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                              Holiday Care Center, DAB CR5842 (2021)
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Holiday Care Center, DAB CR5842 (2021)








  
  
    

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





Holiday Care Center,
(CCN: 31-5320),
Petitioner,

v.

Centers for Medicare & Medicaid Services.
Docket No. C-18-1300Decision No. CR5842April 6, 2021

        
              
    

      DECISION

Petitioner, Holiday Care Center (Petitioner or facility), is a skilled nursing facility located in Toms River, New Jersey, that participates in the Medicare program.  The Centers for Medicare & Medicaid Services (CMS) determined that the facility was not in substantial compliance with the Medicare requirements of 42 C.F.R. § 483.12(c)(2)-(4) to thoroughly investigate all alleged violations involving abuse, neglect, exploitation or mistreatment, prevent, report investigation results, and correct such violations, and that its deficiencies resulted in immediate jeopardy to resident safety and substandard quality of care.  CMS has imposed a $13,505 per instance civil money penalty (CMP).

Petitioner appealed and CMS now moves for summary judgment.

For the reasons discussed below, I find that CMS is entitled to summary judgment.  CMS has come forward with evidence establishing that the facility was not in substantial compliance with Medicare program requirements and that the penalty imposed is reasonable.  Petitioner has provided no evidence to establish that there are any material facts in dispute.  There is only one reasonable conclusion that can be drawn from the undisputed facts.

Page 2

I.   BACKGROUND

The Social Security Act (Act) sets forth requirements for nursing facility participation in the Medicare program and authorizes the Secretary of Health and Human Services to promulgate regulations implementing those statutory provisions.  Act § 1819.  The Secretary’s regulations are found at 42 C.F.R. Part 483.  To participate in the Medicare program, a nursing facility must maintain substantial compliance with program 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.

The Secretary contracts with state survey agencies to conduct periodic surveys to determine whether skilled nursing facilities are in substantial compliance.  Act § 1864(a); 42 C.F.R. §§ 488.10, 488.20.  The regulations require surveying each facility on average every 12 months, and more often if necessary, to ensure that identified deficiencies are corrected.  Act § 1819(g)(2)(A); 42 C.F.R. §§ 488.20(a); 488.308.

In response to allegations of abuse, neglect, exploitation, or mistreatment, facilities participating in the Medicare program must, among other requirements, “[h]ave evidence that all alleged violations are thoroughly investigated,” “[p]revent further potential abuse, neglect, exploitation, or mistreatment while the investigation is in progress,” and “[r]eport the results of all investigations to the administrator . . . and to other officials in accordance with State law, . . . within 5 working days of the incident, and if the alleged violation is verified, appropriate corrective action must be taken.”  42 C.F.R. § 483.12(c)(2)-(4).

Based on a survey completed at the facility on April 19, 2018, CMS determined that the facility was not in substantial compliance with Medicare participation requirements and that its deficiencies resulted in immediate jeopardy and substandard quality of care.  Specifically, CMS found that the facility was not in substantial compliance with 42 C.F.R. § 483.12(c)(2)-(4) (Tag F610).  CMS Exhibit (Ex.) 3.  A $13,505 per instance CMP was imposed for the Immediate Jeopardy and Substandard Quality of Care.

Petitioner filed a timely request for hearing on September 7, 2018.  On September 20, 2018, Judge Carolyn Cozad Hughes issued an Acknowledgment and Pre-hearing Order (APHO), setting forth pre-hearing procedures.1
  Both parties filed their pre-hearing exchanges, including prehearing briefs.  In its brief, CMS filed a motion for summary judgment (CMS Pre-Hearing Brief).  Petitioner filed a responsive brief (P. Opposition

Page 3

Brief).  CMS submitted 16 proposed exhibits.2
  Petitioner submitted 20 proposed exhibits.  As neither party objected to any of the proposed exhibits, I admit CMS Exs. 1-16 and P. Exs. 1-20 into the record.

II.   ISSUES

I will consider whether summary judgment is appropriate.

On the merits, I will consider:

1.) Whether, at the time of the April 19, 2018 survey, the facility was in substantial compliance with 42 C.F.R. § 483.12(c)(2)-(4); and
2.) If the facility was not in substantial compliance, is the penalty imposed reasonable?

Petitioner argues that I should also review the level of noncompliance found by CMS.  It correctly cites the standard for review of this issue, noting that “the level of non-compliance can be reviewed **if** a successful challenge on this issue would affect the range of CMP’s that CMS could assess.”  P. Opposition Brief at 16 (emphasis in original).  However, it misplaces the emphasis in this section of the uncited regulation.  An Administrative Law Judge may review CMS’s scope and severity findings, which include a finding of immediate jeopardy, only if a successful challenge would affect the **range**of the CMP assessed or CMS has made a finding of substandard quality of care that results in the loss of approval of a facility’s nurse aide training program.  42 C.F.R. § 498.3(b)(14), (d)(10); *see* *Evergreen Commons*, DAB No. 2175 (2008); *Aase Haugen Homes*, *Inc.*, DAB No. 2013 (2006).  As noted above, the penalty imposed here is a per instance CMP, for which the regulations provide only one range ($2,097 to $20,965).  42 C.F.R. § 488.438(a)(2); 45 C.F.R. § 102.3 (2017); 82 Fed. Reg. 9174, 9182-83 (Feb. 3, 2017).  This is in contrast to a per day CMP, which, by regulation, consists of two **ranges**of penalties, an upper range and a lower range.  42 C.F.R. § 488.438(a)(1).  Because CMS imposed a per instance CMP, a successful challenge to CMS’s immediate jeopardy finding would not affect the range of the CMP that would be imposed.  *NMS Healthcare of Hagerstown,*DAB No. 2603 at 6-7 (2014), *appeal dismissed*, *NMS Healthcare of Hagerstown, LLC v. U.S. Dep’t of Health & Human Servs.*, 619 F. App’x 225 (4th Cir. 2015).  Nor does CMS’s scope and severity finding affect approval of a nurse aide training program.  There is no evidence that Petitioner had a nurse aide training program.  However, even if it had, when a facility has been assessed a CMP of $5,000 or more, as has occurred here, the state agency may not approve its nurse aide

Page 4

training program.  42 C.F.R. § 483.151(b)(2)(iv).  For these reasons, I conclude that I have no authority to review CMS’s finding of immediate jeopardy.

