Department of Health and Human Services DEPARTMENTAL APPEALS BOARD Civil Remedies Division |
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IN THE CASE OF | |
Maxwell Manor, |
DATE: July 12, 2001 |
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Centers for Medicare & Medicaid
Services
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Docket No.C-00-721 Decision No. CR796 |
DECISION | |
DECISION I sustain the imposition of remedies against Petitioner, Maxwell Manor, consisting of:
These remedies are authorized because Petitioner had an
immediate jeopardy level failure to comply with federal participation
requirements governing its participation in the Illinois Medicaid program
during the May 18 - 26, 2000 period which it did not correct.
I. Background and procedural history Petitioner is a nursing facility in Chicago, Illinois.
Prior to May 27, 2000, Petitioner participated in the Illinois Medicaid
program. On May 9 - 12, 2000, Petitioner was surveyed for compliance with
federal participation requirements (May 12 survey). At the May 12 survey,
the surveyors alleged that Petitioner had two immediate jeopardy level
failures to comply with federal participation requirements. Centers for
Medicare & Medicaid Services (CMS) Exhibit 1. (On July 5, 2001, the
Health Care Financing Administration was officially redesignated as the
Centers for Medicare & Medicaid Services. 66 Fed. Reg. 35,437 (2001)).
The surveyors revisited Petitioner's facility on May 25 - 26, 2000 (May
26 survey). They again alleged an immediate jeopardy level deficiency.
CMS Exhibit 8. CMS concurred with the surveyors' findings and determined
to impose remedies against Petitioner consisting of: termination of Petitioner's
participation in the Illinois Medicaid program; denial of payments for
new admissions during a period which began on May 18, 2000, and which
ran through May 26, 2000; and, imposition against Petitioner of civil
money penalties in the amount of $7,500 per day for each day of a period
which began on May 12, 2000, and which ran through May 26, 2000. Petitioner requested a hearing and the case was assigned
to me for a hearing and a decision. CMS moved for summary disposition.
Petitioner opposed the motion and cross-moved for summary disposition.
On May 17, 2001, I ordered the parties to respond to
certain specific questions by no later than June 5, 2001. Order Directing
Parties to Provide Supplemental Information. CMS filed a response to this
order. Petitioner did not file a response. CMS submitted a total of 36 proposed exhibits (CMS Ex.
1 - CMS Ex. 36) with its motion, its reply brief, and its response to
my Order Directing Parties to Provide Supplemental Information. Petitioner
submitted 13 proposed exhibits (P. Ex. A - P. Ex. M) with its opposition
to CMS's motion and its cross-motion for summary disposition. Neither
party objected to my receiving these proposed exhibits into evidence.
Therefore, I receive into evidence CMS Ex. 1 - CMS Ex. 36 and P. Ex. A
- P. Ex. M. II. Issues, findings of fact and conclusions of
law
The issues in this case 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 separate heading. I explain each Finding in detail.
CMS and Petitioner have rested their cases on their written
submissions. Neither party indicated any desire to have additional proceedings
in this case. I conclude that it is appropriate to decide the case based
on the parties' submissions without scheduling additional evidentiary
proceedings. Both CMS and Petitioner moved for summary disposition. CMS asserts that there are no disputed issues of material fact and that the remedies it determined to impose are authorized by the undisputed facts and the governing law. Petitioner argues that the facts as alleged by CMS do not establish a prima facie case of noncompliance by Petitioner which justifies the remedies that CMS determined to impose. From CMS's submission, it is evident that CMS is resting its case entirely on the written evidence that it offered. CMS Ex. 1 - CMS Ex. 36. In its opposition and cross motion, Petitioner did not request the opportunity to present additional evidence. Rather, it appears from Petitioner's opposition and cross motion that Petitioner has submitted its entire case based on written evidence.I directed Petitioner to explain what, if any, additional evidence it might wish to offer either at an in-person hearing or by documentary submission in order to make certain that Petitioner was not seeking an additional opportunity to offer evidence. Order Directing Parties to Provide Supplemental Information. Petitioner did not respond to this order. I find additional support for my conclusion that Petitioner does not seek an in-person hearing in this case nor does it desire an opportunity to offer additional documentary evidence from Petitioner's failure to respond to my order.
