SUBJECT:

Southridge Nursing and Rehabilitation Center,

Petitioner,

Health Care Financing Administration

I. Procedural background

HCFA found that Petitioner was not in substantial compliance with Medicare participation requirements on October 4-5, 1997, based on the October 10, 1997 complaint survey by the Iowa Department of Inspections & Appeals (IDIA).⁽¹⁾ A survey is identified by its exit date; the survey lasted from October 7 through October 10, 1997.

HCFA cited Petitioner under Tag F-324 and Tag F-490. HCFA determined that there was immediate jeopardy for each of the citations; each was cited at a "J" level of scope and severity. HCFA imposed a $6,100 CMP, comprised of $3,050 per day for two days of immediate jeopardy on October 4-5, 1997. Petitioner was found by HCFA to be in substantial compliance with Medicare participation requirements beginning October 6, 1997.

During the hearing, on June 6-7, 2000, in Des Moines and Marshalltown, Iowa, respectively, each party called witnesses to testify. The transcript of the hearing is referred to as "Tr." At the hearing, Petitioner's exhibits (P. Exs.) 1-8 were admitted into evidence without objection. Tr. 11. HCFA's exhibits (HCFA Exs.) 1-3 were offered into evidence, but Petitioner objected to HCFA Ex. 3. I overruled the objection, and HCFA Exs. 1- 3 were admitted into evidence. Tr. 10. At the close of the hearing, the parties jointly offered HCFA Ex. 4 as an additional exhibit which I admitted. Tr. 43. The parties submitted initial posthearing briefs (P. Br. and HCFA Br.) and reply briefs (P. R. Br. and HCFA R. Br.).

II. Applicable law

Skilled nursing facilities, such as Petitioner, participate in the Medicare program by entering into provider agreements with the United States Department of Health and Human Services (DHHS). Requirements of participation are imposed by statute and regulation. Act, section 1819 [42 U.S.C. § 1395i-3]; 42 C.F.R. Parts 483, 488, and 489.

The regulations define "substantial compliance" as follows: "Substantial compliance means a level of compliance with the requirements of participation such that any identified deficiencies pose no greater risk to resident health or safety than the potential for causing minimal harm." 42 C.F.R. § 488.301 (italics in original).

The regulations define "immediate jeopardy" as follows: "Immediate jeopardy means 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." Id. (italics in original).

The regulations specify that a CMP that is imposed against a provider will fall into one of two broad ranges of penalties. Per day CMPs in the lower range, from $50 to $3,000 per day, are imposed for deficiencies that do not constitute immediate jeopardy, but either cause actual harm to residents, or cause no actual harm, but have the potential for causing more than minimal harm. Per day CMPs in the upper range, from $3,050 per day to $10,000 per day, are imposed for deficiencies that constitute immediate jeopardy to one or more of a provider's residents. 42 C.F.R. §§ 488.408, 488.438(a).

The preponderance of the evidence standard is applied to resolve disputed issues of fact, except as provided by 42 C.F.R. § 498.60(c)(2), which states that in CMP cases, HCFA's determination as to the level of noncompliance of [a skilled nursing facility] must be upheld unless it is clearly erroneous.

HCFA bears the burden of coming forward with evidence sufficient to establish a prima facie case that the provider was not in substantial compliance with the participation requirements at issue. Once HCFA has established a prima facie case, the provider has the ultimate burden of persuasion: to prevail, the provider must prove by a preponderance of the evidence that it was in substantial compliance with each participation requirement at issue. Hillman Rehabilitation Center, DAB No. 1611 (1997); aff'd Hillman Rehabilitation Center v. United States, No. 98-3789 (GEB) (D.N.J. May 13, 1999).

III. Issues, findings of fact and conclusions of law

A. Issues

The principal issue is whether Petitioner was in substantial compliance with Medicare participation requirements on October 4 and 5, 1997. The more specific issues are:

•Whether Petitioner was in substantial compliance with 42 C.F.R. § 483.25(h)(2), a quality of care requirement concerning accidents [Tag F-324]. If not, a further issue is whether the noncompliance resulted in immediate jeopardy;

•Whether Petitioner was in substantial compliance with 42 C.F.R. § 483.75, the administration requirement [Tag F-490]. If not, a further issue is whether the noncompliance resulted in immediate jeopardy.

B. Findings of fact and conclusions of law

Below, I make four findings of fact and conclusions of law (Findings). I set forth each Finding as a separately numbered heading in bold face type, followed by a discussion of the Finding in detail. The first two Findings cover the two citations on the Statement of Deficiencies, HCFA form 2567L, specifically, 42 C.F.R. §§ 483.25(h)(2) and 483.75, Tags F-324 and F-490, respectively. The third Finding covers HCFA's determination that there was immediate jeopardy, which must be upheld unless clearly erroneous, under 42 C.F.R. § 498.60(c)(2). The fourth Finding covers the reasonableness of the CMP.

1. Finding. Petitioner did not provide adequate supervision to prevent accidents between 9:30 p.m. on October 4, 1997 and 6:30 a.m. on October 5, 1997 [Tag F-324]. Consequently, Petitioner was not in substantial compliance with 42 C.F.R. § 483.25(h)(2).

