SUBJECT:

Estes Nursing Facility Civic Center,

Petitioner,

Centers for Medicare & Medicaid Services.

DECISION

I decide that the preponderance of the evidence establishes that Petitioner, Estes Nursing Facility Civic Center, complied with Medicare participation requirements. Consequently, the Centers for Medicare & Medicaid Services (CMS) is not authorized to impose remedies against Petitioner.

I. Background

Petitioner is a skilled nursing facility in Birmingham, Alabama. It participates in the Medicare program. Its participation is governed by sections 1819 and 1866 of the Social Security Act (Act) and by regulations at 42 C.F.R. Parts 483 and 488.

Petitioner was surveyed for compliance with Medicare participation requirements in a survey that extended from April 22, 2003, until its completion on May 5, 2003 (the survey). CMS determined, based on the survey findings, that Petitioner failed to comply with Medicare participation requirements. Ultimately, it determined that Petitioner's noncompliance between April 20, and April 24, 2003, was so egregious as to constitute immediate jeopardy to the lives and health of Petitioner's residents. CMS determined that Petitioner remained noncompliant between April 25, and May 10, 2003, albeit at a level of noncompliance that was less severe than immediate jeopardy. CMS determined to impose remedies against Petitioner, consisting of civil money penalties in the amount of $5,000 per day for each day of the April 20 - April 24, 2003 period and civil money penalties in the amount of $300 per day for each day of the April 25 - May 10, 2003 period.

Petitioner requested a hearing and the case was assigned to me for a hearing and a decision. I held an in-person hearing in Birmingham, Alabama on June 15, 2004. At this hearing I received the parties' testimony and exhibits. From CMS I received into evidence exhibits consisting of CMS Exhibits (Exs.) 1-52, and CMS Exs. 54-70. I received into evidence Petitioner's Exhibits (P. Exs.) 1-30.

II. Issues, findings of fact and conclusions of law

A. Issues

The issue that I decide in this case is whether Petitioner complied with Medicare participation requirements between April 20, and May 10, 2003. There are several additional issues that might be heard and decided in this case contingent on my findings on the compliance issue. If Petitioner failed to comply with participation requirements, then remaining issues would include: the duration of any deficiencies manifested by Petitioner; the scope and severity of those deficiencies, including whether some or all of them may have been at the immediate jeopardy level for a portion of the period; and whether remedies that CMS determined to impose are reasonable. However, none of these additional issues are present if I decide the issue of compliance in favor of Petitioner. In this case I conclude that the preponderance of the evidence supports Petitioner's assertion that it complied with participation requirements during the April 20 - May 10, 2003 period. Consequently, I do not address the additional contingent issues.

B. Findings of fact and conclusions of law

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

1. The preponderance of the evidence establishes that Petitioner complied with participation requirements.

CMS contends that Petitioner failed to comply with two participation requirements. CMS Ex. 1, at 1-11. The first of these requires Petitioner to ensure that its residents' environment remain as free of accident hazards as is possible. 42 C.F.R. � 483.25(h)(1); CMS Ex. 1, at 1-10. The second obligates Petitioner to be administered in a manner that enables it to use its resources to effectively maintain the highest practicable physical, mental and psychosocial well-being of each of its residents. 42 C.F.R. � 483.75; CMS Ex. 1, at 10-11. I find that Petitioner complied with both of these requirements.

a. Petitioner ensured that its residents' environment remained as free of accident hazards as is possible.

A skilled nursing facility must take all reasonable steps to protect its residents against foreseeable accident hazards. 42 C.F.R. � 483.25(h)(1). The facility must address known hazards and must also address hazards that it should know about. The regulation obligates a facility to ensure that any steps it takes to protect a resident or residents are effective.

However, a facility's duty to protect its residents is not one of strict liability. The fact that an accident or injury occurs at a facility is insufficient in and of itself to find the facility deficient. The occurrence of an accident or an injury to a resident is not a necessary predicate to a finding of noncompliance with the regulation. The regulation addresses accident hazards. A hazard may be present at a facility even if no accident occurs. And conversely, an accident may not by itself be sufficient to prove a failure by a facility to address the cause of that accident if the cause is one that the facility did not anticipate or should have anticipated. However, where an accident does occur to a resident, resulting in an allegation that the facility failed adequately to protect the resident, a rule of reason must be used to resolve that allegation. Was the accident reasonably foreseeable? Did the facility take adequate steps to protect the resident?

