Ashford Hall, DAB CR6712 (2025)

DECISION

Petitioner, Ashford Hall (Petitioner), is a skilled nursing facility (SNF), located in Irving, Texas, that participates in the Medicare program.  Following a survey by the Texas Health and Human Services Commission (THHSC) that was completed on May 15, 2020, the Centers for Medicare & Medicaid Services (CMS) determined that the facility was not in substantial compliance with Medicare program requirements and imposed a per-instance civil money penalty (PICMP) of $21,393.  Petitioner has appealed, and CMS has moved for summary judgment. 

For the reasons set forth below, I grant CMS’s motion.  Petitioner has not come forward with evidence that, if believed, would show that it did everything possible (within the meaning of the regulation) to minimize the risks of accidents.  The undisputed evidence establishes that the facility was not in substantial compliance with Medicare program requirements under 42 C.F.R. § 483.25(d) (accident prevention), that its deficiency posed immediate jeopardy to resident health and safety, and that the penalties imposed are reasonable.

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I.     BACKGROUND

The Social Security Act (Act) sets forth requirements for nursing facilities to participate in the Medicare program and authorizes the Secretary of Health and Human Services to promulgate regulations implementing those statutory provisions.  Act § 1819.  The Secretary’s regulations are found at 42 C.F.R. Part 483.  To participate in the Medicare program, a nursing facility must maintain substantial compliance with program requirements.  To be in substantial compliance, a facility’s deficiencies may “pose no greater risk to resident health or safety than the potential for causing minimal harm.”  42 C.F.R. § 488.301.

The Secretary contracts with state survey agencies to conduct periodic surveys to determine whether skilled nursing facilities are in substantial compliance.  Act § 1864(a); 42 C.F.R. § 488.20.  Each facility must be surveyed annually, with no more than fifteen months elapsing between surveys.  Facilities must be surveyed more often, if necessary, to ensure that identified deficiencies are corrected.  Act § 1819(g)(2)(A); 42 C.F.R. §§ 488.20(a), 488.308.  The state agency must also investigate all complaints.  Act § 1819(g)(4).

In this case, following a complaint, a surveyor from the THHSC went to the Petitioner’s facility and completed an investigation on May 15, 2020.  CMS Exs. 1, 2.  Based on the state agency’s findings, and citing the regulatory sections below, CMS determined that the facility was not in substantial compliance with 42 C.F.R. § 483.25(d)(1)(2) (Free of Accident Hazards / Supervision / Devices) cited at scope and severity level J (Tag F0689) and 42 C.F.R. § 483.80(a)(1)(2)(4)(e)(f) (Infection Prevention and Control) cited at scope and severity level D (Tag F0880).  CMS Ex. 1.  A per-instance CMP in the amount of $21,393 was imposed for the deficiency cited under Tag F0689.  Id.  CMS did not impose a remedy for the finding of noncompliance cited under Tag F0880.1  CMS Br. at 13-14.

On October 28, 2020, Petitioner filed a timely request for hearing.  On October 29, 2020, Administrative Law Judge (ALJ) Leslie Rogall issued an Acknowledgment and Prehearing Order setting forth prehearing procedures.2  CMS filed a motion for summary judgment and brief in support (CMS Br.), along with 15 exhibits (CMS Exs. 1-15) and 3

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proposed witnesses.  Petitioner filed its brief and response to CMS’s motion for summary judgment (P. Br.), with 15 exhibits (P. Exs. 1-15) and 5 proposed witnesses.  CMS filed a Reply Brief (CMS R. Br.).

Petitioner has also filed objections to CMS’s proposed exhibits (P. Objs.), however, for purposes of summary judgment, I need not rule on whether these documents are admissible.  I must consider all proffered evidence to determine whether it creates a material fact in dispute.  Lilia Gorovits, M.D., P.C., DAB No. 2985 at 3 n.4 (2020), aff’d, Gorovits v. Becerra, 20-1850 (E.D. Pa. May 17, 2021); Ill. Knights Templar Home, DAB No. 2274 at 6-7 (2009).

In any event, Petitioner’s objections are without merit.  Petitioner specifically objects to the following proposed exhibits:  CMS Ex. 2, Form 2567 for the May 15, 2020 investigation; CMS Ex. 7, Surveyor Notes for Ricci Tunnell, LBSW; CMS Ex. 8, Surveyor notes of Karen Fox, RN; CMS Ex. 12, Declaration of Karen Fox, RN; CMS Ex. 13, Declaration of John Mosley, Former Surveyor Ricci Tunnell’s Program Manager; CMS Exhibit 14 – Declaration of Leena Volmer, RN; and CMS Ex. 15, Unlisted Resident 1 Records.  P. Objs.