Following the October 10, 1997 survey, HCFA cited Petitioner with Tag F-324, the quality of care requirement under 42 C.F.R. § 483.25(h)(2), which states in pertinent part:

42 C.F.R. § 483.25 Quality of care.Each resident must receive and the facility must provide the necessary care and services to attain or maintain the highest practicable physical, mental, and psychosocial well-being, in accordance with the comprehensive assessment and plan of care.

* * *

(h) Accidents. The facility must ensure that--

* * *

(2) Each resident receives adequate supervision and assistive devices to prevent accidents.

I find that HCFA's allegation that Petitioner failed to provide "adequate supervision" is sustained by the evidence.

(a) Chronology

Petitioner is a 82-bed skilled nursing facility, sometimes called a "SNF," sometimes called a nursing home, located in Marshalltown, Iowa. There were 68 residents during the month of October 1997. HCFA Ex. 1.

Resident # 3 was a 41-year-old male resident of Petitioner's facility who had been diagnosed with multiple sclerosis (MS). Tr. 54. He functioned at a high-cognitive level. Tr. 33-34. He was assessed on the Minimum Data Set (MDS) documentation as having no deficits with respect to cognitive decision-making. HCFA Ex. 2 at 99. He testified at the hearing. Tr. 193-205. He utilized an electric wheelchair for self-mobility. His Plan of Care (POC) showed him with no mental deficits and provided him with control over his medical decisions. HCFA Ex. 2 at 118; HCFA Ex. 4 (item c); Tr. 57, 103, 221-222. The POC did not restrict his activities. Resident # 3 owned and used a computer located in his room. HCFA Ex. 2 at 10; Tr. 171.

On October 4, 1997, Resident # 3 utilized his electric wheelchair to transport himself outside of Petitioner's building. HCFA Ex. 4 (item d); Tr. 194. He traveled East of Petitioner's building to a common area known as the picnic table. HCFA Ex. 2 at 12; Tr. 172-173. He performed this maneuver several times a day to go outside to smoke cigarettes. He did not utilize Petitioner's written sign-out procedure for these occasions. He did not have a habit of leaving the facility with family or friends without signing out (others signed for him due to his loss of writing ability). HCFA Ex. 2 at 110; Tr. 202.

In the early evening of October 4, 1997, members of Petitioner's staff last observed Resident # 3 near the picnic table visiting with his father at approximately 7:20 p.m. HCFA Ex. 4 (item e); Tr. 186. Later, Resident # 3 decided to venture further, beyond the picnic table area. Without informing anyone what he was doing or where he was going, he guided his wheelchair outside the chain-link fence surrounding the perimeter of the Northeast side of the facility. HCFA Ex. 1 at 2; HCFA Ex. 2 at 33; Tr. 195. He testified that he wanted to get a better look at the new construction taking place on the Northeast side of Petitioner's facility. Tr. 194. The topography on the outside of the chain-link fence included a downward slope of about 30 degrees, away from the fence toward a lower weedy area. Resident # 3 maneuvered along the outside of the fence. When he tried to back the chair up to return to the facility, he got too close to the edge of the hill. The wheelchair could not overcome the gravity of the slope. His wheelchair, with him in it, careened down the slope for approximately 23 feet to the weedy flat area. Id. Resident # 3 utilized a seatbelt in his wheelchair. He neither upset nor fell out of the chair. He maneuvered the self-propelled wheelchair an additional 25 feet on the flat area.

Resident # 3 estimated that he went down the hill about 8:00 p.m. After a time, he lowered himself out of his wheelchair to the ground and into the weeds. He estimated that this occurred at approximately 9:00 p.m. Resident # 3 indicated that it was dark at the time he lowered himself out of the wheelchair. Tr. 195. Resident # 3 said he initially called out for help, but due to a pre-existing condition of laryngeal spasticity, he could not be heard. HCFA Ex. 4 (item c); Tr. 194. He indicated that he had a few leg spasms before he laid down in the weeds, but indicated, "that was not unusual. Not at all." Tr. 196. After he lowered himself from the wheelchair he had no further cramps the remainder of the night or the next morning. Tr. 92, 196-197. He further indicated that he had no pain or discomfort lying on the grass. Tr. 200-201. He testified that it was a little cold.

He went to sleep and slept soundly. Tr. 179, 196, 200. He believed that he fell asleep fairly quickly. Tr. 197. He didn't hear anyone calling for him. Tr. 197, 201. He didn't see any flashlights. Tr. 201. He awakened twice during the night to change his catheter bag and empty urine. The temperature the evening of October 4, 1997 reached a low of 57 degrees. HCFA Ex. 4 (item m). It did not rain or snow the evening of October 4, 1997. HCFA Ex. 4 (item n). He did not otherwise awaken until dawn, when he was found by Petitioner's administrator at 6:30 a.m. When he awoke at dawn, he looked up and saw his father, the administrator, and facility employees. Tr. 196. Resident # 3 was then brought inside and thoroughly assessed. He suffered no harm and was jovial about the incident. HCFA Ex. 4 (item q); Tr. 38, 177-179, 198. At the hearing, he described his experience as being like a "camping trip." Tr. 194.

