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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: Cal Turner Extended Care Pavilion,

Petitioner,

DATE: May 25, 2006

             - v -

 

Centers for Medicare & Medicaid Services

 

Docket No. A-05-109
Civil Remedies CR1315
Decision No. 2030
DECISION
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FINAL DECISION ON REVIEW OF
ADMINISTRATIVE LAW JUDGE D
ECISION

On August 17, 2005, Cal Turner Extended Care Pavilion (Turner) appealed the June 15, 2005, decision of Administrative Law Judge (ALJ) Keith W. Sickendick which upheld the imposition of civil money penalties (CMPs) of $5,000 for one day on May 16, 2002 and $250 per day for specified periods before and after May 16, 2002. Cal Turner Extended Care Pavilion, DAB CR1315 (2005) (ALJ Decision). Turner contended that the CMP imposed before May 16, 2002 was impermissibly retroactive and not based on legally adequate notice. Turner also raised other challenges to the bases of the ALJ's conclusions. The Centers for Medicare & Medicaid Services (CMS) also appealed the ALJ Decision, by notice dated August 17, 2005, on the ground that the ALJ undercounted by one day the period for which the $250 per day CMP should apply.

We reject Turner's arguments as ill-founded. We agree that the ALJ miscalculated the CMP period. We affirm the ALJ Decision but modify it to reflect the correct calculation of the CMP period.

[Page 2] Background (1)

Turner is a long-term care facility in Kentucky. The statute and regulations provide for surveys to evaluate the compliance of facilities with the requirements for participation in the Medicare and Medicaid programs and for remedies when a facility is found not to be in substantial compliance. Sections 1819 and 1919 of the Social Security Act; 42 C.F.R. Parts 483, 488, and 498. (2) "Substantial compliance" is defined as "a level of compliance with the requirements of participation such that any identified deficiencies pose no greater risk to resident health and safety than the potential for causing minimal harm." 42 C.F.R. § 488.301. "Noncompliance" means "any deficiency that causes a facility to not be in substantial compliance." Id.

Four surveys conducted at Turner by the State survey agency are at issue in the present appeal, each resulting in recommendations by the State survey agency to CMS and subsequent CMS letters to Turner. The first survey ended on February 20, 2002 (February survey) and resulted in deficiency findings under nine regulatory requirements, including 42 C.F.R. § 483.25(h)(2). The most serious findings rose to the level of actual harm but not immediate jeopardy. (3) The State survey agency sent a letter dated April 1, 2002 to Turner advising of the deficiencies cited in the February survey and requiring Turner to submit a plan of correction (POC) by April 15, 2002. CMS Ex. 25, at 1. The letter notified Turner that the agency would recommend a $250 per day CMP effective February 20, 2002, and a denial of payment for [Page 3] new admissions, if "substantial compliance has not been achieved" by April 25, 2002. Id. at 2.

The second survey ended on May 16, 2002 (May 16 survey) and occurred after Turner reported to the State survey agency that it had experienced an elopement incident involving one of its residents (referred to here as Resident 23). The parties dispute whether the May 16 survey was solely a response to the elopement report or also constituted a revisit following up on the February survey. The surveyors concluded that the facility was not in substantial compliance with 42 C.F.R. § 483.25(h)(2) and that immediate jeopardy existed at Turner on May 16, 2002. On May 22, 2002, CMS sent a letter to Turner referring to both the February survey and the May 16 survey, which CMS stated was a "revisit . . . to verify correction." CMS Ex. 3. CMS informed Turner that it accepted the surveyors' conclusions that Turner had not achieved substantial compliance, and that instead conditions at the facility constituted immediate jeopardy on May 16, 2002. The letter informed Turner that CMS was imposing a $250 per day CMP effective February 20, 2002 through May 15, 2002, and a CMP of $4,500 per day beginning May 16, 2002, until the immediate jeopardy was removed.

On May 29, 2002, a revisit was conducted (May 29 survey) which concluded that the immediate jeopardy had been abated after May 16, 2002, but that the facility had not achieved substantial compliance.

On May 31, 2002, the State survey agency sent a notice to Turner reporting the conclusion of the May 29 survey that immediate jeopardy had been abated on May 17, 2002. The notice also reported that the facility was still not in substantial compliance with the requirements of 42 C.F.R. § 483.25(h)(2), but that the level of noncompliance was reduced below immediate jeopardy. Turner was required to file a POC by June 12, 2002. The State survey agency recommended CMPs of $250 per day "effective 2/20/02 through 5/15/02 as a result of the failure of the facility to achieve compliance from the standard survey," as well as $5,000 per day effective May 16 through May 17, 2002 for the immediate jeopardy and $250 per day effective May 18, 2002 until substantial compliance or termination, as well as a denial of payment for new admissions. CMS Ex. 20, at 2.

On June 5, 2002, CMS notified Turner that it was adopting the State survey agency recommendations and continuing the CMP due to continuing noncompliance. Since the immediate jeopardy was found to have abated as of May 17, 2002, the CMP amount was reduced to $250 per day effective May 17, 2002. CMS Ex. 5.

