SUBJECT:

Emerald Park Health Care Center,

Petitioner,

Centers for Medicare & Medicaid Services.

Docket No.C-05-372 & C-05-393
Decision No. CR1462

DECISION

In these consolidated cases I impose remedies against Petitioner, Emerald Park Health Care Center, consisting of the following:

� Civil money penalties of $ 10,000 per day for each day of a period that began on April 19, 2005 and which ran through May 10, 2005;

� Civil money penalties of $150 per day for each day of a period that began on May 11, 2005 and which ran through May 14, 2005;

� Denial of payment for new Medicare admissions effective April 27, 2005; and

� Termination of Petitioner's participation in the Medicare program effective May 15, 2005.

I. Background

Petitioner is a skilled nursing facility in Evergreen Park, Illinois. Until May 15, 2005, it participated in the Medicare program. Its participation in that program was governed by sections 1819 and 1866 of the Social Security Act (Act) and by federal regulations at 42 C.F.R. Parts 483 and 488.

Representatives of the Illinois Department of Public Health surveyed Petitioner in April and May 2005 to determine whether Petitioner was complying with the Act and regulations. The surveys included a survey that was completed on April 22, 2005 (April 22 survey), a survey that was completed on May 4, 2005 (May 4 survey), an "abatement" survey that was completed on May 12, 2005 (May 12 survey), and a survey that was completed on May 24, 2005 (May 24 survey). At the April 22, May 4, and May 24 surveys the surveyors concluded that Petitioner was not complying substantially with participation requirements. The surveyors concluded that several instances of Petitioner's noncompliance were so egregious as to comprise immediate jeopardy for Petitioner's residents. The Centers for Medicare & Medicaid Services (CMS) concurred with the surveyors' findings and determined to impose remedies against Petitioner. The remedies that CMS determined to impose consisted of: civil money penalties of $10,000 per day for each day of a period that began on April 19, 2005 and which ran through May 10, 2005; civil money penalties of $150 per day for each day of a period that began on May 11, 2005 and which ran through May 14, 2005; denial of payment for new Medicare admissions effective April 27, 2005; and termination of Petitioner's participation in Medicare effective May 15, 2005.

Petitioner filed hearing requests on May 29, 2005 and June 8, 2005 challenging CMS's findings of noncompliance and remedy determinations. The case was assigned to me for a hearing and a decision. I issued a pre-hearing order pursuant to which the parties exchanged proposed exhibits and pre-hearing briefs. CMS filed a motion for summary judgment as part of its pre-hearing exchange and Petitioner opposed the motion. I scheduled the case for an in-person hearing and deferred ruling on CMS's motion. The parties then agreed that the case could be decided based on their written submissions. Each party filed a final brief and the parties also entered into a stipulation of facts. The parties' agreement to submit their cases in writing made it unnecessary that I rule on CMS's motion for summary judgment and also made the in-person hearing unnecessary.

CMS filed proposed exhibits consisting of CMS Ex. 1 - CMS Ex. 61. Petitioner filed proposed exhibits consisting of P. Ex. 1 - P. Ex 43. Neither CMS nor Petitioner objected to my receiving any of the proposed exhibits into evidence. Consequently, I am receiving into evidence CMS Ex. 1 - CMS Ex. 61, and P. Ex. 1 - P. Ex. 43.

II. Issues, findings of fact and conclusions of law

A. Issues

The issues in this case are whether:

1. Petitioner failed to comply substantially with Medicare participation requirements as of the April 22 and May 4 surveys;\

2. The evidence sustains CMS's determinations as to the duration of Petitioner's noncompliance;

3. CMS's determination that instances of Petitioner's noncompliance placed residents of Petitioner's facility at immediate jeopardy was clearly erroneous;

4. CMS's remedy determinations are authorized by law and, in the case of civil money penalties, reasonable.

I find it unnecessary to address some survey findings. The surveyors who conducted the April 22 survey found that Petitioner manifested four deficiencies. The surveyors concluded that three of these deficiencies were at the immediate jeopardy level of scope and severity and that the fourth deficiency was not at the immediate jeopardy level. I address only the three immediate jeopardy level deficiencies here because their presence justified the remedies that I sustain in this decision. Findings as to the fourth deficiency - an alleged non-immediate jeopardy level failure by Petitioner to comply with the requirements of 42 C.F.R. � 483.25(h)(1) - are not necessary to my decision. ⁽¹⁾

Nor do I make findings about the May 12 abatement survey. Petitioner did not challenge the findings that were made at that survey.

Finally, I make no findings about the May 24 survey. The surveyors who conducted that survey concluded that Petitioner manifested two immediate jeopardy level deficiencies. Petitioner has addressed these alleged deficiencies in its brief. However, CMS made no remedy determination based on the May 24 survey findings. CMS terminated Petitioner's participation in Medicare effective May 15, 2005, based on deficiency findings made at the April 22 and May 4 surveys. CMS did not demand that Petitioner pay civil money penalties or be denied payment for new admissions on any dates after May 15, 2005. Consequently, the May 24 survey findings are irrelevant to my decision and, moreover, no grounds exist for Petitioner to challenge them inasmuch as CMS made no determination to impose any remedies based on them. See 42 C.F.R. �� 498.3, 498.5.

B. Findings of fact and conclusions of law

I make findings of fact and conclusions of law (Findings) to support my decision in this case. I set forth each Finding below as a separate heading. I discuss each Finding in detail.

1. As of the April 22 survey Petitioner failed to comply substantially with the requirements of 42 C.F.R. � 483.20(b).

A facility must make a comprehensive assessment of each of its resident's needs. 42 C.F.R. � 483.20(b). CMS alleges that Petitioner failed to comply with the regulation's requirements because it failed, in the case of 16 residents with criminal histories, to research and identify the residents' criminal backgrounds when Petitioner admitted these residents to its facility. These residents are identified in the April 22 survey report as Residents #s 2, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 20, 21, and 22. CMS Ex. 4, at 2. Additionally, CMS asserts that Petitioner failed to comprehensively assess the propensities of Residents #s 6, 8, 9, 10, 11, 14, and 15, to engage in aggressive behavior and/or commit sexual offenses. CMS's pre-hearing brief at 6. CMS argues that Petitioner's failure to conduct these allegedly necessary assessments put residents in Petitioner's facility at risk of assaults and put residents at risk for being arrested. Id.

CMS supports these assertions with evidence concerning the relationship between Petitioner and each of the 16 residents whose care is at issue. The evidence describes a facility that housed highly aggressive and dangerous individuals, some of whom had criminal records. Petitioner knew that some of its residents might have criminal records. That is made evident by its residents' clinical records and by the fact that the facility's pre-printed care plan form has a subsection in which the staff could record whether or not a resident had been convicted of a crime. E.g., CMS Ex. 16, at 17. Petitioner's policy was to conduct criminal background checks of those residents whom it suspected of engaging in criminal activities. CMS Ex. 4, at 8; CMS Ex. 51, at 3. Furthermore, Petitioner's staff had some awareness of its residents' backgrounds and their propensities.

The evidence supports CMS's contention that Petitioner failed to conduct criminal background checks of its residents notwithstanding its policy and its knowledge that some of its residents had histories of criminal behavior. That is evident from the record of care that Petitioner gave to the 16 residents whose care is at issue. Moreover, on some occasions when Petitioner was aware that a resident had a background of criminal behavior, Petitioner failed to research closely the residents' histories and to assess carefully the impact that such behavior might have on the residents' present condition or on other residents. In the case of two residents, who are identified in the report of the April 22 survey as residents #s 5 and 16, Petitioner's initial assessment of its residents was so cursory that its staff failed to notice that the residents were wearing electronic surveillance devices on their legs.

The weight of the evidence establishes that, as a consequence of its laxness, Petitioner's staff was not sufficiently aware of the risks posed by its residents to protect its residents from the likely consequences of residents' criminal propensities. Many of the residents in question were violent - and in a few instances extraordinarily violent - individuals. In some instances Petitioner permitted residents to engage in conduct, such as unsupervised absences from Petitioner's facility, that was absolutely contraindicated by the residents' criminal histories and which placed the residents in situations where they could engage in highly destructive or self-destructive activity. And, in fact, some of Petitioner's residents engaged in destructive or self-destructive behavior while unsupervised, including consumption of street drugs and alcohol.

The picture of these residents that I have described generally and the way in which Petitioner's staff dealt with them is illustrated in detail by evidence offered by CMS relating to the individual residents, their histories, and their experiences while they were at Petitioner's facility. Examples include the following:

� Resident # 2 was admitted to Petitioner's facility on February 22, 2005 with diagnoses including schizoaffective disorder. CMS Ex. 5, at 1. The resident advised Petitioner's staff shortly after his admission that he was on probation for unlawful possession of a gun and ammunition. Id., at 4. However, Petitioner did not research the resident's criminal record. Id., at 17, 20.