The surveyors who conducted the May 12 survey alleged
that Petitioner had an immediate jeopardy level failure to comply with
participation requirements that are stated at 42 C.F.R. � 483.13(c)(1)(ii).
CMS Ex. 1 at 1 - 4. They alleged, additionally, that Petitioner had an
immediate jeopardy level failure to comply with participation requirements
that are stated at 42 C.F.R. � 483.25(h)(2). CMS Ex. 1 at 4 - 25. At the
May 26 survey, the surveyors alleged a continuing immediate jeopardy level
failure by Petitioner to comply with the requirements of 42 C.F.R. � 483.25(h)(2).
CMS Ex. 8. I find that Petitioner failed to rebut CMS's prima facie
showing that Petitioner failed to comply with the requirements of 42 C.F.R.
� 483.25(h)(2) both as of the May 12 and May 26 surveys. Thus, Petitioner
failed to comply substantially with the requirements of this regulation
from May 12 through May 26, 2000, and its noncompliance remained unabated
as of May 26, 2000. Furthermore, Petitioner failed to prove to be clearly
erroneous CMS's determination that Petitioner had an immediate jeopardy
level failure to comply with the regulation's requirements both
as of May 12, 2000, and as of May 26, 2000. It is not necessary that I address the question of whether Petitioner's alleged failure to comply with the requirements of 42 C.F.R. � 483.13(c)(1)(ii) was a second immediate jeopardy level deficiency during the May 12 - 26, 2000 period. As I discuss below, at Finding 3, the presence of a single immediate jeopardy level deficiency during the May 12 - 26, 2000 period enabled CMS to impose remedies against Petitioner consisting of: termination of Petitioner's participation in the Illinois Medicaid program, denial of payment for new admissions, and civil money penalties of at least $3,050 per day for each day of the May 12 - 26, 2000 period. And, as I explain at Finding 4, the existence of a second immediate jeopardy level deficiency in this case is not a necessary element of my decision that civil money penalties of $7,500 per day are reasonable.
The requirements of 42 C.F.R. � 483.25(h)(2) are that
a long-term care facility must ensure that each of its residents receives
adequate supervision and assistance devices to prevent accidents. The
surveyors who conducted the May 12 survey found that Petitioner failed
to comply with the requirements of the regulation in that it allegedly
failed to provide security, supervision, and sufficient staff to prevent:
resident elopement; resident to resident abuse including sexual assault
and physical assault; stealing among residents; unsupervised smoking in
areas not designated as smoking areas (including resident bedrooms); and,
alcohol and drug abuse. The survey report recites a litany of findings
that are offered to support the allegations. CMS Ex. 1 at 4 - 25. Petitioner argues that many of the allegedly supporting
findings are based on hearsay that is not only inherently not probative
but which Petitioner could not possibly be expected to rebut due to its
nature. As Petitioner observes, many of the specific allegations of noncompliance
that are made in the survey report depend on statements that are attributed
to unidentified residents or unidentified employees of Petitioner. Petitioner
asserts that it would be unfair to rely on these alleged statements as
evidence of its noncompliance in that it cannot challenge or respond to
them. I agree with Petitioner's characterization of many of
the specific allegations of fact that are contained in the survey report.
The kind of hearsay that these allegations consist of - alleged statements
attributed to anonymous individuals - is inherently unreliable because
the accuracy and honesty of the statements cannot be tested. In other
cases, I have declined to attach any weight to such statements and I do
so here. None of the findings that I make in this decision relies on statements
that are attributed to anonymous individuals. However, the surveyors developed additional evidence of
Petitioner's noncompliance with 42 C.F.R. � 483.25(h)(2) consisting of
their own observations and information obtained from reviews of Petitioner's
records. I find that this evidence is persuasive prima facie evidence
of Petitioner's noncompliance with the requirements of the regulation. Petitioner is a facility whose resident population at
the time of the May 12 and 26 surveys consisted largely of younger mentally
ill individuals. Many of these residents had impulse control and substance
abuse problems. Many of them had histories of engaging in destructive
or self-destructive behavior. Petitioner's brief at 12.
