Department of Health and Human Services DEPARTMENTAL APPEALS BOARD Civil Remedies Division |
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IN THE CASE OF | |
JFK Hartwick at Edison Estates, |
DATE: November 28, 2001 |
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Centers for Medicare & Medicaid
Services
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Docket No.C-00-616 Decision No. CR840 |
DECISION | |
DECISION I decide that a basis exists for imposing civil money
penalties against Petitioner, JFK Hartwyck at Edison Estates. I find that
Petitioner failed to comply substantially with a Medicare participation
requirement during the period that began on March 27, 2000 and which ran
through April 3, 2000. I find not to be clearly erroneous the determination
by the Centers for Medicare & Medicaid Services (CMS, formerly known
as the Health Care Financing Administration or "HCFA") that Petitioner's
noncompliance posed immediate jeopardy to residents of Petitioner. However,
I do not find to be reasonable CMS's determination that civil money penalties
in amounts of $5,000 per day should be imposed against Petitioner for
each day of the March 27 - April 3, 2000 period. I impose civil money
penalties in amounts of $3,050 per day for each day of this period. I. Background Petitioner is a long-term care facility that is located
in Edison, New Jersey. It participates in the Medicare program and is
subject to the laws and regulations which govern the participation of
long-term care facilities in Medicare. Petitioner was surveyed on March
23 and 27, 2000, by surveyors employed by the New Jersey State Department
of Health and Senior Services (New Jersey State survey agency). These
surveyors concluded that Petitioner had failed to comply substantially
with two of the conditions of participation that governed its participation
in Medicare. They concluded additionally that Petitioner's noncompliance
with these conditions was so egregious as to constitute immediate jeopardy
for Petitioner's residents. CMS accepted these conclusions and determined
to impose civil money penalties against Petitioner in amounts of $5,000
per day for each day of a period that began on March 27, 2000 and which
ran through April 3, 2000. Petitioner requested a hearing and the case was assigned
to me for a hearing and a decision. CMS moved for summary disposition,
submitting a brief and a total of 40 exhibits (HCFA Ex. 1 - HCFA Ex. 40)
in support of its motion. Petitioner cross-moved for summary disposition.
It also submitted a brief and nine exhibits (P. Ex. 1 - P. Ex. 9) as well
as the written declarations of two individuals, Renee Lake and Sandra
Accetta. Neither CMS nor Petitioner argued that there was any need to
present testimony or other evidence in person. Neither party has objected to my receiving into evidence
any of the exhibits that were submitted in support of their respective
motions. Therefore, I receive into evidence HCFA Ex. 1 - HCFA Ex. 40.
I also receive into evidence P. Ex. 1 - P. Ex. 9. Additionally, I identify
Ms. Lake's declaration as P. Ex. 10 and Ms. Accetta's declaration as P.
Ex. 11, and I receive these two documents into evidence. II. Issues, findings of fact and conclusions of law
The issues are whether:
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 separately numbered heading. I discuss each Finding in detail.
Both CMS and Petitioner style their motions as motions
for summary disposition. These are somewhat inaccurate characterizations
of what the parties are asking for. Summary disposition is appropriate
in a case where there are no disputed issues of material fact and where
the only disputed issues involve questions of law or application of law
to undisputed facts. There appear to be disputed issues of fact in this
case. For example, there is a dispute as to whether a resident who is
referred to by both parties as Resident # 3 was
wearing a Wanderguard - a device that is designed to alert a facility
when a resident makes an unauthorized attempt to leave a facility's premises
- on March 20, 2000, when the resident eloped from Petitioner's premises.
There is also a dispute as to when Petitioner may have corrected any errors
in the way in which its staff was implementing precautions against elopement. I find that it is appropriate to decide this case based on the parties' written submissions, not because there are no disputed issues of material fact, but based on the parties' desire that the case be decided without an in-person hearing. The presence of a disputed fact issue in a case does not necessarily mean that an in-person hearing is required in order to decide that issue. Parties are always free to ask that their cases be decided based on written submissions in lieu of in-person testimony.
