Golden Acres Living and Rehabilitation Center, DAB CR5767 (2020)

DECISION

Golden Acres Living and Rehabilitation Center (Petitioner or “the facility”) challenges the determination by the Centers for Medicare & Medicaid Services (CMS) to impose a per‑day civil monetary penalty (CMP) of $2,615 for 31 days based on Petitioner’s noncompliance with Medicare participation requirements.  For the reasons discussed below, I find that there is no dispute as to any material fact and CMS is entitled to judgment as a matter of law.  The facility was not in substantial compliance with the Medicare program requirements and the CMP imposed is reasonable.

I.  Background

The Social Security Act (Act) establishes requirements for skilled nursing facility (SNF) participation in the Medicare program and authorizes the Secretary of Health and Human Services (“the Secretary”) to promulgate regulations implementing those statutory provisions.  See 42 U.S.C. § 1395i-3; 42 C.F.R. pts. 483 and 488.  To participate in the Medicare program, an SNF must maintain substantial compliance with program participation requirements.  In order to be in substantial compliance, an SNF’s deficiencies may “pose no greater risk to resident health or safety than the potential for

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causing minimal harm.”  42 C.F.R. § 488.301.  “Noncompliance” means “any deficiency that causes a facility to not be in substantial compliance.”  Id.

The Secretary contracts with state agencies to conduct periodic surveys to determine whether SNFs are in substantial compliance with participation requirements.  42 U.S.C. § 1395aa(a); 42 C.F.R. §§ 488.10, 488.20.  The Act and its implementing regulations require that facilities be surveyed on average every twelve months, and more often if necessary, to ensure that identified deficiencies are corrected.  42 U.S.C. § 1395i‑3(g)(2)(A); 42 C.F.R. §§ 488.20(a), 488.308.  CMS may impose a per-day CMP for the number of days an SNF is not in substantial compliance, or a per-instance CMP for each instance of the SNF’s noncompliance.  42 U.S.C. § 1395i-3(h)(2)(B)(ii); 42 C.F.R. § 488.430(a).  

If CMS imposes a remedy based on a noncompliance determination, then the facility may request a hearing before an administrative law judge (ALJ) to challenge the noncompliance finding and enforcement remedy.  42 U.S.C. §§ 1320a-7a(c)(2), 1395i‑3(h)(2)(B)(ii); 42 C.F.R. §§ 488.408(g), 488.434(a)(2)(viii), 498.3(b)(13).

Surveyors from the Texas Department of Aging and Disability Services (state agency) completed “Complaint and Incident Investigations” on April 13, 2017, and determined that Petitioner was not in substantial compliance with Medicare program participation requirements.The state agency had previously completed health and life and safety surveys on March 17, 2017, and cited numerous deficiencies based on those surveys.  CMS Exs. 1, 13.  Petitioner has not appealed those deficiencies.  CMS Ex. 22.

In a letter dated June 26, 2017, CMS notified Petitioner that, based on the March and April 2017 surveys, it was not in substantial compliance with Medicare program participation requirements.The April 2017 survey that is the subject of this decision cited noncompliance with the following three participation requirements:  42 C.F.R. § 483.25(d)(1),(2) (F323, relating to accident prevention and supervision), which is the focus of this decision; 42 C.F.R. § 483.12(a)(1) (Tag F223, prevention of abuse and neglect); and 42 C.F.R. §§ 483.12(b)(1)-(3), 483.95(c)(1)-(3) (Tag F226, developing and implementing policies to prevent abuse and neglect).  Because I find that the Petitioner’s noncompliance with 42 C.F.R. § 483.25(d), alone, supports the remedies imposed, I need not address the other two deficiencies.  See Claiborne-Hughes Health Ctr. v. Sebelius, 609 F.3d 839, 847 (6th Cir. 2010); Carrington Place of Muscatine, DAB No. 2321 at 20-21 (2010).  CMS Ex. 1.  CMS informed Petitioner that it was not

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compliant with, inter alia, section 483.25(d)(1), (2)The statement of deficiencies and CMS’s letter identified the regulatory participation requirement corresponding to Tag F323 as 42 C.F.R. § “483.25(d)(1)(2)(n)(1)-(3),” which refers to two separate accident prevention provisions found in 42 C.F.R. § 483.25:  section 483.25(d), pertaining to accident prevention, supervision, and assistance devices, and section 483.25(n), pertaining to the use of bed rails.  CMS Ex. 22 at 19.  Because subsection 483.25(n)(1)-(3) is irrelevant to the deficiency at issue, I do not further address that provision. (Tag F323).Tag F323, as applicable to the instant circumstances, was re-designated as Tag F689 when CMS revised its F-Tags in November 2017.  See List of Revised F-Tags, https://www.cms.gov/Medicare/Provider-Enrollment-and-Certification/ GuidanceforLawsAndRegulations/Downloads/List-of-Revised-FTags.pdf (last visited November 16, 2020).  CMS cited this deficiency at the “G” level of scope and severity.Scope and severity levels are used by CMS and state survey agencies when selecting remedies.  The scope and severity level is designated by letters A through L.  Pub. 100-7, State Operations Manual (SOM), chap. 7, § 7400.5.1 (Factors That Must be Considered When Selecting Remedies), “Assessment Factors Used to Determine the Seriousness of Deficiencies Matrix” (table) (Rev. 161, eff. Sept. 28, 2016 (applicable at the time of the survey at issue)); see SOM, chap. 7, § 7400.3.1 (Rev. 185, eff. Nov. 16, 2018) (current version); see also 42 C.F.R. § 488.408.  As relevant here, a scope and severity level of “G” indicates a deficiency involving an isolated instance of actual harm to a resident but that does not cause immediate jeopardy to resident health or safety.  CMS, in both its brief and motion of summary judgment, erroneously argued that this deficiency was cited at the immediate jeopardy level.  CMS Ex. 1 at 2.  As relevant here, CMS imposed a CMP of $2,615 per day for a period of 31 days from April 7 through May 7, 2017, for a total CMP of $81,065.  CMS Ex. 1 at 2.    

