SUBJECT:

Dawson Manor Nursing Home,

Petitioner,

Centers for Medicare & Medicaid Services.

DECISION

I uphold the Centers for Medicare & Medicaid Services' (CMS) determination to impose a civil money penalty against Dawson Manor Nursing Home (Petitioner or facility). Petitioner failed to comply substantially with four requirements for participation in Medicare. CMS determined that these deficiencies constituted immediate jeopardy. CMS assessed a civil money penalty in the amount of $3,050 per day for 26 days from December 15, 2000 through January 8, 2001; and a civil money penalty in the amount of $500 per day from January 9, 2001 through January 31, 2001, at which time the facility was deemed by CMS to have achieved substantial compliance.

I decide that CMS's determination that the deficiencies constituted immediate jeopardy was not clearly erroneous. I decide also, however, that there is no basis for CMS to impose civil money penalties on all of the days in the period from December 15, 2000 through January 31, 2001. I reverse the imposition of any civil money penalty for the period from January 9, 2001 through January 31, 2001 as there is no evidence that Petitioner failed to substantially comply with the requirements of participation during that period. The amount of the civil money penalty, $3,050 per day, for the period December 15, 2000 through January 8, 2001 is reasonable.

I. Procedural History

Pursuant to CMS's authority to enforce compliance with the participation requirements for Medicare and Medicaid, the Long Term Care Section of Georgia Department of Human Resources, the State survey agency ('survey agency' or 'surveyors'), conducted an unannounced survey that concluded January 4, 2001. See CMS Exhibit (CMS Ex.) 21. In a letter to the facility dated January 8, 2001, CMS notified the facility of CMS's determination that the facility failed to comply substantially with program requirements. CMS imposed a per day civil money penalty of $3,050 for the deficiencies cited. CMS Ex. 25. The surveyors revisited the facility on January 31, 2001; and as a result of that revisit, CMS deemed immediate jeopardy to have been abated January 9, 2001, and Petitioner to have achieved substantial compliance as of January 31, 2001. See CMS Ex. 23; Petitioner's brief at 3.

Petitioner requested review of CMS's determination by submitting a request for hearing dated March 8, 2001. I convened a hearing at Macon, Georgia, on October 30, 2002, and I concluded the hearing on October 31, 2002. At the hearing, I admitted CMS's exhibits 1-26 and Petitioner's Exhibits (P. Exs.) 1-81 into the record. Hearing Transcript (Tr.) 10, 13, 151. Subsequent to the hearing, on January 28, 2003, I received CMS's brief. I received Petitioner's brief on April 7, 2003, and I received also CMS's reply brief on May 8, 2003.

II. Issues, Authority, Findings, Conclusions and Analysis

A. Issues

The issues are (1) Whether Petitioner complied substantially with the participation requirements cited at the January 4, 2001 survey; (2) Whether, if Petitioner did not substantially comply with participation requirements, CMS's determination that the failure to comply constituted immediate jeopardy was clearly erroneous; and (3) Whether, if Petitioner failed to substantially comply, the amount of the civil money penalty is reasonable.

B. Authority

Title XVIII (Medicare) and Title XIX (Medicaid) of the Act (42 U.S.C. �� 301-1397jj) set forth requirements for long-term care facilities, both skilled nursing facilities and nursing facilities, participating in the Medicare and Medicaid programs, and authorize the Secretary of Health and Human Services (Secretary) to promulgate regulations implementing the statutory provisions. Act, sections 1819, 1919. The Secretary's regulations governing skilled nursing facility and nursing facility participation in the Medicare program are found at 42 C.F.R. Part 483.

If CMS finds a facility is not in substantial compliance with program requirements, CMS has the authority to impose one or more of the enforcement remedies listed in 42 C.F.R. � 488.406, which include imposing civil money penalties. See Act, section 1819(h). CMS is authorized to assess civil money penalties when a facility is not in compliance with one or more participation requirements. 42 C.F.R. � 488.430(a). The civil money penalties range from $50 to $3,000 per day for deficiencies that do not constitute immediate jeopardy, but either cause actual harm, or cause no actual harm, but have the potential for causing more than minimal harm. The civil money penalties range from $3,050 to $10,000 per day for deficiencies which constitute immediate jeopardy. 42 C.F.R. � 488.438(a)(i) and (ii).

