I grant the Centers for Medicare & Medicaid Services' (CMS's) motion for summary judgment and, thereby, sustain CMS's determination of substantial noncompliance at the immediate jeopardy level, and imposition of remedies against Alden-Princeton Rehabilitation and Health Care Center (Petitioner or facility).

I. Background

Petitioner is a nursing facility located in Chicago, Illinois. One of Petitioner's residents eloped from the facility on December 7, 2001. Petitioner notified the Illinois Department of Public Health (State agency) on December 7, 2001. The State agency conducted an incident report investigation on January 7, 2002. Following a determination by the State agency on January 10, 2002 that immediate jeopardy existed at Petitioner's facility, the State agency conducted an extended survey. The State agency determined, as reported in the CMS Form 2567 (Statement of Deficiencies or SOD), that Petitioner had not been in substantial compliance with federal Medicare participation requirements, and that the noncompliance resulted in immediate jeopardy to Petitioner's residents. On February 7, 2002, CMS notified Petitioner that CMS was imposing a per instance civil monetary penalty (CMP) in the amount of $3050 for the noncompliance described in the SOD. On March 15, 2002, Petitioner timely submitted a request for hearing to challenge CMS's determination.

Thereafter, CMS indicated it planned to file a motion for summary judgment in the case. I established a briefing schedule. On August 20, 2002, CMS filed its Motion for Summary Judgment (CMS's Motion) along with 15 proposed exhibits (CMS Exs. 1 - 15). On September 19, 2002, Petitioner filed Petitioner's Response to CMS' Motion for Summary Judgment (P.'s Response), seven proposed exhibits (P. Exs. 1 - 7), and an affidavit of Risa Glantz, Petitioner's Regional Director (P-RMSJ Ex. 1). On October 3, 2003, I requested additional information from the parties. Thereafter, on October 31, 2003, CMS filed CMS's Supplemental Brief in Support of its Motion for Summary Judgment (CMS's Supp. Brief) and Petitioner filed Petitioner's Submission of Requested Information (P.'s Supp. Brief) along with another proposed exhibit (P. Supp. Ex. 1). There being no objection, I have admitted all proposed exhibits into the record.

II. Applicable law and regulations

Petitioner is considered a long-term care facility under the Social Security Act (Act) and regulations promulgated by the Secretary of Health and Human Services (Secretary). The statutory and regulatory requirements for participation by a long-term care facility are found at sections 1819 and 1919 of the Act and at 42 C.F.R. Part 483.

Sections 1819 and 1919 of the Act invest the Secretary with authority to impose CMPs against a long-term care facility for failure to comply substantially with federal participation requirements.

Pursuant to the Act, the Secretary has delegated to CMS and the states the authority to impose remedies against a long-term care facility that is not complying substantially with federal participation requirements. 42 C.F.R. Part 488 provides that facilities participating in Medicare may be surveyed on behalf of CMS by state survey agencies in order to determine whether the facilities are complying with federal participation requirements. 42 C.F.R. �� 488.10 - 488.28. The regulations contain special survey conditions for long-term care facilities. 42 C.F.R. �� 488.300 - 488.335. The regulations at 42 C.F.R. Part 488 give CMS a number of different remedies that can be imposed if the facility is not in compliance with Medicare requirements. Under Part 488, a state or CMS may impose a per instance or per day CMP against a long-term care facility when a state survey agency concludes that the facility is not complying substantially with federal participation requirements. 42 C.F.R. �� 488.406, 488.408, 488.430.

The regulations specify that a CMP that is imposed against a facility can be either a per day CMP for each day the facility is not in substantial compliance, or a per instance CMP for each instance that a facility is not in substantial compliance. 42 C.F.R. � 488.430(a). When penalties are imposed for an instance of noncompliance, the penalties will be in the range of $1,000 - $10,000 per instance. 42 C.F.R. � 488.438(a)(2).

The regulations define the term "substantial compliance" to mean "a level of compliance with the requirements of participation such that any identified deficiencies pose no greater risk to resident health or safety than the potential for causing minimal harm." 42 C.F.R. � 488.301.

Substantial noncompliance that is immediate jeopardy is defined as "a situation in which the provider's noncompliance with one or more requirements of participation has caused, or is likely to cause, serious injury, harm, impairment, or death to a resident." Id.