The Charge Nurse was working a double shift, from 2:00 p.m. to 10:00 p.m. October 4, 1997 and from 10:00 p.m. October 4 to 6:00 a.m. October 5, 1997. HCFA Ex. 2 at 34-35. While Resident # 3 was outside lying in the weeds that evening at a time that he was normally in his room and ready to be put to bed, he could not be located. He was not found in his room at 9:00 p.m. for his usual medications. HCFA Ex. 2 at 75A. The nursing staff reported to the Charge Nurse at approximately 9:30 p.m. that Resident # 3 could not be found. HCFA Ex. 4 (item f). The Charge Nurse, along with others, made a thorough search of the interior of Petitioner's facility as well as the outside picnic area. HCFA Ex. 4 (item f).

The Charge Nurse along with Nurse Kathleen M. together made a search of the facility building and grounds with flashlights and called out Resident # 3's name at 9:30 p.m. on October 4 and again at 12:30 a.m. on October 5, but could not find him. HCFA Ex. 4 (items f and h). The first time the Resident sign-out book was checked for Resident # 3's name was stated to be 12:30 a.m. HCFA Ex. 2 at 21.

The Charge Nurse did not pursue the "Missing Resident"⁽²⁾ procedure. She stated she believed that the missing resident was with family members or friends. HCFA 2 at 3. The facility had a "Missing Resident" procedure which was in effect, accessible to the staff, and the staff had been informed of its content. HCFA Ex. 2 at 131-132. The Charge Nurse acknowledged receiving training that covered the "Missing Resident" policy on December 23, 1996. The Orientation Skills Checklist, which the Charge Nurse initialed, included item (14) "Missing Resident Policy." HCFA Ex. 2 at 30. Petitioner's employees, Kathy M., Dan O., Anna B., Cindy B.,and Greg G. recall seeing the "Missing Resident" policy in its usual place on the bulletin board prior to October 4, 1997. The statement of each of those employees is found in HCFA Ex. 2 at 5, 11, 13, 14, and 20, respectively.

Telephone calls were placed to the home of Resident # 3's mother and sister between 10:15 and 10:30 p.m. on October 4 to inquire if Resident # 3 was with family or friends. HCFA Ex. 2 at 6. But no one answered the calls. Resident # 3's mother and sister were both listed on the clinical record as contact persons for him. HCFA Ex. 4 (item g). Some calls were again made to family members at 2:30 a.m. and at 4:00 a.m. on October 5, 1997, but again no one answered the phone. HCFA Ex. 4 (item i). The clinical record for Resident # 3 did not list a phone number for Resident # 3's father, who was divorced from Resident # 3's mother. Tr. 187.

The Charge Nurse called the Marshalltown police at approximately 4:45 a.m. HCFA Ex. 2 at 8; HCFA Ex. 4 (item j). A police officer, Officer McCauley, arrived and took a missing person report at approximately 5:00 a.m. The officer then conducted a sweep of the area outside North and East of Petitioner's facility for approximately 45 minutes with his flashlight while with the Charge Nurse. Tr. 157. He continued to search by himself with his flashlight. He estimated he ceased his search at around 6:30 a.m. Tr. 157-158. The officer testified that he conducted a thorough search. Tr. 166. He made several passes in a semi-circle extending out ten to twenty yards on each pass, making a total of seven to eight passes. Tr. 162. Officer McCauley concluded that Resident # 3 was not in the field behind the facility. Tr. 158. He found neither Resident # 3 nor his wheelchair.

A call was made at approximately 5:30 a.m. to the Director of Nursing (DON) who was home sleeping. HCFA Ex. 4 (item k); Tr. 176, 188. The DON then promptly called the facility administrator who was also at home. When the administrator arrived, he began yet another search of the area outside of the chain-link fence. It was now dawn. The administrator found Resident # 3 asleep in the weeds at 6:30 a.m. HCFA Ex. 4 (item p). When awakened, Resident # 3 was initially assessed where he was found and then brought inside Petitioner's building.

Resident # 3 was then given a complete physical where it was again confirmed he suffered no injuries. Resident # 3's treating physician was contacted but Resident # 3 required no physician intervention, no medications, no diagnostic tests or medical treatments or hospitalization as a result of being outdoors overnight. HCFA Ex. 4 (items r & s).

The Charge Nurse was fired on October 5, 1997 for "gross incompetence - knowingly did not follow proper procedure for missing resident." She had failed to contact the administrator and the DON pursuant to Petitioner's policy regarding missing residents. HCFA Ex. 2 at 26; HCFA Ex. 4 (item l). The policy requires that the first step be notifying the administrator that a resident is missing. HCFA Ex. 2 at 131.

(b) Discussion

Where the adjective "adequate" modifies the noun "supervision" (of residents), "adequate" has been used variously as a requirement of "quantity" (as a synonym for sufficiency of numbers) and of "quality." See Woodstock Care Center, DAB No. 1726 (2000) and Lakeland Continuing Care Center, DAB CR683 (2000).

Adequate (supervision) as an adjective meaning quantity.

When being considered as a quantity requirement, this regulation also interfaces with the content and purposes of Resident # 3's assessment and plan of care in the Nursing services regulation.

42 C.F.R. § 483.30 Nursing services. The facility must have sufficient nursing staff to provide nursing and related services to attain or maintain the highest practicable physical, mental, and psychosocial well-being of each resident, as determined by resident assessments and individual plans of care (emphasis added).

In this case, there is no showing that a greater number of on-duty nursing staff would have prevented the incident. There is also no showing that an increase in the numbers of nursing staff or a different ratio of staff to residents on the night shift would have affected the outcome of the location and recovery of Resident # 3 or would have resulted in a technically better search (although common sense could lead to the inference that it would have).

