Health Law Daily Wrap Up, ADMINISTRATION OF MEDICARE/MEDICAID PROGRAMS—DAB DECISIONS: Penalties affirmed for divergence from elopement risk care plan, door control deficiencies, (Jan 23, 2026)
Organizations Mentioned:Departmental Appeals Board
By Justin Marcus Smith, J.D.
While facilities are not required to use the Wander Guard system or any other specific accident-prevention method, the facility adopted a policy for a resident who might wander without adequate follow-through.
In connection with an isolated elopement incident, a Texas skilled nursing facility (SNF) was not in substantial compliance with Medicare regulations, affirmed an administrative law judge (ALJ) assigned to hear the matter for the United States Department of Health & Human Services Departmental Appeals Board (Board). The ALJ likewise affirmed CMS findings of immediate jeopardy and civil money penalties that included $9,675 per day for the first 8 days of non-compliance. Medicare regulations did not require specific equipment to mitigate elopement risk, but CMS correctly faulted the facility for failing to implement the resident’s care plan adequately (Vista Hills Health Care Ctr., DAB No. CR6637, Doc. No. C-22-745 (Mar. 13, 2025)).
Background. A skilled nursing facility (SNF) resident (R1) who used a walker managed to elope from the petitioner’s Texas SNF undetected until staff recovered R1 after a fall in the parking lot. A hospital intensive care admitted and treated R1 for fractures and found her positive for COVID-19.
After surveyors from the Texas Health and Human Services Commission (state agency) completed a complaint investigation and issued a statement of deficiencies (SOD), CMS determined the petitioner (1) failed to ensure R1’s environment remained as free of accident hazards as possible and (2) failed to provide R1 with adequate supervision and assistance devices. CMS further determined the petitioner’s noncompliance with 42 C.F.R. § 483.25(d)(1),(2) (Tag F689) was an isolated deficiency posing immediate jeopardy to health and safety at scope and severity level “J”. Noncompliance with 42 C.F.R. § 483.90(d)(2) (Tag F908), about patient care equipment, was a pattern deficiency posing immediate jeopardy to health and safety at scope and severity level “K”. The state agency also found noncompliance with 42 C.F.R. §§ 483.80(a) (Tag F880), about effective infection prevention, an isolated deficiency posting no actual harm with potential for more than minimal harm at scope and severity level “D”.
CMS imposed a civil money penalty (CMP) of $9,675 per day for 8 days and a $245 per day penalty for 3 additional days. CMS also imposed a denial of payment for new admissions (DPNA) and prospectively terminated the petitioner’s Medicare provider agreement.
Before the effective termination date, CMS acknowledged the petitioner had corrected the deficiencies and was in substantial compliance with Medicare requirements as of 3 days after the state agency completed its investigation. CMS rescinded the provider agreement termination and DPNA.
The petitioner timely requested a hearing before an ALJ. The issues to be decided in the hearing were:
whether petitioner failed to be in substantial compliance with Medicare program participation requirements at 42 C.F.R. § 483.25(d)(1)-(2) and 42 C.F.R. § 483.90(d)(2);
if petitioner was not in substantial compliance with those requirements, whether the CMS determination of immediate jeopardy was clearly erroneous; and,
if petitioner was not in substantial compliance, whether the amount of the CMP imposed on petitioner was reasonable under the factors in 42 U.S.C. § 1320a-7a(d) and 42 C.F.R. § 488.438(f).
The ALJ affirmed the petitioner was not in substantial compliance, the immediate jeopardy determination was not erroneous, and the CMP was reasonable.
Evidentiary dispute. The petitioner objected to the admissibility of the state agency SOD, surveyor notes, and two state agency surveyor declarations, on the basis they contained hearsay. The ALJ found the hearsay objections misplaced because ordinary rules of evidence applicable to court proceedings did not apply under 42 C.F.R. § 498.61. The Board has recognized hearsay statements may be given appropriate weight if they appear reliable. The ALJ also found the SOD and surveyor notes were relevant and material despite the petitioner’s objections about completeness and relevance, respectively.
As to whether a surveyor-declarant lacked clinical qualifications as a licensed vocational nurse (LVN) rather than a registered nurse, the ALJ ruled that survey composition requirements did not apply to a complaint investigation.
Substantial non-compliance. The ALJ found the petitioner was not in substantial compliance with 42 C.F.R. § 483.25(d)(1)-(2) because the petitioner did not take all reasonable steps to ensure that R1’s environment was as free of accident hazards as possible. The petitioner also did not provide adequate supervision based on elopement risk and R1’s need for assistive devices to prevent elopement.
A facility must ensure:
The resident environment remains as free of accident hazards as is possible; and
Each resident receives adequate supervision and assistance devices to prevent accidents.
CMS alleged that petitioner did not comply with 42 C.F.R. § 483.25(d) based on the resident’s elopement. The petitioner did not dispute the elopement. The petitioner argued instead that it appropriately assessed resident 1’s risk of elopement, developed a care plan, and “correctly and consistently implemented” the care plan.
The ALJ decided the weight of the evidence showed the petitioner did not substantially comply with 42 C.F.R. § 483.25(d). The facility took some but not all reasonable steps to mitigate an assessed risk. The ALJ found petitioner staff completed an elopement assessment and updated a care plan for potential wandering and exit-seeking, but the petitioner did not implement interventions “consistently and completely” because it did not ensure its exterior gate and door alarms functioned properly. That also involved a lack of sufficient supervision and assistance devices to reduce elopement accident risk. The regulation did not require facilities to use the Wander Guard system or any other specific accident-prevention method; however, the facility adopted a policy with respect to those who wander without adequate follow through.
The petitioner did not submit any evidence to show its system was adequate, that it followed the care plan, or that staff complied with physician orders to check the functionality of R1’s Wander Guard on every shift. The petitioner also did not dispute that it employed the Wander Guard system on only two doors. The ALJ affirmed the petitioner was not in substantial compliance with 42 C.F.R. § 483.25(d)(1)-(2).
Equipment measures involving alarms and locks were also inadequate. The ALJ opinion discussed the various details at length. The ALJ concluded CMS made a prima facie showing of a violation of 42 C.F.R. § 483.90(d)(2).
Immediate jeopardy. The ALJ concluded the finding of immediate jeopardy must be sustained because it was not clearly erroneous. The evidence showed R1 suffered actual and serious injury and harm, including fractures, from her elopement and fall. The petitioner did not take all reasonable measures to provide adequate supervision and assistance devices to prevent elopements, as already mentioned.
Penalties reasonable. The ALJ held the penalty amount for the first eight days of the period of noncompliance must be from the higher range of penalties due to the sustained finding of noncompliance at immediate jeopardy level. The noncompliance was very serious, petitioner culpability was significant, and the petitioner did not offer argument or rebuttal to CMS evidence of historical noncompliance. The petitioner did not assert it could not pay the per-day CMP. The ALJ found no basis to reduce the CMP.
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