� Petitioner admitted Resident # 5 on January 25, 2005. The resident was diagnosed to be suffering from impairments including schizophrenia. CMS Ex. 6. It was not until January 27, 2005, two days after the resident's admission to the facility, that Petitioner's staff observed that the resident was wearing a monitoring device on his leg. Id., at 26. On or before February 8, 2005 Petitioner's staff determined that the resident had served five years in prison for burglary. On February 8, 2005 Petitioner prepared a care plan for Resident # 5 that addressed the resident's criminal history.

� Petitioner admitted Resident # 6 to its facility from a hospital on January 24, 2005. CMS Ex. 7, at 1. The resident was diagnosed with, among other problems, schizophrenia and substance abuse. Id. On initial screening it was determined that the resident had a history of multiple incarcerations including an incarceration for failing, as a convicted sex offender, to register a change of his address. Id., at 35. However, Petitioner did not research Petitioner's criminal record and, on February 2, 2005, local police arrested Resident # 6 on an outstanding warrant. Id., at 12.

� Resident # 7 was admitted to Petitioner's facility on February 18, 2005 with diagnoses that included schizophrenia. CMS Ex. 8, at 1. Petitioner's staff performed a screening assessment of the resident which showed that the resident had severe problems including a history of substance abuse, inappropriate sexual behavior, and criminal conduct. Id., at 19. Petitioner's care plan identified robbery as being one of the resident's past behaviors. Id., at 40. However, Petitioner did not perform a thorough criminal background check on the resident.

� Petitioner admitted Resident # 8 from a hospital to its facility on November 24, 2004. CMS Ex. 9, at 1, 18. The resident was diagnosed to be suffering from a schizoaffective disorder and major depression. Id., at 4. Petitioner's staff assessed the resident as having moderate problems with recent aggressive/agitated behaviors, substance abuse, and recent criminal behavior. Id., at 8. However, Petitioner's staff did not research the resident's history in detail. It was not until February 23, 2005, about three months after admitting Resident # 8, that Petitioner learned that the resident was a convicted sex offender who had been convicted of aggravated criminal sexual abuse of a victim, age 13, and who was required to register his address with the police. Id., at 24, 44. During the period between the resident's admission and Petitioner's discovery of the resident's criminal record Petitioner had given the Resident a Level III pass, meaning that the resident was free to leave the facility without supervision. Id., at 21. Petitioner's staff revoked that pass on February 11, 2005 because the resident, while away from the facility, had purchased drugs. When the pass was revoked the resident became violent and threatened to kill a member of Petitioner's staff. Id., at 22.

� Resident # 9 began residing at Petitioner's facility on September 16, 2004. His diagnoses included depression and bipolar disorder. CMS Ex. 10, at 1. The resident advised Petitioner's staff that he was a sex offender and that he needed to register with local police. Id., at 14. However, Petitioner did not investigate Petitioner's criminal background.

� Petitioner admitted Resident # 10 to its facility from a hospital on November 26, 2004. CMS Ex. 11, at 1. The resident was diagnosed with illnesses that included depression and a schizoaffective disorder. Petitioner's staff learned on December 14, 2004 that the resident was a convicted child molester. Id., at 4. However, the staff did not thoroughly research the resident's criminal background nor did it complete an assessment of how the resident's history might affect his relationship with Petitioner's staff and other residents. Petitioner gave the resident a Level III pass, allowing the resident to leave the facility unsupervised. Id.; CMS Ex. 27A. On April 8, 2005 the resident was arrested by Illinois State police for failure to register as a sex offender. CMS Ex. 11, at 4.

� Resident # 11 was admitted to Petitioner's facility on December 8, 2004 with a diagnosis of schizophrenia. CMS Ex. 12, at 1, 4. On December 11, 2004 Petitioner's staff completed a Community Survival Skills Assessment of the resident which identified him as a child molester who needed supervision while out in the community. CMS Ex. 12, at 7. The assessment did not thoroughly examine the resident's history or his criminal record. During the resident's stay at the facility he engaged in a series of aggressive and/or confrontational behavior. On January 13, 2005, the resident was verbally abusive towards a female social worker. Id., at 19. On February 18, 2005, the resident verbally abused and physically threatened Petitioner's staff and other residents for a period of eight hours. Id., at 14. That episode resulted in a brief referral of the resident to a psychiatric hospital. Id. On March 22, 2005, the resident fought and sexually harassed one of his peers. Id., at 23. On March 28, 2005, the resident threatened to kill members of Petitioner's staff. Id., at 15 - 16. On April 11, 2005, the resident was taken to a local park by one of Petitioner's staff. The resident was arrested because the park was near a local school and, as a sex offender, the resident was forbidden from being at a location where children were present. CMS Ex. 4, at 21.

� Petitioner admitted Resident # 12 to its facility on February 10, 2005 with diagnoses including schizophrenia. CMS Ex. 13, at 1. A social services assessment of the resident was completed on March 5, 2005 which stated that the resident had no pending criminal charges. Id., at 19 - 20. However, on April 7, 2005, Resident # 12 was arrested by Illinois State police on an outstanding warrant. Id., at 2, 13.

� Resident # 13 was admitted to Petitioner's facility from a hospital on February 4, 2005. CMS Ex. 14, at 1, 3. The resident had a history of aggressive behavior and a diagnosis of schizophrenia. The resident's initial screening form, prepared by an agent of the State of Illinois, showed that the resident had been incarcerated previously. Id., at 8. However, Petitioner did not research the resident's criminal record. On April 7, 2005, the resident was arrested by Illinois State police for outstanding warrants. Id., at 3.

� Resident # 14 was admitted to Petitioner's facility from a hospital on February 23, 2005. The resident's diagnoses included major depression and bipolar affective disorder. CMS Ex. 15, at 1, 3. Petitioner failed to research the resident's criminal background. On March 21, 2005, the resident was involved in a physical altercation. Id., at 4. On April 2, 2005 he barricaded himself into his room, barring entry to Petitioner's staff. Id., at 6. On April 7, 2005 Resident # 14 was arrested at Petitioner's facility by Illinois State police for an outstanding warrant for battery and for failing to register as a sex offender. Id., at 2 , 7.

� Resident # 15 was admitted to Petitioner's facility from another nursing facility on January 13, 2005. CMS Ex. 16, at 1. The resident's diagnoses included schizophrenia. Petitioner's assessment of the resident noted that the resident needed to register with the local police, evidently due to his criminal record. CMS Ex. 6, at 11, 23. However, Petitioner did not make efforts to assist the resident to register until February 2, 2005, approximately three weeks after the date of the resident's admission to Petitioner's facility and beyond the 10-day period during which the resident was required to register. Id., at 12.

� Petitioner admitted Resident # 16 to its facility from a hospital on January 28, 2005. CMS Ex. 17, at 1. The resident's admission diagnoses included schizophrenia and a history of a seizure disorder. Id. Petitioner's staff assessed the resident as having substantial or severe problems including recent episodes of aggressive behavior, a history of substance abuse, a history of inappropriate sexual behavior, and a history of criminal behavior. But, Petitioner's staff did not research the resident's criminal record. Nor, evidently, did the staff observe at first that the resident was wearing a monitoring device on his leg, even though the staff purportedly completed a skin assessment of the resident on January 28, 2005. Id., at 11, 20. Petitioner's staff placed no restrictions on the resident's freedom of movement except from prohibiting the resident from going "too far." Id., at 20. In the weeks subsequent to his admission the resident was involved in numerous altercations with other residents and with Petitioner's staff. Id., at 5 - 14. On one occasion staff noted that the resident was taking drugs in his room. Id., at 6. On this occasion he threatened to kill members of Petitioner's staff. Id.

� Resident # 20 was admitted to Petitioner's facility on January 26, 2005. CMS Ex. 19, at 1. The resident was diagnosed to be suffering from acute schizophrenia. The resident's screening assessment noted that the resident had severe problems with aggressive behavior, substance abuse, inappropriate sexual behavior, and criminal behavior. Id., at 9. However, Petitioner did not perform a criminal background check of the resident. The resident's record also did not record the fact that there was an outstanding warrant for the resident's arrest. The resident's stay at Petitioner's facility was punctuated with episodes of aggressive and hostile behavior, and a suicide attempt. Id., at 15, 17.

