Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD

Civil Remedies Division

In the case of: )
)
Opp Health and Rehabilitation, L.L.C.  )
(CCN: 01-5210), ) Date: March 12, 2009
)
Petitioner, )
)
“Vee ) Docket No. C-07-342
) Decision No. CR1921
Centers for Medicare & Medicaid )
Services. )
)
DECISION

Petitioner, Opp Health and Rehabilitation, L.L.C. (Petitioner or facility), is a long-term
care facility located in Opp, Alabama, that is certified to participate in the Medicare
program as a provider of services. On February 17, 2007, the Alabama Department of
Public Health (State Agency) conducted a complaint survey in response to a tip that the
acility had not reported the death of a resident found unresponsive in the facility’s
parking lot, partially clothed, on a winter night, who had exited the facility undetected.
Based on the results of that survey and a revisit survey, the Centers for Medicare &
Medicaid Services (CMS) determined that, from February 12 through March 20, 2007,
the facility was not in substantial compliance with Medicare requirements, and that from
February 12 through February 27, 2007, its deficiencies posed immediate jeopardy to
residents. CMS imposed a Denial of Payment for New Admissions (DPNA) effective
February 25 through March 20, 2007, and a civil money penalty (CMP) of $5000 per day
or 16 days of immediate jeopardy and $100 per day for the 21 remaining days of
substantial noncompliance (totaling $82,100). Petitioner challenges those determinations
and related penalties.

For the reasons set forth below, I find that the facility was not in substantial compliance
with program requirements from February 12 through March 20, 2007, and that from
February 12 through February 27, 2007, its deficiencies posed immediate jeopardy to
resident health and safety. I sustain CMS’s imposition of the DPNA and the CMP.

I. Background

On the night of February 12, 2007, a visitor discovered an 84-year-old resident, Resident
Number | (R1), in the facility parking lot. R1 was lying unresponsive on the asphalt
between two parked vehicles, wearing only a t-shirt and socks, without vital signs, and

with blood on his head and face. Petitioner’s Exhibits (P. Exs.) 13-23, 25, 28-30; CMS

Ex. 5, at 26. R1 had significant unexplained facial injuries to his forehead and nose, and
he had abrasions on his knees and chest. The source of the injuries was unwitnessed and
the unconscious resident could not explain how the injuries occurred. The visitor alerted
staff, who responded immediately by calling an ambulance and attempting to resuscitate
the resident. The resident was taken to the hospital and pronounced dead.

After receiving an anonymous tip, surveyors went to the facility to investigate and
determined that the facility should have but did not report the incident, that the facility
did not have any system in place to prevent R1 from being outside the facility, and that
the facility had not provided R1 with adequate supervision. The surveyors also
determined that the facility failed to follow R1’s care plan and failed to prevent
foreseeable accidents. CMS Ex. 1, at 1, 12, 19, 31. A revisit survey concluded that
Petitioner had corrected its immediate jeopardy deficiencies but that it remained out of
substantial compliance. CMS Exs. 9, 12.

CMS has imposed a DPNA and CMP of $5000 per day for 16 days of immediate
jeopardy and $100 per day for 21 days of substantial noncompliance that was not
immediate jeopardy (totaling $82,100). CMS Exs. 8, 12, 14.

The facility timely requested a hearing, and the matter was assigned to me. I held a
hearing in Birmingham, Alabama, which began on September 9, 2008. Ms. Margaret J.
Babb appeared on behalf of Petitioner, and Mr. Donald J. Calder appeared on behalf of
CMS.

l admitted into evidence CMS Exs. 1-14 and P. Exs. 1-35. Transcript (Tr.) 6-7; Order
(August 18, 2008). During the hearing I also admitted a one-page document prepared by
the paramedic who attended to R1 on the night of his death as Administrative Law Judge
(ALJ) Ex. 1. Tr. 266. The parties have filed opening briefs (CMS Br. and P. Br), reply
briefs (CMS Reply and P. Reply), and CMS filed a response brief.

II. Applicable Law and Regulations

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, section 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 CFR. § 488.301.

The Secretary contracts with state survey agencies to conduct periodic surveys to
determine whether skilled nursing facilities are in substantial compliance with program
participation requirements. Act, section 1864(a); 42 C.F.R. § 488.20. The regulations
require that each facility be surveyed once every twelve months, and more often, if
necessary, to ensure that identified deficiencies are corrected. Act, section
1819(g)(2)(A); 42 C.F.R. §§ 488.20(a), 488.308. Ifa facility is not in substantial
compliance, CMS has the authority to impose enforcement remedies, including per day
CMPs and DPNAs. 42 C.F.R. §§ 488.406, 488.408; see Act, section 1819(h).

Per day CMPs fall into two broad penalty ranges. 42 C.F.R. §§ 488.408, 488.438. The
upper range, from $3050 to $10,000 per day, is reserved for deficiencies that constitute
“immediate jeopardy.” 42 C.F.R. § 488.438(a)(1). The lower range, from $50 to $3000
per day, is reserved for deficiencies that do not constitute “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). “Immediate jeopardy” is
defined as “‘a situation in which 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 (emphasis added).