The Act and regulations make a hearing before an administrative law judge (ALJ) available to a long-term facility against whom CMS has determined to impose a CMP. Act, section 1128A(c)(2); 42 C.F.R. �� 488.408(g), 498.3(b)(12), (13). The hearing before an ALJ is a de novo proceeding. Anesthesiologists Affiliated, et al., DAB CR65 (1990), aff'd, 941 F.2d 678 (8^th Cir. 1991).

III. Issues

The issues in this case are: (1) whether a decision on summary judgment is appropriate; (2) whether CMS has shown a basis upon which to assess a penalty against Petitioner for substantial noncompliance of requirements for participation in Medicare and Medicaid; if so, (3) whether the noncompliance posed immediate jeopardy; and (4) whether the amount of the assessed penalty is reasonable.

IV. Findings of fact and conclusions of law

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

Unless the parties raise a genuine issue of material fact, an ALJ may decide a case on summary judgment without an evidentiary hearing. Livingston Care Center, DAB No. 1871 (2003); Crestview Parke Care Center, DAB No. 1836 (2002); Everett Rehabilitation and Medical Center, DAB No. 1628, at 3 (1997); Carmel Convalescent Hospital, DAB No. 1584, at 27 (1996). The Board reiterated in Livingston Care Center that:

Livingston Care Center at 6.

The essential question presented by this case is whether Petitioner's policy for preventing elopement and/or its actions in implementing the policy met the statutory and regulatory requirement that a facility ensure each resident receives adequate supervision and assistance devices to prevent accidents. 42 C.F.R. � 483.24(h)(2). In this case, no one disputes the facts, discussed below, such as: Resident 1's diagnoses and the facility's assessment of Resident 1's elopement risk, the timing of his elopement and discovery, his likely route of elopement, the weather conditions in Chicago and Resident 1's dress at the time he eloped, the location where he was found and its distance from the facility, nor the fact that Resident 1 had to cross several streets to arrive at that location. Neither party disputes Resident 1's relative good condition upon being found. Nor does either party dispute the facility's methods in place for preventing elopements.

I can think of no testimony from witnesses that could add to the material facts in this case. As stated in Big Bend Hospital Corp. d/b/a Big Bend Medical Center, DAB No. 1814 (2002): "[t]o convene an in-person hearing where no proffered evidence would have any affect [sic] on the outcome would be an empty formalism and a waste of administrative and litigant resources." Big Bend at 15. There is no need for an in-person hearing "where no testimony (including cross-examination, regardless of how credible it might be), could alter the relevant factual findings." Id. at 16. I conclude, therefore, that summary judgment is appropriate in this case.

The only deficiency at issue is CMS's allegation that Petitioner failed to substantially comply with 42 C.F.R. � 483.25(h)(2), at Tag F324, which requires a facility to ensure that each resident receives adequate supervision and assistance devices to prevent accidents. The deficiency was cited in response to Resident 1's elopement from Petitioner's facility on December 7, 2001.

Resident 1 was an 83-year-old man who resided at Petitioner's facility on the third floor, a secured unit of the facility. The third floor is secured by inside door alarms and an elevator that can be opened only by entering a code on a keypad. The third floor residents do not know the code. P-RMSJ Ex. 1.

Resident 1 had been diagnosed with "severe dementia - Alzheimer's type." CMS Ex. 5. Resident 1 was assessed by the facility with the Minimum Data Set (MDS) on November 29, 2001 as "moderately impaired" in his cognitive skills for daily living. CMS Ex. 6, at 2. Petitioner developed a care plan for Resident 1 that included goals and approaches to address his potential for elopement and his disorientation to time and place, his short and long-term memory loss, his tendency to resist care from the staff, and his inappropriate behavior of wandering into the rooms of others. P. Ex. 1. On the MDS referenced above, Petitioner indicated Resident 1 had wandering behavior during the four to six days of the seven days immediately preceding the MDS assessment. CMS Ex. 6, at 2. The MDS also noted that Resident 1 needed supervision when he was off of the secured unit. Id. at 3. Petitioner's staff documented that, on November 5 and December 3, 2001, Resident 1 was opening alarmed doors but was not going out of them. CMS Ex. 8.

