St. Anthony Care Center, DAB CR5548 (2020)

DECISION

Here, the undisputed evidence establishes that the kitchen management and staff in a long-term-care facility did not understand or implement basic food safety requirements. The questions this case presents are whether, as a matter of law, such failures put the facility out of substantial compliance with Medicare program requirements, and whether they pose immediate jeopardy to resident health and safety. 

Petitioner, St. Anthony Care Center, is a long-term care facility, located in Hayward, California, that participates in the Medicare program.  Following a recertification survey, completed on March 15, 2017, the Centers for Medicare & Medicaid Services (CMS) determined that the facility was not in substantial compliance with Medicare requirements, particularly those that govern food and nutrition services, and that its deficiencies posed immediate jeopardy to resident health and safety. CMS has imposed civil money penalties (CMPs) of $8,749 per day for one day of immediate jeopardy and $510 per day for 49 days of substantial noncompliance that did not pose immediate jeopardy ($33,739 total).

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Petitioner appeals. CMS has moved for summary judgment, which Petitioner opposes, arguing that, to the contrary, I should grant summary judgment to Petitioner because CMS has not established a prima facie case of substantial noncompliance.  In the alternative, according to Petitioner, I must deny summary judgment because the undisputed facts do not establish that the facility’s deficiencies posed immediate jeopardy to resident health and safety. 

I reject Petitioner’s arguments and grant CMS’s motion. 

The undisputed evidence establishes that: the facility was not in substantial compliance with the regulations governing food and nutrition services, nor the regulation requiring that the facility maintain its equipment; the facility’s food preparation and storage deficiencies posed immediate jeopardy to resident health and safety; and the penalties imposed ($8,749 and $510 per day) are reasonable.

Background

The Social Security Act (Act) sets forth requirements for nursing facilities participating in the Medicare program and authorizes the Secretary of Health and Human Services to promulgate regulations implementing those statutory provisions. Act § 1819. The Secretary’s regulations are found at 42 C.F.R. Part 483. To participate in the Medicare program, a nursing facility must maintain substantial compliance with program requirements. To be in substantial compliance, a facility’s deficiencies may pose no greater risk to resident health and safety than “the potential for causing minimal harm.” 42 C.F.R. § 488.301. 

The Secretary contracts with state survey agencies to survey skilled nursing facilities in order to determine whether they are in substantial compliance. Act § 1864(a); 42 C.F.R. § 488.20.  Each facility must be surveyed annually, with no more than fifteen months elapsing between surveys, and must be surveyed more often, if necessary, to ensure that identified deficiencies are corrected. Act § 1819(g)(2)(A)(iii); 42 C.F.R. §§ 488.20(a), 488.308. The state agency must also investigate all complaints.  Act § 1819(g)(4).

In this case, on March 15, 2017, surveyors from the California Department of Public Health (state agency) completed the facility’s annual recertification survey.  Based on the survey findings, CMS determined that the facility did not comply substantially with the following program requirements:

• 42 C.F.R. § 483.60(a)(1)-(2) (Tag F361 – dietary services:  staffing) cited at scope and severity level F (widespread substantial noncompliance that causes no actual harm with the potential for more than minimal harm);

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• 42 C.F.R. § 483.60(c)(1)-(7) (Tag F363 – dietary services:  menus and nutritional adequacy) cited at scope and severity level F;
• 42 C.F.R. § 483.60(i)(1)-(3) (Tag F371 – dietary services:  food safety) cited at scope and severity level K (pattern of substantial noncompliance that poses immediate jeopardy to resident health and safety); and
• 42 C.F.R. § 483.90(d)(2) (Tag F456 – physical environment:  space and equipment) cited at scope and severity level D (isolated instance of substantial noncompliance that causes no actual harm with the potential for more than minimal harm).

CMS Exs. 1, 2.1 CMS determined that, for one day, the deficiency cited under section 483.60(i)(1)-(3) posed immediate jeopardy to resident health and safety. CMS Ex. 1 at 11-12; CMS Ex. 2 at 1. 

Following a revisit survey, completed May 4, 2017, CMS determined that the facility returned to substantial compliance on May 4. CMS Ex. 3 at 2.

CMS has imposed civil money penalties of $8,749 per day for one day of immediate jeopardy (March 15, 2017) and $510 per day for 49 days of substantial noncompliance that was not immediate jeopardy (March 16 through May 3, 2017), for a total penalty of $33,739. CMS Ex. 2 at 2; CMS Ex. 3.

Petitioner appeals, and CMS has moved for summary judgment.  In addition to its motion and brief (CMS MSJ), CMS has submitted a prehearing brief (CMS Br.), a reply to Petitioner’s prehearing brief (CMS Reply) and sixteen exhibits (CMS Exs. 1-16).  Petitioner has submitted a prehearing brief (P. Br.), a memorandum in opposition to CMS’s motion for summary judgment (P. Opp.), and 14 exhibits (P. Exs. 1-14).

Issues

As a threshold matter, I consider whether summary judgment is appropriate. 

On the merits, the issues are:

1. From March 15 through May 3, 2017, was the facility in substantial compliance with Medicare program requirements, specifically: 42 C.F.R. §§ 483.60(a)(1)-(2), 483.60(c)(1)-(7), 483.60(i)(1)-(3), and 483.90(d)(2); and

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2. If, on March 15, 2017, the facility was not in substantial compliance with Medicare program requirements, did its deficiencies then pose immediate jeopardy to resident health and safety. 

Order Summarizing Pre-Hearing Conference at 2 (Oct. 18, 2019).2  Except for challenging the noncompliance itself and its duration, Petitioner has not argued that the amounts of the penalties are unreasonable.3

Discussion

Summary judgment. Summary judgment is appropriate if a case presents no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law. Bartley Healthcare Nursing and Rehab., DAB No. 2539 at 3 (2013), citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-25 (1986); Ill. Knights Templar Home, DAB No. 2274 at 3-4 (2009), and cases cited therein.

The moving party may show the absence of a genuine factual dispute by presenting evidence so one-sided that it must prevail as a matter of law or by showing that the non-moving party has presented no evidence “sufficient to establish the existence of an

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element essential to [that party’s] case, and on which [that party] will bear the burden of proof at trial.”  Livingston Care Ctr. v. Dep’t of Health & Human Servs., 388 F.3d 168, 173 (6th Cir. 2004) (quoting Celotex Corp., 477 U.S. at 323-24).  To avoid summary judgment, the non-moving party must then act affirmatively by tendering evidence of specific facts showing that a dispute exists.  Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 n.11 (1986); Vandalia Park, DAB No. 1939 (2004); Lebanon Nursing and Rehab. Ctr., DAB No. 1918 (2004); Crestview Parke Care Ctr., DAB No. 1836 at 5 (2002). 

General denials do not satisfy a party’s burden to identify specific evidence demonstrating a material fact is in dispute.  Shah v. Azar, 920 F.3d 987, 995 (5th Cir. 2019); Forsyth v. Barr, 19 F.3d 1527, 1533 (5th Cir. 1994); Pearsall Nursing & Rehab., DAB No. 2692 at 7 (2016) (affirming summary judgment where Petitioner “refers broadly to ‘the evidence presented in [its] response’” but “identifies no specific evidence relevant to the material facts . . . .”); Ill. Knights Templar, DAB No. 2274 at 4 (finding that the non-moving party must furnish admissible evidence of a dispute concerning a material fact); Livingston Care Ctr., DAB No. 1871 at 5 (2003).  In doing so, the non-moving party must show more than “some metaphysical doubt as to the material facts.”  West Texas LTC Partners, Inc., DAB No. 2652 at 6 (2015), aff’d, West Texas LTC Partners, Inc. v. U.S. Dep’t. of Health & Human Servs., 843 F.3d 1043 (5th Cir. 2016); 1866ICPayday.com L.L.C., DAB No. 2289 at 3 (2009) (quoting Matsushita Elec., 475 U.S. at 587).

In examining the evidence for purposes of determining the appropriateness of summary judgment, I must draw all reasonable inferences in the light most favorable to the non-moving party.  Brightview Care Ctr., DAB No. 2132 at 2, 9 (2007); Livingston Care Ctr., 388 F.3d 172; Guardian Health Care Ctr., DAB No. 1943 at 8 (2004); see also Brightview, DAB No. 2132 at 10 (entry of summary judgment upheld where inferences and views of non-moving party are not reasonable).  However, drawing factual inferences in the light most favorable to the non-moving party does not require that I accept the non-moving party’s legal conclusions.  West Texas LTC Partners, Inc., DAB No. 2652 at 6-7, 14-15; cf. Guardian Health Care Ctr., DAB No. 1943 at 11 (“A dispute over the conclusion to be drawn from applying relevant legal criteria to undisputed facts does not preclude summary judgment if the record is sufficiently developed, and there is only one reasonable conclusion that can be drawn from those facts.”); see Green Valley Health Care and Rehab. Ctr., DAB No. 2947 at 8 (2019), quoting Johnson v. Perez, 823 F.3d 701, 705 (D.C. Cir. 2016) (noting that a genuine factual dispute does not exist “when a putatively disputed body of evidentiary material could not, even assuming a sympathetic factfinder, reasonably support a finding crucial to the nonmoving party’s legal position.”).

