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CASE | DECISION |JUDGE | FOOTNOTES

Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD
Civil Remedies Division
IN THE CASE OF  


SUBJECT:

Alden-Poplar Creek Rehabilitation and Health Care Center,

Petitioner,

DATE: November 10, 2003
                                          
             - v -

 

Centers for Medicare & Medicaid

 

Docket No.C-02-426
Decision No. CR1106
DECISION
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DECISION

Petitioner was not in substantial compliance with 42 C.F.R. � 483.25(h)(2) on December 4, 2001, presenting immediate jeopardy for at least one resident. Accordingly, I find that a per instance civil money penalty (CMP) of $3,050; a denial of payment for new admissions for February 17 and 18, 2002; and directed in-service training are reasonable remedies in this case.

I. BACKGROUND

Petitioner is a long-term care facility located in Hoffman Estates, Illinois. By letter dated March 8, 2002, the Centers for Medicare & Medicaid Services (CMS) notified Petitioner that, as a result of findings made by the Illinois Department of Public Health (State agency) during a partial extended survey of Petitioner's facility completed on January 24, 2002, CMS was imposing a per instance CMP in the amount of $3,050 for the "immediate jeopardy noncompliance described in the January 24, 2002 Statement of deficiencies at data tag F324." In a letter dated January 28, 2002, the State agency had notified Petitioner that, as authorized by CMS, the State agency was imposing the remedies of directed in-service training (to be completed by February 17, 2002) and denial of payment for new Medicare and Medicaid admissions (DPNA), effective February 17, 2002. CMS notified Petitioner by letter dated March 22, 2002, that substantial compliance was achieved effective February 19, 2002; that directed in-service training was imposed; that the DPNA which began on February 17, 2002 was discontinued February 19, 2002; that the per instance CMP of $3,050 was imposed; and that termination would not be pursued. By letter dated March 27, 2002, Petitioner requested a hearing.

The case was assigned to me for hearing and decision. By electronic mail dated October 28, 2002, the parties informed me that they had agreed that I should hear the case based on written submissions in lieu of an in-person hearing. Based on the parties' proposal, I set a briefing schedule. The parties timely filed their written submissions. CMS filed a brief (CMS Br.), accompanied by 38 exhibits and the declaration of Judith A. McAuliffe. In the absence of objection, I admit as evidence Respondent's exhibits (R. Exs.) 1 - 38, and Ms. McAuliffe's declaration (which I am marking as R. Ex. 39). Petitioner filed a response (P. Br.), accompanied by 11 exhibits and the declaration of Kellie Weber. In the absence of objection, I admit as evidence Petitioner's exhibits (P. Exs.) 1 - 11 and Ms. Weber's declaration (which I am marking as P. Ex. 12). CMS filed a reply brief (CMS R. Br.). The parties also filed prehearing briefs (P. and CMS Prehearing Br.) and a "joint statement of issues presented for hearing" dated August 30, 2002.

II. STATUTORY AND REGULATORY BACKGROUND

The Social Security Act (Act) sets forth requirements for long-term care facilities participating in the Medicare and Medicaid programs, and authorizes the Secretary of Health and Human Services (Secretary) to promulgate regulations implementing the statutory provisions. Act, sections 1819 and 1919. The Secretary's regulations governing long-term care facilities are found at 42 C.F.R. Part 483. Regulations governing survey, certification, and enforcement procedures, and regulations governing provider agreements, are found at Parts 488 and 489, respectively; and regulations governing appeals procedures are found at Part 498.

To participate in the Medicare and/or Medicaid programs, a long-term care facility must maintain substantial compliance with program requirements. To be in substantial compliance, a facility's deficiencies may pose no greater risk to resident health and safety than "the potential for causing minimal harm." 42 C.F.R. � 488.301.