The purpose of the authorized remedies is to "ensure prompt compliance with program requirements." 42 C.F.R. � 488.402(a). The remedies are applied in light of the scope and severity of the noncompliance found during a survey. In setting the amount of the civil money penalties, CMS considers: (1) the facility's history of noncompliance; (2) the facility's financial condition; (3) the factors specified in 42 C.F.R. � 488.404; and (4) the facility's degree of culpability, which includes neglect, indifference, or disregard for resident care, comfort, or safety. The absence of culpability is not a mitigating factor. 42 C.F.R. � 488.438(f). The factors found at 42 C.F.R. � 488.404 include: (1) the scope and severity of the deficiency; (2) the relationship of the deficiency to other deficiencies resulting in noncompliance; and (3) the facility's prior history of noncompliance in general, specifically with reference to the cited deficiencies.

When CMS imposes an enforcement remedy on a skilled nursing facility or nursing facility, the facility has a right to appeal the "certification of noncompliance leading to an enforcement remedy." 42 C.F.R. � 488.408(g)(1); see also 42 C.F.R. �� 488.330(e) and 498.3. However, a facility may not appeal the choice of remedies by CMS or the factors CMS considered when choosing remedies. 42 C.F.R. � 488.408(g)(2). A facility may only challenge the scope and severity level of noncompliance found by CMS if a successful challenge would affect the amount of the civil money penalty CMS could collect or affect the facility's nurse's aide training program. 42 C.F.R. � 498.3(b)(14).

CMS's determination regarding the level of noncompliance must be upheld unless clearly erroneous. 42 C.F.R. � 498.60(c)(2). This includes instances where CMS has determined that the level of noncompliance is at the immediate jeopardy level. Woodstock Care Center, DAB No. 1726, at 9, 38 (2000).

CMS has the initial burden of coming forward with evidence on any disputed facts showing that the provider was not in substantial compliance with Medicare participation requirements. However, the provider bears the ultimate burden of persuasion that it was in substantial compliance with those requirements. See South Valley Health Care Center, DAB No. 1691 (1999), aff'd, South Valley Health Care Center v. HCFA, 223 F.3d 1221 (10^th Cir. 2000); see, also, Batavia Nursing and Convalescent Center, DAB No. 1904 (2004).

C. Findings, Conclusions and Analysis

1. Petitioner failed to comply substantially with four requirements for participation in Medicare.

a. F-223

CMS cited the facility under F-223 (CMS and the surveyors use 'F-tag' designations to refer to each deficiency) for failure to comply substantially with the requirement at 42 C.F.R. � 483.13(b) that each " . . . resident has the right to be free from, verbal, sexual, physical, and mental abuse, corporal punishment, and involuntary seclusion."

CMS asserts that a facility CNA, Jennifer Gibson, abused a woman, herein identified as Resident 1, by involuntarily secluding her on December 23, 2000. The undisputed facts concerning the incident forming the basis for CMS's finding are that on the morning of December 23, 2000, Ms. Gibson was attending to residents alone in the facility's dining room. At the time, Resident 1 was 90-years-old and confined to a wheel chair. She was dressed in a t-shirt, or t-shirt type garment. Resident 1 was unruly-being loud and disruptive and throwing things. In response to Resident 1's behavior, Ms. Gibson wheeled Resident 1 through a door which led from the dining room to the exterior of the facility. It was cold outside, the temperature between 25 and 48 degrees Fahrenheit. Ms. Gibson left Resident 1 outside alone and returned to the dining room to attend to the other residents. At some point thereafter, an unidentified man entered the backyard to assist Resident 1 who the man apparently believed to be in distress. Ms. Gibson noticed the man trying to assist Resident 1 back into the dinging room, and Ms. Gibson brought Resident 1 into the dining room and spoke with the man. Contemporaneously with this incident, Mary Ann Duke, R.N., the supervising nurse at the time, received a telephone call at the facility from an anonymous woman. The caller questioned whether it was too cold for the facility's residents to be outside. Nurse Duke initially reacted to the call as if a resident had eloped from the facility, but upon investigation, quickly realized that it was the incident concerning Resident 1 that had prompted the call. Resident 1 was examined by the facility and was determined not to have suffered any injury from her exposure. Neither party asserts that Resident 1 was outside for more than a period of a few minutes. When Ms. Gibson was questioned by Nurse Duke immediately following the incident she indicated that her purpose in putting Resident 1 outside was to calm her down. Ms. Gibson did not mention to Nurse Duke in the initial interview that the unidentified man had come to Resident 1's assistance.