Summary judgment applied to administrative review in Medicare cases. It is well-established that an administrative law judge is empowered to decide a case on a motion

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for summary judgment, without an evidentiary hearing.  Shah v. Azar, 920 F.3d at 996, citing Cedar Lake Nursing Home v. U.S. Dep’t of Health and Human Servs., 619 F.3d 453, 457 (5th Cir. 2010); see Fal-Meridian, Inc. v. U.S. Dep’t of Health and Human Servs., 604 F.3d 445 (7th Cir. 2010).4  Nevertheless, some are confused about applying such well-founded principles of civil litigation to these proceedings, with ill-informed advocates suggesting that, to do so, denies a party a fundamental right.  In one succinct observation, Judge Posner of the Seventh Circuit Court of Appeals gave lie to such misapprehensions:  “All it means for a decision to be based on a grant of summary judgment is that there are no issues that would benefit from being resolved in an evidentiary hearing.”  Fal-Meridian, 604 F.3d at 449 (emphasis added).  There, because the petitioner/nursing home did not tender evidence that, if believed, would show its substantial compliance, the Seventh Circuit sustained an ALJ’s granting summary judgment in CMS’s favor.  Id at 451.

Here, CMS has come forward with evidence showing that, for at least seven weeks, the facility’s dietary services were not in substantial compliance with multiple sections of the dietary services regulation (42 C.F.R. § 483.60) – with one day at the level of immediate jeopardy – as well as with the physical environment regulation (42 C.F.R. § 483.90(d)(2)).  For its part, Petitioner offers no evidence demonstrating that it disputes any of the underlying material facts.  Instead, it suggests (but not too forcefully) that those facts do not establish that it was out of substantial compliance and argues that, in any event, its deficiency under section 483.60(i) did not pose immediate jeopardy.  These are legal conclusions, not questions of fact. 

No issue here “would benefit from being resolved in an evidentiary hearing.”  Fal-Meridian, 604 F.3d at 449.  First, because I do not rely on any of the CMS witness statements or opinions that are challenged by Petitioner and its witnesses, cross-examining CMS’s witnesses would serve no purpose.  Second, I accept, for purposes of summary judgment, the specific, admissible, and relevant evidence that Petitioner offers.

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I do not, however, accept its general denials, legal conclusions, and gratuitous factual claims.5

As the following discussion shows, CMS has presented evidence – specific, undisputed facts – so one-sided that it must prevail as a matter of law.  Indeed, for Petitioner to prevail, I would have to agree that the regulations governing food services have no legitimate purpose in that a kitchen staff’s disregard of the most basic food safety standards – washing hands; keeping one’s fingers out of one’s mouth while preparing and serving food; properly washing utensils, pots, and pans (including items that fall on the floor); serving and storing foods at safe temperatures – is not likely to cause serious, or even minimal, harm to facility residents.  Because, as a matter of law, I cannot reach those conclusions, Petitioner simply cannot prevail.

1. CMS is entitled to summary judgment because the undisputed evidence establishes that the facility’s kitchen management and staff disregarded dietary and food safety standards, which put the facility out of substantial compliance with 42 C.F.R. § 483.60(a), (c), and (i).6

Program requirement: 42 C.F.R. § 483.60(a) (Tag F361). The facility must provide each resident with a nourishing, palatable, well-balanced diet that meets his or her daily nutritional and special dietary needs, taking into consideration the preferences of each resident.  To this end, the facility must employ sufficient staff with the appropriate competencies and skill sets to carry out the functions of the food and nutrition service.  Specifically, the facility must employ a qualified dietician or other clinically qualified nutrition professional, either full-time, part-time, or on a consultant basis.  If this professional is not employed full-time, the facility must designate a qualified person to serve as director of food and nutrition services.  The director of food and nutrition services must consult frequently with the qualified dietician or nutrition professional.

Program requirement: 42 C.F.R. § 483.60(c) (Tag F363). The facility’s menus must:  1) meet the nutritional needs of the residents; 2) be prepared in advance; 3) be followed; 4) reflect the religious, cultural, and ethnic needs of the resident population, as well as input from the residents and resident groups; 5) be updated periodically; and 6) be reviewed by the facility’s dietician or other clinically qualified nutrition professional for

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nutritional adequacy.  Nothing in the regulation “should be construed to limit the resident’s right to make personal dietary choices.”

Program requirement: 42 C.F.R. § 483.60(i) (Tag F371). The facility must procure food from approved sources or sources considered satisfactory by federal, state, or local authorities.  It must store, prepare, distribute, and serve food in accordance with professional standards for food service safety.  The facility must also have a policy regarding the use and storage of foods brought to residents by family and other visitors to ensure its safe and sanitary storage, handling, and consumption.

Facility policies. As the Departmental Appeals Board has repeatedly explained, a facility’s policy for implementing a regulatory requirement reflects the facility’s own judgment about how best to achieve compliance.  Failing to comply with its own policies “can support a finding that the facility did not achieve compliance with the regulatory standard.”  Bivens Memorial Nursing Home, DAB No. 2771 at 9 (2017); Rockcastle Health and Rehab. Ctr., DAB No. 2891 at 19 (2018) (ruling that, absent contrary evidence, it is reasonable to presume that the facility’s policies reflect professional standards); Hanover Hill Health Care Ctr., DAB No. 2507 at 6 (2013); Life Care Ctr. at Bardstown, DAB No. 2233 at 21-22 (2009) (finding that a facility’s failing to comply with its own policies can constitute a deficiency).

a. Handwashing and Sanitation

The facility had in place written policies for handwashing and sanitation. 

Facility policy: handwashing. The facility’s handwashing policy characterizes handwashing as “important to prevent the spread of infection.”  CMS Ex. 4 at 9 (emphasis added).  The policy lists how frequently staff must wash their hands:

• Before starting work in the kitchen;
• After handling soiled dishes and utensils;
• Before and after doing housekeeping procedures;
• Before and after handling foods with the hands (cutting, peeling, mixing, etc.);
• After going to the toilet, after sneezing, after using a handkerchief or tissue;
• Before and after eating and smoking; and
• After leaving a resident’s room.

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CMS Ex. 4 at 9; P. Ex. 11 at 2 (Xie Decl. ¶ 6).

The policy also describes the appropriate procedure for handwashing, which requires warm water and soap.  It directs staff to wash hands and forearms, especially between fingers and around fingernails.  The process must be repeated, fingernails must be cleaned, hands thoroughly rinsed and dried. CMS Ex. 4 at 9.

Facility policy: sanitation. The facility also had in place a written sanitation policy. Many of its provisions require that the facility have and maintain the equipment necessary for properly preparing, serving, and storing food. CMS Ex. 5 at 21-22.  In addition, the policy mandates that all dietary staff know proper handwashing.  The handwashing sink must have hot and cold running water, soap, paper towels, and receptacles of waste paper.  CMS Ex. 5 at 22.

The policy describes how staff must handle dishes and utensils:  cups and glasses must be grasped firmly in the middle or by the handle; dishes are handled by their rims, not allowing any contact with food surfaces; silverware must always be held by the handles, the portion that comes in contact with food “must never be touched.”  CMS Ex. 5 at 22.

The policy also mandates that food be stored and handled at correct temperatures.  Staff are required to use thermometers to check temperatures of refrigerators, freezers, and the food storeroom.  Thermometers are also used to check food temperatures at mealtime.  CMS Ex. 5 at 22. 

Ice used in connection with food or drink must be from a sanitary source and must be handled and dispensed in a sanitary manner.  CMS Ex. 5 at 22.

Facility policy: dishwashing. The facility policy mandates that all dishes be properly sanitized through the dishwasher,7 which must be kept clean and in good working order.  CMS Ex. 4 at 20.  No dietary employee is allowed to operate any piece of equipment without knowing how to operate it correctly, and the dietary supervisor is responsible for instructing personnel in the use of the equipment.  Each employee must know how to operate and clean all equipment in the employee’s specific work area.  CMS Ex. 5 at 21.

Among other requirements, appropriate chemicals must be used to wash, de-stain, and rinse the dishes.  The dishwasher must be serviced on a regular basis to assure accurate measures of sanitizing agents.  A temperature log (and chlorine log on low temperature machines) is maintained next to the machine to assure that it is working properly.  The log must be completed at each meal prior to any dishwashing.  For low-temperature machines (which the facility had) the chlorine should read 50-100 parts per million

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(ppm). The policy emphasizes that the proper level of chlorine “is crucial in sanitizing dishes.” CMS Ex. 4 at 20. 

The dishwashing process itself requires at least two employees: one handles the soiled area and one handles the clean side. If an employee moves from the soiled to the clean side “a strict handwashing routine must be followed.” The dietary supervisor is responsible for training staff in the fundamentals of food service sanitation and using appropriate techniques. CMS Ex. 5 at 22. 

Facility policy: food carts. The facility has also produced a separate policy for cleaning food carts. Staff are to brush or wipe off all loose soil and to clean the corners. Using a hot solution of detergent, prepared by following the manufacturer’s instructions, staff should clean the cart inside and outside with a clean cloth, making sure to clean corners, under shelves and brackets, and into seams and joints. Then rinse with clean, warm water. Finally, prepare sanitizing solution in a spray bottle and clean the cart once more with that solution. Wipe with a clean cloth. CMS Ex. 4 at 26; P. Ex. 4; P. Ex. 11 at 6 (Xie Decl. ¶ 15); see CMS Ex. 1 at 22 (indicating that the dietary supervisor confirmed that the food cart was to be cleaned with the detergent located above the sink on the dirty side of the dishwasher, using a clean rag). 

Facility policy: can opener and base. The facility had a separate policy for cleaning its can opener and base, declaring that “[p]roper sanitation . . . of the can opener and base is important to sanitary food preparation.” CMS Ex. 4 at 25.  The policy requires that the can opener be cleaned thoroughly each work shift and more frequently, if necessary. The handle portion should be cleaned in the dishwasher. The base is washed with a brush, cloth, and detergent solution, making sure that the shaft cavity is clean. Rinse with fresh water and dry thoroughly with a clean cloth. CMS Ex. 4 at 25.