Under the "Quality of care" requirement, each resident of a facility must receive and the facility must provide the necessary care and services to attain or maintain the highest practicable physical, mental, and psychosocial well-being, in accordance with the resident's comprehensive assessment and plan of care. 42 C.F.R. � 483.25. Specifically, with regard to the subsection of the requirement regarding "accidents," a facility must ensure that: 1) the resident environment remains as free of accident hazards as possible; and 2) each resident receives adequate supervision and assistance devices to prevent accidents. 42 C.F.R. � 483.25(h).

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 DPNA, directed in-service training, and imposition of a CMP. See Act, section 1819(h). CMS may impose a CMP for each instance that a facility is not in substantial compliance with program requirements, regardless of whether or not the deficiencies constitute immediate jeopardy. 42 C.F.R. � 488.430(a). The regulations define "immediate jeopardy" to be "a situation in which the provider's noncompliance with one or more requirements of participation has caused, or is likely to cause, serious injury, harm, impairment, or death to a resident. 42 C.F.R. � 488.301. When CMS imposes a CMP for an instance of noncompliance, the penalties are in the range of $1,000 to $10,000 per instance. 42 C.F.R. � 488.438(a)(2); see 42 C.F.R. � 488.408(d)(1)(iv), (e)(1)(iv), (e)(2)(ii).

A facility has a right to appeal a "certification of noncompliance leading to an enforcement remedy." 42 C.F.R. � 488.408(g)(1); see also 42 C.F.R. �� 488.330(e) and 498.3. However, a facility may not appeal the choice of remedies by CMS or the factors CMS considered when choosing a remedy. 42 C.F.R. � 488.408(g)(2). A facility may only challenge the scope and severity level of noncompliance found by CMS if a successful challenge would affect the amount of the CMP that could by collected by CMS or impact upon the facility's nurse aide training program. 42 C.F.R. �� 498.3(b)(14) and (d)(10)(i). CMS's determination as to the level of noncompliance "must be upheld unless it is clearly erroneous." 42 C.F.R. � 498.60(c)(2). This includes CMS's finding of immediate jeopardy. Woodstock Care Center, DAB No. 1726, at 39 (2000). The Appellate Division of the Departmental Appeals Board (Board) has held that the net effect of these regulations is that a provider has no right to challenge the scope and severity level assigned to a finding of noncompliance, except in a situation where the finding was the basis for an immediate jeopardy determination. See, e.g., Ridge Terrace, DAB No. 1834 (2002); Koester Pavilion, DAB No. 1750 (2000).

CMS has the burden of coming forward with sufficient evidence to prove a prima facie case of noncompliance with a participation requirement where the facility contends that it in fact was complying with the requirement. In that circumstance, a long-term care facility has the ultimate burden of rebutting, by a preponderance of the evidence, the prima facie case of noncompliance introduced by CMS or any affirmative defense.

III. ISSUES

The issues in this case are:

1. Whether Petitioner was in substantial compliance with the participation requirement stated at 42 C.F.R. � 483.25(h)(2) (F Tag 324 on the Statement of Deficiencies) on December 4, 2001; and

2. Whether the remedies imposed by CMS are reasonable.

Petitioner is also asking me to decide whether the deficiency cited should have been cited at the level of immediate jeopardy. (1)

IV. DISCUSSION

I make findings of fact and conclusions of law to support my decision in this case. I set forth each finding in bold as a separate topic heading.

A. Petitioner was out of substantial compliance with the participation requirement stated at 42 C.F.R. � 483.25(h)(2) (F Tag 324) on December 4, 2001.

In order to evaluate a facility's compliance with the requirements of section 483.25(h), it is necessary to examine whether the facility did all it could to "prevent foreseeable accidents" or 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 Care Center at Johnson City, DAB No. 1815, at 12 (2002) and Koester Pavilion, DAB No. 1750, at 25-26 (2000). Section 483.25(h) requires that a facility provide both "assistance devices" and "adequate supervision" to prevent accidents. What supervision or assistance devices are adequate depends on what kind of measures would be calculated to prevent potential accidents from occurring given the known or reasonably foreseeable risks. In Woodstock, the Board considered whether the facility had notice of or should reasonably have anticipated the risk of the kind 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. Based on the regulation and the cases in this area, CMS meets its burden to show a prima facie case if: (1) it presents evidence that an accident occurred (with or without harm to a resident); or (2) it shows the facility failed to do what it could to supervise residents or provide assistance devices to minimize risks that could lead to accidents.

