Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD

Civil Remedies Division

In the Case of: )
)
Hillcrest Healthcare Center, ) Date: March 19, 2007

)

Petitioner, ) Docket Nos. C-01-754

) C-01-814

-Vv.- ) Decision No. CR1579
)
Centers for Medicare & Medicaid )
Services. )
)

DECISION

Hillcrest Healthcare Center (Hillcrest) is an intermediate care facility located in Joliet,
Illinois that is certified to participate in the Medicare and Medicaid programs as a
provider of services. For reasons set forth below, I conclude that from May 14, 2001
through August 30, 2001, Hillcrest was out of substantial compliance with Medicare
program participation requirements. I find reasonable and affirm the per instance civil
monetary penalty (CMP) in the amount of $10,000, and the denial of payment of new
admissions (DPNA) for residents admitted from May 14, 2001 through August 30, 2001.
However, I do not find reasonable Centers for Medicare & Medicaid’s (CMS) imposition
of a $200 per day CMP from June 6, 2001 through August 30, 2001; rather, I find a $100
per day CMP for that time period to be reasonable.

I. Background
Hillcrest was surveyed for compliance with federal participation requirements by

surveyors employed by the Illinois Department of Public Health (IDPH) on April 19,
2001 (April Survey); June 6, 2001 (June Survey); and August 30, 2001 (August Survey).
2

The April Survey resulted in deficiencies related to participation requirements under 42
C.F.R. §§ 483.25(h)(2) (Quality of Care) at level K; 483.15(a) (Quality of Life) at level
B;' 483.20(k) (Resident Assessment) at level E; 483.45(a)(1) and (2) (Specialized
Rehabilitative Services) at level E; and 483.75 (Administration) at level F. By notice
letters dated May 8, 2001, June 21, 2001, and June 29, 2001, CMS informed Hillcrest that
it would be imposing remedies which included a DPNA as of May 14, 2001, and, based
on the immediate jeopardy finding related to the quality of care deficiency, a $10,000 per
instance CMP.

The June Survey resulted in deficiencies related to participation requirements under 42
C.F.R. §§ 483.20(k) (Resident Assessment), a repeat deficiency at level D, and
483.25(h)(2) (Quality of Care), a repeat deficiency at level G. By notice letters dated
June 29, 2001 and September 20, 2001, CMS advised Hillcrest that it would be imposing
a $200 per day CMP for 91 days, from June 6, 2001 until September 4, 2001,’ when
Hillcrest was determined to have achieved substantial compliance with participation
requirements. Additionally, because Hillcrest was subject to an extended or partial
extended survey as the result of a substandard quality of care finding, CMS prohibited
continued approval of any nurse aide training and competency evaluation program
(NATCEP) for a two-year period beginning April 19, 2001.

Hillcrest requested a hearing by letter dated June 12, 2001, to challenge CMS’s findings
and remedies related to the April Survey. The request was docketed as C-01-754, and
assigned to me for hearing and decision. On July 2, 2001, Hillcrest requested a hearing to
challenge CMS’s adverse actions related to the June Survey. The request was docketed as
C-01-814, and assigned to me for hearing and decision. On September 10, 2001, I
granted CMS’s unopposed motion to consolidate the two cases, which were consolidated
into the record of Docket No. C-01-754.

' Because neither CMS nor Petitioner addressed the deficiency at 42 C.F.R. § 483.15(a),
which was listed in the April Statement of Deficiencies (SOD), I do not include the deficiency in
my discussion and analysis. CMS Ex. 1, at 1-2.

2 As previously noted, Petitioner underwent an August Survey which resulted in a third
SOD. A deficiency related to participation requirement 42 C.F.R. § 483.25 (Quality of Life) was
found, and CMS continued the imposition of the $200 per day CMP from August 31, 2001
through September 4, 2001, when Hillcrest was found to have achieved substantial compliance.
Hillcrest chose not to appeal the August Survey findings and remedy. Therefore, my review is
limited to the findings and subsequent remedies relating to the April Survey and the June Survey
only. I do not address the continuation of the $200 per day CMP through September 4, 2001.
3

The hearing was convened in Chicago, Illinois from January 12-16, 2004, and reconvened
to continue with witness testimony from March 1-4, 2004. During the course of the
hearing, the following exhibits were admitted: CMS exhibits (Exs.) 1-33, 401-423, 600-
622, Supplemental Ex. 1, Supplemental Ex. 2;* and Petitioner’s exhibits (P. Exs.) 1-53,
55-58, 60-62.° Transcript (Tr.) at 21, 26.

During the course of the hearing, CMS proffered CMS Ex. 623 (Tr. at 1187), a three-page
document obtained from the website www.behavenet.com and identified as BehaveNet
Clinical Capsule: DSM-4 and DSM-4TR: Intermittent Explosive Disorder (IED).

Hillcrest objected to the admission of the exhibit on the basis that there is considerable
controversy within the field of psychology considering the legitimacy of the DSM-4 and
DSM-4TR classifications. The parties were advised that I would rule on the admissibility
of CMS Ex. 623 after I had an opportunity to review the complete record in this matter.
Taking into consideration the parties’ arguments, CMS Ex. 623 is admitted into evidence
for the limited purpose of establishing that CMS Ex. 623 confirms the testimony on cross-
examination of CMS’s expert witness Dr. Suzanne Perraud, and not as a document which
is conclusive as to the DSM-4 and DSM-4TR classifications as they relate to issues of
violent behavior diagnosis or prediction.

3 During the course of the hearing, Hillcrest objected to the admission of CMS Ex. 5, to
the extent that it reflects subsequent remedial measures. The objection was overruled and CMS
Ex. 5 was admitted. I note that evidence of subsequent remedial measures is inadmissible to
prove negligence or culpable conduct (Fed. R. Evid. 407), but is not necessarily inadmissible
when offered for other purposes, as long as the evidence is relevant and its probative value
outweighs any danger associated with its admission. See Fairfax Nursing Home, Inc., DAB No.
1794, at 8-9 (2001); Anderson v. Malloy, 700 F.2d 1208 (8" Cir. March 9, 1983); Fed R. Evid.
402, 403.

* Pages 2-22 of CMS Ex. 422 were stricken from the record as they relate to a series of
incident reports for residents whose care is not at issue in either the April Survey or June Survey
findings (Tr. at 15, 19-20). Pages 1 and 2 were stricken from CMS Ex. 613 as they were attached
in error. Additionally, CMS Exs. 800-816 were not admitted as they relate to the August Survey
which, as previously noted, is not part of these proceedings and whose findings and remedies are
not being contested by Petitioner. Tr. at 14, 15. At hearing, CMS did not proffer for admission
into the record exhibits numbered 34-400 and 424-599.

5 P. Ex. 54, an affidavit of a witness who was not available for cross-examination at the
hearing, was withdrawn by Petitioner. Also, P. Ex. 59 was excluded based on my ruling of
January 9, 2004. Tr. at 21, 25-26.
4

Five IDPH surveyors testified for CMS: Susan Pettenger; Daniel Pletcher; Elaine Moore;
Steven Mott; and William Schubert. Also testifying for CMS was expert witness Suzanne
Perraud, R.N., Ph.D.° Hillcrest presented the testimony of ten witnesses: Michael
Mutterer, former Clinical Director; Jeff Kalkowski, former Administrator; Mary
Locicero, registered nurse (R.N.); Llanie Jurilla, former R.N., Ellen Tierney, Director of
Nursing (DON); Jeff Baker, Psychiatric Technician; Najat Williams, former Clinical
Supervisor at time of the surveys and current Clinical Director, Brenna Costello, former
Clinical Director; and expert witnesses Gershon H. Kaplan, M.D. and Maureen Lacy,
PsyD.

The parties were provided with a copy of the certified transcript and no prejudicial errors
were noted. CMS’s post-hearing brief (CMS PHB) was received on July 20, 2004, and its
reply brief was received on November 15, 2004. Petitioner’s PHB (P. PHB) was received
on October 12, 2004. Petitioner’s motion requesting leave to file a sur-reply, dated
January 7, 2005, was denied on January 14, 2005. See Summary of Telephone
Conference: Ruling Denying Petitioner’s Motion and Order Closing Record, issued
January 21, 2005.

This decision is based on the complete record which includes the parties’ arguments,
submissions, all exhibits admitted into the record, and the witness testimony adduced
during the hearing.”

® During the course of the hearing, I qualified Dr. Perraud as an expert in nursing science
based on information proffered that she holds a Ph.D. in nursing science and is a licensed R.N.
Tr. at 1014, 1015, 1017, 1021, 1022, 1034. During the hearing, and again on April 20, 2004,
Petitioner moved that I disqualify Dr. Perraud as a witness and strike her full or partial testimony
from the hearing transcript. I denied Petitioner’s motion to strike Dr. Perraud’s testimony in full
or in part. See Ruling on Motion to Strike Expert Testimony and Order for Post-Hearing
Briefing Schedule, issued May 20, 2004.

7 The transcript for the nine-day hearing totaled 2625 pages. CMS submitted its PHB
totaling 208 pages and a reply brief of 118 pages. Petitioner’s PHB was 94 pages with two
appendixes totaling 18 pages. I note that it was the parties’ responsibility in this proceeding to
provide me with the support for the arguments that they want me to accept. Given this, it was my
expectation that the parties would provide me with not just a detailed “road map” of their
arguments, but a coherent explanation of why - including accurate citations to testimony, case
law, relevant statutory and regulatory references, and any other references the parties were using
to support their arguments. In the submissions of both parties, I found many instances of
incorrect citations to exhibits and the transcript.
5

Preliminary Matters

Before reaching the merits of the dispute, I first address the notice and constitutional
arguments which Hillcrest presented during these proceedings. Hillcrest argues that the
appeal rights contained in the regulation at 42 C.F.R. § 498.3 exceed the scope of the
statutory and regulatory authority of the Secretary of Health and Human Services
(Secretary) and are an unconstitutional infringement on a facility’s substantive and
procedural due process rights. Additionally Hillcrest avers that CMS’s interpretive
guidelines, program letters, and survey and enforcement policies are invalid because they
have not been promulgated pursuant to the Administrative Procedures Act (APA).

While I have the authority to decide how the regulations apply to the facts, however, it is
outside my jurisdiction to decide whether CMS or the Secretary failed to publish a rule in
violation of the APA. In cases involving CMS, my authority is limited to that delegated
to me by the Secretary and as described in 42 C.F.R. §§ 498.3 and 498.5. Although it is
well-settled that I do not have the authority to address any arguments regarding the
constitutionality of the law, Hillcrest’s arguments have been properly preserved for the
record. See Mariner Health Home Care of South West, DAB CR980 (2002), citing
Lauderhill Community Mental Health Center, DAB CR652 (2000); Heart Place Hospital,
L.P., DAB CR1014 (2003); Salvacion Lee, M.D., DAB CR920 (2002), aff'd, DAB No.
1850 (2002); and Sentinel Medical Laboratories, Inc., DAB No. 1762, at 9 (2001).

Lastly, I address Hillcrest’s assertion that certain of CMS’s allegations are improper and
should be barred from consideration since they were not specifically listed in the SODs
and were raised by CMS for the first time at hearing and/or in its PHB. P. PHB at A-1
through A-14. Hillcrest pointed to no authority for its view that CMS is strictly
constrained by the allegations in the SODs, and decisions from appellate panels of the
Departmental Appeals Board (Board) have held to the contrary. In Pacific Regency
Arvin, the Board found prejudicial error when an administrative law judge (ALJ)
appeared to treat the SOD as rigidly framing the scope of admissible evidence concerning
any allegation relating to a cited deficiency and required formal amendment of the SOD
as a prerequisite to allowing any additional supporting evidence:

The [SOD] is a notice document, and is not designed to lay out every single
detail in support of a finding that a violation has been committed. If the
opposite were the case, there would not be much of a need for an exchange
of documents or, for that matter, a hearing. This approach is consistent with
the intention of the regulations governing surveys as embodied in this
exchange from the preamble to the regulations —
6

Some commentators further suggested that the facility should
be provided with full information that supports each citation
and the survey agency’s decisions including the underlying
reason, basis or rationale for the findings of noncompliance
with a regulatory requirement.

Response: We are not accepting this suggestion because we
believe that the Statement of Deficiencies and Plan of
Correction (HCFA-2567) provides facilities with the specific
information necessary to formulate an acceptable plan of
correction. To include such detailed information regarding
deficiencies in the notice of noncompliance would be
duplicative and administratively burdensome. 59 Fed. Reg.
56,116, at 56, 155 [November 10, 2004].

Pacific Regency Arvin, DAB No. 1823, at 9-10 (2002).

In applying the Board’s logic in Pacific Regency Arvin, I find that here, CMS has not
added any new deficiency findings. Rather, CMS merely refers to further evidence which
supports the conclusions in the SOD. See also Northern Montana Care Center, DAB No.
1930, at 26 (2004) (“The statement of deficiencies does not rigidly frame the scope of
evidence to be admitted concerning any allegation relating to a cited deficiency, nor does
it require formal amendment to allow additional supporting evidence.”) I find that CMS’s
prehearing filings provided Hillcrest with ample notice of the issues and deficiencies in
this case. Therefore, Hillcrest’s assertion of inadequate notice fails.

II. Issues

The issues in this case are whether a sufficient basis existed for CMS to impose its
remedies for the April Survey and June Survey and, if so, are they reasonable.

III. Applicable Law

Long-term care providers, such as Hillcrest, participate in the Medicare program by
entering into provider agreements with the United States Department of Health and
Human Services (HHS). Requirements of participation are imposed by statute and
regulation. Social Security Act (Act), §§ 1819, 1919; 42 C.F.R. Parts 483, 488, and 489.
In order to continue participation in the Medicare program, providers must remain in
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.
7

If a facility is not in substantial compliance with program requirements, CMS has the
authority to impose one or more of the enforcement remedies listed in 42 C.F.R.

§ 488.406, which include imposing a CMP. Act § 1819(h). CMS may impose a CMP for
the number of days that the facility is not in substantial compliance with one or more
program requirements or for each instance that a facility is not in substantial compliance.
42 CFR. §§ 488.430(a), 488.440.

The regulations specify that a per day CMP imposed against a provider will fall into one
of two broad ranges of penalties. 42 C.F.R. §§ 488.408, 488.438. The upper range of
CMPs, from $3,050 per day to $10,000 per day, is reserved for deficiencies that constitute
immediate jeopardy to a facility’s residents, and, in some circumstances, for repeated
deficiencies. 42 C.F.R. §§ 488.438(a)(1)(i), (d)(2). The lower range of CMPs, from $50
per day to $3,000 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)(ii). There is
only a single range of $1,000 to $10,000 for a per-instance CMP, which applies whether
or not immediate jeopardy is present. See 42 C.F.R. § 488.438(a)(2). An ALJ may not
reduce a penalty to zero if the ALJ finds a basis for imposing a CMP exists. 42 C.F.R.

§ 488.438(e).

IV. Burden of Proof

When a penalty is imposed and appealed, CMS must establish a prima facie case that the
facility was not in substantial compliance with federal participation requirements. To
prevail, the facility must overcome CMS’s showing by a preponderance of the evidence.‘
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 Rehabilitation Center v. HHS, No. 98-3789 (GEB), slip op. at 25 (D.N.J. May
13, 1999). I adopt the burden as set forth in the Board’s decision in the Hillman case, and
as stated and discussed in detail in the Batavia Nursing and Convalescent Center and

5 By motion filed September 15, 2003, Hillcrest moved for an order stating that CMS had
the burden of going forward and the burden of persuasion at the hearing for all issues except for
affirmative defenses and mitigation circumstances asserted by Hillcrest. By an earlier order
issued March 25, 2003, I had ruled that the burden of proof would be allocated pursuant to
Hillman Rehabilitation Center, DAB No. 1611 (1997), aff'd Hillman Rehabilitation Center v.
HHS, No. 98-3789 (GEB), slip op. at 25 (D.N.J. May 13, 1999). And, by order issued January
22, 2004, I directed Hillcrest to reassert its burden of proof argument in its PHB, which it did. P.
PHB at 3-5. I have sufficiently addressed Hillcrest’s argument in my ruling and orders of March
25, 2003 and January 22, 2004, and do not need to repeat my ruling here. However, I note that
Hillcrest has properly preserved its argument for the record.
8

Batavia Nursing and Convalescent Inn cases. Batavia Nursing and Convalescent Center,
DAB No. 1904 (2004); and Batavia Nursing and Convalescent Inn, DAB No. 1911
(2004).

V. Findings of fact and conclusions of law

I make findings of fact and conclusions of law (Findings) to support my decision in this
case. However, I do not make a Finding on every deficiency in controversy during these
proceedings. Specifically, I discuss only those deficiency citations that have been
assessed to support the noncompliance and the remedies imposed.”

The Board has previously approved an ALJ’s discretion to exercise judicial economy and
not discuss every alleged deficiency. Beechwood Sanitarium, DAB No. 1824 (2002), at
22; Beechwood Sanitarium, DAB No. 1906 (2004). Substantial noncompliance with only
one participation requirement can support the imposition of a penalty. Beechwood
Sanitarium, DAB No. 1824. My analysis and Findings are first presented for the April
Survey followed by the Findings for the June Survey.

VI. April Survey
Incident Which Precipitated the April Survey

The April Survey was conducted after IDPH received two complaints relating to a
homicide of a private citizen on March 22, 2001 by several residents of Hillcrest. CMS
Ex. 1, at 1. A subsequent police investigation revealed that two residents of Hillcrest, R4
and R5, committed crimes of home invasion, robbery, and homicide at an apartment
complex four miles from Hillcrest. CMS Ex. 414.!°

° Inote that for deficiency tag F490, Administration, the April SOD alleges citations
concerning Residents (R)39, R40, and R41. CMS Ex. 1, at 22, 24-25. However, CMS did not
present evidence to support these allegations either at hearing or in its post-hearing submissions.
Although I do not address these allegations in my discussion, the unsupported allegations relative
to R39, R40, and R41 have been factored into my review, as appropriate, concerning the
reasonableness of the penalties imposed by CMS.

© CMS Ex. 414 consists of the Joliet Illinois Police report dated March 23, 2001. The
exhibit includes interviews with residents R3 and R6 on March 23, 2001; the Grand Jury
Indictment; and the conviction document for R4.
9

A chronology of the events which occurred on March 22, 2001 reveals that R4, R5, and
R6 signed out of Hillcrest at 9:10 a.m. CMS Exs. 402, at 69; 403, at 48; 404, at 57. Each
resident indicated on his sign-out sheet that he was going to the store. Jd. R4, R5, and R6
then proceeded to drive around in a car R3 kept at the facility. CMS Ex. 414, at 8, 12; P.
PHB at A-1. That afternoon, R4, R5, and R6 returned to pick up R3, who had signed out
of the facility at 1:30 p.m. indicating that she would be going to the store and mall. CMS
Exs. 401, at 61; 414 at 8, 15. All four residents then proceeded to drink while driving
throughout the Joliet, Illinois area. CMS Ex. 414, at 8-9, 12-13. According to the police
report, R4 stated to the other residents in the car that he knew where a party was being
held and the four residents then proceeded to drive to the crime scene apartment where
R4 and RS left R3 and R6 in the car. Jd. R4 and RS entered one of the units, robbed the
tenant and then murdered him. Jd. They returned to R3’s car, carrying compact discs,
placed the compact discs in the car trunk and returned to the apartment subsequently
retrieving more compact discs and a toolbox. Jd. Once in the vehicle, R4 and R5S
informed R3 and R6 what had occurred inside the apartment. Jd. at 9. All four residents
then drove for a while, stopped at a forest reserve to drink beer and then returned to
Hillcrest. Jd. Upon their return, R4 attempted to sign all four residents back in, but
Hillcrest staff went out to the parking lot to locate the other residents. CMS Ex. 410, at 6.
According to the facility sign-in sheets, all four residents returned to Hillcrest sometime
between 9:45-9:55 p.m. that evening. CMS Exs. 401, at 61; 402, at 69; 403, at 48; and
404, at 57.

Once at the facility, Hillcrest staff observed that R4 had “bloody knuckles, and his pants
were covered in blood from approximately halfway down from his knees including
bloody hand-prints.” CMS Ex. 414, at 9. That evening, R4 subsequently became
involved in a verbal altercation at Hillcrest with another resident. CMS Ex. 402, at 73.
He was unresponsive to staff redirection and continued to verbalize threatening words to
peers. Jd. R5 was reported to have admitted to drinking and was noted to have a scratch
on his forehead and a cut on his chest. CMS Ex. 414, at 13, 16. The former
Administrator for Hillcrest, Jeff Kalkowski, testified that he was informed by staff that
evening that the four residents “appeared to be drunk and out of their usual selves for the
most part.” Tr. at 1357.

R4 and RS presented several different explanations to various staff at Hillcrest to justify
their injuries. R4 first indicated that he had run into a brick wall, but then stated that he
had been in a bar fight, only to report later that he had tripped and fallen on the ground.

CMS Exs. 410, at 6; 408, at 7, 8; 411, at 5, 12. R5 claimed that his injuries were due to
both he and R4 goofing around in a fighting manner. CMS 411, at 13.
10

On the evening of March 22, R4 left Hillcrest after he heard from staff that the police had
been called. CMS Ex. 414, at 9-10. R4 and R5 were subsequently arrested, charged and
indicted for the homicide and robbery. CMS Ex. 414, at 20-25. R4 pled guilty to first
degree murder and was sentenced to 45 years in the Illinois Department of Corrections.
Id, at 36-37. R5 later also pled guilty to the charges.'! On March 23, 2001, both R3 and
R6 were transferred to hospitals as a result of a “change in mood due to a traumatic event
of the past 24 hours.” CMS Exs. 401, at 65-66; 404, at 62-63.

Neither party disputes the aforementioned events which are mentioned here in order to lay
the foundation for the complaint that gave rise to the April Survey and subsequent
findings.'? However, where the parties do disagree is whether: (1) residents’ care plans
were individualized and behavior triggers were identified in their care plans; (2)
residents’ use of day passes were properly monitored; and (3) there were contra-
indications exhibited by these four residents that should have prompted Hillcrest staff to
revoke their daily passes prior to and on March 22, 2001.

A. Hillcrest was out of substantial compliance with the participation
requirement at 42 C.F.R. § 483.20(k) - (tag F279, Resident Assessment).

The regulation at section 483.20(k) requires a facility to develop comprehensive care
plans including measurable objectives and timetables to meet medical, nursing, and
mental and psycho-social needs as identified in the comprehensive assessment. The care
plan must describe services furnished to residents in order to attain and maintain their
highest practicable physical, mental, and psycho-social well-being. 42 C.F.R.

§ 483.20(k)(1)(i).

