Decision No. CR623 Department of Health and Human Services DEPARTMENTAL APPEALS BOARD Civil Remedies Division |
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IN THE CASE OF | |||||||
SUBJECT: vs. |
DATE: November 1, 1999 | ||||||
The Health Care Financing Administration.
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Docket No. C-98-339 | ||||||
DECISION | |||||||
I decide that the Health
Care Financing Administration (HCFA) is authorized to impose a civil money
penalty (CMP) against Petitioner, Woodstock Care Center, in the amount of
$3,050 per day for the period beginning on March 4, 1998, and continuing
through March 14, 1998. Additionally, I decide that HCFA is authorized to
impose a CMP against Petitioner in the amount of $50 per day for the period
beginning on March 15, 1998, and ending on March 16, 1998. The total CMP
authorized is $33,650.
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BACKGROUND | |||||||
Background The Social Security Act (Act) authorizes HCFA to impose against a long-term care facility that participates in the Medicare or Medicaid programs a CMP of up to $10,000 for each day that the facility is found not to be complying substantially with Medicare and Medicaid participation requirements. Act, sections 1819 and 1919. This case is brought pursuant to sections 1819, 1919, and 1866(b)(2) of the Act and implementing regulations at 42 C.F.R. Parts 483, 488, 489, and 498. Relying on these authorities, HCFA has determined to impose civil money penalties against Petitioner. Petitioner is a long-term
care facility located in Woodstock, Ohio. It participates in the Medicare
program and in the Ohio Medicaid program. Residents of Petitioner' facility
are individuals who are eligible to receive nursing care benefits from
Medicare or who are eligible to receive State Medicaid benefits. On February
17, 1998, surveyors from the Ohio Department of Health (Ohio State survey
agency) went to Petitioner's facility to investigate a complaint filed
by one of Petitioner's employees. The complaint survey evolved into standard
and extended surveys after the surveyors concluded that Petitioner manifested
problems in two areas: resident-to-resident altercations and elopement.
The survey process ended on March 4, 1998.
The surveyors found
Petitioner out of substantial compliance with 18 participation requirements,
and determined that immediate jeopardy to resident health and safety existed
with regard to F Tag 324, 42 C.F.R. � 483.25(h)(2), Quality of Care, which
requires a skilled nursing facility to ensure that each resident receives
adequate supervision and assistance devices to prevent accidents. The
surveyors conducted post-survey monitoring at Petitioner's facility on
March 8, 11, and 15. The surveyors found that the immediate jeopardy was
eliminated as of March 15, 1998, and, following a revisit on April 29,
1998, the surveyors found Petitioner to be in compliance with participation
requirements as of March 17, 1998.
Based on the Ohio
State survey agency's findings, HCFA determined to impose a CMP against
Petitioner of $3,050 per day for the period of immediate jeopardy (March
4 - 14, 1998) and $50 per day until Petitioner achieved compliance with
participation requirements (March 15 - 16, 1998), constituting a total
CMP of $33,650.
HCFA's imposition
of the $3,050 CMP for the period March 4 - 14, 1998, is premised on its
determination that, during this period, Petitioner's noncompliance was
so egregious that residents of Petitioner's facility were in a state of
immediate jeopardy. Under applicable regulations, "immediate jeopardy"
means a situation in which a facility's noncompliance with one or more
participation requirements has caused, or is likely to cause, serious
injury, harm, impairment, or death to a resident. 42 C.F.R. � 488.301.
HCFA is authorized to impose a CMP in an amount ranging from $3,050 to
$10,000 per day for each day that a facility's noncompliance poses immediate
jeopardy to its residents. 42 C.F.R. � 488.438(a)(1). HCFA based its imposition
of the $50 per day CMP for the March 15 - 16, 1998 period on its determination
that, during this period, Petitioner remained out of compliance with participation
requirements but not at the immediate jeopardy level. HCFA is authorized
to impose a CMP in an amount ranging from $50 to $3,000 per day for each
day that a facility's noncompliance is more than minimal but not at the
immediate jeopardy level. 42 C.F.R. � 488.438(a)(2).
Petitioner requested a hearing and the case was assigned to me for a hearing and a decision. I conducted a hearing in Columbus, Ohio, on June 8 - 9, 1999. At the hearing, I received into evidence exhibits from both HCFA and Petitioner, consisting of HCFA exhibits (HCFA Ex.) 1 - 23 and Petitioner exhibits (P. Ex.) 1 - 16. Hearing Transcript (Tr.) at 25, 26, 330, 337. The following witnesses, all of whom are employees of the Ohio State survey agency, testified on behalf of HCFA:
The following witnesses testified on behalf of Petitioner:
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ISSUES, FINDINGS OF FACT AND CONCLUSIONS OF LAW | |||||||
A. Issues The issues in this case are as follows:
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 discuss each of my Findings in detail.
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. i. Assaults committed by Resident 17 (R. 17) Petitioner's staff knew that R. 17 was a highly aggressive - indeed dangerous - person who was prone to making unprovoked attacks on other residents of Petitioner's facility. Notwithstanding this, Petitioner did virtually nothing to curb R. 17's behavior or to protect other residents from him. As a consequence, R. 17 assaulted other residents on numerous occasions. The injuries that other residents sustained from these assaults were so severe as to require hospitalization on more than one occasion.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. Petitioner knew when R. 17 was first admitted to Petitioner's facility that he was verbally and physically aggressive and posed a risk to other residents. Tr. at 69; P. Ex. 8 at 14, 46. Petitioner knew that R. 17 also had a history of refusing to take the medicine which might have helped control his aggression. Tr. at 69. Just days after his admission, R. 17 attacked three residents (R. 24, 6, and 29). P. Ex. 8 at 15. Petitioner's records document continuing acts and other aggression by R. 17 until he was discharged to a psychiatric facility on February 19, 1998. Id. at 14 - 36, 46 - 50. In December 1997, R. 17 manifested 107 episodes of verbal aggression, 25 episodes of physical aggression, and was combative with care nine times. Interventions by Petitioner's staff did not deter R. 17 from this conduct. Id. at 37. In January 1998, R. 17 had 111 episodes of verbal or physical aggression, was combative with care 28 times, and refused care and medications three times. Once again, interventions by Petitioner's staff did not succeed in modifyingthe 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. ii. Assaults committed by Resident 11 (R. 11) 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. i. Elopements
by Resident 11 (R. 11)
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.
ii. Elopement
by Resident 3 (R. 3)
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. iii.
Elopement by Resident 5 (R. 5)
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.
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.
3. Petitioner's affirmative defenses are not persuasive.
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.
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.
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 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.
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JUDGE | |||||||
Steven T. Kessel
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