[Page 4] Finally, a survey on June 25, 2002 (June survey) resulted in a finding that substantial compliance was achieved as of June 4, 2002. CMS notified Turner by letter dated July 2, 2002 that, as a result of the June revisit, it would not proceed with a termination action and would cancel the denial of payment for new admissions which went into effect on May 25, 2002. CMS Ex. 6.

The significance of the various notices to the facility is disputed and will be discussed in the analysis. Ultimately, CMS imposed CMPs of $250 per day beginning on February 20, 2002 lasting through May 15, 2002; $5,000 for the single day of May 16, 2002; and $250 per day from May 17, 2002 through June 5, 2002. The ALJ excluded February 20, 2002 from the penalty period. ALJ Decision at 29, n.12.

Issues on appeal

Turner fails to identify the specific Findings of Fact and Conclusions of Law in the ALJ Decision to which it takes exception, but identifies several issues on which it disagrees with the ALJ. See 42 C.F.R. § 498.82(b)(content of requests for review). The issues timely raised by Turner may be grouped into the following four areas:

1. Turner asserts that the imposition of any penalties was arbitrary and capricious because CMS did not make findings of fact on the factors listed in 42 C.F.R. § 488.438(f) for determining the amount of a CMP.

2. Turner argues that the CMP resulting from the February survey was unenforceable. The imposition of penalties was, according to Turner, a reversal of a decision communicated to Turner that no penalties would be imposed once its POC had been accepted. Further, Turner contends that any CMP would be impermissibly retroactive because no revisit was conducted within 60 days of the survey, as contemplated by the State Operations Manual (SOM). Finally, Turner argues that it did not receive adequate notice of the proposed penalties. (4)

[Page 5] 3. Turner argues that the deficiency findings from the May 16 survey were not supported by substantial evidence. The findings related to incidents involving three residents: Resident 23, Resident 25, and Resident 7.

4. Finally, Turner contends that no CMP should have been imposed for May 17, 2002 through June 5, 2002, because Turner alleges that all deficiencies were corrected by May 17, 2002.

CMS raised a single issue in its appeal, i.e., that the ALJ erred by omitting February 20, 2002 from his calculation of the CMP.

Standard of Review

Our standard of review on a disputed conclusion of law is whether the ALJ Decision is erroneous. 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. Guidelines for Appellate Review of Decisions of Administrative Law Judges Affecting a Provider's Participation in the Medicare and Medicaid Programs; Batavia Nursing and Convalescent Center, DAB No. 1904 (2004), aff'd, Batavia Nursing and Convalescent Center v. Thompson, No. 04-3325 (6th Cir. Apr. 15, 2005).

ANALYSIS
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[Page 6] 1. The ALJ did not err in upholding the CMPs here even if CMS did not make specific findings as to all factors in 42 C.F.R. § 488.438(f).

The regulations provide that, "in determining the amount of [civil money] penalty, CMS does or the State must take into account" the following factors:

1. The facility's history of noncompliance, including repeated deficiencies.
2. The facility's financial condition.
3. The seriousness of the deficiencies as set forth at 42 C.F.R. § 488.404.
4. The facility's degree of culpability. Culpability for purposes of this paragraph includes, but is not limited to, neglect, indifference, or disregard for resident care, comfort or safety. The absence of culpability is not a mitigating circumstance in reducing the amount of the penalty.

42 C.F.R. § 488.438(f)(italics in original). Section 488.404, in turn, describes a scheme for evaluating the seriousness of deficiencies based on scope (how widespread they are) and severity (the level of potential or actual harm they pose). In addition, CMS may consider "other factors, which may include, but are not limited to," how the deficiencies relate to each other and what prior history exists of "noncompliance in general and specifically with reference to the cited deficiencies." 42 C.F.R. § 488.404(c).

Turner expressly denies that it is contesting whether the amount of the CMP is excessive, but asserts that it is "arguing instead that the imposition of CMP's in any amount is arbitrary and capricious because CMS failed to consider at least some of the factors that must be considered in imposing CMP's." Turner Reply Br. at 2 (emphasis in original). Turner points to two of the letters in which CMS informed Turner of the penalties it was imposing and notes that, in each case, CMS merely recited that it considered the regulatory factors in setting the amount of the CMP. Turner Br. at 8-9, 11, citing CMS Exs. 3 and 5. According to Turner, the problem is CMS reported no findings of fact as to each of the specific regulatory factors. Turner relies on a number of federal cases in which agencies were required to provide an evidentiary basis for their decisions and to explain their actions rationally in order to avoid being found arbitrary and capricious. Turner Br. at 11-14, and cases cited therein. [Page 7] The essence of the cases cited is that adverse agency action should be based on "specific, definite, and basic findings, not mere ultimate findings or conclusions." Turner Br. at 14, quoting Steere Tank Lines, Inc. v. I.C.C., 714 F.2d 1300, at 1314 (5th Cir. 1983).