CMS's assertion that Petitioner failed to protect its residents against accident hazards centers on the alleged failure of Petitioner to assure that its windows could not be used by residents as an avenue for elopement from Petitioner's facility. CMS asserts that the windows could be an avenue for elopement when opened sufficiently, that Petitioner recognized the problem and adopted a measure to address it, but that Petitioner then failed to take adequate steps to assure that the measure was implemented. The consequence of this alleged failure of implementation, according to CMS, is that a resident suffering from dementia and depression, identified as Resident #1, opened a window on the second floor of Petitioner's facility, eloped through it, and fell to her death.

Petitioner disputes these assertions. It acknowledges that it knew that its windows posed an elopement hazard, but it contends that it implemented a measure that protected reasonably against elopement. It asserts that the events causing Resident #1's death were unforeseeable and, consequently, not a basis for finding that Petitioner failed adequately to protect its residents against accident hazards.

The weight of the evidence in this case supports a finding that Petitioner identified and addressed foreseeable hazards to residents caused by its windows. The events resulting in the death of Resident #1 occurred despite the reasonable actions taken by Petitioner and were not foreseeable. Consequently, Petitioner may not be found to have failed to discharge the duty that 42 C.F.R. � 483.25(h)(1) imposed on it.

Petitioner cares for residents who present a risk for elopement. Its resident roster includes individuals who are demented. P. Ex. 26, at 4. The disorientation that comes with dementia can create a level of confusion in a resident that may lead to an elopement attempt. Transcript (Tr.) at 37-38. Petitioner knew that there were elopement risks among its resident population. At least 10 of Petitioner's residents were wearing wander guards in April 2003. Tr. at 112; CMS Ex. 39, at 1; P. Ex. 16, at 6. A wander guard is a bracelet which triggers an audible alarm when the wearer of that bracelet exits designated premises. Tr. at 112; P. Ex. 16, at 6.

Resident #1 was one of the residents who was at risk to elope. She was admitted to Petitioner's facility on April 18, 2003, after a brief hospital stay in which she was treated for depression. P. Ex. 1, at 63. Her admitting diagnoses included dementia and depression. CMS Ex. 10, at 2-3, 5-6, 8-11; CMS Ex. 11, at 1-3; CMS Ex. 16, at 1. The resident was ambulatory, and hence, physically capable of eloping. Petitioner's staff recognized the risk for elopement by Resident #1 and noted that risk in the resident's initial plan of care. CMS Ex. 5, at 3; CMS Ex. 7, at 1.

Windows in Petitioner's facility are a potential hazard for resident elopement. Resident rooms in Petitioner's facility are equipped with windows that are located about three feet above floor level. The panes of these windows are fitted onto a track and the panes may be opened by sliding them horizontally. P. Ex. 27, at 2-3. It is possible to slide a pane sufficiently, if no restriction on its opening is imposed, to create an opening of at least 16 inches. P. Ex. 22, at 1.

Petitioner recognized that its windows posed a potential hazard for elopement and took steps to address the problem. In or about 2000, a member of its management served on the Alabama Nursing Home Association Committee for Physical Plant and Life Safety Codes (Committee). At that time the Committee successfully convinced the Alabama Department of Health to permit nursing homes to restrict the size of window openings so long as the windows remained operable. P. Ex. 22, at 1-2. ⁽¹⁾ After that meeting Petitioner fitted its window tracks with sheet metal stop screws. Id. at 2. The purpose of the stop screw was to limit the distance that a pane in any of Petitioner's windows would slide horizontally, so that no window would open more than a few inches. Id. With ordinary use the screws worked consistent with their purpose and limited the distance that Petitioner's windows could be opened to about six to eight inches. Id.x

Petitioner's staff routinely checked the stop screws to assure that they were performing their intended function of limiting the extent to which windows could be opened. Petitioner's policy was to require its housekeeping staff to check the screws daily to make sure that they were in place. Tr. at 133. The staff did so as part of their daily tasks, which included cleaning the window tracks. P. Ex. 19, at 1-2. Petitioner's housekeeping department head-checked window screws in six or seven rooms per morning. P. Ex. 19, at 1. Additionally, Petitioner's maintenance supervisor performed monthly safety rounds which included checking window blinds, screens, and stop screws. P. Ex. 18, at 2. Petitioner performed safety checks in April 2003, prior to the elopement incident which triggered CMS's remedy determination in this case. Id.; P. Ex. 13.

I find that there is nothing in the record of this case which I have discussed thus far to show that Petitioner dealt inappropriately with the potential elopement problem caused by its windows prior to the incident that is the basis for CMS's remedy determination. To the contrary, the record summarized above establishes that Petitioner acted reasonably and responsibly to identify a risk which it had identified.

