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CASE | DECISION | ANALYSIS | JUDGE | FOOTNOTES

Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD
Appellate Division
IN THE CASE OF  


SUBJECT: Alden Estates of Evanston,

Petitioner,

DATE: April 8, 2004
 
             - v -

 

Centers for Medicare & Medicaid Services

 

Docket No. A-03-56
Civil Remedies CR1009
Decision No. 1914
DECISION
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FINAL DECISION ON REVIEW OF
ADMINISTRATIVE LAW JUDGE D
ECISION

Petitioner, Alden Estates of Evanston (Alden), appealed a March 4, 2003 decision by Administrative Law Judge (ALJ) Steven T. Kessel. Alden Estates of Evanston, DAB CR1009 (2003) (ALJ Decision). The ALJ Decision sustained a determination by the Centers for Medicare & Medicaid Services (CMS) imposing a Civil Money Penalty (CMP) against Alden, at a rate of $50 per day, for the period December 15, 1999 through February 15, 2000 for failure to comply with the Life Safety Code (LSC) of the National Fire Protection Association.

As explained below, we reverse the ALJ Decision because CMS's deficiency finding is based on a provision of the LSC that does not support the conclusion that Alden's fire safety system, as established by the undisputed facts, violated the LSC.

Background

Alden is a long-term care facility located in Evanston, Illinois that participates in the Medicare program. See Title XVIII of the Social Security Act (Act). As a Medicare long-term care facility, Alden must comply substantially with the participation requirements set forth at 42 C.F.R. Part 483. Specifically, Alden must comply with 42 C.F.R. § 483.709(a), which provides that facilities must comply (subject to exceptions not relevant here) with applicable provisions of the LSC of the National Fire Protection Association.

At issue in this appeal are findings by the Illinois Department of Health (State) in LSC surveys conducted on December 15, 1999, January 28, 2000, and February 16, 2000. In the December 15 survey, the State concluded that the failure of residents' room smoke detectors to close corridor smoke barrier doors (smoke doors) violated the LSC. In the January 28, 2000 survey, the State determined that Alden remained out of compliance with the LSC because the room detectors still did not close the corridor doors. At the conclusion of the February 16, 2000 survey, the State found Alden in substantial compliance with the LSC and therefore with Medicare participation requirements.

Pursuant to the State's findings, CMS imposed a $50 per day CMP for the period December 15, 1999 through February 15, 2000. Alden appealed this CMP, and the parties agreed that the ALJ could hear and decide the case on the basis of written submissions without an in-person hearing. ALJ Decision at 2.

The ALJ made the following two findings of fact and conclusions of law (FFCLS) to support his decision upholding CMS's imposition of the CMP.

1. Petitioner did not comply substantially with a Life Safety Code requirement during the period that ran from December 15, 1999 through February 16, 2000. Petitioner attained substantial compliance by February 16, 2000.

2. Civil money penalties of $50 per day are reasonable for each day of the period that began on December 15, 1999 and which ran through February 15, 2000.

Alden appealed the ALJ Decision to the Board.

Standard of Review/Burden of Proof

The standard of review on a disputed issue of law is whether the ALJ decision is erroneous. The standard of review on a disputed factual issue is whether the ALJ decision is supported by substantial evidence in the record as a whole. Guidelines for Appellate Review of Decisions of Administrative Law Judges Affecting a Provider's Participation in the Medicare and Medicaid Programs (at http://www.hhs.gov/dab/guidelines/); see, e.g., Fairfax Nursing Home, Inc., DAB No. 1794 (2001), aff'd, Fairfax Nursing Home v. Dep't. of Health & Human Services., 300 F.3d 835 (7th Cir. 2002), cert. denied, 2003 WL 98478 (Jan. 13, 2003); Lake Cook Terrace Center, DAB No. 1745, at 6 (2000); Cross Creek Health Care Center, DAB No. 1665 (1998).

The applicable burden of proof requires CMS to come forward with sufficient evidence on disputed facts that, together with the undisputed facts and relevant legal authority, will establish a prima facie case that the facility is not in substantial compliance with one or more participation requirements. Once CMS has established a prima facie case that the facility was not in substantial compliance, a facility must prove substantial compliance by the preponderance of the evidence. See Batavia Nursing and Convalescent Center, DAB No. 1904, at 20-24 (2004); Cross Creek Health Care Center, DAB No. 1665 (1998), applying Hillman Rehabilitation Center, DAB No. 1611 (1997), aff'd, Hillman Rehabilitation Center v. HHS, No. 98-3789(GEB), slip op. at 25 (D.N.J. May 13, 1999).