Petitioner's relevant policy for elopement stated that after an assessment of each resident's potential for wandering, the Admission Director would obtain consent from a resident or the responsible party for an at-risk resident to be photographed. Department supervisors were to be notified of the admission of a potential eloper. The supervisors were to assign a floor and room for the resident that would "provide increased observation capabilities by staff." The supervisors were to notify staff members regarding the admission of the potential wanderer. P. Supp. Ex. 1, at 1. Additional factors in the policy required the Charge Nurse to order an identification band for the wanderer that would provide notification that the resident had a potential for wandering. The identification band was to include the facility's name, address, phone number and the resident's name and room number. The facility's receptionist was to place a photograph of potential wanderers at the receptionist desk for monitoring purposes, if agreed to by the resident or the resident's representative, or the receptionist was to maintain a list of wanderers. Id. at 2.

For its potential wanderers, Petitioner did not use an automated bracelet or anklet alarm system that would sound when the resident attempted to leave the facility. As required by its own policy, the facility had placed an identification bracelet on Resident 1's wrist. CMS Ex. 7, at 1; see P. Supp. Ex. 1, at 2. Resident 1's photograph was placed in the reception area. CMS Ex. 1, at 2.

On December 7, 2001, as documented in nurses' notes, a staff member gave Resident 1 his medications at 9:00 a.m. Resident 1 then told the nurse he was going to his room. Ten minutes later, at 9:10 a.m., the nurse went to Resident 1's room and Resident 1 was not there. CMS Ex. 8.

The nurse who discovered Resident 1 missing immediately initiated a floor search along with four certified nurse's assistants (CNAs). The staff searched the building and began searching the outside area. CMS Ex. 10, at 3. The police were contacted at approximately 9:30 a.m., twenty minutes after Resident 1 was determined missing. Id. at 1, 2.

The police located Resident 1 at 9:36 a.m., not quite 30 minutes after he was deemed missing, in a residential neighborhood southwest of the facility. CMS Ex. 11. Resident 1 was found approximately .6 miles from the facility and had to cross several streets to get to the spot where he was found. CMS Ex. 12, at 1. The temperature in Chicago on the morning of December 7, 2001 was in the low 40s. CMS Ex. 9. At the time of his elopement, Resident 1 was not wearing an overcoat or jacket. He was dressed in a shirt and pants. CMS Ex. 10, at 1.

The police took Resident 1 to St. Bernard Hospital for evaluation. CMS Exs. 10 at 2, 11. Resident 1 was examined at the hospital and no injuries were identified. He was discharged back to the facility in good condition. P. Ex. 4.

No one knows for certain how Resident 1 left the building. No one heard door alarms sounding between 9:00 am and 9:10 am when Resident 1 was determined to be missing. The door alarms were later confirmed to be fully operational. P-RMSJ Ex. 1. It is unlikely the Petitioner left by exiting through a third floor door.

No staff member recalled seeing Resident 1 enter the elevator on the third floor on the morning he eloped. P-RMSJ Ex. 1. The third floor nurses' station was located outside the elevator doors. In the ten minutes between administering medications to Resident 1 and discovering him missing, however, the nurses normally stationed outside the elevator were finishing their duties' assistance in the facility's dining room. There were no nurses at the third floor nurses' station during the time Resident 1 exited the floor. CMS Ex. 10, at 3.

CMS alleges that Resident 1 left the facility through the unalarmed front door by passing the third floor nurses' station, somehow entering an elevator secured with a coded keypad, passing by the first floor nurses' station and the receptionist's desk where pictures of residents who were known to be elopement risks were posted. CMS Ex. 1, at 2. Petitioner does not dispute CMS's description of Resident 1's likely exit route from the building. P-RMSJ Ex. 1.

Petitioner's investigation after the incident revealed that several facility residents had medical appointments for the morning of December 7, 2001, and that several Medicar pick-ups for these residents were scheduled for the period of time during which Resident 1 left the third floor. P-RMSJ Ex. 1. Petitioner has surmised that, in the ten minutes between the time Resident 1 had received his medications and the time he was determined to be missing, several visiting Medicar drivers were in the elevator when it stopped on the third floor and, in the seconds when the elevator doors were open, Resident 1 entered the elevator. When later questioned, the Medicar drivers did not recall seeing Resident 1 enter the elevator. Id. Petitioner further surmised that Resident 1 exited the elevator on the ground floor and walked out of the building through the front door. All of the doors on the first floor, except for the front door near the receptionist, were alarmed. CMS Ex. 10, at 4.