A facility has a right to request a hearing before an ALJ to appeal a “certification of
noncompliance leading to an enforcement remedy.” 42 C.F.R. §§ 488.408(g),
498.3(b)(13); see Act, section 1819(h). The hearing before an ALJ is a de novo
proceeding. Anesthesiologists Affiliated, et al, DAB CR65 (1990), aff'd,
Anesthesiologists Affiliated, et al v. Sullivan, 941 F.2d 678 (8th Cir. 1991); Emerald
Oaks, DAB No. 1800, at 11 (2001); The Residence at Salem Woods, DAB No. 2052
(2006). CMS’s choice of remedies or the factors it considered when choosing remedies
are not subject to review. 42 C.F.R. § 488.408; see 42 C.F.R. §§ 488.330(e), 498.3.
CMS’s determination as to the level of noncompliance, including a finding of immediate
jeopardy, “must be upheld unless it is clearly erroneous.” 42 C.F.R. § 498.60(c)(2);
Woodstock Care Center, DAB No. 1726, at 9, 38 (2000), aff'd, Woodstock Care Center
v. Thompson, 363 F.3d 583 (6th Cir. 2003). An ALJ may review a CMP pursuant to 42
C.F.R. § 488.438(e).

In these proceedings, CMS must establish a prima facie case that the facility was not in
substantial compliance. The facility must overcome CMS’s showing by a preponderance
of the evidence to prevail. Emerald Oaks, DAB No. 1800, at 4 (2001); Cross Creek
Health Care Center, DAB No. 1665 (1998) (applying Hillman Rehabilitation Center,
DAB No. 1611 (1997), aff'd, Hillman Rehab. Ctr. v. U.S. Dep’t of Health & Human
Services, No. 98-3789 (GEB), slip op. at 25 (D.N.J. May 13, 1999)).
III. Issues
The issues in this case are:

Whether the facility was complying substantially with federal participation
requirements on the dates CMS determined to impose a CMP.

Whether CMS’s determination of immediate jeopardy was clearly erroneous.

Whether the penalty imposed by CMS is reasonable, if noncompliance is
established.

IV. Discussion

A, The facility was not in substantial compliance with 42 C.F.R. §§ 483.13(c)
(investigation and reporting requirements), 483.25(h)(2) (accidents),
483.20(k) (comprehensive care plans), and 483.75 (administration).

On the night of February 12, 2007, after 10:00 p.m., a visitor found a resident in the
acility parking lot, dressed only in a t-shirt and socks, lying on his side between two
vehicles, face down, with blood around his head. P. Exs. 13-23, 25, 28-30; CMS Ex. 5, at
26. The visitor, Dane Adams, ran to the closest door, Hall Two East, and beat on it. No
one answered the door, so he went to the front door, and then to the Hall Two nurses
station. P. Ex. 32, at 1; CMS Ex. 3, at 16, 38. Staff rushed out to the parking lot and
began cardio pulmonary resuscitation (CPR) on Rl. An ambulance was called, and the
paramedics took R1 to the hospital where he was pronounced dead. Staff also called the
acility’s Administrator, Yvette Welch, who arrived at the facility after R1 had been
taken to the hospital, and began interviewing staff about what happened. P. Exs. 13-23,
25, 28-30.

R1 had been readmitted’ to the facility on February 7, 2007, with diagnoses including
acute exacerbation of chronic obstructive pulmonary disease (COPD),” congestive heart
failure (CHF),? osteoarthritis,’ and diabetes. P. Ex. 1, at 41, 43, 45,54. To mitigate the

' He had been in the facility several months earlier for a short period of time.

>? Surveyor Sharon Parker testified that COPD affects memory and ability to think.
Tr. 11-12.

> CHF causes the heart muscle to fail to circulate the blood throughout the body to
the lungs. Tr. 12 (Surveyor Parker).
effects of COPD and CHF, his physician, J. Michael Stanfield, M.D., ordered that he
receive oxygen through a nasal cannula, which could only be removed for short periods.
P. Ex. 1, at 35, 40, 55; Tr. 389-92. Surveyor Sharon Parker noted that patients with
below normal oxygen levels, like R1, are likely to experience confusion. Tr. 19-20. Dr.
Stanfield testified that R1 had grown accustomed to lower levels of oxygen in his blood
than most people, but also that COPD caused the resident to feel short of breath and
fatigued, especially when walking. Tr. 349, 389-90.

R1 had been assessed to need one-person assists with transfers, walking in his room,
walking in the corridor, and toilet use. He also required assistance with personal hygiene
and bathing. P. Ex. 1, at 54 (Minimum Data Set signed February 13, 2007), 112, 145
(needs help dressing and bathing, walks with assistance) (emphasis added). On February
7, 2007, the day of his readmission, the physical therapist assessed R1 as being at a high
risk for falls.° P. Ex. 1, at 120 (physical therapy gait and balance tests). On February 12,
2007, Dr. Stanfield ordered six weeks of physical therapy, five days a week, in part, for
progressive gait training. P. Ex. 1, at 42.

R1 was generally alert and oriented, but according to some staff and facility records, he
occasionally experienced mild confusion. His speech-language pathology report shows
that he had mild to moderate problems with cognition, and indicates that speech therapy
services were warranted to improve R1’s cognitive status for functional communication.
P. Ex. 1, at 134. His “Mini-Mental State Examination” (MMSE) established that R1
suffered from mild dementia. P. Ex. 1, at 108; Tr. 569. His transfer form dated February
7, 2007, also indicates that he was occasionally confused. P. Ex. 1, at 145. His care plan
directed staff to prevent R1 from eloping, in part, by maintaining alarms on exit doors
and by ambulating with the resident. P. Ex. 1, at 76. Surveyor Parker testified that door
alarms help prevent elopements by sounding when exit doors open, alerting staff that a
resident may have exited through an open door. Tr. 50-51.