Petitioner appears to argue that the timeliness of the *reporting* of the undisputed elopement that occurred on March 9, 2018, is also an issue to be adjudicated.  Petitioner states that it “will prove, using the exhibits of CMS, that this elopement was timely reported to both the Ombudsman For The Institutionalized Elderly and the State Department of Health.”  P. Opposition Brief at 2.  Such an argument suggests that Petitioner is also contesting a violation of 42 C.F.R. § 483.12(c)(1), which provides, in pertinent part, that in response to allegations of abuse, neglect, exploitation, or mistreatment, the facility must ensure that all alleged violations are reported immediately, but if the allegations do not involve abuse or serious bodily injury, not later than 24 hours to the administrator of the facility and to other officials (including to the State Survey Agency and adult protective services where state law provides for jurisdiction in long-term care facilities) in accordance with State law through established procedures.  However, Petitioner was found to not be in substantial compliance with 42 C.F.R. § 483.12(c)(2)-(4), governing investigation, prevention, reporting of investigation results, and correction of the violation if verified, rather than 42 C.F.R. § 483.12(c)(1), which requires the immediate *reporting* of allegations of abuse, neglect, exploitation, or mistreatment.  Petitioner seems to confuse the regulatory time requirements for *reporting* *an event or incident* with those for reporting the *results of the investigation* of an event or incident.  It argues that “[i]t was the conclusion of the expert nurse that the investigation was in fact, *completed* within 5 days of the elopement, on 3-14-18” and this was “further corroborated by Holiday’s Facility Reportable Event reporting *the event*to the State on March 14, 2018.”  P. Opposition Brief at 10 (emphasis added).  Similarly, it asserted that “Holiday Care’s *Reportable Event Record* indicates a clear and complete *reporting of the event* on March 14, 2018, within the five-day period following the elopement.  This is a very key fact which lends credibility to the *timeliness of the investigation* by the facility.”  P. Opposition Brief at 8 (emphasis added).  While it is questionable that the elopement at issue in this case was, in fact, reported to the appropriate authorities within the 24-hour time span specified in 42 C.F.R. § 483.12(c)(1)3
, it is not necessary to consider that question because that was not identified as a violation found in this case.  As a result, the issue of whether the elopement was reported to the specified authorities in a timely manner will not be addressed in this decision.

Page 5

As noted above, CMS filed a motion for summary judgment, arguing that there are no genuine issues of material fact and the only dispute involves the legal significance of the facts.  CMS Pre-Hearing Brief at 6.  Summary judgment is appropriate when there is no genuine dispute about a fact or facts material to the outcome of the case, and the moving party is entitled to judgment as a matter of law.  *Celotex Corp. v Catrett*, 477 U.S. 317, 322-25 (1986).  The party moving for summary judgment has the initial burden of demonstrating that there is no genuine issue of material fact for trial and that it is entitled to judgment as a matter of law.  *Celotex*, 477 U.S. at 323.  If the moving party carries that burden, “the nonmoving party must come forward with ‘specific facts showing that there is a genuine issue for trial.’”  *Matsushita Elec. Indus. Co. v. Zenith Radio Corp.*, 475 U.S. 574, 587 (1986) (quoting Fed. R. Civ. P. 56(e)).

“To defeat an adequately supported summary judgment motion, the non-moving party may not rely on the denials in its pleadings or briefs, but must furnish evidence of a dispute concerning a material fact – a fact that, if proven, would affect the outcome of the case under governing law.”  *Senior Rehab. & Skilled Nursing Ctr.*, DAB No. 2300 at 3 (2010), *aff’d sub nom. Senior Rehab. & Skilled Nursing Ctr. v. Health & Human Servs.*, 405 F. App’x 820 (5th Cir. 2010).  A party “must do more than show that there is ‘some metaphysical doubt as to the material facts . . . . Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial.’”  *Mission Hosp. Reg’l Med. Ctr.*, DAB No. 2459 at 5 (2012) (quoting *Matsushita*, 475 U.S. at 586-87), *aff’d sub nom. Mission Hosp. Reg’l Med. Ctr. v. Sebelius*, No. SACV 12-01171 AG (MLGx), 2013 WL 7219511 (C.D. Cal. 2013), *aff’d sub nom. Mission Hosp. Reg’l Med. Ctr. v. Burwell*, 819 F.3d 1112 (9th Cir. 2016).

In examining the evidence to determine the appropriateness of summary judgment, I must draw all reasonable inferences in the light most favorable to the non-moving party. *Brightview Care Ctr.*, DAB No. 2132 at 2, 9 (2007).  However, drawing factual inferences in the light most favorable to the non-moving party does not require that I draw unreasonable inferences or accept the non-moving party’s legal conclusions.  *Brightview*, DAB No. 2132 at 10; *Cedar Lake Nursing Home*, DAB No. 2344 at 7 (2010).

III.   DISCUSSION AND FINDINGS of FACT and CONCLUSIONS OF LAW

**A. CMS is entitled to summary judgment.  The undisputed evidence establishes that the facility was not in substantial compliance with 42 C.F.R. § 483.12(c)(2)-(4) because the facility, in response to an allegation of neglect, failed to thoroughly investigate the allegation, prevent further potential neglect while the investigation was in progress, report the results of its investigation within five working days of the incident, and take appropriate corrective action prior to April 19, 2018**.