Under the quality of care requirement at issue here, a facility must thus ensure that "(e)ach resident receives adequate supervision and assistance devices to prevent accidents." 42 C.F.R. � 483.25(h)(2). The specific manner by which the facility is to deliver care and services is not prescribed by the regulations. Rather, a facility is permitted to determine the means to achieve the regulatory ends. (2) In the case of section 483.25(h)(2), the regulatory end is the prevention of accidental injury of nursing facility residents.

Here CMS has alleged that, based on surveyor observations, staff and family interviews, and record reviews, Petitioner failed to supervise Resident 1 (R1), a known wanderer (as evidenced by the facility's care plan), in order to prevent R1 from leaving the facility unaccompanied or the second floor unsupervised. R. Ex. 1, at 1. After evaluating the evidence submitted by the parties in this case, I concur.

At about 3:00 A.M. on December 4, 2001, R1 was found outside of Petitioner's facility, on the ground, and calling for help. R. Exs. 1, at 1; 30-32; 35, at 10-12; P. Exs. 8, 12. As of that date, R1 was 80 years old and had numerous medical problems, including congestive heart failure, a pacemaker, an anxiety disorder, depression, dementia (other than Alzheimer's), hypertension, hypothyroidism, gastritis, chronic renal failure (for which he received dialysis), periodic edema, and, in late November 2001, R1 was receiving antibiotic therapy for cellulitis. P. Exs. 1; 9, at 2; R. Exs. 1, at 2; 35, at 8, 10. R1 also suffered from short-term memory loss. P. Exs. 5; 9, at 1; R. Ex. 34, at 2. According to his minimum data set (MDS) assessments, R1 could not remember the location of his room or that he was in a nursing home. R. Exs. 23, at 1; 24, at 3. R1 was confused at all times. R. Ex. 36, at 2, 5, 11.

R1 would wander into other residents' rooms and was care-planned for this behavior. R. Ex. 34, at 1. R1 wandered to the lower level (his room was on the second floor ) in order to get popcorn (which he was not supposed to eat due to fluid restrictions necessitated by his renal failure). R. Exs. 29, at 2; 34, at 1; 35, at 7, 8, 15. The importance of adhering to fluid restrictions was explained to R1, but he would forget. R. Ex. 35, at 10.

R1 could walk, although the amount of assistance he required increased from May to October 2001, as did his need for assistance with most activities of daily living (ADLs). R. Exs. 23, at 2; 24, at 4; 36, at 1. R1 propelled himself in a wheelchair or walked pushing the wheelchair. R. Ex. 36, at 1, 4, 9. R1 could be outside if accompanied, but not alone. R. Ex. 29, at 3, 10. Petitioner assessed R1 to be at high risk for falls and to have an unsteady gait. R. Exs. 34, at 8; 36, at 2, 5, 11.

It is undisputed that on June 12, 2001, R1 attempted to leave the facility three times, getting as far as the first floor lobby. Nurses' notes indicate he was "confused" after returning from dialysis. R. Ex. 35, at 1. The next day R1 was found outside the facility. Id. There is no evidence that Petitioner prepared an incident report or any record that it investigated this elopement. R. Exs. 1, at 3; 39, at 3, paragraph 13. The State surveyor, Ms. McAuliffe, learned about these episodes from R1's daughter. R. Exs. 39, at 3; 17, at 9; P. Br. at 7-8.