+ Osteoarthritis is a weakening condition of the bones. Patients become limited in
their mobility, including walking, mobility, using the hands, arms, etc. Any limitation
with the musculoskeletal system is possible. Tr. 13 (Surveyor Parker).

* R1 frequently ambulated with a wheelchair. P. Ex. 1, at 54, 93.

® A separate, undated assessment included in R1’s intake records and signed by
Nurse Christy Bryan (fall risk assessment) indicates that he was not at a high risk for
falls. P. Ex. 1, at 100. This assessment is the only one in R1’s intake records that is not
dated. P. Ex. 1, at 96-103. Nurse Bryan testified that on the day of his readmission, his
gait was steady: when he stood up from the stretcher he had to stand for just a second,
but that he walked three or four feet from the stretcher to the bed without any problems
and without any assistance. Tr. 329.
1. Duty to investigate and report injuries of unknown source

Regulations require facilities to develop and implement written policies and procedures
that prohibit mistreatment, neglect, and abuse of residents. Facilities are required to
ensure that alleged violations involving mistreatment, neglect, or abuse, including
injuries of unknown source, are reported immediately to the facility administrator and to
other officials in accordance with state law. 42 C.F.R. § 483.13(c)(2) (emphasis added).
A facility must have evidence that all alleged violations are thoroughly investigated. 42
C.F.R. § 483.13(c)(3). The results of all investigations must be reported to the
administrator and to other officials in accordance with state law within five working days
of the incident. 42 C.F.R. § 483.13(c)(4) (emphasis added). The Departmental Appeals
Board (Board) has held that under section 483.13(c)(4), the results of the investigation
should be reported to the State Agency within five days of the incident regardless of
whether the investigation verified the alleged violation. Bergen Regional Medical
Center, DAB No. 1832 (2002).

On the night of the incident, Administrator Welch began interviewing staff and asked
them to write statements about what happened. Tr. 489-90. No staff members reported
having observed R1 exit the building. According to Administrator Welch, Petitioner
never discovered precisely how or where R1 exited the facility. Tr. 32-34, 51, 580-81;
CMS Ex. 3, at 31 (“I determined that I don’t know how he got out and don’t know if
alarm sounded or not.”). Petitioner suspected that R1 exited through a door on Hall Two
because the resident’s room was there, which is where he was last seen, and because it
was the closest door to the location where his body was found. Tr. 36, 41, 198-200, 566.
Although Petitioner argues that its door alarms were functioning properly on the night of
the incident, some staff members suspected that he exited from a door on Hall Two
because the exit door alarms were not working at that time. CMS Ex. 1, at 28-29; Tr. 16,
198-200.

Staff also reported that audible alarms on exit doors were disabled by staff, some of
whom were in the habit of entering and exiting through the doors and/or using rugs to
prop the doors open. CMS Ex. 1, at 28-29. As Administrator Welch explained, though,
the keypad codes were posted in the main lobby,’ R1 knew the codes, and facility staff

’ Petitioner’s assertion that it was required to post the keypad code is not
supported by its references to the Life Safety Code or Alabama law. CMS points out that
Alabama law requires that panic hardware be installed on exit doors. The LSC actually
requires that doors be equipped with panic hardware (including cross-bars and push-pads)
with a push-type door lock release, and signage reading “PUSH UNTIL ALARM
SOUNDS DOOR CAN BE OPENED IN 15 SECONDS.” CMS Reply at 3 (citing LSC
Ch. 7.2.1.6.1(d)).
allowed him to come and go at will.® Tr. 468-70, 472-74; CMS Ex. 1, at 28; CMS Ex. 3,
at 31 (referring to R1’s MMSE, Administrator Welch told surveyors: “I can’t keep him
in here, he was not demented.”). If he entered the keypad code, he could walk outdoors
without triggering an alarm. Tr. 528, 582.

Petitioner argues that Administrator Welch reasonably concluded after a thorough
investigation that R1 died of a myocardial infarction which caused him to fall and sustain
multiple injuries, and because she knew the source of the injuries, there was no reason to
report the circumstances of R1’s wandering alone and dying outdoors. P. Br. at 24-27;
Tr. 499-500.

i. Duty to investigate injuries of unknown source

While the Administrator did conduct a cursory investigation into the events that took
place on the night of R1’s death, the investigation revealed very little about what
appened. Petitioner discovered that R1 exited the facility and died, but the underlying
cause of R1’s exit and death were not determined, and the circumstances surrounding his
death were unknown. Petitioner’s detailed explanation of its theory regarding “air-
unger’ seems plausible given R1’s conditions. See P. Br. at 5,25. However, this
analysis is absent from any documents that have been submitted as part of the
investigation, which indicates that the theory was not discovered during investigation but
developed at a later point. Moreover, the explanation does not answer the question of
ow R1 left the facility undetected or how he sustained the injuries to his head, side, and
ands. He may have sustained the injuries from a fall, or he may have sustained them
rom more than one fall. He may have suffered a heart attack and then fallen, or he may
ave fallen and then suffered a heart attack. Petitioner now maintains that R1 died and
then fell, but it has not submitted any documentation showing that this was a conclusion
of its investigation. See infra discussion Part IV.A.1.ii.

