Department of Health and Human Services DEPARTMENTAL APPEALS BOARD Civil Remedies Division |
|
IN THE CASE OF | |
Sonogee Rehabilitation and Living Center, |
DATE: March 22, 2001 |
- v - |
|
Health Care Financing Administration
|
Docket No.C-99-726 Decision No. CR754 |
DECISION | |
I decide that the Health Care Financing Administration
(HCFA) is authorized to impose civil money penalties against Petitioner,
Sonogee Rehabilitation and Living Center. The civil money penalties that
I sustain include penalties in the amount of $3,050 per day for each day
of a period that begins on May 15, 1999 and which runs through May 19,
1999. The civil money penalties also include penalties in the amount of
$150 per day for each day of a period that begins on May 20, 1999 and
which runs through July 8, 1999. I. 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 civil money penalty of up to $10,000 for each day
that the facility is found not to be complying substantially with Medicare
and Medicaid participation requirements. Social Security Act (Act), sections
1819 and 1919. This case is brought pursuant to sections 1819 and 1919
of the Act and implementing regulations at 42 C.F.R. Parts 483, 488, 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 Bar
Harbor, Maine. It participates in the Medicare program and in the Maine
Medicaid program. Residents of Petitioner's facility are individuals who
are eligible to receive nursing care benefits from Medicare or who are
eligible to receive State Medicaid benefits. From May 17 through May 20, 1999, surveyors from the Maine
Department of Human Services (State survey agency) conducted an annual
recertification survey (May 1999 survey) of Petitioner's facility. The
purpose of this survey was to ascertain the state of Petitioner's compliance
with federal Medicare and Medicaid participation requirements. The surveyors
found Petitioner not to be complying substantially with 11 participation
requirements and determined that there was immediate jeopardy to resident
health and safety with regard to four of these alleged episodes of noncompliance.
Subsequently, and after three informal dispute resolution sessions, the
State survey agency rescinded three of the four immediate jeopardy level
findings. One alleged immediate jeopardy level deficiency remained
as did several alleged non-immediate jeopardy level deficiencies. The
alleged immediate jeopardy level deficiency which remained was cited at
Tag 324 in the report of the May 1999 survey. Under this deficiency tag
the surveyors found that Petitioner was not complying substantially with
the Medicare participation requirement that is stated at 42 C.F.R. � 483.25(h)(2).
The State survey agency determined that the alleged immediate jeopardy
level deficiency was corrected on May 19, 1999. The State survey agency
found Petitioner to have attained compliance with the remaining alleged
non-immediate jeopardy level deficiencies as of July 8, 1999. "Immediate jeopardy" is 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 civil money
penalties in amounts 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. HCFA is authorized to impose civil money penalties
in amounts ranging from $50 to $3,000 per day for each day that a facility's
noncompliance poses a risk of more than the potential for minimal harm
to resident health or safety but where the harm or potential for harm
caused by the deficiency does not rise to the level of immediate jeopardy.