CMS asserts that Ms. Gibson involuntarily secluded Resident 1 "less to curtail the resident and more for punitive purposes." CMS's brief at xi. CMS relies on the reporting of witnesses to the event as recorded in notes of the Ombudsman who was tasked following the incident with conducting her own investigation. See CMS Ex. 10. CMS asserts that witnesses indicated that Resident 1 did not calm down outside but became more agitated. Based apparently on the witnesses' reports as contained in the Ombudsman's case notes, CMS argues Ms. Gibson's purpose in wheeling Resident 1 outside and leaving her there was "getting her out of the way" CMS's brief at xiii. The Ombudsman's case notes indicate that the man who attempted to assist Resident 1 was named Larry Hamsly and that he was an EMT with the Terrell County EMT service. CMS Ex. 10, at 2. The Ombudsman's case notes indicate that Mr. Hamsly reported that Ms. Gibson said she rolled Resident 1 onto the patio because "she was disturbing everyone in the dining room" and Mr. Hamsly related also that "[t]he aid said that's what they do to make the resident behave." Id.

Petitioner argues that CMS has failed to present a prima facie case that Ms. Gibson abused Resident 1 because proving abuse requires a showing of "the willful infliction of injury, unreasonable confinement, intimidation, or punishment with resulting physical harm, pain, or mental anguish." Petitioner's brief at 33, quoting 42 C.F.R. � 488.301. Petitioner argues that CMS is required to offer evidence of Ms. Gibson's "intent." Petitioner maintains that because the surveyors did not investigate Ms. Gibson's intent, CMS has therefore failed to support a necessary element of an abuse finding. Petitioner's brief at 35. Petitioner asserts that Ms. Gibson had no injurious motive, because she putatively believed that in taking Resident 1 outside she was doing what she had allegedly seen Resident 1's private sitters do to calm her. Petitioner's brief at 36. Petitioner argues also that there is no evidence that Resident 1 was harmed, and it cannot be inferred that she was harmed merely because she was yelling. Petitioner argues that Resident 1 was yelling even before Ms. Gibson wheeled her outside. Thus, Petitioner argues, any harm is speculative. Id. CMS cannot prevail on this tag for the additional reason, Petitioner asserts, because even if Ms. Gibson abused Resident 1 it was an isolated incident. An isolated incident, Petitioner argues, cannot form the basis for a deficiency stemming from abuse because one incident does not prove the facility was not substantially complying in all other respects with the requirement. Id. at 38-42.

Petitioner's argument that the "intent" element of abuse has not been met is unavailing. The definition of abuse at section 488.301 does not link the actor's (in this case Ms. Gibson) state of mind with the harm resulting from the abuse. Section 488.301 provides that certain actions (inter alia unreasonable confinement, or to use the language of section 483.13(b) 'involuntary seclusion') which result in harm constitute abuse. This definition links the willfulness of the actor with the action it does not link the willfulness of the actor with the resultant harm. Stated another way, it does not matter whether the actor intended to harm the resident, what matters is whether the actor willfully inflicted the prohibited action, and the consequence was harm. This understanding of the definition of abuse is consistent with the overarching scheme of the statute. The analysis that focuses on Ms. Gibson's intent, which Petitioner urges me adopt seems more appropriate to a criminal law analysis. The concept of mens rea or the state of mind of the actor is relevant in criminal adjudication because the state of mind of the actor is relevant to the guilt or innocence of the actor, which is central to the matter being decided in a criminal case.

The focus of the regulations relevant to this case, however, is on the well-being of the residents-the regulations are not promulgated to determine guilt and assess punishments. Section 483.13(b) provides that residents have the right to be free from abuse. This is an objective requirement. The requirement is not that resident have the right to be free only from malicious care givers, but from care givers who subject them to harm, other than by accident, regardless of the care givers subjective opinion of whether harm will result. If, for instance, Ms. Gibson had slapped Resident 1, or cursed her, and Resident 1 were harmed by that conduct, would it matter whether Ms. Gibson believed these actions were appropriate or beneficial?- No, because these actions are, objectively speaking, the type that residents have a right under the regulations to be free from. To apply the regulation consistently with its overarching remedial and protective purpose, I conclude I must ascribe to the definition of abuse a degree of objectivity. Accordingly, I reject Petitioner's contention that CMS failed to provide evidence of a required element of abuse.