The relevant facts in this case are not in dispute.  Resident No. 3 was initially admitted to

Page 6

the facility on September 20, 2017, with diagnoses that included vascular dementia with behavior disturbances, psychotic disorder with delusions, panic disorder, anxiety disorder, end stage renal disease, and heart failure.  CMS Ex. 4; P. Ex. 16 at 2.  He was placed in the Applewood Unit, a secure, locked unit.  CMS Ex. 4 at 1; CMS Ex. 7 at 3.  Elopement Risk Assessments indicated that he was a moderate to high risk for wandering.  CMS Ex. 5.  The Care Plan established for Resident No. 3 addressed this risk by identifying that:

I have potential for Wandering:  Elopement Risk History of attempts to leave facility unattended, Impaired safety awareness, I wander aimlessly

I exited the building unsupervised-Actual 10/12/17

I have been noted wandering with exit seeking behavior on 11/1/17.

CMS Ex. 5 at 7-8; CMS Ex. 6 at 1, 6.

Goals in the Care Plan were identified as:

“My safety will be maintained” and “I will not leave facility unattended.”

CMS Ex. 5 at 7; CMS Ex. 6 at 1, 6.

Initial interventions in the Care Plan included:

Distract me from wandering

Document all incidents of wandering

Identify pattern of wandering

Make sure all staff are aware of elopement risk

Place my picture at the front lobby receptionist desk and

Structured and supervised walking activities.

CMS Ex. 5 at 7-8; CMS Ex. 6 at 1, 6.

Despite these interventions, Resident No. 3 was found by a staff member outside the building near the employee entrance on March 9, 2018, at approximately 2:30 pm.  CMS Ex. 9 at 1, 2, 4.  The facility reported that following the elopement, Resident No. 3 was returned to the facility and assessed to make sure he did not suffer any harm, which he

Page 7

did not.  CMS Ex. 8 at 12.  30-minute visual checks were initiated and he was placed in the common area for observation.  *Id*.

In the AAS-45 dated March 19, 2018, Petitioner’s Administrator reported to the New Jersey Department of Health that initially they believed that the resident had gotten out through the employee entrance but, after further investigation and talking with the staff, they watched the video cameras which revealed that “he went into Room 33 on the Applewood unit and managed to push open the window screen and kick open one of the door stoppers, letting himself out through the window.  He was viewed on the camera at 2:20pm.”  CMS Ex. 8 at 12.  Similarly, in the Timeline provided by the facility, it was reported that:

[i]nitially we thought that he had eloped through the back service hallway and the employee entrance door . . . We looked at the cameras for the service hall and did not see him going down the hall at any point.  We then checked inside the building and did see him enter a room on the 30 hallway but not come out.  It was suggested by a CNA that he might have gone out a window.  We had maintenance check the windows in that room and found that one of the safety stops had been broken off and the window screen was missing.  We believe he did exit the building through the window.

CMS Ex. 9 at 1.  The facility reported that the window in room 33 was repaired and all other windows were checked to make sure they were secure with window stops and screens in place.  CMS Ex. 8 at 12.  Additional hospice hours were requested and the secure courtyard on Applewood was opened up for Resident No. 3 to go outside and walk but not get outside the building.  *Id*.

Both parties acknowledge that there was an elopement from the facility by Resident No. 3 on March 9, 2018.  The pivotal question in this case is whether the facility’s actions in response to the elopement were compliant with the provisions of 42 C.F.R. § 483.12(c)(2)-(4) and its own internal policies.

As indicated above, Petitioner was assessed a CMP for violation of 42 C.F.R. § 483.12(c)(2)-(4).  Those regulatory provisions provide that “[i]n response to allegations of abuse, neglect, exploitation, or mistreatment, the facility must:

***

(2) Have evidence that all alleged violations are thoroughly investigated.

Page 8

(3) Prevent further potential abuse, neglect, exploitation, or mistreatment while the investigation is in progress.

(4) Report the results of all investigations to the administrator or his or her designated representative and to other officials in accordance with State law, including to the State Survey Agency, within 5 working days of the incident, and if the alleged violation is verified appropriate corrective action must be taken.

In addition to the governing regulations, the facility had a written policy entitled “Resident Incidents and Accidents.”  CMS Ex. 10 at 1.  An “Incident” was defined to include an elopement.  In the case of an incident, the policy specified certain procedures to be followed including, in relevant part, the requirements that the nurse on the unit fill out the Resident Accident/Incident report in full and that the nurse completing the investigation immediately institute necessary interventions to ensure resident safety.  The facility policy also provided that the Care Plan must be reviewed and updated accordingly with appropriate interventions.  *Id*.  The facility also had a written Wandering/Elopement policy which required, in pertinent part, that the Care Plan must be reviewed after every elopement attempt.  CMS Ex. 11 at 1.

Petitioner initially argues, through statements from its expert witness, that “the citation of F-610 was incorrect and does not even apply to the instance that occurred on March 9, 2018 and the actions taken by the facility that followed.”  P. Opposition Brief at 19; *see* P. Ex. 15 at 10-11.  Petitioner appears to be alluding to Ms. Rader’s written statement, in which she stated “F610 does not apply to the elopement of Resident #3 since there was no abuse, neglect, and no injury of any type including no injury of unknown origin.”  P. Ex. 16 at 10-12.  In essence, it asserts that because there was no actual injury, either unknown or related to any of the actions specified in the regulation, 42 C.F.R. § 483.12(c)(2)-(4) and Tag F610 are not applicable in this case.  While the “no harm, no foul” argument is addressed below, the regulatory definition of “neglect” found at 42 C.F.R. § 488.301 includes consequences that go beyond physical harm.  Neglect is defined there as 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.”  Moreover, this argument is without merit, for its failure to prevent Resident No. 3’s elopement and protect him from the risks of elopement may be construed as neglect.  *See, e.g.*, *Miss. Care Ctr. of Greenville*, DAB No. 2450 (2012).