Id.; see 42 C.F.R. � 488.301. HCFA concurred with the State survey agency's findings
and determined to impose civil money penalties against Petitioner of $4,000
per day for the period of alleged immediate jeopardy (May 15 through 19,
1999). HCFA determined to impose civil money penalties against Petitioner
of $150 per day for the remaining period of alleged non-compliance. Petitioner requested a hearing and the case was assigned
to me for hearing and decision. Initially, the parties requested time
to pursue settlement negotiations. I scheduled an in-person hearing to
take place on October 16, 2000, after the parties advised me that they
were unable to settle the case. Prior to the commencement of the hearing
the parties informed me that they were no longer contesting the non-immediate
jeopardy level citations. They requested that I hear their arguments regarding
only the immediate jeopardy level deficiency identified at Tag 324 in
the report of the May 1999 survey. The parties also requested that they
be allowed to make written submissions in lieu of offering exhibits and
testimony in person. I granted the parties' requests. See October
3, 2000 Order and Schedule for Filing Briefs. The parties complied with the schedule for submitting
briefs and proposed exhibits that I established. I am admitting HCFA's
exhibits (HCFA Ex.) 1 - 16 and Petitioner's exhibits (P. Ex.) 1 - 27 into
evidence in the absence of any objection to the admission of these exhibits. HCFA has the burden of coming forward with sufficient
evidence to prove a prima facie case of noncompliance with a participation
requirement where the facility contends that it in fact was complying
with that requirement. In that circumstance a skilled nursing facility
has the ultimate burden of rebutting, by a preponderance of the evidence,
prima facie evidence of noncompliance that is introduced 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). The standard of proof differs where a deficiency is established
but where the facility challenges the level of that deficiency
(i.e., whether a deficiency is at the immediate jeopardy level). In that
event the facility must show HCFA's determination of the level of the
deficiency to be clearly erroneous. 42 C.F.R. � 498.60(c)(2). II. Issues, findings of fact and conclusions of law
The issues in this case are as follows:
I make findings of fact and conclusions of law (Findings) to support my decision in this case. My Findings are set out below in italics. I discuss each of my Findings in detail.
At the heart of this case is the care that Petitioner
gave to a resident who is identified in the report of the May 1999 survey
as Resident 11. During the period between the resident's admission to
Petitioner's facility on April 27, 1999 and May 19, 1999, the resident
made numerous attempts to elope Petitioner's facility. Petitioner was
ineffective in preventing the resident from eloping during this period. At the time of the May 1999 survey, Resident 11 was an
84-year old man with multiple diagnoses including Alzheimer's Disease,
congestive heart failure, and prostate cancer. HCFA Ex. 5 at 1 - 16; HCFA
Ex. 9 at 5. The resident had well-known tendencies to wander and to attempt
to elope. Resident 11 was transferred to Petitioner's facility from another
facility so that he could reside in a secure facility that would be able
to deal effectively with his propensity to elope. See P. Ex. 2
at 1 - 2; P. Ex. 17; P. Ex. 20. Resident 11 was placed in Petitioner's Eden Unit or Wing (Eden Wing) which is a secured unit for individuals with dementia. See P. Ex. 14. One of the specific objectives for individual care plans for residents of the Eden Wing is for the behavior of the residents to be managed by the least restrictive method that promotes self-control but which is consistent with necessary measures to provide security for the resident. P. Ex. 14. The Eden Wing's statement of philosophy of care provides that residents will:
Id. When Petitioner's staff assessed Resident 11 on May 3,
1999, they rated his cognitive skills for daily decision making as severely
impaired and noted that the resident had short- and long-term memory problems.
HCFA Ex. 9 at 1. Petitioner's staff found that Resident 11 manifested
distinct behavioral and mood problems which included wandering and elopements.
Id. at 17, 20. The staff observed that Resident 11 wandered on
a daily basis and found that he possessed limited intellectual ability
due to Alzheimer's related dementia. Id. at 1, 3, 14, 15, 17, 20. On April 28, 1999, Resident 11 eloped from Petitioner's
Eden Wing when the doors apparently did not latch shut. HCFA Ex. 1 at
8; HCFA Ex. 8 at 1; P. Ex. 2 at 2. On this occasion Resident 11 was apprehended
before he left the building which comprises Petitioner's facility. The
resident's elopement on April 28, 1999, constituted a security failure
inasmuch as the doors to the Eden Wing were supposed to remain locked
in order to prevent residents of the wing from leaving the wing unsupervised. On April 29, 1999, Resident 11 eloped from Petitioner's
facility twice. HCFA Ex. 1 at 8 - 9; HCFA Ex. 6 at 5; HCFA Ex. 8 at 2.
In both of these episodes the resident successfully exited the building.