The New Jersey State survey agency surveyors found at
Tag 324 of the survey report they prepared that Petitioner failed to comply
substantially with the requirements of 42 C.F.R. � 483.25(h)(2). HCFA
Ex. 5. This regulation requires that a facility must provide each resident
with "adequate supervision and assistance devices to prevent accidents." The regulation does not require a facility to be free of all accidents. It does not impose strict liability on a facility for accidental injuries that a resident may sustain. Woodstock Care Center, DAB No. 1726 (2000). What it requires of a facility is that it take all reasonable measures to prevent accidents. A facility has a high obligation to ensure that its accident prevention measures are adequate. Koester Pavilion, DAB No. 1750 at 24 (2000). However:
Id. The regulation imposes on a facility the obligation
to develop policies that identify foreseeable risks to residents and which
implement protocols and procedures that are designed to minimize those
risks. It requires facilities to plan and implement care for individual
residents in a way that is designed to minimize their risk of sustaining
accidents. And, it requires a facility to train and supervise its staff
so as to minimize the possibility of accidents resulting from staff errors. The allegations that Petitioner did not comply substantially
with the requirements of 42 C.F.R. � 483.25(h)(2) relate to the care that
Petitioner gave to three of its residents, Resident # 1, Resident # 2,
and Resident # 3. CMS alleges that Petitioner failed to give Residents
#s 1 and 2 adequate supervision or care to prevent these residents from
falling. CMS asserts that Petitioner failed to provide Resident # 3 with
adequate supervision to prevent that resident from eloping Petitioner's
facility. I do not find that CMS established a prima facie case
that Petitioner provided inadequate supervision to Resident #s 1 and 2.
But, the evidence pertaining to the care that Petitioner gave Resident
# 3 shows there were flaws in the system that Petitioner devised to protect
against elopement. From this evidence, I conclude that Petitioner was
not complying substantially with the requirements of 42 C.F.R. � 483.25(h)(2)
during the March 27 - April 3, 2000 period.
Resident # 1 suffers from Alzheimer's disease. She is
unable to move about in bed unassisted. HCFA Ex. 5 at 4. The evidence
offered by CMS establishes that Resident # 1 sustained
a fall on March 18, 2000. Id. On that date, the resident was found
on the floor of her room lying on the right side of her bed. Id.
The resident sustained a laceration to her forehead. She was transferred
to a hospital emergency room for treatment of the laceration. Id. Petitioner investigated the incident. HCFA Ex. 20. It
concluded that the nursing assistant who was responsible for providing
care to Resident # 1 gave inconsistent explanations for the resident's
fall. It terminated the nursing assistant's employment on March 31, 2000.
Id. The foregoing evidence does not amount to a prima facie
case that Petitioner failed to provide adequate supervision of Resident
# 1 in order to prevent the resident from sustaining an accident because
it does not provide a basis for me to infer that Petitioner should have
taken precautions that Petitioner failed to take. It establishes only
that the resident sustained an accident. CMS offered no evidence to show
that the resident was at risk for injury as a consequence of Petitioner's
failure to provide adequate supervision of the resident. I may infer that the nursing assistant who provided care to Resident # 1 was in some manner negligent in providing care to the resident from the fact that the nursing assistant gave inconsistent explanations of the events that led up to the resident's fall. See HCFA Ex. 20. In hindsight, it might be inferred that the nursing assistant provided inadequate care. But, there is no evidence that the assistant was inadequately trained, or supervised.
On February 29, 2000, Resident # 2 was injured while being
transferred from bed via a Hoyer lift. HCFA Ex. 5 at 4. A nursing assistant
was getting the resident out of bed with the aid of the lift when the
lift slipped, and the resident became frightened, slipping to the floor.
HCFA Ex. 23 at 1 - 2. The resident sustained a fracture of the right leg. A Hoyer lift is a device that is used for transferring
individuals who are unable to move without assistance. One nursing assistant
was operating the lift at the time of the accident. HCFA Ex. 23 at 1-2.