Adequate (supervision) as an adjective meaning quality.

Resident # 3 functioned at a high-cognitive level and made his own decisions and was actively involved in his own care. He was assessed on the MDS assessment as having no deficits with respect to cognitive decision-making. Because of his control of his cognitive functions and his independence, there is no dispute that this resident had greater freedom of movement and a higher level of trust (not to injure himself) than the remainder of Petitioner's residents. Because of his freedom of movement, he could have easily put himself into a position of danger many times before Petitioner's staff could have had an opportunity to intervene or rescue him. He had the freedom to leave the interior of Petitioner's building any time he wished, but there is no history that he had abused that privilege. Petitioner presented evidence that giving Resident # 3 more freedom over his own movement was important to his attaining his highest practicable level of physical and mental and psycho social well-being. Tr. 58.

HCFA has not asked that Petitioner keep Resident # 3 indoors at all times. The regulation cited by HCFA, 42 C.F.R. § 483.25, states very clearly that Petitioner must provide services, including supervision, which would allow the resident to attain and maintain his highest practicable level of physical, mental, and psycho social well-being. However, because Resident # 3 was physically dependent, Petitioner had a countervailing duty to protect the dependent individual under its care against accidents. This would involve consideration of a variety of measures designed to keep staff reasonably apprised of his needs. The adequacy of measures which it takes to effectuate this requirement does place a high expectation on Petitioner to achieve results, but it does not amount to strict liability or require absolute success in an obviously difficult task. Woodstock, supra, at 27. While 42 C.F.R. § 483.25(h)(2) does not impose strict liability upon Petitioner, for instance where a resident wanders unsupervised, the relevant inquiry is whether there was supervision which was adequate for Resident # 3's situation. Heath Nursing and Convalescent Center, DAB CR623 at 6 (1999).

By the time Resident # 3 was determined to be missing (9:00-9:30 p.m.), the wheelchair had already rolled down the embankment, it was dark, and Resident # 3 had lowered himself to the ground into the weeds and possibly was already asleep. Tr. 197. I find that Petitioner is not responsible for Resident # 3 rolling down the hill, even though that may have been the time of the greatest potential for injury to Resident # 3. I find that Petitioner could not have anticipated that event and had no control over it. Consequently, Resident # 3's having rolled down the hill was not the result of any lack of adequate supervision by Petitioner. [To prevent the occurrence of a similar incident, however, precautions may be required.]

From the area outside the chain-link fence at the top of the slope, one could view the new building construction site, which was adjacent to the weeds at the bottom of the slope. The construction site could be accessed from directions other than that of Resident # 3's approach. There was no evidence that Petitioner should have sealed off the area beyond the chain-link fence to prevent ingress or egress except by designated routes. HCFA Ex. 2 at 53-54. Petitioner's not having blocked access to the area outside of Petitioner's chain-link fence did not, in this case, contribute to a lack of adequate supervision by Petitioner.

Petitioner's facility was located in an uncongested neighborhood in a relatively small town within a rural community, not inherently dangerous. The area where Resident # 3 rolled downhill also was not in any ordinary sense dangerous. The slope was gradual. There were no hidden holes. There were no rocks. There was a soft surface (i.e., grass) to traverse. There were no physical factors suggesting that there was any duty to warn of physical danger. When asked whether his ride down the hill was "scary, frightening," he answered: "it was quick." Tr. 199. I find that Petitioner's not having warned any of the residents of any potential danger of the embankment outside the chain-link fence did not, in this case, contribute to a lack of adequate supervision by Petitioner.

The Charge Nurse knew as early as 9:30 p.m. on October 4, 1997 that Resident # 3 was missing. The nursing assistant attending to Resident # 3 did not find him for his evening medications at 9:00 p.m. or to put him to bed and reported this to the Charge Nurse. There was no indication of an irregularity related to Resident # 3 between 7:20 and 9:30 p.m. October 4, 1997, which would have suggested to the Charge Nurse that she should promptly implement the Missing Resident procedure. I find that the failure to consider the Missing Resident procedure earlier than 9:30 p.m. on the evening of October 4, 1997 did not contribute to a lack of adequate supervision by Petitioner.

There was testimony that the Missing Resident policy was not in its usual posted place on the evening when Resident # 3 was missing. Even if the document was not in its usual place or was lost, it is not credible that the Charge Nurse did not know of its existence, since she and all the other staff had received in-service training. She acknowledged that she received orientation in the policy. HCFA Ex. 2 at 30 item (14). After reasonable persons could have concluded that there was the possibility of a missing resident (Resident # 3), the carefully thought out policies, procedures, and protocol needed to be considered. The plan was prepared by Petitioner and was presumably tailored to reflect the needs of the residents in the particular community. When the Charge Nurse became aware that Resident # 3 was unaccounted for, it was significant that she based her subsequent actions on intuition rather than acting in a logical pre-arranged manner based upon the evidence at hand. I find that the failure of the Charge Nurse to consider the Missing Resident policy at 9:30 p.m. contributed to a lack of adequate supervision by Petitioner.