Petitioner has not submitted any documentation of its actual investigation process. At the
earing, Administrator Welch testified that P. Exs. 1-4, 6-7, 10, 12-31, 32, at 3, were part
of the investigation. Tr. 501-14. But none of these documents — consisting of medical
charts, maintenance notes, and witness statements — show any analysis.

Notes compiled after the survey (which appear to be Administrator Welch’s) indicate that
Petitioner still did not understand exactly what happened on the night of February 12,

* In its hearing request, Petitioner stated that R1 “was mentally competent to
decide if he wanted to step outside to breathe fresh air... . He requested a room near an
exit for this purpose when he moved into the facility; he knew the security code for the
door so that he could exit and enter when needed and did not need or want to be attended
at all times.” Hearing Request at 2.
2007. In response to deficiency Tag F225 (42 C.F.R. § 483.13(c), failure to conduct a
thorough investigation and failure to report), a handwritten note reads, “[R1] was found
at the edge of the sidewalk that connected to the parking area. (Not as surveyor states.)”
P. Ex. 34, at 13. None of the contemporaneous witness statements say that R1 was found
at the edge of the sidewalk; almost all of the witness statements say that he was found in
the parking lot. The notes also say that (apparently Administrator Welch) interviewed
Glen Jowers, Paramedic, “first on the scene.” P. Ex. 34, at 14. Paramedic Jowers was
the first paramedic to respond, but many staff members would be able to describe the
scene as it looked when R1 was found better than he would because he arrived after R1
had been moved to a CPR board and covered with a sheet. Nursing notes show that R1
took a powerful sleeping pill, Restoril, two hours before he was found dead, but there is
no documentation showing that the facility considered what medications R1 had taken
that night and the effects they may have had on the resident. P. Ex. 1, at 48; see Tr. 405
(the sleeping pill could have caused confusion).

The purpose of requiring facilities to investigate is, in part, to facilitate a determination of
the cause of unknown injuries and the implementation of corrective measures to guard
against repeat occurrences. Tr. 59-64, 75-77, 83. A thorough investigation of R1’s
elopement should have identified flaws in policies and procedures designed to prevent
such events. In this case, Administrator Welch told surveyors that no corrective

measures had been taken as a result of R1’s exit from the facility. Tr. 63-64.

In view of the foregoing, I find that CMS has established a prima facie case that
Petitioner failed to investigate injuries of unknown origin. Petitioner has not overcome
that showing by a preponderance of the evidence.

ti. Duty to report the results of the investigation within five
working days of the incident

Petitioner maintains that it did not have a duty to report because, as expert evidence
shows, R1 suffered a myocardial infarction on the night of his death and died before he
ell, i.e., he did not fall and then die. Petitioner says that this conclusion follows from the
act that there was little or no blood when R1 was found dead, which would indicate that
is heart had stopped pumping before he fell and sustained injuries, and that he did not
ave defensive wounds on his hands from trying to break his fall. P. Br. at 2, 11.

However, Petitioner did not arrive at this conclusion at the time of the investigation.
Petitioner asserts that on February 13, 2007, Paramedic Jowers told Administrator Welch
that there was very little blood, which indicates that the heart had already stopped
beating, and that R1 did not have defensive wounds from trying to break his fall. Tr.
492-94; CMS Ex. 34, at 14 (undated notes, written after complaint survey). Paramedic
Jowers did not recall talking to anyone at the facility until after he had spoken with
surveyors. Tr. 257-58, 291, 305.

Petitioner has not submitted contemporaneous notes of Administrator Welch’s interview
with Paramedic Jowers. In fact, it has submitted no documentation indicating that any
assessment was made during the investigation that R1 died and then fell, that he did not
have defensive wounds, or that the amount of blood was considered during the
investigation. As Dr. Stanfield testified, although the facility notified him on the night of
February 12, 2007, that R1 had been transferred to the hospital, the only thing he was told
about the circumstances surrounding R1’s death was that he was found outside.” Tr. 370.

Moreover, when Dr. Stanfield made his assessment, it was premised on Petitioner’s
assertion that there was little or no blood when R1 was found. At the hearing, he
confirmed that if he was told that “there was a pool of blood or that [R1] was bleeding
and there was blood on the pavement then [he] would conclude that [R1] was alive before
the impact and the impact could have contributed to his death.” Tr. 421. He also said
that if there had been blood, he would consider whether the injuries to the head might
have in some way contributed to the death. Tr. 421. Dr. Stanfield acknowledged that a
heart attack was not necessarily the reason R1 fell, but that something else could have
caused him to fall. Tr. 419-20. He also acknowledged that the presence of Restoril in
R1’s system could have impaired R1’s ability to perform a defensive maneuver when he
fell. Tr. 406.