The kitchen staff’s practices: handwashing and sanitation. The undisputed evidence establishes that the kitchen staff did not follow the facility’s handwashing and sanitation policies. Specifically:

• On the morning of March 13, 2017, surveyors observed Cook 1 preparing lunch for the facility residents. Cook 1 did not wash her hands throughout this period. CMS Ex. 1 at 13.  She later told surveyors that she was not required to wash her hands when she rinsed the dishes used in preparing foods. CMS Ex. 1 at 14; see CMS Ex. 4 at 9 (requiring that hands be washed before starting work in the kitchen and after handling soiled dishes and utensils).
• At approximately 11:00 a.m. on March 13, 2017, Cook 1 dipped her (unwashed) hand into a container of dried parsley and added the parsley to the potatoes she was cooking.  She returned the parsley container to its cabinet.  She did not wash

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her hands. CMS Ex. 1 at 13; see CMS Ex. 4 at 9 (directing staff to wash hands before and after handling food).

• Cook 1 dropped the lid to a container of cooking oil spray. After replacing the parsley, she got down on hands and knees – touching the floor with her hands – and picked up the lid. She then rinsed the lid in the food preparation sink, wiped it with a rag that was sitting there, and put the lid back on the cooking spray. She did not wash her hands (according to CMS), but continued preparing food. CMS Ex. 1 at 13, 14, 22-23; CMS Ex. 5 at 12; see CMS Ex. 4 at 9 (directing staff to wash hands after doing housekeeping procedures and before preparing food). Cook 1 subsequently told surveyors that the procedure she followed was “okay.”  CMS Ex. 1 at 23.8
• Using the sink located at the “dirty side” of the dishwasher, Cook 1 then rinsed pots, pans, and cooking utensils and put them in the dishwasher, starting the machine. She did not wash her hands, but returned immediately to preparing food and setting up food trays.  CMS Ex. 1 at 13, 14; CMS Ex. 5 at 12; see CMS Ex. 4 at 9 (again, requiring staff to wash hands after handling soiled dishes and utensils); CMS Ex. 5 at 22 (requiring at least two employees for dishwashing and requiring that an employee who moves from the soiled to the clean side employ “a “strict handwashing routine”).
• While preparing gravy, Cook 1 placed her (unwashed) finger in the gravy and then put her finger in her mouth; again, without washing her hands, she continued to prepare food and set up the food trays, which required her to handle utensils. CMS Ex. 1 at 13, 14; CMS Ex. 5 at 12; see CMS Ex. 4 at 9 (requiring staff to wash hands before and after handling food), CMS Ex. 5 at 24 (requiring the preparer of food to sample it using a clean spoon or tasting it from a separate dish).
• When the dirty lunch dishes were returned to the kitchen, Cook 1 rinsed them in the sink on the dirty side of the dishwasher. She then removed her gloves and wiped her hands with a white rag that was on the table near the handwashing sink.

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She did not wash her hands.  She put on clean gloves and handled the clean dishes that she had removed from the dishwasher.  CMS Ex. 1 at 14, 22; CMS Ex. 5 at 12.

• With the same white rag she’d used to wipe her unwashed hands, she wiped down the food cart that was used for delivering resident food.  She confirmed that the cart had just been used to carry the resident dishes back to the kitchen.  CMS Ex. 1 at 14, 22; CMS Ex. 5 at 12; see CMS Ex. 4 at 26 (requiring that clean cloths be used for washing and sanitizing food carts); P. Ex. 4 (describing the appropriate procedure for cleaning a food cart).  She returned the used rag to the “clean side” of the dishwasher.  CMS Ex. 1 at 22.
• At 1:50 p.m. on March 14, the surveyors observed Cook 2 washing dishes returned from the resident meals, using the low-temperature dish machine.  She dipped the chlorine test strip into the sanitizing solution immediately after the machine’s sanitize cycle and declared that the strip read between 10 and 50 ppm.  The surveyors observed that it read closer to 10 ppm, well below the 50 ppm threshold.  Cook 2 nevertheless declared that 10 ppm was appropriate for sanitizing dishes.  The dietary supervisor tested the level of sanitizer for two more consecutive sanitation cycles, using test strips from two different containers.  She reported that the level was 10 ppm and agreed that the level was too low.  To achieve adequate sanitation, the level should not be below 50 ppm.  CMS Ex. 1 at 18; see CMS Ex. 4 at 20.
• At 7:20 a.m. on March 13, the kitchen can opener was dirty; it had “brown, sticky drip marks down the shaft.”  The blade had a brownish residue that came off when the blade was wiped with a paper towel.  Cook 1 told the surveyors that the can opener had not been used that day and should have been cleaned after her supervisor used it the day before.  CMS Ex. 1 at 25-26; see CMS Ex. 4 at 25 (requiring that the can opener be thoroughly cleaned each work shift). 

Petitioner’s response: handwashing and sanitation. Petitioner offers no testimony from Cook 1, Cook 2, the dietary supervisor, the consultant dietician, or any other member of the kitchen staff, and no witness denies or seriously defends the staff’s actions.  Indeed, Petitioner’s expert witness, Michael A. Sulzinski, PhD, agrees that “the specific deficiencies cited against the facility . . . are documented and need to be corrected . . . .”  P. Ex. 14 at 7 (Sulzinski Decl. ¶ 21).

The facility’s DON, Quing Xie, also concedes that Cook 1 did not follow the “best practice,” but (without explaining how she knows what happened), blames the surveyors for making Cook 1 so nervous that she dropped the lid to the cooking spray.  Why she dropped the lid is irrelevant; what matters is what she did after she dropped the lid.  According the DON Xie, Cook 1 admitted that she “did not put the lid in the dishwasher

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and separately wash her hands.” Cook 1 “claims” that she “rinsed off the lid and washed her hands again before replacing the lid back onto the spray can and moving onto her next task.”  P. Ex. 11 at 3 (Xie Decl. ¶7).  DON Xie does not deny that Cook 1 used the food preparation sink to rinse the lid and to wash her hands.  See CMS Ex. 1 at 13. 

DON Xie does not explain how Cook 1 washed her hands while holding the lid to the cooking spray, nor does she claim that Cook 1 followed the facility’s protocol for handwashing.  Nevertheless, accepting, for purposes of summary judgment, that Cook 1 washed her hands as she rinsed the lid, that fact is not material.  Cook 1’s undisputed failures to follow facility policies for handwashing and sanitation in all the other instances and her admitted unfamiliarity with the facility’s handwashing and sanitation policies – facts that Petitioner has not disputed – put the facility out of substantial compliance with the dietary services regulation, specifically 42 C.F.R. § 483.60(i). 

The consultant dietician never observed staff preparing food.  CMS Ex. 1 at 4-5 (discussed further, below).  The dietary supervisor was responsible for training staff in the fundamentals of food service sanitation and techniques, which, along with many other duties (see below), she did not do.  The facility was therefore not in substantial compliance with section 483.60(a).  See CMS Ex. 5 at 22.

Further, the facility’s kitchen was not even set up to comply with the facility’s policies, inasmuch as the same person was handling both clean and dirty dishes and was preparing food.  This failure also put the facility out of substantial compliance with section 483.60(i) and, as discussed below, contributes to its noncompliance with 42 C.F.R. § 483.60(a).

Petitioner does not challenge the surveyor observation that the can opener and its base had not been cleaned, which, according to the facility’s policy, jeopardized sanitary food preparation.  CMS Ex. 4 at 25.

Petitioner’s response: food carts. DON Xie does not dispute that Cook 1 wiped down the food cart with the same cloth she’d used to wipe her unwashed hands.  Ignoring what she acknowledges was the facility’s written policy for cleaning food carts (P. Ex. 4), DON Xie describes a completely different policy, which, she claims, Cook 1 was following.  According to DON Xie, the cloth the cook used to wipe both her hands and the cart was “pre-sanitized” with a cleaning solution so it was appropriate for Cook 1 to use it as she did.  P. Ex. 11 at 6 (Xie Decl.¶ 15).  Petitioner produces no written policy consistent with DON Xie’s assertion, and she makes no effort to reconcile her claim with the written policy that is in the record.  If I accept DON Xie’s assertion, I would have to conclude that the facility not only failed to train its staff properly, it did not even have a consistent, coherent policy for cleaning food carts, which also puts it out of substantial compliance with section 483.60(i).  The DON’s already questionable claim is therefore not material.

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Petitioner’s response: dishwashing. No evidence suggests a dispute as to the dishwasher’s chlorine level at 1:50 p.m. on March 14, when Cook 2, the surveyors, and the dietary supervisor tested it.  DON Xie also concedes that Cook 2 misread the test strip and that she told the surveyors that 10 ppm was an appropriate level for the chlorine sanitizer, but the DON attributes the cook’s error to her language difficulties.  P. Ex. 11 at 4 (Xie Decl. ¶ 10).  But this is a task that Cook 2 purportedly performed every day and should be able to understand and demonstrate without regard to the circumstances under which she is asked to do so.  Moreover, surveyors necessarily spend limited time in any facility, and, while they are there, the facility must demonstrate its substantial compliance, which means that kitchen staff must show basic levels of competence.  If (as here) staff cannot do so, CMS should rightfully conclude that the facility is not in substantial compliance.  