Turner mistakes the nature of the evidentiary basis authorizing imposition of a CMP here. CMS's authority to impose a CMP arises from the findings of noncompliance, the factual bases for which were contained in the detailed statements of deficiencies (SODs) which Turner did not deny receiving after the relevant surveys. Turner failed to challenge the factual underpinnings of the February survey deficiency findings and thus cannot argue that CMS lacked any evidentiary basis to impose any CMP based on those factual findings. (5) As to the challenges which Turner did raise to the deficiency findings from the May 16 survey, we address those later, but clearly CMS did provide specific and definite factual allegations. The regulatory factors cited by Turner relate to the determination of the amount of a CMP, not to the authority to impose a CMP or any other remedy. We therefore reject as an initial matter Turner's claim that no remedy can be sustained in the absence of express findings by CMS on all of those factors.

Turner also misunderstands the distinction between the oversight role of a federal court reviewing agency decisions to determine if an adequate basis is articulated and the internal agency appeals process for formulating final agency action. Numerous Board cases have analyzed the proper role of the ALJ and the Board in reviewing CMS's exercise of discretion to set a particular CMP amount. The ALJ does not conduct "a quasi-appellate review of the regularity of HCFA's [now CMS's] determination" but rather makes a de novo determination of the reasonableness of the amount of the CMP selected by CMS "based on evidence in the record as a whole as developed before the ALJ." CarePlex of Silver Spring, DAB No. 1683, at 17-18 (citation omitted). The Board has consistently rejected provider arguments that the ALJ should review CMS's internal decision-making process in setting a CMP amount. In Capitol Hill Community Rehabilitation and Speciality Care Center, DAB No. 1629 (1997), for example, the Board held that ALJ review does not extend to "the particular process which HCFA utilized to establish the amount of the CMP, including what process HCFA utilized to determine the financial condition of the provider." DAB No. [Page 8] 1629, at 5. Similarly, the Board held that "the ALJ should not review the process used to reach a recommendation of the CMP amount, but should focus instead on whether that amount is unreasonable." South Valley Health Care Center, DAB No. 1691, at 18 (1999), aff'd, 223 F.3d 1221 (10th Cir. 2000). The ALJ is not "to make any finding concerning how CMS exercised its discretion in selecting a remedy or setting the amount of a penalty," but rather to take evidence on any contested issue relating to the factors supporting the reasonableness of the amount of any CMP imposed. Emerald Oaks, DAB No. 1800, at 11 (2001).

Turner further alleges, however, that even the record as developed before the ALJ does not contain sufficient evidence to sustain the CMPs based on all the regulatory factors. Turner Br. at 14-15. Turner argues, for example, that there is no "adverse evidence" concerning Turner's financial condition, its culpability, "or whether the alleged deficiencies constitute a pattern." Id. at 15.

A review of the record does not support Turner's position. Turner overlooks the fact that the $250 per day CMP amount imposed for all but March 16 itself was near the bottom of the range of potential amounts. Where a CMP is authorized but immediate jeopardy is not present, the regulations provide that a per-day CMP may be imposed in the range between $50 and $3,000 per day. 42 C.F.R. § 488.438(a)(ii). It is not surprising that adverse findings were not made on all of the regulatory factors given that the amount sought was quite low. The number and seriousness of the deficiencies sustained by the ALJ easily suffice to justify a CMP of $250 per day. Turner has pointed to no evidence that would counter or detract from that conclusion or offer a compelling reason (such as financial incapacity) to reduce the amount. The $5,000 CMP imposed for the single day of immediate jeopardy (March 16) fell in the low to mid-range of applicable amounts ($3,050-10,000). Turner again offered no proof that the amount of this CMP was a financial burden, information which would presumably be within its control. As far as the degree of culpability and the degree to which the deficiencies were widespread, the relevant evidence on these factors arises from the factual circumstances of the deficiencies, which were undisputed with respect to the February survey and developed on the record with respect to the May 16 survey.

The ALJ thus had adequate evidence in the record to support his independent determination that the CMP amounts were reasonable. ALJ Decision at 25-27. In reaching that determination, the ALJ [Page 9] reviewed the evidence and explained the reasoning on which he evaluated the relevant regulatory factors. ALJ Decision at 27-29. No more was required of him. We reject Turner's contention that the ALJ's de novo evaluation of the record to weigh the reasonableness of the amount of the CMPs is somehow arbitrary and capricious. Even if we had agreed with Turner about requiring CMS to make explicit factual findings on the regulatory factors, which we do not, we would consider that the ALJ cured any defect by his own explicit discussion of the regulatory basis for the CMP amounts.

2. The ALJ did not err in concluding that the CMP imposed as a result of the February survey deficiencies was not impermissibly retroactive.

