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Department of Health and Human Services DEPARTMENTAL APPEALS BOARD Civil Remedies Division |
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Snyder's Vaughn-Haven, Petitioner, |
DATE: July 06, 2006 |
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Centers for Medicare & Medicaid Services.
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Docket No.C-05-238 Decision No. CR1468 |
| DECISION | |
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DECISION This case came before me pursuant to a request for hearing filed by Petitioner, Snyder's Vaughn-Haven, on March 16, 2005. (1) I. Background On February 25, 2005, the Centers for Medicare & Medicaid Services (CMS) informed Petitioner that it was imposing a per instance Civil Money Penalty (CMP) in the amount of $3,050 pursuant to an abbreviated standard survey completed on January 7, 2005, by the Illinois Department of Public Health (IDPH). As a result of the January 7, 2005 survey, IDPH cited Petitioner with noncompliance at the immediate jeopardy level. CMS Ex. 2, at 7. On August 22, 2005, CMS filed a motion for summary judgment accompanied by a brief and 7 exhibits. These exhibits have been admitted into the record without objection as CMS Exhibits 1-7 (CMS Exs. 1-7). Petitioner submitted a reply brief in opposition to summary judgment on November 7, 2005, accompanied by 4 proposed exhibits. These have admitted into the record without objection as Petitioner Exhibits 1-4 (P. Exs. 1-4). (2) On November 17, 2005, Petitioner requested leave to supplement its response to CMS's motion for summary judgment. I issued an Order granting Petitioner's motion on December 1, 2005, over objection by CMS. CMS filed a response to Petitioner's reply brief on November 23, 2005. Based on the affidavits, other documentary evidence, the written arguments of the parties, and the applicable law and regulations, I find that, on December 17, 2004, Petitioner was not in substantial compliance with Medicare/Medicaid participation requirements and that this noncompliance was at the immediate jeopardy level. II. Applicable Law and Regulations Petitioner is 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 remedies of CMPs and denial of payment for new admissions against a long-term care facility for failure to comply substantially with participation requirements. Pursuant to the Act, the Secretary of HHS 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. The applicable regulations at 42 C.F.R. Part 488 provide that facilities which participate in Medicare may be surveyed on behalf of CMS by State survey agencies in order to ascertain whether the facilities are complying with 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. Under Part 488, a State or CMS may impose a CMP against a long-term care facility where a State survey agency ascertains that the facility is not complying substantially with participation requirements. 42 C.F.R. �� 488.406, 488.408, and 488.430. The penalty may start accruing as early as the date that the facility was first out of compliance until the date substantial compliance is achieved or the provider agreement is terminated. 42 C.F.R. � 488.440. The regulations specify that CMS may impose a CMP for an instance of noncompliance in the range of from $1,000 to $10,000. 42 C.F.R � 488.438(a)(2). A per instance CMP may be imposed regardless of whether or not the deficiencies constitute immediate jeopardy. 42 C.F.R. � 488.430(a). The regulations define the term "substantial compliance" to mean:
42 C.F.R � 488.301. "Immediate jeopardy" is defined to mean:
The Act and regulations make a hearing available before an administrative law judge (ALJ) to a long-term facility against which CMS has determined to impose a CMP. But the scope of such hearings is limited to whether an "initial determination" made by CMS is correct. Act, section 1128A(c)(2); 42 C.F.R. �� 488.408(g), 498.3(b)(12) and (13). The hearing before an ALJ is a de novo proceeding. Anesthesiologists Affiliated, et al, DAB CR65 (1990), aff'd, 941 F.2d 678 (8th Cir. 1991). III. Issues, Findings, and Discussion
1. Whether the facility was complying substantially with federal participation requirements on December 17, 2004; and 2. Whether the amount of the penalty imposed is reasonable, if noncompliance is established.