Petitioner points to three months of temperature logs that consistently show chlorine levels of exactly 50 ppm, which is strange because one would expect the levels to vary at least occasionally.  CMS Ex. 4 at 24; P. Ex. 3 at 1, 2.  But perhaps it is not all that strange inasmuch as Cook 2 read as 50 ppm a measure that was well below that level.  Moreover, on February 8, kitchen staff again recorded ppm levels of 50 throughout the day, yet the company that serviced the dishwasher on that day reported a level of 200 ppm (which is, incidentally, also outside the 50-100 ppm range called for in the facility policy).  Compare P. Ex. 3 at 2 with P. Ex. 3 at 4.9  But the logs are also consistent with the surveyors’ (and dietary supervisor’s) agreement that Cook 2 declared that the strip read between 20 and 50 ppm, when it did not, statements that Petitioner has not challenged.  For purposes of summary judgment, I must presume that these fairly suspicious log entries are accurate (although Petitioner has not explained how I should reconcile that 50 ppm with the 200 ppm figure recorded at the same time).  Nevertheless, the undisputed evidence also establishes that Cook 2, who was charged with monitoring chlorine levels in the dishwasher, could not show that she understood the importance of chlorine levels nor that she could accurately measure and read those levels.  CMS Ex. 1 at 18.

Any one of the multiple irregularities described above shows that kitchen staff did not prepare and serve food in accordance with professional standards for food service safety, which puts the facility out of substantial compliance with sections 483.60(a) and (i).

b. Food Preparation.

Facility policy: food preparation. The facility also had in place a food-preparation policy. It requires approved recipes that are standardized to meet the resident census. The recipes must be “specific as to portion yield, method of preparation, amounts of

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ingredients[,]and time and temperature guide.”  CMS Ex. 5 at 24. The employee who prepares the food must sample it, using a clean spoon or tasting it from a separate dish.  CMS Ex. 5 at 24. 

All raw products should be considered contaminated and handled with methods designed to reduce existing contamination and prevent cross-contamination.  Raw and cooked foods must be separated, and staff are required to use separate cleaned and sanitized cutting boards, utensils, and knives for raw and cooked foods.  CMS Ex. 5 at 24.

Food should be prepared as close to serving time as practical, with a holding period no longer than one hour.  The food must maintain temperatures of 140 degrees F or above (hot foods) and 41 degrees F or below (cold foods) while the food is held, and the food must be kept covered.  CMS Ex. 5 at 24

According to a separate food preparation policy, potentially hazardous foods should be cooked to AT LEAST the following time and temperature standards:

• Beef, veal, lamb, eggs, fish, dairy, pasta, potatoes, tofu, legumes:  145 degrees F for 15 seconds:
• Pork, ham, game, chopped or ground meats, tenderized meats:  155 degrees F for 15 seconds;
• Poultry and stuffed food products, including stuffed pasta, stuffed meats, stuffed poultry or fish, and stuffing containing fish, meat, or poultry:  165 degrees F for 15 seconds;
• Beef roasts:  140 degrees F for 12 minutes.

CMS Ex. 4 at 12.

Facility policy: thermometers. At the time of the survey, the facility could not produce a written policy and procedure describing the proper method for calibrating the thermometers used to measure food temperatures.  For these proceedings, the facility produced such a policy, and the parties agree that it accurately reflects professional standards for food safety.  CMS Ex. 1 at 17; P. Ex. 2; P. Ex. 11 at 3 (Xie Decl. ¶ 8).  The policy requires that food thermometers be calibrated “to ensure accurate temperature reading.”  They must be calibrated weekly, whenever a thermometer is dropped, and when a thermometer is new.  The policy recommends putting the task on “a cook’s duties/sanitation list that must be initialed upon completion.”  P. Ex. 2 at 1.  To calibrate properly:  fill a large glass with finely crushed ice.  Add clean tap water to the top of the ice and stir well.  Immerse the food thermometer stem into the mixture a minimum of two inches, touching neither the sides nor the bottom of the glass. Wait a minimum of 30

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seconds before adjusting.  The policy cautions that the thermometer stem or probe must remain in the ice water the full 30 seconds and during calibration.  CMS Ex. 1 at 17; P. Ex. 2 at 1.

Facility policy: leftover foods. According to the facility’s written policy on leftover food, food “is not safe when it is between 41 and 140 degrees” F.  Therefore, according to the policy, as soon as the temperature of hot food has dropped to 140 degrees, it must be placed in the refrigerator or freezer.  All leftover food should be reheated to an internal temperature of 165 degrees.  CMS Ex. 4 at 27. 

The facility had a separate policy for reheating and cooling “potentially hazardous foods,” which include cooked rice.  CMS Ex. 4 at 28-30.  Potentially hazardous food must be cooled as quickly as possible – going from 140 degrees F to 70 degrees F within two hours and from 70 degrees F to 41 degrees F in an additional four hours, for a maximum cooling time of six hours.  CMS Ex. 4 at 29.  The policy requires staff to monitor the temperatures and to maintain a “cool down log.”  Using a clean, sanitized, and calibrated probe thermometer, the cook should measure the internal temperature of the food every hour and note the date, time, temperature, and the cook’s initials in the log.  CMS Ex. 4 at 30.    

The dietary service supervisor must visually monitor the food service employees during their shift and must review and sign all logs.  She must modify production schedules and staff hours to allow proper cooling procedures.  If there are not enough staff in the evening to complete cooling down of any potentially hazardous leftover food, the food must be thrown away.  CMS Ex. 4 at 30.

The kitchen staff’s practices: food preparation. The kitchen staff disregarded the facility policies requiring them to follow recipes and menus.  At 11 a.m. on March 13, the surveyors observed Cook 1 preparing scalloped potatoes.  The recipe she was supposed to follow included exact measurements for its seasonings, salt, black pepper, and onion powder.  For pureed diets, she was supposed to follow the same recipe, but in pureed form, and include fresh red bell pepper, whole wheat flour, and milk.  CMS Ex. 1 at 9.  She did not measure the seasonings – salt, onion powder, black pepper – but poured them directly from the containers in which they were stored, telling the surveyors that she used “just a little.”  CMS Ex. 1 at 8.  For the pureed diets, she added (again, without measuring) water, salt, garlic powder, and margarine to potato flakes (no other ingredients).  CMS Ex. 1 at 8-9.  Similarly, even though the recipe specified exact measurements, she prepared garlic spinach without measuring salt, garlic powder, or margarine.  CMS Ex. 1 at 9. 

The dietary supervisor agreed that the recipes should be followed and ingredients measured, although she justified Cook 1’s actions by claiming that the cook had been preparing the meals “for a while.”  CMS Ex. 1 at 9-10.  She also told surveyors that the

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facility commonly served instant mashed potatoes (in lieu of regular potatoes) but, for pureed diets, she said that the cook should have pureed the scalloped potatoes.  CMS Ex. 1 at 9.  

The consultant dietician also agreed that all ingredients should be measured to match the recipe.  Because she had never observed food being prepared by kitchen staff, she did not know that the cook failed to measure ingredients, and she did not know that the facility was serving instant mashed potatoes in pureed diets, which, she said, staff should not have been doing.  “[T]he same potatoes made for the regular diet should be served in pureed form for pureed diets.”  CMS Ex. 1 at 10.

According to the menu in place for March 15, regular, mechanical soft, and pureed diets were to be served an apple topping for breakfast.  But, at 6:50 a.m., the surveyors observed that the topping was not served, even though the dietary supervisor admitted that she had the ingredients needed to make it.  She had not indicated any menu change on the posted menu.  CMS Ex. 1 at 10. 

The kitchen staff’s practices with respect to food temperatures also disregarded the facility’s written policies (and basic food safety standards):

• The thermometer used to measure food temperatures was not accurately calibrated.  At noon on March 14, Cook 3 measured the temperature of the lasagna that was being served and reported a temperature of 180 degrees F.  But, using her own calibrated thermometer, the surveyor measured the food’s temperature at 162 degrees F.  When Cook 3 again measured, the thermometer registered 163.5 degrees F.  CMS Ex. 1 at 16
• The facility could not produce a policy and procedure for calibrating the thermometers used to measure food temperatures and had no evidence that staff were trained to calibrate thermometers.  CMS Ex. 1 at 17.
• In fact, staff could not accurately calibrate thermometers used to measure food temperatures.  In her review summary, dated August 19, 2016, the facility’s consultant dietician criticized the facility because it had no available ice, and staff needed ice to calibrate thermometers.  “If no calibration, we can’t be sure of our food/beverage temperatures.”  CMS Ex. 5 at 5.
• The dietary supervisor initially told the surveyors that the facility had only cubed ice for calibrating its thermometers.  Using a cup filled with ice cubes and water, the dietary supervisor measured the temperature at 43.2 degrees F, although the surveyor’s thermometer measured 40.8 degrees F.  Subsequently, when using crushed ice, the facility thermometer measured 32.6 degrees F and the surveyor’s read 32.9 degrees F.  CMS Ex. 1 at 16.

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• Cook 3 could not properly calibrate a thermometer.  On March 14, 2017, she filled a cup full of ice and water.  For over 15 minutes, she attempted, without success, to calibrate it correctly.  Before she put the thermometer into the ice water, she set it to 32 degrees F.  Not surprisingly, when she put the thermometer into the ice water, it registered a much lower 8 degrees F.  She then removed the thermometer from the water, reset the dial to 32 degrees F, and declared the thermometer calibrated.  CMS Ex. 1 at 16-17
• On March 13, the surveyors observed a container of cooked rice (a potentially hazardous food), dated March 12, in the refrigerator.  Cook 1 told them that three residents always asked for rice, so staff re-heated it to serve for their lunches.  When the surveyors asked to see the facility’s cool down logs, the dietary supervisor told them that the logs were not kept because cooked foods were not cooled; they were discarded, and the leftover rice should have been discarded, not cooled.  CMS Ex. 1 at 27-28; but see CMS Ex. 4 at 30 (requiring that cool down logs be kept when leftover food is saved).