� Petitioner admitted Resident # 21 on October 20, 2004. The resident's diagnoses included a schizoaffective disorder. CMS Ex. 20, at 1. Petitioner did not perform a check of the resident's criminal history and was, evidently, unaware that there was an outstanding warrant for the resident's arrest for the crime of assault. On October 22, 2004 the resident eloped Petitioner's premises. Id., at 13.

� Resident # 22 was admitted to Petitioner's facility on December 20, 2004 with diagnoses of schizoaffective disorder, aggression, and psychosis. CMS Ex. 21, at 1. Petitioner transferred the resident to a hospital the following day due to the resident's hostile and threatening behavior. Petitioner failed to perform a criminal background check on the resident and the resident's record did not disclose the fact that there was an outstanding arrest warrant for the resident.

Petitioner does not dispute the evidence that I have outlined above. Petitioner does not argue persuasively that knowledge of these residents' criminal records would have been unhelpful to Petitioner in providing care to them. The undisputed facts make it clear that Petitioner would have benefitted enormously from knowing more about these residents' histories. For example, no reasonable facility would give a pass to a resident allowing unrestricted absences from its premises if it knew that the resident was a convicted and unregistered sex offender. But, Petitioner gave Resident # 8 such liberty, unaware that the resident was a convicted an unregistered sex offender.

Petitioner's principal defense to CMS's allegations is to deny that 42 C.F.R. � 483.20(b) imposes any duty on it to research the criminal histories of its residents. Petitioner asserts that there is no language in the regulation that would even suggest that such a duty exists. Moreover, according to Petitioner, it would not have been possible in any event for it to perform the kind of background checks that CMS would have had it perform.

Petitioner is correct when it asserts that 42 C.F.R. � 483.20(b) does not explicitly impose on a facility a duty to research the criminal record of a resident. However, the absence of an explicit requirement does not excuse Petitioner's failure to research the criminal records of some of its residents given what Petitioner knew about its resident population in general and about these residents in particular.

The resident assessment regulation is not an itemized laundry list of what a facility must do to assess the needs of a resident. The regulation states that a facility must make "a comprehensive assessment of a resident's needs, . . . ." 42 C.F.R. � 483.20(b) (emphasis added). The plain meaning of the term "comprehensive assessment" is that a facility must research whatever is necessary about a resident's condition and history to assure that the facility is able to meet the resident's needs and to protect other residents, its staff, and the community at large.

Here, Petitioner knew that a significant portion of its resident population had criminal records. It also had reason to know that the 16 residents in question had backgrounds and histories that would lead any reasonable provider of care to suspect prior criminal conduct. That knowledge imposed a duty on Petitioner to find out all that it could about these residents, in order to provide them with the best possible care, but also to protect others against these residents' conduct.

That duty is no different than would be imposed by a facility's knowledge of any other problem or condition that might affect resident health or safety. The regulation imposes on a facility the duty to research every problem or condition that it knows or should know might affect the well-being and safety of its residents. Although the regulation does not itemize the illnesses and problems that a facility must assess its requirement for comprehensiveness in assessments subsumes any condition that might affect resident health or behavior. A propensity to engage in criminal activity, as is shown by past criminal activity, is one such condition.

The regulation does not require a facility to research issues that it does not suspect, or have reason to believe, exist. Petitioner was not required by the regulation to research every new resident's possible criminal history. There were, apparently, numerous residents at Petitioner's facility, including old and infirm residents, whose conditions would not lead any reasonable facility to suspect possible prior criminal activity. But, Petitioner had to research a resident's criminal history where it had reason to believe that a resident had one, because that history could help define the resident's psychological status and give Petitioner information it needed to protect the safety and well-being of its resident population.

Petitioner's argument that the regulation imposed no legal duty on it to research its residents' criminal records is not supported by the regulation's subparts setting forth specific examples of what must be included in the comprehensive assessment. The regulation provides a list of 18 items that, at a minimum, must be included in the assessment. 42 C.F.R. � 483.20(b)(1)(i) - (xviii). These items do not specifically reference a resident's criminal history. But, the regulation makes it plain that they comprise only the minimum of what must be included in an assessment and not an all-inclusive list of what must be included. Furthermore, several of the items can easily be read to require conducting research into a resident's criminal history if the facility knows or suspects that the resident has a criminal record. For example, 42 C.F.R. � 483.20(b)(1)(vi) and (vii) require a facility to assess a resident's mood and behavior patterns and his or her psychosocial well-being. The language of these two subsections plainly would encompass researching a resident's criminal record if a facility had reason to know that a resident had one. In that circumstance a facility would be hard put to assess comprehensively the resident's mood and behavior patterns or his or her psychosocial well-being without doing such research. ⁽²⁾

Furthermore, 42 C.F.R. � 483.20(b) should not be read in a vacuum. The regulation is not an isolated requirement. It is part of a comprehensive regulatory scheme which is written to require a participating facility to do everything reasonable to protect the health and safety of its residents. For example, 42 C.F.R. � 483.25 requires that a facility provide each resident with care and services that are needed 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. This regulation makes it clear that a comprehensive assessment is the foundation for providing care to a resident (the care plan is derived from the assessment). A facility cannot assure that a resident is receiving the care that is mandated by 42 C.F.R. � 483.25 if it does not provide that resident with a complete assessment.

I do not find persuasive Petitioner's argument that it would have had difficulty obtaining information about residents' criminal records had it tried to research them. That would have been a reasonable defense had Petitioner made a good faith effort to research its residents' records and had it encountered barriers to doing so imposed by State or local law enforcement agencies or the courts. But, Petitioner failed even to make the effort in this case.

Petitioner also argues that the State of Illinois did not enact a requirement that facilities research their residents' criminal histories until after the surveys that are the basis of this case were conducted. But, this case is not about a requirement under State law. The federal nursing home regulations impose obligations on facilities that are independent of what might be required by State law.

Petitioner asserts that it, in fact, addressed the behaviors of the seven residents of the 16 cited by CMS who had records as sex offenders. ⁽³⁾ However, Petitioner produced no evidence to show that it thoroughly researched these residents' histories. By failing to research those histories Petitioner failed to look closely at all of the prior behaviors of these residents that might have provided information about the residents' propensities and the dangers that they potentially posed to themselves or to others. In the case of Resident # 8, for example, the resident resided at Petitioner's facility for about three months before Petitioner discovered that the resident was a sex offender. During this period Petitioner gave the resident a pass that allowed him to leave the premises unsupervised.

Petitioner contends also that nothing in the regulations imposes on it the obligation to protect members of the community, as opposed to its residents or members of its staff, from harmful or dangerous conduct by residents. Consequently, according to Petitioner, it was not obligated to research its residents' criminal histories or to conduct assessments in order to provide community protection.

I disagree with this assertion. It is true that the regulations do not explicitly define a facility's responsibility to its residents to include protecting third parties, such as community members, from hostile or aggressive resident activity. But, the regulations require a facility to address a resident's aggressive or destructive behavior, no matter who that behavior is directed against, as part of the facility's duty to protect and provide care to the resident. Any aggressive or harmful act perpetrated by a resident against the greater community ultimately would redound to that resident's detriment.

Finally, I am not persuaded by Petitioner's argument that it discovered the monitoring devices on two of its residents within the 14-day period that is allowed for completing comprehensive assessments of the residents. The undisputed facts of this case are that Petitioner was not motivated by its discovery of these devices to conduct thorough research into the residents' criminal histories. Simply discovering the devices is not, by itself, compliance with the facility's obligations under the assessment regulation.

2. As of the April 22 survey Petitioner failed to comply substantially with the requirements of 42 C.F.R. � 483.25(h)(2).

A facility must ensure that each resident receives adequate supervision and assistance devices to present accidents. 42 C.F.R. � 483.25(h)(2). CMS alleges that Petitioner was not complying substantially with this requirement as of the April 22 survey because it failed to supervise its residents sufficiently to prevent them from engaging in a range of aggressive and highly destructive or self-destructive behaviors.

The evidence offered by CMS to support its contention is strong prima facie proof that Petitioner failed to supervise its residents. It shows that Petitioner allowed aggressive and violent residents to engage in assaultive behaviors and outbursts without attempting to find reasonable measures to control such conduct. It establishes that Petitioner failed to supervise closely residents who had histories of alcohol and drug abuse with the result that these residents continued their abusive conduct while on Petitioner's premises. Some of these residents appear even to have attempted to sell unlawful drugs while on Petitioner's premises. And, the evidence shows that Petitioner failed to keep track adequately of a severely mentally ill resident whose illness produced hallucinations and delusions.