The characteristics of Petitioner's resident population imposed a burden on Petitioner and its staff to protect the residents from their self-destructive conduct. Additionally, Petitioner and its staff were obligated to protect residents from the destructive acts of other residents. This meant that Petitioner and its staff had to supervise residents to assure that they did not place themselves or other residents in jeopardy. The surveyors developed compelling evidence at the May 12 survey that Petitioner and its staff were either incapable or unwilling to provide the needed supervision. This included evidence that Petitioner and its staff were unwilling or unable to:
Petitioner has not offered evidence which rebuts the prima
facie evidence obtained by the surveyors. With respect to R25, Petitioner
asserts that the resident's assaultive behaviors occurred "within hours
of his admission" to Petitioner's facility and Petitioner "never had the
opportunity to fully evaluate this resident or implement a treatment plan
to address his behaviors." Petitioner's brief at 5. But, the fact is that
the assault that the resident perpetrated on April 19, 2000, gave Petitioner's
staff ample warning that this resident posed a threat for assaultive conduct.
Notwithstanding this warning, Petitioner's staff failed to take appropriate
measures to prevent the resident from committing a second assault on the
following day. Petitioner's response to the surveyors' findings concerning
episodes of unauthorized smoking essentially is to argue that there is
no evidence that any harm resulted from these episodes. But, Petitioner
does not deny that the episodes occurred. See Petitioner's brief
at 7. Petitioner's response to the allegations does not address the dangers
- such as a fire hazard - that were the consequence of unsupervised smoking.
Moreover, the fact that Petitioner's staff failed to supervise adequately
the residents' smoking suggests a more generalized overall failure of
staff to supervise residents. Petitioner has not offered persuasive evidence to refute the surveyors' findings that Petitioner lacked procedures which contained criteria for determining which residents could receive passes. Nor has Petitioner provided evidence that addresses the surveyors' findings that Petitioner lacked procedures for dealing with drug and alcohol abuse. Petitioner concedes that many of
the unauthorized absences and elopements documented by the surveyors occurred.
Petitioner makes two arguments to justify the unauthorized absences and
elopements from its facility. First, Petitioner contends that its residents
had "a right to go out and be in the community" and that these residents
also had "a right to engage in self-destructive behaviors." Petitioner's
brief at 12. As an aspect of this argument, Petitioner contends that it
was helpless to prevent residents with pass orders from going out into
the community and engaging in self-destructive behaviors because, aside
from physician-ordered restrictions, it lacked the authority to infringe
on the residents' rights. Second, Petitioner asserts that the surveyors'
findings do not document an immediate jeopardy level deficiency because
the surveyors did not find evidence that actual harm occurred to the eloping
or escaping residents. E.g., Id. at 16 - 17. The evidence offered by CMS which Petitioner did not rebut establishes that, as of May 12, 2000, Petitioner was a laxly run facility whose staff either tolerated or was unable to prevent assaults by residents directed against other residents and whose staff permitted or was unable to prevent numerous unauthorized absences and elopements by residents. In Woodstock Care Center, DAB CR623 (1999), aff'd, DAB No. 1726 (2000), I held that a long-term care facility's failure to supervise adequately its residents in order to prevent assaults and elopements was a failure to provide adequate supervision to prevent accidents as is required by 42 C.F.R. � 483.25(h)(2). The facts of this case are not distinguishable from those in Woodstock. Petitioner's inattentiveness to its residents constituted a failure to provide adequate supervision to prevent residents from experiencing accidents. As I explained in Woodstock, 42 C.F.R. � 483.25(h)(2) does not mandate that a facility be accident-free. Nor does it impose a strict liability standard on a facility. However, the regulation does require that a facility provide adequate supervision of its residents. The failure of Petitioner or its staff to provide adequate supervision is evident here. The potential for harm resulting from this lack of supervision is obvious. Residents of Petitioner - many of whom suffered from various mental illnesses and who were residing at Petitioner precisely because of their self-destructive or destructive behaviors - were allowed to roam the community free from any meaningful supervision. The likelihood was that at least some of these unsupervised residents would engage in the behaviors for which they were receiving treatment. 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) placed residents of Petitioner at immediate jeopardy. Petitioner's principal argument to refute the immediate jeopardy determination is that CMS did not offer evidence to prove that any of Petitioner's residents experienced actual harm resulting from assaults, unauthorized absences, and elopements. However, actual harm is not a necessary element of a finding of an immediate jeopardy level deficiency. Immediate jeopardy may be present not only where immediate harm has occurred, but where circumstances establish a likelihood of serious injury, harm, impairment, or death. An "immediate jeopardy level" deficiency is a failure to comply with a federal participation requirement or requirements that has caused or is likely to cause serious injury, harm, impairment, or death to a resident of a long term care facility. 42 C.F.R. � 488.301. CMS's determination that there was a likelihood that some of Petitioner's residents would suffer serious injury, harm, impairment, or death as a consequence of Petitioner's lax supervision is not clearly erroneous. As I have discussed above, many of Petitioner's residents were individuals who were capable of harming themselves or others. These were individuals who, in some cases, had a history of substance and alcohol abuse problems. Some of them were capable of violent acts as is made clear from R25's assaults that are documented in the report of the May 12 survey. Yet Petitioner allowed or was unable to prevent some of these residents from roaming free of the facility unsupervised and unaccounted for.
