1999.11.01 CR623 Woodstock Care Center vs. HCFA

1. On what, if any, dates, including and after March 4, 1998, was Petitioner not complying substantially with federal participation requirements?

2. What was the level of Petitioner's noncompliance on dates including and after March 4, 1998, assuming that it was not complying substantially on any of those dates?

3. What CMPs would be reasonable to remedy any failure by Petitioner to comply substantially with participation requirements?

The standard of proof that is employed at a hearing concerning HCFA's determination that a skilled nursing facility is not in substantial compliance with participation requirements is preponderance of the evidence. HCFA has the burden of coming forward with sufficient evidence to prove a prima facie case that the skilled nursing facility is not complying with one or more participation requirements. The skilled nursing facility has the ultimate burden of rebutting, by a preponderance of the evidence, any prima facie case of noncompliance established by HCFA. Hillman Rehabilitation Center, DAB No. 1611 (1997); aff'd Hillman Rehabilitation Center v. United States, No. 98-3789(GEB) (D.N.J. May 13, 1999).

I make findings of fact and conclusions of law (Findings) to support my decision in this case. I discuss each of my Findings in detail.

1. Between March 4, 1998 and March 14, 1998, Petitioner failed to take adequate measures to ensure that residents did not assault other residents and to ensure that residents were protected from assaultive behaviors of other residents. Furthermore, Petitioner failed to take adequate measures to deter residents from eloping from its facility.

HCFA bases its case against Petitioner on allegations that, immediately prior to, during and after the survey that ended on March 4, 1998, several residents of Petitioner's facility were involved either in resident-to-resident abuse situations or eloped from Petitioner's facility. HCFA alleges further that Petitioner knew that some of its residents were assaultive individuals or elopement risks and did little or nothing about these problems.

HCFA's allegations are supported by the evidence in this case. There is strong and essentially unrebutted evidence that Petitioner allowed several of its residents to perpetrate assaults against other residents. Petitioner did little or nothing to prevent assaults and what minimal measures it took were ineffective. Moreover, the evidence establishes that Petitioner failed to supervise its residents in order to ensure against their eloping from Petitioner's facility. The consequence was that several of Petitioner's residents eloped. At least one of these residents eloped on multiple occasions.

Below, I discuss examples where the weight of the evidence supports HCFA's allegations. I do not discuss every example relied upon by HCFA. The relevant inquiry here is not whether each individual example cited by HCFA is sustained. Rather, the relevant inquiry is whether sufficient examples cited by HCFA establish Petitioner's inability to substantially comply with the regulation. The examples I discuss below, by resident, provide the evidentiary underpinning for HCFA's determination that Petitioner was substantially unable to comply with the participation requirement at 42 C.F.R. � 483.25(h) to the extent that Petitioner's residents were placed in immediate jeopardy.

Petitioner knew that some of its residents were assaultive individuals who posed a threat to the physical safety and well-being of other residents. Despite having this knowledge, Petitioner did little or nothing to prevent assaults from occurring or to protect residents from being assaulted. The consequence was that some of Petitioner's residents engaged in repeated unprovoked assaults of other residents. These assaults caused these residents to suffer multiple injuries, some of which were so severe as to require hospitalization.

At the time of the survey, R. 17 was a 70-year-old individual whose admitting diagnoses included schizophrenia, dementia, and Parkinson's disease. HCFA Ex. 22 at 24. R. 17 was assessed on the date of admission, December 2, 1997, as being at an increased risk of aggressive behavior toward other residents related to territorial issues and of having a history of verbal and physical aggression, delusions, combative behavior with his activities of daily living, and refusal of care and medications. Tr. at 70; HCFA Ex. 22 at 24, 26; P. Ex. 8 at 46. The surveyors documented (utilizing Petitioner's incident and accident reports, other facility records, and their own observation) physical attacks perpetrated by R. 17 against other residents. Several of these attacks resulted in injury to these residents. Residents who were injured by R. 17's assaults included Residents 24, 6, 29, and 22.