CMS contends that Petitioner failed to comply with the requirement at 42 C.F.R. � 483.25(h)(2) with respect to adequate supervision and assistance devices. According to CMS, the survey completed on January 7, 2005, revealed that Petitioner's facility failed to reapply a personal alarm bracelet to Resident 1 (R1) after he was readmitted from the hospital. The facility also failed to have a system in place to monitor alarmed exit doors. As a result of Petitioner's noncompliance, R1 exited the facility unsupervised and unnoticed by staff on the evening of December 17, 2004. He was found approximately 105 feet beyond the facility property and inside a parked vehicle. CMS Ex. 1, at 3. Petitioner contends that there are genuine issues of material fact in dispute. Petitioner argues first that a genuine issue of material fact exists as to whether Petitioner substantially complied with 42 C.F.R. � 483.25(h)(2). Second, Petitioner contends that a genuine issue of material fact exists as to whether R1's elopement on December 17, 2004 was reasonably foreseeable. Third, it is Petitioner's position that a genuine issue of material fact exists as to whether Petitioner's alleged noncompliance with 42 C.F.R. � 483.25(h)(2) posed an immediate jeopardy to resident health and safety.
I make the findings of fact and conclusions of law (Findings) set forth below to support my decision in this case. I discuss each finding in detail.
CMS contends that there are no material issues of fact in controversy and that this case may be disposed of by way of summary judgment without the need for an in person hearing. It is Petitioner's position that a genuine issue of material fact exists with respect to whether the facility was in substantial compliance. Unless the parties have raised a genuine issue of material fact, I may decide this 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); Fed. R. Civ. P. 56 (summary judgment is appropriate when there is no genuine issue as to any material fact and the proponent is entitled to judgment as a matter of law). The Departmental Appeals Board recently reiterated in Livingston Care Center that:
DAB No. 1871, at 6. In attempting to defeat a motion for summary judgment, a party may not rely on the denials of its pleadings, but is required to tender evidence of specific facts in the form of affidavits and/or other admissible documentary evidence, in support of its contention that a dispute exists. Crestview, DAB No. 1836, at 6 (citing Matsushita Elec. Ind. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 n.11 (1986)). Where a petitioner raises a factual dispute, an ALJ determines whether the facts are material by resolving all factual disputes in favor of the non-moving party (here, Petitioner). If the ALJ has resolved all the factual disputes in favor of the petitioner, and nevertheless finds that CMS has established lack of substantial compliance justifying the penalties imposed, then the disputed facts are not material and CMS is entitled to summary judgment. (3) As discussed in more detail below, after resolving all factual disputes in favor of Petitioner in the present case, I have nevertheless concluded that CMS has shown that Petitioner was not in substantial compliance with Medicare participation requirements. Therefore, CMS is entitled to summary judgment.
The undisputed facts of this case reveal that R1 was admitted to Petitioner's facility in December 2003. CMS Ex. 5, at 1. On admission, he was found not oriented as to time and place. Id. at 13. On December 31, 2003, it was noted that R1 got up out of his wheelchair and walked out of the bathroom and ambulated into the hallway, refusing to return to his room. (4) Id. As a result of the resident's proclivity to wander, a code alert bracelet was applied on that date. Id. His bed was also equipped with an alarm. Id. Notwithstanding those measures, on January 7, 2004 at 6:45 p.m., the resident was able to exit the facility and go out to the sidewalk. Id. at 14. The Resident Assessment Protocols (RAPs) of June 28, 2004 and September 25, 2004 reiterated the behavior that had justified the use of the code alert bracelet. Specifically, these assessments contained the following findings regarding R1's behavior:
CMS Ex. 5, at 5, 8. An entry in the nurses notes dated December 6, 2004, shows that R1 was in need of assistance for activities of daily living, and ambulated with a slow, steady gait that at times was wobbly. He continued to wander throughout the hallways and was confused. Id. at 16. R1 was admitted to the hospital on December 9, 2004 for renal insufficiency and septicemia. Id. at 11. See also P. Ex. 2, � 4. He was discharged to Petitioner's facility on December 13, 2004. CMS Ex. 5, at 11, 17. The assessment on the Minimum Data Set prepared after his readmission to Petitioner's facility reflects that R1 exhibited wandering behavior defined as moving with no rational purpose, seemingly oblivious to needs or safety. Id. at 39. This assessment is consistent with entries in the nurses notes for December 13 and 14, 2004, indicating that, after discharge from the hospital, R1was restless and combative and he wandered in the hallways. Id. at 18. On December 17, 2004, facility staff noted that R1 was missing. Id. at 19. Although the nurses notes state that a family member found the resident inside a car on a street near the facility, he was in fact found by a visitor who happened to be visiting his wife. The visitor gave the following account:
CMS Ex. 1, at 5. See also CMS Ex. 7, �� 46-50. Petitioner contends that a genuine issue of material facts exists as to whether R1 was required to wear a code alert bracelet at all times, and whether it was foreseeable that R1 was capable of leaving the facility following his return from the hospital. The basis for this position stems from a comparison of events prior to the resident's hospitalization on December 9, 2004, and after his return on December 13, 2004. P. Brief (Br.) at 3. In summarizing the history of R1's behavior prior to and after the hospitalization, Petitioner asserts the following:
P. Br. at 4. Petitioner attempts to draw a contrast between the resident's condition before the December 9, 2004 hospitalization and his condition after discharge from the hospital on December 13, 2004. The purpose of that contrast is to support the contention that R1 was deemed too frail and unsteady to constitute an elopement risk after his discharge from the hospital. As a result, reasons Petitioner, neither the code alert bracelet nor other elopement prevention measures were necessary. Even if R1's condition had deteriorated, however, that fact is immaterial because continuing through the date of his elopement, his care plan called for the code alert bracelet to be worn. The RAP for R1 dated January 4, 2004 (shortly after R1 was first admitted to the facility) notes that R1 wanders. CMS Ex. 5, at 3. The RAP goes on to state: "[R1] wears a code alert bracelet due to possible elopement." Id. Petitioner does not dispute that R1's care plan called for him to wear a code alert bracelet. The affidavit of Dianne Snyder, Petitioner's Director of Nursing (DON), admits as much. In the affidavit, the DON states that, prior to R1's elopement on December 17, 2004, facility staff was "in the process of developing a revised care plan" which would have eliminated the code alert bracelet. P. Ex. 2, � 22. Accepting this statement as true, it is nevertheless immaterial, because it implicitly admits that the care plan in effect on December 17 required that R1 wear the code alert bracelet. It is also undisputed that R1 was not wearing the required code alert bracelet when he eloped. The Departmental Appeals Board (Board) has previously upheld deficiency findings under 42 C.F.R. � 483.25 based on a facility's failure to follow its plan of care since "[a] care plan is based on a facility's assessment of a resident's needs and represents an interdisciplinary team's best judgment of the services required for the resident, including services required under section 483.25." Coquina Center, DAB No.1860, at 21 (2002), citing Cherrywood Nursing and Living Center, DAB No. 1845, at 8 (2002); Crestview Parke Care Center, DAB No. 1836 (2002); Asbury Center at Johnson City, DAB No. 1815 (2002). As the Board recently observed, the fact that a resident may not suffer actual harm "in no way addresses the facility's failure to implement measures which the facility itself identified as important to ensuring the resident's safety and care." Cal Turner Extended Care Pavilion, DAB No. 2030, at 17 (2006). The reasoning of the Board in the cited cases involving 42 C.F.R. � 483.25 is equally applicable to the deficiency in the present case under 42 C.F.R. � 483.25(h)(2). Here, the facility had determined that R1 needed to wear a code alert bracelet to safeguard him against eloping. Therefore, the undisputed fact that R1 was not wearing the code alert bracelet that was required by his care plan is a sufficient basis, without more, to justify a deficiency citation under 42 C.F.R. � 483.25(h)(2). Petitioner argues that the explanation in its response and affidavit, as to why R1 was not wearing a code alert bracelet on the day of his elopement, suffices to create a genuine issue of material fact. Petitioner's Supplement to its Response, at 2-3. CMS may discount those reasons, states Petitioner, but that does not clear the way for making credibility determinations nor weighing the evidence at this stage of the proceedings. Id. The thrust of Petitioner's argument has its foundation in Crestview Parke Care Center v. Thompson, 373 F.3d 743 (6th Cir. 2004). In Crestview, the Court of Appeals for the 6th Circuit concluded that the regulation at 42 C.F.R. � 483.25 is not a strict liability regulation, but rather intimates that it is possible for Petitioner to show that there was justifiable reason for failing to adhere to a comprehensive care plan. The Court also stated, however, that a facility