Many witnesses reported a seeing a lot of blood: R1 “appeared to be bleeding from his
head or upper half of his body” (P. Ex. 13, Whatley Decl.); “face down in a pool of
blood” (P. Ex. 17, Foster Decl.); “his face was bloody” (P. Ex. 18, Brown Decl.); “blood
on pavement” (P. Ex. 19, Thompson Decl.); “blood under resident at his head” (P. Ex. 22,
Rhoder Decl.); “bleeding from his forehead” (P. Ex. 25, Rosen Decl.); “blood around
face area” (P. Ex. 28, Barrow Decl.); “laying on the ground covered in blood” (P. Ex. 30,
Burks Decl.); “lying . . . with his face down and blood all around.” (CMS Ex. 5, at 26,
Hall Decl.). Witnesses also told surveyors they saw blood. CMS Ex. 3, at 7 (blood
pooled, 12’ circle); CMS Ex. 3, at 24 (blood around his head, on face); CMS Ex. 3, at 38
(saw blood, some was on him); CMS Ex. 3, at 27 (the blood was coming from his head).

° Dr. Stanfield submitted a letter dated February 20, 2007, stating his opinion that
R1 died of an “Acute Myocardial Infarction and/or Pulmonary Embolus.” P. Ex. 11.
However, Administrator Welch acknowledged that this letter was not considered during
the investigation. Tr. 510.
10

The only witness to say that there was no blood was Paramedic Jowers. '° Tr. 256 (“I
noticed several abrasions and cuts on him, but there was no blood anywhere, that I
remember.”). Paramedic Jowers arrived at the scene after facility staff had moved R1
from the pavement onto a CPR board and placed a sheet over him. Tr. 256, 271. The
facility has yet to reconcile this account with all of the other accounts of R1’s position
when he was initially found. There were other statements and observations that should
have been considered during the investigation, as well. At some point a mop was found
on the back porch with blood on it. A staff member said, “we brought the mop,” but no
evidence shows when or where the mop was used.'' CMS Ex. 3, at 24. Another staff
member reported that she spoke with Paramedic Jowers the day after the incident and that
EMS workers reported that R1’s pulse was present on departure to the hospital.'> CMS
Ex. 5, at 22 (Bryan Decl.).

Regardless of whether Petitioner’s conclusions as to the order of events or the amount of
blood are correct or not, the argument is not valid. Even assuming that R1 died and then
fell does not excuse the facility from exercising its duty to report the results of the
investigation timely. The regulations allow a facility five days to investigate and report,
and the facility failed to comply.

Although a cursory investigation was conducted, it was not thorough and its results were
not reported to the State Agency. Petitioner should have thoroughly investigated the
incident and reported the results of the investigation to the State Agency within five days.

In view of the foregoing, I find that CMS has established a prima facie case that
Petitioner failed to report the results of the investigation regarding R1’s accident within
five working days of the incident. Petitioner has not overcome that showing by a
preponderance of the evidence.

© Petitioner submitted facility notes of an interview of Dane Adams, which
indicate that there was not a lot of blood. P. Ex. 32, at 1-2. However, Petitioner
submitted the exhibit as “Statements of Yvette Welch.” At the hearing, Administrator
Welch stated that the first two pages of the exhibit were not her notes. Tr. 512-13. She
speculated at the hearing that the notes were part of Nurse Bryan’s statement, but the
notes themselves are undated and do not indicate who wrote them. Tr. 513-14; CMS Ex.
32, at 1-2. She did not indicate that she considered these pages in her investigation. Tr.
512-14.

" This could explain in part why witnesses reported seeing different amounts of
blood, but there are no other references to, or discussion of, the mop in the record.

» Dr. Stanfield testified that pulseless electrical activity may be present in a heart
even after it has stopped beating. Tr. 376.
11

2. Duty to prevent accidents

A facility must ensure that each resident receives adequate supervision and assistance
devices to prevent accidents. 42 C.F.R. § 483.25(h)(2). While “a facility is not required
to do the impossible or be a guarantor against unforeseeable occurrence, . . . it is required
to do everything in its power to prevent accidents.” Koester Pavilion, DAB No. 1750, at
24 (2000).

Petitioner admits that it allowed R1 to walk outdoors at will without detection or
supervision. Petitioner claims that R1 was given a room near an exit door and the
security code to unlock the door so that he could exit the facility whenever he wanted to
without triggering an alarm. Tr. 468, 528, 582. Petitioner also acknowledged that the
exit door closest to R1’s room, from which Petitioner suspects R1 exited, did not allow
reentry from the outside. Tr. 502. There was no keypad on the outside of the building,
and the only way to open the door was by punching the code on the keypad inside the
building. Tr. 42, 474.

Petitioner argues that R1 was alert and oriented, and that his MMSE score prevented
facility staff from restricting him from leaving the facility at anytime. Regardless of
whether R1 was alert and oriented or even if he could not be kept from leaving the
facility, Petitioner had a duty to protect him and to adequately supervise him. The
facility’s policy on elopement and the statements of its own staff belie any argument that
the facility thought that it was reasonable to allow R1 to go outside the facility alone
anytime he desired. The facility’s policy titled Elopements and Wandering Residents
defines elopement as “the unplanned, unauthorized leaving of the facility by a resident.”
CMS Ex. 4, at 3. The policy recognizes that “[u]nsupervised activity outside the facility
could lead to serious injury of a resident due to the many hazards such as traffic, water,
storms and hot/cold temperatures.” Jd. Staff members told surveyors that residents were
not allowed: to exit the facility unsupervised (CMS Ex. 3, at 9, 30, LPN Barrows); P. Ex.
35, at 15, LPN Barrows); to be outside of the facility at 10:00 p.m (CMS Ex. 3, at 8, LPN
Rhoder); to smoke on the porch near R1’s room (CMS Ex. 3, at 27, LPN Thompson). No
staff member stated that R1 was or should have been allowed to come and go freely that
late at night. As R1’s treating physician noted, “I’m not surprised he died, I was
surprised he was outside.” CMS Ex. 3, at 34. The only person to assert the position that
this was not an elopement was the facility Administrator. CMS Ex. 3, at 31.