Petitioner argues that summary judgment is not appropriate in this matter because “material issues of fact remain in dispute” and the “conclusions of CMS in requesting summary judgment are predicated on some facts, that when viewed in a light most favorable to the Petitioner, appear to call for deletion of the deficiency and associated CMP altogether.”  P. Opposition Brief at 15.  However, what Petitioner cites as material facts in dispute are instead disputes over the legal conclusions, as it essentially concedes in its statement that there were “differing opinions contained [in the parties’ evidentiary

Page 9

documents] as to whether the investigation and the corrective actions taken by the Petitioner were adequate.”  P. Opposition Brief at 16.  “A dispute over the conclusion to be drawn from applying relevant legal criteria to undisputed facts does not preclude summary judgment if the record is sufficiently developed and there is only one reasonable conclusion that can be drawn from those facts.”  *Guardian Health Care Ctr.,*DAB No. 1943 at 11 (2004).

Petitioner does cite as evidence of a material fact in dispute the surveyors’ “calculation error in assessing the Petitioner as having taken 7 days from the elopement to make the report, a factual dispute which is directly evident in the exhibits of CMS.”  P. Opposition Brief at 20.  Petitioner refers to the statement by the surveyors in the Statement of Deficiencies that “[a]lthough the elopement was immediately reported to the Administrator and the 7-3 shift Unit Manager Licensed Practical Nurse (UM LPN) #1, an investigation was not initiated until 7 days later, 3/14/18.”  CMS Ex. 1 at 2.  I would agree that this statement in CMS Ex. 1 at 2 does appear to err in calculating the number of days between March 9, 2018, the date of the elopement, and March 14, 2018, the date the facility first reported to the state authorities that an investigation was being conducted.  CMS Ex. 8 at 1-2.  However, I do not find this to be a material fact in dispute.  The facility was charged with a failure to timely and thoroughly investigate the elopement of Resident No. 3, under the provisions of 42 C.F.R. § 483.12(c)(2)-(4).  CMS Ex. 1 at 1.  The difference between 5 days and 7 days might be relevant and material if the governing regulation mandated that an investigation must *begin*within 5 days of the incident.  However, 42 C.F.R. § 483.12(c)(4) instead requires that the*“results of all investigations”* must be reported within 5 working days of the incident.  So, regardless of whether the investigation began 5 days or 7 days after the elopement, that date is not material in this case.  The significant date for the purposes of this adjudication is when the *results* of the investigation were reported, not when the investigation began.  The apparent miscalculation of the time period between the elopement and the commencement of the investigation is not a material fact in dispute in this matter. Moreover, CMS corrects this error in its brief, for it states “there is no dispute that . . . [Petitioner] did not initiate an investigation into the elopement for another five days, on March 14, 2018 . . . .”  CMS Br. at 5-6.  Therefore, Petitioner attempts to create a factual dispute where none exists.

There are no material facts in dispute regarding the circumstances surrounding the elopement.  The undisputed record documents that Resident No. 3 left the locked, secure Applewood Unit twice on March 9, 2018.  According to a Timeline reportedly provided by the facility Administrator, on March 9, 2018, between 2:00 pm and 2:15 pm, Resident No. 3 exited the Applewood Unit, a locked unit, with other residents going to the main dining room for an activity.  P. Ex. 13 at 1; CMS Ex. 9 at 1.  Resident No. 3 did not enter the dining room and instead went into the secure smoking courtyard.  P. Ex. 13 at 1; CMS Ex. 9 at 1.  In a statement dated March 16, 2018, Lena Mazzo reported that, at about 2:00 pm, she was transporting residents from the Applewood Unit to the dining room for

Page 10

musical entertainment, when she observed Resident No. 3 by the doorway in the Applewood Unit.  CMS Ex. 9 at 3.  She indicated that she tried to get him back into the unit, but he pushed her away and walked towards the resident’s courtyard by the dining room and ran out into the courtyard.  Ms. Mazzo stated that Resident No. 3 did not want to come in so she waited until an activity assistant came to help and he stayed with Resident No. 3 until a CNA took him back to the unit.  According to the Timeline, it was estimated that he was safely returned to the Applewood Unit around 2:20 pm.  P. Ex. 13 at 1; CMS Ex. 9 at 1.

At approximately 2:30 pm, Resident No. 3 was found by CNA Toni Guarnieri outside the building by the employee entrance when she was coming to work.  P. Ex. 13 at 1; CMS Ex. 9 at 1-2.  Ms. Guarnieri stated she approached him to redirect him back into the building and he indicated he was waiting for his brother-in-law to pick him up.  She reported she then called the front desk for assistance.  CMS Ex. 9 at 2.  The front desk called the Applewood Unit and spoke with Lynne Gionattasio, LPN, who reported she went out and observed Resident No. 3 walking across the parking lot with the CNA.  CMS Ex. 9 at 4.  Ms. Gionattasio stated Resident No. 3 was returned to the building and into the unit without difficulty and no injuries were observed.  She indicated that the unit manager was not available so she notified the Administrator.  CMS Ex. 9 at 4.

According to the AAS-45 dated March 14, 2018, the unit manager was temporarily reassigned to another unit and was not present when the incident occurred, but she did document that Resident No. 3 had displayed wandering and agitated behavior earlier that day and had been redirected several times during the day.  CMS Ex. 8 at 2.  The unit manager was reportedly made aware by the nurse on the unit that the resident was found outside by the employee entrance door and was brought inside by a staff member.  The unit manager reportedly did not document this at that time but added a late entry on the day of the report, March 14, 2018.  CMS Ex. 8 at 2.  The AAS-45 is essentially consistent with a Behavior Note by Unit Manager Jodi MacPherson, LPN, dated March 9, 2018, and labeled Late Entry.  CMS Ex. 7 at 3; *see* P. Ex. 13 at 1.  That Behavior Note indicated that:

[i]t was brought to this nurses attention that resident had left the building for a very brief period of time and was brought back to his secure unit on Applewood without injury . . . . This nurse received information and proceeded to investigate and found resident on his secure Applewood unit with some slight aggressive & agitated behaviors.  Resident continued to verbalize that he was looking for, “The Man, The train and The Tickets.”  Resident is a very poor historian and unable to express any recent current events. . . . Resident was maintained on unit and Q 30 minute checks were

Page 11

implemented for the weekend Q shift.