Petitioner's internal policy was to require two nursing assistants to
operate the lift. See HCFA Ex. 8 at 2. However, the manufacturer
of the Hoyer lift does not suggest that more than one person is necessary
to operate the lift. I do not find that CMS established a prima facie case
that Petitioner failed to comply with the requirements of 42 C.F.R. �
483.25 in providing care to Resident # 2. There is no question that the
resident sustained an accident. It may also be concluded from the fact
that only one nursing assistant was operating the Hoyer lift at the time
that the accident occurred that the lift was being operated in violation
of Petitioner's internal policy at the time of the accident. But, this
evidence does not show that Petitioner provided insufficient training
to the nursing assistant or supervised either the nursing assistant or
the resident inadequately. It is not unreasonable to infer that Petitioner wanted
two staff members to operate the Hoyer lift because it was concerned for
the safety of its residents. Given that, a failure by Petitioner to train
its staff, disseminate its policy, or correct a known noncompliance of
its policy would be a basis for me to conclude that Petitioner was not
providing adequate supervision. But, there is no basis to find Petitioner
liable if the evidence only establishes an isolated error by a member
of Petitioner's staff which occurred despite - and not because of - the
way that Petitioner instructed and supervised its staff. In other cases I have found that a facility is liable
under 42 C.F.R. � 483.25(h)(2) for failing to address accident hazards
of which it was aware. For example, in Woodstock, I found that
the facility did not provide adequate supervision to its residents based
on evidence which showed that the facility failed to take remedial measures
despite repeated episodes of elopements and resident-against-resident
assaults. The facility knew that there were problems with assaults and
elopements but did not address those problems. In another case, Sonogee
Rehabilitation and Living Center, DAB No. 754 (2001), I held that
a facility failed to provide supervision to its residents in order to
prevent accidents where the facility knew that a resident was prone to
elope the facility through a window but where it failed to secure the
window in order to prevent further elopements. Again, the facility knew
that a problem existed but did not address that problem. By contrast, the evidence presented by CMS in this case
does not show that Petitioner knew or should have known that its staff
was not complying with its directive concerning use of the Hoyer lift.
CMS did not produce anything to show that the episode involving Resident
# 2 was more than an isolated failure by one employee on Petitioner's
staff to comply with facility policy. Furthermore, there is no evidence that the staff's failure to follow the policy concerning use of the Hoyer lift was the proximate cause or even an indirect cause of the accidental injury to Resident # 2. CMS has not made any showing that the resident fell from the Hoyer lift as a consequence of only one staff person operating the lift.
Resident # 3 suffers from Alzheimer's disease and has
a tendency to wander. Petitioner's staff knew that the resident was an
elopement risk. HCFA Ex. 27. Prior to March 20, 2000, the resident had
made several attempts to elope the facility. Id. at 2-4. On December
2, 1999, the resident managed to get outside of Petitioner's facility.
Id. at 6. On that date, Petitioner's staff assessed the resident
as wandering on a daily basis. HCFA Ex. 29 at 3. Petitioner's staff concluded after the December 2, 1999
elopement attempt that Resident # 3 presented such an obvious elopement
risk that she should be transferred to a locked unit for demented residents
that is located within Petitioner's facility. Additionally, the resident
was made to wear a Wanderguard bracelet. However, on March 20, 2000, Resident # 3 again briefly
eloped Petitioner's facility. On this occasion, the resident managed to
elope at the end of a lunch period when she was taking lunch with other
residents in the facility's dining room which is located outside of Petitioner's
locked unit. Apparently, the resident managed to evade the attention of
Petitioner's staff for enough time so that she could elope the premises.
There is a dispute as to whether the resident was wearing a Wanderguard
at the time of her elopement. CMS contends that she was wearing the device
and Petitioner asserts that it had been removed due to the fact that the
resident had been trustworthy in the days preceding March 20, 2000.
I find that the evidence offered by CMS is prima facie
evidence that Petitioner's staff failed adequately to supervise Resident
# 3 in order to prevent the resident from eloping Petitioner's premises.
The staff was aware of the elopement risks presented by the resident.
The evidence offered by CMS shows that the staff failed to watch the resident
closely in circumstances where the resident had the opportunity to elope.
The evidence offered by CMS also is prima facie proof that Petitioner
did not comply with the requirements of 42 C.F.R. � 483.25(h)(2) in providing
care to Resident # 3. It shows that Petitioner knew
that Resident # 3 was at risk for accidental injury if she eloped from
Petitioner's premises yet failed to take adequate measures to protect
the resident. Petitioner argues that it took all measures that were
reasonable to prevent Resident # 3 from eloping. According to Petitioner,
the resident eloped despite the implementation of these measures and not
because of any failure of Petitioner or its staff to provide adequate
supervision to the resident. Additionally, it contends that it had legitimate
reason to believe that, as of March 20, 2000, Resident # 3 no longer presented
an elopement threat. Petitioner argues that the resident had adjusted
well to Petitioner's facility and that her behavior was so appropriate
that the staff social worker suggested that the resident no longer needed
to wear a Wanderguard. I do not find these arguments to be persuasive. Resident
# 3 had a relatively lengthy history of elopement attempts. Petitioner
was sufficiently concerned about the elopement risk posed by the resident
that it had her reside in a special locked unit of Petitioner's facility.