I find the Administrator’s testimony disingenuous and irrelevant. Petitioner argues that
because R1 was free to come and go as he pleased, he did not elope. Assuming that R1’s
exit was not an elopement because the facility allowed him to leave, Petitioner was still
required to supervise him. Even for a resident who is lucid and alert and has freedom to
leave the facility, the freedom cannot be exercised unchecked. The facility should know
where the resident is going and when to expect him back. One reason for this is that a
resident may need to take scheduled medications. For R1, he was supposed to be on
12

oxygen. Another reason is that the time of day may affect dangers posed to a resident.
R1 was leaving at a late hour in the dark. Another reason to require some supervisory
check is that residents may not be dressed properly for the weather and activity. If R1
had been required to sign out at a register, facility staff would not have allowed him to
leave the facility dressed as he was. R1 had also been assessed to be at a high risk for
falls, which may have prompted staff to have him use an exit door without stairs or other
obstacles.

Petitioner presented no evidence that it used a register or any other system to track when
people exited or entered the facility. The fact that many of the doors, particularly the one
from which R1 is believed to have exited, did not allow reentry into the building is
especially disturbing. If R1 had, as Petitioner speculates, exited the building in a panic to
relieve COPD symptoms and decided to go back inside, he would have needed to walk
around to the front of the facility, nearly naked, to get back in. As Surveyor Parker
testified, the area outside the facility presented hazards such as steps, stairs, and a busy
parking lot. Tr. 55-56.

Regardless of the amount of freedom Petitioner gave R1, the facility was required to
supervise him and to have a reasonable accounting of his whereabouts.

CMS argues that Petitioner had many doors and alarms that did not work properly. CMS
Br. at 8. Many staff members noted that some doors did not close and lock completely.
When some doors were opened and allowed to close slowly, they got stuck in the door
rame which prevented the magnetic locks from engaging. Staff stated that some alarms
did not sound when they should.'* Petitioner attempts to rebut these arguments by
claiming that surveyors and its own facility staff members did not understand the alarm
systems.

Petitioner’s claim does not help its case. First, whether or not the doors or alarms
unctioned properly is of minimal relevance to the facility’s supervision of R1. If he had
the keypad code, as Petitioner asserts, an alarm would not have sounded when he exited

' Donna Gordon and Derinda Whatley told surveyors that a button at the nurses
station could be used, as it was on February 12, 2007, to disable (silence) the alarm on
Hall Two exit doors. CMS Ex. 3, at 39, 41. CNA Robbie Flowers, CNA Whatley, and
CNA Burks told surveyors they were aware of staff silencing alarms so that they could
enter and exit through the doors. CMS Ex. 3, at 16, 41, 43. Activity Director Debra
Inabinette said that she was aware of rugs being used to prop exit doors open. CMS Ex.
3, at 47. Petitioner did not call these individuals as witnesses, so I may infer that they
had no intention of recanting their remarks.
13

the building.'* The staff expected door alarms to be effective tools to help monitor
residents. CMS Ex. 3, at 28 (LPN Rhoder).

Second, claiming that alarms worked properly but that staff did not understand the alarm
systems does not show that the alarms were useful to staff for monitoring residents. Staff
gave many conflicting accounts to surveyors of whether the door alarms worked in
general or on the night of February 12. CMS Ex. 3, at 16 (CNA Robbie Flores), 22
(Maintenance Staff, Batchelor), 27 (LPN Thompson), 39 (CNA Gordon), 41 (CNA
Whately). Petitioner asserts that these staff members did not understand that entering a
keypad code would silence the alarms. Staff members did not know which doors staff
were allowed to use. CMS Ex. 3, at 16 (LPN Robbie Flowers, a staff member uses the
2E door), 23 (LPN Brown, staff are supposed to use the front door or door by break
room), 37 (CNA Johnston, CNAs do not use the Two Hall East door at all). There were
accounts that staff turned off one of the alarm systems for various reasons and that staff
occasionally propped doors open with rugs. CMS Ex. 3, at 47; Tr. 199. Staff members’
accounts show systemic failures by the facility to supervise residents and to educate its
staff on how the alarms function and how to use them to monitor residents.

Petitioner should have had a system in place to ensure that staff detected R1’s exiting the
facility, and it should have recognized this as a systemic failure and corrected it after
R1’s death. The facility has not proven that it was required to post the keypad codes,'*
but if it were, it should have had other systems in place in addition to door alarms to
prevent elopements.

CMS established a prima facie case that Petitioner failed to ensure that each resident
receives adequate supervision and assistance devices to prevent accidents. Petitioner has
not overcome that showing by a preponderance of the evidence.