I reject also the argument that Ms. Gibson's alleged innocent state of mind would, if true, prove that Ms. Gibson did not abuse Resident 1. Putting a wheel-chair bound, 90-year-old resident, clad only in a t-shirt, out into the frigid December air, and leaving her there, in an attempt to modify her unruly behavior, is abuse. These facts support also my conclusion that Resident 1 was harmed in at least two ways. First, Resident 1 was clad only in a t-shirt, and it was a cold December day. A person of Resident 1's age and her status as a dependent nursing home resident are sufficient facts for me to conclude that the exposure to the cold air would physically hurt, as well as cause a degree of psychological shock, regardless of Resident 1's cognitive state. There is no threshold level of harm specified in the regulation beneath which it is acceptable to inflict on a resident. It is not necessary under the regulation's definition of abuse that, for instance, the resident suffer some long-term physical or psychological trauma from the abuse. Accordingly, I find that given the undisputedly fragile status of Resident 1's person, leaving her in the cold caused harm. Second, although I make no findings affirming the statements attributed to the witnesses in the Ombudsman's report (due to the several levels of hearsay, and the imprecision with which the statements were reported), it does not depend on those reports to find that Resident 1 continued to be agitated when she was placed outside. In fact, her behavior caused at least two persons outside the facility to intervene to assist her. I find, therefore, that Resident 1 suffered mental harm, due to her bewilderment, anger or fright from her being left alone in the cold.

I reject also Petitioner's contention that this one incident does not support the finding that the facility failed to comply substantially with the requirement. While it is true that a single incident of abuse may not necessarily indicate a facility failed to comply substantially, circumstances surrounding the one incident can, as I find they do here, indicate that there is a failure beyond the one incident. Ms. Gibson's conduct belies a failure in her training that appears so basic that the single incident supports a failure to comply substantially with the requirement. I elaborate on this point in my discussion of F-224, below.

b. F-224

The essence of CMS's allegation concerning F-224 is that the facts underlying the instance of abuse discussed concerning F-223 belies also a failure of the facility to develop and implement written policies and procedures that prohibit mistreatment, neglect, and abuse of residents and misappropriation of resident property as required pursuant to 42 C.F.R. � 483.13(c)(1)(i).

CMS acknowledges that the facility had in place a policies and procedures manual that required reports of abuse be reported to the administrator, and to the residents' representative within 24 hours of the occurrence. CMS's brief at xii, citing CMS Ex. 13, at 3. In fact the administrator of facility, Donna McMahon testified that she was notified of the incident on December 23, 2000. CMS brief at xii, citing Tr. 368. The facility's policy, CMS noted, requires also reporting to "the state survey agency when an investigation of a possible incident reveals abuse." CMS's brief at xii. CMS implies that Petitioner did not report to the State survey agency, because Surveyor Giles found that the person reporting the incident, who happens to be a state surveyor, indicated that she had made her own investigation based upon a call from the Terrell County Department of Family and Children Services. CMS's brief at xiii, citing Tr. at 70; CMS Ex. 5, at 3. Surveyor Giles concluded this was the Ombudsman's complaint, because no other complaint from the Ombudsman was received by the State agency. CMS's brief at xiii. CMS notes, without explicitly disputing the fact, that Ms. McMahon testified that she reported the incident to the State agency. CMS's brief at xiii, citing Tr. 371. Additionally, CMS noted that the facility policy requires employees accused of possible abuse to be reassigned or suspended until investigation results are reviewed. CMS's brief at xiii, citing CMS Ex. 13, at 3. CMS concluded the facility failed to follow its policy because it gave Ms. Gibson a mere written warning on the date of the incident, and Ms. Gibson remained on duty until January 2, 2001. CMS concludes that it took 13 days from the incident for the facility to implement its policy. CMS's brief at xiv. Therefore, CMS determined, the facility had an abuse investigation and reporting policy, but it failed to implement it, due to its failure to recognize Ms. Gibson's conduct as abuse. CMS's brief at xiv-xv.

Petitioner counters that because there was no willful infliction of injury with resulting harm, CMS fails to present a prima facie case. Petitioner's brief at 42. And, Petitioner asserts, the facility had policies in place as required by the regulation. Petitioner's brief at 43. Moreover, Petitioner argues, a single, isolated event does not necessarily mean a facility has failed to implement appropriate abuse policies and procedures, and isolated acts are not prima facie proof of the facility's failure to implement appropriate policies and procedures. Id. at 43-44.

I agree with the general proposition that a single incident of abuse does not conclusively indicate that abuse related policies and procedures have not been implemented. It does not follow, however, that the peculiar facts and circumstances of an isolated incident of abuse cannot present prima facie evidence that the appropriate policies have not been implemented. In this case, I find indica in the circumstances of Ms. Gibson's actions and their aftermath from which I infer the facility failed to implement the appropriate policies and procedures.