Turner argues that no CMP may be imposed based on the deficiencies found during the February survey because CMS chose to impose no remedy initially and was barred from later doing so because it failed to conduct a revisit within 60 days from the survey. Turner Br. at 17-22. Turner's account of events is that the facility filed a timely POC with respect to all February deficiencies by the due date of April 15, 2002, that the POC was accepted by the agency as a credible allegation of substantial compliance for April 25, 2002, and that Turner was led to believe that all issues related to the February survey were thereby resolved without the imposition of any penalties. Id. at 18. Turner offered testimony from a facility administrator that surveyors gave him this impression. Tr. at 216. Turner also relies for this conclusion on the following statement in the May 22, 2002 letter from CMS:

You submitted a plan of correction and credible allegation to the State Survey Agency, and based on a presumption of substantial compliance, the State Agency suspended its recommendation for enforcement action.

Id. at 18, quoting CMS Ex. 3, at 2. If CMS had not accepted the POC as sufficient on its face to resolve the deficiencies, Turner argues, the surveyors would have scheduled a revisit to test compliance instead of suspending all remedies.

Turner denies that the May 16 survey constituted such a revisit. Turner reasons that the SOM demands that a revisit survey to verify compliance be conducted no more than 60 days after the survey based on the following language:

Timing of Revisit. When conducted, revisits occur any time between the last correction date on the plan of [Page 10] correction and the 60th day from the survey date to confirm that the facility is in substantial compliance and, in certain cases, has the ability to remain in substantial compliance. Conducting a revisit before the 60th day allows time for a notice of a mandatory denial of payment for new admissions at the 3rd month, if necessary. If the facility is found to be in substantial compliance, the State will certify compliance.

Id. at 20, quoting SOM, § 7317B(4). Since the May 16 survey occurred more than 60 days after February 20, 2002, Turner contends that the May 16 survey cannot properly be considered a "revisit." Id. at 19-21. Instead, Turner views the May 16 survey as limited to responding to the elopement of Resident 23 on May 3, which Turner had, as required, reported to the State survey agency.

Turner's mechanistic interpretation of the SOM, i.e., that any visit taking place more than 60 days after the end of the survey is by definition not a revisit, is inconsistent with the actual sequence of events in the present case, with the statute and regulations, and with prior Board decisions. On April 1, 2002, the State sent a letter to the facility which provided the SOD from the February survey and notified Turner that, based on those deficiencies, the State would recommend that CMS impose a $250 per day CMP effective February 20, 2002, as well as a denial of payment for new admissions, "if substantial compliance has not been achieved by 4/25/02." CMS Ex. 25, at 2. Thus, Turner was aware that recommended penalties were pending unless it achieved substantial compliance and that merely submitting a POC would not suffice. CMS's May 22, 2002 letter reminded Turner that it was subject to remedies as a result of the February survey findings if it failed to achieve substantial compliance by April 25, 2002, and reported the following:

Revisit

You submitted a plan of correction and credible allegation to the State Survey Agency, and based on a presumption of substantial compliance, the State Agency suspended its recommendation for enforcement action. However, on May 16, 2002, the State Survey Agency made a revisit to your facility to verify correction, and found that your facility was not in substantial compliance and that conditions in your facility constituted immediate jeopardy to resident health and safety.

[Page 11] CMS Ex. 3, at 2 (emphasis added). The full context of the statement thus made clear that the State survey agency's recommendation for imposition of remedies was suspended pending verification of the allegation of compliance, not cancelled based solely on that allegation. The letter also clearly characterized the May 16 survey as a "revisit" as well as notifying Turner that, based on the survey findings, remedies were recommended, including the $250 per day CMP effective February 20, 2002 through May 15, 2002. Id. The State survey agency's letters of May 17, 2002 and May 23, 2002 also state plainly that the surveyors had "conducted a revisit to verify" whether substantial compliance had been achieved. CMS Ex. 16, at 1, and 17, at 1. (6) Similar language was used in letters relating to the further revisits on May 29 and June 25. CMS Exs. 20 and 22. A careful review of the correspondence as a whole supports the ALJ's conclusion that the survey visits at issue here were all viewed by the State survey agency at the time as part of a single survey cycle in which Turner was continuously found not to be in substantial compliance from February 20, 2002 until June 5, 2002. ALJ Decision at 12-14.

The testimony of Wade Stone, Turner's administrator at the time of the February survey, is inconsistent with this written record and was obviously not credited by the ALJ. Mr. Stone testified as follows:

Q . . . . Did you ever receive any notice from the state or CMS that that survey would be the subject of any penalties or enforcement?

A No, I did not.

Q Were you personally told that it was cleared?

A Yes.

Q That they accepted your plan of correction?

A Yes.

Tr. at 216. Mr. Stone does not identify who told him that the February survey was "cleared," or what that term actually meant. A potential misunderstanding is reflected in the last exchange. [Page 12] Approving a POC as an acceptable statement of how the facility will address the findings is not tantamount to determining that the POC has been successfully implemented and substantial compliance achieved. Beverly Health & Rehabilitation Services, DAB No. 1696, at 19 (1999), aff'd, Beverly Health & Rehabilitation Services v. Thompson, 223 F. Supp.2d 73, at 99-106 (D.D.C. 2002). Mr. Stone may well have been informed by someone from the State survey agency that the POC was accepted. That information, however, does not affect CMS's authority to impose a CMP for the period when Turner was not in substantial compliance.