Does additional evidence relating to the incident involving Resident #1 show that Petitioner either failed to identify a hazard that was unique to the resident that it knew or should have known about but failed to address? Or, does the evidence relating to the incident show something which, in hindsight, establishes that Petitioner either failed to address reasonably the possibility that a resident might elope through a window or failed to implement the measures it took to address that possibility? I do not find that it does.

First, there was nothing about Resident #1 which should have motivated Petitioner to take measures to protect the resident that went above and beyond the measures that Petitioner took generally to protect all of its demented residents. In particular, there is nothing in the record to suggest that the resident needed to be watched continuously, or restrained in some way to prevent a possible elopement. Furthermore, the general measures that Petitioner undertook to prevent elopements were more than adequate to deal with Resident #1 based on the resident's medical history and her condition when she came to Petitioner's facility.

As I discussed above, Resident #1 was a demented individual with a history of depression who was transferred to Petitioner's facility after a hospital stay to address her psychiatric problems. Petitioner's staff preliminarily assessed the resident to be a potential elopement risk. They housed the resident in a room on the second floor of Petitioner's facility.

The staff's conclusion that the resident posed a potential for eloping was a preliminary and cautionary reaction to the resident's diagnoses of dementia and depression and not to anything in the resident's recent history that showed her to be an unusual elopement risk. There was nothing in the resident's hospital record that depicted elopement attempts or wandering behavior. P. Ex. 16, at 4. Nor did the resident's hospital record identify her to be a "sundowner," a demented individual whose activity levels increased in the evening. Id.; P. Ex. 1, at 47-65. The resident's psychiatrist, who had treated the resident for three years, did not recommend after her hospitalization that the resident be transferred from the hospital to a skilled nursing facility with a special dementia unit, nor did the psychiatrist identify special precautions that needed to implemented by Petitioner's staff to provide monitoring or other safeguards above and beyond what normally would be utilized by a facility in caring for any demented resident. P. Ex. 16, at 4-5.

Moreover, there was nothing about the resident's behavior during the short period that she resided in Petitioner's facility that would have put Petitioner's staff on notice that extraordinary precautions needed to be implemented in order to protect the resident. Upon admission to the facility on April 18, 2003, the resident did not present any outward signs of depression. P. Ex. 1, at 6; P. Ex. 25, at 2. The resident did not express a desire to leave the facility. P. Ex. 25, at 2; Tr. at 72-73. The resident was interviewed by Petitioner's nursing staff, a speech-language therapist, and a nutritionist. Aside from an observation by the nursing staff that the resident had a depressed expression, there was nothing observed about the resident to show that the resident was depressed. P. Ex. 1, at 12. Nothing specific about the resident's appearance or behavior was observed that suggested that the resident was an extraordinary risk to elope. CMS's expert witness, Dr. Larry E. Tune, who is Chief of Geriatric Psychiatry at Wesley Woods Hospital in Atlanta, Georgia, testified that:

there was no evidence that . . . [the resident] was morbidly depressed, about to hurl herself out the window, or anything like that.

Tr. at 65.

Absent signs that Resident #1 posed an unusually high risk for elopement the burden on Petitioner was to provide the resident with the same protections that it would be obligated to provide any new resident with a history of dementia and depression. Dr. Tune testified persuasively that these protections consisted of making sure that the resident could not elope the premise through an unlocked door or a window. CMS Ex. 64, at 5. In his words what was needed was:

a facility in which all exit doors are secured, thus preventing a resident from eloping through a doorway; and a facility in which all windows are secured, thereby preventing elopement through a window.

Id.

Petitioner implemented these precautions with Resident #1 and with its demented residents. The lateral movement of the window in the resident's room was limited by a stop screw, as was true of all of the windows in Petitioner's facility. The doors to Petitioner's facility have delayed access via keypads which provide a 30-second delayed egress. P. Ex. 16, at 6; Tr. at 112. These doors discourage residents from attempting to leave the facility. Additionally, Petitioner installed security cameras inside and outside of its building with monitors at its nurses' stations and has a security guard on premises at night. Tr. at 56.

CMS argues that Petitioner should have done more to protect Resident #1 and other demented residents by putting them in a locked unit. But, there is nothing in the resident's treatment records to suggest that anyone thought that the resident needed this type of security. The resident's treating psychiatrist did not order or recommend such special precautions. And CMS has not offered treatment records of other residents at Petitioner's facility to show that they were receiving less protection than was prescribed for them or was indicated by their behavior. Furthermore, there is no evidence that Resident #1 ever attempted to elope through a doorway.