CMS Ex. 7 at 3.

30-minute checks were instituted and performed, as documented in Petitioner’s 30 Minute Observation Records, from March 9, 2018 through March 11, 2018.  P. Ex. 12.

Given that there is no dispute surrounding the fact of the elopement by Resident No. 3 on March 9, 2018, the question then becomes whether the elopement was “thoroughly investigated” so that further neglect was prevented, as required by 42 C.F.R. § 483.12(c) and Petitioner’s policy.  As noted above, facility policy governing incidents requires the nurse on the unit to fill out the Resident Accident/Incident report in full and the nurse completing the investigation to immediately institute necessary interventions to ensure resident safety.  CMS Ex. 10 at 1.

Petitioner argues that “the facility’s investigation was compliant with the regulations” and company policy.  P. Opposition Brief at 8, 13.  To support this argument, it relies on statements from LPN Lynne Gionattasio.  In a declaration dated January 16, 2019, she stated that following her assessment of Resident No. 3 when he was returned to the unit after the elopement and his placement on 30-minute visual checks, “[a]t this point an investigation of the events began.  I called the administrator to report these events.”  P. Ex. 19 at 1.4
   Although the statement from Ms. Gionattasio does not indicate who began the investigation or what exactly was investigated, Petitioner asserts in its brief that it was the unit manager who began the investigation, citing the statement by its expert witness, nurse consultant Gail Rader, RN, that “[a]n investigation was properly initiated per facility policy by the charge nurse on the Applewood unit on March 9, 2018 who completed an assessment of Resident #3 following his return inside the facility by staff noting no injuries.”5
  P. Ex. 16 at 6; P. Opposition Brief at 8; *see* P. Ex. 15 at 7, 10.  A

Page 12

review of the Late Entry Behavior note dated March 9, 2018, from Unit Manager Jodi MacPherson, LPN, shows that she “received information and proceeded to investigate and found resident on his secure Applewood unit with some slight aggressive & agitated behaviors.”  CMS Ex. 7 at 3.  However, this note does not contain any reference to a specific investigation of the elopement beyond questioning Resident No. 3 and his wife, both of whom were described as being poor historians.  *Id*.

The Timeline provided by the facility similarly does not identify any specific investigation of the elopement that was conducted by Ms. MacPherson on March 9, 2018.  CMS Ex. 9 at 1.  In fact, the discussion of her actions in the Timeline seemed to focus on the initial incident when Resident No. 3 exited the unit with other residents going to an activity.  The Timeline indicates that at 3:00 pm:

Jodi MacPherson LPN Unit Manager . . . who was working on Washington Unit that day was notified that [Resident No. 3] had gotten off the unit.  She went to Applewood and saw that he was safely on the unit.  While discussing the situation with the ADON the staffing coordinator told her that [Resident No. 3] had gotten out with the activity dept.  Jodi went and discussed the incident with Lena to get the details of what had happened.

CMS Ex. 9 at 1.  For the purposes of summary judgment, I will accept that some type of unspecified investigation *began* on March 9, 2018.  I will not accept, however, the allegations that this unspecified investigation constituted the thorough investigation of the elopement sufficient to prevent further potential neglect, as required by 42 C.F.R. § 483.12(c)(2)-(4) and facility policy, for the reasons discussed below.

Facility policy required the nurse on the unit to fill out the Resident Accident/Incident report in full and the nurse completing the investigation was required to then immediately institute necessary interventions to ensure resident safety.  CMS Ex. 10 at 1.  While a completed Resident Incident/Accident Report was not submitted for the record, there were two statements entitled INCIDENT/ACCIDENT STAFF/RESIDENT/WITNESS STATEMENT provided, which presumably were taken as part of an investigation.  One of the statements is from Toni Guarnieri, CNA, dated March 9, 2018, detailing her observations of Resident No. 3 in the employee parking lot when she arrived for work at 2:30 pm on that date.  CMS Ex. 9 at 2.  This statement would, at least, be consistent with an immediate investigation of the incident.  However, the only other component of the required Resident Accident/Incident Report submitted for the record is a second statement from Lynne Gionattasio, LPN, but this was dated April 19, 2018.  CMS Ex. 9 at 4.  The date of this statement would not be consistent with an investigation completed prior to April 19, 2018, or an immediate institution of necessary interventions following a completed investigation, as required by facility policy.

Page 13

Given the interventions in place for potential elopements in his Care Plan, the obvious focus of a thorough investigation of the elopement would have been to determine ***how did Resident No. 3 get out of the building on March 9, 2018 and how can we prevent this from happening again***.  An investigation of this question did not *begin* until March 14, 2018, when the Administrator was finally made aware that Resident No. 3 had left the unit twice on March 9, 2018.6
  Numerous records document this date.  In the Timeline provided by the facility, it was reported that on March 14, 2018, the Ombudsman contacted the facility regarding the resident’s elopement and the Administrator was then made aware that he had left the unit twice within a half hour on March 9, 2018, and that she had misunderstood the call from Ms. Gionattasio.  CMS Ex. 9 at 1.  The Timeline then indicates that an “investigation was immediately begun.”  *Id*.  Similarly, in the AAS-45 dated March 14, 2018, Susan Wood, the Administrator, reported to the New Jersey Department of Health that “[w]e are conducting an incestigation [sic] to determine how the resident exited the building, including viewing the security camera tapes.”  CMS Ex. 8 at 2.  In a document dated March 21, 2018, entitled “Follow-up Information,” Ms. Wood responded to the question as to why the incident was not reported immediately.  CMS Ex. 8 at 22.  She stated:

[t]here was some confusion regarding this incident.  Initially I was told that the resident was found in the secure smoking courtyard unattended which was not an elopement.  On 3-14-18, it was confirmed that he was found outside by the employee entrance.  An investigation was immediately started and the event was reported.  I should have reported the incident at the time it occurred.  It was my error.