This evidence, if not rebutted by Petitioner is certainly sufficient to establish that Petitioner failed to comply substantially with the requirements of 42 C.F.R. 483.25(h)(2). Petitioner's duty to protect its residents included protecting its residents against the assaultive propensities of other residents. It also included assuring that residents did not endanger themselves or others through substance abuse. And, it included providing adequate supervision to assure that residents with severe mental illnesses did not wander away from Petitioner's premises. The evidence presented by CMS shows that Petitioner failed to discharge all of these obligations.

CMS provided evidence, for example, which shows that Petitioner failed to supervise Residents #s 11 and 16 even though these residents menaced and threatened to kill other residents. Both of these residents were young, physically healthy men with histories of assaultive behavior. Each had been convicted of committing aggravated sexual assault against victims under the age of 18. CMS Ex. 12, at 9; CMS Ex. 17, at 23. Each had histories of drug and/or alcohol abuse. CMS Ex. 12, at 44; CMS Ex. 17, at 6.

Resident # 11 invaded the rooms of other residents and threatened to kill them. CMS Ex. 12, at 12 - 16. In Resident # 11's case his care plan was a pre-printed, generic document. Id. , at 47. The care plan stated that the resident had a potential for hostility and belligerent episodes. Id. It noted also that the resident had a history of aggression as a consequence of severe mental illness, a personality disorder, and a substance abuse disorder. Id. But, nothing was stated in the plan to deal with these problems except that the resident would share his thoughts with a care giver and would participate in anger management sessions. Id. The plan was not amended to deal with the resident's menacing behavior. No new and specific interventions were planned in reaction to the resident's threats and aggression. Instead, Petitioner tolerated the resident's behavior from his admission in December 2004 until it transferred him from the facility to a hospital for psychological evaluation in February 2005.

Resident # 16, also threatened to kill other residents and engaged in confrontations with them. He smoked marijuana in his room, attempted to hit other residents, punched the facility's wall, assaulted facility staff, and on numerous occasions became extremely agitated. CMS Ex. 17, at 5 - 9. The staff reacted to the resident's violent outbursts by giving the resident Ativan. However, as was the case with Resident # 11, Petitioner did not develop a specific, individualized plan of care to deal with the resident's violent behavior. And, obviously, mere administration of sedatives to the resident was not effective because the resident engaged in repeated violent behavior. On at least one occasion his outburst left him with physical injuries. Id., at 8.

CMS additionally offered proof that Petitioner failed to supervise adequately residents who are identified as Residents #s 15, 19, and 23. Each of these residents had histories of substance abuse including abuse of alcohol and drugs. CMS Ex. 16; CMS Ex. 18; CMS Ex. 22. The evidence that CMS presented concerning the care that Petitioner gave to these residents establishes repeated instances in which the residents were found in possession of, or using, or in the presence of, unlawful drugs while on Petitioner's premises. In the case of Resident # 19, for example, the resident's record is replete with references to the resident's abusing illegal drugs or being observed on Petitioner's premises apparently intoxicated. CMS Ex. 18, at 19, 45, 66. On one occasion Petitioner's staff found the resident with 13 bags of crack cocaine which the resident apparently intended to sell to other residents. Id., at 37. Yet, at no time did Petitioner investigate the resident's drug and alcohol abuse. Petitioner did not inform law enforcement authorities about it. And, Petitioner developed no specific interventions to deal with the problem beyond some verbal interactions with the resident. Id., at 66.

In the case of Resident # 15, there are also references in the resident's record to his use of an unlawful substance, marijuana, while on the premises of Petitioner's facility. CMS Ex. 16, at 12 - 14. But, Petitioner failed to develop any specific interventions to deal with this observed problem. As for Resident # 23, Petitioner's staff suspected that the resident was selling unlawful drugs while he resided on Petitioner's premises. CMS Ex. 22, at 5. Petitioner neither reported its suspicions to law enforcement authorities nor did it address the problem of the resident's drug dealing in the resident's care plan. See CMS Ex. 22.

Finally, CMS offered proof relating to an elopement from Petitioner's premises by Resident # 5. The resident is an individual who suffers from severe mental illness, manifested by hallucinations and delusions. Petitioner appropriately restricted the resident from leaving its premises unsupervised. However, on April 12, 2005, the resident eloped the premises and was absent for 45 minutes before he was discovered and returned to the facility. CMS Ex. 4, at 25; CMS Ex. 6.

Petitioner's principal argument in response to CMS's allegations and evidence is to deny that 42 C.F.R. � 483.25(h)(2) mandates any of the supervision that CMS alleges that it failed to provide. Petitioner contends that the "accidents" that the regulation is designed to protect against consist of falls or similar mishaps related to structural or physical hazards in a facility and to residents' somatic infirmities. It argues that the likelihood that unsupervised residents would engage in violence against each other or against other persons, would be injured by their use of illicit substances, or would be injured in the course of unauthorized elopements is not an eventuality that is within the reach of the regulation. Thus, according to Petitioner, the way in which it supervised the residents whose care is at issue is irrelevant.

I find this argument to be unpersuasive. The regulation has never been interpreted so narrowly as Petitioner contends. The regulation protects all residents against the consequences of events that are beyond the residents' ability to control but which the facility can control. It does not matter whether the precipitating event is some hazard caused by an inanimate object, like a wet floor, or a hazard caused by human behavior.

Within the meaning of the regulation a resident who is the victim of an unprovoked assault is as much an accident victim as is a resident who slips and falls. The resident who is the victim of an assault by another resident whose aggression is not being controlled by the facility is the victim of events that are beyond the resident's ability to control even as is a resident who slips and falls as a result of a facility's failure to provide that resident with an assistance device. A resident with a substance abuse disorder who is able to consume illegal drugs or alcohol on a facility's premises due to lax supervision by the facility's staff also is, in a very real sense, a victim of circumstances that are beyond his or her ability to control. And, it should be obvious that a delusional and hallucinating resident injured in the course of an elopement is a victim of circumstances that are beyond his or her ability to control.

Petitioner also argues that a facility has no duty under federal regulations to prevent substance abuse by its residents. Petitioner's final brief at 36. I agree with Petitioner that there is no language in the regulations that explicitly states that a facility must prevent its residents from abusing alcohol or drugs. But, that is no basis from which to conclude that the regulations impose no duty on a facility to protect its residents against the consequences of alcohol or drug abuse. The essence of the regulations and 42 C.F.R. � 483.25(h)(2) in particular is that a facility protect its residents from harmful events that are within a facility's ability to control. Protecting a resident against the consequences of alcohol or drug abuse is one of those events.

In addition to its legal defenses, Petitioner asserts that it, in fact, provided reasonable supervision to all of its residents. Petitioner argues, therefore, that it complied with even CMS's interpretation of its obligations under 42 C.F.R. � 483.25(h)(2). It asserts that no supervision can be perfect or airtight. It contends that what it actually did for the residents whose care is at issue was reasonable, given the circumstances.

I agree with Petitioner's assertion that the regulation does not impose a strict liability standard on a facility. In providing care to residents there are events that may be unforeseeable or which are beyond a facility's ability to control. For that reason a facility is not liable automatically for every accident or adverse event that occurs on its premises. However, a facility is required by the regulation to take all reasonable steps to protect each of its residents from accidents. Events that are foreseeable must be guarded against. And, measures implemented by a facility must be calculated to address foreseeable risks in an effective manner.

I am not persuaded by Petitioner's arguments or by the evidence on which it relies that it took all reasonable steps to safeguard its residents against foreseeable hazards. The evidence relied on by Petitioner fails on close analysis to support Petitioner's contention that it provided its residents with reasonable supervision. It is true that Petitioner provided some interventions for its residents. Petitioner's staff wrote care plans for them which identified at least some of their behavior. It provided residents with resources such as counseling and anger management sessions. Some of these residents received medication to assist in controlling their behavior. Petitioner also referred its residents to psychiatric hospitals for evaluation and treatment on occasion. But, the evidence fails to show any concentrated and individualized effort by Petitioner's staff to address the particular aggressive or other dangerous behavior manifested by its residents. Petitioner failed to make a concerted effort to modify or change residents' dangerous behavior when the treatments Petitioner was relying on proved to be ineffective.

The care that Petitioner gave to Resident # 11 is an example that supports my finding. Resident # 11 was an known sex offender and an individual who engaged in repeated threatening and menacing behavior directed at Petitioner's staff and at other residents. However, Petitioner never developed a focused plan to control the resident's behavior and thus, the resident posed a danger to other residents throughout his stay at Petitioner's facility.

Petitioner seems to say that Resident # 11 was not really a threat to other residents. According to Petitioner, the resident's aggressive conducted was directed only towards Petitioner's staff. Petitioner's final brief at 41. Even if this assertion were true it would not be a basis for excusing Petitioner from failing to supervise the resident adequately. Aggression by a resident against facility staff ultimately harms the resident. Petitioner is obligated to protect the resident against that eventuality.

