SUBJECT: Estes Nursing Facility Civic Center,

Petitioner,

Centers for Medicare & Medicaid Services

REMAND OF
ADMINISTRATIVE LAW JUDGE DECISION

The Centers for Medicare & Medicaid Services (CMS) appealed the decision of Administrative Law Judge (ALJ) Steven T. Kessel overturning CMS's imposition of civil money penalties (CMPs) on Estes Nursing Facility Civic Center (Estes or the facility). Estes Nursing Facility Civic Center, DAB CR1240 (2004) (ALJ Decision). CMS based the CMPs on deficiency findings related to two program requirements. CMS contends that the ALJ Decision contains both factual and legal errors. ⁽¹⁾

The deficiency findings resulted from a survey conducted after a resident fell to her death while trying to elope from a second story window. For the reasons explained more fully below, we conclude that a remand is appropriate in this case because the ALJ did not address evidence in the record that conflicts with his finding that "there had been nothing to alert Petitioner to [Page 2] the possibility that its [system for securing windows] could be defeated by force." Accordingly, we vacate the ALJ Decision and remand the case to the ALJ to issue a revised decision consistent with this order. Should the ALJ conclude that Estes was not in compliance on April 20, 2003, he will need to also address the severity and duration of the noncompliance and the reasonableness of the CMPs.

APPLICABLE LEGAL AUTHORITY

SNFs participating in the Medicare program are subject to survey and enforcement procedures set out in 42 C.F.R. Part 488, Subpart E, to determine if they are in substantial compliance with applicable program requirements which appear at 42 C.F.R. Part 483, Subpart B. "Substantial compliance" means a level of compliance 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. "Noncompliance," in turn, is defined as "any deficiency that causes a facility to not be in substantial compliance." 42 C.F.R. § 488.301.

The program requirements at issue in this case are at 42 C.F.R. §§ 483.25(h)(1) and 483.75. Section 483.25(h)(1) provides:

The facility must ensure that the resident environment remains as free of accident hazards as is possible.

Section 483.75 provides in relevant part:

A facility must be administered in a manner that enables it to use its resources effectively and efficiently to attain and maintain the highest practicable physical, mental, and psychosocial well-being of each resident.

BACKGROUND

Estes is a skilled nursing facility (SNF) in Alabama that participates in the Medicare program. A complaint survey by the state survey agency was conducted at Estes after a resident died in a fall from a second story window on April 20, 2003 while trying to elope. Based on the survey findings, CMS determined that Estes was not in substantial compliance with 42 C.F.R. § 483.25(h)(1) and 483.75 and that this noncompliance posed immediate jeopardy between April 20, 2003, the date the noncompliance began, and April 24, 2003, the day Estes finished installing additional, stronger screws and triangular metal devices to restrict the windows' opening. CMS also determined [Page 3] that Estes remained out of substantial compliance during the period from April 25 through May 10, 2003. CMS imposed a CMP of $5,000 per day for each day of the April 20 - April 24, 2003 period and a CMP in the amount of $300 per day for each day of the April 25 - May 10, 2003 period.

Estes requested a hearing, and ALJ Kessel conducted an in-person hearing in Birmingham, Alabama on June 15, 2004. The record before us consists of the transcript of that hearing, the parties' exhibits and briefs before the ALJ, and the parties' briefs on appeal.

The ALJ made the following numbered Findings of Fact and Conclusions of Law (FFCLs):

1. The preponderance of the evidence establishes that Petitioner complied with participation requirements.

a. Petitioner ensured that its residents' environment remained as free of accident hazards as is possible.

b. There is no basis to conclude that Petitioner was administered ineffectively

2. CMS is not authorized to impose remedies against Petitioner.

CMS excepts to both FFCLs.

STANDARD OF REVIEW

Our standard of review on a disputed finding of fact is whether the ALJ Decision is supported by substantial evidence on the record as a whole. Our standard of review on a disputed conclusion of law is whether the ALJ Decision is erroneous. Guidelines for Appellate Review of Decisions of Administrative Law Judges Affecting a Provider's Participation in the Medicare and Medicaid Programs, www.hhs.gov/dab/guidelines/prov.html; see also Lake Cook Terrace Nursing Center, DAB No. 1745 (2000); South Valley Health Care Center, DAB No. 1691 (1999), aff'd, South Valley Health Care Center v. HCFA, 223 F.3d 1221 (10th Cir. 2000).