There is no dispute that Hillcrest created care plans for R4, R5, and R6 upon their
admission. However, CMS challenges the adequacy of the care plans. CMS asserts that
the care plans Hillcrest developed for R4, R5, and R6 were vague and were not
individualized, and they did not detail the specific signs, symptoms, or triggers for certain

"' At the time of the hearing, R5 was awaiting trial on the charges.

Hillcrest raised objections throughout the proceedings in this matter to any evidence of
the homicide being admitted. However, Hillcrest’s objections were overruled as I found that the
probative value of the evidence outweighs any potential for prejudice to Hillcrest. See Summary
of Prehearing Telephone Conferences; Rulings; and Order, issued January 22, 2004. I note that
Hillcrest’s argument has been properly preserved for the record.

'. Tag F279 was cited as an E-level deficiency indicating there was a pattern that
presented no actual harm but had the potential for more than minimal harm that did not amount
to immediate jeopardy. See State Operations Manual § 7400E.
11

of the residents’ behaviors. CMS PHB at 19-38. The April SOD recites eight pages of
findings by IDPH surveyors alleging that the care plans did not meet R4, R5, and R6’s
individual needs as their care plans did not appropriately address their violent behaviors,
depression, social and coping skills, and problems with medication compliance. CMS Ex.
1, at 2-10.

Hillcrest contends that R4’s, R5’s, and R6’s care plans do address their individual needs
and _ specifically warn against their criminal, self-injurious and substance abuse
behaviors, and instruct staff on how to avoid and cope with these problems. P. PHB at
65. Hillcrest, however, asserts that a care plan cannot list every possible approach, sign,
symptom, cause, or trigger for a resident’s behavior; otherwise, the care plan would be
too cumbersome. Jd. at 66. In explaining Hillcrest’s view of the development of resident
care plans, former Clinical Director Brenna Costello testified that “[t]ypically the initial
care plan is a more broad general care plan,” and it is later “individualized based on the
problem areas that we do know are currently at issue for that resident.” Tr. at 2096, 2098.
Hillcrest contends that because none of the three residents at issue were at Hillcrest for
90 days, “none of these residents’ preliminary care plans received their first quarterly
update at the time they were surveyed and therefore may have appeared as rather general
and nonspecific.” P. PHB at 15.

I find Hillcrest’s position regarding its “preliminary” care plan development flawed. The
regulatory language is clear when it states that the facility must develop a
“comprehensive” care plan. A facility is required to develop the initial comprehensive
care plan no later than seven days after it completes the resident’s comprehensive
assessment and not later than 14 calendar days after the resident has been admitted. 42
C.F.R. § 483.20(k)(2)(i). Additionally, the facility must review and revise the care plan
after each further assessment of the resident at least every three months and no later than
14 days after any significant change in a resident’s condition. 42 C.F.R. § 483.20(k)(2)(i)
- (iii). Therefore, a care plan that is a “general guideline for treatment” and that “outlines
general problem areas . . . and treatment approaches” does not meet the individual needs
of a resident, nor does it comply with the requirements of the regulation that a care plan
be developed for each resident which addresses all of that resident’s needs. P. PHB at 14;
Tr. at 2038, 2039.

Hillcrest argues that it is erroneous for CMS to use residents’ pre-admission histories to
question the facility’s preliminary care planning.'* According to Hillcrest, R4, R5, and

'4 CMS provides a detailed discussion of the histories of R3, R4, R5, and R6 prior to
their admission to Hillcrest. The information is referenced in this decision only to the extent that
is necessary to discuss whether the behaviors at issue should have been identified and addressed
in the residents’ care plans or whether the care plans were sufficiently comprehensive. CMS
12

R6 did not re-manifest any of their previous extreme behaviors during their stay at
Hillcrest, and, therefore, it was not necessary to have listed them in their preliminary care
plans.'> P. PHB at 14.

Hillcrest is mistaken in its view that it cannot consider pre-admission histories of
residents in providing care for them. Also, its contention that the pre-admission
behaviors were irrelevant and that there was no harm in excluding them from the care
plans as its staff would be able to recognize the behaviors even if they were not care
planned is flawed. P. PHB at 62, 65-66. I find that the pre-admission histories of R4, R5,
and R6, particularly the history of aggressive and assaultive behaviors, are relevant in
determining whether the facility has provided adequate supervision. See Vandalia Park,
DAB No. 1940, at 17-19 (2004) (facility was cited under tag F324 for its failure to
properly supervise residents with troubled backgrounds). With 163 residents placed at
Hillcrest during the time period at issue, it is hard to imagine that Hillcrest could
presuppose that all of its staff would be intimate with the records of each of the residents
and their behaviors, medical conditions, and needs. The regulation at section 483.20
requires that resident assessments and care plans be written, comprehensive, accurate,
standardized, and reproducible given that residents are transferred, there is staff turnover,
and the memory of past services provided to individual residents can fade.

Additionally, Hillcrest is misguided when it attempts to defend its position that
preliminary care plans are general by nature and that it must wait until residents “exhibit
their individualized behavioral manifestations over the course of their first quarter at the
facility” before it will reflect those behaviors in the care plan. P. PHB at 15, n.1.
Hillcrest is required to address its residents’ known problems in their initial care plans
and not wait for the residents to exhibit the problems at the facility. The care plan serves
as a road-map to staff in guiding them as to the needs of the residents they are responsible
for and to assist them in implementing appropriate clinical and treatment methodologies
to meet the residents’ individual needs as identified in their assessments.

PHB at 8-16.

'S R4 was admitted to Hillcrest on February 8, 2001; R5 on March 1, 2001; R6 on
February 15, 2001; and all three residents were discharged on March 23, 2001. I note that none
of these residents had received their first quarter update at the time Hillcrest was surveyed in
April 2001.
13

Below, I outline my specific findings and conclusions related to R4’s, R5’s, and R6’s care
plans. However, as previously mentioned, it is not necessary that I address each of the
survey findings listed by IDPH surveyors in the eight pages of the April SOD. Based
upon the record in this case and the parties’ arguments, I conclude that IDPH surveyors
appropriately found that Hillcrest was out of substantial compliance with the participation
requirement at 42 C.F.R. § 483.20(k) for the reasons addressed below.

1. R4’s care plan

Hillcrest states that listing every sign, symptom and trigger of behavior in a care plan
could cause staff to focus heavily on one specific problem at the expense of others. P.
PHB at 16. Rather, according to the testimony of former Clinical Director Costello at
hearing, specific signs, symptoms, and triggers are documented in social service and
nursing notes, and that “[i]n the social service notes, the counseling sessions indicate
what specific behaviors, interventions, treatment approaches were used with a specific
resident.” Tr. at 2040.

On the subject of the practical application of Hillcrest’s position on generalized care plans
and the expectation that staff rely on clinical notations in place of a comprehensive care
plan, at hearing, former Clinical Director Costello was questioned regarding R4’s noted
difficulty in decision making, specifically the provision in R4’s care plan under
“Alteration of Thought Process” (CMS Ex. 402, at 56). Ms. Costello was asked what the
provision was meant to address and what decisions R4 had difficulty making. She
responded:

A I would assume that based on the previous line that there’s a problem
with short-term memory and attention deficit, that he may have had
some impulsivity and some difficulty in stressful situations.

Q BY COUNSEL FOR CMS: But in particular what types of decisions
do you think he would have difficulty making based on this
provision?

A Well, I can’t suppose what kind of decision he would have had
trouble making.

* KOK
14

Q ... You can’t tell from that care plan provision whether he has
difficulty deciding which socks to wear in the morning or whether he
has difficulty deciding not to hit people, can you?

A No.
Tr. at 2114-15.

Additionally, the provision in R4’s care plan relating to his difficulty in making decisions
identifies as a goal that R4 “[w]ill have no decrease in level of consciousness or
functional level,” and instructs staff to “assess change in level of consciousness.” CMS
Ex. 402, at 56. However, the care plan does not identify for staff how the assessment of
consciousness was to be done. At hearing, Ms. Ellen Tierney, DON at Hillcrest who
supervised the preparation of care plans, acknowledged that she would have reviewed
R4’s record from the transferring hospital before his care plan was prepared. She testified
that:

Q BY COUNSEL FOR CMS: So any problems that were noted in his
records from the transferring hospital you would have known about?

A Yes.

Q And you would have made sure that they were specifically addressed
in his care plan?

A And they were.
Tr. at 1735.
However, when asked to look at the entry on R4’s care plan under the section of
“Potential for criminal behavior” in order to describe what type of criminal behavior R4

was potentially capable of, DON Tierney testified:

A I would have to go back and look specifically at what - - I believe it
was theft.

Q Is there something you could refer to that would refresh your
memory on what sorts of criminal behavior he had potential for?

KK
15

Q If you could look at page 17 [CMS Ex. 402 ] in the middle there
under Legal. . .. Do you see what it says there?

A Incarceration for theft, assault with deadly weapon, battery charges.
Tr. at 1735-36.

Although, one cannot create an exhaustive list of every possible approach, sign, symptom,
causes and triggers for each resident, however, one would expect that the most significant
specific approaches, signs, symptoms, causes and triggers would be included by Hillcrest
in a resident’s care plan.

I find Hillcrest’s rationale that its preliminary care plans start out as very general and
identify broad areas of concern is applicable only if the resident is not known to the
facility and there is little prior treatment history. However, that is not the case with the
residents at issue here as Hillcrest was provided with documents regarding previous and
recent treatment prior to admittance, and Hillcrest should have availed itself of these
resources in developing the initial care plans for these residents. CMS Exs. 402, at 5-18;
403, at 5-33; 404, at 5-19.

For example, upon R4’s admission to Hillcrest on February 8, 2001, a community ability
assessment dated October 4, 2000 was available to Hillcrest. CMS Ex. 402, at 7-8. The
assessment describes R4 as having markedly abnormal moods, markedly impaired
response to stress and anxiety, as being often abusive of drugs and/or alcohol, and
frequently exhibiting episodes of extreme acting out. Jd. On December 13, 2000, R4 had
been admitted into the hospital due to suicidal ideation and self-inflected lacerations on
his wrist. Jd. at 30. His social history completed the day after his admission to Hillcrest,
notes his tendency toward self-mutilation with depression; his use of heroin and alcohol;’°
his problems with short-term memory; and his attention deficit disorder. Jd. at 40. He
was noted to have problems with impulse control, that he “punch[es] things when
frustrated or angry,” that he has a history of suicidality, and that he had slit his wrist two
or three times and slit his neck twice. Jd. In addition, he had been convicted twice on
gun charges and twice on theft charges. Jd. at 41. Also noted in the social history was
that R4 stated that his attitude toward placement at Hillcrest was that he was “[n]Jot happy
about it.” Jd. at 42.

'6 R4’s February 9, 2001 social history notes that he had a $70-100 per day heroin
addiction and drank 40 ounces of beer nightly. At the time of admission to Hillcrest, R4 self-
reported that he had been sober for two months and clean for five months. CMS Ex. 402, at 41.
16

Additionally, in reviewing the provision of R4’s care plan which deals with his “Potential
for criminal behavior,” I find that it states only that it is related to his current probation
status.'’ CMS Ex. 402, at 56. Staff are instructed to “monitor for signs and symptoms of
criminal behavior or potential for criminal behavior due to agitation or anxiety.” Id.
However, the “signs and symptoms” are not identified, and as noted at hearing by
Hillcrest’s DON, Ms. Tierney, it would be difficult for staff to ascertain specifically what
type of criminal behavior to look for. Tr. at 1735-36. I find Hillcrest had sufficient
information from R4’s pre-admission documents to provide a more comprehensive and
individualized initial care plan.

2. RS5’s care plan

R5 was admitted to Hillcrest on March 1, 2001 from an inpatient hospital. His clinical
record reveals that he was a 28-year-old male with diagnoses of bipolar affective
disorder; manic, severe depression; and attention deficit disorder. CMS Ex. 403, at 1, 22-
24, 26, 28. A Notice of Determination, dated February 26, 2001, reveals that the death of
RS5’s mother “set off a cycle of non-compliance with medication and substance abuse.”
Id. at 19. Also noted is that R5 “is not able to deal with stress and reverts to depression
and substance abuse.” Jd. at 20. R5’s social history, dated March 2, 2001, notes a history
of cocaine, LSD, marijuana, PCP, and alcohol abuse, and that RS had been sober for one
week prior to admission to Hillcrest, and clean from drug use for two months prior to
admission. Jd. at 27. RS had been admitted to the transferring inpatient hospital on
February 21, 2001 for acute suicidality due to severe depression and noncompliance with
his medication. Jd. at 5, 8. The hospital admitting report, dated February 21, 2001, and
recorded seven days before his admission to Hillcrest, further reveals that R5 had
“stopped taking his medications and began decompensating rapidly . . . and that “[h]e
began feeling severely depressed, sad, suicidal.” Jd. at 8. RS had previously been
reported as overdosing on pills several times and had cut the veins in his elbows in
August 2000. Jd. at 26.

The provision in R5’s March 23, 2001 care plan addressing his “Potential for Ineffective
Individual Coping” states that this problem is manifested when he cannot meet his own
needs. CMS Ex. 403, at 59. Staff instructions include: reduce stimulation, encourage
support system use and record episodes of depression, involve resident in planning,
encourage self care, praise accomplishment, uninterrupted 1:1 visits when depressed,
encourage RS to attend Coping Session 2-3 times weekly, allow him to ventilate, teach
relaxation techniques, and involve his family. Jd.

'7 An August 12, 2000 Psychosocial/Environmental Assessment from the transferring
inpatient hospital states that R4 was incarcerated from July 1, 2000 through August 3, 2000, due
to a probation violation, and that he was on probation until 2002. CMS Ex. 402, at 6.
17

At hearing, Surveyor Susan Pettenger testified that staff were instructed to refer R5 to
social services as needed when he exhibited certain signs, however, she stated specifically
that “you’re not going to refer him if you don’t know what the signs are.” Tr. at 122. Ms.
Pettenger further stated that the care plan does not describe R5’s support system and
therefore questioned the staff’s ability to know what supports R5 should be encouraged to
use. Jd. In reviewing R5’s care plan, I find that the instruction to staff which states
“encourage support system use” does not provide sufficient information for staff to know
what his support systems were. CMS Ex. 403, at 59.

The provision addressing R5’s “Poor Affect Management” states that his poor affect
management problem is related to his bi-polar disorder and is manifested by severe mood
swings, impulsive behavior, attention-seeking behavior, self-injurious behavior, and
threats of violence. CMS Ex. 403, at 60. Staff were instructed to: encourage compliance
with medications, monitor for signs and symptoms of increased anger, anxiety,
depression, and decreased impulse control; allow R5 to vent and process stressful
situations; teach alternative ways to express feelings; encourage attendance in therapeutic
group activities; teach relaxation and anger management techniques; increase 1:1 contact
during periods of stress; and encourage RS to seek nursing intervention for evaluation of
the need for PRN (as needed) medications as ordered by his medical doctor. CMS Ex.
403, at 60.

During the hearing, DON Tierney was asked to look at R5's plan of care, specifically the
provision addressing R5's “Poor Affect Management. ” When asked whether people
repeat the same type of self-injurious behavior, she responded that it was “sometimes
true.” Tr. at 1779. Upon further inquiry, DON Tierney stated:

Q BY COUNSEL FOR CMS: So then for nurses watching for self-
injurious behavior, wouldn’t it be at least somewhat helpful to know
what the prior self-injurious behavior was?

A And they can see that by the record.

But not the care plan?

A But not the care plan.
18

Q Threats of violence in this care plan — what was threats of violence
meant to address with respect to R5?

A I’m not sure.

Tr. at 1779.

aK

When DON Tierney was asked to answer how staff looking at the care plan would know
what sorts of “threats of violence” R5 was predisposed to, DON Tierney stated:

A I’m truly not sure why that’s in there, because I don’t see where there
have been threats of violence.

Q BY COUNSEL FOR CMS: Okay. So then that provision of this care
plan — you don’t understand why that was put in here?

A At this point, no.

Q And there’s no helpful information just from this care plan about
why it was included, is there?

A No.
Tr. at 1781.

The provision in R5’s care plan addressing his “Potential for criminal behavior,” states
that the problem is related to his current probation status for criminal trespass. CMS Ex.
403, at 59. Staff were instructed to: watch for signs of increased anxiety, and watch for
signs of increased agitation which may indicate potential for criminal behavior. Jd.
Hillcrest was found to have not been in substantial compliance with the resident
assessment requirement because R5’s care plan does not identify individualized signs and
symptoms which lead to increased anxiety, agitation, and potential criminal behavior.
CMS Ex. 1, at 7-8. Upon cross-examination, DON Tierney stated that R5 received the
same general entry relating to “potential for criminal behavior” in his care plan as did the
other residents merely due to his general probationary status without specific
consideration of his criminal history.'* Tr. at 1738. And, when asked about R5’s signs of

'§ R5, on probation since July 1999, was convicted of burglary in January 2001, and was
still on probation at the time of his admission to Hillcrest. CMS Ex. 403, at 5, 27.
19

agitation or anxiety, DON Tierney responded that “[R5] had had none while in the
facility, so it would not be identified.” Tr. at 1739. Again, Hillcrest’s practice was to
address in its care plans only specific issues or behaviors that residents manifested while
at Hillcrest, and not rely on any specific issues or behaviors which may have been
identified and documented in the pre-admission records.

R5’s inpatient hospitalization for an acute suicidal episode occurred on February 21,
2001, which was only seven days before his admission to Hillcrest on March 1, 2001. In
reviewing R5’s care plan at hearing, DON Tierney testified:

Tr. at 1744-45.

BY COUNSEL FOR CMS: What were R5’s signs of increasing
anxiety? It refers here to, watch for signs of increasing anxiety... .

I don’t know that any had been identified.
None were identified while he was at Hillcrest?
Right.

Did you review R5’s complete record from the transferring hospital
before he was admitted to Hillcrest?

I read it.

Did that include any signs of increasing anxiety?

Specifically, I’m not sure. I’d have to re-read the whole thing.
But if it did, they would be included in the care plan. Right?
They may be. They may not be.

Why wouldn’t they be?

Because he did not exhibit any of the signs and symptoms here in the
facility.
20

RS5’s care plan was also found deficient because it did not identify any signs of increased
anger, anxiety, depression, or decreased impulse control for R5. Additionally, it did not
address R5’s suicidal tendencies and did not address R5’s grieving over the death of his
mother. CMS Ex. 1, at 7. In response to a question as to how a nurse looking at R5’s
care plan would know specifically how R5’s mood swings manifested themselves, DON
Tierney testified:

A From knowing the history, they would know. From looking at the
care plan, they may not.

eK

Q BY COUNSEL FOR CMS: Isn’t it true that the plan of care is
meant for all facility staff?

A Yes.

Q So do all facility staff have access to and regularly review these
records....

A All facility staff have hands-on, direct care.

Q So... they’d have no idea of how frequently RS cycles between
moods, would they?

A No.
Tr. at 1768-69.

The crux of Hillcrest’s defense is that the level of specificity for each resident that CMS
alleges was missing from the preliminary care plans was in each of the resident’s nursing
and social services notes. P. PHB at 61. However, Hillcrest is misguided as care plans
are intended to summarize all major needs and approaches for a resident. Beverly Health
& Rehabilitation-Springhill, DAB CR553 (1998), aff'd, DAB No. 1696 (1999). A care
plan identifies a resident’s needs and must provide staff with sufficient information and
guidance so that they can meet those needs, and also monitor the resident’s progress. The
care plan is the central document in a resident’s record. Haverhill Care Center, DAB
CR522 (1998). Although nurse and social service notes chronicle the daily behaviors of
residents, they are not a substitute for a comprehensive, detailed care plan.
21

Hillcrest had 163 residents admitted during the time period at issue here and to expect
staff to familiarize themselves with the clinical records of each of these residents for
pertinent behavioral clues would be unreasonable. A facility cannot satisfy its care
planning requirement by cross-referencing other notes in a resident’s record.

3. R6’s care plan

Upon his admission on February 15, 2001, R6 was a 33-year-old male with diagnoses of
polysubstance abuse including marijuana and alcohol, heroin abuse, heavy drinking, and
antisocial personality. In addition, the record notes that R6 suffered from depression,
schizo-affective disorder, antisocial personality disorder, migraine headaches, a brain
(pineal gland) tumor, and tobacco abuse. CMS Ex. 404, at 6, 9, 11, 26, 29. A social
history recorded on February 16, 2001, reports R6 as being sober for three weeks and
clean for three weeks prior to his admission to Hillcrest. Jd. at 25.

On February 6, 2001, eight days before his admission to Hillcrest, R6 was admitted to an
inpatient hospital for treatment of his bipolar disorder. Based on R6’s medical reports
from the inpatient hospital, R6 reported feelings of being overwhelmed, had difficulty
sleeping, and experienced anxiety, racing thoughts, and difficulty concentrating. CMS
Ex. 404, at 5, 7. R6 reported that he “can’t function out of prison,” and was feeling
“overwhelmed and had violent thoughts.””® Jd. at 7. As self-reported in his past medical
history, R6 complained of having “spells” where he loses time and “wakes up somewhere
else.” Jd. at 8. The psychiatric evaluation from the inpatient hospital states that R6 had
been talking about “violent thoughts, rape, and some other thoughts of losing control.”
Id. He stated that he felt he needed to get into a long-term treatment program and that he
“didn’t feel comfortable being unsupervised.” Jd. The evaluation also notes that “[t]here
is significant substance use and this further adds to his difficulties.” Jd.

I find that similar to the deficiencies found in R4’s and R5’s care plans, R6’s care plan
fail to identify specific approaches, signs, symptoms, causes and triggers relating to R6’s
poor anger and stress management, poor coping skills, poor impulse control, his suicidal
tendencies, and his potential for relapse into drug and alcohol abuse. Specifically, the
provision of R6’s care plan addressing his “[p]oor anger/stress management coping skills
and poor impulse control” states that they are manifested by verbal outbursts, agitated
interactions with staff and peers and related to his schizo-affective bipolar disorder,
depression and antisocial personality. CMS Ex. 404, at 38. Staff instructions included
monitoring R6 for signs and symptoms of increased stress, anxiety, agitation; make

'? R6 had a prior criminal history. From 1992 to 1999, he was imprisoned due to a home
invasion and armed robbery after breaking into an ex-girlfriend’s home with a gun. CMS Ex.
404, at 8, 24, 25. He was on parole at the time of the March 22 homicide. /d. at 1.
22

referrals to social service for 1:1 intervention during periods of stress or behavior
problems; and assess need for PRN medication and administer the medication per
doctors’ order; and to encourage relaxation during periods of stress, to de-escalate and
remove R6 from anxiety or stress-producing situations; and allow him to vent and
problem solve. Jd. However, the care plan fails to identify the triggers for increased
stress, anxiety and agitation for R6, which are significant issues in the treatment of R6’s
mental and psycho-social needs.

