit both the surveyor and the findings in the SOD must fail.
Finally, in its hearing request, Petitioner raised several Constitutional arguments and challenges to the regulations, seeking to preserve these additional issues for appeal. Petitioner’s Request for Hearing at 7-14. Among other things, Petitioner argued that CMS’s failure to provide Petitioner with a “pre-deprivation hearing” prior to the imposition of remedies and with the right to appeal the choice of remedies violated its rights to due process of law under the Fifth and Fourteenth Amendments of the United States Constitution, as well as violated the Separation of Powers Clause of the Constitution. In addition, Petitioner argued that CMS violated the Act and that the allocation of the burden of proof in this case violates the Administrative Procedure Act. I do not have the authority to adjudicate any of these issues.
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V. Conclusion
For the foregoing reasons, I conclude that Petitioner was not in substantial compliance with 42 C.F.R. § 483.25(h). I further conclude that CMS’s determination of immediate jeopardy for the period of July 9 through July 14, 2016, was not clearly erroneous. The proposed CMPs, a $4,900 per-day CMP effective July 9 through July 14, 2016, and a $100 per-day CMP effective July 15 through August 19, 2016, for a total of $33,000, are reasonable in amount and duration.


          /s/
        Leslie A. Weyn

                      Administrative Law Judge
      1. CMS and state survey agencies consider the scope and severity of deficiencies when selecting enforcement remedies.  CMS summarizes the scope and severity levels in a matrix published in the State Operations Manual (SOM).  SOM, CMS Pub. 100-07, chap. 7, § 7400.5.1 (Rev. 63, effective Sept. 10, 2010, was applicable at the time of the survey at issue); (pursuant to Rev. 185, issued November 16, 2018, the matrix currently appears at section 7400.3.1 of the SOM, but the substance is largely unchanged).  The matrix, which is based on 42 C.F.R. § 488.408, specifies which remedies are required and optional at each scope and severity level.  “Scope” describes how many residents are potentially affected by a particular deficiency.  Deficiencies may be “isolated,” “pattern,” or “widespread” in scope.  “Severity” describes the possible harm that a deficiency may cause.  A scope and severity level of A, B, or C describes a deficiency that causes no actual harm with the potential for minimal harm.  Facilities cited with deficiencies at level C or lower remain in substantial compliance.  42 C.F.R. § 488.301.  A scope and severity level of D, E, or F describes a deficiency that has caused no actual harm with the potential for more than minimal harm that is not immediate jeopardy.  A scope and severity level of G, H, or I describes a deficiency that has caused actual harm that is not immediate jeopardy.  Scope and severity levels J, K, and L describe deficiencies that pose immediate jeopardy to resident health or safety. back to note 1
                      2. In a final rule promulgated October 4, 2016, and effective November 28, 2016, CMS issued comprehensive revisions to the regulations governing Medicare participation requirements for long term care facilities.  81 Fed. Reg. 68,688 (Oct. 4, 2016).  Based on the date of the survey in this case, which preceded the regulatory revisions, I refer to the regulations that were in effect at the time of the survey.  See Carmel Convalescent Hosp., DAB No. 1584 at 2 n.2 (1996) (applying regulations in effect on the date of the survey and resurvey). back to note 2
                      3. My conclusions of law appear as headings in bold italic type. back to note 3
                      4. Wanderguard is a brand name for a security system that sounds an alarm when a resident wearing an electronic bracelet approaches or tries to exit a door connected to the system.  See P. Ex. 35 at 2.  Resident 1’s care plan sometimes refers to the security bracelet used as a Wanderguard and sometimes as a Roam Alert.  CMS Ex. 8 at 8.  It is not clear whether the facility used different security systems at different times or if it used the terms Wanderguard and Roam Alert interchangeably.  In any event, the exact name of the device in use is not material, as Petitioner’s administrator explained that the two systems are equivalent.  P. Ex. 35 at 2. back to note 4
                      5. Petitioner focuses a great deal of its argument on the reasons its staff found it appropriate to permit Resident 1 to transfer off the secured unit.  See, e.g., P. Post-hrg. Br. at 17-18.  However, for the reasons explained in the Analysis section of this decision, I would conclude that Petitioner’s failure to supervise Resident 1 represented a deficient practice even if Resident 1 had resided on the unsecured unit continuously.  I therefore do not address the propriety of Resident 1’s transfer further. back to note 5
                      6. The exact time when Resident 1 eloped from Petitioner’s facility was never determined. back to note 6
                      7. The fact that Nurse Nderito implemented visual checks of Resident 1 every 15 minutes before the patio door alarm sounded somewhat undercuts Petitioner’s position that the visual checks were implemented specifically as a backup to the disengaged patio door alarm. back to note 7
                      8. Petitioner additionally emphasizes that the SOD incorporates the allegation that Petitioner’s staff saw Resident 1 in his room at 5:45 a.m. on July 9.  P. Post-hrg. Reply at 9 (citing CMS Ex. 2 at 3).  However, for the same reasons explained in this section of my decision, I do not find that the record as a whole supports the allegation. back to note 8
                      9. Given Administrator Allen’s statements, it appears that CMS could have determined that Petitioner had not completed its in-servicing until July 15, 2016. back to note 9
                      10. As I discuss in the following section of this decision, before being found to have returned to substantial compliance, a facility must demonstrate that it is able to remain in compliance.  See, e.g., Libertywood Nursing Ctr., DAB No. 2433 at 15 (2011) (to be found in substantial compliance earlier than the date of the resurvey, the facility must demonstrate not only that its noncompliance has ceased, but that it has implemented measures that will ensure that it remains in substantial compliance).  By analogy, it seems only logical that a facility would not be found to have eliminated immediate jeopardy without showing that it had taken steps to ensure that the immediate jeopardy situation would not recur. back to note 10 Back to top
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