Petitioner objects to CMS Exs. 2, 7, and 13 on the basis that they include inadmissible hearsay.  See P. Objs.  Under the regulations that govern these proceedings, I have broad discretion to admit evidence.  I am required to “inquire fully into all of the matters at issue” and to admit any documents that are relevant and material, which a statement of deficiencies and surveyor notes unquestionably are.  42 C.F.R. § 498.60(b).  I may receive evidence, including hearsay, that would be inadmissible under the federal rules.  42 C.F.R. § 498.61; Lifehouse of Riverside, DAB No. 2774 at 9 (2017); Britthaven Inc., DAB No. 2018 at 3 (2006) (“In administrative proceedings generally, and in Chapter 498 proceedings expressly, hearsay is admissible and can be probative on the issue of the truth of the matter asserted, where sufficient indicia of reliability are present.”).

Petitioner further objects to these documents as unreliable based on the behavior of the state surveyor.  See P. Objs.  However, CMS, not the individual surveyor nor even the state agency, ultimately decides whether a deficiency should be cited.  42 C.F.R. § 488.452(a)(2).  And even if the surveyor errs (I see no evidence of that here), inadequate survey performance does not invalidate adequately documented deficiencies.  42 C.F.R. § 488.318(b); Avon Nursing, DAB No. 2830 at 2, 11 (2017) (holding that the survey agency’s purported failure to comply with provisions of the Medicare statute did not invalidate CMS’s noncompliance determination or enforcement remedy); see Avon Nursing & Rehab. v. Becerra, 114 F.4th 286 (2d Cir. 2024) (agreeing that the absence of registered nurses from the survey team did not invalidate survey findings).

[T]he ultimate issue before an ALJ is not how the state agency performed the survey or what process it followed to reach its

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conclusions, but “whether the evidence as it is developed before the ALJ supports” CMS’s independent “finding of noncompliance” under the relevant participation requirements.

Avon Nursing, DAB No. 2830 at 11 (quoting Sunshine Haven Lordsburg, DAB No. 2456 at 21 (2012), aff’d in part and transferred, Sunshine Haven Lordsburg v. U.S. Dep’t of Health & Human Servs., 742 F.3d 1239 (10th Cir. 2014)).

Petitioner also objects to CMS Exs. 8, 12, 14 and 15 on the basis that they contain irrelevant and prejudicial information since they relate to other residents and other alleged deficiencies.  P. Objs. at 2.  However, these documents were created at or near the time of the events at issue in this appeal and relate to deficiencies identified at the same time.  As such, the probative value of the exhibits are outweighed by any potential prejudice.

CMS’s exhibits are therefore admissible.

II.     ISSUES

As a threshold matter, I consider whether summary judgment is appropriate.  On the merits, the issues are:

• Was the facility in substantial compliance with 42 C.F.R. § 483.25(d);
• If, the facility was not in substantial compliance with section 483.25(d), did this deficiency then pose immediate jeopardy to resident health and safety; and
• If the facility was not in substantial compliance, is the penalty imposed – $21,393 per-instance – reasonable?

III.     DISCUSSION

Summary judgment.  Summary judgment is appropriate if a case presents no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law.  Bartley Healthcare Nursing & Rehab., DAB No. 2539 at 3 (2013) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-25 (1986)); Ill. Knights Templar Home, DAB No. 2274 at 3-4 (2009) (and cases cited therein).

The moving party may show the absence of a genuine factual dispute by presenting evidence so one-sided that it must prevail as a matter of law or by showing that the non-moving party has presented no evidence “sufficient to establish the existence of an element essential to [that party’s] case, and on which [that party] will bear the burden of proof at trial.”  Livingston Care Ctr. v. U.S. Dep’t of Health & Human Servs., 388 F.3d

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168, 173 (6th Cir. 2004) (quoting Celotex, 477 U.S. at 322).  To avoid summary judgment, the non-moving party must then act affirmatively by tendering evidence of specific facts showing that a dispute exists.  Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 n.11 (1986); see also Vandalia Park, DAB No. 1939 (2004); Lebanon Nursing & Rehab. Ctr., DAB No. 1918 (2004).  The non-moving party may not simply rely on denials but must furnish admissible evidence of a dispute concerning a material fact.  Ill. Knights Templar Home, DAB No. 2274 at 4; Livingston Care Ctr., DAB No. 1871 at 5 (2003).  In doing so, the non-moving party must show more than “some metaphysical doubt as to the material facts.”  W. Tex. LTC Partners, Inc., DAB No. 2652 at 6 (2015), aff’d sub nom. W. Tex. LTC Partners, Inc. v. U.S. Dep’t of Health & Human Servs., 843 F.3d 1043 (5th Cir. 2016); 1866ICPayday.com, L.L.C., DAB No. 2289 at 3 (2009) (quoting Matsushita, 475 U.S. at 587).