Given that, Petitioner's staff should have been vigilant for the possibility
that the resident might attempt to elope any time the resident was outside
of the locked unit. The staff plainly failed to satisfy that responsibility
on March 20, 2000, when the resident eloped at the end of the lunch period. There is a question of whether Petitioner's lack of supervision
of Resident # 3 merely shows an isolated failure by staff to supervise
a resident or shows some broader problem. That an isolated mistake in
providing care may have occurred may not be sufficient basis to conclude
there was an overall failure by Petitioner to comply with the requirements
of 42 C.F.R. � 483.25(h)(2). Here, I infer that the error in not supervising
Resident # 3 did show a failure by Petitioner's staff to understand the
need to supervise closely those residents who were prone to wander or
elope. The evidence is that Petitioner's staff misjudged the elopement
risk posed by the resident and so let down their guard sufficiently that
the resident was able to elope. From that I infer an overall lack of understanding
by Petitioner's staff of the degree of supervision that might be necessary
to protect residents against eloping. My conclusion that Petitioner failed to comply with the
requirements of 42 C.F.R. � 483.25(h)(2) as of March
20, 2000, does not resolve the issue of whether a basis exists to find
Petitioner deficient under that regulation as of March 27, 2000, the beginning
date of the period for which CMS determined to impose civil money penalties.
Petitioner argues that it corrected before March 27, 2000, any deficiencies
that it may have manifested in supervising residents who are elopement
risks. No basis would exist to take remedial action against Petitioner
during the period that ran from March 27, 2000 through April 3, 2000,
if Petitioner was no longer out of compliance with the regulation on those
dates. However, it is reasonable to presume that if a facility is out
of compliance with a participation requirement on a particular date, it
remains out of compliance until it offers credible evidence that it has
attained compliance or until CMS certifies that it has attained compliance.
The burden falls on Petitioner to prove that it attained compliance with
42 C.F.R. � 483.25(h)(2) prior to April 3, 2000. I do not find that Petitioner established that it attained
compliance prior to April 3, 2000. Petitioner avers, through the declaration
of Sandra Accetta, that it "promptly" implemented remedial measures after
Resident # 3's elopement. P. Ex. 11. Ms. Accetta recites a series of remedial
measures that Petitioner took. Id. I have no reason not to believe
Petitioner's assertion that it implemented these remedial measures. However,
Petitioner has not established precisely when it implemented
them. Saying that it implemented them "promptly" is insufficient to show
that they were implemented prior to April 3, 2000.
The New Jersey State survey agency surveyors found at Tag 456 of their survey report that Petitioner failed to comply substantially with the requirements of 42 C.F.R. � 483.70(c)(2). This regulation requires a facility to:
The gravamen of the allegation concerning Petitioner's
alleged failure to comply with the regulation is that Petitioner did not
maintain its residents' Wanderguard bracelets adequately. Specifically,
the surveyors alleged that Petitioner did not check Resident #
3's Wanderguard for effective functioning within 90 days of its activation
as is required by the manufacturer's guidelines for the device. HCFA Ex.
5 at 6. Petitioner has not denied the assertions of fact which
are the basis for the deficiency allegations at Tag 456. But, it argues
that it may not be found to have failed to comply with the regulation
because a Wanderguard bracelet is not an essential item of equipment within
the meaning of 42 C.F.R. � 483.70(c)(2) and, therefore, failure to maintain
a Wanderguard bracelet does not comprise a failure to maintain an essential
piece of equipment. I find Petitioner's argument to be persuasive. The regulation
does not define what is meant by an essential item of equipment. The common
and ordinary definition of the word "essential" is something that is "indispensable
or basic." Webster's II New College Dictionary 384 (2d Ed. 1999).
I find this definition to be a reasonable definition of the word "essential"
in 42 C.F.R. � 483.70(c)(2) in the absence of any evidence that the Secretary
of the Department of Health & Human Services intended that the word
had some special meaning. CMS did not make a prima facie showing that
a Wanderguard bracelet is indispensable or basic equipment. From the facts that are before me, it is apparent that
a Wanderguard is a device which assists a facility's staff in assuring
that a resident who wears the device does not leave a defined area in
the facility. It is clearly helpful in keeping track of a resident's whereabouts.