Moreover, Petitioner's assertion is not, in fact, true. On several occasions Petitioner's staff found Resident # 11 - a 33-year old convicted sex offender who stands over six feet tall and who weighs 280 pounds - lurking in other residents' rooms and standing over other residents as they slept. CMS Ex. 12, at 9, 12 - 13. That behavior can only be characterized as threatening.

Petitioner asserts additionally that its remedy for the resident's aggressive behavior was to transfer the resident to a hospital for observation and treatment immediately. Petitioner's final brief at 41. The resident's record shows that Petitioner transferred the resident on February 18, 2005 after an episode in which the resident became verbally abusive and physically threatening towards facility staff and other residents. CMS Ex. 12, at 14. But, this was only one of many episodes of aggressive behavior by the resident. Petitioner did not take the same action after several other episodes, including those in which the resident was found menacing other residents while they slept. And, in fact, the record shows that the resident resumed his aggressive behavior after he returned to the facility. Id., at 15, 16.

Petitioner also argues that it implemented a range of interventions for Resident # 11, including counseling, participation in an anger management group, and administration of Ativan on an as-needed basis. Petitioner's final brief at 42. That may be so, but it should have been obvious to Petitioner that none of these approaches worked. The resident's aggressive and menacing behavior continued essentially unabated throughout his stay at Petitioner's facility.

Finally, Petitioner claims that its interventions were successful because no other resident at Petitioner's facility was injured by Resident # 11 during his stay there. Petitioner's final brief at 43. I do not attribute this fortuitous consequence to any efforts made by Petitioner. As I discuss below, this resident's repeated aggressive actions (and those of other residents as well) made it highly likely that someone would get harmed seriously. Other residents were not injured by Resident # 11 despite Petitioner's failure to curb his behavior and not because Petitioner successfully intervened to supervise the resident and to protect others from him.

Petitioner makes similar arguments with respect to its care of Resident # 16 as it makes concerning Resident # 11. It states that Resident # 16 never struck another resident or was involved with a physical altercation with another resident at Petitioner's facility. Petitioner's final brief at 41. This assertion is at best technically correct. Resident # 16 at least attempted violence against other residents more than once. Between February 5 and April 11, 2005 Resident # 16 was involved in numerous confrontations with other residents and Petitioner's staff. CMS Ex. 17, at 5 - 9. These confrontations included incidents where he attempted to strike other residents. On one occasion, occurring on April 4, 2005, the resident was involved in a physical altercation with someone that left him with abrasions on the right side of his neck and the left side of his head. Id., at 8.

The degree of hostility manifested by this resident could be hair-raising. Resident # 16 was 24 years old, stood over six feet tall, and weighed 200 pounds. CMS Ex. 17, at 11. Citing one day as an example which was by no means unusual, on March 14, 2005, the resident became extremely agitated. He smoked marijuana on that date. He confronted other residents in his room, tried to pick a fight with them, had a confrontation with staff, and threatened to kill people. Id., at 6.

As was the case with Resident # 11, Petitioner offered interventions for Resident # 16 which included administering Ativan to the resident when necessary, counseling, and group psychotherapy. On April 11, 2005, Petitioner provided the resident with one-on-one supervision after a particularly violent outburst by the resident and transferred the resident to a hospital. While these interventions may have been appropriate, they clearly were not adequate to address the resident's problems during the more than two months that he resided at Petitioner's facility. CMS is correct in arguing that until the end of the resident's stay Petitioner never provided intensive interventions or close supervision of the resident in order to curb his frequent violent outbursts. And, as a consequence, the resident repeated his behavior over and over again while he resided at Petitioner's facility.

The care that Petitioner provided to Residents #s 15, 19, and 23 was similarly ineffective, Petitioner's arguments notwithstanding. As I discuss above, each of these residents were known substance abusers. Yet, each of them managed to obtain and/or use illegal drugs while residing at Petitioner's facility. In the case of Resident # 23, the evidence strongly supports an inference that the resident intended to deal drugs while on Petitioner's premises. Petitioner points to various interventions that it attempted with these residents. Petitioner's final brief at 36 - 38. But, these interventions were palpably ineffective. There is nothing in the record of any of these residents to show that Petitioner reassessed them in order to identify interventions that might work or that Petitioner varied its standard treatments - counseling, psychotherapy, room and body checks - when it became apparent that the residents were successfully evading whatever measures Petitioner undertook.

As for Resident # 5, Petitioner does not dispute that the resident was absent from its facility without leave. But, according to Petitioner, "this is not an elopement case." Petitioner's final brief at 40. Petitioner claims that CMS has identified no evidence to suggest that the resident's unlawful absence jeopardized his personal safety. Id. I disagree. This resident suffered from delusions and hallucinations. He was at Petitioner's facility because his illness was so severe as to necessitate in-patient treatment. Petitioner's own staff concluded that the resident could not be trusted to be outside of the premises safely while unattended.

3. As of the April 22 survey Petitioner failed to comply substantially with the requirements of 42 C.F.R. � 483.75.

A nursing facility must be administered in a manner that enables it to use its resources effectively and efficiently to attain maintain the highest practicable physical, mental, and psychosocial well-being of each resident. 42 C.F.R. � 483.75. CMS's allegations that Petitioner failed to comply with this regulation's requirements derive from Petitioner's failure to comply with other regulations. In effect, CMS argues that Petitioner's systemic failures to assess its residents or to protect them establishes that it was not administered consonant with regulatory requirements.

It does not necessarily follow from episodes of poor care at a facility that a facility is poorly managed. I recognize that there may be occasions when a facility's staff commits errors despite outstanding management. But, it is reasonable to infer that a facility is managed poorly where there are pervasive and systemic problems with the care that the facility provides to its residents.

Such is the case here. Petitioner's failure to assess its residents consistent with regulatory requirements was pervasive as was its failure to protect residents against possible accidents. My findings of noncompliance with assessment and protection requirements are not based on one or two isolated events. Rather, they are based on a whole series of events transpiring over several months and comprising a pattern which establishes to my satisfaction that Petitioner's management had lost control over the way in which its staff dealt with residents.

4. As of the May 4 survey Petitioner failed to comply substantially with the requirements of 42 C.F.R. � 483.25.

A facility must provide each of its residents with 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. This regulation has been interpreted to require a facility to provide its residents with care that meets professionally recognized standards of quality. Royal Manor, DAB No. 1990 (2005).

CMS contends that Petitioner failed to provide care to its residents that met professionally recognized standards of quality. CMS's allegations of noncompliance relate to the manner in which Petitioner's staff dealt with a medical emergency experienced on April 29, 2005 by a resident who is identified in the report of the May 4 survey as Resident # 1. This resident, an elderly individual, experienced respiratory and cardiac arrest on that date resulting in her death. CMS alleges that Petitioner contravened the regulation because Petitioner failed to:

� have a licensed nurse conduct a comprehensive assessment and neurological check on the resident after she was found unresponsive on the morning of April 29;

� have a licensed nurse continuously monitor the resident after she was found unresponsive;

� keep emergency equipment readily available to deal with the resident's needs; and

� provide emergency services to the resident after she was found unresponsive.

CMS's final brief at 59. To support its allegations CMS relies on the following evidence.

Resident # 1 was a woman, aged 82, who suffered from several illnesses including a history of respiratory distress. As of April 29 the resident was receiving oxygen via a nasal cannula. CMS Ex. 33, at 23, 50. Sometime between 5:30 and 5:45 a.m. on April 29, a certified nursing assistant (CNA) went into the resident's room to provide her with personal assistance. The CNA discovered that the resident was unresponsive in the sense that she did not respond to her name being called or to physical contact. Id. The CNA left the resident's room to inform a licensed practical nurse (LPN) of the resident's condition. Id.

The LPN went to Resident # 1's room to check her status. CMS Ex. 36, at 10. She discovered that the resident was unresponsive but was breathing. The LPN instructed the CNA to obtain the resident's vital signs. The CNA had to obtain a blood pressure cuff from another floor of Petitioner's facility before taking the resident's vital signs. Id., at 10, 16 - 17. The vital signs were recorded as: blood pressure 90/40; temperature 98.5 degrees Fahrenheit; pulse 80; and respirations 40. Id., at 10, 17. The CNA along with another CNA then changed the resident's linen and cleaned the resident. The LPN left the resident's room to call for emergency paramedics and to page the resident's treating physician. Id., at 10.