In examining the evidence for purposes of determining whether summary judgment is appropriate, I must draw all reasonable inferences in the light most favorable to the non-moving party.  Livingston Care Ctr., 388 F.3d at 172; Brightview Care Ctr., DAB No. 2132 at 2, 9 (2007); Guardian Health Care Ctr., DAB No. 1943 at 8 (2004); see also Brightview, DAB No. 2132 at 10 (entry of summary judgment upheld where inferences and views of non-moving party are not reasonable).  However, drawing factual inferences in the light most favorable to the non-moving party does not require that I accept the non-moving party’s legal conclusions.  W. Tex. LTC Partners, DAB No. 2652 at 6-7; cf. Guardian, DAB No. 1943 at 11 (“A dispute over the conclusion to be drawn from applying relevant legal criteria to undisputed facts does not preclude summary judgment if the record is sufficiently developed and there is only one reasonable conclusion that can be drawn from those facts.”).

Summary judgment applied to administrative review in Medicare cases.  It is well-established that an administrative law judge is empowered to decide a case on a motion for summary judgment, without an evidentiary hearing.  Shah v. Azar, 920 F.3d 987, 996 (5th Cir. 2019) (citing Cedar Lake Nursing Home v. U.S. Dep’t of Health & Human Servs., 619 F.3d 453, 457 (5th Cir. 2010)); see Fal-Meridian, Inc. v. U.S. Dep’t of Health & Human Servs., 604 F.3d 445, 449 (7th Cir. 2010).  Nevertheless, there seems to be some confusion about applying such well-founded principles of civil litigation to these proceedings, with some suggesting that, to do so, denies a party a fundamental right.  In one succinct observation, Judge Posner of the Seventh Circuit Court of Appeals gave lie to such misapprehensions:  “All it means for a decision to be based on a grant of summary judgment is that there are no issues that would benefit from being resolved in an evidentiary hearing.”  Fal-Meridian, 604 F.3d at 449 (emphasis added).

In Fal-Meridian, the Seventh Circuit considered specifically the appropriateness of granting CMS summary judgment in a nursing home case involving (then) section

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483.25(h) (now section 483.25(d)).3  The court sustained the administrative law judge’s granting summary judgment in CMS’s favor because the petitioner/nursing home did not tender “evidence that, if believed, would show that it had done everything possible (within the meaning of the regulation) to minimize the risks of an accident.”  Fal-Meridian, 604 F.3d at 451.  The court stated that the relevant questions were:  1) whether the facility’s “handling of [the resident’s] physical and mental infirmities was consistent with its duty to keep the [facility] as free as possible from hazards that might cause an accident,” and 2) if not consistent, whether the facility’s dereliction of its duty “was likely to cause . . . serious injury, harm, impairment, or death to a resident.”  Fal-Meridian, 604 F.3d at 447.

1. CMS is entitled to summary judgment because the undisputed evidence demonstrates the facility was not in substantial compliance with 42 C.F.R. § 483.25(d)(1)-(2).4

Program requirement:  42 C.F.R. § 483.25(d) (Tag F689).  Quality of care “is a fundamental principle that applies to all treatment and care provided to facility residents.”  42 C.F.R. § 483.25.

The statute and regulation require that the facility ensure that each resident receive, and the facility provide, the necessary care and services to allow the resident to attain or maintain the highest practicable physical, mental, and psychosocial well-being, in accordance with the resident’s comprehensive assessment and plan of care.  Act § 1819(b)(2); 42 C.F.R. § 483.25.