In the first episode, Resident 11 was found by facility staff in the parking
lot and brought back into the building. Id. Just ten minutes after
the first elopement episode, Resident 11 was again found outside, this
time by a visitor, who returned him to the building. Id. Petitioner's staff considered the possibility that Resident
11 had walked out of the building while deliveries were being made. HCFA
Ex. 1 at 8 - 9; HCFA Ex. 6 at 5; HCFA Ex. 8 at 2. However, it was noted
that a window was open with its screen removed, and Petitioner's staff
concluded that it was likely that the resident had eloped through the
window. Id. Petitioner's facility, including its Eden Wing, is
at ground level. HCFA Ex. 12; P. Ex. 26 at 1. Windows in the Eden Wing
consist of vertical panels that may be cranked open. If they are open
they provide an individual with easy access to the outside. P. Ex. 26
at 1 - 3. Petitioner amended Resident 11's care plan after his April
29, 1999 elopements. HCFA Ex. 4 at 3. The amended care plan stated as
a goal that the resident would not elope from Petitioner's building or
the Eden Wing. Id. The plan listed approaches that would be used
to achieve this goal which included: making certain that unit doors were
secured; making certain that windows were locked; medicating the resident
as needed as a last resort; taking the resident to day room activities;
reporting any elopement efforts immediately to Petitioner's director of
nursing; and, checking on the resident's status at 15 minute intervals.
Id. At first, Petitioner attempted to implement the amended
care plan by locking doors and windows in all rooms in the Eden Wing,
removing the crank handles to the windows, and providing Resident 11 with
one-on-one supervision. HCFA Ex. 6 at 5; P. Ex. 2 at 2 - 3. Petitioner
also changed the security code signs on the locked doors and had the magnets
on the Eden Wing doors serviced to assure that the doors were functioning
properly. P. Ex. 2 at 2. However, the window crank handles were put back
on, apparently in some cases by April 30, 1999, as other residents and
their families complained about lack of ventilation. P. Ex. 1 at 2; P.
Ex. 2 at 2 - 3. Moreover, Petitioner's staff continued one-on-one supervision
of Resident 11 only through April 30, 1999. P. Ex. 2 at 3. Resident 11 was evaluated by a psychologist on April 30,
1999. HCFA Ex. 7 at 10. The psychologist observed the resident's dementia.
The psychologist found that the resident had a high energy level and was
quite strong. Id. The psychologist recommended that: medication
might be helpful in aiding Resident 11's adjustment to Petitioner's facility;
a safe place should be found to allow the resident to wander and pace;
and, a behavior management evaluation should be conducted of the resident.
Id. On May 6, the same psychologist made a brief visit to Resident
11. Id. He opined that back and leg pain might be at the root of
Resident 11's behavior problems and suggested that Resident 11 be checked
for infection. Id. However, as of May 19, 1999, the psychologist's
recommendations had not been implemented. See P. Ex. 8 at 9. After April 30, 1999, Resident 11 continued to attempt
to elope from Petitioner's facility. Nursing notes which cover the period
from April 29 through May 15, 1999, record that Resident 11 wandered daily,
expressed a wish to leave the facility, showed signs of anxiety, and at
times displayed physically aggressive behavior towards the nursing staff.
HCFA Ex. 8 at 2 - 7. On May 4, 1999, Resident 11 was "more aggressive
about getting out of building." Id. at 4. On May 6, 1999, Resident
11 was observed taking a screen off a window in one room in an attempt
to push the window out and was later found in another room removing a
screen, opening a window, and trying to crawl out of the window. Id.
at 14. Notwithstanding the resident's additional attempts to elope, Petitioner's
staff decided not to write additional amendments to the resident's care
plan and to "continue with the successful interventions we have been using."
P. Ex. 1 at 3. Resident 11 again eloped from Petitioner's facility on
the evening of May 15, 1999. HCFA Ex. 1 at 9; HCFA Ex. 8 at 7; P. Ex.