I do not address CMS's allegations concerning the reporting requirements because I find that the weight of evidence supports the conclusion that the facility failed to implement the appropriate policies and procedures in other respects. The most compelling evidence supporting my inference is Ms. Gibsons' ignorance regarding the treatment of residents and the facility's evident lack of curiosity about how poorly trained Ms. Gibson was prior to the incident involving Resident 1. As Ms. Gibson herself explained on December 23, 2000 "If I knew that I didn't suppose to do that [put Resident 1 outside] I wouldn't, my mistake." CMS Ex. 6, at 1. And, as Ms. Gibson wrote on December 24, 2000 "If I knew that we didn't supose [sic] to do that I wouldnt did it [sic]." CMS Ex. 5, at 8. Petitioner has relied on these statements in its attempt to show that Ms. Gibson's lack of intent proves that Resident 1 was not abused. Ms. Gibson's statements suggest however, that the facility failed to develop and implement written policies and procedures that prohibit mistreatment, neglect, and abuse of residents. How else could it be possible that Ms. Gibson would regard her treatment of Resident 1 as acceptable prior to the incident and its aftermath? I note also that although the facility took steps to correct Ms. Gibson after the fact, in none of the contemporaneous documents describing the discussions between Ms. Gibson and her superiors do her superiors reference Ms. Gibson's training. There is no indication that the staff confronting Ms. Gibson questioned how she could have overlooked, for instance, the facility's policies concerning abuse. Petitioner offers no explanation how this glaring omission in Ms. Gibson's training and supervision occurred. The existence of policies is not sufficient to fulfil the part of the requirement that provides such policies and procedures be implemented. Based on the evidence, I conclude the facility failed to implement the policies and procedures.

c. F-225

In the survey report, CMS cited Petitioner under 42 C.F.R. � 483.13(c)(1)(ii) for failing to present evidence of a thorough investigation of an allegation of abuse, and for failing to prevent further potential abuse while the investigation is in progress. CMS asserts that the facility did not perform a thorough investigation, and failed to prevent Ms. Gibson from continuing to care for residents pending the investigation. The appropriate part of section 483.13 applicable to these allegations, is 483.13(3). Petitioner has seized on this (see Petitioner's brief at 45-46) to argue that CMS cannot prevail because the allegations do not fit within the regulation cited. I disagree. The 2567 (the survey report containing CMS's allegations, CMS Ex. 25) provides sufficient factual allegations to provide Petitioner notice as to the precise alleged deficiency under the regulation. Petitioner has not been prejudiced by the citation to the inapplicable subsection of the regulation.

Petitioner argues that the facility had no duty to investigate the incident because there was no allegation of abuse. Petitioner's brief at 46-49. Petitioner argues also that the facility conducted a thorough investigation considering the information that was available to it. Petitioner's brief at 49-52.

Concerning Petitioner's assertion that there was no abuse to investigate, I conclude that this is at odds with the facts. The facility's conduct immediately after the incident shows that it obviously considered it was investigating an allegation of abuse. For instance, immediately after Ms. Gibson was discovered to have left Resident 1 outside, her supervisor, Nurse Duke, noted "CNA [Ms. Gibson] counseled that resident cannot be taken outside to calm them when its cold. That could be interpreted as abuse. CNA promise not to do so again." CMS Ex 9, at 7 (emphasis added). It is clear from this that the facility determined, as it argues is the appropriate threshold for an investigation, that there was "evidence that would cause a reasonable person to suspect the presence of abuse." Petitioner's brief at 49. The facility concluded erroneously that Ms. Gibson's actions were not abuse, based on her purported lack of intent to harm the resident; however, this does not excuse the facility's truncation of an investigation into what a reasonable person, including apparently Nurse Duke, would suspect was abuse.

Furthermore, the facility's assertion that it conducted a thorough investigation considering the information it had available does not withstand minimal scrutiny. The facility alleges that "although DHR [the surveying agency] was aware, through its complaint process, of possible third-party witnesses to the occurrence, this information was not disclosed to Dawson Manor until after the survey." Petitioner's brief at 50 . The evidence shows, however, that Petitioner's reliance on the surveying agency for this information was misplaced. Contemporaneously with the incident concerning Resident 1, the facility was apprized of information that there were witnesses outside the facility who witnessed the events. Nurse Duke received a call from an "anonymous woman" questioning whether it was too cold outside for the residents. CMS Ex. 7, at 1. Another staffer, Helen Huie, reported being present at the nurses station when Nurse Duke received the call; although, Ms. Huie reported that Ms. Duke received a call from the local EMT service about the incident, not an anonymous woman, as reported by Nurse Duke. CMS Ex. 8, at 25. Yet another staffer, Beverly Hughan, reports that she became aware that Nurse Duke received a call concerning the incident, and Ms. Hughan responded by going directly to the dining room to investigate. CMS Ex. 8, at 22. Ms. Hughan "confronted" Ms. Gibson about the incident and took Resident 1 to the nurse's station to report to Nurse Duke. Id. After Resident 1 was secured, Ms. Hughan reports that she " . . . went back to the dining room to look outside the back door and noted the house directly across the street had a large Ryder truck in its driveway and the house next door was having a yard sale . . . no one was outside . . . [I] inform[ed] Mrs. Duke of what I saw." Id at 23.