Additionally, the care plan failed to address R6’s suicidal tendencies. R6 was suicidal
just one month prior to being admitted to Hillcrest; however, the care plan failed to
address R6’s suicidal tendencies. CMS Ex. 404, at 38. At the hearing, former Clinical
Director Brenna Costello stated that it would not be important to note suicide in R6’s care
plan:

We don’t care plan for suicidality; that’s a manifestation of depression, so
we would continue to monitor for suicidality, that’s part of something that
the staff are trained on and you probably saw in the social service notes that
they continually assess for that and documented that, but we wouldn’t care
plan for that because that is a specific manifestation. There may be 50
manifestations that that resident would display for depression, so what we
would care plan is the depression itself.

Tr. at2100. When asked if all patients who have depression are suicidal, former Clinical
Director Costello testified:

A No.
Q BY COUNSEL FOR CMS: So then how do you know if the care
plan just says depression which ones are suicidal and which ones

aren’t?

A Well, you don’t, you know that for the individual assessment you do
in the individual and group sessions.

Q Okay, so you can’t tell from the care plan but if you go back and
look dig [sic] the records you can find it.

A You can’t tell from the care plan whether they’re suicidal?
23
Q Right.
A Correct.
Tr. at 2100.

The section of the care plan addressing R6’s potential for relapse (related to a history and
diagnoses of alcohol drug abuse dependence) lacked preceding factors that would lead to
R6 having a relapse. CMS Ex. 404, at 9-10. DON Tierney, on redirect, testified in
relation to the potential for R6’s relapse that “[i]f there was one certain thing that would
trigger a relapse, that may have been included [in R6’s care plan]. But at this point, none
were known.” Tr. at 1700. However, the February 15, 2001 Minimum Data Set (MDS)
reveals under Mood and Behavior Patterns that R6 made negative statements, persistent
anger with self and others was noted, and R6 was repetitively anxious. CMS Ex. 404, at
31.

In the care plans at issue for R4, R5, and R6, I did not find specific, concrete
interventions for maintaining each of the resident’s optimal cognitive functioning, nor
were there clear, measurable plans or interventions. Rather, Hillcrest provided a broad,
general list of interventions in the residents’ care plans rather than interventions tailored
to that resident’s individual needs. Information must be in the resident’s care plan so that
facility staff will know how to care for the resident. This becomes especially important
given the nature of residential management, especially given that there are times when
there are either new staff or staff working with a resident for the first time.

Hillcrest takes the position that it would be at the first quarterly review that R4’s, R5’s,
and R6’s preliminary care plans would have been updated. P. PHB at 60-61. Hillcrest
states that “[h]ad they remained at Hillcrest long enough to receive the required 90-day
review, then additional observations would have been incorporated into R4’s, R5’s, and
R6’s care plans based on their manifestations while at Hillcrest over the past quarter.” Id.
at 61. Hillcrest states further that none of the residents at issue had a change in their
behavior that warranted an update to their care plan during their short stays at Hillcrest.
Id. Hillcrest contends that the cited behaviors of the three residents which CMS addresses
“all occurred long before these residents came to Hillcrest.” Jd. at 62. Hillcrest asserts
that its highly trained staff are able to notice extreme behaviors such as theft, assault,
battery, self-mutilation, drug overdose, or alcohol abuse, and these do not have to be

20
The MDS is a component of a resident assessment instrument which contains
information about a resident’s functional capacity.
24

specifically care planned. Jd. at 62. I do not find Hillcrest’s argument persuasive.
Although these three residents had not undergone their first quarterly review, Hillcrest
was responsible for providing each resident with interim care while the assessment and
care planning processes were on-going. The purpose of a care plan is not to merely
recognize a resident’s behaviors, but also to prescribe a plan of care and develop
strategies for addressing and treating those particular behaviors. Hillcrest’s rationale
regarding care plans is not consistent with the intent and mandate of the relevant
regulations. The care plan should address the problems identified in the assessment by
including specific, concrete, and measurable interventions. This then allows for the
objective evaluation as to whether the resident’s needs are being met as anticipated and
whether there is a need for further adjustments in intervention methods.

Although there is no issue with Hillcrest using its computer program as a template for the
resident care plans, the evidence established that the care plans of R4, R5, and R6 were
found to be identical, even down to the same spelling mistakes.”! Additionally, the care
plans at issue were overly general and vague, and lacked individualization.

Clearly, the record before me supports the deficiency cited by the IDPH surveyors.
Accordingly, based on the foregoing, I conclude that Petitioner was not in substantial
compliance with the participation requirement at 42 C.F.R. § 483.20(k) of the regulations.

B. Hillcrest was out of substantial compliance with the participation requirement
at 42 C.F.R. § 483.25(h)(2) - (tag F324, Quality of Care).

The regulation at 42 C.F.R. § 483.25(h)(2) requires that each resident be provided with
adequate supervision and assistance devices in order to prevent accidents. In interpreting
and applying section 483.25, the Board has been consistent in the opinion that providers
are not strictly liable as insurers or unconditional guarantors of good outcomes in the
delivery of services to facility residents. Rather, the quality of care provisions of section
483.25 impose an affirmative duty upon providers to deliver services designed to achieve
the best possible outcomes to the highest practicable degree. Woodstock Care Center,
DAB No. 1726, at 25 (2000), aff'd, Woodstock Care Center v. Thompson, 363 F.3d 583
(6" Cir. 2003). This interpretation is based upon the legislative history of the Act and
regulations which reflect that Congress and the Secretary chose to focus upon the desired

21 Hillcrest stipulated that for R4’s, RS’s, and R6’s care plans, under the provisions
relating to “potential for relapse” and “risk,” both the problem identified and staff approach were
identical for all three residents. CMS Exs. 402 at 56; 403 at 59; 404 at 38; Tr. at 2101. Also,
Hillcrest stipulated that the entries providing staff with direction on how to intervene with each
resident were identical in each of the three care plans (R4, R5, and R6). CMS Exs. 402, at 57;
403, at 59; 404, at 39.
25

ends or results of care, thus allowing facilities to meet the requirements for individual care
in a variety of ways. See Omnibus Budget Reconciliation Act of 1987, Pub. L. No. 100-
203 (Dec. 22, 1987); 54 Fed. Reg. 5316 (Feb. 2, 1989).

The specific manner by which facilities are to deliver care and services is not prescribed
by 42 C.F.R. § 483.25(h)(2). A facility is permitted to determine the means to achieve the
regulatory end which is the prevention of accidental injury of facility residents. Therefore,
in order to evaluate Hillcrest’s compliance with section 483.25(h)(2), it is necessary to
examine whether the facility provided adequate supervision designed to meet the
residents’ assessed needs and to mitigate foreseeable risks of harm to them. Northeastern
Ohio Alzheimer’s Research Center, DAB No. 1935 (2004); Tri-County Extended Care
Center, DAB No. 1936 (2004).

The level and kind of supervision provided to the residents is reviewed in order to
determine whether it was sufficient to prevent any untoward events. The regulation at 42
C.F.R. § 483.25(h)(2) requires that a facility provide both “assistance devices” and
“adequate supervision” to prevent accidents. Whether the supervision or assistance
devices are adequate depends on what kind of measures would be determined to prevent
potential accidents from occurring given the known or reasonably foreseeable risks. For
instance, in Woodstock, the Board considered whether the facility had notice of, or should
reasonably have anticipated, the risk of the types of events that occurred and whether any
reasonable means were available to prevent them without violating the residents’ rights.
Woodstock, DAB No. 1726, at 26-27. In the case before me, the question has to be
answered as to whether the facility did “everything in its power to prevent accidents.”
Odd Fellow and Rebekah Health Care Facility, DAB No. 1839, at 6-7 (2002), quoting
Asbury Center at Johnson City, DAB No. 1815, at 12 (2002) and Koester Pavilion, DAB
No. 1750, at 25-26 (2000).

Based on the regulation and the cases addressing this provision, CMS will meet its burden
in establishing a prima facie case if it: (1) presents evidence that an accident occurred
(with or without harm to a resident); or (2) shows that Hillcrest failed to do what it could
to supervise residents or provide assistance devices to minimize risks that could lead to
accidents. If CMS makes a prima facie case, the burden shifts to Hillcrest and the record
will then be considered in terms of where the preponderance of the evidence lay.

CMS contends that Hillcrest was found not to be in substantial compliance with section
483.25(h)(2) because it allegedly failed to provide adequate supervision of R3, R4, R5,
and R6 who had known behaviors which included suicidal thoughts, depression, anger,
poor impulse control, potential for criminal behavior, refusal to follow treatment regime,
potential for relapse of drug and alcohol abuse, ineffective coping, and history of abusive
26

relationships. CMS Ex. 1, at 10. CMS further contends that Hillcrest’s failure to
supervise these four residents placed them and other residents in the facility at risk for
harm.” Specifically, Hillcrest is alleged to have been deficient because of its failure to:

1. properly monitor the use of day passes by R3, R4, R5, and R6;

2. ensure that the four residents attended their group counseling sessions or
received appropriate individual counseling; and

3. respond properly when these same four residents returned to Hillcrest
intoxicated and, with respect to R4 and RS, bloody and bruised after they
had committed a homicide.

During the April Survey, the IDPH surveyor findings in relation to section 483.25(h)(2)
were determined to be so egregious as to place residents of Hillcrest in a state of
immediate jeopardy. Below, I address each of CMS’s allegations separately.

1. Hillcrest failed to properly monitor the use of day passes by R3, R4,
RS5, and R6.

CMS states that R3, R4, R5, and R6 had been referred for placement at Hillcrest
specifically because they were found to need the “support and structure” of an
intermediate care facility and 24-hour nursing level care. CMS Exs. 401, at 22, 26; 402, at
23, 24; 403, at 5, 8, 18; 404, at 16. Specifically, R3, R4, and R5 had histories of
suicidality. CMS Exs. 401, at 8, 31; 402, at 30; 403, at 5, 8. R4, RS, and R6 had histories
of substance abuse. CMS Exs. 402, at 7-8; 403, at 18, 20, 27, 29; 404, at 9,

38. R4, RS, and R6 had criminal records, of which R4 and R6’s included violent crimes.
CMS Exs. 402, at 17; 404, at 8, 17. CMS states that despite the known pre-admission
histories of each of these residents, Hillcrest routinely allowed R3, R4, RS, and R6 to
leave the facility on passes without supervision, often for several days at a time.

” The April SOD lists 21 pages of examples under tag F324. Although I consider
each and every example identified by the IDPH surveyors in reaching my conclusions,
due to judicial economy I do not discuss in this decision each example listed. CMS Ex. 1,
at 10-31.
27

Hillcrest’s house rules, which each resident must sign and agree to upon admission,
required that all residents “must sign in and out when leaving and returning” and
“TrJesidents must be inside the building by 10:30 p.m. each evening.” CMS Ex. 419, at 1,
2; CMS Ex. 419, at 10 (“When signing out, residents indicate the time they are leaving and
the purpose for which they are leaving the facility.”)

The day pass history for R3, R4, RS, and R6 during their stay at Hillcrest is addressed
separately below:

R3

R3 was a 19-year old female at the time of her admission to Hillcrest on March 6, 2001.
CMS Ex. 401, at 28. She was transferred from an inpatient hospital with diagnoses of
major depression, borderline personality disorder, bipolar disorder, asthma, and
hypothyroid-type tension. Jd. at 17, 28, 29, 31. Her pre-admission records note that R3
had been admitted to an inpatient hospital on February 20, 2001, “feeling very depressed
and felt hopeless and helpless,” and “having suicidal thoughts and suicidal plans.” Jd. at 8.
A hospital note, dated March 2, 2001, describes R3 as being “massively” depressed “with
poor defenses against suicidal impulses,” and that she “remains a suicide risk even with
support.” CMS Ex. 401, at 15, 16. In reference to prior abusive relationships, the hospital
note describes R3 as having “no relationship skills” and that “relationship-wise she is like
a moth drawn to a flame.” Jd. at 16.

CMS contends that Hillcrest saw very little of R3 after her first ten days at the facility.
CMS PHB at 74. Hillcrest states that allowing R3 to go out on pass was consistent with
her care plan goal which was for her to be in the “least restrictive level of care” within
three months. CMS Ex. 401, at 51. Hillcrest further states that R3 had a doctor’s order
permitting her to leave on pass. See P. Ex. 4. Hillcrest contends that before the day of the
homicide (March 22), there were no unusual circumstances justifying revoking R3’s pass
privileges.
28

R3’s pass usage during her stay at Hillcrest is reflected below:

Sign-out For R3

TIME TIME WHERE
DATE RESPONSIBLE PARTY OUT IN TO
3/10 [R3] 7:15 9:55 STORE
3/16 [R3] 8:22 HOME
3/20 [R3] 10:00
3/21 [R3] 2:15 6:00 MALL
3/22 [R3] 1:30 0 STORE/MALL
3/22 [R3] 9:55

CMS Ex. 401, at 61.

R3 was admitted to Hillcrest on March 6, 2001, and in the total of 16 days which she
resided at Hillcrest, she was listed as being out on pass on March 10, 2001, for over 2.5
hours, just four days after her admission to Hillcrest; then from March 16, 2001 through
March 20, 2001, which included overnight stays to “home;” then for most of the afternoon
on March 21, 2001; and then again for most of the day on March 22, the day of the
homicide. CMS Ex. 401, at 61. R3’s first pass outing was only four days after her March
6 admission date. When signing out, R3 recorded her absences as “store,” “home,”
“mall,” or “store/mall.” The sign-out sheet does not require residents to estimate their
time of return; rather, once back at the facility, they must document their time of arrival.
Also noted is that residents were not required to indicate “a.m.” or “p.m.” Jd.
Additionally, a review of the Hillcrest floor sheet shows that R3’s absences were not noted
on that sheet, and therefore, staff may not have been aware that R3 was out of the facility.
CMS Ex. 416, at 20.

Hillcrest has admitted that staff were not aware until after the incident that R3 had access
to a car at Hillcrest. P. PHB at A-1. Former Administrator Kalkowski testified that
Hillcrest did have a vehicle policy in effect as of March 22, 2001, which precluded
residents from having a vehicle at the facility. Tr. at 1432-33. As is evident from the
record, not only did R3 have a vehicle at the facility for her use, other residents such as
R4, RS, and R6 were able to borrow the vehicle from her as was evident on March 22,
2001.
29

Hillcrest argues that R3’s screening counselor wrote that she did “not need specialized
services (in-patient hospitalization)” and that her “[c]urrent condition is stable.” CMS Ex.
401, at 25. I note that R3’s Notice of Determination, dated March 6, 2001, states that her
current condition is stable, but also goes on to reveal that R3 “has extremely poor coping
skills and little support;” is “not able to manage her mental illness” and “needs the support
and structure of an [intermediate care facility].” Jd. at 25,26. Additionally, R3’s hospital
transfer record states that she “needs to be involved in as many groups as possible.” Jd. at
18. R3’s social history from Hillcrest notes her difficulties with concentration; her
tendency to internalize and become depressed, angry and frustrated, and her history of
suicide attempts (for instance, overdosing, and an attempt to stab herself with a butcher
knife in February 2001, one month prior to her admission to Hillcrest). Jd. at 31.

R3’s care plan listed among her problems a potential for ineffective individual coping; a
potential for trauma/falls related to borderline personality depression; and poor affect
management manifested by severe mood swings, impulsive behavior, attention-seeking
behavior, self-injurious behavior, and threats of violence. CMS Ex. 401, at 50, 53, 55.

R3’s first unsupervised pass outing was only four days after her March 6 admission. Also,
from March 16 through March 20, a five-day period, R3 is noted as being at “home,”
although there is no specific location identified. However, according to R3’s Notice of
Determination, she was noted as being “homeless” when she was admitted to Hillcrest.
CMS Ex. 401, at 25. As is evident from R3’s sign-out sheet, in the 16 days R3 was a
resident at Hillcrest, she spent a good portion of that time away from the facility.

R4

R4 was admitted to Hillcrest on February 8, 2001. CMS Ex. 402, at 7. A community
ability assessment, dated October 4, 2000, describes R4 as having markedly abnormal
moods, markedly impaired response to stress and anxiety, as being often abusive of drugs
and/or alcohol, and frequently exhibiting episodes of extreme acting out. Jd. at 7-8. Also
noted is that on December 13, 2000, R4 had been admitted into the hospital due to suicidal
ideation and self-inflected lacerations on his wrist. Jd. at 30. R4’s care plan established a
three-month goal for treating each of his identified problems, and instructed staff to
monitor R4 for increased agitation and anxiety or for signs of use of alcohol or drugs or of
potential criminal behavior and to observe, record and report all unsafe conditions. CMS
Ex. 403, at 56-57. However, Hillcrest staff saw very little of R4 after his first two weeks
at the facility.
30

The facility sign-out sheet for R4 during his stay at Hillcrest is reflected below:

Sign-out For R4

TIME TIME WHERE
DATE RESPONSIBLE PARTY OUT IN TO
2/18 [R4] 5:50 6:10 STORE
2/18 [R4] 6:30 8:45 TO EAT
2/20 [R4] 12:45 6:15 MALL
2123 [ST?? 11:00 2/25 7:25 HOME
3/2 [ST] 1:40 3/6 12:10 HOME
3/6 [R4] 6:55 7:19 STORE
3/7 [R4] 4:10 4:40 STORE
3/9 [ST] 2:56 1:30 HOME
3/19 [R4] 12:40 9:55 SISTERS
3/20 [R4] 10:35 7:45 SISTERS
3/22 [R4] 9:10 9:45 STORE

CMS Ex. 402, at 69.

As noted above, from February 23, 2001 through March 19, 2001, a period of 23 days, R4
was out on pass for most of or all of 17 days. Twice, R4 was out on pass for several days
at a time, on February 23-25, and again on March 2-6. However, because the sign-out
sheet does not have “a.m.” or “p.m.” designations for times on the sheet, there is no way of
determining by reviewing the sheet whether, for instance, R4 returned on March 20 at 7:45
a.m. or 7:45 p.m. It would also be difficult for anyone reviewing at the sign-out sheet to
ascertain whether R4 was complying with the 10:45 p.m. curfew, or identify patterns to
determine whether R4 was absent for minutes or twelve hours. For instance, in reviewing
the entry for March 9, it appears that R4 signed out at 2:56 and returned at 1:30 - however,
it is unclear as to which day he returned. While testifying, Mr. Mutterer, the former
Clinical Director, agreed that the entry for March 9 was “confusing.” Tr. at 1555. In
reviewing a facility floor sheet which shows the status of each resident on each floor, I

2 To ensure privacy, “ST” is being used as an abbreviation in this decision and
designates the name of a family member of R4. Tr. at 1554.

>* It is difficult to ascertain from the sign-out sheet whether R4 returned to the facility on
March 22 at 9:43, 9:45 or 9:49, as the last number on the sign-out sheet is scribbled. However,
both parties agree that R3, R4, R5, and R6 returned to Hillcrest between 9:45 and 9:55 p.m.
CMS PHB at 131; P. PHB at 58.
31

find that R4 is noted as being “OOP [out on pass}” from March 9-17. CMS Ex. 416, at 18.
There is no entry on the sign-out sheet for March 17 showing R4’s return. CMS Ex. 402,
at 69.

Former Administrator Kalkowski testified that it was Hillcrest’s policy that “a resident
may not be out on pass longer than seven consecutive days . . . or ten days in a month,”
and if a resident failed to comply, then Hillcrest could discharge that individual. Tr. at
1393-94. However, based on R4’s sign-out sheet, he was out of the facility on March 2-6,
9-17, 19, 20, and 22, for a total of 18 days in March, including nine consecutive days from
March 9 through March 17. CMS Ex. 402, at 69.

During his pass usage from March 9-17, R4 called into the facility to request a one-day
extension to his pass. CMS 402, at 73. Clinical notes for that period indicate that R4
claimed to have sufficient medications to cover his extended absence. Jd. However, on
March 19, upon his return to Hillcrest, R4 admitted that he had run out of medication while
on pass. Jd. In addition to R4’s running out of medication during the extended stay, a
March 19 social service note reveals that R4 reported to his counselor that he: (1) had
initiated a confrontation with his wife’s boyfriend out of anger; (2) had used alcohol; and
(3) had resumed a sexual relationship with his estranged wife.” CMS Ex. 402, at 73. The
notation then states that staff will “[mJonitor as needed.” Jd. In addressing the March 19
social service note, former Clinical Director Mutterer testified:

Q BY COUNSEL FOR PETITIONER: After this note on March 19,
2001, in your experience in evaluating people that are dangerous to
themselves or others, what was your conclusion whether or not this
resident was a danger to himself or others after that therapeutic
session?

A He was presenting in a manner that was danger[ous] to himself or
others.

Tr. at 1274-75.

Although the March 19 social service note indicates that staff are to monitor R4 as needed,
there is no notation to describe R4’s visit with his sister on March 20. It is surprising that
Hillcrest staff did not monitor R4 after he disclosed to his counselor on March 19 the

25 When R4 first met with a Hillcrest social service staff person, he claimed that his pass
had gone well and that he had not had any conflicts. CMS Ex. 402, at 73. It wasn’t until the
following day when he met with another social service staff person that he admitted to the
difficulties. However, R4 had a history of inconsistent self-reporting. Tr. at 2293-95.
32

events that occurred during his prior pass outing. At hearing, former Clinical Director

Costello testified:

QD -— OH > H PY

BY COUNSEL FOR CMS: Now, after all of this was reported here,
you specifically indicated that you would continue to monitor the
resident as needed. Isn’t that right?

Yes.

... and what time was this note written?

11:15:51

On 3/19?

Yes.

Then if you turn back to his pass sheet, he signed out of the facility
just an hour and a half later for nine hours. Right?

Correct. He went to his sister’s home.

He signed out to go to his sister’s but you don’t know for sure that he
went to his sister’s. Right?

True, because we can’t follow a resident once they leave the facility.
And you can’t call him at his sister’s to see if he’s there?

It’s not our policy; we have lots of residents that go out on pass on a
daily basis; we couldn’t call every one of them.

* kK

BY COUNSEL FOR CMS: How was he being monitored when he
signed out just an hour and a half later for nine hours to his sister’s?

As I said, when residents come back from pass they’re met with and
assessed upon their return. ,
33

Q Okay. Where in the record is that assessment documented when he
returned from his sister’s that night?

A He doesn’t look like he had a followup session after that pass or the
one the following day.

Q So does that mean he wasn’t — there’s no assessment that’s recorded.
Right?

* ORK

A Correct, there’s nothing documented.
Tr. at 2143-45.

Given R4’s relapse into alcohol abuse and his resort to violence, Hillcrest should have
reviewed R4’s care plan to determine whether any adjustments to his pass privileges and
his treatment plan were needed. However, on March 22, R4 signed out on pass.