Petitioner notified the Illinois Department of Public Health about the incident on December 7, 2001, the same day as Resident 1's elopement. P. Ex. 3. The State agency conducted an incident report investigation on January 7, 2002. P. Ex. 7.

On January 10, 2002, the State agency notified Petitioner that it had determined an immediate jeopardy situation existed on December 7, 2001, for the six residents who were considered risks for elopement and who had their pictures posted in the reception area. CMS Ex. 1, at 3. An extended survey was conducted on January 14, 2002 and the surveyor confirmed the cited deficiency and assigned immediate jeopardy. Id.

During both surveys, the State agency found that the door alarms were in working order on December 7, 2002; that pictures of all six residents determined to be at risk for elopement were posted behind the reception desk, and that the facility's third floor elevator was secured by a coded keypad. CMS Ex. 1, at 2; P. Ex. 6, at 2. CMS submitted no evidence that any other residents at Petitioner's facility had eloped in the recent past. Although in the past he had twice opened alarmed doors, Resident 1 had not walked through an alarmed door. Resident 1's past wandering behavior involved going into other residents' rooms. CMS Ex. 8.

CMS does not allege that Petitioner was required to have a different system for tracking residents with the potential to elope, such as an alarmed bracelet/anklet system. Rather, CMS contends that Petitioner did not implement the system it had and, therefore, provided inadequate supervision of Resident 1.

I find this to be a particularly difficult case. The standard to be considered in elopement and accident cases is generally expressed as a statement that the regulation does not require a facility to be free of all accidents; it does not impose strict liability on a facility for accidents that a resident may sustain. See Koester Pavilion, DAB No. 1750 (2000); Heath Nursing and Convalescent Center, DAB CR610 (1999); Woodstock Care Center, DAB No. 1726 (2000); Carehouse Convalescent Hospital, DAB CR729 (2001); Price Hill Nursing Home, DAB CR745 (2001); Hermina Traeye Memorial Nursing Home, DAB CR756 (2001). In other words, simply because an elopement occurred does not mean necessarily that a facility failed to substantially comply with regulatory requirements.

The term "strict liability" does not coincide exactly with cases such as this because it is a term used in tort law. In tort analysis, strict liability is used for a situation when an alleged tortfeasor's negligence need not be proved. The accident proves the tort. In cases concerning a nursing home's compliance with 42 C.F.R. � 483.25(h), rather than looking at the presence or absence of negligence, the focus is on the language of the regulation; i.e., the facility must ensure each resident receives adequate supervision to prevent accidents (emphasis added). The facility's duty as stated in the regulation is an affirmative duty.

In explaining what the facility must do, an appellate panel of the Departmental Appeals Board (Board) has stated that ". . . a facility is not required to do the impossible or be a guarantor against unforeseeable occurrences, but is required to do everything in its power to prevent accidents." Koester Pavilion, DAB No. 1750, at 24 (2000). While not "strict liability," the fact that an elopement or accident actually occurred in a nursing home does tend to show that the facility's supervision was inadequate to prevent the occurrence; that is, the facility did not do everything in its power to prevent its occurrence. This is particularly true if the facility has foreseen the potential for a resident's accident or elopement.

The facility's duty, pursuant to 42 C.F.R. �� 483. 25(h)(1) and (2), is expressed in a slightly different way in Woodstock Care Center, DAB No. 1726 (2000). In that case, the Board found that 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 foreseeable. Based on the standards expressed in Koester Pavilion and Woodstock Care Center, my decision in this case is based on my questioning whether Petitioner took measures, to the extent practicable, to assure that Resident 1 did not elope given Petitioner's recognition that Resident 1 was at risk for elopement.