To this end, the “quality of care” regulation mandates, among other requirements, that the facility “ensure” that each resident’s environment remain as free of accident hazards as possible and that each resident receive adequate supervision and assistance devices to prevent accidents.  42 C.F.R. § 483.25(d).  The facility must eliminate or reduce a known or foreseeable risk of accidents “to the greatest degree practicable.”  Del Rosa Villa, DAB No. 2458 at 7 (2012); Clermont Nursing & Convalescent Ctr., DAB No. 1923 at 9-10 (2004), aff’d sub nom. Clermont Nursing & Convalescent Ctr. v. Leavitt, 142 F. App’x 900 (6th Cir. 2005); accord Briarwood Nursing Ctr., DAB No. 2115 at 5 (2007) (holding that the facility must “take all reasonable steps to ensure that a resident receives

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supervision and assistance devices that meet his or her assessed needs and mitigate foreseeable risks of harm from accidents.”).  A facility is permitted the flexibility to choose the methods it uses to prevent accidents, but the chosen methods must constitute an “adequate” level of supervision under all the circumstances.  42 C.F.R. § 483.25(d); Windsor Health Care Ctr., DAB No. 1902 at 5 (2003), aff’d sub nom. Windsor Health Care Ctr. v. Leavitt, 127 F. App’x 843 (6th Cir. 2005).

Where a facility policy or a resident’s care plan requires staff to take specific measures in caring for a resident, “those measures reflect the facility’s own determination of what it must do to attain or maintain the resident’s ‘highest practicable physical, mental, and psychosocial well-being’ as required by the overarching quality-of-care requirement.”  Heritage Plaza Nursing Ctr., DAB No. 2829 at 6 (2017).  The facility is not in substantial compliance with section 483.25(d) if, without justifiable reason, it does not implement the accident precautions that its staff has determined are necessary to mitigate foreseeable accident risks.  Good Shepherd Home for the Aged, DAB No. 2558 at 14 (2018).

These facts are not in dispute.  Resident 2 (R2), who was 78 years old, was admitted to Petitioner’s facility on January 1, 2020, with diagnoses including Alzheimer’s disease unspecified, anxiety disorder, major depressive disorder, insomnia, muscle weakness and unsteadiness on feet.  CMS Ex. 5 at 4-6.

On January 2, 2020, the day following admission, R2 eloped from Petitioner’s facility.  Id. at 2, 73; see P. Exs. 3, 4.  R2 was able to exit Petitioner’s facility at approximately 5:45AM and was found “knocking on doors [by the apartments next door] when someone called 911.”  P. Ex. 3 at 2.  R2 was brought back to the facility by the fire department at approximately 6:08AM.  Id.  The provider investigation report noted that “nurses could not hear the alarms . . . and new alarms were added . . . so staff could hear when someone went through those doors.”  Id. at 2-3.

That same date, Petitioner created R2’s care plan with a goal of ensuring that R2 “remain safe.”  CMS Ex. 5 at 73.  The associated interventions included checking that the alarm system was properly functioning, checking placement of R2’s Wander Guard, obtaining risk assessment for elopement, including resident’s name in elopement binder at nurses’ station, and making staff aware of R2’s watching the doors in order to “follow[] someone out.”  Id.  Petitioner additionally moved R2 into a room that was “directly across from the nurses’ station so that she could be more closely supervised.”  P. Br. at 6 (citing P. Ex. 1-4).  Resident progress notes indicate that R2 was also placed on 15 minutes checks because “she continues to be exit seeking” and was prescribed anxiety medications.  P. Ex. 8 at 21.

According to the Minimum Data Set (MDS) assessment dated February 1, 2020, R2 scored 8 out of 15 on the Brief Interview for Mental Status (BIMS), a tool that assesses

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cognitive function.5  CMS Ex. 4 at 32.  In addition, it was noted that she had a potential indicator of psychosis, including delusions, and displayed wandering behaviors daily.  Id. at 36.  The MDS further noted that an elopement alarm would be used as an aid.  Id. at 65.  In an entry to R2’s Care Plan on February 4, 2020, she was described as an “elopement risk.”  Id. at 20.  As a result, the facility would make sure she was wearing her Wander Guard on every shift and make sure the skin under the Wander Guard bracelet was not impaired.  Id.  

R2 eloped for a second time on March 11, 2020.  CMS Ex. 5 at 1, 17; P. Ex. 8 at 14.  The Petitioner’s provider investigation report specified that R2 exited the facility near nursing station 300.  CMS Ex. 5 at 109.  The report added that R2 was able to leave the facility from the atrium doors after “the ambulance company comes in [to the facility] with an empty stretcher to pick up a resident.”  Id. at 110.  According to Brenda Guevara, Petitioner’s Administrator, “EMTs open[ed] the door, that overrode the Wander Guard system and [R2] was allowed by the EMTs to leave through the open door.”  P. Ex. 14 ¶ 6.  Nursing notes indicated that R2 “eloped out of the building and went all the way to the street . . . After thorough search in and outside the building, resident was located by the [I]rving police department at the street and redirected back to the facility.”  P. Ex. 8 at 14.  The notes further show that R2 frequently attempted to elope in order to “see her parents” and her own daughter stated that “Mom, will elope at any slight opportunity.”  Id.