ANALYSIS
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This appeal involves a survey and two revisit surveys. We discuss each survey separately.

1. The first survey (December 28, 1999)

Section 483.70 of 42 C.F.R. (1999) provided that a "facility must meet the applicable provisions of the 1985 edition of the Life Safety Code of the National Fire Protection Association." This dispute involves the LSC's requirements for the closing of smoke doors. The purpose of smoke doors is to help keep fire and smoke from spreading through a building. CMS Ex. 27, at 3. The LSC provides that such doors may be held open only by automatic release devices, referred to herein as door holders. CMS Ex. 5, at 12, Tag K21 citing LSC § 13-2.11.5. CMS asserted that the failure of the residents' room smoke detectors to release corridor door holders violated LSC § 13-3.4.4 (1985).

In 1998, Alden had installed a new fire protection system. The system had a range of features including sprinklers throughout the facility and corridor smoke doors held open by door holders. CMS Ex. 5, at 8, 12, 20; P. Ex. 12. However, it is undisputed that the design of this system did not call for the residents' room smoke detectors to release the door holders on all corridor smoke doors. P. Ex. 16, Att. B; CMS Br. filed July 10, 2003 at 6. Rather, the room detectors were programmed as follows: to close the individual room doors, thereby creating a smoke barrier between the source of the smoke and the corridor; to illuminate the corridor dome light; to shut down the heating/air conditioning fan and to close the dampers to prevent the spread of smoke; to signal the fire alarm control panel and remote annunciators to indicate which detector initiated the alarm; and to notify the fire department "via reverse polarity transmission." P. Ex. 16, Att. F. CMS did not dispute that the room detectors performed these protective functions when activated.

The door holders on open corridor smoke doors were controlled by multiple activating devices. As the surveyor noted in the survey instrument, the smoke doors were "held open only by devices arranged to automatically close all such doors by zone or throughout the facility upon activation of . . . [a] the required manual alarm system and . . . [b] [the] local smoke detectors designed to detect smoke passing through the opening or a required smoke detection system and . . .[c] the automatic sprinkler system . . . ." CMS Ex. 5, at 12 citing LSC § 13-2.11.5. The surveyor specifically determined that corridor smoke detectors closed the smoke doors and there were detectors within five feet of all smoke doors. CMS Exs. 4, at 2; 5, at 5; 27 at 2. The surveyor marked as "met" the LSC requirements for door holders on open corridor smoke doors. CMS Ex. 5, at 12.

CMS asserted that the fact that smoke detectors in Alden's residents' rooms did not release the door holders on corridor smoke doors violated LSC § 13-3.4.4 (1985). That section provides:

Operation of any activating device in the required fire alarm system shall be arranged to automatically accomplish, without delay, any control functions to be performed by that device (see 7-6.5).

The ALJ upheld CMS's determination that the failure of the smoke detectors in residents' rooms to close corridor smoke doors violated LSC § 13-3.4.4. In reaching this conclusion, the ALJ relied on a CMS interpretation of the provision that he viewed as authoritative in the absence of an assertion by Alden that it was not authoritative. (1) ALJ Decision at 3. However, neither LSC § 13-3.4.4, nor the CMS interpretation, provide a legally sufficient basis for a conclusion that Alden's system violated the LSC.

LSC § 13-3.4.4 provides that "any activating device . . . shall be arranged to automatically accomplish, without delay, . . . any control functions to be performed by that device." This provision plainly states a requirement that an activating device, such as a smoke detector, perform "automatically" and "without delay" the functions required of it. Whether a particular activating device should accomplish a particular control function is not governed by this provision. Rather, the function an activating device is required to accomplish depends on (1) whether a provision of the LSC requires that activating device to accomplish that control function or (2) whether the design of a facility's fire safety system requires that activating device to accomplish that control function. LSC § 13-3.4.4 does not require, on its face, all activating devices to perform all control functions.

CMS pointed to language in its survey instrument (HCFA-2786P) as providing an interpretation of LSC § 13-3.4.4. It reads as follows:

Required sprinklers, detectors, etc. are arranged to automatically activate the fire alarm system and operate protective devices such as dampers, door holders, etc.

CMS Ex. 5, at 20.