R. 24 was an 82-year-old male who suffered from dementia and depression. HCFA Ex. 22 at 32. R. 17 attacked this resident on four separate occasions. The first attack occurred two days after R. 17's admission, causing R. 24 to suffer a hematoma. Tr. at 67 - 68. The second attack took place on January 1, 1998, when R. 17 knocked R. 24 down, causing him to hit his head. HCFA Ex. 2 at 50. The third attack took place on January 19, 1998, when R. 17 shoved R. 24, causing R. 24 to lose his balance and fall, hitting his head on the floor. R. 24 suffered another hematoma on this occasion. Tr. at 67 - 68; HCFA Ex. 2 at 50 - 51. The fourth attack occurred on February 19, 1998, during the survey. In this attack, R. 17 hit R. 24 over the head with a chair with such force that the chair broke. The attack caused R. 24 to experience extensive bleeding. The blood loss and associated injuries were so severe that R. 24 needed to be treated at a hospital. Tr. at 61 - 62; HCFA Ex. 2 at 49 - 50; HCFA Ex. 18 at 16. Initially, Petitioner tried to keep the injury that was sustained by R. 24 on February 19, 1998, hidden from the surveyors. Tr. at 62. However, the surveyors noticed R. 24's injuries, observing multiple sutures and bruises on his back, arms, and various parts of his head and face. Tr. at 62; HCFA Ex. 18 at 16. The surveyors' record review showed that R. 24 received 35 sutures to treat the injury that he sustained on February 19, 1998. Tr. at 62.

R. 17 attacked a number of other residents, three of whom suffered injuries. On December 5, 1997, R. 17 struck R. 6 as R. 6 was ambulating past R. 17's room, leaving R. 6's arm, face, and neck red, and R. 6's neck scratched. HCFA Ex. 2 at 51. Also on December 5, 1997, R. 17 restrained R. 29 around the neck with his arm and hit R. 29 in the nose and face with his fists. R. 29 sustained bruises to the face, lacerations above the right eyebrow and the back of the head, and a bloody nose. Id. On February 7, 1998, R. 17 hit R. 22 over the head with a chair. The injuries that R. 22 sustained from this attack were so severe that the resident was sent to a hospital for tests and for treatment of a bump on his forehead and a round, draining wound at the back of his head. HCFA Ex. 2 at 51 - 52; HCFA Ex. 22 at 31.

the resident's behavior. Id. at 39. R. 17 also had episodes of hallucination and suicidal ideation, including statements about wanting to kill himself or others. Tr. at 84; P. Ex. 8 at 27, 29, 30, 33, 35.

R. 17 was not referred for a psychological or psychiatric evaluation until February 19, 1998, his last day as a resident at Petitioner's facility. P. Ex. 8 at 48; Tr. at 85. Petitioner's staff received no training to deal with the type of extreme aggressive behaviors displayed by R. 17 and other residents (discussed below). Tr. at 78; HCFA Ex. 18 at 10 - 11. In fact, Petitioner's staff feared R. 17, tried to leave him alone to avoid his becoming agitated, and did not know how to handle him during his periods of agitation. Tr. at 83; HCFA Ex. 18 at 10 - 11. Moreover, R. 17's behavior management plan was not specific to his needs and behavior and did not address what staff should do to protect other residents and themselves when his agitation and aggressiveness escalated. Tr. at 77 - 78. R. 17's care plan was also inadequate. The interventions and approaches listed were clearly inadequate given R. 17's conduct and attacks, yet Petitioner added no new approaches. Tr. at 71 - 72.

As was the case with R. 17, Petitioner's staff knew that R. 11 was an individual who posed a threat for assaultive behavior. Yet, Petitioner's staff failed to curb this behavior and failed to protect other residents from R. 11. The consequences were similar to the consequences caused by the staff's failure to monitor adequately or to protect other residents from the behavior of R. 17. R. 11 assaulted other residents on several occasions, causing injuries to these residents.

At the time of the survey, R. 11 was a 61-year-old individual, admitted to Petitioner's facility on September 29, 1997, with diagnoses including heart disease, organic brain syndrome, ethanol alcohol dependency and seizures. HCFA Ex. 2 at 44, HCFA Ex. 22 at 17. The resident had a history which predated his admission to Petitioner's facility of verbal and physical assaultive behavior. R. 11's initial behavior management plan referred to targeted maladaptive areas of verbal and physical aggression towards staff and peers and elopement. HCFA Ex. 21 at 3; HCFA Ex. 22 at 17.

