WOODSTOCK CARE CENTER, Plаintiff-Petitioner, v. Tommy THOMPSON, Secretary, and United States Department of Health and Human Services, Defendants-Respondents.
No. 01-3889.
United States Court of Appeals, Sixth Circuit.
Nov. 17, 2003.
Sheila Ann Hegy, Office of the Chief Counsel, Chicago, IL, for Defendant-Respondent.
Before: BOGGS, Chief Circuit Judge; BATCHELDER, Circuit Judge; and OBERDORFER, Senior District Judge.*
PER CURIAM.
Woodstock Care Center (“Woodstock“), in an action against United States Department of Health and Human Services (“HHS“) and Tommy Thompson, in his capacity as Secretary of the HHS, seeks review of a Civil Monetary Penalty (“CMP“) imposed against Woodstock by the Health Care Financing Administration (“HCFA“),1 an agency within HHS. A survey of Woodstock, a long-term care facility for mentally disturbed residents participating in the federal Medicare and Ohio Medicaid progrаms, discovered numerous incidents in which residents had been able to escape from the facility (referred to as “elopement” by the parties) or to assault other residents. HCFA imposed the CMP under statutory and regulatory authority requiring that facilities prevent accidents or risk of accidents to residents. Woodstock appealed to an Administrative Law Judge (“ALJ“) and the Departmental Appeals Board (“DAB“) within HHS, both of which affirmed. We affirm as well.
I
Woodstock is a long-term care skilled nursing facility (“SNF“) in Ohio that participates in the federal Medicare and the Ohio Medicaid programs. It houses forty-three residents, half of whom were diagnosed with dementia and more than two-thirds of whom displayed behavioral symptoms of dementia. On February 17, 1998, inspectors of the Ohio Department of Health, under delegated authority from HHS to supervise facilities like Woodstock, and acting upon a complaint by a Woodstock employee, launched a survey of the facility, which concluded on March 4. The inspectors, registered nurses with training and extensive experience in such surveys,
Resident 112 was admitted on September 29, 1997, and suffered from organic brain disorder, ethanol alcohol dependency, and seizures. R11 wore an electronic tracking device, which triggered an alarm when the device passed through any door to the outside world. On January 3, 1998, R11 made his first attempt at elopement. He was discovered missing at 11:25 p.m. and was returned eighty minutes later after being found in a roadside ditch by a cornfield, two miles away. In response, Woodstock installed a camera trained on the fence surrounding a patio area over which R11 was assumed to have fled. On January 21, R11 was noted attempting to climb the fence at 1 a.m., but he returned when asked. At 2 a.m., he once again attempted to scale the fence but failed. At 2:40 a.m., R11 called 911 and asked the police to rescue him from Woodstock. At 4:45 a.m., he finally managed to climb the fence and escape. At 5:30 a.m., he was discovered by a Woodstock staff member wandering the streets without shoes or coat, despite the low temperatures in the January night, and was convinced to return. On February 17 or 19, Woodstock instаlled an alarm on the fence, but due to lack of training of Woodstock‘s staff, the alarm only became operational on March 15.
R11 was also violent towards other inmates. Despite having a known history of assault, he was assigned to share a room with a 73-year old resident with organic brain disorder. R11 assaulted his roommate on three occasions in December 1997. The first assault resulted in a scalp laceration that required stapling. A later assault included R11 pulling these staples. R11 also assaulted two other residents while at Woodstock. In response, R11 received counseling and had his medication altered, but without effect. R11 received his first psychological evaluation on March 2, 1998. On March 7, he assaulted another resident.
Resident 3, a 81-year old woman suffering Alzheimer‘s disease and advancing dementia, was admitted on January 4, 1998. Prior to her admission, she had been a frequent visitor to her husband, also a resident at Woodstock. On the day of her admission, another visitor who remembered R3 as a visitor held open the door for her, allowing her to escape. While she was only able to walk with the aid of a walker, she made it рast a large, unfenced pond and rubble from a burned building to a nearby busy street corner. She was found there forty-five minutes later by Woodstock staff, who convinced her to return.