The sequence of events reflected in the record here is almost identical to that in another Board case in which a facility also submitted a POC alleging that it would achieve compliance more than 60 days after a survey found significant deficiencies. South Valley at 4-6. The State survey agency there conducted a revisit more than 60 days after the initial survey, found that the facility had not achieved substantial compliance, and recommended remedies, including a CMP, effective from the end of the initial survey. Id. The Board there found proper a CMP from the date of the initial survey. We see no reason that the same result would not obtain in the present case.

The Board in South Valley did not directly address the SOM provision which Turner cites here, but we do not find that the SOM compels a different result. The SOM expresses an expectation about the timing of revisits but does not specify that no survey revisit may be conducted outside of those time frames. Section 7317B implies that the last accepted date for correction will generally occur before the 60th day after a survey, thus allowing time for a revisit to occur in between. Here, however, Turner itself set a correction date in its POC, April 25, 2002, that was more than 60 days after the February 20, 2002 survey to which the POC and the revisit related. CMS Ex. 1. Turner's reasoning, apparently, is that because Turner's POC with a correction date exceeding 60 days was accepted, CMS and the State survey agency were automatically precluded from ever verifying whether the corrections were completed. See Turner Reply Br. at 5. Accepting Turner's position would seriously undermine CMS's ability to verify correction, and to impose appropriate sanctions for failure to correct.

Other sections of the SOM do not support such an interpretation. For example, the introductory provision to Chapter 7 of the SOM (dealing with nursing home enforcement) specifies that "no provisions contained in this chapter are intended to create any rights or remedies not otherwise provided in law or regulation." SOM, §7000. Thus, section 7317B is not intended to provide [Page 13] nursing homes with a right to treat a revisit that occurs more than 60 days after the survey to which the revisit relates as a nullity. In addition, the regulations and the SOM itself make clear that whether and when revisit surveys are performed is in the discretion of the State and CMS, not the facility. See, e.g., 42 C.F.R. § 488.308(c); SOM, § 7207B (CMS or the State "may conduct surveys as frequently as necessary to determine if a facility complies with the participation requirements as well as to determine if the facility has corrected any previously cited deficiencies"); 7317 (facility "not entitled to any revisits; revisits are performed at the discretion of CMS or the State"). In Big Bend Hospital Corporation, d/b/a Big Bend Medical Center, DAB No. 1814 (2002), the Board held that the description of a category of surveys in the SOM does not constrain CMS from conducting surveys in other ways as well. Although Big Bend involved provider certification surveys, we see no reason why the same principle would not apply to compliance surveys for long term care facilities. Finally, while the SOM can provide useful guidance as to CMS' interpretations of applicable law, the courts and the Board have held that the SOM does not itself have the force of law. See, e.g., Beverly Health & Rehabilitation Services v. Thompson, 223 F. Supp. 2d at 99-106; Aase Haugen Homes, Inc., DAB No. 2013, at 15 (2006).

In any event, to read section 7317B as requiring such an interpretation would make the SOM inconsistent with the intent of the statute and regulations and place residents at risk. Neither the statute nor the regulations provide a time limit for conducting revisit surveys. Section 1819(g)(2)-(4); 42 C.F.R. § 488.308(c). Section 1819(g)(4)(B) requires states to maintain procedures and adequate staff to monitor facilities that have been found out of compliance and are in the process of correcting deficiencies to achieve compliance, but accords them discretion as to the timing of such surveys, providing only that they "monitor [such compliance] on-site, on a regular, as needed basis . . . ." While the statute addresses with somewhat more specificity (although not necessarily strict time limits) the timing of some other types of surveys, the purpose is to assure compliance with the long-term care requirements through sufficient survey activity, not to give providers a means of avoiding remedies for noncompliance if the state or CMS deviates from the time frames provided.

We conclude that the series of letters sent to Turner provided it with ample notice that it would be subject to penalties, including a $250 per day CMP beginning on February 20, 2002, if it failed to come into substantial compliance on or before April 25, 2002. We also conclude that Turner had no basis to assume [Page 14] that its allegation of substantial compliance would not be subject to verification and that the survey revisit of May 16, 2002 undermined any presumption of substantial compliance by disclosing the existence of immediate jeopardy. We therefore conclude that Turner's "retroactivity" argument has no merit and that the ALJ did not err in his determination that the February survey could properly be the subject of enforcement remedies. See ALJ Decision at 13-14.

3. The ALJ's findings regarding the May 16 survey deficiencies are supported by substantial evidence.

Turner argues that the incidents cited by the surveyors for May 16, 2002 do not "constitute punishable deficiencies in the quality of care" of its residents. (7) Turner Br. at 22. The deficiencies, cited under 42 C.F.R. § 483.25(h)(2), related to three residents. (8) Turner proffers argument as to why the largely undisputed facts about each incident should not be treated as sufficient to establish a deficiency. In each case, we find those arguments unpersuasive for substantially the same reasons that the ALJ rejected them.