Petitioner assigned R. 1, a 73-year-old individual with organic brain disorder, to be R. 11's roommate. HCFA Ex. 22 at 1; Tr. at 223. R. 11 attacked R. 1 three times in December, 1997. HCFA Ex. 2 at 52 - 53; Tr. at 223 - 224. The first assault occurred on December 18, 1997. This attack required R. 1 to undergo hospital treatment for a deep laceration requiring five staples to close. Tr. at 223 - 224; P. Ex. 3 at 5. Then, on December 26, 1997, R. 11 struck R. 1, causing R. 1 to sustain a reddened area on his face. HCFA Ex. 2 at 53; HCFA Ex. 18 at 21, 22; P. Ex. 7 at 24; Tr. at 224. Less than an hour later, R. 11 pulled out two of the staples on R. 1's head which had been put in previously to close the wound that R. 11 had inflicted on December 18, 1997. R. 1 ran for help to another room where a nurse and a certified nursing assistant (CNA) were working, yelling "Call the police. Call the police. He's going to kill me." Id.

R. 1 was not the only resident injured by R. 11. On December 13, 1997, R. 35 sustained cuts and bruises to his nose, cheekbone and eye when R. 11 struck him with a cane. Tr. at 224 - 225; HCFA Ex. 18 at 22. On January 10, 1998, R. 11 struck R. 37 and knocked him out of his chair. HCFA Ex. 2 at 53; Tr. at 225. During the post-survey monitoring, R. 11 attacked another resident. Tr. at 239; P. Ex. 7 at 26. After this incident, R. 11 was transferred to another facility because of his violent behavior. P. Ex. 7 at 27.

Petitioner knew at the time of R. 11's admission that R. 11 had a history of aggressive behavior. P. Ex. 7 at 23. R. 11's behavior management plan references the need to protect other residents from R. 11. HCFA Ex. 21 at 3; Tr. at 225. But, Petitioner failed to intervene effectively to deal with R. 11's aggressive behavior, notwithstanding Petitioner's knowledge of the resident's history and notwithstanding further the repeated attacks on other residents perpetrated by R. 11 during the time that R. 11 resided at Petitioner's facility. While the facility tried psychoactive drugs to control R. 11's behavior, such intervention was ineffective and no new interventions (other than an apparent change in the behavior plan on January 30, 1998) were attempted. Tr. at 226 - 227; HCFA Ex. 2 at 44. Moreover, R. 11's plan for dealing with aggression toward peers is identical to R. 17's plan for the same behavior rather than being tailored to R. 11's needs. Tr. at 185. Further, during R. 11's residence at Petitioner's facility, R. 11 did not receive any psychiatric treatment or evaluation. Tr. at 241; HCFA Ex. 2 at 44.

Not only were Petitioner's interventions in the case of R. 11 ineffective, but there is no evidence that Petitioner made any efforts to protect other residents from R. 11's assaultive behavior. Residents were left unprotected and the consequence was that R. 11 was able to attack them with impunity.

b. Petitioner knew that some of its residents were at risk for eloping from its facility yet did little or nothing to prevent residents from eloping.

The preponderance of the evidence establishes that several of Petitioner's residents were prone to eloping from Petitioner's facility. Petitioner knew that these residents were elopement risks yet engaged in no effective interventions to prevent their elopements. As a consequence, several of Petitioner's residents eloped. Some of them eloped from Petitioner's facility on multiple occasions. Those residents who eloped were demented individuals who were at risk for serious injury or death as a consequence of their unsupervised wandering away from Petitioner's facility.

R. 11 eloped from Petitioner's facility four times in January 1998. His elopements always took place at night. On one date, R. 11 eloped three times in one night. HCFA Ex. 2 at 54 - 55. The first night he eloped, January 3, 1998, R. 11 was taking antibiotics for a lung infection diagnosed earlier that same day as a possible pneumonia. Tr. at 217 - 218; P. Ex. 7 at 5. R. 11 was away from the facility for approximately an hour and 25 minutes and was found two miles from the facility in a ditch beside a well-traveled road. HCFA Ex. 2 at 54 - 55; Tr. at 215; P. Ex. 7 at 5. On January 21, 1998, R. 11 eloped three times between 1:00 a.m. and 4:45 a.m. Facility records state that it was "very cold" and there was snow on the ground. Tr. at 216; HCFA Ex. 2 at 55. After the third elopement on January 21, 1998, R. 11 was not found for approximately an hour and 15 minutes, walking on the side of the road wearing no coat or shoes. HCFA Ex. 2 at 55.