On November 23, 2001, R1 was found in the wrong bed about 9:30 P.M. Staff informed him he was in the wrong bed. He then got up, got dressed, and got ready for breakfast. R1 refused to go back to bed, even when it was explained to him what time it was. R1 then attempted to leave the floor several times to go to the lower level for popcorn. R. Ex. 35, at 7. On November 24, 2001, R1 again attempted to go to the lower level of the facility for popcorn. Id. at 8. On November 26, 2001, at 9:00 P.M., R1 was noted to be "confused." Id. He got up from bed and told facility staff to wake him up early in the morning because he was "going somewhere to buy parts for [h]is car." Id. On November 27, 2001, at about 10:30 P.M., R1 got up and dressed. On November 28, 2001, at about 11:30 P.M., R1 got up, got dressed, and was sitting in his wheelchair. Id. at 9.

On December 4, 2001, at 1:45 A.M., nurses' notes indicate that R1's roommate called facility staff to their room. Staff found R1 on his abdomen on the floor next to his bed. R1 was then put to bed. R. Ex. 35, at 10. At 3:00 A.M., R1 was found in a parking lot outside Petitioner's facility. Id.; P. Ex. 8. According to nurses' notes, a resident in another room thought she heard someone yelling outside. A certified nurse assistant (CNA) looked out the window and saw R1 in the parking lot. Facility staff went outside with R1's wheelchair and brought him in. Old skin tears on R1's hand were noted to be reopened. R. Exs. 35, at 10; 8, at 1.

R1's physician was notified of the incident at 8:00 A.M. on December 5, 2001. R. Ex. 30. R1's physician examined him on December 6, 2001, and found that R1 had multiple bruises and contusions. R. Ex. 28.

After his elopement, R1 was placed on a half hour watch due to his wandering. R. Ex. 35, at 11. R1's physician advised R1's daughter that R1 should be moved to a "closed-up" unit. R. Ex. 28, at 2.

Petitioner admits that on December 4, 2001, at approximately 3:00 A.M., R1 was heard yelling and was found sitting on the ground in a parking lot adjacent to the facility building. (3) P. Br. at 7. Petitioner admits that R1 left the building unescorted on June 13, 2001, and was found walking outside the facility. Id. at 7-8. Petitioner also admits that the first floor side exit door, which is the door R1 apparently used on December 4, 2001, was normally alarmed at 8:00 P.M. but, on the night in question, the night supervisor apparently forgot to set the alarm. Id. at 9. Petitioner asserts that this door is in continuous use by employees until 8:00 P.M., which has the effect of the door being monitored. Petitioner asserts that there is no other reported incident or observation of any other occasion on which the door was not alarmed at 8:00 P.M. Id. However, in light of the above admissions, it is not disputed that at three in the morning on the night of December 4, 2001, R1, a frail and demented resident of Petitioner's facility, was found, on the ground, in a facility parking lot, having eloped through an exit that was not alarmed, monitored, or locked.

Further, although Petitioner asserts that R1 had no pattern of "wandering" within the building in the middle of the night (P. Br. at 7), I disagree. The facility's records show that R1 did have a propensity to wander. According to R1's May 26, 2001 and October 15, 2001 MDS forms, R1 could not remember the location of his room or that he was in a nursing home. R. Exs. 23, at 1; 24, at 3. According to his care plan, he "wandered" into other residents' rooms. R. Ex. 34, at 1. On June 12, 2001, R1 got out of the building. R. Ex. 35, at 1. There is no evidence that Petitioner investigated this incident or specifically care planned to ensure that it did not happen again. Clearly, after June 12, 2001, Petitioner was on notice that R1 was capable of getting outside its building. Facility records show that during the preceding weeks before his elopement, R1 was found on several occasions to be up in the evening, dressed, and attempting to go somewhere, including to a lower level for popcorn. R. Ex. 35, at 7-9. Moreover, Ms. Weber's declaration setting forth the facility's hypothesis as to what happened on December 4, 2001, appears to acknowledge that R1 wandered. In her declaration, Ms. Weber states that the facility believes R1 woke up in the very early morning hours of December 4, 2001, thought it was time to get up, was heading to the dining room, and made a wrong turn, which apparently led to his winding-up in the parking lot having gone through the unlocked first floor side exit door. See P. Ex. 12, at 2, paragraphs 6, 7. Ms. Weber opines that the fact R1 did not take his wheelchair indicates he was not trying to leave the building. Id. Whether or not R1 intended to leave the building is not the issue. R1's records reflect that he was a wanderer; that Petitioner knew he was a wanderer and planned some interventions; and Petitioner was on notice after June 2001 that R1's wandering (intentional or not) could take him out of the building. If Ms. Weber's opinion is accepted, she confirms that the combination of R1's tendency to wander and his general confusion, in combination with unlocked and unmonitored doors, could lead R1 outside the facility where he would be exposed to numerous hazards including weather, traffic, uneven terrain, and bodies of water.