3. Development of comprehensive care plans

Facilities must develop a comprehensive care plan for each resident that includes
measurable objectives and timetables to meet a resident’s medical, nursing, and mental
and psychosocial needs identified in the comprehensive assessment and that describes the
services to be provided to the resident. A facility must ensure that the services provided

“ The facility posted the keypad code in the front lobby, so all residents had
access to the keypad code, except maybe the residents on the Alzheimer’s Unit. Tr. 468-
69, 472-74, 603-05. Any resident who entered the keypad code could exit the facility
without triggering an alarm. Tr. 528, 582.

'S In fact, Administrator Welch testified that Petitioner stopped posting keypad
codes inside the facility. Tr. 549. Petitioner never asserts that it violated the LSC by
doing so.
14

or arranged by the facility are provided by qualified persons in accordance with each
resident’s written plan of care. 42 C.F.R. § 483.20(k)(3)(ii).

R1’s care plan indicated that R1 required assistance with Activities of Daily Living
(ADLs), and listed 19 approaches, including assist/prompt to toilet. R1’s care plan
provided several approaches to his potential for elopement, including alarm system in
place, check functioning per schedule, ambulate with resident, and assist resident to
bathroom. P. Ex. 1, at 76.

Petitioner argues that what CMS refers to as R1’s care plan was actually only a generic
temporary care plan used for all new residents and that consequently it could not be held
to the same standard as an individualized care plan envisioned by the regulations.
Petitioner further argues that “many of the approaches in the temporary care plan make
no sense as applied to [R1] individually,” such as elopement. P. Br. at 28.

However, facility staff wrote notations on several pages of the care plan, tailoring parts of
itto R1’s needs. P. Ex. 1, at 64, 66, 71, 74, 75. For the facility to assert now that staff
were not expected to follow temporary care plans is nonsensical. Moreover, at the
hearing, Administrator Welch agreed that Petitioner’s staff was obliged to effectuate the
resident’s care-planned interventions for elopement-related risks of harm. Tr. 574-75.

The care plan’s interventions were useless if, as Petitioner asserts, it purposefully allowed
R1 to walk outdoors without supervision. Petitioner never reconciled its care-planned
use of door alarms to monitor R1’s whereabouts with the freedom given him to possess
and use keypad codes.

I find that the facility was not in substantial compliance with the requirement to develop a
comprehensive care plan for each resident.

CMS established a prima facie case that Petitioner failed to comply with the provisions at
42 C.F.R. § 483.20(k)(3)(ii) regarding care plans. Petitioner has not overcome that
showing by a preponderance of the evidence.

4. Effective administration

Facilities must be administered in an effective manner that promotes its residents’ highest
practicable levels of physical well-being. 42 C.F.R. § 483.75.

Petitioner did not recognize that allowing residents to possess keypad codes would render
one of its systems for preventing elopements and otherwise monitoring residents
ineffective.
15

The fact that no corrective measures had been taken as a result of R1’s exit from the
facility by the time of the first survey would support a finding that the facility was not
administered effectively. During the first survey, Administrator Welch told surveyors
she had not initiated any in-services in response to R1’s exit. CMS Ex. 1, at 28.

CMS established a prima facie case that Petitioner failed to comply with the provisions of
42 C.F.R. § 483.75. Petitioner has not overcome that showing by a preponderance of the
evidence.

B. CMS’s determination that the facility’s deficiencies posed immediate jeopardy
to residents is not clearly erroneous.

Immediate jeopardy means a situation where 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 (emphasis added). CMS’s determination as to the level of a facility’s
noncompliance, including immediate jeopardy, must be upheld unless it is “clearly
erroneous.” 42 C.F.R. § 498.60(c). The Board has held repeatedly that the “clearly
erroneous” standard places a “heavy burden” on facilities to show that immediate
jeopardy did not exist, and it has sustained determinations of immediate jeopardy where
CMS presented evidence “from which ‘[o]ne could reasonably conclude’ that immediate
jeopardy exists.” Barbourville Nursing Home, DAB No. 1962, at 11 (2005) (citing
Florence Park Care Center, DAB No. 1931, at 27-28 (2004) (quoting Koester Pavilion,
DAB No. 1750)).

Here, the evidence shows that R1 exited the facility late at night, undetected by staff, and
was discovered lying nearly naked in a pool of blood in the parking lot, not by facility
staff but by a visitor. P. Ex. 17 (Foster Decl.). Petitioner failed to anticipate, plan for,
and prevent the very foreseeable risk that residents might exit the facility undetected,
which created a situation that was likely to cause serious injury or death to a resident.
Petitioner’s own elopement policy made clear that unsupervised activity outside the
acility could lead to a resident being seriously injured.

This failure posed particularly foreseeable risks to R1 given his practice of coming and
going from the facility at will, his episodes of mild confusion, and the fact that on the
night of his death, approximately two hours before he was found dead, he had been given
a powerful sleeping pill. Moreover, R1 had been assessed as being at a high risk for falls;
the terrain outside the facility would be especially dangerous for someone like R1.

Petitioner’s violation of 42 C.F.R. § 483.25(h)(2) alone would justify a finding of
immediate jeopardy, but it also failed to report the incident to the State Agency or to
acknowledge that it had any obligation to do so, and it disregarded R1’s care plan.
CMS’s finding that the facility’s deficiencies posed immediate jeopardy to resident safety
16

was not “clearly erroneous.” Moreover, Petitioner has not met its burden of showing that
CMS’s finding of immediate jeopardy is clearly erroneous.