Petitioner’s response: food preparation. Petitioner offers no evidence suggesting any dispute regarding Cook 3’s failing to measure ingredients as required.  It also concedes that the dietary supervisor did not follow the prepared menu, substituting peach topping for apple topping.  According to DON Xie, the dietary supervisor justified the substitution by claiming that residents complained about the apple topping.  But the dietary supervisor also acknowledged that she should have revised the posted menu.  P. Ex. 11 at 7-8 (Xie Decl.¶ 18).  In fact, the dietary supervisor should have consulted the registered dietician, who was supposed to assist in menu-planning, before making such substitutions.  CMS Ex. 4 at 34.  In any event, the staff’s failing to follow menus and recipes puts the facility out of substantial compliance with section 483.60(c).

DON Xie also concedes that Cook 3 could not demonstrate that she knew how to calibrate a thermometer but claims again that the cook was unable to do so because she was so stressed by the surveyors.  P. Ex. 11 at 3-4 (Xie Decl.¶ 8).  Again, this is a simple and routine task that, had she known how, the cook should have been able to perform, regardless of the circumstances.  But she did not even understand that the thermometer had to be immersed in ice water during calibration.  CMS Ex. 1 at 16.  Moreover, DON Xie does not point to any instance in which Cook 3 demonstrated her ability to calibrate a thermometer, until April 8, 2017 (almost a month after the survey).  According to DON Xie, after an in-service training session, held that day, the cook correctly calibrated a food thermometer.  P. Ex. 11 at 3 (Xie Decl. ¶ 8).  I accept this as true, although it doesn’t help Petitioner’s case.  Petitioner has submitted no specific evidence demonstrating a dispute over whether Cook 3 was able to calibrate a food thermometer on March 15, 2017.

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Finally, no one responds to the finding that staff could not have properly calibrated the thermometers (even if they’d known how, which they didn’t), because they had no crushed ice.  CMS Ex. 1 at 16.  This was an ongoing problem, having been pointed out by the consulting dietician seven months earlier.  CMS Ex. 5 at 5.

Because staff could not demonstrate that they were able to calibrate the thermometers – indeed their readings varied wildly – they could not ensure that foods were served and stored at safe temperatures, putting the facility out of substantial compliance with section 483.60(i). 

Petitioner also concedes that the staff did not follow safe practices in reheating food.  It produces a written policy identical to the one given to the surveyors with one exception.  At the bottom of the page someone has added the hand-written caveat:  “*However, St. Anthony do [sic] not store and serve leftover food.  All leftover food should be discarded.”  P. Ex. 6, but see CMS Ex. 4 at 27.  According to DON Xie, the facility’s policy was “never to save leftover food,” and Cook 1 was disciplined for failing to comply with facility rules.  P. Ex. 11 at 5, 7 (Xie Decl. ¶¶ 11, 17).  I see serious problems here.  The facility did not have a consistent written policy regarding reheated food.  The document given to the surveyors allowed for it so long as strict precautions were taken.  Following the survey, someone altered the written document.  For purposes of summary judgment, I’ll accept that the altered document reflected the facility policy, but that is not material; staff were not following either version of the policy, putting the facility out of substantial compliance with section 483.60(i). 

c. Food Storage.

Facility policy: food storage. The facility had written policies for food storage, including refrigerator storage.  As noted above, the policy requires that food be stored at correct temperatures and that staff use thermometers to check the temperatures of refrigerators, freezers, and the food storeroom.  CMS Ex. 5 at 22.  Among the specific requirements listed for refrigerator and freezer storage are:

• Food should be covered and stored loosely to permit circulation of air.  CMS Ex. 4 at 10.
• Frozen food should be left in the refrigerator to thaw.  Uncooked meat must be used within two days after thawing, except cured meat, which must be used within five days.  CMS Ex. 4 at 10.
• Food items are to be arranged so that older items are used first.  To “facilitate” this practice, packages or containers are dated.  CMS Ex. 4 at 10.
• Leftovers must be covered, labeled, and dated.  CMS Ex. 4 at 10.

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• Individual packages of refrigerated or frozen foods taken from their original packing boxes must be labeled and dated.  Unopened foods must be used within a year.  Freezer burn reduces the maximum shelf life.  CMS Ex. 4 at 11.
• Supplemental shakes are transferred from the freezer to the refrigerator for thawing.  They must be dated as soon as they are placed in the refrigerator, and staff should follow the manufacturer’s recommendations for shelf life.  CMS Ex. 4 at 11. 

For dry storage, the policies include:

• The storeroom should be well-lighted, well-ventilated, cool, dry, and clean at all times.  Thermometers are placed in all storage areas and checked frequently.  Recommended temperature is 50-70 degrees F, maximum of 80 degrees F “or re-evaluate cooling system.”  CMS Ex. 4 at 16; P. Ex. 11 at 6 (Xie Decl. ¶ 16).
• All shelves and storage racks or platforms should be in accordance with state and federal regulations to facilitate air circulation and promote easy and regular cleaning.  All food containers are stored off the floor and on clean surfaces in a manner that protects them from contamination.  CMS Ex. 4 at 16; P. Ex. 11 at 6 (Xie Decl. ¶ 16).

Kitchen staff’s practices: food storage. Undisputed evidence establishes that the facility was not storing its food in accordance with professional standards for food safety or its own policies. 

• On March 13, at 7:20 a.m., the surveyors found four cases of shakes in the reach-in refrigerator without dates showing a use-by date or discard date.  In three of the cases, containing 30, 22, and 30 shakes, respectively, the shakes had been thawed; the fourth case was full, and the shakes were partially thawed.  The label instructions said:  “Store frozen.  Thaw under refrigeration (40 [degrees] F or below).  After thawing, keep refrigerated.  Use within 14 days after thawing.”  CMS Ex. 1 at 18-19; see CMS Ex. 4 at 11 (requiring that shakes be dated when placed in the refrigerator).
• A long list of foods, stored in the reach-in freezer, were undated (neither date of receipt nor use-by date), including turkey, beef patties, pork roast, cubed pork, turkey patties, ground beef, fish fillets (dates illegible), cooked ham, bologna, chicken breasts, chicken enchiladas, waffles, and doughnuts.  CMS Ex. 1 at 19; see CMS Ex. 4 at 10-11 (requiring that uncooked meat be used within days of thawing and that leftovers and other food items be dated).

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• Cook 1 could not explain how she knew that a frozen food was safe to use or had passed its use-by date.  CMS Ex. 1 at 20.
• Two ice cube trays, filled with ice, were not covered.  They were stacked on top of each other, with the bottom of one tray touching the ice on the tray beneath it.  CMS Ex. 1 at 20-21; see CMS Ex. 5 at 22 (requiring that ice be handled “in a sanitary manner.”).  The dietary supervisor confirmed that the ice was used for residents and told surveyors that it should have been “wrapped, labeled, and dated.”  CMS Ex. 1 at 21.
• Three cooked hams were wrapped in plastic bags that were ripped; the meat was exposed to the open air.  Ice crystals were on the surface of all three hams.  CMS Ex. 1 at 21; see CMS Ex. 4 at 10 (requiring that food items be covered).
• Two bowls contained orange sherbet, one scoop per bowl.  Each bowl had a piece of plastic over it, but the plastic did not cover it and both scoops of sherbet had ice crystals on the surface.  Cook 1 explained that the sherbet was for the residents.  CMS Ex. 1 at 21; see CMS Ex. 4 at 10.
• In an interview with the surveyors, the dietary supervisor said that she was not aware that the meat was not covered.  She agreed that all food with frost on the surface should be thrown away.  CMS Ex. 1 at 21.
• On March 13, 2017, at 10:40 a.m., a thermometer on the inside wall at the entrance to the storeroom read 85 degrees F.  The surveyor measured the temperature inside the storeroom with her own calibrated thermometer, and it read 86.5 degrees F.  At 11:30 a.m. on March 14, the temperature in the kitchen’s dry storeroom was 86.4 degrees F, when measured with the surveyor’s calibrated thermometer.  CMS Ex. 1 at 23-24; see CMS Ex. 4 at 16 (requiring a cool storeroom of 50-70 degrees F, and no higher than 80 degrees F); see also CMS Ex. 5 at 22 (requiring that food be stored at correct temperatures).
• Muffin mix, olive oil, and grill and griddle cooking spray were stored in that storeroom.  At 11:50 a.m. on March 14, the thermometer on the storeroom’s inside wall read 90 degrees F.  The manufacturer’s instructions on the muffin mix and the can of olive oil read:  “store in a cool, dry place”; the label on the cooking spray read:  store in a cool, dry place 68 degrees F – 75 degrees F.”  CMS Ex. 1 at 24; see CMS Ex. 4 at 16; CMS Ex. 5 at 22.
• Although she was responsible for logging the storage room temperatures, the dietary supervisor admitted that, in her 14 months on the job, she had never done

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so. She did not know that items in the storeroom had to be stored in a cool place or below a certain temperature.  CMS Ex. 1 at 24.