A facility's deficiencies on survey must pose no greater risk to resident health and safety than "the potential for causing minimal harm" in order for the facility to be found in substantial compliance. 42 C.F.R. � 488.301. Under section 483.25(h)(2) the standard for compliance is whether the facility did "everything in its power to prevent accidents." Here, Petitioner does not dispute that R1, a cognitively impaired resident, eloped from the facility without the knowledge of facility staff in the very early hours of December 4, 2001, and was found outside the facility, on the ground, with skin tears, bruises, and contusions. Petitioner has acknowledged that R1 was most likely able to elope due to its failure to set an alarm on a door that was not monitored or locked after 8:00 P.M. There is an inherent risk of injury in a situation where frail, demented, high fall risk individuals can exit a facility without the knowledge of facility staff. Failure to secure or monitor doors in a facility of this type, with residents like R1, is sufficient to constitute a deficiency. See, e.g., Woodstock, DAB No. 1726. In this case, there is no question that Petitioner had the ability to ensure that the door through which R1 eloped was properly secured, but Petitioner failed in this duty to safeguard its residents. Further, R1 suffered more than minimal harm in this case, re-opening an old skin tear, with bruises and contusions.

B. The declaration of immediate jeopardy by CMS is not clearly erroneous, whether or not it is subject to review.

Petitioners have a statutory right to a hearing by an ALJ. Act, section 1866(h). The Secretary has, by notice and comment rule-making, significantly defined or limited the right of appeal, granting that right only if triggered by specified actions of CMS. Petitioners are allowed to request a hearing only as to initial determinations made by CMS. See 42 C.F.R. � 498.1, 498.3. Where a petitioner has been found out of substantial compliance and an enforcement remedy is imposed, the regulations allow a petitioner to challenge the level of the noncompliance determined by CMS but only where:

(b) Initial determinations by CMS. CMS makes initial determinations with respect to the following matters: . . .

(14) The level of noncompliance found by CMS in a SNF or NF but only if a successful challenge on this issue would affect-

(i) The range of civil money penalty amounts that CMS could collect . . .; or

(ii) A finding of substandard quality of care that results in the loss of approval for a SNF or NF of its nurse aide training program.

42 C.F.R. � 498.3(b)(14).

Here, CMS has imposed a per instance CMP and the parties agree that 42 C.F.R. � 498.3(b)(14)(i) is not applicable, as a challenge to the level of noncompliance would not affect the range of CMP CMS may impose. See P. Br. at 2; CMS Br. at 13. However, Petitioner wants me to review the CMS immediate jeopardy determination pursuant to 42 C.F.R. � 498.3(b)(14)(ii), because CMS made a finding of substandard quality of care (SQOC) and Petitioner lost approval for its nurse aide training/competency evaluation program (NATCEP). Petitioner acknowledges that CMS has also imposed a DPNA, and the selection of that remedy is not subject to my review if I find that Petitioner was not in substantial compliance. Petitioner further recognizes that the DPNA is an independent basis for the loss of its NATCEP program. P. Br. at 2-5. Although Petitioner presents an interesting legal discussion, Petitioner never explains what relief I might accord Petitioner should I endeavor to review the immediate jeopardy determination and find it clearly erroneous. Even if I agreed, upon review, that the declaration of immediate jeopardy was clearly erroneous, the loss of the NATCEP program would not be rescinded as the DPNA would not be affected. Because I cannot fashion a remedy, my review is really a needless act - something that the law (including the Secretary's regulations) does not require me to do.