Second, the evidence relating to Resident #1's accidental death on April 20, 2003, does not show that Petitioner failed to address foreseeable problems with its security and, in particular, with the way in which it restricted the opening of its windows.

On the night of April 20, 2003, Resident #1 fell to her death through the window in her room. A nurse checked on the resident shortly after 11 p.m. on that evening and observed that the resident appeared to be asleep. P. Ex. 24, at 1. However, at about 11:35 p.m., Petitioner's security guard notified the staff that the resident was lying on the ground outside of the facility and had apparently fallen from a window on the second floor. P. Ex. 26, at 1. Resident #1 was pronounced dead shortly thereafter. Id.

The resident's room was examined at about 1:30 a.m. on the morning of April 21, 2003. P. Ex. 22, at 1. The window was observed to be open to a width of about 16 inches. Id. The window screen was pushed out and there was a step stool with a metal frame under the window. P. Ex. 9; P. Ex. 11; P. Ex. 22, at 2. The head of the sheet metal screw that had been installed to restrict the range of movement of the window pane was found in the window's track. P. Ex. 22, at 2. The screw's head had been sheered off flush with the window track, leaving the shaft of the screw still screwed into the track. Id.

I infer from this evidence that Resident #1 managed to force open the window of her room and climb through the opening, thereby falling to her death. I also infer that the resident was able to push the window pane against the sheet metal screw with sufficient force to break off the head of the screw, thereby enabling the pane to slide a distance of 16 inches. How the resident accomplished this is open to speculation. Possibly, the resident used the leg of the stool as a lever to magnify the force she exerted against the pane. Tr. at 131-132; P. Ex. 27, at 3. It is possible that the resident repeatedly struck the head of the screw with the edge of the frame holding the pane until the head of the screw broke off. Tr. at 134. It is certainly also within the realm of possibility that the screw had a hidden structural weakness which allowed the head to be broken off with less force than would otherwise be necessary.

As I discussed above there was nothing about Resident #1's history or demeanor prior to the evening of April 20, that would suggest that she was likely to attempt to elope through the window of her room. And, although the resident was a risk for elopement, as with any newly admitted demented resident, there was nothing about the resident's history that suggested a need for Petitioner to use precautions which exceeded that which it used normally to protect its demented residents against elopement.

Nor do I find to be reasonably foreseeable the two methods by which the resident may have forced open the window. Although the resident's success in forcing open the window proves that it was possible to break off the head of the restraining screw by force it does not suggest that the resident's success was reasonably foreseeable. The facility had never experienced a similar event. The stop screws were designed to prevent windows from being opened sufficiently to permit elopement, and the record shows that, up until the night of April 20, 2003, they were a successful innovation on Petitioner's part. The screws were six sided sheet metal screws with a tensile strength in excess of 150 pounds, meaning that they should resist all but the most forceful efforts to overwhelm them. Tr. at 133.

Moreover, the facility's obligation under 42 C.F.R. � 483.25(h)(1) was not to create a perfectly elopement proof environment for its residents. Putting aside the question of whether the Life Safety Code would have permitted certain actions, it is certainly conceivable that Petitioner could have made its facility more secure against possible elopements by putting bars on its windows, by sealing its windows shut, or by putting its residents in windowless rooms. But the regulation does not require that a facility be turned into a prison in order to prevent elopements. Petitioner's obligation was to take reasonable precautions against possible elopement consistent with its additional obligation to provide residents with a comfortable and homelike environment. Putting stop screws on the windows was a reasonable approach for dealing with the problem posed by the possibility that a window could be opened sufficiently to permit elopement.

I also find that, prior to the incident of April 20, 2003, there had been nothing to alert Petitioner to the possibility that its sheet metal screws could be defeated by force or that one or more of them might have a hidden defect. The screws had worked effectively for several years prior to that night and its maintenance staff checked them regularly to make sure that they were effective.

CMS asserts additional evidence to support its argument that Petitioner's protections were ineffective. When a surveyor visited the facility after the April 20, 2003 incident she discovered that the panes on some of the windows were loose to the extent that they could be lifted over the stop screws, thereby permitting the panes to travel their full and unrestricted range. CMS Exs. 35, 65.

I do not find that this evidence supports a conclusion that Petitioner inadequately protected its residents. The surveyor established that it was possible in some instances to defeat the stop screws by lifting window panes over the screws. But CMS offered no evidence to show that it was reasonably foreseeable that a resident would know how to do what the surveyor did or be able to do it. As Petitioner asserts, no resident had ever lifted a pane over a screw, and Resident #1's elopement was not accomplished by doing that. I note that Petitioner's witnesses averred, without contradiction, that it required some force for the surveyor to succeed in lifting a pane over the stop screw. P. Ex. 18, at 2-3; P. Ex. 22, at 2; P. Ex. 26, at 2-3; P. Ex. 27, at 3.