It may enable a facility to get by with using less staff than would be
necessary to observe and keep track of residents if the device were not
in use. But, there is no evidence that a Wanderguard is indispensable
or basic equipment. A facility may keep track of an elopement-prone resident
without placing a Wanderguard on that resident. Close observation of the
resident would fulfill the same function as is performed by the Wanderguard. Thus, a Wanderguard bracelet, if maintained correctly, gave Petitioner's staff a useful tool for keeping track of Resident # 3's whereabouts. But it was not an essential device for doing so. Consequently, failure to maintain the device adequately cannot be grounds for finding that Petitioner failed to comply substantially with the requirements of 42 C.F.R. � 483.70(c)(2).
Noncompliance with a participation requirement that constitutes "immediate jeopardy" is a situation in which the noncompliance:
42 C.F.R. � 488.301. A finding of an immediate jeopardy
level deficiency need not be predicated on a finding of actual harm. Immediate
jeopardy may be present where there is a likelihood that a facility's
noncompliance may cause serious injury, harm, impairment, or death to
a resident. Id. A facility that challenges a CMS determination
of immediate jeopardy level noncompliance has the burden of proving that
the determination is clearly erroneous. 42 C.F.R. � 498.60(c)(2). Petitioner did not prove to be clearly erroneous CMS's determination that Petitioner's failure to comply with the requirements of 42 C.F.R. � 483.25(h)(2) constituted an immediate jeopardy level deficiency. The evidence shows a likelihood that residents who eloped from Petitioner's facility could suffer serious injury, harm, impairment, or death. Resident # 3 and other residents who might elope are individuals who are at risk for serious injury if alone in the community unsupervised. Resident # 3, for example, suffers from Alzheimer's dementia. It is not difficult to envision how such an individual might suffer injury or death if allowed to wander unsupervised along a public right of way. Resident # 3 was found lying in a ditch with an abrasion on her head. HCFA Ex. 34 at 2, 5. Petitioner argues that the resident did not suffer serious harm from this episode. That may be true. But, as I have explained, actual harm is not a necessary element of a finding of an immediate jeopardy level deficiency.
The range of civil money penalties that CMS may impose
for an immediate jeopardy level deficiency is from $3,050 to $10,000 per
day for each day that the deficiency persists. 42 C.F.R. � 488.438(a)(i).
Where penalties fall within this range depends on factors which may include:
a facility's history of noncompliance; its financial condition; its culpability;
the seriousness of a deficiency or deficiencies; and, the relationship
of one deficiency to another. 42 C.F.R. � 488.438(f); 42 C.F.R. � 488.404(b),
(c) (incorporated by reference into 42 C.F.R. � 488.438(f)(3). CMS asserts that penalties of $5,000 per day are reasonable.
It bases this argument on the alleged seriousness of Petitioner's failure
to comply with participation requirements and on Petitioner's past compliance
history. According to CMS, the elopement of Resident # 3 was a consequence
of a systematic failure by Petitioner to assure the effectiveness of its
residents' Wanderguard bracelets. CMS asserts also that, in 1998, Petitioner
was cited for deficiencies that were not at the immediate jeopardy level
but which caused residents to experience harm. I am not persuaded that civil money penalties of more
than $3,050 per day are reasonable. First, although I am not minimizing
the seriousness of Petitioner's failure to provide adequate supervision
of its residents to prevent elopements from occurring, it is evident that
Petitioner's deficiency is nonetheless less serious than CMS depicts.
CMS averred that there were multiple failures by Petitioner to comply
with participation requirements. In fact, and as I discussed above, at
Findings 2 and 3, Petitioner's deficiency pertained only to its staff's
failure to provide adequate supervision in order to prevent elopements
by its residents. Furthermore, I am not persuaded that Resident # 3's
elopement is a consequence of Petitioner's failure to maintain Wanderguard
bracelets. The evidence is equivocal at best as to whether the resident
even was wearing a Wanderguard on March 20, 2000. The elopement of the
resident appears to have been the consequence of a lapse of supervision
of the resident by Petitioner's staff. Second, CMS has offered no evidence which explains how
the deficiencies that Petitioner previously may have manifested relate
to the deficiency that is at issue here. There is no suggestion in this
case that the inadequate supervision that Petitioner may have shown in
March 2000 was a continuation of some pattern of inadequate supervision
that was evident previously. Thus, the evidence in this case establishes that there was a single event of deficient care at Petitioner's facility which does not appear to be related to any historical pattern of failures of care by Petitioner. Given that, it is not reasonable to impose civil money penalties which exceed the minimum amount that is required for immediate jeopardy level deficiencies. |
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JUDGE | |
Steven T. Kessel Administrative Law Judge
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