However, I have considered the facts of this case in detail and feel it appropriate to recognize that the declaration of immediate jeopardy is clearly supported in this case. The regulations define "immediate jeopardy" to mean "a situation in which the provider's noncompliance with one or more requirements of participation has caused, or is likely to cause, serious injury, harm, impairment, or death to a resident." 42 C.F.R. � 488.301. Immediate jeopardy can exist regardless of the scope and severity of a deficiency, so long as a deficiency involves a "potential for more than minimal harm." 42 C.F.R. � 488.301; Lake City Extended Care Center, DAB No. 1658, at 17 (1998). Immediate jeopardy existed in the early morning hours of December 4, 2001, because of the potential for harm when R1, a frail and demented individual, eloped through an unlocked, unalarmed and unmonitored door and wound up outside the facility -- where R1 could be subject to the dangers of weather, traffic, uneven terrain, and bodies of water. The focus of immediate jeopardy is not on the actual outcome of events (i.e., that R1 was found with non life-threatening injuries), but on what potentially could have happened to the resident and the likelihood of harm he faced. Southbridge Nursing and Rehabilitation Center, DAB No. 1778, at 11 (2001).

C. The remedies imposed by CMS are reasonable.

If a facility is found to be out of substantial compliance with participation requirements, at an immediate jeopardy level, CMS has the authority to impose one or more of the enforcement remedies listed in 42 C.F.R. � 488.406, including the imposition of a DPNA, directed in-service training, and a CMP (either per instance or per day). 42 C.F.R. � 488.408. I have found ample evidence in support of the alleged deficiency, and conclude that CMS was authorized to impose the DPNA and directed in-service training and to deny Petitioner the approval to conduct NATCEP. I cannot review the choice of remedies by CMS (42 C.F.R. � 498.3(d)), but I must consider whether the amount of the CMP imposed against Petitioner is reasonable.

Reasonableness of the amount of a CMP is determined by applying the factors listed in 42 C.F.R. �� 488.438(f) and 488.404. Emerald Oaks, DAB No. 1800, at 10 (2001); CarePlex of Silver Spring, DAB No. 1683, at 16-17 (1997). These factors include a facility's history of noncompliance; a facility's financial condition; a facility's degree of culpability, and the factors specified in section 488.404 which are considered in the selection of any remedy. This regulation calls for an initial assessment by CMS of the seriousness of the deficiency, which includes the degree or risk of harm that the deficiencies present and whether the deficiencies are isolated, part of a pattern, or widespread. 42 C.F.R. � 488.404(b). CMS may also consider "other factors, which may include, but are not limited to," how the deficiencies relate to each other and what the prior history of the facility exists of - "noncompliance in general and specifically with reference to the cited deficiencies." 42 C.F.R. � 488.404(c). In this case, CMS has imposed a per instance CMP. Penalties may range between $1,000 to $10,000 per instance. (4)

Petitioner asserts that CMS has not justified the $3,050 imposed under the factors set forth in 42 C.F.R. � 488.438(f). Petitioner argues that the three deficiencies identified by CMS in the previous four years were not significant; that CMS was wrong to assert that the deficiency was serious or widespread because there was only one elopement and R1 did not sustain serious injury and there was no prior history of elopements or the alarm not being engaged; that R1's June 13, 2001 elopement and the alarm being engaged do not constitute culpability (which the regulations define as including, but not limited to, neglect, indifference, or disregard for resident care, comfort or safety, 42 C.F.R. � 488.438(f)(4)); and that the facility did not willfully disregard R1's needs and was not callous towards him. P. Br. at 17-20.