• The facility’s consultant dietician conceded that the kitchen and the kitchen storeroom got hot in the summer, but she did not remember documenting that.10  The facility’s maintenance manager told the surveyors that, although one of the cooks told him that the kitchen and storeroom were hot, he did not document that information, and kitchen staff were not expected to add maintenance issues to his log book.  CMS Ex. 1 at 24-25.
• The walkway in the dry food storeroom was piled with boxes of food and food items.  The boxes were directly on the floor and were stacked two to five feet high, impeding access to stored items.  The piled-up boxes contained a variety of items, including canned goods, oranges, dried lasagna noodles, saltine crackers, and lids and cups.  CMS Ex. 1 at 26; see CMS Ex. 4 at 16 (requiring that all food and food containers be stored “off the floor and on clean surfaces in a manner that protects it from contamination.”).  Cook 1 told the surveyors that the boxes had been there since the prior Thursday (March 9).  CMS Ex. 1 at 26.  The dietary supervisor agreed that the boxes had been there since March 9 – deliveries arrived every Thursday.  A staff member was assigned to put the food away but, when the dietary supervisor was at work on Saturday, March 11, she saw that the food was still on the floor.  CMS Ex. 1 at 27.  Apparently, she did nothing about it since the boxes were still there at the time of the survey.

Petitioner’s response: food storage. For the most part, Petitioner does not dispute the surveyor findings regarding food storage. It concedes that the temperatures in the food storeroom were unacceptably high and that staff had not been monitoring its temperature. P. Ex. 11 at 6-7 (Xie Decl. ¶ 16).

DON Xie claims that the dietary supervisor put food in plastic wraps, labeled with the date of receipt and “open dates” before storing them in the freezer. However, she concedes that the plastic wraps broke and the dates became illegible.  P. Ex. 11 at 4-5 (Xie Decl. § 11). 

DON Xie faults the dietary supervisor for the facility’s problems with food storage. In the DON’s view, the dietary supervisor “did not fully comprehend the food inventory dating process” and “never asked for assistance in this area,” hence, the facility was not aware that this was an issue. P. Ex. 11 at 4-5 (Xie Decl. ¶ 11). This defense fails for two reasons. First, the Departmental Appeals Board has consistently held that a facility cannot disavow responsibility for the actions of its employees. Springhill Senior

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Residence, DAB No. 2513 at 14 (2013); Sunshine Haven Lordsburg, DAB No. 2456 at 16-17 (2012); North Carolina State Veterans Nursing Home Salisbury, DAB No. 2256 at 10-11 (2009); Life Care of Gwinnett, DAB No. 2240 at 13 n.9 (2009); Franklin Care Ctr., DAB No. 1900 at 8 n.4 (2003).  Second, the consultant dietician was supposed to oversee the dietary supervisor’s work and, had she been able to do her job properly, she’d have noticed the serious problems that the dietary supervisor was having.  Of course, given that the consultant had a maximum of three-to-five hours per month in which to oversee everything (see below), she had very little time.  For this, the facility is also responsible.

DON Xie concedes that the surveyors found uncovered ice and partially covered food in the facility’s freezers and that the dietary supervisor told them that the ice was for resident consumption. P. Ex. 11 at 6 (Xie Decl. ¶ 14). But, according to DON Xie, the dietary supervisor was wrong; that ice should have been used solely to calibrate thermometers (which presents another problem since it was cubed and not crushed). According to the DON, the ice for food and drinks was kept in a separate freezer and was covered at all times. The obvious problem with this is that the supervisor and staff, who would have dispensed the ice, thought they could give it to residents. P. Ex. 11 at 6 (Xie Decl. ¶ 14).    

d. Kitchen Management.

The facility’s kitchen management. The facility employed a registered dietician on a consultant basis and the record includes a “Food Service Management Agreement” as well as her job description and a separate employment agreement. CMS Ex. 4 at 33-39; CMS Ex. 5 at 1. 

The consultant dietician’s “job description and employment agreement” indicates that she was hired on March 1, 2015, but the line describing her duty hours is left blank. CMS Ex. 4 at 33. According to the job description, the “primary purpose” of her job is: “to plan, organize, develop and direct the overall operation of the Food Service Department” in accordance with federal, state, and local standards, guidelines, and regulations; to assure that “quality nutritional services are being provided on a daily basis”; and to assure that the food services department “is maintained in a clean, safe, and sanitary manner.” CMS Ex. 4 at 33. The document then describes a very long list (five pages, single spaced, fine print) of “functions”: administrative, committee, personnel; staff development; safety and sanitation; equipment and supply; assessment and care planning; budget and planning; resident rights; and miscellaneous. CMS Ex. 4 at 33-38. Among the dietician’s numerous specific responsibilities are to develop, implement, and maintain written policies and to ensure that staff are aware of and follow those policies. CMS Ex. 4 at 33. She must ensure that the facility’s food services personnel follow handwashing procedures. She is responsible for staff orientation and training. CMS Ex. 4 at 36. She

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is supposed to make weekly inspections of all food service functions to assure that quality control measures are continually maintained. CMS Ex. 4 at 38.    

The separate food service management agreement is signed by the consultant dietician and the facility’s administrator. The agreement is not dated, but it indicates that her services are to begin on March 20, 2015. According to this agreement, her responsibilities include:

• Develop and implement a nutritional care system to provide timely resident assessments;
• Provide in-service training for dietary personnel and other staff as required;
• Recommend cost-containment procedures, inventory control systems, new products, equipment and staffing for the dietary department;
• Recommend a diet manual and menus;
• Help ensure that the dietary department meets federal and state regulations; and
• Prepare a written report with a summary of each visit.

CMS Ex. 5 at 1. 

Remarkably, given her long list of responsibilities, the agreement authorizes only three to five hours of consultation per month. Any additional time must be approved in advance by the facility administrator. CMS Ex. 5 at 1. No evidence suggests (and Petitioner does not claim) that additional time was ever approved.  According to DON Xie, the dietary supervisor did not request additional assistance, which, presumably, might have triggered granting the consultant dietitian some additional hours. P. Ex. 11 at 4-5 (Xie Decl. ¶ 11).

And, in fact, the consultant dietician was seldom at the facility. While there, she limited her observations to the “breakfast tray-line” and did not watch the cooks preparing food. CMS Ex. 1 at 4, 10. She told the surveyors that she documented “big” problems in a report but sometimes mentioned her concerns only verbally.  Her admissions confirm that she was not adequately consulting with the kitchen staff:

• She knew that the dry food storage area was hot in the summertime but was not sure that she ever reported that. She also knew that food was stored on the storeroom floor but, again, was not sure if she had put that in her report. CMS Ex. 1 at 4.

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• She did not look to see if the food in the freezer had been dated.  Although she had seen the uncovered ice in the freezer, she didn’t realize that it was used for residents. Because the ice was for resident consumption, she said that it should have been covered in a food grade bag. CMS Ex. 1 at 4.
• The dietician also agreed that the thawed shakes in the reach-in refrigerator should have been dated, but she had not checked to see that they were. CMS Ex. 1 at 4.
• She did not watch staff preparing food so was not aware of hand hygiene issues. CMS Ex. 1 at 4. 

The undisputed facts thus lead to the unassailable conclusion that the dietary supervisor was not capable of directing the food and nutrition services at the facility and that she was not consulting frequently enough with the facility’s consultant dietician, putting the facility out of substantial compliance with 42 C.F.R. § 483.60(a).

Petitioner’s response. None of these facts regarding kitchen management are in dispute. To the contrary, Petitioner concedes the dietary supervisor was not capable of performing her job and, shortly after the survey, on March 17, 2017, the facility terminated her employment “for nonperformance of her duties.” P. Ex. 11 at 4-5, 8 (Xie Decl. ¶¶ 11, 21). The facility also replaced the consultant dietician. P. Ex. 11 at 8 (Xie Decl. ¶ 21).

The multiple, ongoing, and very serious dietary deficiencies more than justify the relatively modest $510-per-day penalty imposed, and I need not consider any other deficiency in order to sustain that amount. See Senior Rehab. and Skilled Nursing Ctr., DAB No. 2300 at 6 n.5 (2010), aff’d, Senior Rehab. and Skilled Nursing Ctr. v. HHS, No. 10-60241 (5th Cir. Dec. 20, 2010). Nevertheless, the undisputed evidence establishes at least one additional problem.

2. The undisputed evidence establishes that facility staff were not regularly removing lint from the clothes dryer lint trap, which created a fire hazard and put the facility out of substantial compliance with 42 C.F.R. § 483.90(d)(2).

Program requirement: 42 C.F.R. § 483.90(d)(2). The facility must maintain all essential mechanical, electrical, and patient care equipment in safe operating condition.

Facility policy: The facility directed its employees to clean the lint trap to its tumbler dryer “3 TIMES ON YOUR SHIFT AND BEFORE YOU LEAVE FOR THE DAY.” CMS Ex. 8 at 1. The manufacturer’s instructions for the dryer caution that all lint must be removed to allow proper air circulation and prevent overheating in the tumbler. CMS Ex. 8 at 2.

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Staff’s practices. The undisputed evidence establishes that staff were not regularly clearing the dryer’s lint trap. At 7:40 a.m. on March 13, the surveyor observed that the lint trap was covered in lint. When they asked the maintenance supervisor about it, he told them that laundry staff cleaned the dryer three times a day. CMS Ex. 1 at 29. At 12:30 p.m. the lint trap was again covered in lint.  CMS Ex. 1 at 29. 

Petitioner’s response: equipment. Petitioner has not presented evidence that it disputes these findings. It offers no testimony from the maintenance supervisor or any other employee in the laundry department. Rather, DON Xie responds that the maintenance manager immediately cleaned the lint trap when the surveyors pointed out the accumulation and that the facility has since trained laundry staff to keep the trap cleaned. It changed its policy to require that the tray be cleaned out after every load, which is much safer. P. Ex. 11 at 8 (Xie Decl. ¶ 19).11

Petitioner does not deny the obvious danger inherent in allowing a highly flammable material to accumulate in a heated environment. Nevertheless, it argues that, because the survey team “failed to quantify the amount of lint in the trap” (described as “a large amount of fluffy material”), there is no way to determine whether the amount of lint observed constituted a fire hazard. P. Br. at 15; P. Opp. at 20-21. In fact, CMS has met its burden.  It has presented evidence that staff allowed a flammable material to accumulate in its dryer vent. To avoid summary judgment on this issue, Petitioner is required to tender evidence of specific facts showing a dispute on this issue.  Shah v Azar, 920 F.3d at 995; Forsyth v. Barr, 19 F.3d 1533; Ill. Knights Templar, DAB No. 2274 at 4.  It presents testimony from one witness, acknowledging the problem and claiming immediate correction. Petitioner then relies on general and wholly unsupported claims that the accumulation was insufficient to present any problems. It has not satisfied its burden, and CMS is therefore entitled to summary judgment. 