Even this statement, however, fails to articulate a specific requirement violated by Alden's system design. CMS's interpretation provides examples of activating devices (such as detectors), provides that activating devices should operate protective devices automatically, and gives examples of protective devices (such as door holders). This interpretation, on its face, does not require all activating devices to automatically operate all protective devices. Further, the survey instrument language could not reasonably be read to require this since (1) LSC § 13-3.4.4 does not, (2) other provisions of the LSC cited in the survey instrument recognize that activating devices may be programmed to accomplish control functions by zone and not throughout the facility (see, e.g., LSC § 13-2.11.5); and (3) LSC § 7-6.5, which is cited in LSC § 13-3.4.4, indicates that whether a control function is required to be actuated depends on other provisions of the LSC. (2)

It is undisputed that Alden's residents' room smoke detectors were not programmed to close corridor smoke doors. (3) P. Ex. 16, Att. B; CMS Br. at 6-7. Before the ALJ, Alden asserted that its system, as installed and approved in 1998, did not violate the LSC. See P. Br. filed January 14, 2003 at 3, 4, 7, 9, 10, 11, 13, 16. Alden introduced evidence that indicated that its system's design, in which room detectors did not close corridor smoke doors, was approved by the Evanston Fire Department and a fire consultant firm hired by that department when the system was installed in 1998. P. Ex. 12. While CMS questioned the relevance of this evidence, it did not dispute Alden's assertions about the approval of its system. See CMS Br. filed July 10, 2003, at 20.

Before the ALJ, CMS did not respond to Alden's briefing or evidence by identifying any authority for CMS's position that LSC § 13-3.4.4 required Alden's room smoke detectors to close corridor smoke doors, nor did it identify any provisions of the LSC concerning the requirements for the closing of smoke doors.

CMS did not dispute that Alden's room detectors accomplished the control functions they were programmed to accomplish. Before the ALJ, CMS failed to cite any provision of the LSC that would support the conclusion that the failure of the detectors to also close corridor doors violated LSC § 13-3.4.4 or any other provision of the LSC. (4) Further, reliance on the surveyor's conclusory opinion that Alden's system violated LSC § 13-3.4.4 is unwarranted. While she had relevant training in the LSC, her declaration is devoid of any explanation of the basis for her construction of LSC § 13-3.4.4 as applied to Alden's system. Absent such legal authority or expert testimony, there is no basis for the deficiency citation in the December 28, 1999 survey because there is no dispute that Alden's room detectors were arranged to automatically accomplish and did automatically accomplish, without delay, the control functions to be performed by those detectors.

2. The first revisit survey (January 28, 2000)

Based on her revisit survey on January 28, 2000, the surveyor alleged that the room detectors still did not close the hall smoke doors. CMS Ex. 27, at 2. Alden disputed this finding. It maintained that, before January 28, its system had been reprogrammed to close smoke doors and that the system did so on January 28 when the surveyor activated a room alarm. P. Ex. 16, at 2.

We do not need to resolve this factual dispute because we reverse the ALJ's conclusion that Alden did not comply substantially with LSC § 13-3.4.4 on January 28, 2000. Even if Alden tried to reprogram its system and failed as of January 28, the reprogramming was in response to a deficiency finding that was not supported by LSC § 13-3.4.4. A facility's failure to successfully implement a specific provision of a plan of correction adopted in response to an unsupported deficiency citation is not noncompliance since CMS has shown no violation of any substantive requirement by the facility. (5)

3. The second revisit survey (February 16, 2003)

At the February 16, 2000 survey, the surveyor determined that the room detectors closed the smoke doors but no longer activated the horn/strobe light alarms in the east wing of the facility as they had on her previous visits. (6) CMS Ex. 27, at 2. While she was there, the detectors were reprogrammed to activate the east wing alarms. Id. Therefore, the surveyor found Alden to be in substantial compliance with LSC § 13-3.4.4 as of February 16, 2000 but not before. Id.

We do not reach the merits of this deficiency because it is irrelevant in that no remedy depends on it. (7) CMS initially imposed the CMP at issue without reference to the alarm deficiency. CMS Ex. 24, at 1. Subsequently, a Statement of Deficiencies (SOD) was issued, which Alden alleged was received as proposed CMS Exhibit 26 with CMS's Motion to Amend Pre-Hearing Exchange. Petitioner's Additional Objection to Motion to Amend Pre-Hearing Exchange filed August 15, 2002, at 2. In response to Alden's objection to the inclusion of the February SOD in the record, CMS stated: "The [SOD] is not being submitted to prove an additional deficiency tag with additional remedies but to show why February 16, 2000 is the correct date of compliance for K051." Respondent's Reply to Petitioner's Objection to Motion to Amend Pre-hearing Exchange at 5. The ALJ thereafter admitted CMS Exhibit 26 into the record. Ruling dated August 29, 2002.