This is not a case regarding Petitioner's willful disregard or callousness towards R1's needs. I do not rule on whether or not Petitioner was otherwise attentive to R1's medical conditions. This is a case where I must determine whether a $3,050 CMP is reasonable given Petitioner's failure to supervise R1 on December 4, 2001 and Petitioner's assertions that it is not culpable are not a basis for reducing the amount of the CMP. 42 C.F.R. � 488.438(f)(4); see Brier Oak Terrace Care Center, DAB No. 1798 (2001).

I note that Petitioner did have a history of deficiencies. R. Exs. 7, 8. I note that CMS has shown, and Petitioner does not contest, that Petitioner's financial condition is not such that it could not pay the CMP or that paying the CMP would put it out of business. See Kelsey Memorial Hospital, DAB CR583 (1999); Capitol Hill Community Rehabilitation and Specialty Care Center, DAB CR469 (1997), aff'd DAB No. 1629 (1997). However, more important is that, although the deficiency related only to a single elopement, the facility's failure to lock, effectively alarm, or monitor the exit doors created a general risk of elopement, a serious deficiency which could have affected any wandering resident in the facility on December 4, 2001. Further, Petitioner had notice that R1 wandered and failed to take reasonable steps to ensure he did not elope by locking and/or monitoring doors by which he might exit the facility.

A $3,050 CMP is the lowest per day CMP that can be imposed where a facility is found to be out of substantial compliance at a level of immediate jeopardy. If CMS had elected to impose a per day CMP (which might have been justified as there is evidence that some corrective action had not been taken more than a month after the incident), it would have amounted to more than $3,050 after the first day. Further, a $3,050 CMP is actually in the lower range of CMPs (from $1,000 to $10,000) allowed for per instance CMPs, and I find it to be reasonable in this instance.

V. CONCLUSION

For the foregoing reasons, I decide that:

1. Petitioner was not in substantial compliance with 42 C.F.R. � 483.25(h)(2) on December 4, 2001, presenting immediate jeopardy for at least one resident.

2. A per instance CMP of $3,050; a denial of payment for new admissions for February 17 and 18, 2002; and directed in-service training are reasonable remedies in this case.

JUDGE
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Keith W. Sickendick

Administrative Law Judge

FOOTNOTES
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1. In its prehearing brief Petitioner stated that it "intends to argue that the survey process and findings are invalid and unconstitutional." P. Prehearing Br. at 6. Petitioner has not raised the issue in subsequent briefing. I note that as a general rule I have no authority to decide constitutional questions. Hermina Traeye Memorial Nursing Home, DAB No. 1810, at 20 (2002), quoting Sentinel Medical Laboratories, Inc., DAB No. 1762, at 9 (2001).

2. See Omnibus Budget Reconciliation Act of 1987, Pub. L. 100-203; 54 Fed. Reg. 5316 (Feb 2, 1989) ("The purpose of the revisions is to focus on actual facility performance in meeting residents' needs in a safe and healthful environment, rather than on the capacity of facility to provide appropriate services.").

3. Petitioner's Administrator told Ms. McAuliffe during the survey that R1 got out the "dock door." R. Exs. 39, at 4, paragraph 15; 17, at 3. However, both Petitioner and CMS now appear to agree that R1 left the facility through the "side" door prior to being found in the parking lot adjacent to the facility. P. Br. at 7. Ms. McAuliffe found during the survey that the lock on the dock door was broken. R. Ex. 17, at 3. Thus, Petitioner has effectively conceded that it failed to secure two doors on the night the incident with R1 occurred.

4. At a level of immediate jeopardy, penalties for a per day CMP range from between $3,050 to $10,000 for each day a party is out of substantial compliance. 42 C.F.R. � 488.438.

CASE | DECISION | JUDGE | FOOTNOTES