Resident # 3 did not use strict sign-out procedures in accordance with long-standing practice because he had the freedom to go outside at-will to smoke on the facility grounds. However, Resident # 3 testified that when family or friends picked him up to leave the premises, they would sign him out. Tr. 201-202; HCFA Ex. 2 at 110. Resident # 3's adherence to strict sign-out rules when he left with friends in the recent past had improved prior to the accident. Tr. 216. Regardless of the Charge Nurse's intuition or strong belief that Resident # 3 was probably with friends or family who had failed to sign him out, and even if there had been times when Resident # 3 was not properly signed out, the Charge Nurse should have acted in quick response to Resident # 3 being missing, even if it turned out be a false alarm. The fact that Resident # 3 was missing, in combination with the fact that Resident # 3 was not signed out, should have set the Missing Resident policy in play. The sign-out sheet was not checked by the Charge Nurse until 12:30 a.m. on October 5, 1997. HCFA Ex. 2 at 8, 21. I find that the failure of the Charge Nurse to check the sign out sheet until 12:30 a.m. on October 5, 1997, contributed to a lack of adequate supervision by Petitioner.

The Charge Nurse failed to contact the administrator, at all. She called the local police at 4:45 a.m. The DON was called at 5:30 a.m. Petitioner's "Missing Resident" policy required that the first step when a resident is missing is to notify the administrator. HCFA Ex. 2 at 131. The Charge Nurse would notify her supervisor, the DON. This step would have been required at the earliest time that Resident # 3 was confirmed to be missing, i.e., 9:30 p.m. on October 4, after an initial search of the building and grounds failed to locate him. Violation of an internal policy does not necessarily constitute a failure to meet the requirements of a regulation, because the policy may require more than the regulation requires. Here, I find that failure to follow the "Missing Resident" policy contributed to a lack of adequate supervision by Petitioner.

The administrator and the DON should have been contacted at 9:30 p.m. The DON was called 5:30 a.m. and the DON then promptly called the administrator. The Charge Nurse initiated action to contact her superiors far too late, eight hours too late. When the administrator became involved, and was told that staff had no phone number for Resident # 3's father, the administrator drove to Resident # 3's father's residence to make contact with him. Resident # 3's father, the last person with whom Resident # 3 had been seen, was a valuable component of the search. If Resident # 3's father had any clues about Resident # 3's whereabouts, those clues were not available as early as they could have been, and apparently were not available to the police officer upon his arrival. As it turned out, when dawn arrived, the light enabled the staff to find Resident # 3. With more information, perhaps from Resident # 3's father, Resident # 3 might have been located earlier. I find that the failure of the Charge Nurse to do more to make contact with the last person known to have been with Resident # 3 contributed to a lack of adequate supervision by Petitioner.

The DON and administrator should have been called at 9:30 p.m., and they should have been called before the police were called. Thus, the failure of the Charge Nurse to follow Petitioner's protocol specifically related to the order of persons contacted (calling the DON and administrator first, before calling the police) contributed to a lack of adequate supervision by Petitioner.

The testimony was that when Resident # 3 left the facility with family or friends, he took his light-weight manually-powered wheelchair so that it could easily be lifted into a passenger vehicle. Tr. 203. The manual wheelchair was kept near the main door of the facility when not in use. It was not kept in Resident # 3's room. It was not commonly known by the nursing staff that Resident # 3 had two wheelchairs. The evening and night shift usually saw him in his electric wheelchair. The night duty personnel were less likely than day personnel to have known of the existence of the manual wheelchair because of his visitation patterns. Tr. 219, 220. The POC did not contain information about two types of wheelchairs used by Resident # 3. HCFA Ex. at 110. Notations in the POC as to Resident # 3's medical devices (electric and manual wheelchair) would have kept the staff reasonably apprised of his needs and, in this instance, could have served as part of a checklist in determining his whereabouts.

The presence of the manual wheelchair would have indicated two distinct possibilities: (1) Resident # 3 was self-motoring outside of the facility in the electric wheelchair or (2) a friend with a van having a handicap ramp picked him up without signing him out. There was no showing that Resident # 3 had ever been picked up in such a van. There was no evidence that there was even discussion among the nursing staff as to the rarity of the vehicles visiting Resident # 3 which were capable of carrying the electric wheelchair. A determination that the manual wheelchair was not gone, and the electric wheelchair was gone, would have led to a strong inference that Resident # 3 was not with friends or family, contrary to the intuition of the Charge Nurse. I find that the failure of staff to determine whether Resident # 3's manual wheelchair or his electric wheelchair was still in the facility, contributed to a lack of adequate supervision by Petitioner.

Prior decisions have held that failure to provide adequate supervision exists when there is scienter of a pattern of events or behaviors which could adversely affect a resident, and there is a failure of a provider to take steps to prevent accidents. Koester Pavilion, DAB No. 1750 at 28-30 (2000). Woodstock, supra. In this case, there is no showing of pre-existing behaviors (wandering off) which would have alerted Petitioner to tighten the procedures as they apply to this resident. This was a new event without precedent. Furthermore, the evidence shows that up to the time of the event, adequate plans and procedures relating to the emergency event of a missing resident were in force. Tr. 32.

There is nothing in this case to suggest that Petitioner provided inadequate supervision of its residents in any general sense. Rather, Petitioner failed to properly react properly to a single-episode event involving a high functioning resident leaving Petitioner's facility without notice.