The regulations do not require that a facility use any particular system to prevent elopements. Alarmed bracelet/anklet systems are not required. Using an outcome-oriented approach, facilities have the flexibility to use a variety of methods, but they are responsible for achieving the required results. Woodward Hills Nursing Center, DAB CR991 (2003). Had Petitioner's system been fully implemented, a system that contemplated the receptionist watching; i.e., supervising residents at risk for elopement, it would have been satisfactory and would have prevented Resident 1's elopement.

Petitioner was using a non-mechanical, low technology system as a last failsafe against elopement; that is, pictures of at-risk residents were placed in the reception area close to the unalarmed front door and visible to the receptionist. It was incumbent on the Petitioner, in that situation, to keep its receptionist free enough from other duties and sufficiently trained in order that the receptionist would spot and stop a resident whose identification picture was in plain view, and who was dressed obviously inappropriately for the outside weather conditions. Additionally, the staff should have been trained to keep at least one on-duty staff member at or near the nurses' station with the ability to monitor those persons entering and exiting the elevators.

I concede this case is unlike Woodstock Care Center. In that case, the facility failed to take remedial measures despite repeated episodes of elopements. In this case, CMS has not shown that Petitioner has had any other prior elopements. CMS did not show that any other third floor residents had ever entered or attempted to enter the elevator. Moreover, Petitioner has shown that all of its mechanical systems for preventing elopement, such as the door alarms and the elevator keypad, were working. See Osceola Nursing & Rehabilitation Care Center, DAB CR775 (2001).

This case is different also in that Petitioner recognized Resident 1's wandering behaviors and prepared a care plan to address his potential for elopement, including getting permission from his family to post his photograph near the receptionist. Moreover, Resident 1 was gone only ten minutes before his absence was noted. Petitioner responded to Resident 1's absence in an appropriate way. An immediate search was initiated, the staff's supervisors and the police were contacted, the incident was reported to the State agency, and the Petitioner investigated the incident. P-RMSJ Ex. 1; CMS Ex. 10, at 3-4.

Petitioner argues that Resident 1's elopement was an oddity, a confluence of events, a "fluke." Specifically, that: (1) the elevator doors opened at precisely the time the staff was finishing in the dining room and absent from the nurses' station outside the elevator doors; (2) Resident 1 was standing in front of the doors when they opened; (3) there were visitors or workmen in the elevator who allowed Resident 1 to come into the elevator; and (4) the receptionist was not looking at the front door at precisely the time Resident 1 walked out. Indeed, Resident 1's successful elopement was likely the result of a confluence of events, but that fact does not answer the question whether Petitioner had done everything in its power or took measures, to the extent practicable, to prevent the confluence of events from occurring.

As noted above, one can think of a number of practicable steps Petitioner could have taken to prevent the confluence of events that resulted in Resident 1's elopement. Petitioner has suggested it could not foresee that a resident would be able to enter a coded elevator. P.'s Response at 6. I note that the facility had placed the nurses' station near the elevator doors on the third floor. I can only assume that one of the reasons for that placement of the nurses' station was to monitor who was exiting and entering the elevator. Yet, the nurses' station was unmanned at the time of Resident 1's elopement. Moreover, Petitioner obviously had foreseen the possibility that a resident might try to elope through the unalarmed front door. It had placed the photographs of those residents at-risk for elopement near the front door. Petitioner had not taken the practicable steps, however, of assuring that a staff member would be monitoring either the third floor elevator or the front door for possible passage of the photographed individuals. Either measure would have provided adequate supervision and likely prevented Resident 1's elopement.

I find, therefore, that Petitioner did not do everything in its power, or take measures to the extent practicable, to ensure that Resident 1 received adequate supervision. Petitioner was not in substantial compliance with 42 C.F.R. � 483.25(h)(2) on December 7, 2001.

In this case, CMS assigned a scope and severity level to the cited deficiency as isolated and posing a risk of immediate jeopardy to the residents. As noted above, CMS assessed a per instance civil money penalty of $3,050.

Appeal rights attach to certain initial determinations made by CMS as set forth in the regulations. The level of noncompliance, in this case immediate jeopardy, can be appealed but only if the range of CMP that can be collected could change or if the facility's nurse's aide training program will be affected due to a finding of substandard quality of care. 42 C.F.R. �� 498.3(b)(14)(i), (ii) and 498.3(d)(10)(i), (ii).