Substantial evidence is "more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971), quoting Consolidated Edison Co. v. NLRB, [Page 4] 305 U.S. 197, 229 (1938). Under the substantial evidence standard, the reviewer must examine the record as a whole and take into account whatever in the record fairly detracts from the weight of the decision below. Universal Camera Corp. v. NLRB, 340 U.S. 474, 488 (1951). Thus, we review the findings to determine, among other things, whether conflicting evidence in the record has been addressed by the ALJ and whether the inferences drawn by the ALJ are reasonable. Barry D. Garfinkel, M.D., DAB No. 1572 (1996).

The window from which Resident #1 fell was a horizontally sliding window with one sheet metal stop screw, installed by the facility, in the slide track. ALJ Decision at 4-5. The purpose of the stop screw was to prevent elopements by restricting the distance the window would open. Id. at 5. The ALJ cited the following evidence regarding examination of the resident's room after the accident: the window was open to a width of about 16 inches; the window screen was pushed out and there was a step stool with a metal frame under the window; the head of the stop screw was found in the slide track of Resident #1's window; and the head of the screw was sheered off flush with the window track, leaving the shaft of the screw still screwed into the track. Id. at 8. From this evidence, the ALJ inferred that Resident #1 was able to elope through the window by pushing the window pane against the sheet metal screw with sufficient force to break off the head of the screw, enabling her to slide the window open 16 inches. Id.

The ALJ concluded that Estes was in substantial compliance with 42 C.F.R. § 483.25(h)(1). In reaching this conclusion, the ALJ made the following factual findings: Estes cared for demented residents who presented a risk for elopement (id. at 4); Resident #1 was at risk to elope (id.); windows at Estes posed an elopement hazard (id. ); Estes' windows were designed so they slid open wide enough for a person to elope (id.); Estes recognized the elopement hazard presented by the design of the windows and installed stop screws to restrict their opening to six to eight inches (id. at 5); Estes staff routinely checked the stop screws to see that they were performing properly, i.e., housekeeping staff checked them daily, the housekeeping department head checked six or seven windows a morning, the maintenance supervisor checked windows monthly (id.); ⁽²⁾ and, the [Page 5] screws had "a tensile strength in excess of 150 pounds, meaning they should resist all but the most forceful efforts to overwhelm them" (id. at 9). The ALJ also found that, prior to the accident, "there had been nothing to alert Petitioner to the possibility that its sheet metal screws could be defeated by force or that one or more of them might have a hidden defect." Id.

On appeal, CMS argues that the ALJ's finding that there had been nothing to alert Estes to the possibility that the screws could be defeated by force conflicts with undisputed evidence in the record that Estes' staff had found broken stop screws in the window tracks prior to April 20, 2003. RR at 16. The surveyor's notes reflect that she asked the maintenance supervisor "have you ever found screws missing before?" and that he replied "Sometime - usually it is a new person that tries to force the window open - meaning a new employee that may have tried to force the window open." CMS Ex. 35, 3-4; see also CMS Ex. 65, at 5 (surveyor's affidavit). When asked on cross examination whether he knew that broken stop screws had been found previously, the Projects Administrator for Estes' parent company, Northport Health Services (P. Ex. 27, at 1), stated "We all do. That's why we check them." Tr. at 133. CMS argues that the ALJ's finding that "there had been nothing to alert Petitioner to the possibility that its sheet metal screws could be defeated by force" is therefore not supported by evidence in the record as a whole. ⁽³⁾

While an ALJ does not have to address every fact in the record, he/she must address the evidence that conflicts with the evidence supporting his/her findings of fact. See Hillman Rehabilitation Center, DAB No. 1611, at 51 (1997) ("[A]n ALJ decision cannot be adequately reviewed unless it contains 'not only an expression of the evidence s/he considered which supports the result, but also [Page 6] some indication of the evidence which was rejected . . . [in order to determine] if significant probative evidence was not credited or simply ignored.' Cotter v. Harris, 642 F.2d 700, 705 (3rd Cir. 1981).") Here the ALJ did not address the uncontested evidence that Estes personnel had found broken stop screws prior to the accident involving Resident #1. ⁽⁴⁾ This evidence conflicts with his finding that "there had been nothing to alert Petitioner to the possibility that its sheet metal screws could be defeated by force."