During three of R. 11's elopements, the resident climbed over a fence which had no alarm system. P. Ex. 7 at 12, 23; Tr. at 215, 219. An alarm system was not installed until February 17 or 19, 1998. Tr. at 102; P. Ex. 7 at 2. The alarm system was not working when the surveyors tested it on March 4, 8, and 11, 1998. Tr. at 107 - 108, 219 - 220. It was working on March 15, 1998, when the surveyors recommended lifting the immediate jeopardy citation.

Petitioner knew, prior to R. 11's elopements, that R. 11 was a high risk for elopement. Tr. at 217; HCFA Ex. 22 at 19. Furthermore, the evidence shows that the resident's behavior put Petitioner's staff on notice that the resident was likely to elope on specific occasions. For example, notes generated by Petitioner's nursing staff reveal that, 10 minutes before eloping on January 3, 1998, R. 11 manifested increasingly agitated behavior. Moreover, he was asking staff why he couldn't leave the facility. P. Ex. 7 at 5.

Petitioner did not have an effective plan for managing R. 11's elopement attempts. Petitioner's plan was limited to directing its staff to take the resident on walks outside (difficult in winter) or redirection (which did not work). Tr. at 222. Furthermore, although Petitioner's staff was warned to be cautious if R. 11 was near an exit door, R. 11 still managed to escape through the same exit door each time. P. Ex. 7 at 5, 12; HCFA Ex. 2 at 55.

R. 3 was an 81-year-old individual who was admitted to Petitioner's facility at 2:00 p.m. on January 4, 1998, with diagnoses of Alzheimer's disease and advancing dementia. Tr. at 89; HCFA Ex. 22 at 5; P. Ex. 4 at 7. Upon R. 3's admission, Ms. DeLay, Petitioner's Director of Nursing, completed a "High Risk Profile" and "Community Survival Assessment" for the resident. P. Ex. 4 at 1, 2. The resident was identified as being at high risk for elopement as a new admission with a history of wandering, following visitors out of exits, and hovering at outside doors. Id. at 1. It was further noted that the resident was incapable of being unsupervised in the community. Id. at 2.

Notwithstanding this assessment, the resident was discovered to be missing at 2:30 p.m. on the day of her admission. HCFA Ex. 2 at 57; P. Ex. 4 at 7. Ms. DeLay testified that R. 3 went out the front door wearing her coat and hat, that staff saw R. 3 leave the facility, an alarm went off, and staff responded. Tr. at 417, 436 - 437. Nursing notes, however, state nothing about alarms going off or staff seeing R. 3 leave. Instead, they state that R. 3 was missing from the facility and a "room to room" search was conducted and it was discovered that R. 3 was not in the facility. P. Ex. 4 at 7. At 2:40 p.m. on January 4, 1998, R. 3 was found outside the facility at a stop sign at the intersection of a frequently traveled rural road. HCFA Ex. 2 at 57; P. Ex. 4 at 7. Using a walker, R. 3 had walked past a large unfenced pond and rubble from a burned building. Tr. at 93; HCFA Ex. 2 at 57.

R. 5 was a 74-year-old individual admitted to Petitioner's facility on January 2, 1998, with a diagnosis of dementia secondary to Alzheimer's disease. HCFA Ex. 22 at 9. R. 5 was at high risk for accidents and falls due to poor balance and used a Merry Walker. Id. at 9, 11. R. 5's "High Risk Profile" on admission noted that he had a history of wandering from home or other facilities and his "Community Survival Assessment" noted that he was not capable of being unsupervised in the community. P. Ex. 5 at 1, 7. R. 5's family stated that R. 5 had a history of attempting to escape through windows and doors. HCFA Ex. 2 at 56.

Despite knowing that R. 5 was a high risk for elopement, Petitioner placed R. 5 in a room at the front of the facility with long, unlocked windows leading out to an unfenced area. HCFA Ex. 2 at 56; Tr. at 228. On February 20, 1998, R. 5 eloped through a window. P. Ex. 1 at 40; HCFA Ex. 2 at 56. R. 5 was discovered missing during rounds, at 12:57 a.m. HCFA Ex. 2 at 56; P. Ex. 5 at 5. R. 5 was found off the facility's premises at approximately 1:15 a.m. Id. R. 5 sustained scratches to his left hand. Id.

2. Beginning with March 4, 1998, and continuing through March 14, 1998, Petitioner failed to comply with the requirements of 42 C.F.R. � 483.25(h)(2) to the extent that residents of Petitioner's facility were in immediate jeopardy.