A per instance CMP can be from $1,000 to $10,000. There is no specifically defined range of per instance penalty for findings of immediate jeopardy. 42 C.F.R. � 488.438(a)(2). Thus, a finding of immediate jeopardy can have no effect on a range of penalties. Nonetheless, CMS's determination of immediate jeopardy in this case is an appealable initial determination pursuant to section 498.3(b)(14)(ii) because the deficiency cited was a finding of substandard quality of care affecting the facility's nurse's aide training program.

Immediate jeopardy is defined in the regulations as "a situation in which the provider's noncompliance with one or more requirements of participation has caused, or is likely to cause, serious injury, harm, impairment, or death to a resident." 42 C.F.R. � 488.301. I find CMS's determination, that Petitioner's residents were in a state of immediate jeopardy, not to be clearly erroneous.

Admittedly, Resident 1 did not suffer harm or injury as a consequence of his elopement. I agree with CMS, however, that his lack of serious injury was his good luck. Although Resident 1 was physically able to ambulate alone, Petitioner had indicated in Resident 1's care plan that he should be offered an escort to activities and meals. P. Ex. 1, at 1. Petitioner also indicated in Resident 1's MDS that he should be supervised when he was away from his third floor unit. CMS Ex. 6, at 3. Petitioner's facility, moreover, is in an urban area of Chicago, and even though Resident 1was quickly discovered as missing, he had enough time to cross a number of streets after he left the facility. CMS Ex. 12, at 1. And even though Resident 1 was cognitively impaired only "moderately" as opposed to "severely" as alleged by CMS, there is no record evidence that Resident 1 could cross a street unassisted, and negotiate traffic and stop lights appropriately. Nor is there any evidence that Resident 1 could plan a route and return to the facility if he had decided to do so. Rather, the evidence is to the contrary. It is hard to imagine an elopement, for even a short period of 15 minutes, by an elderly resident who suffers from Alzheimer's dementia with just "moderately" diminished cognition, that fails to present the likelihood of serious injury, particularly in a Northern urban area in the winter.

As noted above, a per instance CMP can range from $1000 to $10,000. In considering whether the amount of the $3,050 CMP imposed by CMS is reasonable, I applied the four factors listed in 42 C.F.R. � 488.438(f). The factors are: the facility's history of noncompliance; the facility's financial condition; the factors specified in 42 C.F.R. � 488.404; and the facility's degree of culpability which includes, but is not limited to, neglect, indifference, or disregard for resident care, comfort or safety. The factors to be considered under 42 C.F.R. � 488.404 include the scope and severity of the deficiency and the facility's prior history of noncompliance with reference to the cited deficiency.

There is no record evidence that Petitioner's financial condition is such that it could not pay $3,050 as a penalty. Petitioner has experienced some operating losses but has substantial assets. CMS Exs. 13-15. The scope and severity of the deficiency was an isolated incident, but at the immediate jeopardy level. Petitioner's financial condition and the scope and severity of the deficiency suggest that a CMP higher than the minimum of $1,000 is reasonable.

CMS made no argument concerning Petitioner's culpability, and I conclude that Petitioner's degree of culpability is relatively low in this situation. Petitioner discovered Resident 1's absence very quickly and immediately started a search. Petitioner notified the State agency and did an appropriate investigation of the elopement. Its actions indicated concern and regard for Resident 1's care. Nonetheless, although culpability can be used to substantiate a higher CMP, the absence of culpability is not a mitigating circumstance in reducing the amount of the penalty. 42 C.F.R. � 488.438(f)(4).

Petitioner did not rebut CMS's evidence in CMS Ex. 13, at 1; i.e., that Petitioner has had four prior enforcement cases since March 22, 1996. According to CMS's evidence, Petitioner previously had several actual harm level deficiencies for "Quality of Care" under 42 C.F.R. � 483.25. Id. Thus, Petitioner's history of noncompliance also suggests that a penalty higher than the minimum of $1,000 is reasonable.

Based on my de novo review of all of the applicable factors together, I find that CMS's assessment of a per instance CMP of $3,050 in this case is reasonable.

V. Conclusion

I grant CMS's motion for summary judgment and sustain CMS's determination against Petitioner of substantial noncompliance at the immediate jeopardy level and the imposition of a per instance CMP in the amount of $3,050.