373 F.3d at 751-52 (emphasis added). The DON's assertion in her affidavit that, prior to the resident's elopement, the facility was planning on eliminating the code alert bracelet from R1's care plan is not the well-reasoned re-working of the care plan that the Court in Crestview had in mind. Although Petitioner argues that a change in R1's condition justified the failure to follow his care plan, Petitioner's facility did not re-work the resident's care plan prior to the elopement. Instead, contrary to the Court's reasoning in Crestview, Petitioner is attempting to re-work the care plan for litigation purposes before me now. Petitioner's argument is insufficient to create a dispute as to a material fact. Petitioner also maintains that a genuine issue of material fact exists as to whether R1's elopement on December 17, 2004 was reasonably foreseeable, due to his weakened physical condition. As I have just explained, Petitioner's failure to follow R1's care plan is a sufficient basis to support summary judgment in CMS's favor. Thus, even if there were a dispute as to the foreseeability of R1's eloping on December 17, it would be immaterial, as it would not change the outcome of this decision. Moreover, in my view, Petitioner has not raised a genuine dispute as to R1's changed condition. This is because the affidavit of Petitioner's DON, while attempting to explain why R1 was no longer an elopement risk, acknowledges that he continued to exhibit the same behaviors that put him at risk for elopement. For example, as noted above, it was R1's propensity to wander that was a key consideration in assessing him as at risk for elopement. See CMS Ex. 5, at 3. Petitioner's DON acknowledges that R1 continued to wander, even after the December 9 hospitalization. P. Ex. 2, � 7. The DON notes, however, that R1 did not exhibit "exit seeking behaviors." Id. R1's wandering was not a departure from his behavior prior to hospitalization, and was the same behavior that the facility considered in applying a code alert bracelet to the resident because he was considered an elopement risk. Of course, R1 was not seeking exits because he wanted to leave the facility. The record reflects that he was at risk to exit the nursing home because of restlessness, wandering behavior, and confused state and not due to "exit seeking behavior." By definition, a wandering resident moves "with no rational purpose, seemingly oblivious to needs or safety." CMS Ex. 5, at 39. Significantly, after his readmission to Petitioner's facility, on December 13 and 14, 2004, R1 was noted to be restless, combative, wandering in the halls, and refusing to go to bed. CMS Ex. 5, at 18. The DON also notes that R1 was given a "merry walker" for ambulation. P. Ex. 2, � 6. This observation appears intended to leave the impression that R1 needed the merry walker because of his weakened state after hospitalization. However, as has been stated above, R1 had been given the "merry walker" for ambulation in early January 2004. CMS Ex. 1, at 4; CMS Ex. 7, at 5. Additionally, although Petitioner asserts that, after his hospitalization, R1's physical decline made him dependent on staff for all daily activities (P. Br. at 4; P. Ex. 2, � 6), his condition in that respect is not noticeably different than it had been prior to December 9, 2004. The nurses notes dated December 6 show that R1 was in need of assistance for activities of daily living, and ambulated with a slow, steady gait that at times was wobbly. CMS Ex. 5, at 16. Additionally, Petitioner also points to a fall experienced by R1 on December 16, 2004 as an indication of his weakened state. See P. Ex. 2, � 10. However, prior to being admitted to the hospital on December 9, 2004, the resident had been assessed as being at risk for falls due to a history of falls. CMS Ex. 5, at 5. Additionally, the physical therapy evaluation dated December 13, 2004, shows that, although R1 exhibited muscle weakness, and appeared exhausted, he could ambulate with only 5% assistance in his walker. CMS Ex. 5, at 11; P. Ex. 4. From the foregoing, I conclude that there is no dispute that is both genuine and material as to the facts surrounding