Following the March 11, 2020, incident, Petitioner updated the care plan and placed R2 on one-on-one monitoring for three days.  CMS Ex. 5 at 73.  Petitioner also conducted an in-service on the topic on “door alarm – not letting resident out when you are leaving.”  P. Ex. 7.  Further, R2 had her medications adjusted “due to exit seeking in the evenings, typical of ‘Sundowner Syndrome.’”  P. Ex. 8 at 11.

On April 7, 2020, Petitioner documented a third elopement by R2.  CMS Ex. 5 at 114.  The progress notes and provider investigation report dated that same day reveal that R2 was seen exiting the facility by another resident at approximately 5:00 PM and was located by a staff member on the street near the back of the building.  CMS Ex. 5 at 115; P. Ex. 8 at 10.  The progress notes revealed that R2 “exited through the back door at station four by the TV area” and that “[s]taff denies having heard the door alarm sound and when checked, the alarm was off.”  Id.  Moreover, Petitioner concedes that the “door alarm did not sound because the battery had died.”  P. Br. at 7 (citing P. Exs. 9, 10).  Thereafter, Petitioner had the alarm fixed by the maintenance director.  CMS Ex. 5 at 115; see P. Ex. 13.

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Following the incident, R2 was moved to a room in the Station 1 Hall area with less exits and was placed on 15 minutes checks with one-on-one monitoring.  CMS Ex 5 at 115.  According to Petitioner, R2’s new room could be better monitored, had fewer exit doors and only one hall.  P. Br. at 7 (citing P. Exs. 1, 2, 8 at 9).  Petitioner also updated R2’s care plan due to her exit seeking “behavior symptoms” and physician’s order for new medications.  P. Br at 7-8 (citing P. Ex. 8 at 8, CMS Ex. 5 at 65).  Lastly, Petitioner conducted an in-service on ensuring that door alarms and batteries were checked two times a day.  P. Ex. 13 ¶ 5.

However, on April 10, 2020 at approximately 8:00PM, R2 again eloped from the facility.  P. Ex. 8 at 7; CMS Ex. 6 at 119-20.  Specifically, R2 was not in her room when she was checked on by Petitioner’s staff.  Id.  Petitioner’s staff thereafter issued a code purple and called 911.  P. Ex. 8 at 7.  Petitioner’s staff were unable to locate R2 in the facility or in the surrounding area.  Id.  The police located R2 – approximately 1.4 miles from the facility – on Belmead Lane and Sunny Brook Drive and brought her back to the facility.  CMS Ex. 2 at 5-6; CMS Ex. 5 at 120.  According to Petitioner “no one knows how she exited the facility.”  P. Br. at 8 (citing P. Ex. 14 at 4).  Petitioner’s notes indicate that all alarms and R2’s Wander Guard were working properly at the time.  CMS Ex. 5 at 120.

Following the fourth elopement, Petitioner attempted to find another facility for R2.  P. Ex. 11.  On April 18, 2020, R2 was transferred to another facility but returned to Petitioner’s facility on April 23, 2020.  P. Exs. 11, 14 at 4.  On May 15, 2020, R2 was discharged from Petitioner’s facility.  P. Exs. 1, 8 at 1, 11.

The issue for resolution here is whether Petitioner provided adequate supervision and assistance devices to prevent R2’s elopements on January 2, 2020, March 11, 2020, April 7, 2020 and April 10, 2020.  As noted above, the quality-of-care regulations, specifically 42 C.F.R. § 483.25(d)(1)(2), require the facility to “ensure” that each resident’s environment remain as free of accident hazards as is possible and that each resident receive adequate supervision and assistance devices to prevent accidents.  The facility must therefore eliminate or reduce a known or foreseeable risk of accidents “to the greatest degree practicable.”  Del Rosa Villa, DAB No. 2458 at 7 (2012); Clermont Nursing & Convalescent Ctr., DAB No. 1923 at 9-10 (2004), aff’d sub nom. Clermont Nursing & Convalescent Ctr. v. Leavitt, 142 F. App’x 900 (6th Cir. 2005); accord Briarwood Nursing Ctr., DAB No. 2115 at 5 (2007) (holding that the facility must “take all reasonable steps to ensure that a resident receives supervision and assistance devices that meet his or her assessed needs and mitigate foreseeable risks of harm from accidents.”).  A facility is permitted the flexibility to choose the methods it uses to prevent accidents, but the chosen methods must constitute an “adequate” level of supervision under all the circumstances.  42 C.F.R. § 483.25(d); Briarwood, DAB No. 2115 at 5; Windsor Health Care Ctr., DAB No. 1902 at 5, aff’d sub nom. Windsor Health Care Ctr. v. Leavitt, 127 F. App’x 843.