*Id*.  These documents, which were the facility’s own records, establish that an investigation into how Resident No. 3 eloped from the building did not even begin until March 14, 2018.

It was not until March 19, 2018, that the results of the investigation were provided to the New Jersey Department of Health.  CMS Ex. 8 at 11-12.  At that time, the Administrator reported that initially staff believed that the resident had gotten out through the employee entrance but, after further investigation and talking with the staff, they watched the video cameras.  That review revealed that he went into Room 33 on the Applewood Unit and

Page 14

managed to push open the window screen and kick open one of the door stoppers, letting himself out through the window.  He was viewed on the camera at 2:20 pm.  CMS Ex. 8 at 12.  Similarly, in the Timeline provided by the facility, it was reported the following actions were taken on March 14, 2018:

[i]nitially we thought that he had eloped through the back service hallway and the employee entrance door . . . We looked at the cameras for the service hall and did not see him going down the hall at any point.  We then checked inside the building and did see him enter a room on the 30 hallway but not come out.  It was suggested by a CNA that he might have gone out a window.  We had maintenance check the windows in that room and found that one of the safety stops had been broken off and the window screen was missing.  We believe he did exit the building through the window.

P. Ex. 13 at 1; CMS Ex. 9 at 1. 
Considering the evidence in the light most favorable to Petitioner, I conclude that the failure to even *begin* to thoroughly investigate the means of the elopement prior to March 14, 2018, resulted in violations of 42 C.F.R. § 483.12(c)(3) and (4) and facility policy in that the facility failed to prevent further potential neglect while the investigation was in progress and failed to verify that appropriate corrective action was taken at any time prior to April 19, 2018.

Petitioner argues that there was no “victim” and Resident No. 3 was not placed at risk for serious injury or death.  P. Opposition Brief at 13-14.  While this appears to be an argument against the finding of immediate jeopardy, which is not subject to review, it will be considered instead as an argument against the conclusion by CMS that the facility did not prevent further potential neglect while the investigation was in progress, as required by 42 C.F.R. § 483.12(c)(3).  Considering Petitioner’s “no harm, no foul” argument in that context, given the fact that it was not until at least March 14, 2018, that the means of Resident No. 3’s elopement were discovered, I find that there was a failure to prevent further potential neglect while the investigation was in progress.  For at least five days, there was a room on the locked ward, where Resident No. 3 resided, with an open window and the screen pushed out.  Despite 30-minute checks, there was nothing preventing him from again going into Room 33 and again leaving the building.7
  The

Page 15

Administrator herself stated in the AAS-45 that “[b]ecause he is ambulatory it is difficult to continually supervise him as he does not stay in one spot.”  CMS Ex. 8 at 12.  In a behavior note dated March 14, 2018, a nurse indicated that he continued to wander, walking around the hallway and was agitated.  CMS Ex. 7 at 6.  In fact, on March 19, 2018, Resident No. 3 was observed going into Room 33 and trying to open the window again.  CMS Ex. 7 at 15.  Fortunately, by that time, the window had apparently been repaired8
 and he was monitored by a hospice aide.  There was also an incident of elopement or attempted elopement reported in the progress notes at the Applewood 20 Hallway Door on March 17, 2018.  CMS Ex. 7 at 11, 13.  It is clear that Resident No. 3 would and did continue to wander.  This evidence documents a failure to prevent further potential neglect while the investigation was in progress, as required by the regulations.

Petitioner argues that despite the “misunderstanding” on the part of the Administrator regarding the communications she received about the elopement on March 9, 2018, “this did not place Resident No. 3 or any other sampled or un-sampled resident at risk for serious injury or death.”  P. Opposition Brief at 14.  While this argument also appears to be directed at the immediate jeopardy finding, it is considered instead as an argument against the finding that Petitioner did not prevent further potential neglect while the investigation was in progress.  Petitioner cites to an analysis by its expert witness, Ms. Rader, of the number of residents who would not be physically able to elope.  P. Opposition Brief at 11-12.  However, this argument is undercut by the statement from the facility in its Plan of Correction that “[a]ll residents are potentially at risk following an incident that is not investigated timely.”  CMS Ex. 2 at 2; CMS Ex. 15 at 1.  Quantifying the number of residents who would be physically unable to climb onto an air-conditioning unit to elope reads as an attempt to minimize the overall risk.  Rather, the deficiency, as conceded by the facility in the above-quoted statement, is that a five-day

Page 16

delay in the investigation of how a resident eloped potentially put many others at risk since the exact means of elopement were unknown.

Petitioner somewhat concedes that the investigation was not fully compliant with the regulations and facility policy by indicating the “investigation of this event was not perfect” but attributes this to a “misunderstanding by the Administrator.”  P. Opposition Brief at 13.  Clearly, there was a misunderstanding on the part of the Administrator, based upon the reports of the two different incidents involving Resident No. 3 on March 9, 2018.  This was quite apparent from her response to the state agency when asked why the incident was not reported immediately.  She replied:

There was some confusion regarding this incident.  Initially I was told that the resident was found in the secure smoking courtyard unattended which was not an elopement.  On 3-14-18, it was confirmed that he was found outside by the employee entrance.  An investigation was immediately started and the event was reported.  I should have reported the incident at the time it occurred.  It was my error.

CMS Ex. 8 at 22.