R1's physical condition after his return to the facility. Petitioner attempts to raise a dispute as to the interpretation to be given these facts. Nevertheless, even if I were to conclude that R1's physical condition did decline, such a deterioration in the face of his continued wandering, restlessness, and combativeness should, if anything, have created a greater degree of awareness in the facility staff, rather than suggesting that fewer interventions were warranted. Indeed, because the resident was afflicted with dementia and assessed as confused, withdrawn, and having poor safety awareness, Petitioner had every reason to conclude not only that he was still an elopement risk, but that if he did elope, he was likely to suffer serious injury or harm because of his deteriorated physical condition and his cognitive deficits. It is significant to my analysis that, as was the case with the code alert bracelet, Petitioner does not assert that R1's care plan was revised to reflect that he was no longer considered an elopement risk, nor does Petitioner point to any contemporaneous documentation indicating that R1 had ceased to be at risk of elopement. From the preceding discussion it is evident that the behavior that formed the basis for assessing R1 as an elopement risk in January 2004 persisted throughout the intervening period until he eloped on December 17, 2004. Petitioner knew or should have known that R1's restlessness, wandering, and confusion made him oblivious to his own needs or safety. In his confused state, and with his restless proclivity to wander aimlessly, the facility should have foreseen that if the opportunity arose, the resident would exit the building. Thus, the evidence is unequivocal, that from the moment of R1's elopement in January 2004, until his elopement in December 2004, he displayed behavior that made him a risk for leaving the facility unsupervised. Of course, the facility did not know on what particular day the resident would attempt to elope, but the facility knew or should have known, from its own assessment, that R1 could elope at any moment. From January 7, 2004 until December 9, 2004, when he was admitted to the hospital, the facility implemented and applied interventions to prevent R1's unsupervised exit from the nursing home. However, after he was readmitted on December 13, 2004, the facility failed to continue with those same preventive measures. It was known to the facility that the resident exhibited the same confusion, restlessness, and wandering behavior upon readmission, yet the previously existing elopement prevention interventions were removed, without any documented reason therefor. In view of the foregoing, I conclude that CMS has established that the facility was not in substantial compliance with participation requirements. The evidence in this case establishes that Petitioner failed to comply with the requirements specified in 42 C.F.R. � 483.25(h)(2) related to the facility's obligation to ensure that each resident receives adequate supervision and assistance devices to prevent accidents. Petitioner has raised no genuine and material factual dispute; thus, I find that CMS is entitled to summary judgment as a matter of law.
I have found that CMS established a prima facie case that Petitioner was not in substantial compliance with federal requirements for long-term care facilities participating in the Medicare and Medicaid programs on December 17, 2004. I have also concluded that Petitioner has not overcome CMS's showing by a preponderance of the evidence. Furthermore, I sustain CMS's finding that Petitioner's level of noncompliance constitutes immediate jeopardy. Petitioner contends that there is a genuine issue of material fact as to whether its alleged noncompliance posed an immediate jeopardy. According to Petitioner, the following facts offered by CMS are not only in dispute, but as a matter of law, do not establish a likelihood of serious injury:
P. Br. at 7, 8. The regulations define immediate jeopardy 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. Immediate jeopardy does not require "a finding of present harm, but also encompasses a situation that is [likely to cause] harm." Hermina Traeye Memorial Nursing Home, DAB No. 1810, at 10 (2002), aff'd sub nom Sea Island Comprehensive Healthcare Corp. v. U.S. Dep't of Health & Human Services, 79 Fed. Appx. 563, 2003 WL 22451772 (4th Cir. Oct. 29, 2003) (unpublished). CMS's determination of immediate jeopardy must be upheld unless it is clearly erroneous. 