A March 23, 2001 social service note describes R4 when he returned to the facility after
the home invasion and homicide incident on March 22:

Res returned to the facility with intoxication, agitation, and anger... . Res
got into a verbal alteraction [sic] which almost lead to a fight. Counselor
had to separate the res from one another. As counselor attempted to redirect
res res [sic] continued to verbalize threatening words to peer. Res left the
facility in rage. Counselor seeked [sic] res and res could not be found.
Police department to follow up facility on res’s location.

CMS Ex. 402, at 73.

CMS’s expert witness, Dr. Perraud, testified that Hillcrest violated standards of nursing
practice when they allowed R4 to go out on pass so frequently because “[h]e was
inaccessible for assessment and treatment, so it’s impossible to follow through with your
plan of care if he’s not there.” Tr. at 1089. Hillcrest maintains that R4 had no history of
violent crimes, just theft and firearm charges. Hillcrest asserts that in R4’s plan of care, it
specifically contemplated that R4 would go out on pass to transition to independent living.
The plan for R4 was to have successful “pass returns home” and demonstrate “potential to
live independently.” P. PHB at 35.
34

I find that Hillcrest’s assertion that allowing R4 to go out on pass was consistent with his
care plan is unpersuasive. As previously noted, in late March 2001, R4 exhibited
escalating behaviors that warranted close supervision. While out on his week-long pass,
R4 admitted to running out of medications, using alcohol, and to initiating an altercation.
Additionally, although the counselor that screened R4 for transfer to Hillcrest noted that he
was stable, it is also noted that R4 was “unable to care for himself in the community,” and
needed psycho-social rehabilitation services and medication monitoring. CMS Ex. 402, at
24. R4’s care plan identified his potential for relapse into alcohol and drug abuse as well
as his potential for criminal behavior and trauma/falls. Jd. at 56-58. His care plan further
directs staff to monitor, record and report R4’s increased agitation and anxiety, signs of
use of alcohol or drugs, or potential for criminal behavior. Jd. Following his return from
his extended pass (March 9 through 17), R4 specifically informed his counselor that he
had been drinking with “peers” while out on extended pass. Jd. at 73.

R4 signed a drug and alcohol contract and policy while at Hillcrest which required that he:
(1) adhere to treatment recommendations or be subject to discharge; (2) attend a relapse
prevention group; (3) submit to random drug/alcohol screens; and (4) follow any and all
treatment recommendations of the medical doctor and psychiatrist (i.e. take prescribed
anti-abuse medications, etc.) related to drug/alcohol use. CMS Ex. 402, at 44. However,
Hillcrest failed to take any of the actions as outlined in the contract and policy when R4
admitted to use of alcohol while on pass from March 9 through 17, despite the fact that
R4’s behavior had violated the terms of the drug and alcohol contract.

CMS alleges that Hillcrest did not follow either R4’s care plan pr the drug and alcohol
contract and policy when it failed to perform a drug screen and notify R4’s doctor of his
alcohol use while on pass. CMS PHB at 78. CMS also argues that Hillcrest failed to
document anywhere in R4’s record the reasons why the terms of R4’s contract and policy
were not followed. Jd. at 79. R4’s care plan required staff to educate R4 about the
medical impact of substance and alcohol use, to obtain drug/alcohol screens as needed, to
contact the doctor, and to inform the charge nurse if use was suspected. CMS Ex. 402, at
56. Hillcrest’s expert witness, Gershon H. Kaplan, M.D., testified that under
circumstances similar to those presented by R4, he would have wanted to be contacted:

Q BY COUNSEL FOR CMS: Okay. So if you were a psychiatrist
treating this patient [R4], and you knew he was taking these meds,
you knew he had this diagnosis, you knew he had this past history of
serious psychiatric problems and you heard that he went drinking,
wouldn’t you want to be notified?
35
A Yes, I think that that’s something I’d like to know about, sure.

Tr. at 2310-11.
However, there is no record that R4’s interdisciplinary team, his doctor, or his psychiatrist
were advised of his relapse into alcohol abuse and other pass problems so that they could
have made a decision regarding R4’s continued treatment and pass usage. This is of
particular concern given R4’s clinical diagnosis and past history of substance abuse.

R5

The facility sign-out sheet for R5 during his stay at Hillcrest is reflected below:

Sign-out For R5

TIME TIME WHERE
DATE RESPONSIBLE PARTY OUT IN TO
3/10 [R5] 7:25 pm 9:55pm Store
3/13 [R5] 1:20 1:45 Store
3/15 [R5] 3:50 4:45 Store
3/16 [RS] 6:50 8:00 Joggin
3/19 [R5] 5:00 6:45 Downtown
3/20 [R5] 11:05am = 11:45am __— Flower store
3/20 [RS] 7:30 7:45 Store
3/21 [R5] 5:40 5:53 Joggin
3/21 [R5] 2:00 pm 6:00pm Mall
3/22 [R5] 6:25 am 7:00 Walking
3/22 [R5] 9:10 am 9:45 Store

CMS Ex. 403, at 48.

RS was admitted to Hillcrest on March 1, 2001. From March 19 through March 22, 2001,
RS signed out eight times with destinations noted as “downtown,” “store,” “mall,” or
“walking.” Also noted is that each of these absences was not recorded in the Hillcrest
floor sheet which shows the status of each resident on each floor. The floor sheet
documentation would have enabled all staff to know that R5 was out on pass. CMS Ex.
416, at 20.
36

Hillcrest states that R5’s care plan identified a need for therapeutic recreation and that RS
was “interested in working around facility cleaning up outside until he gets employment.”
P. PHB at 43. Hillcrest states further that the care plan goal for R5 was to obtain gainful
employment and ultimately be discharged from Hillcrest, and that the doctor’s order to
allow him to go out on pass was consistent with R5’s care plan. Jd. Hillcrest argues that
RS was 28 years old, and, according to RS, he had overcome his problem of striking out
violently seven years earlier. Hillcrest contends that RS’s screening counselor wrote that
“Th]e has good work skills and insight into himself and his situation,” that he does “not
need specialized services (in-patient hospitalization),” and that his “current condition is
stable.” CMS Ex. 403, at 19. However, Hillcrest’s contentions do not persuasively explain
how in late March 2001, R5 exhibited behaviors that warranted close supervision. On
March 19, 2001, R5 sought help for nightmares that disturbed him through the day, yet he
went out on pass repeatedly on the subsequent days, and on March 22, he was away from
the facility from 6:25 a.m. through 9:45 p.m., except for a brief period of time when he
returned to the facility that day, 7:00 a.m. to 9:10 a.m. Because of R5’s frequent absences
from the facility, it is difficult to understand how Hillcrest was able to continuously assess
him and provide him with the services his care plan called for.

R6

CMS contends that Hillcrest violated section 483.25(h)(2) by failing to monitor R6’s use
of passes. CMS PHB at 75. Hillcrest asserts that most of R6’s absences were to the store
and many were for less than one hour. Hillcrest maintains that these were consistent with
independent living, and thus, staff had no basis to revoke R6’s pass privileges the morning
of March 22. However, a psychiatric evaluation dated February 10, 2001, five days prior
to R6’s admission to Hillcrest, notes that R6 stated to his hospital psychiatrist that he was
preoccupied with “violent thoughts, rape, and some other thoughts about losing control,”
on which he was afraid he might act, and also stated, “I don’t feel comfortable being
unsupervised.” CMS Ex. 404, at 8. In R6’s Notice of Determination, dated February 12,
2001, the counselor that screened R6 for placement into Hillcrest noted that R6 “has
gotten to the point where he is unable to maintain himself into the community and manage
his mental illness.” /d. at 18.

Additionally, R6’s care plan identified his potential for relapse into alcohol and drug
abuse; his potential for criminal behavior; his potential for trauma/falls; and his poor anger
and stress management, coping skills and impulse control, as manifested by severe mood
swings, impulsive behavior, attention-seeking behavior, self-injurious behavior, and
threats of violence. CMS Ex. 404, at 38-40. The care plan directed staff to monitor R6 for
increased stress, agitation or anxiety, signs of use of alcohol or drugs, or of potential
criminal behavior, and to observe, record and report all unsafe conditions. Jd. On
37

February 21, R6 told a counselor that he was “depressed and often agitated,” and on
February 26, he described himself as “unhealthy.” Id. at 60.

The facility sign-out sheet for R6 during his stay at Hillcrest is reflected below:

Sign-out For R6

TIME TIME WHERE
DATE RESPONSIBLE PARTY OUT IN TO
2/18 {R6] 5:45 pm 6:00 pm Store
2/19 {R6] 10:25 am 11:45 am Lunch
2/20 [R6] 12:45 pm 6:15 pm Mall
2/20 {R6] 6:55 pm 7:15 pm Store
2/21 [R6] 9:45 am 2:00 pm Store
2/22 [R6] 2:45 pm 3:35 pm Store
2/23 [R6] 12:45 pm 1:55 pm Thrift store
2/24 {R6] 3:25 pm 3:45 pm Store
2/26 [R6] 3:40 pm 6:00 pm Store
3/1 [R6] 2:30 pm 2:50 pm Store
3/5 [R6] 6:35 pm 7:00 pm Store
3/6 [R6] 6:55 pm 7:10 pm Store
3/7 [R6] 2:40 pm 3:30 pm Chicago
3/7 [R6] 4:10 4:40 pm Store
3/8 [R6] 1:15 pm 1:35 pm Store
3/10 [R6] 7:15 pm 9:55 pm Store
3/11 [R6] 6:45 pm 7:09 pm Store
3/12 [R6] 10:35 6:45 Chicago
3/15 [R6] 1:35 p 4:35p _ Lewis University
3/15 [R6] 7:10 p 7:25 p Store
3/22 [R6] 9:10 9:50 Store

CMS Ex. 404, at 57.

R6 was admitted to Hillcrest on February 15, 2001. From February 18 through March 22,
2001, R6 signed out 23 times to destinations such as “‘store,” “mall,” or “Chicago.” CMS
Ex. 404, at 56-57. R6 left Hillcrest at least five times within a week after his admission.
A review of the Hillcrest floor sheet shows that R6’s absences were not noted on that
sheet, and therefore, staff may not have been aware that R6 was out of the facility. CMS
Ex. 416, at 19. On March 22, 2001, R6 was absent for over 12 consecutive hours, from
9:10 a.m. to 9:50 p.m. CMS Ex. 404, at 56-57.
38

Given R6’s history, diagnoses, pre-admission screening results, the problems identified in
his care plan, and his report to the counselor at the inpatient hospital on February 21 as to
his feelings of depression and agitation, I find that Hillcrest should have monitored R6
more carefully during his stay at Hillcrest, and should have provided him with closer
supervision.

Typically, facility residents receive an increasing degree of pass freedom based on their
ability to tolerate the freedom. Reciprocally the pass freedom is decreased or revoked if
they demonstrate inappropriate behavior or fail to return in a timely manner. Newly
admitted residents at Hillcrest were afforded liberal unsupervised pass outings which
raises questions as to why residents were not required to document their estimated time of
return when they signed out for pass periods. It is not clear who was assessing location
appropriateness for the residents at Hillcrest when they would go out on pass outings.
Without this information, it would be difficult for staff to properly plan for medication
administration and to ensure that residents with psychiatric diagnoses had enough
medications to last for the length of their passes. By reviewing the sign-out sheets and the
resident records submitted as evidence, I find that it is not possible to know whether the
residents had sufficient medications for their pass outings.

At hearing, Llanie Jurilla, former R.N. at Hillcrest, testified that staff do record in the
nursing notes that medication has been sent with a resident. Tr. at 1671. She further
testified that the amount of medication she would send home with a resident on an
extended pass was recorded in the record and she would be able to ascertain from the
record whether a resident who was out on pass for four days and who called in to extend
his pass an additional two days, had sufficient medications for the extended two days. Tr.
at 1671. Additionally, former Administrator Kalkowski, testified that it would be
important to know whether residents had received sufficient medications to last through
their pass absence, and if a resident were given extra medications to take while on pass,
“[t]he nurses would chart - - or they would put it in the MAR [Medication Administration
Record].” Tr. at 1387.

However, a review of R4’s March 2001 MAR, from March | through March 22, 2001,
revealed: (1) staff did not record R4as having received Remeron medication on 15 of the
22 days (P. Ex. 49; Tr. at 1659-62); (2) there was no record of R4 receiving his 9:00 a.m.
Depakote medication on 12 of the 22 days; and (3) for at least 10 of the 22 days, R4 was
listed out on pass (OOP) for his 9:00 p.m. Depakote medication administration. P. Ex. 49,
at 3.
39

Monitoring compliance with medications is essential to treatment. Hillcrest staff would
need to know whether residents were taking their medications, especially as some of the
residents’ care plans identified their challenges in following a medication regime.
Maureen Lacy, PsyD, an expert witness for Hillcrest, testified that “[w]e’d want to know
patients are taking their medications. You’d want to document that in some way.” Tr. at
2517.

Based on the lack of documentation in the nursing notes and MARs in evidence, Hillcrest
failed: (1) to monitor medication compliance while residents were out on pass; (2) to
document how long the residents intended to be out on pass; and (3) to document whether
the residents were given medications; and, if so, to document how much medication was
provided.

Hillcrest is alleged to have failed to properly monitor residents’ pass usage and to require
compliance with its sign-out sheets. Hillcrest contends that its pre-March 22 sign-out
sheet required residents to record the date and time of their departure and return, whether
they were leaving alone or with a “responsible party,” and their destination. P. PHB at 30.
However, I find it problematic that residents were apparently required to complete the date
and time of return information after they returned from a pass, and not when they left.
Hillcrest has not been able to persuasively establish how staff could know the length of
time a resident expected to be gone from the facility. Additionally, the sign-out sheets did
not include an area for information whether the resident was leaving alone. Rather, it
merely included a space for a responsible party to sign a resident out.

Hillcrest asserts that all four residents’ (R3, R4, R5, and R6) pass usage was consistent
with their care plans as the goal ultimately was for them to be stabilized so they could live
independently once again. Thus, Hillcrest contends there was no reason to attempt to
revoke their pass privileges on March 22. Hillcrest states that it is an intermediate care
facility that specializes in working with the mentally ill and is less restrictive than an in-
patient hospital unit; for instance, it does not maintain lock-down units and is a hands-off
facility (staff cannot lay hands on residents except to protect themselves or another
resident). Therefore, if a resident is determined to leave the facility, staff cannot stop
them. Additionally, Hillcrest states that the incident on March 22 involved an
unforeseeable violent crime by two residents away from the facility and that Hillcrest was
under no obligation, legal or otherwise, to accompany the residents to supervise their
behavior toward non-residents while they were out on pass. Hillcrest avers that 42 C.F.R.
§ 483.25(h)(2) does not impose surveillance or law-enforcement obligations when
residents are outside of the facility on pass pursuant to a doctor’s order. Throughout these
proceedings, Hillcrest has argued that the March 22 home invasion and homicide occurred
outside of the facility’s property, and that therefore, section 483.25(h)(2) is not applicable.
Although I address Hillcrest’s argument regarding the applicability of section 483.25(h)(2)
40

to the March 22 events later in this section, I note here that Hillcrest is mistaken in that the
question is not whether the incident occurred inside or outside of the facility, but whether
the supervision provided by Hillcrest to these residents was adequate. Given the record
before me, | find that it was not. Here, R3, R4, R5, and R6 had histories of impulse
control and substance abuse problems as well as tendencies toward engaging in destructive
and self-destructive behaviors. Clearly, Hillcrest failed to develop criteria to determine
which residents should be allowed to leave on passes and how frequently and how long
they should be allowed to leave. Rather, Hillcrest looked at the pass usage policy to
determine whether a resident needed to be transferred to a psychiatric hospital, or could
leave on pass as frequently and for as long as he or she wished.

According to Hillcrest, prior to admission of a resident, each respective reviewer, for
instance, a discharging physician, the independent screening agency, and the accepting
facility must certify that the resident is “not a danger to himself or others” and is “stable.”
P. PHB at 12; Tr. at 40. Hillcrest attempts to use the PASARR” screening process to
argue that the screening reports indicated that R3, R4, R5, and R6 did not require the level
of supervision CMS purports they needed. However, the Board in Woodstock concluded
that

“TnJeither federal reimbursement practices nor the PASARR
screening process relieves the facility of its responsibility to
provide its residents all care and services necessary to afford
them their highest practicable physical, mental, and psycho-
social well-being, including insuring adequate supervision and
assistance devices to prevent accidents. Notwithstanding the
purported opinions or policies of any outside agency, a facility
is charged with limiting its admissions to those residents for
whom it is capable of providing that care and those services.”

Woodstock, DAB No. 1726, at 40-41.

6 The Omnibus Budget Reconciliation Act of 1987 (OBRA ‘87) required that nursing
facilities establish pre-admission screening (PAS) requirements for individuals with severe
mental illness. An independent screening agency, referred to as a PASARR agent, examines the
individual in order to confirm both the referring physician’s diagnosis and that the individual is
ready for transition to a less restrictive facility. See Omnibus Budget Reconciliation Act of 1987,
Pub. L. No. 100-2003, § 4201, 101 Stat. 1330 (1987).
41

Hillcrest allowed residents to leave on pass far too often to allow for proper assessment.
Surveyor Steven Mott testified that typically a pass policy for new residents with mental
illness would allow for a period of one or two weeks to allow the facility time to
thoroughly assess the new residents before allowing them to leave the facility on pass. Tr.
at 759. I agree that this time period is important for facility staff to establish a relationship
with a resident and to assess a resident in order to determine intervention and treatment
planning. Hillcrest’s pass policy did not maintain residents in the facility long enough for
sufficient assessment.

Former Clinical Director Mutterer testified that to revoke a resident’s pass privileges
because he or she failed to fill out all the boxes on the pass sign-out form was not within
the facility’s authority under federal regulations unless the resident posed imminent danger
of harming themselves or another. If the resident posed a threat to themselves or others,
Hillcrest “would be under obligation at that point to hospitalize them.” Tr. at 1279-80.
Mr. Mutterer further testified that in the situation where the resident did not fully complete
the pass sign-out form, it would be considered a house rule violation and the resident
would then be encouraged to comply more regularly. Jd. at 1280. However, former
Administrator Kalkowski testified that although residents generally refer to “[t]he Little
Store” which is three blocks from the facility, there are also multiple stores near Hillcrest
and therefore, Hillcrest staff would not specifically know where to look for a resident that
had signed out to go to a “store.” Tr. at 1384.

The cited incidents, regardless of whether they were accidents or not,”’ constitute valid
probative evidence as to whether Hillcrest adequately supervised its residents. Residents
who have the opportunity to be away from a facility unsupervised for hours at a time, with
the opportunity to drive around in a vehicle drinking, are inadequately supervised to
prevent accidents. Moreover, a resident who is away from a facility for 12 unaccounted
hours, and has the opportunity to wander around town intoxicated and eventually become
involved in a home invasion and homicide, is completely without any supervision,
irrespective of whether the individual resident himself is involved in an actual accident or
another resident in the facility sustains an accident. It was inevitable that the lack of
supervision of R3, R4, R5, and R6 would likely result in serious injury.

I find Hillcrest’s assertions unpersuasive. Facility staff failed to properly monitor these
four residents during their pass usage and there is no contemporaneous documentation that
offers a reasonable justification for why the monitoring was not performed. The record
before me establishes that R4’s, R5’s, and R6’s MDS and plan of care indicated potential

27 Even in the absence of “actual harm,” a “widespread potential for more than
minimal harm” is sufficient to sustaina CMP. 42 C.F.R. § 488.301.
42

for criminal behavior, psychiatric problems, ineffective coping skills, refusal and
noncompliance with treatment programs. Furthermore, a review of the social services
notes for February and March 2001 reveal that these residents were expressing that they
had disturbing dreams, anxiety over too much freedom, and were not following pass
guidelines and/or drinking when out on pass.

The crux of CMS’s case is that Hillcrest failed to provide adequate supervision to these
four residents. The evidence offered by CMS to support this contention is persuasive and
not sufficiently rebutted by Hillcrest. The evidence establishes that Hillcrest persisted in
utilizing sign-out sheets in lieu of personal supervision. I do not find Hillcrest’s response
to this evidence to be persuasive and I conclude that Hillcrest was in violation of 42 C.F.R.
§ 483.25(h)(2) when it failed to ensure that staff enforced the pass usage policy and
properly monitored the use of resident day passes.

a. Hillcrest failed to properly assess residents before they left on
pass.

CMS contends that Hillcrest failed to properly assess residents before they left on pass
(i.e., mood state, where the resident was going when out on pass, with whom, and for how
long). CMS PHB at 59.

RS

R5 was allowed to go out on a pass without an assessment of either his psychiatric state
(his depression and history of serious suicide attempts), or his need for medication
monitoring. A review of R5’s pre-admission screening assessment completed on February
26, 2001, describes R5 as “not able to manage his bi-polar disorder,” and although he had
been stable at times, he was “not able to deal with stress and reverts to depression and
substance abuse.” CMS Ex. 403, at 20. It further states that he needs the “support and
structure of an ICF [Intermediate Care Facility}.” Jd. The screening assessment identifies
RS’s needs for medication monitoring, mental illness education, and substance abuse
education. Jd.

On March 19, 2001, R5 complained of “having disturbing dreams” that were “causing him
anxiety throughout the day,” and were causing him to feel “depressed.” CMS Ex. 403, at
62. However, there is no record that staff advised the psychiatrist of this complaint, or
monitored R5 more carefully after his reporting this to staff. In fact, at 5:00 p.m. that same
day, R5 signed out of the facility to go downtown.
43

On the morning of March 22, 2001, nursing notes reveal that RS was “unable to get out of
bed,” complained of having the “spins . . . feeling nauseated,” and that he had “dry
heaves.” CMS Ex. 403, at 50. The nursing notes which were documented at 2:23 a.m.
further indicate that staff would “endorse day shift to monitor as Trazadone dosage has
been increased.” Jd. However, at 6:25 a.m., R5 signed out of the facility, recording on the
sign-out sheet that he would be “walking.” He returned to the facility at 7:00, and then
signed out again at 9:10 a.m. to go to the “store.” Jd. at 48. The next notation in the
nursing notes on March 22 was at 9:18 p.m., which reveals that R5 had not been seen since
the evening shift had started. Jd. at 50. The sign-out sheet was checked by staff and
verified that RS had signed out, but had not returned. R5 had been allowed to go out on
pass on March 22 and thus was unavailable to staff for monitoring and assessment,
specifically in regard to his medication compliance. The nursing note reveals that “alcohol
smell noticed” when RS returned to Hillcrest at 9:54 p.m. Jd.