24 at 7. A visitor to the facility found Resident 11 about a quarter of
a mile from Petitioner's grounds, walking unattended alongside a highway
in a direction that was away from the facility. P. Ex. 24 at 7. The visitor
stopped her car when she recognized Resident 11 and got out in an attempt
to direct traffic while Resident 11 "bolted" across the highway towards
her without checking for on-coming traffic. Id. Resident 11 told
the visitor he had back pain. Id. at 7 - 8; HCFA Ex. 1 at 9. When
the resident was returned to the Eden Wing the nurse on duty appeared
to be unaware that the resident had eloped. P. Ex. 24 at 8; HCFA Ex. 1
at 9; see HCFA Ex. 6 at 2; P. Ex. 8 at 6. Petitioner's staff checked the Eden Wing's doors in response
to Resident 11's elopement. The charge nurse was notified to monitor the
resident for safety. HCFA Ex. 6 at 2. The next day, May 16, 1999, Resident
11 was still confused, alert, pacing, and wandering the unit, stating
he wanted to go home, and complaining of back pain. HCFA Ex. 8 at 7. Resident
11 was checked for safety every 15 minutes, and a decal was written on
the door to the Eden Wing reminding staff to close the door tightly when
leaving or entering the wing. Id. On May 17, 1999, Resident 11 again eloped. HCFA Ex. 1
at 9 - 10; HCFA Ex. 6 at 1; HCFA Ex. 8 at 8. The resident was observed
to crank open the window in the Eden Wing's day room and to step outside
onto the grass. P. Ex. 5 at 1; see HCFA Ex. 1 at 9 - 10. Various
individuals called for help and some aides went out and brought Resident
11 in. HCFA Ex. 1 at 10; P. Ex. 5; P. Ex. 6. The aides experienced some
difficulty returning the resident because he was uncooperative. HCFA Ex.
8 at 8. On May 19, 1999, Petitioner implemented a variety of measures to assure that Resident 11 did not again elope the premises. These measures succeeded in preventing further elopements by the resident. Petitioner fitted all of the windows on the Eden Wing with chains which prevented them from opening to a greater distance than four to six inches. Petitioner decided to install an alarm system which would activate if a resident wearing a bracelet monitor approached the doors to the Eden Wing. Petitioner placed Resident 11 on one-on-one monitoring until the alarm system was operational and sufficiently tested. It scheduled an evaluation for Resident 11 with a psy-geriatric team. P. Ex. 23, at 1 - 2; P. Ex. 1, at 4; HCFA Ex. 1, at 8.
The report of the May 1999 survey alleges at Tag 324 that
Petitioner failed to comply with the requirements of 42 C.F.R. � 483.25(h)(2).
HCFA Ex. 1 at 8 - 10. This regulation provides that a long term care facility
must ensure that each resident receives adequate supervision and assistance
devices to prevent accidents. The regulation does not make a facility strictly liable
for accidents that may occur to its residents. A facility is obligated
to take measures that are designed, to the extent that is practicable,
to assure that residents do not sustain accidents that are reasonably
forseeable. Woodstock Care Center, DAB No. 1726 (2000), aff'g
DAB CR623 (1999). Petitioner failed to comply with this standard in providing
care to Resident 11. It was obvious that Resident 11 would elope from
Petitioner's facility if not prevented from doing so. Petitioner failed
to take reasonable precautions to prevent the resident from eloping in
the face of certain knowledge that the resident would elope if Petitioner
failed to take these precautions. Petitioner offers a number of explanations of its efforts
to protect Resident 11 from eloping and the consequences of such actions.