42 C.F.R. � 498.60(c)(2). Britthaven, Inc., d/b/a Britthaven of Smithfield, DAB No. 2018, at 22, 23 (2006). Inasmuch as it is not necessary for CMS to show that R1 suffered actual harm, the issue for my consideration is whether Petitioner's noncompliance was likely to cause serious injury, harm, impairment, or death. It is evident that once a frail, elderly, confused resident is out of sight of facility staff, and is outside without supervision, the resident is exposed to the risk of serious harm or even death. The factors mentioned above, that according to CMS, placed the resident in immediate jeopardy, have not been disputed by Petitioner. I will consider each factor separately: R1 was at risk for falls The facility assessed R1 as being at risk for falls in June and September 2004. CMS Ex. 5, at 5, 8. Pertinent to this is the fact that on December 16, 2004, R1 removed the bar from his ambulator and suffered a fall. CMS Ex. 5, at 18. Petitioner acknowledges that the resident was in a weakened condition. P. Br. at 4. It requires no strain of logic to conclude that an elderly and frail 82-year-old person who experiences a fall is likely to suffer serious injury. R1 walked or crawled to a car, opened the door and entered. Petitioner does not dispute that R1 exited the nursing home facility without supervision or assistance. However, Petitioner alleges that there is a dispute as to whether, once outside, the resident transferred himself from the ambulator to a car parked by a neighboring residence. This allegation is made without any evidence in support. In fact, Petitioner offers nothing to contradict the visitor to the facility who found the resident inside the car. The visitor stated that he saw the walker tipped over and empty, and that the resident was inside the car fiddling under the dash. CMS Ex. 1, at 5. Indeed, the facility's incident report appears to accept the visitor's version of events. CMS Ex. 5, at 51-52. There is nothing in the record to refute the inference that R1 transferred himself from the ambulator to the car. Moreover, Petitioner concedes that R1 was found inside a parked car on Morgan Street. P. Ex. 2, � 14. R1 was assessed as needing assistance with mobility and having poor safety awareness. CMS Ex. 5, at 11-12. It is evident that, in attempting to transfer himself independently from his ambulator to a car, the resident was likely to suffer injury. R1 was outside in the dark, moving over uneven terrain, which included concrete and gravel. Petitioner does not address the nature of the terrain over which R1 traveled, but does allege that "Morgan street had illuminated streetlights on the night in question." P. Ex. 2, � 15. Regardless of whether there were streetlights or not, it was reported by the visitor who found the resident, that when he went down the driveway to the street it was "plenty dark." CMS Ex. 1, at 5. The visitor added that the only reason he was able to locate the resident was because the door of the vehicle the resident entered was ajar, which caused the dome light to come on. A resident who is using an ambulator for mobility, who is out in the dark moving over uneven terrain, is likely to fall and suffer injury, even if streetlights are present. R1 was not dressed appropriately to be out in sub-freezing weather, and was at heightened risk of hypothermia. Petitioner acknowledges that R1 was dressed only in sweat pants, a flannel shirt over a T- shirt, shoes, and socks. P. Ex. 2, � 17. The resident was not wearing a winter coat, and there is no indication that he wore gloves or a hat. Nor does Petitioner dispute the allegation in the statement of deficiencies that, on December 17, 2004, the temperature in the area at 5:42 p.m. was 27 degrees. CMS Ex. 1, at 5. Petitioner's allegation that the resident was outside for only 15 minutes and had normal temperature when he was brought inside, does not create a factual dispute. It is not material how long the resident was outside without proper winter attire nor whether his temperature remained normal. What is material here is that R1 was exposed to sub-freezing weather without adequate cold weather protection and without any facility staff supervision. Because the resident was located by a visitor within 15 minutes of his elopement, and only because the vehicle's dome light happened to come on, does not negate the fact that he was exposed to the likelihood of hypothermia. It was a fortunate stroke of luck that saved R1 from the winter elements. However, luck is not the stuff of which a nursing facility's duty of care is made. R1 was on a busy street that led directly to a truck route. The daughter of a resident at Petitioner's facility stated to the surveyor that the street on which R1 was found is a busy street and that it intersects a truck route. CMS Ex. 1, at 5. In her affidavit, the DON stated that on a Friday night, between 5:45 p.m. and 6:15 p.m. (about