HCFA alleges that, during the period which began on March 4, 1998, and which continued through March 14, 1998, Petitioner failed to comply with the requirements of 42 C.F.R. � 483.25(h)(2) to the extent that residents of Petitioner's facility were in immediate jeopardy. This regulation provides that a long term care facility must ensure that:

Each resident receives adequate supervision and assistance devices to prevent accidents.

The evidence in this case amply establishes that Petitioner provided little or no supervision of its residents to prevent accidents. The picture that the evidence offered by HCFA establishes is of a facility whose residents were not closely watched. The evidence shows that, as a consequence of inadequate supervision by Petitioner's staff, immediately prior to and during the survey that ended on March 4, 1998, several residents of Petitioner's facility were subjected to repeated unprovoked assaults by other residents and that other residents of Petitioner's facility repeatedly eloped from the premises or attempted to elope from the premises of Petitioner's facility.

That Petitioner failed to take action to protect its residents in the face of overwhelming evidence that they were at risk proves that Petitioner was failing to comply with its obligation to provide adequate supervision to its residents in order to prevent them from experiencing accidents. HCFA proved that Petitioner knew that some of its residents were: potentially dangerous to others; that other residents were at risk for being assaulted; and that yet other residents were candidates for elopement. Yet, Petitioner did little or nothing to prevent assaults and elopements. This is made evident by the facts that: two of Petitioner's residents, R. 17 and R. 11, perpetrated multiple assaults on other residents; some residents, R. 24 and R. 1, were assaulted more than once by the same individual; and one resident, R. 11, eloped on more than one occasion.

The term "immediate jeopardy" is defined at 42 C.F.R. � 488.301 to mean a situation in which a provider's noncompliance with one or more participation requirements has caused or is likely to cause serious injury, harm, impairment, or death to a resident. I have no doubt that residents of Petitioner's facility were in immediate jeopardy. As a consequence of Petitioner's failure to supervise its residents, residents were assaulted and beaten so severely that they needed hospital treatment. And, as a consequence of Petitioner's failure to supervise its residents, frail, demented individuals were allowed to escape the premises of Petitioner's facility to wander unsupervised along trafficked roads.

Where a deficiency is established and HCFA determines that the deficiency is at the immediate jeopardy level, the burden falls on Petitioner to prove that the determination of immediate jeopardy is clearly erroneous. Here, Petitioner did not prove that HCFA's determination of an immediate jeopardy level deficiency was clearly erroneous. In fact, the preponderance of the evidence in this case plainly shows that Petitioner's residents were in immediate jeopardy as a consequence of Petitioner's failure to provide adequate supervision to its residents.

Petitioner's residents were either seriously injured or exposed to the potential for serious injury by Petitioner's failure to exercise adequate supervision. The evidence shows that two of Petitioner's residents, R. 24 and R. 1, were seriously injured by assaults from other residents. Those residents who eloped from Petitioner's facility were demented individuals who were incapable of protecting themselves in an exposed environment. One of these individuals, R. 11, was found in a roadside ditch. Moreover, Petitioner appears not to have taken steps to try to ameliorate the situation. Staff were not trained in the care of physically aggressive residents, nor did these physically aggressive individuals receive timely psychological counseling or other appropriate interventions.

Where HCFA establishes the presence of a deficiency, Petitioner has the burden of proving when it corrected that deficiency. I am satisfied that the evidence shows that Petitioner did not remove the immediate jeopardy to its residents until March 14, 1998. Petitioner has not contested evidence which shows that it failed to have a properly working alarm system for its border fence prior to March 14, 1998, even though it was aware that it was possible for a resident to escape over the fence. Until the alarm system worked effectively, residents of Petitioner's facility remained at risk to elope from the premises. Moreover, Petitioner has not contested evidence which shows that assaults on residents occurred between March 4 and March 14, 1998. See HCFA Ex. 11. Petitioner has brought forward no evidence to show that it attempted new interventions to prevent resident-to-resident attacks following the assaults, nor did Petitioner introduce evidence that, once it became aware of the assaults, it trained its employees in how to deal with physically aggressive individuals.