While this statement suggests that the failure to thoroughly investigate the elopement immediately was not willful, it also establishes that the investigation was significantly delayed by the “misunderstanding.”  As a result, I find that the facility did not have evidence that the alleged violation was thoroughly investigated and that further potential  neglect was prevented while the investigation was in progress, in violation of 42 C.F.R. § 483.12(c)(2) and (3), during the time period at issue.
There was also a delay in updating Resident No. 3’s care plan with the appropriate interventions, inconsistent with facility policy.  The elopement itself was not noted on the care plan until March 14, 2018, five days after the event.9
  CMS Ex. 5 at 7-8.  Moreover, no additional interventions were added to the care plan until March 16, 2018, seven days after the elopement.  *Id*. at 7.  At that time, an intervention to “[m]onitor my residents whereabouts on unit very frequently” was added.  *Id*. at 7.  On March 20, 2018, an intervention to have VNA hospice provide additional companionship was added to the care plan.  *Id*. at 8.  And, on March 21, 2018, the care plan interventions were amended to include access to Applewood’s secure courtyard for walks to respond to Resident No. 3’s need to walk and pace, and an outside secure smoking courtyard for safe walking.  *Id*. at 7-8.

Page 17

Petitioner accurately states that, under the provisions of 42 C.F.R. § 483.12(c)(4), a facility is also required to take corrective action thereafter if an alleged violation is verified.  P. Opposition Brief at 9, 13.  However, I find no support for its assertion that  “actions taken by [Petitioner] were found to have been consistent with [its] Facility policy and consistent with this Regulation.”  P. Opposition Brief at 9.

Petitioner points to an immediate physical evaluation and the implementation of checks of the resident every 30 minutes for 72 hours as evidence of corrective action being taken.  P. Opposition Brief at 9.  The 30-minute checks were documented during the period from March 9, 2018 through March 11, 2018.  P. Ex. 12.  However, as discussed above, Resident No. 3 still had access to Room 33, with the broken window stop, until at least March 14, 2018, despite the 30-minute checks which had been implemented.  And, as noted above, while Resident No. 3 was receiving 30-minute checks, he was free to wander for the remainder of the time and, in fact, did wander.  As the Administrator noted in the AAS-45, “[b]ecause he is ambulatory it is difficult to continually supervise him as he does not stay in one spot.”  CMS Ex. 8 at 12.  Given that it took him only 10 minutes from the time he was returned from the courtyard to the locked ward on March 9, 2018, to then elope to the parking lot, checking on him every 30 minutes would not necessarily have prevented another elopement from Room 33.

Petitioner also asserts that the deficiency cited at Tag F610 is unsupported because there is no regulatory requirement to conduct an “in-service educational event” as a result of an elopement.  P. Opposition Brief at 16.  I would certainly agree that 42 C.F.R. § 483.12(c)(4) does not specifically mandate any type of educational program.  What it does require, however, is that “appropriate corrective action” be taken after an incident has occurred.  In this case, as Petitioner itself concedes, there was a problem with the *communication* of the elopement to the appropriate facility personnel, which resulted in a delay in the investigation and the prevention of further potential neglect.10
  This, in fact, was the focus of the in-service training that was conducted on April 19, 2018, as documented in Petitioner’s Education Record and related agenda.  CMS Ex. 15 at 2-4.  In Petitioner’s Plan of Correction accepted on April 19, 2018, the facility was asked to cite measures or systemic changes to ensure that the deficiencies would not recur.  CMS Ex. 2 at 2-3; CMS Ex. 15 at 1.  In its response, the facility indicated that “[e]ducation began for all staff on 4-19-18, which includes timely reporting of incidents to a supervisor to ensure investigations are initiated in a timely fashion.”  CMS Ex. 2 at 2; CMS Ex. 15 at 1.

Petitioner disagrees with the finding of CMS that immediate jeopardy continued until April 19, 2018, when facility in-services were conducted.  P. Opposition Brief at 12.  Instead, it cites to training provided to the Applewood Unit on March 14, 2018, presumably for the purpose of arguing that immediate jeopardy ended at that time.

Page 18

Because, as noted above, I will not review the level of noncompliance found by CMS, I have instead considered the citation to the March 14, 2018 training as an argument to support Petitioner’s position that the facility took appropriate corrective action at an earlier date.  The facility reported as part of its Plan of Correction that “staff on the Applewood unit were educated by the unit manager on 3-14-18 regarding the proper procedure to follow when a resident elopes, and the appropriate communication process that needs to occur to ensure timely investigation.”  CMS Ex. 2 at 2; CMS Ex. 15 at 1.  However, unlike the training that occurred on April 19, 2018, which was documented with a written agenda and a list of participants (CMS Ex. 15 at 2-4), there is no such documentation for the training that reportedly occurred on March 14, 2018.  However, for the purposes of summary judgment, I accept that this training did occur on that date.  Assuming that this did occur, however, does not support a conclusion that this would constitute the complete corrective action required by 42 C.F.R. § 483.12(c)(4).  The training reported to have been conducted on March 14, 2018, was only provided to staff on the Applewood Unit and apparently would only have been provided to staff present on that day since there is no indication that all Applewood Unit employees were called in for this training.  This is particularly significant in this case since employees other than staff on the Applewood Unit were involved in the reporting of Resident No. 3’s activities on March 9, 2018, including the CNA who found him in the parking lot and the activities staff person.  CMS Ex. 9 at 1-3.  Accordingly, I cannot find that the appropriate corrective action required by 42 C.F.R. § 483.12(c)(4) was taken prior to April 19, 2018.

Considering all the evidence in the light most favorable to Petitioner, there is only one reasonable conclusion that can be drawn from the above undisputed facts.  *Guardian,*DAB No. 1943 at 11.  I find that the facility did not have evidence that the alleged violation was thoroughly investigated, that further potential neglect was prevented while the investigation was in progress, and that appropriate corrective action was taken prior to April 19, 2018.  As a result, the facility was not in substantial compliance with 42 C.F.R. § 483.12(c)(2)-(4) during the time period at issue.

**B.  The penalty imposed is reasonable.**

The next issue for consideration is whether the CMP is reasonable.  To determine whether a CMP is reasonable, I apply 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) factors specified in 42 C.F.R. § 488.404; and (4) the facility’s degree of culpability, which includes neglect, indifference, or disregard for resident care, comfort, or safety.  The absence of culpability is not a mitigating factor.  42 C.F.R. § 488.438(f).  The factors in 42 C.F.R. § 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.