Resident 23 was identified as having the potential to wander unsafely and wore a bracelet intended to trigger both a door lock and an alarm if he approached an exit door. ALJ Decision at 18, and record citations therein. Nevertheless, the resident successfully exited the facility without detection and was found without serious injury face down on the facility grounds about 37 minutes later. Id. Turner's original investigation found that a door was not properly locking, allowing the elopement, but did not explain why no alarm was heard. Id. Later, a nurse acknowledged that she had actually heard an alarm but failed to respond, as did a housekeeper who turned off the alarm without taking further action. Id.

[Page 15] On appeal, Turner argues that it made efforts to report, investigate and correct the problem promptly. Turner Br. at 23-24. Further, Turner asserts that its interviews indicated that all staff knew how to properly respond to an alarm, but that one nurse simply failed to do what she knew she should have done. Thus, according to Turner, the episode "was not a failure of Turner but was a failure on the part of a single nurse." Turner Br. at 26.

The ALJ roundly rejected these contentions, finding that Turner had failed to acknowledge the central point of the deficiency finding. ALJ Decision at 21. The elopement events revealed not only shortcomings in the technological systems installed by Turner to protect wandering residents, but also weaknesses in the essential human component. Id. at 21-22. Whatever training Turner had provided to its staff, multiple individuals nevertheless heard the alarm and failed to take any action to locate the resident, even though the system provided identification as to which resident had triggered it. As the ALJ put it, it was not reasonable for Turner to "fail to ensure that supervision would be provided for its wandering residents in case of failure of the high-tech supervision or the low-tech humans tasked to understand and maintain it." Id. at 22. This conclusion is especially telling given that another resident wearing a wanderguard bracelet, Resident 25, managed to briefly exit the facility through a door with the same alarm and automatic locking system some days earlier when the door failed to lock. Id. at 20. Although staff managed to intercept and redirect Resident 25 as soon as she left, that incident demonstrated that the facility's automatic locking system could fail and thus put Turner on notice that its technological systems should not be relied on in isolation. See Woodstock Care Center, DAB No. 1726 (2000), aff'd, Woodstock Care Ctr. v. Thompson, No. 01-3889 (6th Cir. 2003) (nursing home not in compliance where alarm system did not function properly, staff was not trained to use the system and staff did not use alternative methods of supervision adequate to mitigate foreseeable risk of elopements).

Nor can Turner avoid responsibility by blaming one nurse for the failure of multiple systems. As the Board explained in a prior case involving a nurse's failure to respond to calls for assistance for a resident who was experiencing trouble breathing, a facility "cannot disown the consequences of the inadequacy of the care provided by the simple expedient of pointing the finger at her fault, since she was the agent of her employer empowered to make and carry out daily care decisions." Emerald Oaks, at 7, n.3; see also Cherrywood Nursing and Living Center, DAB No. 1845 (2002) and Ridge Terrace, DAB No. 1834 (2002).

[Page 16] We conclude that substantial evidence in the record as a whole supports the ALJ's conclusion that the events surrounding the elopement of Resident 23 demonstrate Turner's failure to comply substantially with the requirement of 42 C.F.R. § 483.25(h)(2) to provide adequate supervision to prevent accidents.

Substantial evidence also supports the ALJ's findings with respect to Resident 7, whom the facility had assessed as vulnerable to skin tears. ALJ Decision at 22-23 and record citations therein. Her care plan called for the use of sleeve protectors and air bolsters to avoid injuries. The surveyors learned that she had suffered a skin tear on May 14, 2002 when her arm became entrapped in a side rail after the air bolster deflated. Id. On May 16, 2002, the surveyor observed the resident not wearing the sleeves on one occasion even though the care plan called for them to be on at all times except while bathing. Id. The surveyor concluded and CMS found that the facility had failed to provide assistive devices adequate to prevent accidents.

Turner admits that the air bolsters sometimes deflated and that the resident habitually removed the sleeves. Turner Br. at 28. Turner also acknowledges that it was cited under 42 C.F.R. § 483.20(b) in the February survey for using side rails with this resident without performing a proper assessment. Id. at 28, n.3. However, Turner argues that it cannot be penalized for noncompliance involving failure to provide protective sleeves or air bolsters on the May 16 survey since it was not cited for the same type of noncompliance regarding this resident on the February survey. Id. at 28; ALJ Decision at 23. We find no merit in this argument. As the ALJ noted, it is not a defense to the failure to address the problems with the sleeves being removed or the bolsters deflating in May to say that the facility was not charged with the same deficiency related to the same resident in February. ALJ Decision at 23. The regulations provide that CMS may apply "one or more remedies for each deficiency constituting noncompliance" found during a survey. 42 C.F.R. § 488.404(b) and (c). Nowhere do the regulations require that noncompliance found on a resurvey must be based on repetition of a previous deficiency finding. Furthermore, the facility was in fact cited for noncompliance under the same regulation, 42 C.F.R. § 483.25(h)(2), during the February survey and, in fact, two of the examples then also involved residents who suffered skin tears to their legs from side rails in their beds or from the legs of their wheelchairs. CMS Ex. 1, at 23-24. The facility was also found to be deficient in that survey with regard to Resident 7 [Page 17] for failing to provide a proper assessment and care plan to address her needs related to skin tears and to the use of side rails. Id. at 5-6, 10.