Indeed, there certainly were several ways in which a resident could have defeated the stop screws. It is established that Resident #1 managed to break off the head of a stop screw. Lifting a pane over a stop screw was another possibility. A third, and obvious, possibility was that a resident could hurl an object against or strike a pane with sufficient force to shatter it, thereby permitting an elopement. In fact, the only way that Petitioner could have prevented elopement through a window to an absolute degree of certainty would be either to eliminate the window altogether or to put bars over it. But, as I discuss above, Petitioner's duty was not to make its facility elopement proof but to take reasonable steps to protect its residents. I conclude that Petitioner did just that by limiting the range of travel of its windows with stop screws.

Finally, CMS argues that improvements installed by Petitioner after April 20, 2003, to prevent elopements through its facility's windows are evidence that the previous arrangement of stop screws was a foreseeable hazard. The record shows that, by Friday, April 25, 2003, Petitioner's staff installed an aluminum angle piece in each of its windows that prevented a pane from being lifted from its track. P. Ex. 27, at 3. Petitioner's staff also installed larger stop screws at the top and bottom of its windows to prevent a repetition of the incident involving Resident #1.

The improvements installed by Petitioner show that Petitioner did what a responsible facility should do. It installed these improvements to address evidence that showed that its previously installed stop screws could be defeated. However, the fact that it learned from and reacted to the events of April 20, 2003, does not mean that Petitioner should have foreseen the flaws in its system that were exposed on that date. It is easy to assert from the vantage point of hindsight that Petitioner should have known that its stop screw system could be defeated by a determined resident. But that outcome was not reasonably foreseeable prior to the event and Petitioner's subsequent improvements to its system do not change that conclusion.

b. There is no basis to conclude that Petitioner was administered ineffectively.

CMS's allegations that Petitioner's facility was not administered effectively, in contravention of 42 C.F.R. � 483.75, derive first, from the allegations that Petitioner failed adequately to protect its residents against hazards. CMS Ex. 1, at 10-11. Additionally, CMS asserts that inadequate administration may be found in Petitioner's alleged failure to assess Resident #1's mental status and to assure that all of its staff knew that the resident was a transfer from a psychiatric unit. Finally, CMS contends that Petitioner failed to provide the resident with specific interventions to address the resident's mental problems, thereby showing that Petitioner was inadequately administered.

I find that the preponderance of the evidence establishes no basis to conclude that Petitioner was administered ineffectively. The evidence refutes the specific allegations of ineffective administration that CMS made in this case.

The lion's share of CMS's allegations about Petitioner's administration derive from its allegations that Petitioner failed adequately to protect its residents against hazards. I have addressed these allegations at subpart (a) of this Finding and I find that the preponderance of the evidence does not support them. CMS failed to address the additional assertions of poor administration (alleged failure to assess the resident's mental status and alleged failure to provide the resident with specific interventions) in its post-hearing brief and it seems that CMS is not now relying on them to make its case about Petitioner's allegedly poor administration. CMS's post-hearing brief at 13.

But even if CMS had not surrendered these additional assertions the weight of the evidence does not support them. It is important to remember that Resident #1 resided at Petitioner's facility for only two days prior to her elopement and death. Petitioner did not have the time, nor was it obligated by regulation, to perform the in depth assessment and care planning that a facility must perform for each new resident. The steps that Petitioner took to address Petitioner's problems were, rightfully, preliminary. Having said that, however, it is evident from the record that Petitioner did address the resident's mental status. Petitioner's preliminary assessment of the resident and care plan identified the resident's mental condition and contained specific interventions intended to deal with that condition. P. Ex. 1, at 22-29. The care plan clearly put Petitioner's staff on notice of the resident's condition and problems.

2. CMS is not authorized to impose remedies against Petitioner.

The remedy determinations made by CMS in this case are premised on the findings of noncompliance made at the survey. I have found that the preponderance of the evidence establishes that, in fact, Petitioner was complying with participation requirements. Consequently, there is no basis for CMS to impose remedies against Petitioner.

Steven T. Kessel

Administrative Law Judge

1. The State regulations then in effect were based on a provision of the 1985 Life Safety Code which required that nursing home windows be "operable," meaning that they had to open. P. Ex. 22, at 1.