Page 19

In reaching a decision on the reasonableness of the CMP, I must make an independent determination about “whether the evidence presented on the record concerning the relevant regulatory factors supports a finding that the amount of the CMP is at a level reasonably related to an effort to produce corrective action by a provider with the kind of deficiencies found and in light of the other factors involved [financial condition, facility history, and culpability].”  *CarePlex of Silver Spring*, DAB No. 1683 at 8 (1999).

CMS imposed a per instance CMP in the amount of $13,505.  This amount is in the middle of the relevant penalty range for per instance penalties ($2,097 to $20,965).  42 C.F.R. §§ 488.408(d)(1)(iv), 488.438(a)(2); 45 C.F.R. § 102.3 (2017); 82 Fed. Reg. 9174, 9182-83 (Feb. 3, 2017).

The record contains no evidence of a history of noncompliance.

Petitioner does not claim that its financial condition affects its ability to pay this amount.

With respect to the remaining factors, Petitioner asserts that the facility should not have been cited as deficient at all and any corresponding CMP was “inappropriate.”  P. Opposition Brief at 20.  CMS argues that the CMP was reasonable, given the facility’s “obvious culpability.”  CMS Pre-Hearing Brief at 16.  I have found the severity of the deficiencies significant enough to warrant this penalty.  The failure to thoroughly investigate the means of Resident No. 3’s elopement, prevent further elopements, and take appropriate corrective action during the relevant time period renders the facility culpable.  For this, the $13,505 per instance CMP imposed is reasonable.

IV.   CONCLUSION

I grant CMS’s motion for summary judgment.  I find that Petitioner was out of substantial compliance with 42 C.F.R. § 483.12(c)(2)-(4) and that the related per instance penalty of $13,505 is reasonable.


          /s/
        Mary M. Kunz

                      Administrative Law Judge
      1. The case was originally assigned to Judge Hughes, but was later assigned to me on September 15, 2020. back to note 1
                      2. CMS submitted an Exhibit List which cited 17 Exhibits.  CMS Ex. 17 was identified as the Declaration of Kimber Wade.  However, in its brief, CMS indicated that Ms. Wade was on medical leave and, as a result, her declaration was not submitted.  CMS Pre-Hearing Brief at 3 n.1. back to note 2
                      3. The earliest evidence of any report of the elopement to the State Survey Agency was the Reportable Event Record/Report to the New Jersey Department of Health (AAS-45) dated March 14, 2018.  CMS Ex. 8 at 1-3.  This is consistent with the information in the Timeline submitted by the facility, which noted, that on  March 14, 2018, the Administrator was made aware on that date that Resident No. 3 had left the unit twice on March 9, 2018 and “the incident was reported to the State DOH.”  CMS Ex. 9 at 1. back to note 3
                      4. While the declaration from Ms. Gionattasio is dated January 16, 2019 on the first page, the second page of the declaration states that it was executed on January 17, 2018.  P. Ex. 19.  However, I have reviewed the record in the light most favorable to Petitioner and have considered the date on page 2 to be a typographical error, particularly since it pre-dates the incident in this case. back to note 4
                      5. Ms. Rader initially appears to base the initiation of an investigation on the physical assessment of Resident No. 3 upon his return to the secure unit.  She later states that “LPN #3 initiated an investigation immediately on March 9, 2018 as required in their policy by notifying facility Administration of the elopement.”  P. Ex. 16 at 7.  The basis of what she believes to be “an investigation” isn’t clear.  However, for the purposes of summary judgment it is not necessary to pursue this question further.  I will accept that some form of investigation was started on that date. back to note 5
                      6. The ADON was similarly unaware of the elopement prior to March 14, 2018.  In an Incident Note dated March 14, 2018, she stated that she was “[i]nformed today on an incident that occurred on 3/9/18 with [Resident No. 3].  Certified nursing assistant informed undersign [sic] that when she was coming in for her 3-11 shift, she saw [Resident No. 3] in employee parking lot by staff entrance to building.”  CMS Ex. 7 at 5. back to note 6
                      7. While Resident No. 3 was receiving 30-minute checks, he was free to wander for the remainder of the time.  Given that it took him only 10 minutes from the time he was returned from the courtyard to the locked ward on March 9, 2018, to then elope to the parking lot, checking on him every 30 minutes would not necessarily have prevented another elopement from Room 33. back to note 7
                      8. There is no evidence establishing precisely when the window in Room 33 was repaired.  In the Timeline entry dated March 14, 2018, it was reported that maintenance checked the windows in a room on the 30 hallway and found that one of the safety stops had been broken off and the window screen was missing.  The facility states that the “window was repaired that day and all room windows on Applewood were also checked.”  CMS Ex. 9 at 1.  Presumably, “that day” referred to March 14, 2018, but this was not specified.  The record does contain a Declaration from Robert Haught, Petitioner’s Maintenance Director, who stated that “we found one of the stops to be broken off on 3/9/18, and the screen to be knocked out and laying on the ground.  I repaired that window stop and replaced the screen.”  P. Ex. 18 at 2.  This language suggests that the broken window stop was discovered and repaired on March 9, 2018.  However, this is completely inconsistent with the remainder of the evidence, which establishes that the compromised window in Room 33 was not discovered until on or after March 14, 2018, when the investigation of the elopement was reported to have begun and suggests, instead, some awkward drafting.  CMS Ex. 8 at 2, 22. back to note 8
                      9. The care plan submitted to the New Jersey Department of Health on March 14, 2018, in fact, did not contain a reference to the elopement on March 9, 2018.  CMS Ex. 8 at 8.  The revision, citing the elopement on March 9, 2018, was apparently added later.  back to note 9
                      10. As noted above, neither the Administrator nor the ADON were aware of the elopement until March 14, 2018, 5 days after the incident.  CMS Ex. 7 at 5; CMS Ex. 9 at 1. back to note 10 Back to top
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