Hillcrest argues that it assesses residents each morning, and that R3, R4, R5, and R6 were
assessed on the morning of the homicide and home invasion, by the nurses who
administered medications to them. However, R.N. Mary Locicero, who administered the
medications to R3, R5, and R6 on the morning of March 22, testified that she spends only
a couple of minutes with residents during medication administration and that she does not
review resident nursing and social service notes prior to administering the medications.
Tr. at 1625, 1626. R.N. Jurilla, who administered medication to R4 on March 22, testified
that with just one medication to administer to him, she would take a minute “[o]r less than
that.” Tr. at 1667. She further testified that she does not go back and review nursing
notes; rather, she relies on a shift report of what is going on with the resident. Tr. at 1668.

The evidence establishes that Hillcrest failed to properly assess these residents before their
leaving on pass and after returning from their pass outing. A one-minute visit by a nurse
with a resident during a morning medication pass is not sufficient for an assessment prior
to that resident’s going out on pass, which could last up to 10 or more hours.

Hillcrest asserts that there is nothing in the nursing records of R4 and RS during the weeks
leading up to the home invasion and homicide from which anyone could have predicted
that they would act dangerously while on pass. P. PHB at 2-3. Hillcrest asserts further
that on the morning of March 22, nurses gave the four residents the medications that they
were taking on a daily basis, and that the four residents were not acting abnormally or in a
manner such that they posed a risk to themselves or others. Jd. Hillcrest argues that none
of the four residents had a written order from a physician imposing any kind of restraint on
them, as is required under 42 U.S.C. § 1396r(c)(1)(A)(ii). P. PHB at 7. Instead, all four
residents had orders from their treating physicians allowing them to go out on pass. P.
Exs. 7, 51, 52; CMS Ex. 403, at 36. Therefore, staff had no grounds to disregard their
doctor’s orders or revoke the pass privileges of R3, R4, RS, and R6 on the morning of
44

March 22, and, according to Hillcrest, the intentional crime committed that day by R4 and
R5 was entirely unpredictable. P. PHB at 2.

At hearing, several witnesses from both CMS and Hillcrest testified that R5’s symptoms
on the morning of March 22 were consistent with either alcohol use or medication side
effects. Tr. at 145, 350-351, 613-614, 2158, 2343, 2498-99. However, there is nothing in
R5’s record relative to tests performed or other actions taken addressing either of these
possible causes. CMS Ex. 403, at 50. Nursing staff took R5’s vital signs and then
“endorse[d]” him to the next shift. Jd.

Dr. Perraud credibly testified that an assessment of only vital signs was not sufficient. Tr.
at 1217. Rather, the standards of nursing practice dictate that staff should have done a
thorough assessment and explored beyond one explanation as to why RS might be
experiencing the symptoms he described. Jd. Additionally, Dr. Perraud testified that an
alcohol screening of R5 was warranted. Id.

RS had signed an alcohol and drug policy which required that an alcohol screening be
done if alcohol use was suspected. Outside of the initial vital signs being taken, there
were no follow-up checks of R5’s level of consciousness after he first reported his
symptoms. R5’s symptoms were first reported to nursing at 12 a.m., by a female resident
indicating that RS was not feeling well, and was unable to get out of bed. CMS Ex. 403, at
50. The nursing note at 2:23 a.m. indicated that RS was “found lying supine” and “dry
heaves were noted.” Jd. RS was advised by a nurse to lie on left side, his vital signs were
taken, and the note further indicates that “[c]lient resting comfortably at this time.” Id. So
from the one notation at 2:23 a.m., it would appear that the nurse first intervened at 12:00
a.m., and then checked RS again at 2:23 a.m. Jd. However, this was not sufficient.
Surveyor Pettenger testified that she would have taken vital signs at least every half-hour,
encouraged fluids, and instructed RS to get up slowly as his blood pressure could drop
more. Tr. at 430. She stated that she would also “keep him where I could see him, to see
how he reacts to that medication . . . and call the doctor.” Tr. at 430. Dr. Perruad testified
that “[g]iven that [R5] was complaining of fairly extreme symptoms, I would hold the pass
and call the physician and clarify it.” Tr. at 1099. However, the record for R5 does not
indicate that Hillcrest notified either the medical doctor or the psychiatrist of his condition.
I find that Hillcrest’s failure to monitor RS after his symptoms on the morning of March
22 violated standards of nursing practice and the supervision requirement of section 42
CFR. § 483.25(h)(2).
45

R3

On March 12, 2001, R3 was transported via ambulance to the hospital after reporting
severe abdominal pain, and having vomited blood. CMS Ex. 401, at 63. Upon her return
to Hillcrest, R3 reported that she had a cyst on her ovaries which required medication for
pain. Jd. at 63,64. On March 22, R3 reported that she sometimes felt depressed and
asked to see her doctor. /d. at 64. A nursing note dated March 22, notes that “staff will
continue to monitor.” Jd. However, two hours later, R3 was allowed to go out on pass.
CMS Ex. 401, at 6. There is no evidence in the record that Hillcrest monitored R3 for
signs of depression or that arrangements were made for R3 to speak with her doctor, or
any other doctor.

Based on the record before me and the testimony offered at hearing, I find that Hillcrest
failed to properly assess R3 and RS before they left on pass.

b. Hillcrest’s doctors’ orders were ambiguous

CMS states that doctors’ orders for R3, R4, R5, and R6 allowing them to go out on pass
were ambiguous, and that each resident had the same general verbatim order which read:

MAY LEAVE FACILITY WITHOUT CONTRAINDICATION WITH
OR WITHOUT MEDS.

P. Exs. 7, 51, 52; CMS Ex. 403, at 36.

Surveyors Susan Pettenger, Daniel Pletcher, and Elaine Moore, all experienced nurses,
testified that the language in the order was not clear, and they would question what the
doctor meant by “with or without meds,” in relation to length of time period, and what was
meant by “without contraindication.” Tr. at 426-427; 609; 712.

It was clear from the testimony that there seemed to be different interpretations by
Hillcrest staff as to the doctors’ orders in relation to pass privileges. R.N. Locicero, who
administered the medications to R3, R5, and R6 on the morning of March 22, testified that
she believed the order authorized a resident to leave for the day with his medications or
even for a day without his medication, but she was not certain if a resident could leave for
a week without his medications. Tr. at 1629. In an attempt to interpret the “with or
without meds” language, Hillcrest’s expert witness, Gershon H. Kaplan, M.D., testified
that it was his understanding that the order meant “that if a person goes out for half an
hour, he doesn’t need to take meds. If he’s going out all day, he should have meds with
him.” Tr. at 2303.
46

Additionally, CMS argues that the doctors’ orders upon which Hillcrest relied to allow R3,
R4, RS and R6 out on pass are for April 2001, and not March 2001, which is the month at
issue in this appeal. CMS maintains that Hillcrest failed to provide evidence of doctors’
pass orders for the four residents that would apply to the time period prior to and up to the
date of the homicide and home invasion. CMS PHB at 92-93; P. Exs. 7, 51, 52; CMS Ex.
403, at 36. CMS argues that without having the orders for the correct month, there is no
way to tell how they read and what handwritten changes may have been made to them.
CMS PHB at 93; Tr. at 1671-72 ( Hillcrest R.N. Jurilla concurs with CMS’s argument).

CMS is correct. The record before me does not include evidence of March 2001 doctors’
orders allowing pass privileges for R3, R4, R5, and R6. However, even if it did, and if the
March orders were identical to the April orders, I would still find that the doctors’ orders
were not individualized for each resident. The doctors’ orders were vague and ambiguous,
and staff at Hillcrest did not have a consistent understanding of how the orders were to be
interpreted.

2. Hillcrest failed to ensure that R3, R4, R5, and R6 attended their
group counseling sessions or received appropriate individual counseling.

CMS alleges that Hillcrest failed to provide R3, R4, R5, and R6 with the counseling
services they required, and thus failed to provide them with “adequate supervision to
prevent accidents.” CMS PHB at 35. According to Hillcrest, a resident’s failure to
receive offered counseling is no reason to revoke a doctor-issued pass privilege. Hillcrest
contends that facilities should encourage residents to receive group and individual
counseling, but are not required to compel or force residents to receive such counseling.

Hillcrest employs a variety of interventions in dealing with a resident’s failure to attend
group counseling: (1) if a resident is late or absent, they are sought out by professional
staff and encouraged to attend; and (2) a token reward program is a tool used to encourage
residents to regularly attend planned programming. According to Hillcrest’s Supervision
and Care of Residents policy, a resident will be assigned to one of the group therapies and
a psychiatric technician based upon assessment and need. The resident then receives
individual sessions and attends different group meetings on topics such as anger
management, socialization, managing stress, alcohol/drug dependency, social skills, and
problem resolution skills. CMS Ex. 419, at 9.
47

a. Review of residents’ care plans and counseling needs.
R3

R3’s care plan identified her need for individual and group counseling sessions. CMS Ex.
401, at 58-59. It noted that she had poor affect management and when periods of stress
were observed, staff were instructed to “[m]Jake referrals to social service for 1:1” and
“Te]ncourage attendance in therapeutic groups and activities” Jd. In dealing with her
ineffective individual coping skills, her care plan instructed social service staff to make
“1:1 visits [when] depressed” and “[e]ncourage to attend Coping Sessions 1-2 times
weekly.” Jd. at 59. Her care plan instructed staff to “[e]ncourage to attend
Twentysomething Group 1x weekly.” Jd. at 59-61.

During her stay at Hillcrest (a total of 16 days), R3 received the following counseling
services:

(1) Three individual counseling sessions during her first week after her admission
on March 6 (on March 7, 9, 12); and, from March 13 through March 22, one
individual session on the morning of March 22. CMS Ex. 401, at 62.

(2) R3 attended three group counseling sessions during her stay (March 7, 13, 14),
but none occurred during her last eight days at Hillcrest: (1) “Coping with
Depression” group which met twice weekly, R3 attended two of the five meetings
and missed the two sessions held on March 19 and 21, prior to when she reported
her depression on March 22; (2) one session on Women’s Issues on March 13; and
(3) R3 did not attend the “Twentysomething” group which met weekly. CMS Ex.
421, at 1.

A review at R3’s sign-out sheet shows that she was out on pass during her last week at
Hillcrest, and therefore unavailable to attend group sessions during those times.

I find that the record establishes that R3 was encouraged by the psychiatric technician to
participate in group counseling during her initial placement at Hillcrest; however, from
March 12 through March 21, for a total of 10 days, the record does not reflect that R3
received individual counseling, nor does the record reflect that she was prompted to attend
counseling sessions. CMS Ex. 401, at 62. The social service notes indicate that a
psychiatric technician encouraged R3 to attend her group sessions on the following days in
which she received individual counseling: (1) March 7, 2001, when she was encouraged
to participate in “Twenty-something” and “Coping with Depression” groups; (2) March 9,
2001 where she was encouraged to attend the Coping with depression group; and (3)
48

March 22, 2001, when she was encouraged to attend “all depression groups offered.”
CMS Ex. 401, at 62, 64.

R4

R4’s care plan identified a need for regular group and individual counseling which
required staff to “[m]ake referrals to social services for 1:1 contact during periods of stress
or when observed change in mood or behavior,” to “[iJncrease 1:1 contact during periods
of stress,” and “[e]ncourage attendance at HRDI”* relapse prevention group.” CMS Ex.
402, at 56-57. Staff were also to deal with his ineffective individual coping skills through
individual visits and to “[e]ncourage to attend Coping Sessions,” and to “[e]ncourage to
attend 20 Something Group” for therapeutic recreation. Jd. at 57-58.

CMS contends that R4’s chronic absences from Hillcrest contributed to the lack of
individual counseling, and the failure to receive sufficient individual and group counseling
made him an accident risk to himself and other residents. CMS PHB at 115. During his
stay at Hillcrest (a total of 43 days), R4 received the following counseling services:

(1) Twelve individual counseling sessions were received: six during his first week
after admission (February 9, 11, 12, 13, 15 and 16); then from February 17 through
March 23, six individual counseling sessions were recorded in social service notes

(February 18, March 8, 9, 18, 19, 23). CMS Ex. 402, at 72-73.

(2) Nine group counseling sessions which included: four of the six “Coping with
Depression” group meetings during his first three weeks (CMS Ex 421, at 1-2, 19);
during his last three weeks he attended two of the six meetings of this group (/d.);
he attended one session in the “Anger Management” group which met once per
week (/d. at 1, 20); one session of the “Twentysomething” group which met weekly
(CMS Ex. 421, at 1); and one meeting of the “HRDI Sobriety Society” group. Jd.

R4’s group counseling attendance declined as did his individual counseling sessions
during the last half of his stay. During the last three weeks of his stay, he had an average
of one individual and one group counseling session per week. R4 attended nine group
sessions during his six-week stay, and only one of those sessions was during the final two
weeks of his stay.

8 The record before me does not provide an indication as to what “HRDI” signifies.
However, the absence of this information does not effect my Findings and conclusions.
49

Hillcrest asserts that R4’s clinical records reveal that he had “little interest in groups and
activities,” and “does not like to talk in groups.” CMS Ex. 402, at 72 (entries dated
2/11/01 and 2/12/01). Hillcrest staff repeatedly encouraged him to attend groups sessions.
Id. at 72-73 (entries dated 2/12, 2/13, 2/15, 3/9). Thus, in spite of his aversion, R4
attended at least nine group sessions during his six weeks at Hillcrest and 12 individual
counseling sessions. Hillcrest also asserts that during those sessions he denied any
suicidal or homicidal thoughts. Jd.

CMS contends that R4 received few, if any, individual counseling sessions and was not
appropriately confronted and/or counseled even when he did have direct time with
Hillcrest psychiatric technicians.

RS

R5’s transfer report from the inpatient hospital states as a goal that he “continue to receive
treatment for his depression.” CMS Ex. 403, at 13. His care plan identified a need for
regular group and individual counseling. Jd. at 59-61. To avoid his relapse into alcohol
and drug dependence, R5’s care plan directed staff to “[m]ake referrals to social services
for 1:1 contact during periods of stress or when observed change in mood or behavior” and
“[e]ncourage attendance in therapeutic groups and activities.” Jd. at 59.

During his stay at Hillcrest (a total of 22 days), RS received the following counseling
services:

(1) On March 19, 2001, three weeks after R5’s admission to Hillcrest, social
services notes reveal one visit with a counselor which was initiated by R5, and two
visits by counselors on March 23 following R5’s return to the facility after the
homicide. CMS Ex. 403, at 62.

(2) RS attended eight group sessions during his stay: (1) a “Stressbuster’s” group
on March 4; (2) the “Coping with Depression” group met twice per week and he
attended the first five meetings, but missed the session held on March 21, which
was following his self-report of having “disturbing dreams,” “anxiety,” and
depression on March 19, 2001; and (3) the “Anger Management” group met once
per week and RS attended two of the four meetings during his stay. Jd. CMS Ex.
421, at 1-2, 19, 20. The “Twentysomething” group met once per week and RS did
not attend any of their meetings. Jd. at 1. R5 did not attend the “HRDI Sobriety
Society” group meeting which was held at least once during his stay. Jd.
50

RS did not receive any individual counseling visits initiated by Hillcrest counselors during
his stay. CMS Ex. 421, at 1-2, 19. The social service notes reveal that on March 19, RS
“sought out counselor for 1:1.” Jd. During that session, he indicated that he was “having
disturbing dreams” that were “causing him anxiety throughout the day” and making him
feel “depressed.” Jd. The social service notes do not indicate any additional individual
counseling sessions with RS during the next three days prior to March 22, the day of the
homicide and home invasion. CMS Ex. 403, at 62. At hearing, R5’s psychiatric
technician testified that he did not feel the need to monitor R5 more closely after the
March 19 session when RS had told him that he was suffering from anxiety throughout the
day. Tr. at 1926.

R5’s clinical record reveals that he was an individual who had experienced numerous
losses since February 2001. His mother died, his five-year relationship with a girlfriend
ended, and he lost his job. CMS Ex. 403, at 6. On February 21, 2001, he had been
admitted to a psychiatric hospital due to “acute suicidality.” Jd. at 8. On March 19, R5
reported disturbing dreams causing daytime anxiety, and then there was a noted increase in
use of passes. Jd. at 48, 62. However, R5’s clinical record reveals that he did not receive
individual counseling sessions initiated by Hillcrest counselors during this time.

R6

R6’s inpatient hospital records indicate that he had “a very serious psychiatric history,”
and required placement that would “help him engage with treatment.” CMS Ex. 404, at 9,
10. His care plan instructed staff to “[m]ake referrals to social services for 1:1 contact
during periods of stress or when observed change in mood or behavior,” and to
“[e]ncourage [attendance] at HRDI Relapse prevention groups.” CMS Ex. 404, at 48. As
for his noncompliance and his substance abuse treatment regime, R6’s care plan advised
staff to “[e]ncourage to attend HRDI [relapse prevention] and [sobriety society] groups.”
Id, The care plan also instructed staff to “[m]ake referrals to social services for [1:1]
during periods of stress or behavior programs,” and deal with his poor anger and stress
management, coping skills, and impulse control issues. Jd. at 38,39. As for his criminal
behavior, his care plan instructed staff to “[r]efer to social services” and instructed social
service staff to “1:1 visits” and “[e]ncourage to attend Anger [Management] and
Depression Groups.” Jd. As for his potential for ineffective individual coping, his care
plan directed staff to make “1:1 visits when [depressed]” and “[e]ncourage [resident] to
attend Coping Sessions.” Jd.

During his stay at Hillcrest (a total of 35 days), R6 received the following counseling
services:
Sl

(1) R6 participated in eight individual counseling sessions in total, all of
which occurred during the first two weeks after his admission to Hillcrest
(February16, 21, 22, 23, 26, 27, 28, and March 19). CMS Ex. 404, at 60, 61.

(2) R6 attended a total of 12 group counseling sessions during his five-week
stay. CMS Ex. 421, at 1.

For the last 22 days of R6’s stay at Hillcrest, March 1-22, there was only one individual
counseling session which occurred on March 19. CMS Ex. 404, at 60, 61. The clinical
record notations from that session indicate that R6 was encouraged to “seek out counselors
when he needs to talk,” would “continue to meet with writer,” and would be “referred to
Dr. White’s groups for ongoing therapy and monitoring.” Jd. at 60. Although R6’s plan
of care identified his need for individual counseling, there is no documentation of
continued individual counseling after February 28, outside of the March 19 counseling
session. The March 19 entry indicates that a social history was completed and a review of
facility policies discussed with R6. Jd. 60-61. However, there is no reference to any
discussion by a counselor with R6 regarding the recent incident of his expressing that he
was “depressed and often agitated” and described himself as “unhealthy.” Jd. at 63.
However, on March 22, R6 was permitted to sign out of Hillcrest, and was later found to
have spent the entire day driving around and drinking with two other residents.

I find that CMS has established a prima facie case that Hillcrest failed to provide R3, R4,
RS, and R6 with the counseling services they needed as identified in their care plans. It is
clear that R3’s, R4’s, R5’s, and R6’s clinical records identified certain patterns of behavior
that merited precaution that the resident needed something more than to be allowed out on
pass. The record established that each resident was in need of closer monitoring and more
counseling than was provided. Hillcrest had ample reason to be aware of the likelihood of
R3, R4, RS, and R6 encountering some incident which they could not handle. These were
residents with troubled, aggressive, and impulsive backgrounds. Therefore, Hillcrest had a
duty to these residents to provide the appropriate supervision to prevent such foreseeable
adverse outcomes even if Hillcrest could not have predicted the specific crime that
occurred on March 22.

Hillcrest maintains that it cannot force residents to participate in available counseling as
they have a “right to refuse treatment,” and that it encourages its residents to attend
counseling by employing a token reward system and through verbal reinforcement. P.
PHB at 49; Tr. at 1268, 2053. However, as evident by R3’s, R4’s, R5’s, and R6’s sign-out
sheets, their access to the outside community was more motivating to them than tokens
they could have earned by attending counseling sessions. Also, based on the counseling
record of each of the four residents, there was insufficient individual sessions afforded to
these residents to be able to provide consistent verbal reinforcement encouraging them to
52

attend their group counseling sessions. I find that Hillcrest did not take relevant
precautions such as closer monitoring and supervision of these residents who had histories
of psychiatric problems, ineffective coping skills, refusal and noncompliance with
treatment programs and past criminal behavior. These would have included more
individualized counseling initiated by staff and a pass system that was tied to compliance
with the individual’s rehabilitation needs as identified in each of their plans of care. The
failure by Hillcrest to provide the needed supervision which allowed R3, R4, R5, and R6
opportunity to participate in dangerous activities resulted in immediate jeopardy to
residents. Therefore, the record before me provides a preponderance of evidence that
Hillcrest failed to provide adequate supervision designed to meet R3’s, R4’s, R5S’s, and
R6’s needs an thus failed to mitigate foreseeable risks of harm from accidents. The
evidence also provides overwhelming support for a finding that Hillcrest’s noncompliance
was at the immediate jeopardy level.

b. Hillcrest’s assertions of a resident’s right to refuse treatment.

Consistently throughout the hearing, Hillcrest staff reiterated that although they encourage
residents to attend counseling sessions, it is the residents’ legal right to refuse treatment.
Former Clinical Director Mutterer testified that “[i]f a resident chooses not to attend a
group, no, we cannot force them into treatment.” Tr. at 1538-39. Additionally, Mr.
Mutterer testified that Hillcrest could not restrict a resident’s pass usage as Hillcrest was
“legally responsible to allow them to go out on pass based on the resident rights and the
regulations regarding nursing homes.” Tr. at 1267. Mr. Mutterer further testified that “[i]f
somebody presents themselves in a manner that they are a danger to themselves or others
they are immediately hospitalized in an in-patient psych unit to stabilize their symptoms.”
Tr. at 1462.

A resident has the right to refuse treatment, choose health care, and to make choices about
significant aspects of his or her life in the facility. 42 C.F.R. §§ 483.10(b)(4);
483.15(b)(1); 483.15(b)(3). However, the regulation requires that the care plan outline the
services to be provided to the resident. Any services that would otherwise be required
under the quality of care requirement at 42 C.F.R. § 483.25, but could will not be provided
due to the resident’s exercise of his or her rights, including the right to refuse treatment,
and the resident’s right to choose health care must be “consistent with his or her...
assessments, and plans of care.” 42 C.F.R. §§ 483.20(k)(1)(ii), 483.15(b)(1). While there
is no dispute that residents have a right to refuse treatment, Hillcrest had a countervailing
duty to protect the individuals under its care against accidents. Therefore, while the
regulations support a resident’s right to refuse care, such right is not absolute and should
be consistent with the resident’s interest, assessments, and plans of care. See Innsbruck
HealthCare Center, DAB No. 1948, at 7-8 (2004). Additionally, a resident’s right to
refuse treatment does not absolve a facility from a continuous effort to comply with the
53

regulations by use of other means ~ to allow this would mean facilities could permit
residents to refuse treatments to the point of injury or death. See Koester Pavillion, DAB
No. 1750, at 28 (2000). A facility is entrusted with balancing necessary care and services
with a resident’s right to refuse treatment.