The evidence that Estes had found broken screws prior to the accident goes to whether Estes knew the screws could be defeated by force before Resident #1 opened and fell out of the window. The answer to this question is material to determining whether Estes complied with the standard set forth in 42 C.F.R. § 483.25(h)(1): "The facility must ensure that the resident environment remains as free of accident hazards as is possible." (Emphasis added.) As our prior cases have recognized, a facility's duty to eliminate accident hazards under section 483.25(h)(1) must be read in the context of the preamble to the Quality of Care regulations. This preamble requires care and services necessary for residents to attain or maintain "the highest practicable . . . physical or mental well being." 42 C.F.R. § 483.25 (emphasis added); Woodstock Care Center v. CMS, DAB No. 1726, [Page 7] aff'd, Woodstock Care Ctr. v. Thompson, 363 F.3d 583 (6^th Cir. 2003). In Woodstock, based in part on this preamble language, the Board concluded, "Thus, while the regulations do not make facilities unconditional guarantors of favorable outcomes, the quality of care provisions do impose an affirmative duty to provide services ... designed to achieve those outcomes to the highest practicable degree." DAB No. 1726, at 25. The Sixth Circuit upheld the Board and specifically rejected Woodstock's argument that common law standards of reasonable care governed. "The regulations can and do set a higher standard than the common law." 363 F.3d at 590. The Sixth Circuit held that a facility must take "all reasonable precautions against residents' accidents." Woodstock Care Ctr. v. Thompson, 363 F.3d at 589 (emphasis in original). ⁽⁵⁾

Estes' undisputed knowledge that screws had been broken prior to the accident is also material because section 483.25(h)(1) "places a continuum of affirmative duties on a facility." Maine Veterans' Home Scarborough, DAB No. 1975, at 6 (2005). Thus, where a facility takes action to remove a hazard but then has reason to know that those measures are substantially ineffective, the facility must, if possible, implement more effective measures. See Residence at Kensington Place, DAB No. 1963, at 9 (2005), citing Woodstock's discussion of the standard for compliance with section 483.25(h)(2).

On remand, foreseeability should be addressed from the standpoint of whether the windows posed an accident hazard for all residents who were at risk of elopement, not just from the standpoint of whether Resident #1's particular accident was reasonably foreseeable. In that regard, we note that although the ALJ Decision at times refers to foreseeability in more general terms, much of the discussion, as well as the conclusion regarding foreseeability, appears to focus on the circumstances of Resident #1's particular elopement, including the inference as to how she may have defeated the screw system. ⁽⁶⁾ The decision on remand [Page 8] should reflect the ALJ's consideration of the foreseeability issue from the perspective of all residents at risk of elopement.

The undisputed evidence regarding the broken screws is also relevant in determining whether Estes complied with section 483.75 governing effective management, in that CMS's finding of noncompliance with section 483.75 was derived primarily from its finding of noncompliance with section 483.25(h)(1).

In addition to disputing the ALJ's factual finding regarding the stop screws, CMS argues that the ALJ "[a]s a matter of law focused on the wrong period of time in determining Petitioner's noncompliance." RR at 9. According to CMS, it "does not need to prove Resident 1's elopement was foreseeable because the period of noncompliance began after Resident 1's elopement AND the evidence is undisputed that there were residents other than Resident 1 who were also at risk for elopement." Id. CMS takes the position that, even if Resident #1's elopement through the window was not foreseeable, once she eloped the hazard posed by the windows, despite the attempt to secure them with screws, became obvious. CMS argues, therefore, that the ALJ should have found Estes was out of compliance at an immediate jeopardy level between the time immediately after the accident and the time Estes amended its system of securing all the windows.