A facility participating in the Medicare program is required to provide adequate supervision for the purpose of preventing accidents, which are, by definition, occurrences which are outside of the victim's expectations or ability to control. Heath, supra, at 11. Therefore, the fact that Resident # 3 had not suffered any actual injuries in the past while he was without supervision does not prove that this resident was immune from the risk of accidents or that the facility was without an obligation to help prevent accidents from occurring by complying with 42 C.F.R. § 483.25(h)(2). Id.

Petitioner offered Dr. Robert Bender, a geriatrics specialist, who testified that the dosages of prescribed medications which were missed by Resident # 3 during his time out of the facility did not result in any problems or ill effects. HCFA Ex. 4 (item o); Tr. 198.

Dr. Bender also testified that the cool weather or temperature changes did not have a propensity towards causing muscle spasms in MS patients and did not cause the mild leg cramps described by Resident # 3. Resident # 3 had a prior history of leg spasms or muscle cramps. Petitioner has shown that these spasms or cramps were directly related to Resident # 3's MS. Tr. 52. Dr. Bender testified that Resident # 3's risk of contracting bronchitis from being outside was minimal since bronchitis is caused by an allergy or an infection. Tr. 55, 56.

The evidence is clear that Resident # 3 suffered no actual harm and that he was even jovial about the event. Adequate supervision to prevent Resident # 3 from being involved in an accident must take Resident # 3's needs and limitations into account. Even if a resident has the capacity and freedom to go outside the facility at will, Petitioner may not abdicate its responsibility to provide supervision that is adequate and appropriate to enabling this resident to exercise and effectuate his choices safely, without placing his health at risk for more than minimal harm. Heath, supra, at 5. A facility's errors (if any) may rise to the level of substantial noncompliance if the facility fails to prevent even the potential for more than minimal harm to a resident. Occurrences which increase danger to residents that do not themselves constitute accidents may well be evidence that the supervision provided was not adequate to prevent accidents. Woodstock, supra, at 35.

Petitioner queries whether a deficiency would attach if Resident # 3 were simply outside the facility without the staff's knowledge. P. R. Br. at 3. The answer is yes. I find Petitioner deficient for being unable to account for Resident # 3's whereabouts and failing to attend properly to the task of locating and retrieving him. As time went on, after 9:30 p.m. the night of the incident, Petitioner's staff, especially the Charge Nurse, should have had a heightened sense of alarm about Resident # 3's well being. Petitioner needed to know whether Resident # 3 was alone or with someone, his intended destination, and his expected time of return. Even after Resident # 3 had been safely retrieved, Petitioner needed to be able to account for Resident # 3's absence from its facility.

Petitioner was deficient for being unable to account for Resident # 3's whereabouts and failing to attend properly to the task of locating and retrieving him. The duration of Resident # 3's being outside the facility (about 11-1/2 hours) is significant. HCFA Ex. 4. It is indeed serendipitous that Resident # 3 was found asleep in the weeds, unharmed. He had been lying on the ground for about 9-1/2 hours. My finding that Petitioner failed to attend properly to the task of locating and retrieving Resident # 3 is based on the following:

•failure to consider the "Missing Resident" policy at 9:30 p.m.;

•failure to follow the "Missing Resident" policy;

•failure to check the sign out sheet until 12:30 a.m. on October 5, 1997;

•failure to call the DON and the administrator until 5:30 a.m. on October 5, 1997;

•failure to do more earlier to make contact with the last person known to have been with Resident # 3;

•failure to call the DON and administrator first, before calling the police;

•failure to recognize the significance of whether Resident # 3's manual wheelchair or his electric wheelchair was still in the facility.

Petitioner cannot demonstrate that all reasonable steps to locate Resident # 3 had been taken in a timely manner. The delay by the Charge Nurse in implementing the procedures necessary to bring to bear ever-increasing resources, as needed, to the task of finding Resident # 3, was neglectful of the obligation Petitioner owed to Resident # 3. I find that Petitioner did not provide adequate supervision to prevent accidents between 9:30 p.m. on October 4, 1997, when Resident # 3 was confirmed to be missing, and 6:30 a.m. on October 5, 1997, when he was located and retrieved. Consequently, Petitioner was not in substantial compliance with 42 C.F.R. § 483.25(h)(2).

2. Finding. HCFA failed to establish a prima facie case that Petitioner was not in substantial compliance with the administration requirements under 42 C.F.R. § 483.75 [Tag F-490].

Following the October 10, 1997 survey, HCFA cited Petitioner under Tag F-490, the administration requirement. The Statement of Deficiencies first recites the general language of the administration requirement, which states the following:

42 C.F.R. § 483.75 Administration. A facility must be administered in a manner that enables it to use its resources effectively and efficiently to attain or maintain the highest practicable physical, mental and physical well-being of each resident (bold in original).

The Statement of Deficiencies then states:

The licensee did not assume responsibility for the overall operation of the nursing facility based on:

1. Failure to provide adequate supervision to ensure residents were protected from harm. [see F-324]

HCFA Ex. 1 at 5.

As indicated above, I have found Petitioner deficient under Tag F-324. Nevertheless, under the circumstances here, I will not automatically find Petitioner deficient in "Administration," just by virtue of having been found deficient in ensuring adequate supervision to prevent accidents. The regulations were carefully crafted, and it was not intended that an "Administration" deficiency be triggered each time there is some other failure to meet participation requirements.