The preamble to the implementing regulations state:

We recognize that a facility cannot ensure that the treatment
and services will result in a positive outcome since outcomes
depend on many factors, including a resident’s cooperation
(i.e. the right to refuse treatment), and disease processes.
However, we believe it is reasonable to require the facility to
ensure that “treatment and services” are provided, since the
basic purpose for residents being in the facility is for
“treatment and services” and that is why the Medicare or
Medicaid program makes payment on the residents’ behalf.
We also think it is reasonable to require the facility to ensure
that the resident does not deteriorate within the confines of a
resident’s right to refuse treatment and within the confines of
recognized pathology and the normal aging process.

54 Fed. Reg. 5316, 5332 (Feb. 2, 1989).

3. Hillcrest staff failed to respond properly when R3, R4, R5, and R6
returned to Hillcrest on March 22.

According to CMS, upon the return of R3, R4, R5, and R6 to the facility on March 22,
2001, Hillcrest failed: (1) to fully assess these residents for injuries; (2) to separate these
residents from Hillcrest’s general population; and (3) to call the police in a timely manner.

a. Hillcrest failed to fully assess R3, R4, R5, and R6.

The following was noted when R3, R4, R5, and R6 returned to the facility at 9:55 p.m. on
March 22, 2001:

R4

R4 had “[a]brasions noted on right knuckle, left elbow, right forearm and blood stain in his
jeans.” CMS Ex. 402, at 71; CMS Ex. 414, at 29. The note further indicates that
“[s]upervisor no[t]ified. Endorsed to next shift.” CMS Ex. 402, at 71. The social service
notes reveal that R4 “returned to the facility with intoxication, agitation and anger.” CMS
54

Ex. 402, at 73. In addition, it was noted that R4 “got into verbal altercation which almost
[led] to a fight. Counselor had to separate the res[idents] from one another. As counselor
attempted to redirect res[ident], resident continued to verbalize threatening words to peer.
Res[ident] left the facility in rage.” Jd. According to the police report which provides an

account of R4’s condition when he returned to the facility that evening, “they drove back

to [Hillcrest] where they were observed by a Psychology Technician . . . [She] related that
she observed [R4] with bloody knuckles, and his pants approximately halfway down from
his knees were covered in blood, including bloody hand-prints.” CMS Ex. 414, at 9.

R5

Nursing notes for R5 state that “alcohol smell noticed.” CMS Ex. 403, at 50. The social
service notes describe his condition upon his return: “Res[ident] returned to the facility
with increased intoxication . . . Counselor smelled alcohol on res[ident] from 4 ft away.
Counselor noticed a scratch on his forehead and asked how did it get there. Res[ident]
reported that the resident and another res[ident] [were] wrestling and he accidently got
scratched” . .. Counselor and nursing will continue to monitor for change in mood and
behavior.” Jd. at 62.

Additionally, R4 and RS5 provided inconsistent stories to Hillcrest staff as to how they
obtained their injuries on the evening of March 22:

* CNA Joyce Welcher noted that R4 reported that he ran into a brick wall, and then
later stated that he had been in a bar fight. CMS Ex. 410, at 6.

* R4 is reported to have told R.N. Cheryl Morelli Jacobi and R.N. Ray Sinsong that
he had been in a bar fight and the other guy wasn’t doing very well. Tr. at 602,
750; CMS Exs. 408, at 7; 411, at 12.

* R.N. Joy Goyano reported that R4 told her that he had tripped and fallen on the
ground. Tr. at 600, 749; CMS Exs. 408, at 8; 411, at 5.

* RS reported to Ms. Jacobi that their injuries resulted from R4 and RS goofing
around in a fighting manner. Tr. at 603; CMS Ex. 411, at 13.

R3 and R6

Nursing notes for R3 and R6 also record that “alcohol smell noticed.” CMS Exs. 401, at
63; 404, at 59. Social service notes for R6 describe that he “returned to the facility and
presented with anxiety, intoxication and admitted to drinking alcohol.” CMS Ex. 404, at
61.
55

CMS argues that the four residents were not fully assessed for injuries upon their return to
Hillcrest the evening of March 22. Specifically, there were no full incident reports
completed and the four residents’ vital signs were not taken.

Hillcrest claims that the observations recorded in each resident’s record prove that R3, R4,
RS, and R6 were questioned about their appearance and whereabouts, that they were
carefully assessed, and that complete examinations were not warranted. P. PHB at 57;
testimony of Ms. Costello, Tr. at 2084 (the nurses “examined the scratches and marks that
were on them, and didn’t find any need for further physical exam.”)

In a written statement, Cheryl Morelli Jacobi, the R.N. on duty at Hillcrest on March 22,
wrote that she “assessed all the four residents that came back that evening visually after
noting the blood on one resident’s jeans and that’s when I realized none were hurt and the
blood must have come from someone else.” CMS Ex. 415. She then notes that is when
she called the police. Jd. However, in spite of R.N. Jacobi’s statement as to her
assessment of the four residents, a Joliet police report notes a cut on R5’s chest that is not
referenced at all by Hillcrest staff in R5’s clinical record. CMS Ex. 414, at 15-16.

Surveyor Pettenger testified at hearing that a visual assessment is different than a head-to-
toe assessment as a visual assessment involves “just looking at the person standing there.”
Tr. at 424. Ms. Pettenger testified further that Hillcrest should have completed a full head-
to-toe assessment of each resident:

You start at the top of the head, observing for any signs and feeling for any
lumps. You do the facial for a reaction to light. You look behind the ears.

You look into the mouth for any bleeding. You go into the shoulder. You

go from head to toe.

Tr. at 320.

Considering the state in which these residents returned to Hillcrest that evening, I find that
they should have been fully assessed for injuries. A review of the circumstances
surrounding the return of R3, R4, R5, and R6 to Hillcrest the evening of March 22 would
have justified the need for a complete physical exam of each resident, given that they had
returned from a full-day pass intoxicated, bruised, and bloodied.
56

b. Hillcrest failed to separate R3, R4, R5, and R6 when they
returned to the facility on the evening of March 22.

At hearing, former Clinical Director Costello testified that she decided the evening of
March 22 that the residents did not need to be separated from each other or other residents:

There was no indication that there was any need to isolate any of those
residents at that time . .. . The times when we would use physical isolation
on a resident would be when they seem to be at imminent risk of harm to
themselves or others, and these residents presented as under the influence of
alcohol but there was nothing to indicate that they were at risk to themselves
or others.

Tr. at 2083, 2086.

According to Hillcrest, the police were called by staff, and each resident was assigned a
staff member who monitored the resident on a line-of-sight, one-to-one supervision. P.
PHB at 56. Hillcrest further contends that not even the Joliet police knew at the time that
a homicide had occurred, much less that R4 had committed it. Jd. As to R4’s verbal
altercation that evening, Ms. Costello stated at hearing that “[w]e can’t prevent another
resident from speaking to that resident or prevent R4 from speaking to another resident.
When it did become a verbal altercation, the staff intervened, and that’s what they were
intended to do.” Tr. at 2085.

Considering the state in which R3, R4, RS, and R6 returned to the facility that evening,
they should have been separated and counseled so that staff could ascertain their past
whereabouts especially as they had been out on pass for a full day and returned
intoxicated, bruised, and bloodied. As discussed earlier, R4 and RS provided staff with
different explanations as to why there was blood on their clothing.

Although Hillcrest contends that it provided one-on-one supervision to each of the
residents, I find that steering residents to common rooms in which staff are present but
performing other duties and watching other residents, does not equate to one-on-one
supervision. It just was not apparent from the record before me that any staff member was
specifically assigned to watch each of the four residents or to observe any particular
resident continuously. The condition in which these residents, particularly R4 and R5,
returned to Hillcrest the evening of March 22, and the discrepancies in how they sustained
their bruises and the blood on their clothing, warranted closer supervision. Clearly, based
on their conditions as presented that evening to staff, the residents lacked safety awareness
and therefore should have been considered to possibly act in ways which would endanger
themselves or another resident absent staff supervision. I find that an assignment of line-
357

of-sight supervision was not sufficient to meet the necessary supervision requirements.
Clearly, Hillcrest failed to provide supervision adequate to protect R3, R4, R5, and R6 the
evening of March 22 when the four residents returned to the facility.

c. Hillcrest staff did not fail to call police in a timely manner.

There was a 45-minute interval between the time the four residents signed into Hillcrest
the evening of March 22 and the time staff phoned the police. During this time, staff
assessed the residents’ risk of harm to themselves and others, notified supervisors and
physicians, considered the assignment for one-to-one monitoring, and then called police.

According to Joliet Police Department documents, Hillcrest staff called the police at
10:31 p.m - the parties agree that the call to the police occurred on March 22, 2001.”
CMS Exs. 414, at 1; 422, at 1. The Hillcrest sign-out sheets for R3, R4, R5, and R6
indicate that they signed back into the facility between 9:45 p.m. and 9:55 p.m. on March
22. CMS Exs. 401, at 61; 402, at 69; 403, at 48; 404, at 57. Therefore, staff called the
police at most 45 minutés after the residents signed back into the facility. Given that staff
needed to interview the residents, perform assessments, and speak to the Clinical Director
and Administrator, I do not find a 45-minute period before police were called to be
unreasonable.

I agree with CMS that four residents returning to a facility intoxicated and with blood on
their clothes would be disconcerting, but I do not agree that it prompted an immediate call
to police until further investigation by staff could occur. Rather, I agree that staff needed
time to evaluate the situation to determine if the residents were injured and to have an
opportunity to talk with each of the residents to ascertain what may have occurred. The
fact that R4 was reported as being enraged and then left the facility out the back door did
not, standing alone, justify calling the police immediately. CMS Exs. 402, at 73; 414 at 9,
10. Although I have found that staff did not do comprehensive physical assessments of the
residents and failed to separate them, I find that staff called the police in a timely manner
once they determined there was a need for police intervention.

» T take note that two of the police reports appear to be conflicting as to the date
Hillcrest staff called the police to the facility. The Offense Report records the incident
report date as March 23, 2001, whereas the Location Search report records the date as
March 22, 2001. Since the date of the call is not in dispute, and the testimony confirms
March 22 was the actual report date, I will accept March 22, 2001 as the date Hillcrest
staff called the police to the facility. See CMS Ex. 414, at 1 compared to CMS Ex. 422,
at 1.
58

Although I find that Hillcrest’s 45-minute time interval in calling the Joliet police was
reasonable, there is ample evidence before me to support CMS’s determination that
Hillcrest’s failure to comply with the requirements of 42 C.F.R. § 483.25(h)(2) was at a
level of immediate jeopardy. I conclude that CMS has established a prima facie case
which Hillcrest has not been able to rebut, that Hillcrest violated the supervision
requirement of 42 C.F.R. § 483.25(h)(2).

I find that the previously discussed deficiencies which the surveyors assessed at a level of
immediate jeopardy are sufficient to sustain the deficiency citation under tag F324, and
therefore find it unnecessary to discuss other alleged deficiencies. For instance, I will not
discuss whether Hillcrest violated standards of nursing practice by:

(1) failing to contact R4’s medical doctor and psychiatrist to review his treatment
plan and revisit his orders after his significant change in condition after March 17,
2001; and failing to contact R5S’s medical doctor and psychiatrist to revisit his
orders after his significant change in condition after March 19;

(2) failing to contact R4’s medical doctor and psychiatrist to question whether the
circumstances surrounding his return from his pass outing on March 17 constituted
a contraindication;

(3) failing to contact R5S’s medical doctor and psychiatrist to question whether his
condition on the morning of the homicide and home invasion constituted a
contraindication; and failing to monitor R4 more closely even after it became aware

of his deceptive behavior after his return from his pass outing on March 17, 2001;
and

(4) failing to follow its Code White and other policies after R3, R4, R5, and R6
returned to Hillcrest after the home invasion and homicide.

CMS PHB at 102-33.
4. There is no merit to Hillcrest’s other arguments.

Hillcrest raises several other arguments which I address below:
59

a. Section 483.25(h)(2) of 42 C.F.R. does not apply to intentional
crimes committed away from the facility.

Hillcrest argues that a threshold question of law exists as to whether 42 C.F.R.

§ 483.25(h)(2) applies to this case. According to Hillcrest, the homicide and home
invasion that occurred on March 22 did not constitutue an “accident,” and the victim was
not a “resident” of Hillcrest. Hillcrest additionally argues that the homicide and home
invasion occurred at an apartment complex approximately four miles away from the
facility, and that the homicide and home invasion was entirely unpredictable. Hillcrest
States that it is a nursing home, not a law enforcement agency, and that the cited regulation
simply does not apply to intentional criminal acts committed away from the facility against
nonresidents.

Hillcrest further asserts that CMS reads a supervision aspect or requirement into the
regulation that is unrelated to or independent from the phrase “‘to prevent accidents.”
Hillcrest asserts that the home invasion and homicide could not have been predicted or
prevented. Thus, according to Hillcrest, an intentional crime against a nonresident away
from the facility cannot constitute immediate jeopardy. Hillcrest claims that CMS violates
due process by interjecting a requirement into 42 C.F.R. § 483.25(h)(2) that Hillcrest
should have prevented the residents from committing crimes while out on pass.

It is apparent that Hillcrest focuses on the wrong issue. Although circumstances
surrounding an accident could provide evidence of the inadequacy of the supervision
provided to protect a resident, an event or condition that is not an accident may also
provide such evidence as well. Woodstock Care Center, DAB No. 1726 (2000), aff'd,
Woodstock Care Ctr. v. Thompson, 363 F.3d 583 (6" Cir. 2003). Therefore, the focus
when looking at section 483.25(h)(2) should be on whether the evidence demonstrates that
a facility has failed to provide adequate supervision and assistance devices to prevent
accidents, given what was reasonably foreseeable.

In order to comply with section 438.25(h)(2), Hillcrest and its staff were required to take
all reasonable measures to provide residents with sufficient supervision to protect them
against sustaining accidents. The consequences of Hillcrest’s error in being lax about its
supervision of day passes were foreseeable, even though the specific crime of home
invasion and murder committed in this case may not have been foreseeable. The doctors’
orders relative to pass privileges required clarification. Hillcrest was dealing with
psychiatric residents who were on highly complicated medication regimes and yet were
60

authorized to leave the facility for extended periods of time without their medications.
The doctors’ orders relative to pass privileges for the residents at issue were vague.
Hillcrest violated the supervision requirement of 42 C.F.R. § 483.25(h)(2) when it allowed
its residents to leave on pass without sufficient medications and without clarification of
doctors’ orders.

Hillcrest had reason to know that closer supervision by staff would be necessary for R3,
R4, RS, and R6. In coming to my conclusion, I considered the actions Hillcrest took to
identify, remove, or protect residents and ensure their safety to the maximum extent
possible. Hillcrest cannot prevail if, as I found here, it could have reasonably foreseen that
its lax pass policy would create a condition that would endanger residents’ safety either
generally, or for a particular resident or residents, as in the cases of R3, R4, R5, and R6.
When the level and kind of supervision provided to R3, R4, R5, and R6 were examined in
order to determine whether they were sufficient to prevent any untoward events, I found
that Hillcrest did not do everything in its power to prevent accidents. Odd Fellow and
Rebekah Health Care Facility, DAB No. 1839, at 6-7 (2002)(quoting Asbury Center at
Johnson City, DAB No. 1815, at 12 (2002) and Koester Pavilion, DAB No. 1750, at 25-26
(2000)).

A facility’s duty to its residents does not cease as soon as that resident leaves the facility
doors on pass privileges. Therefore, Hillcrest can be faulted for failing its obligation to
care for these residents, both for its actions and inactions while the residents were in the
facility and after the residents left the facility’s grounds. I cannot agree with Hillcrest’s
rationale that it is absolved of its responsibility to care for residents as soon as they leave
the facility - even if the residents have the capacity and freedom to go outside the facility
pursuant to pass privileges. Hillcrest cannot abdicate its responsibility to provide
supervision that is adequate and appropriate. Here, Hillcrest did not know the
whereabouts of its residents for significant periods of time. Hillcrest’s responsibility is to
enable its residents to effectuate their choices to exercise pass privileges safely without
placing them at risk. Therefore, during the period of time each of these residents was
missing from the facility, Hillcrest was unable to effectuate its duty to provide these
residents with the type and degree of supervision adequate for preventing accidents to
them.

Even if Hillcrest’s failure to comply did not harm the residents in question, this would not
make the finding of a deficiency under section 483.25(h)(2) improper. The preamble to
the final regulations, addressing the suggestion that “all deficiency citations made by
surveyors should include what the negative outcome is,” stated that “[a] violation of any
participation requirement must be considered a deficiency, even if the violation caused no
negative outcome to occur.” 59 Fed. Reg. 56116, 56227 Nov. 10, 1994). If one or more
deficiencies are severe enough to create at least the potential for more than minimal harm
61

to resident health and safety, enforcement remedies, including a CMP, are selected by
CMS based on the scope of the deficiency (i.e. whether noncompliance is isolated, pattern,
or widespread). 42 C.F.R. § 488.301; The Windsor House, DAB No. 1942, at 2-3, 61
(2004). However, immediate jeopardy can exist regardless of the scope of the deficiency.
See Scope and Severity Grid, 59 Fed. Reg. 56,116, 56,183 (Nov. 10, 1994); State
Operations Manual § 7500.

b. Hillcrest is not being held “strictly liable.”

Hillcrest asserts that CMS is attempting to hold it “strictly liable” for the crimes any
residents might commit while “off-campus.” Hillcrest correctly cites to Hermina Traeye
Memorial Nursing Home:

A facility is not required by 42 C.F.R. § 483.25(h)(2) to assure that its
residents never sustain accidents. The regulation does not impose a strict
liability standard on a facility. Rather, the regulation requires that the
facility provide “adequate” supervision and assistance devices to its residents
as a safeguard against accidents. A facility satisfies the requirements of the
regulation if it takes reasonable precautions to protect the health and safety
of its residents against accidental injuries.

Hermina Traeye Memorial Nursing Home, CR756 and CR757, 12-13 (2001), aff'd, DAB
No. 1810 (2002); aff'd, Hermina Traeye Memorial Nursing Home v. Dep’t of Health &
Human Services, No. 02-2076 (4" Cir. Oct. 29, 2003).

Hillcrest is correct in that a facility’s responsibility to provide adequate supervision and
assistance to its residents in order to protect them against accidents is not one of strict
liability. A facility is not liable for unforeseeable events. However, a facility is
responsible for identifying all accidents that are foreseeable, given each resident’s
condition and the facility environment, and also for taking all reasonable steps necessary to
protect residents from sustaining an accident. Koester Pavilion, DAB No. 1750 (2000).

The Board has stated that it is not necessary for an accident to actually have occurred to a
resident for a facility to be out of compliance with this requirement, but that the issue is
“whether the quality of supervision . . . was such that residents were subject to the risk of
injury from accidental causes in their daily activities.” Woodstock, DAB No. 1726, at 35.
Further, “[o]ecurrences that do not themselves constitute accidents may well be evidence
that the supervision provided was not adequate to prevent accidents.” Jd. Providers are
62

not strictly liable as insurers or unconditional guarantors of good outcomes in the delivery

of services to residents. Rather, the quality of care provisions of section 483.25 impose an
affirmative duty upon the provider to deliver services designed to achieve the best possible
outcomes to the highest practicable degree. Jd. at 25.

Although section 483.25(h)(2) does not make a facility strictly liable for accidents that
occur, it does require the facility to take all reasonable steps to ensure that a resident
receives supervision and assistance devices that meet his or her assessed needs and
mitigate foreseeable risks of harm to residents from accidents. Woodstock Care Center v.
Thompson, 363 F.3d. 583, 590 (6" Cir. 2003). Although a facility can choose the method
of supervision it uses to prevent accidents, the method chosen needs to be “adequate.” Jd.
To determine if the supervision is “adequate,” we look at the resident’s ability to protect
himself or herself from harm. Jd.*°

A central reason for housing a resident in an intermediate care facility is to provide the
resident with care, including supervision, which the resident is unable to provide for
himself or herself, or that the resident’s family is unable to provide at home. Under the
applicable regulation, that duty includes doing whatever is within the facility’s capability
to provide the resident with supervision and assistance. It is within the realm of possibility
that there might be instances where a facility decides reasonably that it had done all that it
was able to do and an incident or accident still occurs.

Compliance with section 483.25(h)(2) requires a facility to assess its residents’ status
continuously so as to be able to confront problems as they develop and to evaluate the
efficacy of measures instituted to deal with residents’ needs and problems. If treatment
methodology is ineffective, a facility is obliged to attempt new measures until it either
develops an approach that works or exhausts all possible avenues of protection.

Therefore, the issue here is whether Hillcrest failed to provide its residents with adequate
supervision to prevent accidents. Although the regulation does not make Hillcrest strictly
liable for every accident that occurs on or off its premises, as discussed above, it does
require Hillcrest to do everything within its power to protect residents against accidents
that are foreseeable. The clinical records for R3, R4, RS, and R6 were replete with
documentation warning of their behavioral propensities and manifestations so that
Hillcrest could have predicted that without proper monitoring and supervision of these

*° The Board has articulated a facility’s requirements under 42 C.F.R. § 483.25(h)(2) in
the following Board cases: Estes Nursing Facility Civic Center, DAB No. 2000 (2005);
Northeastern Ohio Alzheimer’s Research Center, DAB No. 1935 (2004); Guardian Health Care
Center, DAB No. 1943, at 17-18 (2004); Woodstock Care Center, DAB No. 1726, at 28 (2000),
aff'd, Woodstock Care Center v. Thompson, 363 F.3d 583 (6" Cir. 2003).
63

residents there would be adverse outcomes. Additionally, Hillcrest fell short of what could
reasonably be considered adequate supervision under the circumstances, even after it was
clear that its practices were wholly ineffective for these residents.

The evidence before me establishes that Hillcrest failed to provide the necessary
supervision and protections that the regulation requires. That is the basis for Hillcrest’s
deficiency.

C. Hillcrest was cited for a violation of 42 C.F.R. § 483.45(a)(1) - (2) - (tag F406,
Specialized Rehabilitative Services).

The regulation requires that specialized rehabilitative services (i.e. physical therapy,
occupational therapy, speech therapy and mental health rehabilitative services for mental
illness) as required by a resident’s care plan must be provided by a facility or obtained from
an outside resource. 42 C.F.R. § 483.45(a)(1) and (2). According to the April SOD,
Hillcrest failed to consistently implement crisis intervention for two residents, R4 and RS.