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Petitioner primarily argues that it was in substantial compliance with 42 C.F.R. § 483.25(d)(1)(2) because it took “all reasonable measures to prevent [R2] from eloping from the facility.”  P. Br. at 9.  Petitioner further asserts that “it is not required to do the impossible or be a guarantor against unforeseeable occurrences.”  Id.  With respect to the March 11, 2020 elopement, Petitioner argues that the supervision it provided was adequate because it was unforeseeable that a Wander Guard alarm would be overridden by EMTs, who also “spoke to [R2] and let her out the door.”  P. Br. at 10.  In addition, with respect to the April 7, 2020 elopement, Petitioner concedes that the alarm battery died and thus failed to sound when R2 opened the door, but argues that the elopement “was not [a] failure by Petitioner to develop and implement interventions to prevent Resident #2’s elopement.”  P. Br. at 12.

Considering the evidence in the light most favorable to Petitioner, the evidence establishes Petitioner did not comply substantially with 42 C.F.R. § 483.25(d) because its supervision of R2 and the assistance devices it employed were not adequate to mitigate the risks posed by R2’s wandering and elopement behaviors.  Contrary to Petitioner’s arguments, several of the interventions Petitioner implemented were ineffective due to factors that were well within Petitioner’s ability to control.

To address R2’s risk of elopement after her initial elopement on January 1, 2020, Petitioner’s care plan for R2 was updated the next day with the following interventions:  checking that the alarm system was properly functioning, checking placement of R2’s Wander Guard, obtaining risk assessment for elopement, including the resident’s name in an elopement binder at the nurses’ station, and ensuring staff’s awareness of R2 watching the doors and “following someone out.”  CMS Ex. 5 at 73.  Petitioner also moved R2 into a room that was “directly across from the nurses’ station so that she could be more closely supervised,” placed R2 on 15 minutes checks because “she continues to be exit seeking” and prescribed R2 anxiety medications.  P. Br. at 6 (citing P. Ex. 1-4); P. Ex. 8 at 21.  R2’s care plan was also updated on February 4, 2020, with instructions that the facility would make sure she was wearing her Wander Guard on every shift.  CMS Ex. 4 at 20.

Despite these documented interventions, R2 was able to exit the facility for a second time on March 11, 2020.  CMS Ex. 5 at 1, 17; P. Ex. 8 at 14.  Petitioner does not dispute that R2 eloped.  Rather, Petitioner states that the elopement “was not a result of any failure by Petitioner to implement the interventions that had been previously put in place to prevent an elopement or indicate a need to implement new interventions.”  P. Br. at 10.  Petitioner avers that the elopement was “due to forces outside of the facility’s control.”  Id.

However, contrary to its own arguments, Petitioner had previously determined that it could not rely solely on the alarms and Wander Guard to prevent R2 from eloping.  To this point, Petitioner had specifically created an entry in R2’s care plan on January 2, 2020, that its staff needed to be aware that R2 was “watching the doors because she is

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planning on following someone out.”  CMS Ex. 5 at 73.  Moreover, Petitioner’s staff were instructed to “redirect” R2 “back to the unit” if this behavior was observed.  Id.  Accordingly, even if Petitioner could not have anticipated the reason the alarm did not sound when R2 left the facility on March 11, 2020, its care plan belies its argument that it was unforeseeable that R2 could leave the facility after someone else opened the doors.

Similarly, Petitioner’s attempt to blame a faulty battery for its failure to prevent the April 7, 2020 elopement is undermined by its own care plan for R2.  P. Br. at 11-12.  In fact, Petitioner specifically created an entry that the “alarm system will [be] checked by maintenance per protocol to assure that alarm system is functioning properly.”  CMS Ex. 5 at 73.  Moreover, the care plan indicated that the alarm system’s functionality was to be checked daily on day, evening and night shifts.  Id.  Despite this documented intervention, R2 was able to exit Petitioner’s facility without any alarm sounding.  CMS Ex. 5 at 114; P. Ex. 8 at 10.  Significantly, and notwithstanding the required close supervision of R2, staff also did not see R2 exiting the building.  Id.  Rather, R2 was only discovered exiting the building by another resident.  Id.