Resident 5, a 74-year old man suffering from Alzheimer‘s disease and dementia, was admitted on January 2, 1998. At admission, he was heavily medicated and barely aware, or “snowed.” Over the following months, Woodstock staff experimented with altered dosage levels in order to allow him to return to a more active mental state. However, whenever dosage levels sank too low, R5 became highly agitated and demanded to leave. On one occasion, on February 20, he became “unsnowed” unexpectedly and managed to escape through a long, unlocked window, opening to аn unfenced area, of the room in which Woodstock had placed him. He was returned to Woodstock, displaying scratches, thirty minutes later.
Based on these reports and memoranda submitted by the inspectors and on their recommendation, HCFA concluded that Woodstock had allowed conditions to persist that placed patients at risk and was therefore out of compliancе with a total of eighteen administrative requirements. While the underlying incidents had largely occurred before the beginning of the survey, HCFA found that the conditions that allowed them to occur had existed at least from March 4, when the survey concluded, through March 16, when Woodstock took sufficient corrective measures. With respect to the most serious administrative violation, deemеd to be at the level creating immediate jeopardy to the residents, HCFA concluded that a sufficient remedy was in place on March 15. HCFA assessed a CMP against Woodstock of $33,650: $3,050 for each of the eleven days there was immediate jeopardy to residents and $50 for each of the two remaining days. HCFA also ordered additional monitoring of Woodstock. However, HHS eventually rejected the inspectors’ recommendations to terminate Woodstock‘s provider agreement.
On March 30, 1998, HCFA issued to Woodstock a Notice of Imposition of Remedies. Woodstock requested a hearing, under
II
Some issues, while prominent earlier in the litigation, need not concern us here. There are no substantial disputes remaining about the underlying facts. While the parties stress different facts and slight discrepancies remain on issues such as the exact length of certain elopements, the facts as stated above are consistent
We havе jurisdiction to review imposition of CMPs. “Any person adversely affected by a determination of the Secretary under this section may obtain a review of such determination in the United States Court of Appeals for the circuit in which the person resides.”
Federal regulations impose significant requirements on SNFs, such as Woodstock, that participate in the federal Medicare and state Medicaid schemes. “Each resident must rеceive and the facility must provide the necessary care and services to attain or maintain the highest practicable physical, mental, and psychosocial well-being, in accordance with the comprehensive assessment and plan of care.”
HHS is authorized to impose a CMP on a SNF that is out of compliance with
In the current case, HHS concluded that Woodstock had failed to “ensure that ... [e]ach resident receivеs adequate supervision and assistance devices to prevent accidents.”
Woodstock contends that
Woodstock also contends that HHS, in imposing a CMP, held it to a strict liability standard and, under any standard of reasonable care, it had not acted wrongly. Woodstock contends that the attacks and elopements were unprovoked and unpredictable and could not have been prevented. Howеver, the ALJ and the DAB explicitly held that the standard Woodstock faced was not a strict liability standard. Rather, they found that Woodstock had failed to take all reasonable precautions against residents’ accidents. The question whether Woodstock took all reasonable precautions is highly fact-bound and can only be answered on the basis of expertise in nursing home management. As such, it is a question the resolution of which we defer to the expert administrative agency, the HHS. But even from our inexpert perspective, numerous actions undertaken by
Woodstock argues that at common law there was no presumption of negligence against nursing homes whose residents escape and nursing homes were not the insurers of the safety of their patients but needed only exercise reasonable care. This is only marginally relevant. In the current case, Woodstock was not sued in tort by an injured resident. Instead, Woodstock suffered an administrаtive penalty under regulations that it consented to when it was permitted to participate in the Medicare and Medicaid programs. These regulations can and do set a higher standard than the common law.
Finally, Woodstock argues that the eloping residents were not in immediate jeopardy and that the elopements therefore were not a valid basis for imposition of CMPs at the increased level. “Immediate jeopardy means a situation in which the provider‘s noncompliance with one or more requirements of participation has caused, or is likely to cause, serious injury, harm, impairment, or death to a resident.”
III
For these reasons, we AFFIRM the Department of Health and Human Service‘s imposition of civil monetary penalties.