Hillcrest was cited by IDPH surveyors during the April Survey under tag F406 as allegedly
failing to provide specialized rehabilitative services, such as timely crisis intervention, for
R4 and RS. CMS Ex. 1, at 20-22. It is not necessary for me to address tag F406, at scope
and severity level of E (no actual harm with the potential for more than minimal harm), as I
find the deficiency cited at tag F279, Resident Assessment, fully supports the DPNA
remedy imposed by CMS. See Batavia Nursing and Convalescent Inn, DAB No. 1911, at
22-24 (2004).

D. Hillcrest was out of substantial compliance with the participation requirement
at 42 C.F.R. § 483.75 - (tag F490, Administration).

A facility must be administered in a manner that enables it to use its resources effectively
and efficiently to attain or maintain the highest practicable physical, mental, and psycho-
social well-being of each resident. 42 C.F.R. § 483.75. A finding that a facility’s
administration was out of substantial compliance may be derived from findings that the
facility did not achieve and maintain substantial compliance in other areas. Where a facility
has been shown to be so out of compliance with program requirements that its residents
have been placed in immediate jeopardy, the facility was not administered in a manner that
used its resources effectively to attain the highest practicable physical, mental, and psycho-
social well-being of each resident. Asbury Center at Johnson City, DAB No. 1815, at 11
(2002).
64

The evidence before me strongly supports a conclusion that the residents whose care is at
issue needed to be supervised closely by Hillcrest’s staff. However, Hillcrest staff allowed
residents to leave on pass which enabled these residents to be out of the facility sometimes
for extended periods of time without supervision. Hillcrest had not developed procedures
which contained criteria for determining which residents could receive passes. Nor did it
enforce its policies and procedures to ensure that residents did not abuse drugs or alcohol
even though it was aware that certain residents had known destructive behaviors and known
or suspected alcohol abuse.

As previously discussed, I conclude that Hillcrest’s quality of care deficiency findings at
tag F324 posed immediate jeopardy to resident health and safety, and thus, justifies the
finding that the facility was not in substantial compliance with 42 C.F.R. § 483.75.

VII. June Surveys

A revisit and complaint survey was conducted on June 6, 2001, which revealed that
Hillcrest still had not achieved and maintained substantial compliance with participation
requirements. Two repeat deficiencies were identified: a violation of 42 C.F.R.

§ 483.20(k) at tag F279 (Resident Assessment); and a violation of 42 C.F.R.

§ 483.25(h)(2) (Quality of Care) at tag F324. The deficiencies resulted in the imposition of
a CMP of $200 per day, effective June 6, 2001.

A. Hillcrest was cited for violating 42 C.F.R. § 483.20(k)(Resident Assessment) at
tag F279 - a repeat deficiency.

1. Hillcrest failed to care plan R9’s assaultive behavior.

Hillcrest was found in violation of the quality of care regulation at section 483.20(k)
because R9’s care plan made no mention of his tendencies toward verbal or physical abuse.
CMS Ex. 613, at 5-17. Specifically, after R9’s hospitalization for assault on March 28,
2001, his care plan was not revised to address his physically abusive behavior. Rather,
R9’s care plan notes that he has the “potential for anxiety.” Jd. at 5. R9 is also noted as
weighing approximately 130 pounds; suffering from weakened extremities; very “spastic”
and prone to seizures; mobile via a wheelchair; and able to transfer from chair to bed, but
requiring staff assistance to ambulate to the bathroom. CMS Ex. 613, at 8, 14, 15, 20.

During the relevant time period at issue, R9 was 29 years old. CMS Ex. 613, at 18-19. He
was admitted to Hillcrest on January 5, 2001, and his clinical record indicates diagnoses of
unspecified psychosis and bipolar affective disorder. Jd. at 3. His MDS, which was
completed on the date of his admission to Hillcrest, states that R9 resists care and
demonstrates verbally abusive behavioral symptoms. Jd. at 25.
65

A review of R9’s clinical record reveals the following notations related to incidents of his
aggressive behaviors:

(1) A nursing note indicates that he was counseled on January 9, 2001, for
threats he made toward his roommate. CMS Ex. 613, at 31.

(2) On February 22, 2001, staff met with R9 to discuss “recent conflicts with
[his] roommate.” CMS Ex. 613, at 31.

(3) On March 8, 2001, when staff approached R9’s door to his room which
was closed, he was physically blocking the door from staff access to his
room. He was reported as being agitated and was “screaming profanities.”
CMS Ex. 613, at 31.

(4) On March 22, 2001, R9 was reported as being “agitated and anxious,”
and it is noted that he had thrown his snacks on the floor, and “made a fist
sign towards the CNA [Certified Nurse Aide].” CMS Ex. 613, at 34.

(5) On March 28, 2001, R9 was noted as being physically abusive, that he
had shoved an individual and then hit both a resident and a housekeeper.
CMS Ex. 613, at 34. R9 was promptly hospitalized that same day due to his
behaviors, and then later readmitted to Hillcrest on April 6, 2001. Jd. at 3, 34.

(6) On May 3, 2001, R9 was noted as expressing concern over his cigarettes
being stolen which, according to the note, appears to have been the cause of
his conflicts. CMS Ex. 613, at 31. The note further states that he “continues
to display aggressive behavior this quarter . .. Resident has also been verbally
abusive towards staff.” Id.

(7) On May 12, 2001, it is noted that when handed a milkshake by a nurse,
R9 threw it onto the floor. CMS Ex. 613, at 31.

The evidence is clear that R9’s MDS did reflect his verbally abusive behavior symptoms;
however, it did not address any incidence of physical abuse. CMS Ex. 613, at 25.
Additionally, the MDS was not updated to reflect his assaultive behavior. Jd. Neither was
R9’s care plan updated. Jd. at 33-35. Therefore, I find that Hillcrest did not properly care
plan R9’s assaultive behavior which, on at least one occasion as described above, resulted
in his emergency hospitalization. Given this, R9’s care plan failed to place Hillcrest staff
on sufficient alert as to his potential problem behaviors and failed to outline intervening
approaches as required by the regulation.
66

Accordingly, I conclude that Hillcrest’s failure to care plan R9’s assaultive behavior
tendencies so that staff could appropriately monitor and supervise him was a violation of 42
CFR. § 483.20(k).

2. Hillcrest failed to adequately care plan R10’s wandering and
elopement tendencies.

During the time period at issue, R10 was a 55-year-old female with diagnoses of obsessive-
compulsive disorder and schizophrenia. CMS Ex. 614, at 4. While at the facility on June 5
and 6, 2001, surveyors were presented with a list of residents who were at risk for
elopement. R10’s name was on the list. However, R10’s care plan, dated May 21, 2001,
did not address R10’s wandering and elopement tendencies. CMS Exs. 2, at 2-3; 614, at
14-18.

At hearing, former Clinical Director Mutterer testified that R10’s wandering behaviors
constituted either authorized visits to the thrift shop at the local hospital across the street
from Hillcrest to purchase items, or inconsequential rummaging in other residents’ rooms.
Tr. at 1289-90. Mr. Mutterer stated that R10 had a doctor’s order allowing her to go out on
pass unsupervised. See P. Ex. 60, at 1 (dated 1/10/2001).*! Hillcrest argues that there is a
distinction between R10’s wandering behaviors and her elopement tendencies.

A review of R10’s clinical record reveals the following notations regarding incidents
related to her wandering and elopement tendencies:

(1) On January 24, 2001, R10 insisted that she no longer wished to reside at
the facility and was planning on leaving. This behavior resulted in R10
receiving an intra-muscular injection of Ativan “for agitation.” CMS Ex.
614, at 5.

(2) On January 25, 2001, R10 attempted to leave the facility at 2:14 a.m., which
resulted in an intra-muscular injection of Haldol. CMS Ex. 614, at 5.

(3) On February 6, 2001, R10 was transferred to a hospital due to her
tendency to wander outside the facility. CMS Ex. 614, at 6.

3! T note for the record that CMS raised an issue of prejudice in relation to the admission
of P. Ex. 60. P. Ex. 60 contains a doctor’s order allowing R10 unsupervised pass usage. CMS
argues that P. Ex. 60 was not disclosed until January 2004. At hearing and in its post-hearing
brief, CMS argued that the admission of this exhibit was prejudicial to its case and requested that
the exhibit and all references to it be struck. However, I admitted P. Ex. 60 as I found that the
probative value of the evidence outweighs any potential for prejudice to CMS.
67

(4) On February 28, 2001, R10 was noted as being “very agitated” and
wanting to leave the facility. An intra-muscular injection of Haldol was
administered to R10. CMS Ex. 614, at 6.

(5) On March 7, 2001, R10 attempted to leave the facility and was counseled.
She later left the facility, appeared at the emergency room at the hospital
across the street, and was escorted back to Hillcrest. CMS Ex. 614, at 12.

(6) On March 15, 2001, R10 was hospitalized due to a change in mental
status (record noted R10 as being “‘delusional”), and her habit of wandering
outside the facility. CMS Ex. 614, at 6.

(7) On April 1, 2001, R10 did not return from her pass to church. A Missing
Persons police report was filed. On April 2, 2001, R10 called the facility to
advise them of her intent to move into a hotel for a month. CMS Ex. 614, at
7, 8; Tr. at 1376.

Mr. Mutterer testified that R10’s son, who is also her legal guardian, wanted R10 to
continue her visits to the thrift store, but had decided that due to a change in her condition
that “he did not want her going out unsupervised.” Tr. at 1293. Her son expressed his
preference that “she go out on supervised passes with either himself or facility staff
members.” Jd. According to Mr. Mutterer, it was after this conversation that R10’s name
was placed on the facility’s June 5 and 6 Elopement Risk List, and R10’s supervision was
increased as a condition of her pass privileges. CMS Ex. 608, at 27; Tr. at 1291-94, 1377-
78.

A review of R10’s care plan reveals that it does not address her wandering and elopement
tendencies. CMS Ex. 614, at 14-26. Whether Hillcrest prefers to call her departures
wandering or elopement is not relevant. Based on R10’s demonstrated behaviors as
outlined above, Hillcrest should have care planned for these tendencies. Hillcrest
characterizes R10’s wandering as harmless and occasioned by her obsessive-compulsive
disorder. Hillcrest argues that R10 had a doctor’s order allowing her to go out on
unsupervised visits. In reviewing P. Ex. 60, I agree with Hillcrest that the doctor’s order
for February 2001 clearly states “[m]ay leave facility without contraindications with or
without meds.” Jd. at 1. However, given R10’s tendencies of wandering, and, specifically
the expressed wishes of R10’s son and legal guardian, R10’s doctor should have been made
aware of her tendencies and the son’s preferences. The doctor’s order should have been
amended. Based on the record before me, I do not see where R10’s doctor was informed of
the wishes of R10’s son and legal guardian.
68

I conclude that Hillcrest’s failure to care plan R10’s wandering and elopement tendencies
so that staff could appropriately monitor and supervise her departures was a violation of 42
C.F.R. § 483.20(k).

3. Hillcrest adequately care planned R11’s elopement tendencies.

The parties disagree as to whether R11’s departures from the facility constituted actual
elopements, or unauthorized departures. A review of R11’s nursing notes reveal:

(1) R11’s first departure in question was on April 15,2001. Tr. at 228. He
was found on a main street attempting to hitchhike, was retrieved by staff and
instructed to stay at the facility. Tr. at 446. However, he subsequently left
and walked to a bar. Tr. at 228. Staff retrieved him and recorded in the
nursing notes that R11 had “broken facility rules after signing [a] contract
three days prior” and “would not be able to leave on pass without proper
supervision until behavior was stabilized.” CMS Ex. 615, at 27.

(2) Subsequent to this entry, there is no intervening documentation in the
nursing notes regarding R11 leaving the facility.

(3) A May 31, 2001 nursing note entry indicates that R11 was due for a
quarterly review. Several incidents are recorded outlining R11’s interactions
with peers and staff within the facility, but there is no reference to his leaving
the facility unsupervised. CMS Ex. 615, at 28. The entry also notes that R11
“has resisted nearly every attempt at intervention that has been made” and
that he “is difficult to re-direct, often refusing to comply with staff’s requests
that he discontinue his problematic behavior.” Jd.

(4) In early June of 2001, Hillcrest determined that R11 presented as an
elopement risk and, therefore, included his name on the facility’s Elopement
Risk List. CMS Ex. 608, at 27.

R11’s plan of care shows an entry, dated June 1, 2001, which states:
Resident is restless at times and may attempt to leave the facility
unsupervised. Requires supervision with outside passes. Resident may at
times become resistant to staff interventions and or redirection. Resident will

at times become argumentative with staff.

CMS Ex. 615, at 17.
69

R11’s March, April, and May 2001 doctor’s orders note that R11 “[mJay leave facility
without contraindication with or without meds.” P. Ex. 61, at 1-3. I find that R11’s
departure on April 15, 2001, was not an elopement. I find persuasive Hillcrest’s argument
that as of April 15, 2001, R11 was not yet identified as an elopement risk. I also find that
Hillcrest staff intervened appropriately by attempting to use a less restrictive method with
R11, and the record establishes that there were no other documented attempts by R11 to
exit the facility without supervision. I find that Hillcrest re-evaluated the scope of R11’s
pass privileges after his second exit from the facility on April 15, 2001, determined that the
supervisory restrictions were needed and implemented them immediately. CMS Ex. 615, at
27. When R11 demonstrated his resistance to staff intervention and re-direction as noted in
the May 31, 2001 nursing note entry, Hillcrest adequately care planned R11’s elopement
tendencies on June 1, 2001,” and included his name on the elopement list in early June
2001. I conclude that Hillcrest adequately care planned R11’s elopement tendencies.

4. R11’s updated care plan was not accessible to Hillcrest staff.

On the morning of June 6, 2001, Surveyor Pettenger asked for R11’s care plan. Former
Clinical Director Michael Mutterer presented to Surveyor Pettenger with R11’s care plan
which was dated May 25, 2001. CMS Ex. 615, at 4-9. The care plan did not include any
reference to R11’s elopement behaviors. CMS Exs. 3, at 3; 601, at 1; 615, at 4-9.

During the survey, and prior to Mr. Mutterer handing Surveyor Pettenger a hard copy of the
care plan, Charge Nurse Genevieve Skiparnia was unable to access R11’s updated care plan
from Hillcrest’s computer. Additionally, Nurse Skiparnia was unable to identify which
residents were at risk for elopement when asked by Surveyor Pettenger. CMS Exs. 2, at 3-

® Pp. Ex. 61 was received by counsel for CMS on January 6, 2004. CMS has objected to
the admission of this exhibit claiming prejudice. CMS claims that had it subpoenaed the doctor,
clarification may have been obtained as to the actual intended scope of the order. However, the
wording on R11’s doctor’s orders is the same as all other orders for Hillcrest residents who have
pass privileges. CMS repeatedly questioned the wording of those orders as well, and yet failed to
request a subpoena for the doctor for clarification as to the intended scope of those orders.
Additionally, the hearing was reconvened from March 1-4, 2004. This extra time afforded CMS
ample opportunity to solicit the information it needed. I do not find that CMS was prejudiced
with the admission of P. Ex. 61. However, even if CMS could establish it was prejudiced, I find
that the probative value of the evidence outweighs any potential for prejudice to CMS.

® ] do not find a basis for CMS’s inference that the updated care plan at issue was
possibly inserted by staff on June 6 rather than June 1. CMS PHB at 164.
70

4; 601, at 1; 608, at 38. Less than two hours later, Mr. Mutterer presented Surveyor
Pettenger with a version of the care plan which did include R11’s elopement behaviors.
CMS Ex. 615, at 17. This care plan was noted as having been updated on June 1, 2001.
CMS Exs. 2, at 3; 601, at 1; 615, at 17.

CMS has established that R11’s care plan was inaccessible to staff the morning of June 6,
2001. The daytime charge nurse failed in her attempt to bring up R11’s care plan on the
computer. The only copy then available to staff for reference would have been the
unrevised care plan which did not indicate the supervisory restrictions for R11. Also, CNA
Darlene April indicated to the surveyors that the DON’s office, which houses hard copies
of all care plans, is not always open to staff. CMS Ex. 607, at 14.

I find that Hillcrest has not overcome CMS’s showing by a preponderance of the evidence
that R11’s care plan was inaccessible to staff the morning of June 6, 2001.

B. Hillcrest was cited for violating 42 C.F.R. § 483.25(h)(2) (Quality of Care) at
tag F324 - a repeat deficiency.

1. Hillcrest failed to maintain its first floor doorway free from debris.

Hillcrest was cited for failing to maintain a first floor east doorway free from debris. CMS
Ex. 2, at 7. This doorway leads to the outside of the facility. The debris noted during the
survey consisted of “a broom handle” and “a branch approximately 2 inches in diameter.”
Additionally, the doorway was noted as being “cluttered with paper bags and leaves.” Jd.

Former Administrator Kalkowski testified that the door at issue was not used as an exit or
entrance, and on the advice of life safety surveyors, the exit sign which originally hung over
the doorway was removed to ensure that the door would not be misconstrued as an
emergency exit. Tr. at 1369, 1370. Also, Hillcrest contends that the door in question faces
a large forest preserve which can result in leaves and, occasionally, branches accumulating.
P. PHB at 88-89. Hillcrest maintains a landscape contract which requires bi-weekly
cleaning of any debris on the grounds, including raking of leaves. Tr. at 1367.

Although Hillcrest had taken measures by contracting with a landscape company to ensure
the perimeter of the building was free from debris, removed the exit signs so that residents
did not mistake it for an exit, and locked the door from the exterior, residents still could exit
from the door to go outside. The door is not locked from the inside and therefore can be
used as an exit. Given this, I agree with CMS that a risk still remains. Therefore, the area
must be kept clean from debris at all times. Although Hillcrest did explain that the paper
71

bags noted by the IDPH surveyors are used to collect the leaves and debris that accumulate
in that area, the paper bags should have been removed once full and not allowed to remain
near the door where they could obstruct clear access. I conclude that the violation was
correctly cited by IDPH surveyors.

2. Hillcrest did not violate 42 C.F.R. § 483.25(h)(2) as regards to R9’s
fall on May 12, 2001.

On May 12, 2001, while crossing the threshold between the second floor doorway and
patio, R9’s wheelchair tipped over. CMS Ex. 613, at 35. R9 did not sustain any injuries.
Id. DON Tierney testified that R9 fell in the doorway, and that there was a quarter-inch
tidge which consists of a normal threshold for a doorway. Tr. at 1826.

Hillcrest argues that R9 had successfully negotiated this threshold on other occasions and
that the May 12, 2001 recorded fall was more likely intentional, and an attention-seeking
incident. P. PHB at 89-90. CMS states that the condition of the doorway threshold is
hazardous, and the facility should have assessed the safety of its doorway, or should have
provided R9 with a monitor to supervise his passage through the doorway. CMS PHB at
170, 171.

I note that IDPH surveyors cited Hillcrest under the quality of care deficiency, and as CMS
has not cited any authority indicating that a quarter-inch threshold is a hazard, I will only
address the supervision aspect of this violation.

DON Tierney testified that R9 had had other falls in the facility, although not on that
threshold. She further testified that although R9 is susceptible to falls, “he also uses that as
a means of acting out.” Tr. at 1829. A review of R9’s clinical record reveals that he has a
history of falls, was on psychoactive medications, has a general weakness in all extremities,
but was able to transfer independently to and from his wheelchair. CMS Ex. 613, at 11, 15,
17. The crux of CMS’s argument seems to be on the safety of the threshold. However, As
previously noted, CMS does not cite any authority to establish that the threshold was a
safety hazard. CMS also suggests that Hillcrest should have provided R9 with a monitor to
ensure safe passage through the doorway. However, CMS has not persuaded me that such
a requirement was necessary in R9’s case, given that his care plan establishes that R9’s
proclivity for falls is related to his psychiatric diagnoses. CMS Ex. 613, at 11.
Additionally, R9’s clinical record establishes, and his MDS assesses his ability to move
between locations in his room and around the residential floor as not requiring physical
assistance from staff. Jd. at 20.
72

IDPH surveyors cited Hillcrest under section 485.25(h)(2), which requires that a facility
provide each resident with adequate supervision and assistance devices to prevent
accidents. I find credible Hillcrest’s argument that R9’s fall on May 12, 2001, more likely
was attributed to his proclivity toward temper tantrums and throwing himself out of his
wheelchair. Therefore, I conclude that the violation, specific to lack of supervision was not
correctly cited by the IDPH surveyors.

3. Hillcrest failed to secure an outside doorway prior to deactivating the
door alarm.

Hillcrest has a dual alarm system where two alarms are triggered whenever an outside door
is opened. Tr. at 1305. Former Clinical Director Mutterer testified that the first sound is a
very loud and distracting siren which is turned off by using a key box situated at the door
itself. Tr. at 1305. The second alarm is a buzzing alarm and is connected to a light box at
the second floor nurses station. /d. This alarm is turned off by staff at the second floor
station. Tr. at 1305-06. Mr. Mutterer further testified that the internal stairwell doors on
the first, second, and third-floor east hallways had a different alarm mechanism where a
button adjacent to the actual exit door could be used to turn the alarm off. Tr. at 1306-08.

On June 5, 2001, IDPH surveyors activated the door alarm for two separate drills (11:50
a.m. and 5:55 p.m.). CMS Ex. 608, at 37-38. Surveyors noted that staff failed to check the
area at or near the door before staff turned off the alarm sound at the second floor nurses’
station. CMS Ex. 2, at 8.

Hillcrest’s Door Alarm Policy states that “/ujpon triggering of an alarm, personnel . . .
must immediately report to the door with sounding alarm. Responding personnel must
complete a thorough check of the immediate area outside the door.” CMS Ex. 606
(emphasis added).

I find that the policy does not direct staff to first turn off the alarm and then go to the door
with the sounding alarm, rather, staff are to immediately report to the door with the
sounding alarm. Therefore, contrary to Hillcrest’s assertions, and according to the Door
Alarm Policy, staff do not have the discretion to decide whether they will first turn off the
alarm before searching the door area where the alarm has sounded.

Granted, failure by a facility to comply with a facility policy is not a failure to comply with
a participation requirement where the policy does not comport with a professionally
recognized standard of care and where the participation requirement does not direct a
facility to follow each of its internal policies. Lake City Extended Care Center, DAB No.
1658, at 18 (1998). CMS is prohibited from relying on a facility’s failure to follow its own
policy or standard because a facility’s policy or standard may exceed the regulatory
73

requirements and professionally recognized standard of care. Haverhill Care Center, DAB
CR522 (1998). However, Hillcrest presented no evidence here to show that its policy
exceeded the professionally recognized standard of care. The policy merely articulated the
applicable standard of care, and ample evidence in the record supports this finding. Thus, I
find Hillcrest failed to secure the doorway prior to deactivating the door alarm.

4. Hillcrest was not in violation of 42 C.F.R. § 483.25(h)(2) when it
disarmed the backyard door to the smoking patio during business hours
and did not secure 50-pound paving blocks in the enclosed fenced area.