The crux of the May 16 deficiency finding is that the facility had assessed Resident 7 as needing the protective sleeves and air bolsters to protect her from skin tears but did not always provide them. Resident 7 suffered actual harm as a result. Id. We conclude that the incident relating to Resident 7 further supports the ALJ's conclusion that Turner was in violation of 42 C.F.R. § 483.25(h)(2).

Substantial evidence also supports the ALJ's conclusion that Turner was not in substantial compliance with 42 C.F.R. § 483.20(k)(3)(ii) because it failed to provide services in accord with Resident 25's plan of care, which required placing stop signs on the exit doors as a reminder to the resident and monitoring her whereabouts "frequently." Id.

As indicated earlier, Resident 25 managed to exit the facility briefly when the automatic locking system failed. Turner argues that the incident was an example of its systems operating effectively since the resident was intercepted and the faulty door lock immediately repaired. Turner Br. at 27. However, this argument entirely fails to engage the substance of the citation under the care planning regulation. Turner does not deny that the signage and monitoring measures were part of the resident's plan of care addressing the risk of wandering and elopements and does not deny that the facility failed to implement the planned care. It is fortunate that the door alarm went off and that a staff member intercepted and redirected the resident just as she went out the door, but this favorable outcome in no way addresses the facility's failure to implement measures which the facility itself identified as important to ensuring the resident's safety and care.

We uphold the ALJ's conclusions relating to the May 16 survey findings for the reasons explained above.

4. Substantial evidence supports the ALJ's finding that Turner did not achieve substantial compliance prior to June 5, 2002.

Turner objects to the imposition of any CMP after May 16, 2002. Turner Br. at 29. Turner argues that, if any deficiencies did exist on May 16, 2002, they were remedied by May 17, 2002. Turner points to measures it put in place to revise the care plans of the residents involved and others with potential for wandering and skin care issues; to improve maintenance of the [Page 18] alarm systems; and to require additional documentation by nurse aides. Turner Br. at 30-31. Turner acknowledges that elements of the POC were not implemented until June 5, 2002, including internal monitoring of compliance with the measures taken and in-service training on proper transfer techniques. Id. Turner contends, nevertheless, that the steps already taken by May 17, 2002, were sufficient in themselves to bring Turner into substantial compliance with all regulatory requirements.

The Board has long rejected as contrary to the goals of the program the notions underlying Turner's claim here, i.e., that a facility can belatedly claim to have achieved substantial compliance at a date earlier than it even alleged that it had done so or that CMS must prove continuing noncompliance on each day for which remedies are imposed. The Board fully explained its reasoning as follows:

[I]n Careplex of Silver Spring, DAB No. 1683 (1999), the Board concluded that nothing "in the regulations suggests that . . . [CMS] is obligated to independently assess the status of a facility's compliance for each intervening date," pointing out that it would be "impracticable to expect surveyors to return daily to monitor corrections before the facility even offers a credible allegation that it has achieved substantial compliance." Careplex at 6. . . . Under the regulations, a per day CMP may start to accrue "as early as the date the facility was first out of compliance" but may continue in effect only until the facility alleges and establishes that it has achieved substantial compliance once more (or the facility is terminated). 42 C.F.R. § 488.440(a)-(h); see also § 488.454. . . . The congressional purpose in providing for remedies short of termination was to allow CMS to apply pressure to motivate facilities to solve problems quickly and so protect residents without disrupting placements unnecessarily. See, e.g., H.R. Rep. No. 391, 100th Cong., 1st Sess. 942 (1987); see discussion of purpose at 59 Fed. Reg. 56,116-17, 56,177-78; see also CarePlex of Silver Spring, DAB No. 1683 (1999), Golden State Manor and Rehabilitation Center, DAB No. 1597 (1996).

Consistent with that purpose, a non-compliant facility is required to promptly file for CMS's approval a plan stating when and how the facility will correct the conditions violating participation requirements and is not entitled to have the remedies lifted unless and until the facility demonstrates that substantial [Page 19] compliance has been achieved. 42 C.F.R. §§ 488.401, 488.402(d). CMS retains the discretion to impose termination on any facility found not to be in substantial compliance, but now has the flexibility to give a facility time to demonstrate its capacity to improve. . . . Since CMS has sufficient discretion to terminate after finding a facility out of substantial compliance, it is reasonable that CMS also has the authority to continue lesser remedies in effect until it is assured that substantial compliance has been regained where it forbears to terminate the facility and provides an opportunity for correction.

Regency Gardens, DAB No. 1858, at 11 (2002) (emphasis added; citations omitted). The same reasoning is applicable here to rebut Turner's claim that steps short of those which the facility itself identified as necessary for it to correct the problems found (and to achieve substantial compliance) should nevertheless be accepted as adequate to require lifting the remedies imposed.