The call to the paramedic service was made at 6:15 a.m. according to Petitioner's records and at 6:22 a.m. according to the paramedic service's records. CMS Ex. 33, at 22, 52. The paramedics arrived at Petitioner's facility at 6:26 a.m. and were in the resident's room by 6:28 a.m. CMS Ex. 33, at 52. . The paramedics discovered Resident # 1 to be unresponsive. They also found her to be unattended. CMS Ex. 33, at 52, 54; CMS Ex. 36, at 26; CMS Ex. 59, at 2; CMS Ex. 60, at 2.

Upon discovering the resident the paramedics took her vital signs. They recorded her vital signs as: blood pressure 108/60; pulse 29; respirations 8; oxygen saturation 49 percent. CMS Ex. 33, at 52. The paramedics decided to switch the resident from a nasal cannula to oxygen via a non-rebreathing mask. Id. While the paramedics were assessing the resident the LPN returned to the resident's room. The paramedics asked why the resident had been left unattended. The LPN advised the paramedics that the resident was left unattended because the staff had to complete transfer paperwork. The LPN then disconnected the resident's gastric tube so that the resident could be transported. She provided no additional assistance to the resident.

The paramedics left Petitioner's facility with Resident # 1 at about 6:50 a.m. on April 29, 2005. The resident experienced cardiac arrest while being transported and was intubated. She was pronounced dead at the hospital at 7:00 a.m.

CMS argues that the professionally recognized standard of care for dealing with a resident - such as Resident # 1 - in respiratory distress requires that the resident be assessed immediately and comprehensively by a nurse. CMS Ex. 57, at 2. A comprehensive assessment would include, but not necessarily be limited to, checking the resident's skin temperature, mucous membranes, and positioning, checking the resident's airway, listening to the resident's chest, and obtaining the resident's vital signs. Additionally, a nurse should immediately perform a neurological check on a non-responsive resident, and such a check should include looking at the resident's pupils to determine whether they respond to light. Id. CMS asserts that Petitioner violated the professionally recognized standard of care, and 42 C.F.R. � 483.25, because Petitioner's staff performed neither an assessment nor a neurological check on Resident # 1 on the morning of April 29, 2005.

CMS argues also that the professionally recognized standard of care for dealing with a non-responsive resident is to have a licensed nurse with the resident at all times. CMS Ex. 57, at 3. It is crucial to have a nurse with such a resident at all times, according to CMS, because only a nurse is trained to perform many of the activities and services that might be needed by such a resident. Id. For example, only a nurse can provide necessary monitoring and continuous assessment of a non-responsive resident. Id. Moreover, only a nurse would have the training to start IV fluids on a non-responsive resident or to decide whether to adjust the flow of oxygen to such a resident. Id. CMS asserts that Petitioner contravened this standard in dealing with Resident # 1 because the LPN left the resident's room while awaiting the arrival of paramedics.

CMS argues additionally that the professionally recognized standard of care requires that equipment such as a blood pressure monitoring cuff be immediately available for assessing a resident who becomes non-responsive. CMS Ex. 57, at 4. According to CMS Petitioner violated the standard because the blood pressure cuff was on another floor of Petitioner's facility when Resident # 1 was discovered unresponsive. As a consequence, time was lost while the CNA retrieved the cuff.

Finally, CMS argues that the professionally recognized standard of care that equipment such as a pulse oximeter - which measures a person's blood oxygen saturation level - is an important tool in assessing the needs of a non-responsive resident. CMS Ex. 57, at 4. Petitioner had a pulse oximeter available but it failed to use it, thereby violating the standard of care, according to CMS.

CMS presented a solid prima facie case that Petitioner failed to provide care of a quality required by 42 C.F.R. � 483.25 in dealing with the emergency needs of Resident # 1. The evidence presented by CMS presents a picture of a staff that was disorganized and inefficient in providing care to the resident. The strong prima facie evidence is that Petitioner failed to provide this resident with necessary assessments and care at a moment of life-threatening distress. The evidence of ineptitude presented by CMS supports a finding that the facility not only failed to provide care of an acceptable quality to Resident # 1, but that it was not capable of providing such care to its resident population.

Petitioner's central response to CMS's evidence is to argue that it was unnecessary for a nurse to attend to Resident # 1 continuously while the resident was in distress. Petitioner asserts that CMS really hasn't established the professionally recognized nursing standard of care for dealing with a non-responsive resident. Petitioner, in effect, dismisses the opinion of the surveyor on whose opinion CMS relies as being unqualified to establish the professionally recognized standard. See CMS Ex. 57. Petitioner argues that the standard of care does not require continuous monitoring by a nurse of a non-responsive resident. See P. Ex. 39, at 2.

Petitioner argues also that the resident was never placed at risk by the failure of a nurse to be at her bedside continuously. According to Petitioner, having a CNA stay with the resident provided adequate monitoring and care for her. In the State of Illinois, Petitioner argues, CNAs are trained to perform CPR on an individual needing such a service.

Petitioner contends that it was not necessary to conduct pulse oximetry of Resident # 1 because the instrument would have done no more than to confirm what Petitioner's staff already knew, that there was a need to call for emergency services. Finally, Petitioner argues that the decision of a CNA to go to another floor to get a blood pressure cuff is a "red herring" because there was, in fact, a blood pressure cuff available on the same floor as Resident # 1. Petitioner contends that the CNA's decision was an option that she elected because it was quicker to go to another floor for the blood pressure cuff than to retrieve the cuff that was located on the same floor as the resident. Petitioner's final brief at 61.

I do not find Petitioner's arguments to be persuasive. The weight of the evidence strongly supports a finding that it was derelict for Petitioner not to have a licensed nurse by Resident # 1's bedside at all times that she was in respiratory distress and at Petitioner's facility. Petitioner's failure to do so, coupled with the failure of the nursing staff to perform emergency assessments and neurological tests of the resident violated professionally recognized standards of nursing care and 42 C.F.R. � 483.25.

First, the weight of the evidence does not support Petitioner's premise that the resident was continuously attended, at least by a CNA, pending the arrival of paramedics. The paramedics report that no one was present in the resident's room when they arrived. CMS Ex. 33, at 52, 54; CMS Ex. 36, at 26; CMS Ex. 59; CMS Ex. 60. I find these statements - which are unbiased - to be the most credible account of what actually occurred. There was at least a brief period on the morning of April 29, 2005, between the time when the resident was found non-responsive and the time when the paramedics arrived at the resident's room, when the resident was left entirely unattended.

Second, the professionally recognized standard of care clearly requires that a nurse stay with a non-responsive resident in order to perform emergency care and monitoring and assessments. Leaving a CNA with the resident is not an acceptable substitute. The surveyor on whose opinion CMS relied to establish the professionally recognized standards of nursing care is a registered nurse. CMS Ex. 57. There is nothing in the record of this case to suggest that this witness is less than qualified to establish the professionally recognized standard of care. I find her opinion as to the standard and as to Petitioner's failure to comply with that standard to be persuasive. Moreover, the opinion of the resident's physician, on which Petitioner relies to refute CMS's expert testimony, does not actually contradict such testimony. The physician states that:

During the period between the time . . . [Resident # 1] was found unresponsive and the time the paramedics arrived, I would have expected (and proper nursing care in a nursing home did require) the facility's staff to monitor the resident and to initiate CPR if the resident went into cardiac arrest or stopped breathing before the paramedics arrived, which did not occur.

P. Ex. 39, at 2. This statement - rather than rebutting the testimony of the surveyor - is actually consistent with it and reinforces it. See CMS Ex. 57, at 3 - 4. The resident's physician clearly recognizes a need for Petitioner's staff to have conducted continuous monitoring of Resident # 1 while awaiting the arrival of the paramedics. The kind of assessment and monitoring that could only be done by a nurse was not done here.

It begs the question for Petitioner to argue that CNAs were trained to perform CPR. Performing CPR may have been within the training and capacity of the CNAs on Petitioner's staff. But, Petitioner has made no showing that CNAs had the training or experience to make the assessments that are a necessary prerequisite to deciding when to perform CPR. Furthermore, there are other services that only nurses are capable of performing that, based on CMS's expert testimony, might have been needed here and which were unavailable to the resident when the LPN was not present. These included deciding whether to adjust oxygen flow to the resident or inserting an IV line. Finally, Petitioner has not addressed the failure of Petitioner's staff to perform the assessments and neurological examinations that were required under the circumstances.

I do not find it necessary to decide whether Petitioner's staff made an appropriate judgment in retrieving a blood pressure cuff from another floor of Petitioner's facility on the morning of April 29, 2005 nor do I find it necessary to decide whether it would have been appropriate for the staff to perform pulse oximetry on the resident on that morning. The failures to perform basic nursing monitoring and assessment and to provide the resident with continuous support are egregious failures to comply with professionally recognized standards of nursing care and the requirements of 42 C.F.R. � 483.25. Those failures are enough, by themselves, to establish noncompliance.