Ms. Gibson ultimately, but not until January 3, 2001, conceded that a man came into the yard to assist Resident 1, apparently because Resident 1 was screaming. Ms. Gibson conceded also that she had explained her treatment of Resident 1 to the unidentified man. CMS Ex. 8, at 2. Nonetheless, in light of the information the facility staff received on the morning of the incident, it should not have been a mystery to the facility that there were witnesses, who must have seen something that occurred concerning Resident 1 and that prompted at least one of them to contact the facility. Yet, inexplicably, Ms. Gibson's superiors credulously accepted her account without pursuing the source of the phone call, and without following Ms. Hughan's instinct that neighbors had been proximate to the incident. This establishes a failure by the facility to show evidence of a thorough investigation.

d. F-323

42 C.F.R. � 483.25(h)(1) requires that the resident environment remain as free of accident hazards as possible. CMS alleged that there was a trench "outside of a fenced area of the facility yard." The location of this trench was diagramed by the one of the surveyors, Ms. Giles, as included in the record at CMS ex 2, at 9. Ms. Giles apparently measured the trench by stepping into it, and concluded it was approximately one foot deep. Tr. 83. Ms. Giles testified that all a resident would need to do to access the trench was to step out the back door of the facility. See, CMS's brief at xvi, citing Tr. at 83. Ms. Giles indicated that " . . . the adjacent fence, which did not encase the trench, was readily able to be opened by a resident who might happen to walk out into that area." CMS's brief at xvi, citing Tr. 83.

I conclude that CMS has failed to present evidence that shows, prima facie, that the facility failed to ensure the resident environment remained as free of accident hazards as possible. There is no evidence that any of the residents had access to the area where the trench was located, which was, as Ms. Giles indicated, outside of the fenced area that apparently served as the facility's back yard. Moreover, the fact that Resident 2 was found near the trench on a night when he eloped (see the discussion of F-324, below) does not support a deficiency finding under this F-tag either. Resident 2 had eloped despite the efforts of the facility to prevent elopement, and was in an area (the same area were the trench was situated) that was putatively off-limits to residents without supervision- it was outside the fenced area of the patio. The presence of a trench on the facility's grounds is not prima facie evidence of a hazard without some credible indicia that it was located were residents could get near enough to it to fall in.

e. F-324

CMS asserts that on December 15, 2000, Resident 2 eloped the facility and was found outside, on the ground, wearing muddy clothing. CMS's brief at xv. CMS asserts also that the facility knew that Resident 2 was a wandering resident. Id. CMS alleges that Resident 2 was last seen by staff at 8:00 PM on December 15, 2000. Id., citing CMS Ex. 2, at 3. CMS alleges that Resident 2 was discovered missing during the 9:00 PM room check. Id. And that facility staff found him at 9:30 PM on the side of the facility building. CMS's brief at xvi, citing CMS Ex. 2, at 3. CMS alleges further that Resident 2 had a wandergaurd bracelet that was intended to trigger an alarm on the door through which he exited. On the night of December 15, 200, however, the bracelet alarm was not functioning. CMS opines that the facility's alleged failure to miss Resident 2 for approximately one hour is troubling, and shows that the facility failed to implement a workable procedure for the supervision of Resident 2. See CMS's brief at xviii. CMS concluded that these facts support a deficiency finding under 42 C.F.R. � 483.25(h)(2) which requires that each resident receive adequate supervision and assistance devices to prevent accidents.

While Petitioner disputes the length of time CMS asserts Resident 2 was missing, Petitioner does not, however, contest that Resident 2 successfully eloped. Petitioner asserts that Resident 2 was subject to overall good supervision by facility staff and that he never eloped before. Petitioner's brief at 60. Petitioner asserts also that the administrator checked the door Resident 2 used earlier on the night of the elopement and concluded that it was locked. Petitioner conjectures that the door appeared to the administrator to be locked because it was stuck, and Resident 2, who was apparently larger than the administrator was able to open the stuck door. Petitioner argues that its security procedures worked effectively because staff " . . . knew that Resident 2 was missing within approximately ten to fifteen minutes of when he was last seen and then [staff] found him within another ten minutes." Petitioner's brief at 61. The facility argues also that a single elopement is not enough to show noncompliance, because the facility's overall system was compliant and successful. Petitioner's brief at 63.