Furthermore, the measures which Turner did not claim to have accomplished until June 5, 2002 bear a clear relationship to preventing repetition of the deficient conditions found in the March 16 survey. Retraining in transfer techniques, for example, was important given that Resident 7 suffered a skin tear caused by improper transfer techniques. In addition, without implementing its plans for monitoring how new policies and practices were followed, Turner might have less assurance that future incidents could be effectively prevented. Ultimately, Turner simply does not point to any evidence establishing that it achieved substantial compliance prior to the date on which it alleged, and the surveyors established, that substantial compliance was achieved.

We therefore uphold the CMP for the period May 17 - June 5, 2002.

5. The correct starting date for CMPs is February 20, 2002.

CMS originally sought to impose a $250 per day CMP beginning with the last day of the survey which first found that Turner was out of substantial compliance. The ALJ accepted all of CMS's allegations as to the deficiencies on which the CMP was based, but determined that the CMP should begin one day later, on February 21, 2002. The only explanation which the ALJ provided was that his count began with "the first full day of noncompliance." ALJ Decision at 29, n.12.

[Page 20] We find no basis for excluding from the imposition of remedies a day on which Turner was found to be out of substantial compliance merely on the grounds that it was not the first "full day." The regulations specify that "the per day [CMP] may start accruing as early as the date that the facility was first out of compliance, as determined by CMS or the state." 42 C.F.R. § 488.440(a)(1). Here, CMS determined that February 20, 2002 was the date on which Turner was first out of compliance. Accordingly, CMS clearly had discretion to make the CMP start accruing on February 20, 2002, and that is what it did. We also note that Turner does not dispute that February 20 is the appropriate date for the CMP to take effect if the Board upholds imposition of the CMP back to the date of the February survey. See Turner Response Br. at 2.

We conclude that the ALJ erred in excluding February 20, 2002 from the period for which CMS could properly impose a CMP.

Conclusion

For the reasons explained above, we affirm the ALJ Decision, except that we modify it to the extent necessary to extend the $250 per day CMP period to include February 20, 2002. The ALJ's conclusion of law numbered 16 is modified to read as follows:

16. A CMP of $250 per day for 85 days beginning on February 20, 2002 and continuing through May 15, 2002; $5,000 per day for one day on May 16, 2002; and $250 for 19 days beginning on May 17, 2002 and continuing through June 5, 2002, is reasonable.

JUDGE
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Judith A. Ballard

Donald F. Garrett

Sheila Ann Hegy
Presiding Board Member

FOOTNOTES
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1. The background information in this section is drawn from the ALJ Decision and the record before the ALJ and summarized here for the convenience of the reader, but should not be treated as new findings.

2. The current version of the Social Security Act can be found at www.ssa.gov/OP_Home/ssact/comp-ssa.htm. Each section of the Act on that website contains a reference to the corresponding United States Code chapter and section. Also, a cross reference table for the Act and the United States Code can be found at 42 U.S.C.A. Ch. 7, Disp Table.

3. "Immediate jeopardy" is defined as 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.

4. Turner does not challenge on appeal the ALJ's finding that Turner presented no evidence on the merits of the deficiencies cited in the February survey. ALJ Decision at 4, FFCL 7. We therefore conclude that Turner's appeal is limited to the legal enforceability of the resulting penalties. Turner does (continued . . .) (. . . continued) suggest in its reply brief that the ALJ erroneously treated Turner as an "insurer" of the health of its patients in holding Turner responsible for the February survey deficiencies; Turner argues that the correct legal standard is whether it took reasonable steps to comply with the regulations. Turner Reply Br. at 6, citing Crestview Parke Center v. Thompson, 373 F.3d 743 (6th Cir. 2004). While objecting to the imposition of the CMP based on the February survey, Turner failed to place at issue before the ALJ any of the deficiency findings from that survey and has not demonstrated any error in the ALJ's conclusion that CMS presented an unrebutted prima facie case as to each of them. ALJ Decision at 12. Turner therefore cannot now fairly be heard to argue that the deficiencies should be reevaluated using a different legal standard. We will therefore not address further the correct framing of the legal standard for any of the deficiencies found in February 2002.

5. We address below Turner's other legal challenges to the imposition of the CMP based on the February survey findings.

6. The second letter increased the recommended CMP for the day of immediate jeopardy from $4,050 to $5,000.

7. Turner did not appeal the ALJ's conclusion that the immediate jeopardy finding was not clearly erroneous, so we do not address further the bases for that conclusion. See ALJ Decision at 9.

8. Informal dispute resolution later resulted in the citation relating to Resident 25 being reclassified as a violation of 42 C.F.R. § 483.20(k)(3)(ii), but the ALJ concluded, and we agree, that the factual allegations were not affected by this reclassification. ALJ Decision at 17, at n.2, 24-25.

CASE | DECISION | ANALYSIS | JUDGE | FOOTNOTES