Indeed, based on the evidence in this case, HCFA might have asserted credibly that immediate jeopardy to Petitioner's residents existed after March 14, 1998. I make no finding that such was the case, inasmuch as HCFA did not make that allegation. However, the record does not contain persuasive evidence that Petitioner actually corrected fully, as of March 14, 1998, the immediate jeopardy level problems that persisted at its facility. HCFA apparently lifted the finding of an immediate jeopardy level deficiency based in part on Petitioner's decision to transfer residents such as R. 17 and R. 11 to another facility. HCFA's reasoning, evidently, is that Petitioner addressed the problem of assaults by removing the cause of the assaults consisting of the residents who were responsible for most of the assaults. But, what HCFA did not consider was whether the conditions at the facility which allowed assaultive residents to attack other residents had been ameliorated. I do not see any persuasive evidence in the record of this case that, as of March 14, 1998 or thereafter, Petitioner actually had implemented enhanced supervision methods and interventions designed to prevent assaults from occurring in the future.

Petitioner offers several affirmative defenses. Petitioner's first affirmative defense is that the incidents of assault and elopement identified by the Ohio State survey agency surveyors were not "accidents" within the meaning of 42 C.F.R. � 483.25(h)(2). Petitioner contends that the assaults and elopements were volitional acts and, therefore, cannot be construed to comprise "accidents." Alternatively, it asserts that the assaults and the elopements were the foreseeable consequence of care that the residents were receiving. Specifically, Petitioner asserts that the residents engaged in assaultive acts or attempted to elope as a consequence of the medication regime they were receiving. Therefore, according to Petitioner, the requirements of the regulation are not applicable to it.

I find this argument to be unpersuasive. The assaults may arguably have been deliberate acts when viewed from the standpoint of the perpetrators. But, from the standpoint of the victims of the assaults, the injuries they sustained were "accidental" in the sense that they were unanticipated. And, even assuming the elopements to be volitional acts, the residents who eloped were susceptible to being injured from accidental causes while they were off-premises.

Moreover, it is not at all clear that the assaults and elopements which are at issue here are volitional acts in the sense that they involve premeditation. The residents who committed the assaults and the residents who eloped were demented individuals who suffered from, among other things, Alzheimer's disease, organic brain syndrome, and other dementia. Indeed, dementia is one of the principal reasons that these residents were residing at Petitioner's facility. Petitioner did not offer persuasive evidence to show that any of these residents had the mental capacity to plan and commit volitional acts such as assaults and elopements.

Petitioner did not prove that any of the assaults or elopements were a by-product of medication that residents were receiving. But, assuming that, in fact, medication regimes did cause residents to engage in assaultive behavior or to elope, that is strong support for the conclusion that these acts were unpremeditated and beyond the ability of the residents to control. Moreover, if changes in medication regimes could cause such behaviors, Petitioner should have been even more diligent in its supervision of these residents to ensure that they not harm others or themselves.

Furthermore, whether the assaults and elopements were intentional or not is irrelevant to my determination that Petitioner failed to supervise its residents adequately to prevent them from sustaining accidents. The ultimate issue here is not whether residents were assaulted or eloped, or whether these residents were injured as a consequence of assaults or elopements, but whether Petitioner failed adequately to supervise residents to prevent their injury from accidental causes. Residents who are not supervised in their daily activities are susceptible to injury, not just from assaults or from the consequences of their elopements, but from other causes as well. The evidence which shows that repeated unprovoked assaults were tolerated by Petitioner, coupled with the evidence which shows that residents were able to escape Petitioner's facility on multiple occasions, is ample evidence of a lack of supervision of these residents.

Petitioner's second affirmative defense is that the assaults and elopements were the product of individuals who were exercising their free will. Petitioner contends that it could not have prevented the perpetrators of these acts from engaging in their conduct short of physically restraining them. But, according to Petitioner, it had no authority to do so. Petitioner goes so far as to assert that these residents had a "right" to engage in the conduct that they engaged in, especially as regards their elopement from the facility. Therefore, according to Petitioner, it did not have the capability or the responsibility to prevent either the assaults or the elopements that occurred.

Petitioner may be correct in asserting that there are practical and legal limitations on the extent to which a facility may physically restrain its residents from engaging in acts that are harmful to themselves or to others. But, that assertion begs the question of whether Petitioner was discharging its responsibilities appropriately. There are reasonable steps which Petitioner might have taken to protect its residents short of the Draconian measures that Petitioner asserts it lacked the authority to take.