CMS thus asserted that it was relying on the alarm deficiency only to show that substantial compliance was not established prior to February 16. Since we have determined that a period of noncompliance never began, the issue of the end of the period of noncompliance is no longer present.

Conclusion

We reverse FFCLs 1 and 2 in the ALJ Decision and adopt the following FFCLs.

1. LSC § 13-3.4.4 requires an activating device to automatically and without delay accomplish the control functions (1) required of that device by the LSC or (2) required of that device by the design of the facility's fire safety system.

2. LSC § 13-3.4.4 does not support the conclusion that the LSC required Alden's residents' room smoke detectors to close all corridor smoke doors.

3. On December 15, 1999, Alden's residents' room smoke detectors were arranged to automatically accomplish and did automatically accomplish, without delay, the control functions required of the room detectors by the design of its approved fire safety system.

4. CMS did not have a legally sufficient basis for determining that Alden was not in substantial compliance with the LSC § 13-3.4.4 and for imposing a CMP for the period December 15, 1999 through February 15, 2000.

JUDGE
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Judith A. Ballard

Donald F. Garrett

Cecilia Sparks Ford
Presiding Board Member

FOOTNOTES
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1. While Alden did not make any arguments specifically based on the language of LSC § 13-3.4.4 or CMS's interpretative language, it did repeatedly assert that its system, as installed and approved in 1998, did not violate the LSC. See P. Br. filed January 14, 2003 at 3, 4, 7, 9, 10, 11, 13, 16.

2. Section 7-6.5, which includes §§ 7-6.5.1 through 7-6.5.5, is titled "Emergency Control" and concerns emergency control functions. Section 7-6.5.2 provides:

When required by another section of the Code, the following functions shall be actuated by the fire alarm system:
(a) Elevator capture and control in accordance with [elevator safety code]
(b) Release of automatic door closers
(c) Stairwell or elevator shaft pressurization
(d) Smoke management or smoke control systems
(e) Initiation of automatic fire extinguishing equipment
(f) Emergency lighting control
(g) Unlocking of doors
(h) Emergency shut off of gas and fuel supplies that may be hazardous . . . .

(emphasis added).

Section 7-6.5.3 provides that "the functions specified in 7-6.5.2 are permitted to be activated by any fire alarm system when otherwise not required by this Code."

3. In response to the citation, Alden reprogrammed its system so that room detectors would close corridor doors.

4. In a footnote in its brief on appeal, CMS did cite LSC § 13-2.11.5, which concerns the operation of automatic release devices, such as door holders, by a fire safety system. CMS Br. at 9, n.5. CMS cited it for the correct proposition that Alden's objection to the ALJ's reference to "protective doors" rather than "protective devices" was "a mere quibble." Id. However, we do not consider LSC § 13-2.11.5 further because CMS did not rely on it as a basis for this deficiency finding and the surveyor found Alden had met its requirements. CMS Ex. 5, at 12.

5. In reviewing the events of January 28, the ALJ observed incorrectly that a test report of Alden's fire safety system "did not address the question of whether smoke doors were activated by the alarm system" (ALJ Decision at 5; P. Ex. 13) and that it was "not even possible to identify from [the affiant's] declaration the individuals to whom she allegedly spoke" (ALJ Decision at 6; P. Ex. 16, at 2). In light of our conclusion above, we do not address Alden's arguments as to these aspects of the ALJ Decision.

6. Alden explained that the room detectors did not operate the east wing alarms on February 16, 2000 because its contractor, while reprogramming the room detectors to operate the smoke doors, had also reprogrammed the detectors to not operate those horns/strobe light alarms. P. Ex. 16, at 3. In the original design approved by the Evanston Fire Department, the room smoke detectors had activated the alarms only in common areas. Id.

7. We do note that, in support of this deficiency, CMS cited and submitted copies of LSC provisions concerning the operation of alarms and occupant notification. CMS Br. filed before ALJ on January 14, 2003 at 8-9 and attachment.

CASE | DECISION | ANALYSIS | JUDGE | FOOTNOTES