The gravamen of these explanations is that the resident presented an extremely
challenging management problem and that Petitioner did all that it reasonably
could be expected to do to address that problem. The subtext of Petitioner's
contentions concerning the care that it gave to Resident 11 is that it
had to balance the need to address the resident's propensity to elope
against the needs of other residents and limitations on Petitioner's resources. Petitioner argues that it took extraordinary and timely
steps to supervise Resident 11 adequately. It asserts that it engaged
in a comprehensive assessment process that included reviewing Resident
11's records from prior placements, contacting staff from the prior placements,
and consulting with Resident 11's daughter on his past preferences and
needs. Petitioner's asserted efforts to address the resident's symptoms
included behavioral management, and pharmacological and environmental
interventions. According to Petitioner, the resident's attempts to elope
and his elopements occurred despite the reasonable precautions that Petitioner's
staff took to prevent the resident from eloping. Therefore, according
to Petitioner, the elopement attempts and elopements, while regrettable,
were unavoidable. I find Petitioner's arguments not to be persuasive. I agree that Petitioner undertook all of the measures that it avers it took. But, Petitioner's assertions notwithstanding, it did not take reasonable measures prior to May 19, 1999, to prevent Resident 11 from eloping the facility. My conclusion emerges from the following considerations:
Petitioner did not prove to be clearly erroneous HCFA's
determination that Petitioner's failure to comply with the requirements
of 42 C.F.R. � 483.25(h)(2) placed residents of Petitioner's facility
at immediate jeopardy. 42 C.F.R.� 498.60. Indeed, the weight of the evidence
in this case was that there was a very high likelihood of serious injury
or death to Resident 11 during his elopements. Resident 11 did not suffer harm or injury as a consequence
of his elopements. But, the fact that he was not seriously injured was
his good luck. There was a great likelihood that the resident would experience
grievous injury or death during the course of his elopements. As I have discussed above, at Finding 1, Resident 11 suffered
from physical and mental impairments that caused him to be a highly compromised
individual. As of May, 1999, the resident was 84 years old. He suffered
from congestive heart failure and dementia. The resident's poor physical
health and lack of judgment greatly increased the risks of harm or death
to the resident when he was away from the facility's premises. The resident's
behavior during his elopements is ample support for this conclusion. On
May 15, 1999, during the course of one of his elopements, the resident
bolted across a busy highway. P. Ex. 24 at 7. The danger to the resident was exacerbated by the location of Petitioner's facility. The facility is located in such a way that any eloping resident would be in great danger if he or she wandered off the facility's premises. The facility is located between the Atlantic Ocean and a busy highway. P. Ex. 24 at 4. Although the grounds surrounding the facility are in part fenced it is possible for an eloping resident to have access either to the ocean or the highway. Id. That is made evident by the fact that, on May 15, 1999, Resident 11 was discovered wandering alongside the highway during one of his elopements. The failure to provide care that was sufficient to meet the needs of Resident 11 represents a broader problem than just a single treatment error in the case of one resident. I find that Petitioner's shortcomings in providing care to Resident 11 demonstrate a more generalized failure by Petitioner and its staff to understand Petitioner's obligations under 42 C.F.R. � 483.25(h)(2). That is made evident by the fact that Petitioner did not recognize its responsibility to Resident 11 for more than two weeks after the resident eloped on April 29, 1999.
A basis exists to impose civil money penalties against
Petitioner of between $3,050 and $10,000 per day for each day of the period
beginning on May 15, 1999 and running through May 19, 1999, because during
that period Petitioner was deficient in complying with participation requirements
to the extent that residents of Petitioner were in a state of immediate
jeopardy. 42 C.F.R. � 488.438(a)(i). However, the fact that a basis exists
for an upper range penalty does not justify per se HCFA's determination
to impose a penalty of a particular amount that falls within that range. There are factors which govern the amounts of civil money
penalties. 42 C.F.R. �� 488.438(f), 488.404 (incorporated by reference
into 42 C.F.R. � 488.438(f)(3)). A civil money penalty is reasonable only
if it comports with these factors. HCFA has not explained why it determined to impose penalties in the amount of $4,000 per day against Petitioner, except to assert that Petitioner was deficient at the immediate jeopardy level of noncompliance and that penalties of from $3,050 to $10,000 per day are justified in such circumstances. HCFA's brief at 18. HCFA has not offered any justification of why or how the immediate jeopardy level penalties that it determined to impose are justified by the factors that are stated at 42 C.F.R. �� 488.438(f) and 488.404. See Id. I find that there is no basis to impose civil money penalties
against Petitioner which exceed the minimum amount of $3,050 per day that
may be imposed for an immediate jeopardy level deficiency. I base my conclusion
on the factors that are set forth in the regulations.