5. CMS's determinations that Petitioner's noncompliance at the April 22 and May 4 surveys was at the immediate jeopardy level are not clearly erroneous.

CMS determined that the four deficiencies that I have sustained in this decision were so egregious as to constitute immediate jeopardy for Petitioner's residents. An "immediate jeopardy" level deficiency is one in which a facility's noncompliance:

has caused, or is likely to cause, serious injury, harm, impairment, or death to a resident.

42 C.F.R. � 488.301.

The regulation encompasses two circumstances that may comprise immediate jeopardy: first, where there is proof that noncompliance has caused serious injury, harm, impairment, or death to a resident or residents of a facility; and second, where there is no proof of actual serious injury, harm, impairment, or death to a resident, but where such would be the likely consequence of continued noncompliance.

The regulation does not define "likely to cause." I find it to be a measure of probability. An outcome must be more than simply a possibility in order to be likely to occur. In other cases, I have held that an event is likely to occur when it is more probable than not that it will occur. Tara at Thunderbolt, DAB CR1445 (2006). I use that standard in this case to decide whether a likelihood of serious injury, harm, impairment, or death to a resident existed as a consequence of Petitioner's noncompliance.

A facility faces a heavy burden in challenging a determination that its noncompliance was at the immediate jeopardy level. The facility must prove the determination to be clearly erroneous in order to prevail. 42 C.F.R. � 498.60. That is a more stringent burden of proof than a preponderance of the evidence burden.

There is ample evidence in this case to support CMS's determination of immediate jeopardy level deficiencies. I do not find that the record establishes that a resident was seriously injured, harmed, impaired, or died as a consequence of Petitioner's noncompliance. But, the evidence very strongly supports a conclusion that a likelihood of serious injury, harm, impairment, or death was caused by Petitioner's noncompliance.

a. Petitioner's noncompliance with 42 C.F.R. � 483.20(b) (April 22 survey)

The failure by Petitioner's staff to research thoroughly the criminal histories of some of its residents created a high probability that those residents or other residents of Petitioner's facility would suffer serious injury, harm, impairment, or death. As I discuss above, at Finding 1, several of the residents whose care was at issue were violence prone, dangerous individuals. Some of them also suffered from substance abuse disorders. Petitioner needed to know as much as it could about these individuals in order to better control their destructive and self-destructive behavior. Failure by Petitioner's staff to check thoroughly these individuals' criminal records and histories left the residents open to being put in harm's way or gave them the opportunity to do great harm to others. The evidence establishes that the threat posed by these residents was more than hypothetical. Several of them were involved in episodes that could easily have escalated into activity that caused great harm or death to other residents. There were repeated confrontations in Petitioner's facility. Residents threatened, menaced, and attempted assaults against other residents. The likelihood that serious injury, harm, impairment, or death would result eventually is made evident by the many violent confrontations that occurred between Petitioner's staff and certain residents, and by the instances in which residents were found in possession of alcohol or illegal substances.

Petitioner did not prove CMS's determination to be clearly erroneous. The thrust of its arguments address the issue of its liability and not the issue of the presence of immediate jeopardy. Petitioner also argues that evidence of violence by residents against staff cannot be a basis for inferring that residents were likely to harm or injure other residents seriously. I disagree. The residents whose care is at issue, such as Residents #s 11 and 16 were violent individuals. The fact that they directed much of their violence against Petitioner's staff does not mean that other residents were safe. To the contrary, I infer that other residents were likely eventual targets of these residents' generally violent behavior. And, as I discuss above, at Finding 1, any harm that Petitioner's residents might cause to others would likely result in harm to the residents themselves.

b. Petitioner's noncompliance with the requirements of 42 C.F.R. � 483.25(h)(2) (April 22 survey)

I reach the same conclusion here that I reach with respect to Petitioner's failure to assess violence prone and self-destructive residents. See my discussion at Part a of this Finding. Petitioner's failure to provide adequate supervision of its violence prone and self-destructive residents put other residents at a high probability of injury. Additionally, there was a likelihood that at least some of these residents might cause themselves serious injury, harm, impairment, or even death as a consequence of their unsupervised and self-destructive lifestyles.

Petitioner did not prove CMS's determination of immediate jeopardy to be clearly erroneous. In responding to CMS's allegations of noncompliance Petitioner did not address the issue of whether serious injury, harm, impairment, or death to a resident was a likely consequence of its noncompliance. Rather, it argued only that it had, in fact, complied with the requirement at 42 C.F.R. � 483.25(h)(2).

Petitioner argues that, as a matter of law, a finding of an immediate jeopardy level failure to comply with 42 C.F.R. � 483.25(h)(2) cannot be predicated on the likelihood that uncontrolled resident behavior might harm members of the community. Petitioner's final brief at 50. I have discussed that argument in other contexts elsewhere in this decision. It is sufficient for me to state here that I reject Petitioner's argument because harm caused by a resident against others - whether they are other residents, facility staff, or community members - ultimately redounds to the resident's disadvantage. The residents whose care is at issue all had severe psychological disorders. The outbursts and expressions of rage that characterized these residents' behavior were likely, if unchecked, to cause them lasting harm.

c. Petitioner's noncompliance with the requirements of 42 C.F.R. � 483.75 (April 22 survey).

It is reasonable to infer that Petitioner's failure to be administered effectively was a proximate cause of, or contributed to, the other two immediate jeopardy level deficiencies that were present as of the April 22 survey. Petitioner has offered nothing to show that CMS's determination that this deficiency was at the immediate jeopardy level was clearly erroneous.

d. Petitioner's noncompliance with the requirements of 42 C.F.R. � 483.25 (May 4 survey)

Petitioner's failure to provide care to a resident in an emergency situation consistent with professionally recognized standards of care is compelling evidence that continued noncompliance by Petitioner was likely to cause serious injury, harm, impairment, or death to a resident. I cannot say, based on the record of this case, that Resident # 1's condition was made worse by Petitioner's failure to comply with professionally recognized standards of care. But, it is obvious that the disorganized way in which Petitioner's staff dealt with this resident's respiratory distress and non-responsiveness created a great likelihood that disastrous results would occur should other emergencies occur and be dealt with similarly. Petitioner's staff failed to provide care of the most basic nature to Resident # 1. They left this resident unattended and without professional help at a moment of life-threatening distress.

Petitioner has not offered evidence to show that CMS's determination of immediate jeopardy was clearly erroneous. It argues only that its staff's conduct complied with recognized standards of care.

6. Petitioner did not prove that CMS's determinations of the duration of its noncompliance were in error.

CMS determined that Petitioner's immediate jeopardy level noncompliance continued through May 11, 2005. It determined that Petitioner remained noncompliant with participation requirements, albeit at a lower level of noncompliance than immediate jeopardy, through May 15, 2005, the date when CMS terminated Petitioner's participation in Medicare.

Petitioner has not offered evidence to challenge these determinations of duration. In its pre-hearing brief Petitioner offered various statements of what it urged to be the true duration of its deficiencies, assuming that CMS's deficiency determinations were sustained. Petitioner's pre-hearing brief at 43. But, Petitioner offered neither evidence nor explanation to justify why its assertions are correct. ⁽⁴⁾ Petitioner has not offered proof of remedial actions undertaken to abate its immediate jeopardy level deficiencies prior to May 11, 2005. Nor has it shown that it took remedial action to eliminate all deficiencies prior to May 15, 2005.

7. I sustain civil money penalties of $10,000 per day for each day of the period that began on April 19, 2005 and which ran through May 10, 2005 and $150 per day for each day of the period that began on May 11, 2005 and which ran through May 14, 2005.

a. The April 19 - May 10 period

CMS determined to impose civil money penalties of $10,000 per day against Petitioner for each day of the April 19 - May 10, 2005 period based on the presence of immediate jeopardy level deficiencies during this period. I find that these penalties are reasonable.

Regulations provide that civil money penalties of from $3,050 - $10,000 per day may be imposed to remedy an immediate jeopardy level deficiency or deficiencies. 42 C.F.R. � 488.438(a)(1)(i). Deciding where within that range a particular penalty should fall must be based on evidence relating to factors that are set out at 42 C.F.R. �� 488.438(f)(1) - (4) and 488.404 (incorporated by reference into 42 C.F.R. � 488.438(f)(3)). The factors include: the seriousness of deficiencies; their interrelationship; a facility's compliance history; its culpability for its deficiencies; and its financial condition.