C. The amount of the CMP — $5000 per day from February 12 through
February 27, 2007, and $100 per day from February 28 through March 20,
2007 — and the duration of the CMP are reasonable, and CMS is authorized
to impose a DPNA.

Regulatory criteria provide guidance for determining whether a CMP is reasonable. The
criteria include: the seriousness of a facility’s noncompliance; its history of
noncompliance; its financial condition; and its degree of culpability, including neglect,
indifference, or disregard for resident care, comfort or safety. 42 C.F.R. §§ 488.438(f),
488.404 (incorporated by reference).

CMS has imposed a $5000 per day CMP for the period of immediate jeopardy, which is
in the low to mid-range of immediate jeopardy penalties ($3050 to $10,000 per day). It
imposed a $100 per day CMP for the remaining days of noncompliance, which is at the
low end of permissible penalties for non-immediate jeopardy level deficiencies ($50 to
$3000 per day). 42 C.F.R. § 488.438(a)(1). Facilities bear the burden of proving any
claim that they achieved substantial compliance on a date earlier than that determined by
CMS. The Windsor Place, DAB No. 2209 (2008) (citing Kenton Healthcare, DAB No.
2186 (2008)).

I find that an immediate jeopardy level penalty from February 12 through February 27,
2007, of $5000 per day is reasonable applying the regulatory factors. A resident exited
the facility undetected, during the night, in the cold, wearing only a t-shirt and socks.
Petitioner is highly culpable for its conscious decision to let R1 freely come and go from
the facility at anytime without notifying staff and without supervision. This practice
exposed R1 to grave danger. He exited the facility late at night, at a time when he was
more exposed to injury, and it was more difficult for him to summon help. Petitioner’s
culpability is heightened by its response to R1’s death: it did not change any of its
policies, even though the risk of residents exiting the facility undetected (when a keypad
code is used alarms do not sound) was known. The seriousness of the noncompliance,
which arguably contributed to R1’s injuries and possibly death, and Petitioner’s
culpability justify a penalty of $5000 per day.'®

‘© CMS insinuates that the anonymous tip that sparked the complaint investigation
suggests that the facility may have been trying to conceal the circumstances surrounding
R1’s death. I make no findings as to whether Petitioner deliberately attempted to conceal
the circumstances, but if such attempts to deceive were proven, a much higher penalty
would be justified.
17

During the revisit survey, concluded on March 7, 2007, Petitioner was found to be out of
compliance with 42 C.F.R. § 483.13 because it had in-serviced staff with information that
was, in part, outdated. CMS Ex. 9, at 1-5. To prove that it had in-serviced staff with
correct information, it sent the material it used to train staff to the State Agency. One of
the forms submitted was dated 2001. The State Agency immediately notified the facility
that the form was outdated and had been replaced in 2005. On March 1, 2007, the State
Agency faxed the correct form to the facility. CMS Ex. 9, at 3; Tr. 211-12; see CMS Ex.
10, at 11-12. During the revisit survey, the facility presented the outdated form as part of
its training material.

Petitioner argues that it inadvertently submitted the outdated training form to the State
Agency but that it actually used the new form in the training. With no evidence other
than the Administrator’s testimony at the hearing, I reject Petitioner’s argument and
uphold the duration of the CMP. The difference in the forms is critical to Petitioner’s
noncompliance — the new form emphasizes and clarifies facilities’ obligation to report
injuries of unknown origin. After the facility was found to remain out of substantial
compliance with 42 C.F.R. § 483.13(c) on March 7, it submitted a plan of correction and
requested a revisit. Petitioner alleged that it conducted an in-service with the new form
on March 21, 2007, which is the date it was found to have returned to substantial
compliance.'”

CMS is authorized to deny payment for new Medicare admissions for the 24 days that ran
from February 25 through March 20, 2007. CMS has the discretion to deny a facility
payment for new Medicare admissions anytime the facility is not complying substantially
with Medicare participation requirements. 42 C.F.R. § 488.417(a). Here, the DPNA is
justified because Petitioner was not in substantial compliance with Medicare participation
requirements during the 24-day period.

State agencies are required to withdraw a facility’s authority to conduct a Nurse Aide
Training and Competency Evaluation Program (NATCEP) for a period of two years
when CMS imposes a CMP over $5000 or when CMS imposes a DPNA. 42 C.F.R.
§§ 483.151(b)(2), (e)(1). Here, both situations occurred. Thus, withdrawal of
Petitioner’s authority to conduct a NATCEP is required.

" During the hearing, Administrator Welch made reference to Petitioner’s
installation of door lock keypads outside the facility, which occurred on February 21-22,
2007. Tr. 503, 547-49; see also P. Ex. 5. She also mentioned that the facility changed its
keypad codes and no longer posted keypad codes in the lobby, but did not mention when
this was done. Tr. 549.
18

V. Conclusion

I conclude that CMS correctly determined that Petitioner was not complying with federal
requirements governing participation of long-term facilities in Medicare and state
Medicaid programs from February 12 through March 20, 2007. Petitioner’s
noncompliance was at the immediate jeopardy level from February 12 through February
27, 2007, and the imposition of a $5000 per day CMP is reasonable. I also sustain the
CMP of $100 per day from February 28 through March 20, 2007.

/s/
José A. Anglada
Administrative Law Judge