CMS did not make this argument below. In fact, CMS argued its case as if the period leading up to Resident #1's elopement, which occurred at approximately 11:40 p.m. on April 20, 2003, was the only time period relevant to determining whether Estes was in substantial compliance effective April 20, 2003, the date the per day CMP imposed by CMS began. CMS Prehearing Br. and Posthearing Br. The Board's guidelines provide "The Board will not consider issues not raised in the request for review, nor issues which could have been presented to the ALJ but were not." Guidelines at www.hhs.gov/dab/guidelines/prov.html. CMS does not assert on appeal that it could not have presented this issue to the ALJ for decision. Neither do we see anything in the record that would [Page 9] suggest that CMS could not have presented this issue below. Accordingly, we do not consider this argument here or instruct the ALJ to consider it on remand.

If the ALJ concludes that noncompliance existed on April 20, 2003, he should then make findings as to whether CMS's determination that the noncompliance constituted immediate jeopardy for the period April 20-24, 2003 was clearly erroneous and should also determine whether noncompliance existed until May 5, 2003 and whether the CMP amounts were reasonable.

CONCLUSION

Based on the analysis explained above, the ALJ Decision is vacated, and the matter is remanded for further proceedings consistent with this decision.

Judith A. Ballard

Donald F. Garrett

Sheila Ann Hegy
Presiding Board Member

1. For the reason discussed on pages 8-9 of our decision, we do not reach the question of the alleged legal error.

2. CMS contends in its reply brief that the weight of the evidence does not support a finding that petitioner had a system in place to check the safety screws but cites no specific evidence in support of that contention. CMS Reply Br. at 16. CMS states in its principal brief that there is no evidence that staff specifically checked the screws in Resident #1's windows before her elopement, but the ALJ made no finding that they did; he only made findings regarding the checking process generally. RR at 19.

3. CMS relied on the evidence about the prior broken stop screws in its arguments before the ALJ. CMS Prehearing Br. at 4, 7-8, 9; CMS Posthearing Br. at 5, 8, 9, 10, 13.

4. In contrast, the ALJ did address uncontested evidence that the surveyor was able to defeat the stop screw mechanism on some windows by lifting the window panels out of their slide track. In response to this evidence, he discussed Estes' evidence going to the exertion needed to accomplish this and the experience of the staff with the residents' use of windows. ALJ Decision at 10. On appeal, CMS challenged the ALJ's finding that this design feature of the windows did not make the stop screw mechanism ineffective. RR at 24. We defer to this ALJ finding because the ALJ did weigh the evidence, and as an appellate body, we do not reweigh the evidence or substitute our judgment for the ALJ's even if a different choice could have justifiably been made in a de novo review. Community Skilled Nursing Center, DAB No. 1987 (2005), citing Universal Camera Corp. v. NLRB, 340 U.S. 474, 488 (1951).

5. The ALJ correctly stated the standard of care when he wrote, "A skilled nursing facility must take all reasonable steps to protect its residents against foreseeable accident hazards." ALJ Decision at 3. However, he omitted the word "all" (or equivalent language) in later statements: "Petitioner's obligation was to take reasonable precautions against possible elopement," id. at 9 (emphasis in original); "But, as I discuss above, Petitioner's duty was not to make its facility elopement proof but to take reasonable steps to protect its residents," id. at 10. In light of these omissions, it is not clear whether the ALJ applied the correct standard throughout his analysis. On remand, we ask that the ALJ make it clear that he is applying the appropriate standard.

6. The ALJ inferred that Resident #1 exerted sufficient force on the screw to break it. In doing so, he did not address the undisputed evidence that staff had previously found broken screws, attributed by at least one staff member to attempts by staff to force open the windows. CMS argues that this evidence suggests another possible inference, that the screw in Resident #1's window had been broken by staff rather than Resident #1. RR at 21. The ALJ should indicate on remand whether he has considered that alternative inference and how it might affect foreseeability.