The other measures taken by Petitioner were likewise inadequate.  Following the April 7, 2020 elopement, R2 was moved to a room in the Station 1 Hall area with less exits, placed on 15 minutes checks with one-on-one monitoring, and given new medications.  CMS Ex. 5 at 115; P. Br at 7-8 (citing P. Ex. 8 at 8, CMS Ex. 5 at 65).  Nevertheless, R2 was again able to elope, for a fourth time, only three days later.  CMS Ex. 2 at 5-6.  On this occasion, R2 was not in her room and “no one knows how she exited the facility.”  P. Br. at 8 (citing P. Ex. 14 at 4).  By the time Petitioner noticed that R2 was missing, R2 had been located by the police on a street approximately 1.4 miles from Petitioner’s facility.  CMS Ex. 5 at 14-15, 120; CMS Ex. 2 at 5-6.  Despite the care plan’s requirement of 15 minutes checks and one-on-monitoring, Petitioner has not submitted any evidence showing that it conducted these interventions during this time period.  See, e.g., P. Ex. 6 (Petitioner’s one-on-one Q15 logs for 3/11/2020-3/14/2020).

The importance of the care plan’s approach of frequently checking R2 cannot be understated, and Petitioner offered no response to CMS’s claim that “the facility provided no Q15 logs for the period between April 8th and April 10.”  CMS Br. at 12.  Had Petitioner complied with the care plan requirement of frequent checks, it could have minimized the amount of time and opportunity R2 had to carry out the elopements.  Likewise, frequent checks may have enabled Petitioner to immediately initiate a search for R2, thereby minimizing her risk of harm while outside the facility.  And had R2 known that staff were frequently checking on her and that such a plan would likely be futile, she may have been discouraged from carrying out her elopement plan in the first place.

As such, Petitioner failed to have adequate measures in place that provided R2 with adequate supervision and assistance devices to prevent her elopement.  Here, R2 was able

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to exit the facility unsupervised on four different occasions.  Therefore, Petitioner was not in substantial compliance with 42 C.F.R. § 483.25(d)(1)-(2).

2. The immediate jeopardy determination is not subject to review because the amount of the per-instance CMP is not affected by a determination of whether there is immediate jeopardy.

CMS concluded that Petitioner’s noncompliance with 42 C.F.R. § 483.25(d) posed immediate jeopardy at the “J” scope and severity level.  Because CMS imposed a PICMP for this deficiency, I lack authority to review CMS’s immediate jeopardy determination.

The regulations are clear that an ALJ may review CMS’s scope and severity findings (which includes a finding of immediate jeopardy) only if a successful challenge would affect:  (1) the range of the CMP amounts that CMS could collect; or (2) a finding of substandard quality of care that results in the loss of approval of a facility’s nurse aide training program (NATCEP).  42 C.F.R. § 498.3(b)(14), (d)(10)(i)-(ii); NMS Healthcare of Hagerstown, DAB No. 2603 at 6-7 (2014).  Neither of these factors apply.

Unlike per-day civil money penalties, under the regulations, there is only a single monetary range for a per-instance CMP regardless of whether or not immediate jeopardy is present.  42 C.F.R. §§ 488.408; 488.438(a)(2).  Consequently, because CMS imposed a PICMP against Petitioner, a successful challenge to the immediate jeopardy finding would not affect the range of CMP amounts that CMS could collect.  NMS Healthcare of Hagerstown, DAB No. 2603 at 6-7.  The evidence does not indicate that Petitioner had a NATCEP, and Petitioner does not argue that it had a NATCEP.  For these reasons, the immediate jeopardy finding is not subject to appeal, and I may not review it.

3. A PICMP of $21,393 is a reasonable enforcement remedy for Petitioner’s noncompliance with 42 C.F.R. § 483.25(d).

The regulations leave the choice of remedy to CMS, and the amount of the remedy to CMS and the ALJ, requiring only that the regulatory factors at 42 C.F.R. §§ 488.438(f) and 488.404 be considered when determining the amount of a CMP within a particular range.  42 C.F.R. §§ 488.408, 488.408(g)(2), 498.3(d)(11); see 42 C.F.R. § 488.438(e)(2), (3); Alexandria Place, DAB No. 2245 at 27 (2009); Kenton Healthcare, LLC, DAB No. 2186 at 28-29 (2008).