Hillcrest’s Door Alarm policy states that:

The second floor back yard door may also be unalarmed during regular
business hours. This area is enclosed with a security fence and appropriately
prohibits residents from coming and going from this area.

CMS Ex. 606.

CMS claims that this allows residents free access to an unsupervised area where the patio in
the area had heavy paving blocks which are laid to form the path. These blocks, which
were estimated to weigh approximately 50 pounds each, were not affixed to the ground.
The concern was that these blocks would be moved or lifted by residents. CMS Exs. 2, at
8; 608, at 38; Tr. at 1709. CMS asserts that the loose paving stones created a potential
hazard for residents to trip over, especially those with a compromised sense of balance and
who were susceptible to falls. CMS PHB at 176; CMS Ex. 608, at 38. Additionally, CMS
contends that a resident could possibly pick up a loose paving stone and brandish it as a
weapon. CMS PHB at 176.

The arguments CMS presents are unpersuasive. I find it reasonable for Hillcrest to disarm
the backyard door during regular business hours for residents to freely access the back patio
to smoke. The area is secured with a fence. Tr. at 1709. I also do not find sufficient
evidence in the record before me to determine whether the paving blocks which are two-to-
three feet in diameter and weigh 50 pounds each, posed a tripping hazard to residents, or
that there existed a risk that a resident would brandish one of the blocks as a weapon. I
conclude that there is no basis for Hillcrest being cited for failure to maintain the door
alarm to the backyard smoking patio or failing to secure the 50-pound paving blocks in the
enclosed fenced area.
74

5. Hillcrest was in violation of 42 C.F.R. § 483.25(h)(2) when it failed to
secure an unattended metal attic cover near the second floor south exit
doorway.

The June SOD states that when the second floor south exit door was opened, surveyors
observed a 10-foot ladder leaning against a wall and an open area in the ceiling,
approximately 4 feet by 4 feet, and a piece of sheet metal approximately 2.5 feet by 2 feet
laying on the floor. CMS Ex. 2, at 9. Hillcrest avers that there was repair work being done
which necessitated use of the ladder. Tr. at 1324. CMS conceded this fact. CMS PHB at
172. However, CMS states that the unattended metal attic cover did pose an accident
hazard. Id.

Hillcrest avers that staff turned the alarm in that area off to avoid its activation, and the
maintenance man had just ascended to the roof and was in the process of securing the area
when the surveyor approached. P. PHB at 90-91. Hillcrest contends that the metal attic
cover was secured within moments following the surveyor’s appearance, and thus did not
constitute any hazard. Jd. Although I am persuaded that the metal attic cover was quickly
removed by the maintenance person, I find that it still posed a safety hazard. The exit door
was unalarmed and the metal attic cover was unattended, even if just for a short period of
time. Therefore, I conclude that the IDPH surveyors correctly cited Hillcrest for the
unattended metal attic cover as a safety hazard.

6. Hillcrest did closely supervise R1 during an episode of agitation
resulting in R9 being hit on the head.

R1’s clinical record reveals a diagnosis of schizo-affective schizophrenia. CMS Ex. 612, at
6. Her MDS reveals that she has persistent anger with self and others. /d. at 21. Her care
plan reveals “severe mood swings” and “impulsive behavior.” Jd. at 13. On April 16, 2001,
R1 weighed 246 pounds. Jd. at 15.

4 At hearing, Maureen Lacy, PsyD testified as an expert witness on behalf of Hillcrest.
CMS objected to Dr. Lacy’s testimony about R1 and the events of May 23, 2001, at the hearing
and renewed its objection in its post-hearing brief. CMS PHB at 177 n. 65. CMS claims that it
was prejudiced by Dr. Lacy’s testimony since it had insufficient warning as to the scope of her
testimony. Jd. At hearing, I ruled that the synopsis of Dr. Lacy’s testimony, as provided by
Hillcrest in its Amended Witness List of September 2003, was sufficiently broad to have
included reference to incidents involving R1 and R9. See Tr. at 2418. Dr. Lacy was available for
CMS to cross-examine, and I do not find that CMS has been prejudiced as a result of Dr. Lacy’s
testimony. However, I note CMS’s renewed objection for the record.
75

On May 23, 2001, while walking down a hallway, R1 struck R9 on the top of his head
while R9 was waiting for his shower. Prior to this incident, R1 was involved in an
argument with her roommate and expressed a desire to “scratch her roommate’s eyes out
and kick her.” CMS Ex. 612, at 8. A social service note written the same day as the
incident reveals that:

Resident presented with increased agitation and anger. Res was
upset about her roomate [sic] making derogatory statements
about her. Res was becoming increasingly agitated. Resident
was not redirectable. Res was referred to nurisng [sic] for
PRN, then res went back to her room. Res then spoke with
clinical supervisor N. Williams. During this conversation,
resident walked out of her room and slammed the door. Res
then walked down the hall, striking another resident as she
passed. Resident was then escorted to the psych tech office to
be monitored . . .. Resident did not respond well to counseling,
and was still upset the entire time she was in the office.
Resident’s Psychiatrist was contacted and arrangements were
made to send resident out of inpatient psych tx [psychology
treatment]. Res will be monitored in the office until
transportation arrives.

CMS Ex. 612, at 12.

At the hearing, Jeffrey Baker, psychiatric technician at Hillcrest, testified about the May 23,
2001 incident with R1 and R9. Mr. Baker testified that after consultation with R1’s
physician, an order was placed for R1 to be transferred to Grant Hospital. CMS Ex. 612,

at 8. After 30 to 45 minutes of counseling R1 in the psychology office, former Clinical
Supervisor Najat Williams and Mr. Baker escorted R1 to her room so she could obtain her
personal belongings in preparation for her hospitalization. Tr. at 1857, 1958, 1959. R1 did
not exhibit any incidents of acting out toward staff or peers on her way to her room. Tr. at
1959. Once in the room, R1 “sat down in the rocking chair and started rocking.” Tr. at
1959. While Ms. Williams continued to counsel R1, Mr. Baker remained in the hallway
outside of R1’s room to assist another staff member with R9’s shower preparation as R9
was exhibiting challenging behaviors at the time. Tr. at 1857. After voluntarily agreeing to
take her medication that would “help her feel better,” R1 suddenly arose abruptly, walked
past Ms. Williams to exit her bedroom, slammed her bedroom door, and proceeded into the
hallway. Tr. at 1960. Ms. Williams testified that she opened R1’s bedroom door and
proceeded to step into the hallway where she observed Mr. Baker with R9 who was seated
in a wheelchair near the shower room. Tr. at 1960. It was at this time that Ms. Williams
observed R1 walk by R9 and Mr. Baker, and slap R9 on the back of the head with an open
hand. Tr. at 1960, 1962.
76

CMS avers that there were inconsistencies between the clinical notes, staff interviews with
IDPH surveyors, and testimony at hearing as to timing and specific services provided to R1
before and after her hitting R9. CMS PHB at 184-87. Specifically, CMS takes issue with
the extent of Mr. Baker’s involvement with counseling R1, and why he did not remain in
the room while the Clinical Supervisor was counseling R1. Tr. at 1857, 1862.

Although the parties disagree as to the supervision that R1 received while she was being
counseled, and before she struck R9, I find CMS’s allegations that R1 was not
appropriately supervised on May 23, 2001, not supported by the credible evidence of
record. In fact, prior to the incident when staff realized that R1’s agitation had the potential
to escalate, they took measures to follow through with the plan of care, obtain a PRN from
nurses, and contact Dr. Lacy who then authorized that R1 be transferred to a psychiatric
setting. I find that immediately preceding the incident of R1 striking R9, R1 was under
close supervision at all times and actually received constant one-on-one monitoring. CMS
postulates that R1’s hitting R9 could have been prevented had staff kept R1 in the
psychiatric technician’s office until the ambulance arrived to transport her to the hospital.
CMS PHB at 195. However, I find it reasonable that R1 was escorted back to her room so
that she could ready her personal belongings in preparation for her upcoming
hospitalization. Tr. at 1904.

CMS has not established that R1 was alone in her room unsupervised. Rather, the evidence
clearly shows that R1 was being counseled by the clinical supervisor when she walked out
of the room, slammed the door, and struck R9 who apparently was being assisted by Mr.
Baker and the certified nurse aide (CNA). I find Mr. Baker’s testimony credible when he
stated that R9 was sitting in a wheelchair facing him, “being combative with the CNA who
was trying to give him care,” and that he assisted the CNA in trying to calm R9 as well as
assisting the CNA with showering R9. Tr. at 1863. I find that Mr. Baker’s testimony as to
why he felt the need to assist the CNA in calming R9 to be credible in light of the evidence
of R9’s behavioral issues and physical challenges. Tr. at 1857, 1862-63. I also find Ms.
Williams’ recitation of the events that occurred immediately prior to R9 being hit by R1 to
be credible. Based on the evidence, I conclude that Hillcrest staff did closely supervise R1
before she struck R9.

CMS further alleges that Hillcrest failed to take precautionary measures regarding R1’s
care prior to May 23, 2001, that may have prevented R1 from striking R9. CMS contends
that Hillcrest staff should have: (1) explored more aggressively any causal relationship
between R1’s habit of “cheeking”®> her medications as a possible instigator of her violence;
(2) monitored and intervened with R1’s roommate situation; (3) expedited R1’s transfer to

35 A resident “cheeks” medication when he or she holds the medication between the
cheek and gum, pretending to swallow the medication, then spits it out later.
77

the hospital; (4) removed R9 from the hallway before escorting R1 to her room; (5) given
R1’s history of aggression toward peers and her large size, had another staff member with
Ms. Williams in R1’s room; or (6) called a “Code White’**in order to de-escalate RI. CMS
PHB at 194-203.

Based on the parties’ arguments and the record before me, I find that: (1) R1’s
noncompliance with medication administration is sufficiently recorded in both her care plan
and her social service notes; (2) changing roommates may have been a viable option;
however, there was be no guarantee that R1 would not get agitated with another roommate;
(3) the Certificate of Involuntary Admission was completed at 3:30 p.m. that day (CMS Ex.
612, at 43) and the ambulance to transport R1 arrived at Hillcrest at 8 p.m.; thus an
estimated 4.5 to 5.5 hours passed between the time Hillcrest decided to hospitalize R1 and
the arrival of the ambulance; (4) Hillcrest credibly maintains that it has no control over how
quickly a hospital can send an ambulance; (5) R9 was not removed from the hallway before
R1 was escorted to her room because at the time staff did not have any indication that she
would be aggressive toward staff or peers; (6) R1 remained under 1:1 supervision during
the time period at issue and her striking R9 was an impulsive act on her part.

The regulation at issue requires that a facility provide each of its residents with adequate
supervision and assistance devices to prevent accidents. A facility has a duty to take all
measures that are within its power to prevent accidents that are reasonably foreseeable.
Madison Health Care, Inc., DAB CR1325 (2005). But, the duty of care owed by a facility
to its residents is not one of strict liability. A facility is not per se liable for every accident
that occurs on its premises. I conclude that on May 23, 2001, Hillcrest staff took
reasonable measures to secure R1’s safety and that of other residents.

Although in its post-hearing brief CMS questions the adequacy of R1’s care plan, Hillcrest
was not cited for a problem with R1’s care plan, so I do not address CMS’s allegation that
R1’s care plan was deficient. CMS PHB at 181-82. Additionally, CMS alleges that R9’s
nursing and social services notes did not reveal any documentation of R9 being struck by
RI or any follow-up of the incident. CMS Ex. 2, at 7. However, IDPH cited Hillcrest
under tag F324 for a supervision deficiency and not a deficiency in documentation;
therefore, I do not find it necessary to address the issues CMS raises regarding R9’s nursing
and social service notes.

6 The purpose of the “Code White” policy is “to alert ALL staff to a psychiatric
emergency, in order to protect residents and staff from physical harm . . . [i]f physical contact has
been established, an automatic code white is called.” CMS Ex. 419, at 15 (emphasis in original).
2B

7. Staff were not aware of which residents were on the elopement list.

On June 5, 2001, several staff (E-2, E-4, E-21, E-14 and E-16) were interviewed by IDPH
surveyors. CMS Ex. 601 (employee key). The Hillcrest staff who were interviewed
indicated that there were no residents at the time identified as elopement risks, or that they
could find out by calling downstairs for an elopement list. CMS Exs. 2, at 10; 607, at 13-
14; 608, at 6, 9, 24, 31. None of the staff indicated to the surveyors that there was a list at
the nursing station. CMS Ex. 2, at 10. On June 5, 2001, the surveyors were presented with
the list of residents at risk for elopement, and the list included: R10, R11, R12, R13, and
R15. On June 6, the surveyors were presented with another elopement list that included the
following residents: R10, R11, R13, R15, R17, and R18. CMS Ex. 2, at 10.

Former Administrator Kalkowski testified that there were elopement lists available to staff
at the nurses’ station, and that staff knew where the lists were; however, they just needed to
know where to look. Tr. at 1344. Former Administrator Kalkowski also testified that he
didn’t know if the elopement list was in the computer. Jd. Former Clinical Supervisor
Williams testified that the elopement list was part of the pass list that is maintained at
Hillcrest. Tr. at 1971-72. Ms. Williams also testified that Hillcrest does not require staff to
memorize the list of residents who may be at risk for elopement. Jd. at 1972.

I find that Hillcrest has not been able to overcome CMS’s showing that on June 5, 2001,
staff were unaware of which residents were on the elopement list, nor has Hillcrest been
able to satisfactorily explain why on June 5, 2001, the elopement list did not include R17
and R18, whose names then appeared on the June 6, 2001 elopement list.

VIII. Imposition of Remedies for April and June Surveys

CMS determined to impose remedies consisting of: a DPNA for residents admitted from
May 14, 2001 through August 30, 2001; a per instance CMP in the amount of $10,000 for
an immediate jeopardy finding; and a $200 per day CMP from June 6, 2001 through August
30, 2001.”

3” As previously noted, Petitioner underwent an August Survey and, as a result of a
deficiency finding, CMS continued the imposition of the $200 per day CMP from August 31,
2001 through September 4, 2001, when Hillcrest was found to have achieved substantial
compliance. However, as previously discussed in this decision at n.2, Hillcrest chose not to
appeal the August Survey findings and remedy. Therefore, as my review is limited to the
findings and subsequent remedies relating to the April Survey and the June Survey only, I do not
address the continuation of the $200 per day CMP through September 4, 2001.
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Hillcrest argues that (1) the alleged deficiencies resulting from the April Survey did not
constitute immediate jeopardy, and, at most, presented a potential risk of more than
minimal harm; and (2) that the findings in the June Survey presented, at most, a potential
risk of minimal harm. Hillcrest also contends that CMS does not have the authority to
impose per instance CMPs because the Act does not allow it to. I have previously
addressed in this decision the legislation allowing CMS to impose sanctions against
Medicare providers who are found to not be in substantial compliance with Medicare
program requirements and therefore I do not re-address this issue here. See Act § 1819(h);
42 C.F.R. §§ 488.406; 488.430; 488.433(a); 488.438(a)(2); 488.440.

A. The $10,000 per instance CMP imposed against Hillcrest is reasonable.

Having found a basis for imposing a CMP, I now consider whether the $10,000 per
instance CMP imposed is reasonable, applying the factors listed in 42 C.F.R. § 488.438(f),
which include: (1) the facility’s history of noncompliance, including repeated deficiencies;
(2) the facility’s financial condition; (3) the seriousness of the deficiencies as set forth at 42
C.F.R. § 488.404; and (4) the facility’s degree of culpability. It is well-settled that, in
reaching a decision on the reasonableness of the CMP, I may not look into CMS’s internal
decision-making processes. Instead, I consider 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). I am neither bound to defer to CMS’s factual
assertions, nor free to make a wholly independent choice of remedies without regard for
CMS’s discretion. Barn Hill Care Center, DAB No. 1848, at 21 (2002); Community
Nursing Home DAB No. 1807, at 22 (2002), et seq.; Emerald Oaks, DAB No. 1800, at 9
(2001); CarePlex of Silver Spring, DAB No. 1683, at 8 (1999).

Applying the four factors listed in 42 C.F.R. § 488.438(f), I find that the quality of care
deficiency identified as tag F324 was significant. R3, R4, RS, and R6 had known histories
of behavior disorders, depression, drug and alcohol abuse, mental illness, poor impulse
control, suicide attempts, and varied criminal behaviors. Hillcrest’s failure to adequately
supervise them to prevent accidents allowed them unsupervised access to the community at
a time when they needed closer supervision; thus, they had the opportunity to become
involved in inappropriate, or even illegal activities while out on a day pass. Both R4 and
RS were subsequently arrested and formally charged. R3’s and R6’s clinical records reveal
they were traumatized by their involvement in the homicide, necessitating their
hospitalizations. Due to the egregious nature of the violation, I am, therefore, not able to
find unreasonable the imposition of a $10,000 per instance CMP.
80

First, in regards to the facility’s history of noncompliance, I note that prior to the April
Survey, Hillcrest underwent a Life Safety Code survey on March 7, 2001, and then a
standard health and certification survey on March 9, 2001where deficiencies were noted.
Several deficiencies were noted following a partial extended complaint survey conducted
from March 26, 2001 to April 19, 2001, and two remedies were imposed. During the April
Survey Hillcrest was found to have not achieved and maintained substantial compliance
with several participation requirements. Hillcrest was cited for five deficiencies, the most
serious of which resulted in an “immediate jeopardy” finding at tag F324, a violation of the
Quality of Care regulation at 42 C.F.R. § 483.25(h)(2). The June Survey revealed that
Hillcrest still had not achieved and maintained substantial compliance with several
participation requirements. Two repeat deficiencies were identified, a citation under 42
C.F.R. § 483.20(k) at tag F279 (Resident Assessment); and a citation under 42 C.F.R.

§ 483.25(h)(2) (Quality of Care) at tag F324. Therefore, Hillcrest’s history of continued
noncompliance since March 9, 2001, particularly in regards to the Quality of Care
regulation, lends support to CMS’s determination to impose a per instance CMP.

Second, while an ALJ may consider a facility’s financial condition in determining whether
the amount of a CMP is within a reasonable range, the facility must initially raise that issue
as a basis for disputing the reasonableness of the amount of the CMP; otherwise, the ALJ
can properly exercise his discretion in excluding it. Community Nursing Home, DAB No.
1807, at 21, 26 (2002). Where either party fails to take advantage of its opportunity to
submit evidence of a facility’s financial condition, that opportunity is waived. Jd. at 15-16;
Emerald Oaks, DAB No. 1800 (2001). In this case, the record is silent as to Hillcrest’s
financial solvency, and Hillcrest has not claimed that its financial condition makes the
amount of the CMP unreasonable.

Third, the seriousness of Hillcrest’s immediate jeopardy level deficiency provides strong
support for the $10,000 per instance CMP that CMS determined to impose. The failure of
Hillcrest to adequately supervise residents’ pass privileges, and to fully assess R3, R4, RS,
and R6 upon their return to the facility on March 22, 2001, had serious consequences.

Fourth, Hillcrest’s culpability for its deficiencies was high. Hillcrest staff should have
known that its pass privilege systemand the sign-out sheets which served to document
residents’ pass usage were not working. It was clear that these residents required close
supervision. Nonetheless, Hillcrest’s lax supervision of these residents in connection with
their pass privileges extended over a lengthy period of time — for the duration of R3’s,
R4’s, R5’s, and R6’s placement at Hillcrest — and revealed a systemic inability on
Hillcrest’s part to cope with the residents’ needs. I conclude that the various measures
Hillcrest took, including the interventions that it made on behalf of some of its residents, do
81

not counterbalance Hillcrest’s systemic failures to provide its residents with necessary
supervision. Nor do they excuse Hillcrest’s consistent failure to consider providing
residents with close supervision in the face of overwhelming evidence that increased
supervision was necessary.

There is only a single range of $1,000 to $10,000 for a per instance CMP. 42 C.F.R.
§§ 488.408(d)(1)(iv); 488.438(a)(2). I find that based on the weight of the evidence before
me the $10,000 per instance CMP imposed against Hillcrest is reasonable.

B. There was a basis for CMS’s imposition of the DPNA for residents admitted
from May 14, 2001 through August 30, 2001.

The record clearly supports CMS’s determination that Hillcrest was not in substantial
compliance with all program participation requirements. It is not necessary that every
deficiency alleged against Hillcrest be sustained, as long as those actually sustained are
sufficient to establish a reasonable basis for the remedy imposed. CMS is authorized to
impose a DPNA based on a facility’s failure to comply substantially with a single
participation requirement. Northern Montana Care Center, DAB No. 1930 (2004).
Hillcrest has failed to meet its burden of showing it came back into compliance prior to
August 30, 2001. Therefore, CMS is authorized to impose a DPNA for each day of a
period that began on May 14, 2001, and which ran through August 30, 2001, against
Hillcrest.

C. CMS'’s determination to impose a CMP of $200 per day for each day Hillcrest
was not in substantial compliance, from June 6, 2001 through August 30, 2001, is
unreasonable. I find that a CMP of $100 per day is a reasonable amount.

Having found a basis in the June Survey findings for imposing a CMP, I now consider
whether the $200 per day CMP imposed is reasonable, applying the factors listed in 42
CFR. § 488.438(f).

Where there is no immediate jeopardy alleged, a CMP may be imposed within a range from
$50 — $3,000 per day for each day of continued noncompliance. 42 C.F.R.

§ 488.438(a)(1)(ii). “The per day [CMP] may start accruing as early as the date that the
facility was first out of compliance, as determined by CMS or the State.” 42 C.F.R.

§ 488.440(a)(1). “The per day [CMP] is computed . . . for the number of days of
noncompliance until the date the facility achieves substantial compliance. ...” 42 C.F.R.

§ 488.440(b).

Based on the testimony offered at the hearing, the documentary evidence, the arguments of
the parties, and the applicable law and regulations, I concluded that from May 14, 2001
through August 30, 2001, Hillcrest was out of substantial compliance with Medicare
82

program participation requirements. However, I found that R10 did not elope at any time
from June 6 through August 20, 2001, and that CMS did not prove a prima facie case that
Hillcrest staff failed to closely supervise R1 during an episode of agitation resulting in R9
being hit on the head on May 23, 2001. I conclude, therefore, that a $100 per day CMP
from June 6, 2001 through August 30, 2001 is reasonable.

IX. Conclusion

For the reasons discussed above, I affirm CMS’s determination to impose a per instance
CMP in the amount of $10,000, and a DPNA for residents admitted from May 14, 2001
through August 30, 2001. I do not find the proposed $200 per day CMP from June 6, 2001
through August 30, 2001 reasonable; rather, I find a per day CMP of $100 per day to be
reasonable for that period.

/s/

Alfonso J. Montano
Administrative Law Judge