The surveyors who conducted the May 26 survey found a continuing immediate jeopardy level failure by Petitioner to comply with the requirements of 42 C.F.R. � 483.25(h)(2). CMS Ex. 8. These surveyors found that Petitioner: continued to allow residents to leave its premises inappropriately; allowed one resident to elope the facility; and, failed to implement a corrective system designed to assure that residents not be permitted unauthorized absences. Id. at 1 - 21. The surveyors found specific examples to support their allegations. The evidence relied on by the surveyors and by CMS to support these allegations includes records generated by Petitioner's staff. Petitioner did not rebut the allegations made in the report of the May 26 survey. Petitioner conceded that residents went off the premises of Petitioner's facility without appropriate authorization. Petitioner's brief at 21 - 22. Petitioner's argument in opposition to the finding of a deficiency is, essentially, that there is no proof that any of the residents whose absences were unauthorized were actually harmed. The unrebutted evidence presented by CMS sustains the surveyors' findings of a continuing immediate jeopardy level deficiency. As I explain above, the standard for an immediate jeopardy level deficiency does not require a finding of actual harm to residents but only of the likelihood of serious injury, harm, impairment, or death to residents. The prima facie evidence which CMS offered concerning the findings of the May 26 survey satisfies this standard. Petitioner did not rebut this evidence.The likelihood of serious injury, harm, impairment, or death to residents resulting from Petitioner's continued failure to supervise its residents adequately is obvious from the unrebutted evidence that CMS presented. For example, in the case of R26, Petitioner's staff allowed a resident who was expressing suicidal thoughts, who had abused street drugs and alcohol, and who was restricted to supervised passes from the facility, to leave the facility unsupervised. CMS Ex. 8 at 2. This resident did not return to the facility for seven and one-half hours. Id. When the resident finally returned to the facility, the resident was highly intoxicated and had to be transferred to a hospital. Id. As another example, R70 had a history of substance and alcohol abuse. The resident had a physician's order for a one-hour pass to be issued at the discretion of Petitioner's staff. Id. at 5 - 6. However, Petitioner's staff issued the resident an unsupervised pass. Using this pass, the resident left the facility and remained absent for four days. Id. at 6.
A basis exists in law for CMS to impose remedies against a long-term care facility which participates in Medicare or a State Medicaid program if the facility fails to comply substantially with one or more federal requirements governing Medicare or Medicaid participation. 42 C.F.R. �� 488.406(a)(3), 488.430. A facility fails to comply substantially with a participation requirement where the facility is deficient in meeting that requirement and the deficiency poses a potential for causing more than minimal harm to the health and safety of the facility's residents. 42 C.F.R. � 488.301. It is not necessary for there to be multiple deficiencies at a facility as a prerequisite for the imposition of remedies against that facility. The presence of even one deficiency, if that deficiency is substantial, is a basis for the imposition of remedies. Remedies that CMS may impose include: termination of participation in Medicare or Medicaid; denial of payment for new admissions; and, civil money penalties. Civil money penalties of $3,050 or more may be imposed where a facility has at least one immediate jeopardy level deficiency. 42 C.F.R. � 488.438(a)(i). A basis exists to impose remedies against Petitioner consisting
of: denial of payment for new admissions, termination of Petitioner's
participation in the Illinois Medicaid program, and civil money penalties
of at least $3,050 per day for each day of the May 12 - 26, 2000 period.