One such remedy CMS may impose is a civil money penalty (CMP).  42 U.S.C. § 1395i-3(h)(2)(B)(ii).  CMS may impose a PICMP for each instance of the SNF’s noncompliance or a per-day CMP for the number of days an SNF is not in substantial compliance.  42 U.S.C. § 1395i-3(h)(2)(A), (h)(2)(B)(ii)(I); 42 C.F.R. § 488.430(a).  For CMPs assessed on or after January 17, 2020, and for deficiencies that occurred after November 2, 2015, the CMP amounts may range as follows:  $2,233 to $22,320 for per-

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instance CMPs; $112 to $6,659 per day for less serious noncompliance; or $6,808 to $22,320 per day for more serious noncompliance that poses immediate jeopardy to the health and safety of residents.  45 C.F.R. § 102.3 (2020); 85 Fed. Reg. 2869, 2870, 2880 (Jan. 17, 2020); see 42 C.F.R. § 488.438(a)(1) (providing original CMP amounts before statutory inflation adjustments).

In determining whether the CMP amount is reasonable, I must apply the following factors which are listed in 42 C.F.R. § 488.438(f):  1) the facility’s history of noncompliance, including repeated deficiencies; 2) the facility’s financial condition; 3) the factors specified in 42 C.F.R. § 488.404; and 4) the facility’s degree of culpability, which includes neglect, indifference, or disregard for resident care, comfort, or safety.  See 42 U.S.C. §§ 1320a-7a(d)(2), 1395i-3(h)(2)(B)(ii)(I).  The absence of culpability is not a mitigating factor.  42 C.F.R. § 488.438(f)(4).  The factors listed in 42 C.F.R. § 488.404 include:  1) the scope and severity of the deficiency; 2) the relationship of the deficiency to other deficiencies resulting in noncompliance; and 3) the facility’s prior history of noncompliance in general and specifically with reference to the cited deficiencies.  See 42 U.S.C. §§ 1320a-7a(d)(1), (3), 1395i-3(h)(2)(B)(ii)(I).

I consider whether the evidence supports a finding that the amount of the CMP is at a level reasonably related to an effort to produce corrective action by a provider with the kind of deficiencies found, and in light of the above factors.  I am neither bound to defer to CMS’s factual assertions nor free to make a wholly independent choice of remedies without regard for CMS’s discretion.  See, e.g., Barn Hill Care Ctr., DAB No. 1848 at 21 (2002).  Unless a facility contends that a particular regulatory factor does not support the CMP amount, an ALJ must sustain it.  Coquina Ctr., DAB No. 1860 at 32 (2002).

CMS argues that the CMP is reasonable based on the seriousness of the noncompliance and the facility’s culpability.  CMS Br. at 15-17; see CMS Ex. 14.  In response, Petitioner argues that the penalty is unreasonable, as it was in substantial compliance, and that CMS did not evaluate its history of compliance or evaluate evidence considering its financial condition.  P. Br. at 19-20.

Contrary to Petitioner’s argument, the Board has explained that “there is a presumption that CMS has considered the regulatory factors in setting the amount of the CMP and that those factors support the CMP amount imposed by CMS.  Unless a facility contends that a particular regulatory factor does not support that CMP amount, the ALJ must sustain it.”  Coquina Ctr., DAB No. 1860 at 32 (2002).  The burden is on the facility to demonstrate that a reduction is necessary to make the CMP amount reasonable.  Heritage Plaza Nursing Ctr., DAB No. 2829 at 22 (2017).  Moreover, Petitioner’s deficiency was at the immediate jeopardy level, and Petitioner failed to provide adequate supervision to a cognitively impaired resident who was able to exit the facility on four separate instances.  Not only did R2 depart into dangerous conditions but on one occasion was found more than a mile from the facility.  Therefore, the PICMP is entirely appropriate for a serious

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deficiency involving the successful elopements of a resident who was not adequately supervised.

IV.     CONCLUSION

For all of these reasons, I grant CMS’s motion for summary judgment.  Even accepting Petitioner’s statements of fact, the undisputed evidence establishes that the facility did not ensure that R2 received adequate supervision and assistance devices to prevent accidents.  The facility was, therefore, not in substantial compliance with 42 C.F.R. § 483.25(d)(1)(2).  The penalty imposed – $21,393 per-instance – is reasonable.