Because staff were not cleaning the dryer’s lint trap as required, rendering the machine unsafe, the facility was not in substantial compliance with section 483.90(d)(2).

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3. CMS’s determination that the facility’s substantial noncompliance with the regulation governing dietary services posed immediate jeopardy to resident health and safety is not clearly erroneous.12

Immediate jeopardy. Immediate jeopardy exists if a facility’s noncompliance has caused or is likely to cause “serious injury, harm, impairment, or death to a resident.”  42 C.F.R. § 488.301.  CMS’s determination as to the level of a facility’s noncompliance (which would include an immediate jeopardy finding) must be upheld unless it is “clearly erroneous.”  42 C.F.R. § 498.60(c)(2).  The Board has observed repeatedly that the “clearly erroneous” standard imposes on facilities a “heavy burden” to show no immediate jeopardy and has sustained determinations of immediate jeopardy where CMS presented evidence “from which ‘[o]ne could reasonably conclude’ that immediate jeopardy exists.”  Maysville Nursing & Rehab., DAB No. 2874 at 20-21 (2018); Maysville Nursing & Rehab. Facility, DAB No. 2317 at 11 (2010); Stone County Nursing & Rehab. Ctr., DAB No. 2276 at 17 (2009); Daughters of Miriam Center, DAB No. 2067 at 7, 9 (2007); Koester Pavilion, DAB No. 1750 (2000).

Once CMS presents evidence supporting a finding of substantial noncompliance, it need not offer evidence to support its immediate jeopardy determination.  The burden is on the facility to show that CMS’s determination is clearly erroneous.  Grace Healthcare of Benton, DAB No. 2189 at 13 (2008), citing Liberty Commons Nursing & Rehab Ctr.- Johnston, DAB No. 2031 at 17-18, aff’d, Liberty Commons Nursing & Rehab Ctr. – Johnston v. Leavitt, 241 F. App’x 76 (4th Cir. 2007).

Petitioner attempts to meet this burden by pointing to testimony from three witnesses:  DON Xie; registered dietician and professional witness, Linda Handy, M.S., R.D.; and professor of microbiology and professional witness, Michael Sulzinski, PhD.  P. Exs. 11, 12, 13, 14.  Not one of these witnesses even tries to defend the practices that were going on in the facility kitchen.  See P. Ex. 11 at 3 (Xie Decl. ¶ 7 (conceding that Cook 1 did not follow the “best practice”); P. Ex. 11 at 4-5 (Xie Decl. ¶ 11) (acknowledging that the dietary supervisor “did not fully comprehend the food inventory dating process”); P. Ex.

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11 at 7 (Xie Decl. ¶ 17) (declaring that staff violated facility policy by reheating leftover food); P. Ex. 12 at 8 (Handy Decl. ¶ 23) (declaring staff’s practice of reheating food as “outside the norm”); P. Ex. 14 at 7 (Sulzinski Decl. ¶ 21) (agreeing that “the specific deficiencies cited against the facility in the present action are documented and needed to be corrected”).  However, they maintain, no single one of these practices rises to the level of immediate jeopardy.

DON Xie claims that “no residents were found to have been affected” by the deficiencies and that “no foodborne illnesses have been reported since the March 2017 survey” and that none has occurred during her tenure as DON (beginning 2012).  P. Ex. 11 at 2 (Xie Decl. ¶ 5).  For purposes of summary judgment, I accept her claim but find it immaterial.  The regulations do not require actual harm, only the likelihood of serious harm.  Maysville Nursing & Rehab., DAB No. 2874 at 21; Mississippi Care Ctr. of Greenville, DAB No. 2450 at 15 (2012); Kenton Healthcare, LLC, DAB No. 2186 at 23 (2008).

Petitioner’s other witnesses argue that immediate jeopardy exists only when “immediate corrective action is necessary.”  P. Ex. 12 at 3 (Handy Decl. ¶ 7); P. Ex. 14 at 3-4, 4-5 (Sulzinski Decl. ¶¶ 13, 15).13  Then, citing some of the more grisly examples from the State Operations Manual (salad covered in raw and bloody meat juices served to residents), they opine that the facility’s deficiencies were not nearly as bad.  They acknowledge that virtually any one of the staff’s practices could cause illness, but assess the odds of that happening as “not likely.”  Professor Sulzinski defines “likely” as “greater than 50% chance of likelihood.”  P. Ex. 14 at 12 (Sulzinski Decl. ¶ 36).  To the extent that such a statistic has any meaning in the context of resident lives, I find it appalling.  In fact, Dr. Sulzinski has effectively corroborated CMS’s position.  Who among us would be willing to live daily with a roughly 40-49% chance that the food we are given will poison us?  Those are terrible odds for a vulnerable population like the elderly and infirm residents of nursing homes, where foodborne illnesses are far more likely to result in serious, even fatal consequences.  Accepting Dr. Sulzinski’s opinion establishes that the facility’s deficiencies, in fact, posed immediate jeopardy to resident health and safety.  

Moreover, the Board has understandably and consistently rejected Petitioner’s definition of immediate jeopardy. The Board has explained that relying on the State Operations Manual is misplaced; its provisions are “instructive,” but they are not binding.14  We are bound by the regulatory definition in section 488.301. Mississippi Care Ctr., DAB No. 2450 at 15-16; Foxwood Springs Living Ctr., DAB No. 2294 at 9 (2009). That definition

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“neither defines the term ‘likelihood’ nor sets any parameters as to the timing of potential harm.” Mississippi Care Ctr., DAB No. 2450 at 16, quoting Agape Rehab. of Rock Hill, DAB No. 2411 at 19 (2011). Thus, the Board has concluded that a facility’s deficiencies may pose immediate jeopardy even though they do not create a “crisis situation.” Mississippi Care Ctr., DAB No. 2450 at 16.  A facility’s deficiencies may pose immediate jeopardy even though the potential harm is not likely to occur in the near future. Agape Rehab. of Rock Hill, DAB No. 2411 at 19; Barbourville Nursing Home, DAB No. 1962 at 16-18 (2005) (finding that a facility’s failing to track information in accordance with its policies posed immediate jeopardy, even though no harm had resulted, and potential harm would not happen “in hours or days, but over weeks or months.”).

There are additional problems with the witnesses’ opinions.  Dietician Handy and Professor Sulzinski agree that serving foods, like the turkey lasagna, at low temperatures and that improperly reheating foods “might have posed the highest potential risk for food borne illness.” P. Ex. 14 at 4 (Sulzinski Decl.¶ 14); see P. Ex. 12 at 9 (Handy Decl. ¶ 24).  But they dismiss these concerns because no one actually got sick (that we know of, anyway); the turkey lasagna was, in fact, served at a relatively safe temperature; no evidence indicates that the rice served was, in fact, contaminated; and staff’s reheating food was “outside the norm.”  P. Ex. 12 at 8 (Handy Decl. ¶ 23); P. Ex. 14 at 4-6 (Sulzinski Decl. ¶¶ 15, 16, 17, 18). 

But the witnesses miss the bigger danger here:  the facility had no reliable means for measuring food temperatures. When Cook 3 first measured the temperature of the lasagna, it registered 180 degrees F, or 15-20 degrees higher than shown by the accurately-calibrated thermometer. CMS Ex. 1 at 16. That is a dangerous discrepancy. And no one – not even the dietary supervisor – could calibrate a thermometer with a remote degree of accuracy. When Cook 3 attempted to demonstrate how to calibrate the thermometer, she was off by approximately 24 degrees (the difference between eight and 32 degrees). The dietary supervisor, by using cubed rather than crushed ice (standard practice at the time), was off by eight to ten degrees when she attempted to calibrate the thermometer.  (32.6/32.9 degrees F vs 40.8/43.2 degrees F). Staff were thus incapable of assuring that foods were served at safe temperatures, which, as Petitioner’s witnesses concede, presents a dangerous situation.  CMS Ex. 1 at 16-17.

Petitioner’s witnesses also miss the overarching problem here: the almost complete absence of dietary oversight. This was a rogue operation. The consulting dietician was almost never there, not even long enough to observe a single meal being prepared. As Petitioner recognizes, the dietary supervisor was not up to the job. Staff were effectively

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unsupervised and ill-trained. They did not follow the facility policies or basic rules of hygiene.15

The drafters of the dietary services regulation were emphatic: “Effective management and oversight of the food and nutrition services is critical to the safety and well-being of all residents of a nursing facility.” 81 Fed. Reg. 68,688, 68,780 (Oct. 4, 2016) (emphasis added). Where, as here, effective management and oversight are missing, the safety and well-being of all residents are jeopardized. CMS’s determination that the facility’s dietary services deficiencies posed immediate jeopardy to resident health and safety is therefore not clearly erroneous and must be sustained.

4. CMS’s determinations as to the duration of the facility’s substantial noncompliance is consistent with statutory and regulatory requirements.