Petitioner's argument that it had a system in place to protect wandering residents from eloping is persuasive, however, the evidence shows that there were several breakdowns in the system from which I must conclude that the single instance cited is sufficient to uphold the deficiency. Petitioner did supervise Resident 2; however, on December 15, 2000, he was able to escape attention for approximately 30 minutes, during which time, he exited the facility though an unlocked door, that was supposed to be alarmed with the wandergaurd system, but the system failed, and then, once outside undetected, Resident 2 was able to open a gate in the fence around the yard that was supposed to be locked.

Despite the facility's attempt to attribute this to the Residents' mechanical ingenuity (see Petitioner's brief at 63), I conclude that it is the facility's responsibility to ensure that locks are functioning as intended. Thus, the facility's failure to adequately safeguard Resident 2 was human and mechanical on several levels. Accordingly, I conclude that Petitioner failed to substantially comply with the requirement.

f. F-353

The requirement at 42 C.F.R. � 483.30(a)(1)&(2) essentially is that facilities maintain a sufficient level of nursing staff. In its brief, CMS indicated that it offered no argument, but chose to rely in the allegations in the 2567 and the testimony of witnesses at hearing. CMS's brief at xviii. The allegations in the 2567 are essentially that the facts supporting the findings of deficiency discussed above, indicate also that the facility failed to maintain a sufficient nursing staff and supervision. I find that the evidence of abuse, and the other instances of failure to comply substantially is ambiguous concerning staffing levels and supervision of staff. These failures could have arisen, as CMS suggests, due to nursing staff related shortcomings, but they could have arisen for reasons not related to staffing levels and supervision also. I will not attempt to make CMS's argument concerning which inferences should be drawn from the testimony of witnesses to support CMS's finding. I conclude therefore that CMS failed to present a prima facie case concerning F-353.

2. CMS was authorized to impose remedies including civil money penalties at the immediate jeopardy level of severity; therefore, the amount of the civil money penalty, $3050, is reasonable.

a. The duration of the per day civil money penalties.

Because I have concluded that Petitioner failed to comply substantially with requirements for participation in Medicare, CMS is authorized to impose some amount of civil money penalty. CMS has determined to impose $3,050 per day for 26 days from December 15, 2000 through January 8, 2001; and a civil money penalty in the amount of $500 per day from January 9, 2001 through January 31, 2001, at which time the facility was deemed by CMS to have achieved substantial compliance. The amount of the civil money penalty for the period of immediate jeopardy I find is reasonable.

I decide also, however, that there is no basis for CMS to have imposed civil money penalties on all of the days in the period from December 15, 2000 through January 31, 2001. Accordingly, I reverse the imposition of any civil money penalty for the period from January 9, 2001 through January 31, 2001, as there is no evidence that Petitioner failed to comply substantially with the requirements of participation during that period. Thus, I do not address the reasonableness of the amount of the $500 per day civil money penalty.

Petitioner argues that it achieved substantial compliance prior to when the surveyors determined the facility had achieved substantial compliance. For instance, Petitioner argues that immediately following Resident 2's elopement, the administrator issued instructions, on December 16, 2000, that rectified shortfalls in the facility's system. Petitioner's brief at 70. I do not find that the evidence establishes that Petitioner achieved substantial compliance on December 16, 2000, I do find, however, that the facility presented persuasive evidence that it had achieved substantial compliance by January 8, 2001, and there is no evidence in the record indicating that the facility failed to comply substantially from January 9, 2002 through January 31, 2001.

The evidence that Petitioner took action to rectify the deficiencies is abundant. Ms. Gibson was counseled concerning the appropriate way to deal with difficult resident behavior on December 23, 2000. CMS Ex. 9, at 7. A follow-up inservice was conducted with Ms. Gibson by the Director of Nursing on December 26, 2000. CMS Ex. 11, at 1. Systematic monitoring of exit door security was begun and charted on January 4, 2001. CMS Ex. 12. An action plan for monitoring the facility's doors was commenced on January 4, 2001. CMS Ex. 14, at 36. An inservice was conducted with staff concerning handling perturbed residents on January 5, 2001. P. Ex. 52. A systematic head count census was instituted on January 5, 2001. CMS Ex. 12, at 4. Additionally, an inservice was held with staff concerning abuse prevention and investigation on January 6, 2001. New procedures were faxed to the surveying agency on January 6, 2001. CMS Ex. 12, at 6. An inservice concerning wandering residents was held with staff on January 8, 2001. CMS Ex. 14, at 2. And an inservice with staff concerning resident stress was held January 8, 2001. CMS Ex. 14, at 4. These are persuasive indicia that Petitioner was in compliance with all of the requirements cited as deficiencies by January 8, 2001. CMS has presented no evidence that the facility remained out of substantial compliance after that date. I conclude therefore that Petitioner achieved substantial compliance on January 8, 2001, the $500 civil money penalty assessed for January 9, through January 31, 2001 is, therefore, not authorized.