the time of R1's elopement), traffic is typically minimal on Morgan Street. P. Ex. 2, � 16. Aside from the fact that it is only an utter coincidence that traffic happened to be light just when the resident eloped, I find that the assertion of the DON does not create a factual dispute. It suffices that the street on which the resident traveled is a thoroughfare along which motor vehicles travel. Of course, if there had been heavy traffic on the street, it would certainly have created a more dangerous situation. However, R1 was placed at risk no matter what the flow of traffic was, inasmuch as a single vehicle could cause serious injury, harm, impairment, or death to a vulnerable pedestrian. R1 was cognitively impaired. It is surprising that Petitioner has chosen to dispute that R1 was cognitively impaired in view of the assessment conducted by facility staff that reflects that he needed supervision and cues with dressing, exhibited confusion, had dementia, needed reminders to go to meals. CMS Ex. 5, at 4, 5, 7, 8. In view of the above discussion regarding the several factors that coalesced to create a situation in which the provider's noncompliance with one or more requirements of participation was likely to cause serious injury, harm, impairment, or death to a resident, I find that there is no factual dispute as to whether the deficiency in this case rose to the level of immediate jeopardy. I therefore conclude that immediate jeopardy existed at Petitioner's facility on December 17, 2004. Furthermore, I conclude that Petitioner has not come forward with persuasive evidence or reasons to show that CMS's finding of immediate jeopardy is clearly erroneous.
CMS imposed a $3,050 per instance CMP. CMS may impose a CMP for either the number of days a facility is not in substantial compliance with one or more participation requirements or for each instance that a facility is not in substantial compliance, regardless of whether or not the deficiencies constitute immediate jeopardy. 42 C.F.R. � 488.430(a). Thus, CMS may impose a per instance CMP ranging from $1,000 to $10,000 for an instance of noncompliance even if the deficiency is at the less than immediate jeopardy level. 42 C.F.R. � 488.438(a)(2). In this case, where Petitioner failed to ensure that R1 received adequate supervision and assistance devices to prevent accidents, and that such failure resulted in his leaving the facility unsupervised, placing him at risk of serious injury, harm, impairment or death, a CMP of $3,050 is not unreasonable. Moreover, Petitioner has not disputed the reasonableness of the CMP. IV. Conclusion I conclude that there is no factual dispute at issue in this case that is both genuine and material, and that CMS is entitled to summary judgment. I further conclude that CMS correctly determined that on December 17, 2004, Petitioner was not complying with federal participation requirements in the Medicare and/or Medicaid programs at the immediate jeopardy level, and the imposition of a $3,050 CMP is reasonable. |
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| JUDGE | |
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José A. Anglada Administrative Law Judge |
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| FOOTNOTES | |
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1. On April 25, 2005, Petitioner filed a request for hearing in response to CMS's Notice of Imposition/Rescission/Discontinuation of Remedies dated February 25, 2005. That case was docketed as C-05-299. Since the March 16 request for hearing, docketed as C-05-238, and the April 22 request, docketed as C-05-299, involved the same survey cycle, the parties moved to consolidate both cases under docket number C-05-238. As a result of that motion, I issued an order of consolidation on June 9, 2005. 2. Contrary to the Civil Remedies Division Procedures, Petitioner identified its exhibits as P. Exs. A-D. Consequently, I have re-designated them as P. Exs. 1-4. 3. In this regard, it is important to distinguish between facts and conclusions. Conclusions and legal arguments do not establish material facts in dispute. 4. In early January 2004, R1 was given an ambulator (enclosed rolling chair) known as a "merry walker" and he was able to demonstrate how to use the release latch to get out of it. CMS Ex. 1, at 4; CMS Ex. 7, at 5. 5. This assertion is inconsistent with the facility's own records. The Resident Accident and Incident Investigation Report states that R1 was found just outside the door. The nurses notes are more revealing in that they indicate that he was able to exit the facility and go out to the sidewalk. P. Ex 1; CMS Ex. 5, at 14. |
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