Once a facility has been found to be out of substantial compliance (as Petitioner was here), it remains so until it affirmatively demonstrates that it has achieved substantial compliance once again. Ridgecrest Healthcare Ctr., DAB No. 2493 at 2, 3, 15 (2013); Taos Living Ctr., DAB No. 2293 at 20 (2009); Premier Living & Rehab Ctr., DAB No. 2146 at 23 (2008); Lake City Extended Care Ctr., DAB No. 1658 at 12-15 (1998). The burden is on the facility to prove that it is back in compliance, not on CMS to prove that deficiencies continued to exist. Asbury Care Ctr. at Johnson City, DAB No. 1815 at 19-20 (2002).

The facility must show that “the incidents of noncompliance have ceased and that it has implemented appropriate measures to insure that similar incidents will not recur.” Libertywood Nursing Ctr., DAB No. 2433 at 15 (2002) (emphasis added), citing Life Care Ctr. of Elizabethton, DAB No. 2356 at 16 (2011); accord 42 C.F.R. § 488.456(a) and (e); Hermina Traeye Memorial Nursing Home, DAB No. 1810 at 12 (2002) (holding that, to be found in substantial compliance earlier than the date of the resurvey, the facility must supply documentation “acceptable to [CMS]” showing that it was in substantial compliance and was capable of remaining in substantial compliance on the earlier date); Cross Creek Care Ctr., DAB No. 1665 (1998). A facility’s return to substantial compliance usually must be established through a resurvey. 42 C.F.R. § 488.454(a); Ridgecrest DAB No. 2493 at 2-3.

For purposes of summary judgment, I accept DON Xie’s assertions that, following the survey, the facility hired new managers. P. Ex. 11 at 8-9 (Xie Decl. ¶ 21). I accept that the facility’s (presumably newly hired) registered dietician and dietary supervisor “implemented extensive retraining of all kitchen staff to emphasize the absolute

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requirement for careful hand-washing and hygiene.”16  P. Ex. 11 at 3 (Xie Decl. ¶ 7). I accept that the facility provided in-service training on food storage. P. Ex. 1 at 1; P. Ex. 11 at 6 (Xie Decl. ¶ 14). I accept that, following an April 8, 2017 in-service training session, Cook 3 was able to calibrate properly a food thermometer. P. Ex. 11 at 3 (Xie Decl. ¶ 8). But these steps alone do not demonstrate that the facility returned to substantial compliance.

The facility’s deficiencies were not the type (like a leaky roof or a broken dishwasher) that lend themselves to a quick fix. As shown by the exhausting lists discussed above, the magnitude of the facility’s problems is hard to overstate. It had to rebuild an entire dietary department, from the managers on down. It had to review its practices, identify the areas of breakdown, and make changes to ensure that the problems did not recur. Staff had to be trained to follow new practices, and management had to ensure that the new practices were being followed and that they were effective. Until the facility could show that its training and other interventions were effective, i.e., that staff capably followed the training, that management put effective monitoring tools in place, and that those interventions resolved the problems, the facility had not met its significant burden of demonstrating that it returned to substantial compliance. See Oceanside Nursing and Rehab. Ctr., DAB No. 2382 at 18-19 (2011); Premier Living and Rehab. Ctr., DAB CR1602 (2007), aff’d, DAB No. 2146 (2008).

The facility has thus not met its burden of establishing that it returned to substantial compliance any earlier than May 4, 2017.

Conclusion

I find that the record is sufficiently developed, and the only reasonable conclusion that can be drawn from the undisputed facts is that, from March 15 through May 3, 2017, the facility was not in substantial compliance with Medicare program requirements and that, on March 15, its dietary deficiencies posed immediate jeopardy to resident health and safety. I therefore grant CMS’s motion for summary judgment. The penalties imposed – $8,749 per day for one day of immediate jeopardy and $510 per day for 49 days of substantial compliance that did not pose immediate jeopardy– are reasonable.

1. The surveyors also found D-level deficiencies under 42 C.F.R. § 483.90(e)(1)(i), and 42 C.F.R. § 483.90(e)(1)(ii), but CMS waived those findings. Order Summarizing Pre-hearing Conference at 2 (October 18, 2019).
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2. Following the pre-hearing conference, Petitioner objected to this articulation of the issues. Petitioner demands that I consider all of the deficiencies cited. But I list all of the deficiencies that Petitioner appealed. I do not include those that CMS waived, and for which CMS (obviously) did not impose a penalty. First, Petitioner did not appeal them. Second, I have no authority to review a deficiency unless a remedy is imposed. 42 C.F.R. § 498.3(b)(13); Lutheran Home – Caledonia, DAB No. 1753 (2000). Petitioner also claims that it “challenges the timeliness of CMS’s determination of substantial [non]compliance, for reasons set forth in Petitioner’s Pre-Hearing Exchange Brief.” Petitioner’s Objections to Order Summarizing Pre-Hearing Conference. In fact, Petitioner challenged the duration (not timeliness) of CMS’s determination of noncompliance, claiming that the facility returned to substantial compliance earlier than May 4, 2017. P. Br. at 15-16. The duration of CMS’s determination is included in the statement of the issue (“From March 15 through May 3, 2017 . . . .”).
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3. As I explained during the pre-hearing conference, penalties have been inflation-adjusted and change annually. 45 C.F.R. § 102.3. The amount is determined on the date the penalty is assessed, in this case, April 5, 2017. CMS Ex. 2. At that time, the penalty ranges per day were: $6,394 to $20,965 per day for the period of immediate jeopardy; and $105 to $6,289 per day for the period of substantial noncompliance that did not pose immediate jeopardy. 82 Fed. Reg. 9182 (Feb. 3, 2017). Thus, the penalties imposed here ($8,749 and $510) were at the low to very low ends of the penalty ranges. Considering the level of dysfunction in the facility’s dietary services, these amounts are negligible.
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4. The courts that have considered applying principles of summary judgment to Medicare (and other) administrative proceedings have carefully avoided any suggestion that deciding a case on summary judgment means that it is decided without a hearing. Throughout their decisions, they refer to deciding the case without an “oral hearing” or without an “evidentiary hearing.” The courts recognize that, although a case may be decided on summary judgment (or based on the written record), an administrative law judge, by considering the evidence and applying the law, has granted the petitioner a hearing, as required by sections 205(b) and 1866(h) of the Act. See CNG Transmission Corp. v. FERC, 40 F.3d 1289, 1293 (D.C. Cir. 1994) (holding that a “paper hearing” satisfies statutory requirements for “notice and opportunity for hearing.”).
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5. Two of Petitioner’s three witnesses – a registered dietician and a professor of microbiology – opine at considerable length on the legal requirements for finding substantial noncompliance and immediate jeopardy. P. Ex. 12 (Handy Decl.); P. Ex. 14 (Sulzinski Decl.). In determining whether to grant summary judgment, I am not required to accept their legal opinions, which, in any event, are seriously flawed.
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6. My findings of fact and conclusions of law are set forth, in bold and italics, as captions in the discussion section of this decision.
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7. Throughout this decision, the term “dishwasher” refers to the dishwashing machine.
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8. Petitioner did not come forward with any evidence suggesting a dispute over any of Cook 1’s actions, except, possibly, this one. The facility’s director of nursing (DON), who was not there, admits that Cook 1 dropped the lid and returned it to the canister without sanitizing it but suggests (somewhat obliquely) that the cook washed her hands while doing so. P. Ex. 11 at 3 (Xie Decl. ¶ 7). Notwithstanding the significant questions raised by the DON’s testimony, I am accepting, for purposes of summary judgment, the claim that Cook 1 washed her hands this one time, although she did so in the wrong sink. See discussion below.
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9. February 8 is the only date for which the record includes both an entry in the temperature log and a service report.
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10. Considering how high the storage room temperatures were in March, this is a disturbing revelation.
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11. Dryer lint seems like a minor problem, and, certainly, it’s easily corrected, as the facility’s response shows. But, if not corrected, the potential consequences are dire. Dryer lint is highly flammable. According to the National Fire Protection Association, the vast majority of home fires (92%) involve clothes dryers and, in 26% of all dryer fires, the first material ignited is “dust/fiber/lint.” https://www.nfpa.org/News-and-Research/Data-research-and-tools/US-Fire-Problem/Home-fires-involving-clothes-dryers-and-washing-machines. For a description of the potential chaos caused by fire in a nursing home, see Cahokia Nursing & Rehab. Ctr., DAB CR5374 at 5-6 (2019).
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12. At the end of the day, this is a fight over a small amount of money. That the facility was not in substantial compliance is beyond dispute. The surveyors found a dangerously deficient dietary department. Although the deficient practices had obviously been going on for some time, CMS, for its own unarticulated reasons, limited the immediate jeopardy finding to one day. Even if CMS had not imposed a one-day penalty at the immediate jeopardy level, it was bound to impose a penalty reflecting the seriousness of the deficiencies. Until the facility remedied the most significant threats to resident health and safety, it would not have been entitled to the lower $510 per day penalty. The maximum penalty for deficiencies that don’t pose immediate jeopardy – which is $6,289 per day – would have been more than justified. That amount is just $2,460 less than the penalty actually imposed ($8,749).
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13. Of course, “immediate corrective action” was necessary here.
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14. The Board’s measured approach to the State Operations Manual is particularly astute, in light of the Supreme Court’s recent comments as to the value of sub-regulatory guidance. See Azar v. Allina Health Servs., 139 S. Ct. 1804 (2019).
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15. Although not material, given the breadth of the problems here, I cannot leave unchallenged Petitioner’s efforts to disparage the importance of careful handwashing.
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16. DON Xie is correct when she characterizes handwashing as an “absolute requirement.” P. Ex. 11 at 3.
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