The record of this case establishes that one resident, R. 17, perpetrated multiple assaults. Several of these were directed against a particular resident, R. 24, a demented individual, aged 82, who was essentially helpless to ward off the assaults. Even assuming that Petitioner lacked the authority to physically restrain R. 17 from assaulting other individuals, it could have and should have assured that R. 17 was separated from and posed no threat to R. 24. Moreover, Petitioner knew from R. 17's history that he was an assaultive and dangerous individual. Indeed, the staff of Petitioner's facility were afraid for their own safety from a possible assault by R. 17. Yet, Petitioner tolerated R. 17's presence in its facility for an extended period without taking affirmative steps either to deter the resident from committing harmful acts or to protect others from those harmful acts.

Similarly, the record establishes that certain residents made multiple attempts at elopement. Petitioner knew that these residents presented an elopement risk, yet did essentially nothing to prevent them from eloping. Even assuming that Petitioner lacked the authority to restrain physically such residents, Petitioner could have identified the times they were most likely to escape (as examples, at night, when they became agitated, or when their medication was changed) and provided them with close supervision at those times. For example, R. 11 made his first elopement on January 3, 1998. As a consequence, Petitioner knew that this resident had more than a theoretical proclivity to elope. Yet, on the evening of January 21, 1998, during a period of less than four hours, R. 11 eloped on three separate occasions.

As a third affirmative defense, Petitioner asserts that HCFA is attempting to hold it to a standard of care which exceeds that which prevails under common law. Petitioner argues that, at common law, it owes only a duty to provide "reasonable" supervision to its residents. Petitioner contends that HCFA is attempting to impose on it a requirement that it supervise its residents far more closely than would be considered to be reasonable under common law.

The standard which is at issue here is not a common law standard. Petitioner's obligation to supervise its residents is defined by 42 C.F.R. � 483.25(h)(2). The regulation requires that Petitioner provide "adequate" supervision of its residents to prevent accidents. But, although the common law standard does not apply to Petitioner, an element of reasonableness is inherent in the regulation's requirements. The regulation does not mandate that a facility be accident-free. Nor does it impose a strict liability standard on a facility for accidents that may occur to residents.

There is nothing in this case, however, to suggest that Petitioner gave "adequate" supervision to its residents. Rather, the record shows that Petitioner failed to react to repeated episodes which gave it notice that its residents were at serious risk for harm. Petitioner essentially was passive in the face of numerous unprovoked assaults and multiple elopements from its facility.

I might reach a different conclusion in this case if the episodes of assault and elopement that the State survey agency surveyors documented were isolated incidents to which Petitioner had reacted promptly. If, for example, Petitioner had reacted to the first episode of assaultive behavior by R. 17 by thereafter closely supervising R. 17 and by assuring that R. 17 and R. 24 were kept separate from each other, I might have been convinced that Petitioner's supervision of R. 17 was "adequate." But, in fact, that is not what occurred. To the contrary, Petitioner essentially ignored the fact that R. 17 was an assaultive individual - particularly towards R. 24 - with entirely predictable consequences.

4. A $3,050 per day CMP imposed by HCFA for the period beginning on
March 4, 1998, and ending on March 14, 1998, is reasonable.

There is no issue here as to whether a CMP of $3,050 per day for the period beginning on March 4, 1998, and running through March 14, 1998, is reasonable, given the presence of an immediate jeopardy level deficiency. That is because the penalty that

HCFA determined to impose is the minimum penalty for deficiencies that are at the immediate jeopardy level.

5. Between March 15, 1998, and March 16, 1998, Petitioner failed to comply substantially with participation requirements at a level that is less than immediate jeopardy.

The surveyors who conducted the March, 1998 survey of Petitioner's facility found that, in addition to not complying with the requirements of 42 C.F.R. � 483.25(h)(2), Petitioner was failing to comply substantially with other participation requirements. These additional deficiencies were found to be at a level of less than immediate jeopardy to residents of Petitioner, meaning that the deficiencies posed a potential for more than minimal harm to residents. HCFA determined that the deficiencies persisted for a two-day period after March 14, 1998, and that they were corrected as of March 17, 1998. Petitioner has not challenged these additional deficiency findings and, therefore, I conclude that they are substantiated.

6. A $50 per day CMP imposed by HCFA for the period beginning on
March 15, 1998, and ending on March 16, 1998, is reasonable.

There is no issue in this case as to whether a CMP of $50 per day for the period which begins on March 15, 1998, and runs through March 16, 1998, is reasonable. Petitioner has not contested the presence at its facility of deficiencies at less than the immediate jeopardy level during this period. A CMP of $50 per day for deficiencies that are substantial, but which are not at the immediate jeopardy level, is the minimum for such deficiencies.