The basis for these remedies is the presence of an immediate jeopardy
level deficiency as of May 12, 2000, which was not abated as of May 26,
2000. The surveyors who conducted the May 12 survey found that Petitioner had two immediate jeopardy level deficiencies as of that date. These involved alleged failures by Petitioner to comply with the requirements of 42 C.F.R. �� 483.13(c)(1)(ii) and 483.25(h)(2). At Finding 2 of this decision I sustain the finding of an immediate jeopardy level failure to comply with the requirements of 42 C.F.R. � 483.25(h)(2). It is not necessary that I address the alleged failure by Petitioner to comply with the requirements of 42 C.F.R. � 483.13(c)(1)(ii) inasmuch as Petitioner's immediate jeopardy level failure to comply with the requirements of 42 C.F.R. � 483.25(h)(2) is a sufficient basis for CMS to impose the remedies that CMS determined to impose in this case.
CMS determined to impose civil money penalties of $7,500
per day against Petitioner for each day of the period that ran from May
12, 2000 through May 26, 2000, based on the presence of immediate jeopardy
level deficiencies at the May 12 and 26 surveys. I conclude that civil
money penalties in these amounts are reasonable. The regulations authorize civil money penalties in amounts
that range between $3,050 and $10,000 for each day that a facility has
an immediate jeopardy level deficiency. 42 C.F.R. � 488.438(a)(i). Where
within that range a civil money penalty or penalties should lie depends
on the application to the facts of the case of regulatory factors which
must be considered in determining the amounts of civil money penalties.
These are set forth at 42 C.F.R. �� 488.438(f) and 488.404 (incorporated
by reference into 42 C.F.R. � 488.438(f)(3)). These
factors include: a facility's history of noncompliance; its financial
condition; the seriousness of a facility's deficiencies; and, the relationship
between deficiencies. I have considered these factors in deciding whether CMS's
civil money penalty determination is reasonable. I sustain CMS's determination
to impose civil money penalties in amounts of $7,500 per day for each
day of the May 12 - 26, 2000 period because of the high risk of harm to
Petitioner's residents, the pervasiveness of Petitioner's failures of
oversight and supervision, and Petitioner's culpability. I have taken
into consideration that Petitioner offered no evidence showing that it
lacks the financial ability to pay the civil money penalties that CMS
determined to impose. Indeed, Petitioner has not supplied any argument
as to what amounts of civil money penalties might be imposed beyond asserting
that the facts do not establish a basis to impose remedies in this case.
See Petitioner's brief at 1. I note that in my Order Directing Parties to Provide Supplemental Information, I specifically asked Petitioner if it was denying that civil money penalties in the amounts of $7,500 per day were reasonable assuming that a basis existed to impose civil money penalties against Petitioner. Petitioner did not respond to this order. My analysis of the factors which govern the imposition of civil money penalties against Petitioner is as follows.
CMS argues that the case for civil money penalties in amounts of $7,500 per day is strengthened by evidence establishing a second immediate jeopardy level deficiency as of May 12, 2000. This deficiency was identified by the surveyors as an alleged failure by Petitioner to comply with the requirements of 42 C.F.R. � 483.13(c)(1)(ii). At Finding 3, I explain why it is unnecessary for me to consider this alleged deficiency in reaching my conclusion that a basis exists to impose remedies against Petitioner. I also find it unnecessary to consider this alleged additional deficiency as an element of my decision sustaining the $7,500 per day civil money penalties that CMS determined to impose against Petitioner. The evidence which relates to Petitioner's immediate jeopardy level failure to comply with the requirements of 42 C.F.R. � 483.25(h)(2) is adequate to sustain CMS's penalty determination. |
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JUDGE | |
Steven T. Kessel Administrative Law Judge
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