The civil money penalties that CMS determined to impose to remedy Petitioner's immediate jeopardy level deficiencies are the maximum that is allowed by law. CMS contends that the maximum is reasonable here, for two reasons. First, the immediate jeopardy level deficiencies that were present at the April 22 and May 4 surveys were, in and of themselves, extremely serious. Second, Petitioner has a long history of having immediate jeopardy level deficiencies.

I find these assertions to be persuasive. As CMS asserts the deficiencies that Petitioner manifested at the April 22 and May 4 surveys were extremely serious. The picture painted by the evidence in this case is of a facility in disarray. Residents who clearly were a threat to themselves or to others were inexplicably allowed freedom to come and go from the facility. Residents were able to bring alcohol and large quantities of illegal drugs into the facility and they were able to consume them on the premises. Residents with violent histories menaced other residents and engaged in altercations with the staff. Petitioner's staff clearly was not adept at handling emergency procedures to the extent that they left a non-responsive resident unattended. Petitioner's several deficiencies created a very high likelihood that residents would suffer serious injuries, harm, impairment, or death.

As bad as this compliance picture is, however, it is made worse when the deficiencies of April 22 and May 4 are considered in the context of Petitioner's prior compliance history. Its compliance history is so poor, and its response to previously imposed sanctions so unimpressive, that imposition of a maximum penalty here, coupled with the other remedies that CMS determined to impose is the only recourse left to CMS. Petitioner's compliance record proves it to have a long and checkered history of immediate jeopardy level noncompliance. Repeated efforts to have it correct its deficiencies produced no change in its overall standards of performance as is evidenced by its compliance history. Petitioner was cited for immediate jeopardy level deficiencies in the four consecutive surveys conducted prior to the April 22 survey, covering a period of from July 2001 through March 2004. CMS Ex. 61, at 1 - 3. Civil money penalties of as much as $6,500 per day (or per instance) of immediate jeopardy had been imposed against Petitioner for its previous deficiencies and yet, Petitioner continued to manifest immediate jeopardy level deficiencies. Id., at 1.

Petitioner offered no evidence to support a reduction in the civil money penalty amount. It did not, for example, rebut the evidence offered by CMS as to its compliance history. Nor did it offer any evidence to show that its financial condition precluded it from paying the penalties that CMS determined to impose. Petitioner argues that the penalties for the April 22 - May 10, 2005 period should at least be reduced to $3,050 per day based on a recommendation - that CMS rejected - of the Illinois Department of Public Health. CMS is not, and I am not, bound by a State agency recommendation. More important, Petitioner did not offer any evidence to explain why this recommendation should be accepted.

b. The May 11 - May 14 period

CMS determined to impose civil money penalties of $150 per day against Petitioner for each day of the period running from May 11, 2005 through May 14, 2005 based on the continued presence of non-immediate jeopardy level deficiencies at Petitioner's facility during that period. I find these penalties to be reasonable.

Penalties for deficiencies that are not at the immediate jeopardy level may fall within a range of from $50 to $3,000 per day. 42 C.F.R. � 488.438(a)(1)(ii). As with immediate jeopardy level penalties, non-immediate jeopardy level penalties are based on evidence relating to the factors described at 42 C.F.R. �� 488.438(f)(1) - (4) and 488.404.

Civil money penalties clearly are justified for the May 11 - May 14 period based on the presence of continuing non-immediate jeopardy level deficiencies during this period. The penalties that CMS determined to impose - $150 per day - for each day of this period are minimal. Petitioner has not challenged the penalty amounts as being unreasonable. Therefore, I sustain them.

8. CMS is authorized to impose additional remedies against Petitioner including denial of payment for new admissions and termination of Petitioner's participation in Medicare.

In addition to civil money penalties CMS imposed remedies against Petitioner consisting of denial of payment for new admissions effective April 27, 2005 and termination of Petitioner's participation in Medicare effective May 15, 2005. I sustain these additional remedies because, as a matter of law, CMS was authorized to impose them.

a. Denial of payment for new admissions

The remedy of denial of payment for new admissions is authorized by regulation. 42 C.F.R. � 488.417. The regulation gives CMS authority to deny payment for new admissions to a facility whenever a facility is not complying with Medicare participation requirements. 42 C.F.R. � 488.417(a). The regulations preclude a facility from challenging CMS's discretionary determination to impose denial of payment for new admissions (although a facility may challenge the determinations of noncompliance on which the determination to impose denial of payment for new admissions is based). 42 C.F.R. � 488.408(g)(2).

CMS was authorized to impose denial of payment for new admissions against Petitioner effective April 27, 2005 because, as of that date, Petitioner was not complying substantially with participation requirements. Petitioner was deficient as of April 22, 2005 and its deficiencies continued thereafter. Finding 6.

b. Termination of participation

CMS may terminate a skilled nursing facility's participation in Medicare on any date when that facility is not complying with Medicare participation requirements. Act, section 1866(b)(2). A facility may not challenge CMS's determination to impose termination of participation as a remedy where there exists a basis for imposition of that remedy consisting of any failure by the facility to comply substantially with Medicare participation requirements. 42 C.F.R. � 488.408(g)(2).

Petitioner argues that CMS lacked authority to terminate Petitioner's participation because, as of May 15, 2005, the date of termination, Petitioner had abated the immediate jeopardy that had been found at the April 22 and May 4 surveys. Petitioner's premise is that CMS may terminate a skilled nursing facility's participation in Medicare only where there are continuing immediate jeopardy level deficiencies.

Petitioner misreads the law. The authority to terminate participation contained in section 1866(b)(2) of the Act derives from any failure - not from an immediate jeopardy level failure - by a facility to comply substantially with one or more Medicare participation requirements. Act, section 1866(b)(2); Beverly Health & Rehabilitation Services v. Thompson, 223 F.Supp.2d 73 (D.D.C. 2002). Although Petitioner may have abated its immediate jeopardy deficiencies before May 15 it had not eliminated them altogether by that date. Finding 6. Petitioner remained deficient as of May 15, 2005 and, for that reason, CMS had statutory authority to terminate Petitioner's Medicare participation. ⁽⁵⁾

Petitioner also seems to argue that the appointment of a temporary receiver of Petitioner's facility by the State of Illinois, effective May 10 2005, bars imposition of termination. Petitioner's pre-hearing brief at 3 - 4, 5, 32. Evidently, Petitioner's theory is that it should not be terminated because ultimate control of its management was out of its hands after May 10, 2005.

This theory is without support in the law. There is nothing in the Act or in regulations which suggests that appointment of temporary management of a facility deprives CMS of authority to impose remedies against the facility, including termination of participation. Petitioner has cited to nothing that would support its argument. Moreover, Petitioner is without standing to make it because it is precluded from challenging CMS's choice of termination as a remedy. 42 C.F.R. � 488.408(g)(2). Finally, the agreement that Petitioner executed with the State of Illinois, appointing a temporary receiver, explicitly provided that remedies would continue to accrue against Petitioner after appointment of the receiver. P. Ex. 7, at 8.

_____________________________

Steven T. Kessel

Administrative Law Judge

1. Petitioner's alleged failure to comply with 42 C.F.R. � 483.25(h)(1) was originally cited at the immediate jeopardy level but its scope and severity was subsequently reduced to less than immediate jeopardy. The presence of the non-immediate jeopardy level deficiency here is irrelevant because the other immediate jeopardy level findings made at the April 22 survey that I sustain in this decision are sufficient to support the remedies that I impose.

2. 42 C.F.R. �� 483.20(b)(1)(x) (disease diagnoses and health conditions), 483.20(b)(1)(xiii) (activity pursuit), and 483.20(b)(1)(xv) (special treatments and procedures) may also be read to encompass a need to research a resident's criminal history as part of the comprehensive assessment process, where a facility has reason to know that a resident's background includes criminal activity.

3. These residents are Residents #s 6, 8, 9, 10, 11, 14, and 15.

4. Petitioner asserts that its proposed duration reductions are based on recommendations made by the Illinois Department of Public Health and considerations of "fundamental fairness." Id. Any recommendations made by a State agency, including the Illinois Department of Public Health, are not binding on CMS or on me. Moreover, Petitioner offered no evidence to explain why these recommendations should be accepted and did not explain what it meant in saying that "fundamental fairness" demanded a reduction in the duration of its deficiencies.

5. Petitioner relies on ACT of Health, DAB CR1177 (2004) as support for its argument that CMS may terminate only where there is a continuing immediate jeopardy level deficiency. Petitioner's reliance on that decision is misplaced. The petitioner in Act of Health was a home health agency. Participation of a home health agency in Medicare i is governed by a different section of the Act, section 1891. That section establishes rules for termination of participation that are unique to home health agencies and which do not apply to skilled nursing facilities whose participation is governed by sections 1866 and 1819 of the Act.