HCFA specifically chose not to supplement the HCFA form 2567L with any additional evidence concerning Tag F-490 at the hearing. HCFA Ex. 1; Tr. 40.

There is no specific portion of the "Administration" regulation cited in the form 2567L, and no portion seems to apply to the issues in this case, except subsection 42 C.F.R. § 483.75(m), which states:

* * *

(m) Disaster and emergency preparedness. (1) The facility must have detailed written plans and procedures to meet all potential emergencies and disasters, such as fire, severe weather, and missing residents.

(2) The facility must train all employees in emergency procedures when they begin to work in the facility, periodically review the procedures with existing staff, and carry out unannounced staff drills using those procedures (italics in original).

42 C.F.R. § 483.75(m).

The Charge Nurse was Petitioner's highest ranking employee in immediate charge and with responsibility for the operation of the entire 82-bed facility in the absence of any higher ranking personnel. 42 C.F.R. § 483.30(a)(2). She was then, for all practical purposes, designated by management to serve as their agent during her tour of duty on the 2^nd shift and 3^rd shift. Tr. 32. In the absence of the DON and the administrator, she became de jure "Administration."

Petitioner was deficient for being unable to account for Resident # 3's whereabouts and failing to attend properly to the task of locating and retrieving him. Resident # 3 was outside for 11-1/2 hours (HCFA Ex. 4), 9-1/2 of which he spent on the ground. HCFA's witness stated that, "The system that failed was one that they didn't use their walk-away policy. . " Tr. 233.

A close reading of 42 C.F.R. § 483.75(m) shows, however, that the failure to use the missing resident or walk-away policy is apparently not addressed by this regulation. The requirement to have written plans and procedures for missing residents is required by 42 C.F.R.§ 483.75(m). The provider must also provide training and unannounced staff drills using the procedures.

Petitioner's "Missing Resident" policy was prepared for Petitioners's staff. The HCFA surveyor agrees that the written policy pre-existed the incident and was adequately written. Tr. 32. Petitioner's staff recalled that a copy of the "Walk Away Resident" or "Missing Resident" procedure was normally posted in or near the nurse's station. HCFA Ex. 2 at 5, 11, 13, 14, and 20. There is evidence that the Charge Nurse knew of the procedure and agreed in a conversation with the surveyor that she had received in-service training regarding the "Walk Away Resident" or "Missing Resident" procedure. HCFA Ex. 2 at 30 item (14). There is no evidence that Petitioner failed to carry out satisfactorily "unannounced staff drills," as required under this subsection.

HCFA's allegation of deficiency under Tag F-490 deals with the "implementation," not the preparation, of the emergency plans and procedures regarding missing residents. To further my evaluation of the "Administration" requirements, which apparently do not include implementation, I compare 42 C.F.R. § 483.75(m), which is applicable here, with similar provisions elsewhere in the Code of Federal Regulations.

Similar paragraphs dealing with emergency plans for missing persons (clients), found in the Conditions of Participation portion of the regulations for Immediate Care facilities (ICF), state the following:

(h) Standard: Emergency plan and procedures. (1) The facility must develop and implement detailed written plans and procedures to meet all potential emergencies and disasters such as fire, severe weather, and missing clients (italics in original).

(2) The facility must communicate, periodically review, make the plan available, and provide training to the staff.

42 C.F.R. § 483.470(h).

Again, the ICF regulation subsection requires the facility to develop and implement the plans and procedures for missing clients.

Also of interest is the "Administration" section of the regulations containing standards for Veteran's hospitals (VA), which reads as follows:

(q) Disaster and emergency preparedness. (1) The facility management must have detailed written plans and procedures to meet all potential emergencies and disasters, such as fire, severe weather, and missing residents.

(2) The facility management must train all employees in emergency procedures when they begin to work in the facility, periodically review the procedures with existing staff, and carry out unannounced staff drills using those procedures (italics in original).

38 C.F.R. § 51.210(q).

The operative difference in the requirements for the three types of health facilities relating to missing "residents" or "clients," is whether the word "implement" is included. For (SNF) and (VA), the word "implement" is absent from the respective regulation subsection. But for (ICF), regarding missing "clients," the word "implement" is included in the regulation subsection. In the instant case, the relevant regulation subsection, 42 C.F.R. § 483.75(m), leaves out the word "implement." The legal implication is that if "implementation" of the "Missing Resident" policy is required, it is covered elsewhere in the regulations.

I find that HCFA has failed to establish a prima facie case that Petitioner was not in substantial compliance with the "Administration" requirements under 42 C.F.R. § 483.75.

3. Finding. HCFA's determination that Petitioner's noncompliance was at the level of immediate jeopardy was not clearly erroneous. 42 C.F.R. §§ 488.301, 498.60(c)(2).

HCFA determined that "immediate jeopardy" resulted from Petitioner's noncompliance. "Immediate jeopardy means 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 (italics in original).

Resident # 3 did not suffer serious injury, harm, impairment, or death, so the issue is whether it was likely that Resident # 3 would suffer serious injury, harm, impairment, or death, as a result of Petitioner's failure to ensure that Resident # 3 received adequate supervision to prevent accidents, as required under 42 C.F.R. § 483.25(h)(2).