b. CMS is not prohibited by 42 C.F.R. � 488.425 from imposing civil money penalties.

Petitioner argued that because the State agency imposed directed inservice training on the facility, 42 C.F.R. � 488.425 prohibits CMS from imposing civil money penalties in this case. Petitioner's brief at 68. The language at section 488.425 that Petitioner relies on to support this contention is as follows "[a]fter the staff has received inservice training, if the facility has not achieved substantial compliance, CMS or the State may impose one or more other remedies specified in � 488.406." I note that this provision is ambiguous regarding whether remedies imposed after inservice training are additional to remedies that may have preceded the imposition of inservice training, or whether no other remedies may be imposed pending the completion of the inservice training. Nevertheless, I conclude that this provision does not preclude the imposition of the remedies in the instant case because in the instant case the State agency imposed the directed inservice training (see CMS Ex., at 3; compare with CMS Ex. 25), and another provision, 42 C.F.R. � 488.452(d), provides that where the State and CMS remedies overlap, " . . . only the CMS remedies apply when both CMS and the State find that a facility has not achieved substantial compliance."

c. CMS's determination that the deficiencies constituted immediate jeopardy was not clearly erroneous.

Petitioner argues that CMS failed to show it was likely that serious injury, harm or death would befall residents as a result of the facility's deficiencies. Petitioner asserted that there is no evidence in the record that there was immediate harm. Petitioner's brief at 69-70.

Although CMS does not appear to have concisely presented the case linking the deficiencies to the likelihood of serious injury harm or death to residents, I conclude that the evidence as a whole is sufficient to show CMS's determination was not clearly erroneous. Concerning the finding that Resident 1 was abused, for instance, the evidence shows that were it not for the intervention of the unidentified neighbor, it is not clear how long Resident 1 would have remained exposed to the cold weather. Thus, the evidence shows that CMS's determination was not clear error. The unexplained gap in the implementation of the facility's abuse related policies and procedures also provides a basis to support CMS's imposition of the immediate jeopardy severity level. Failures in abuse investigation and prevention presumably create the potential for more abuse, thus I cannot find that CMS's determination that this presented immediate jeopardy to residents was clearly erroneous.

Similarly the failure to thoroughly investigate an allegation of abuse presents the reasonable possibility that the source of abusive conduct will not be discovered, exposing residents to further abuse, so I cannot determine that the F-tag related to investigation was erroneously cited at the immediate jeopardy level. And, finally, the several layers of failure that resulted in Resident 2 eloping from the facility strongly support a finding that residents could elope and face serious injury, harm or death, and therefore, I cannot find that CMS's determination that the elopement related deficiency presented immediate jeopardy was clearly erroneous either.

d. The amount of the civil money penalty, $3,050 per day, is reasonable.

My conclusion that CMS's determination that the deficiencies constituted immediate jeopardy was not clearly erroneous authorizes CMS to impose a civil money penalty in the range of $3,050 to $10,000 per day. 42 C.F.R. � 488.438(a)(i) and (ii). CMS assessed the civil money penalty in the amount of $3,050 per day. Petitioner introduced evidence concerning the facility's compliance history and financial status. Petitioner's brief at 7-8. I note, however, that the amount imposed by CMS is the lowest amount authorized by the regulation for the immediate jeopardy severity level. Thus, based on my review of the relevant factors provided in 42 C.F.R. �� 488.438(f) and 488.404, I conclude that the amount is reasonable.

IV. Conclusion

In view of the forgoing, I uphold CMS's determination to assess a civil money penalty against Petitioner for its failure to comply substantially with four requirements of participation in Medicare; however, I conclude that only CMS's imposition of a civil money penalty in the amount of $3,050 per day for the period December 15, 2000 through January 8, 2001 is authorized and reasonable, the civil money penalty imposed in the amount of $500 per day for the period January 9, 2001 through January 31, 2001 is reversed.

Alfonso J. Montano

Administrative Law Judge