First, there is no evidence that Petitioner has any prior
history of noncompliance with participation requirements. 42 C.F.R. ��
488.438(f)(1), 488.404(c)(2). HCFA presented no evidence to show that
Petitioner had ever been found deficient previous to May 1999. Nor did
HCFA argue that Petitioner's noncompliance as of May 1999 was part of
a pattern of noncompliance by Petitioner. Second, Petitioner's immediate jeopardy level deficiency
was at a relatively low level of seriousness. 42 C.F.R. �� 488.438(f)(3),
488.404(b). I take notice that State survey agencies use a rating system
to describe the scope and severity of any deficiency that their surveyors
may identify at a survey. The relative seriousness of a deficiency is
identified by a letter of the alphabet. Under this system immediate jeopardy
level deficiencies are given scope and severity ratings of "J," "K," or
"L," with "J" representing the lowest degree of seriousness and "L" representing
the highest. In this case the surveyors rated Petitioner's failure to
comply with 42 C.F.R. � 483.25(h) at scope and severity level "J." HCFA
Ex. 1 at 8. I am not suggesting that Petitioner's deficiency was not
a serious deficiency. It was a very serious deficiency that met all of
the criteria for an immediate jeopardy level deficiency. However, there
plainly are degrees of seriousness of even immediate jeopardy level deficiencies
and any civil money penalties that are imposed should be commensurate
with the actual seriousness of the deficiency. The fact that the regulations
prescribe a range of penalties for immediate jeopardy level deficiencies
is a basis for concluding that less serious immediate jeopardy level deficiencies
justify lower penalties. The relatively less serious nature of Petitioner's deficiency
is shown by the fact that no resident, including Resident 11, actually
was harmed. True, the potential for harm to Resident 11 was high. As I
have discussed above, in this case the difference between actual harm
and a potential for harm may be ascribed to the resident's good fortune.
But, notwithstanding, no resident was harmed. Moreover, this is not a case in which Petitioner willfully
disregarded the needs of Resident 11. It is plain from the record of this
case that Petitioner was both aware of the resident's needs and took measures
to address those needs. Those measures were inadequate. But, it cannot
be said that Petitioner was indifferent or callous. Finally, I note that the difference between what HCFA determined to impose - $4,000 per day - and what I have decided is reasonable - $3,050 per day - is substantial. I would not be inclined to second guess HCFA if what HCFA determined to be reasonable and what I decided was reasonable were very close in amount. But, in this case, I find HCFA's determination to be unreasonable to a degree that approaches 25 percent of the penalty amount. That is a significant discrepancy between what HCFA determined to be reasonable and what I find to be reasonable, especially given HCFA's failure to provide any rationale for its determination and the impact of the regulatory factors which I have discussed in this Finding.
Petitioner has withdrawn its contest to the remaining non-immediate jeopardy level deficiencies that were found at the May 1999 survey. Nor does Petitioner contest HCFA's determination that Petitioner attained substantial compliance with all participation requirements, effective July 8, 1999. Therefore, I sustain HCFA's determination that Petitioner was not complying substantially with participation requirements from May 20, 1999 until it attained compliance on July 8, 1999. Finally, Petitioner has withdrawn its challenge of the $150 per day civil money penalties that HCFA imposed for each day of this period. Therefore, I sustain them. |
|
JUDGE | |
Steven T. Kessel Administrative Law Judge
|
|