Petitioner argues that the severity level did not rise to the level of immediate jeopardy. Petitioner argues that severity level two (no actual harm with a potential for more than minimal harm, but not immediate jeopardy) fits the evidence in this case. The State Operations Manual (SOM), at Appendix P, gives guidance to surveyors that expands upon severity level two as follows:

2. Level 2 is noncompliance that results in no more than minimal physical, mental and /or psycho social discomfort to the resident and/or has the potential (not yet realized) to compromise the resident's ability to maintain and/or reach his/her highest practicable physical, mental and/or psycho social well-being as defined by an accurate and comprehensive resident assessment, plan of care, and provision of services.

P. Br. at 12; See also 42 C.F.R. § 488.404(b)(ii).

Petitioner points to Appendix Q of the SOM:

"immediate and serious threat" [means] having a high probability that serious harm or injury could occur at any time, or has already occurred, and may well occur again if [residents] are not protected effectively from the harm, or the threat is not removed.

P. Br. at 12-13.

Petitioner offered as proof that it was not likely, and there was not a high probability, that Resident # 3 would suffer serious injury, harm, impairment, or death, the following:

•Resident # 3 suffered no harm or threat of harm from the outdoor exposure due to cold. HCFA Ex. 4 (items q, r).

•Resident # 3 suffered no harm or threat of harm from missing his regular prescribed medications. HCFA Ex. 4 (item o); Tr. 87. •Resident # 3 suffered no harm or threat of harm from the risk of acquiring bronchitis. Tr. 55-56.

•Resident # 3 suffered no harm or threat of harm from leg spasms due to the exposure. Tr. 88, 90, 92.

•Resident # 3 suffered no harm or threat of harm from emotional trauma due to the exposure. Tr. 104, 179.

I agree with Petitioner. I find that it was not likely, and that there was not a high probability, that Resident # 3 would suffer serious injury, harm, impairment, or death, as a result of being outside the facility, even overnight, while Petitioner could not account for his whereabouts and failed to attend properly to the task of locating and retrieving him. In my view, Petitioner's only deficiency in ensuring that Resident # 3 received adequate supervision to prevent accidents, as required under 42 C.F.R. § 483.25(h)(2), is Petitioner's inability to account for Resident # 3's whereabouts, together with Petitioner's failure to attend properly to the task of locating and retrieving him.

I make that determination, both in the abstract, based on Resident # 3's whereabouts being totally unknown, and also in concrete terms, based on where he actually was. Resident # 3 was not only cognitively intact, he was very resourceful and calm, exercised good judgment, and was effective in problem solving. If Petitioner were required merely to prove by a mere preponderance of the evidence that Resident # 3 was unlikely,

by spending the night outside the facility, to suffer serious injury, harm, impairment, or death, I would find that no immediate jeopardy existed. The parties stipulated that Resident # 3 was exposed to a night-time low temperature of 57 degrees. HCFA Ex. 4 (item m). Resident # 3 characterized his experience as a "camping trip." Tr. 194.

On the issue of immediate jeopardy, however, I do not substitute my own conclusion for that of HCFA. I am constrained by 42 C.F.R. § 498.60(c)(2), which provides that the administrative law judge upholds "HCFA's determination as to the level of the noncompliance of" a skilled nursing facility "unless it is clearly erroneous." See also 42 C.F.R. § 498.3(d)(10). Here, the determination of whether there was immediate jeopardy requires some prognosticating, some predicting of probabilities. Reasonable minds certainly can and do differ on issues such as these. Even if the deficiency is limited to Petitioner's inability to account for Resident # 3's whereabouts and Petitioner's failure to attend properly to the task of locating and retrieving him, HCFA could reasonably find that there was immediate jeopardy. Here, where HCFA's determination differs from mine, HCFA's determination is presumed to be correct. I find that HCFA's determination that there was immediate jeopardy is not clearly erroneous, and, indeed, is reasonable.

4. Finding. HCFA's determination that Petitioner's noncompliance lasted two days was reasonable; and HCFA's determination to apply the minimum per day CMP rate, $3,050, was reasonable.

Petitioner asks me to find that the alleged noncompliance was confined to one day, because the entire episode occurred in fewer than 24 hours. The regulations relating to per day CMPs, at C.F.R. § 488.408 (d) and (e), do not define "per day." HCFA's determination that the jeopardy lasted two days, because the period of noncompliance occurred over two calendar dates, is a reasonable interpretation. I agree with HCFA's determination that the period of noncompliance lasted two days.

Where there is a finding of immediate jeopardy, the minimum daily rate for a CMP is $3,050. The $3,050 per day imposed by HCFA for each of the two days is already the minimum, so there is no issue to address concerning the reasonableness of the daily CMP rate.

IV. Conclusion

Petitioner was not in substantial compliance with Medicare participation requirements from 9:30 p.m. October 4, 1997 through 6:30 a.m. October 5, 1997. HCFA therefore had the authority to impose a CMP. HCFA's determination that there was immediate jeopardy was not clearly erroneous. Consequently, a $6,100 CMP is reasonable.

Jill S. Clifton

Administrative Law Judge

1. HCFA contracts with state health agencies to conduct surveys of nursing homes' compliance with Medicare participation requirements. Sections 1864 and 1819(a) of the Social Security Act (Act); 42 U.S.C. § 1395aa; 42 U.S.C. §1395i-3(g); and 42 C.F.R. § 488.20.

2. The "Missing Resident" policy and "walk away resident procedure" describe the policy found in the document in HCFA Ex. 2 at 131.