Petitioner, through counsel, timely requested a hearing on August 25, 2017.  CMS filed a pre-hearing brief (CMS Br.) and 50 proposed exhibits (CMS Exs. 1-50),Petitioner stated that it “objects to CMS Exhibit 42, pages 1-11, the Provider History Profile, which details surveys and survey results from April [ ] 2016 through March [ ] 2017.”  P. Br. at 20.  However, Petitioner did not articulate any basis for its objection. and Petitioner filed a brief (P. Br.) and twenty proposed exhibits (P. Exs. 1-20).  Thereafter, CMS filed a motion for summary judgment (CMS Motion), and Petitioner filed a response in opposition (P. Response). 

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Because I am granting CMS’s motion for summary judgment, an oral hearing is unnecessary to allow the parties an opportunity to cross-examine witnesses.I neither rely on the testimony of CMS’s witnesses, nor cite to the statement of deficiencies to establish undisputed facts.  See CMS Exs. 22 (statement of deficiencies); 43-49 (surveyors’ written testimony).  Although I reference the testimony of Petitioner’s witnesses throughout this decision (P. Exs. 5, 8, 9, 11), CMS is not prejudiced by not having an opportunity to cross-examine Petitioner’s witnesses. 

II.  Issues

The issues presented are:

Whether summary judgment is appropriate;

Whether Petitioner was in substantial compliance with 42 C.F.R. § 483.25(d);

Whether Petitioner remained out of compliance until May 8, 2017; and

Whether a per-day CMP of $2,615 is reasonable.

III.  DiscussionFindings of fact and conclusions of law are in bold and italics.

A. Summary judgment is appropriate because material facts are not in dispute.

Summary judgment is appropriate when there is no genuine dispute as to any issue of material fact for adjudication and/or the moving party is entitled to judgment as a matter of law.  Senior Rehab. & Skilled Nursing Ctr., DAB No. 2300 at 3 (2010), aff’d sub nom. Senior Rehab. & Skilled Nursing Ctr. v. Health & Human Servs., 405 F. App’x 820 (5th Cir. 2010); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).  The moving party must show that there are no genuine disputes of material fact requiring an evidentiary hearing and that it is entitled to judgment as a matter of law.  Anderson, 477 U.S. at 248.  If the moving party meets its initial burden, the non-moving party must “come forward with ‘specific facts showing that there is a genuine issue for trial.’”  Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (emphasis omitted).  “To defeat an adequately supported summary judgment motion, the non‑moving party may not rely on the denials in its pleadings or briefs, but must furnish evidence of a dispute concerning a material fact -- a fact that, if proven, would affect the outcome of the case under governing law.”  Senior Rehab., DAB No. 2300 at 3.  In determining whether there are genuine issues of material fact for hearing, an ALJ must

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view the evidence in the light most favorable to the non-moving party, drawing all reasonable inferences in that party’s favor.  Id.

It is well established that an ALJ is empowered to decide a case on a motion for summary judgment, without an evidentiary hearing.  Shah v. Azar, 920 F.3d 987, 996 n.25 (5th Cir. 2019) (citing Cedar Lake Nursing Home v. U.S. Dep’t of Health & Human Servs., 619 F.3d 453, 457 (5th Cir. 2010)); see Fal-Meridian, Inc. v. U.S. Dep’t of Health & Human Servs., 604 F.3d 445, 449 (7th Cir. 2010) (“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.”  (emphasis added)); Crestview Parke Care Ctr., 373 F.3d 743, 748-50 (6th Cir. 2004) (explaining that “[t]he statute authorizing the imposition of penalties . . . requires . . . a hearing ‘on the record’” and that the use of summary judgment is “valid” and “provides an alternative to in-person, oral hearings.”).

The material facts establishing Petitioner’s noncompliance with 42 C.F.R. § 483.25(d) are not disputed.  Although Petitioner generally disputes the finding of noncompliance, it does not present evidence to challenge the facts that underlie the finding of the deficiency (i.e., that a resident with physical and cognitive impairments, and who it had determined was at risk for falls and had several prior unwitnessed falls, had been left alone to toilet while the staff member returned to perform other duties in the dining room, and that the resident sustained a fall prior to the staff member’s return to her room).  Further, Petitioner does not present evidence, much less argue, that it returned to compliance prior to May 8, 2017.  There is no genuine dispute as to any material fact that requires a hearing, and summary judgment in CMS’s favor is warranted.

Resident # 1   

Resident # 1, a woman who was born in 1930, was admitted to the facility in June 2015, at which time her diagnoses included amnesia and neuropathy.  CMS Ex. 25 at 1.  Subsequent diagnoses included progressive dementia/Alzheimer’s disease with behavioral disturbance, osteoporosis, severe degenerative joint disease, abnormalities of gait and mobility, difficulty in walking, delusional disorders, muscle weakness, and unspecified lack of coordination.  CMS Ex. 25 at 1-2; P. Ex. 3 at 1-2.  Upon Resident # 1’s admission to the facility, her attending physician, Neeta Nayak, M.D., opined that she could fall as a result of a spontaneous fracture, “rather than the fall causing the fracture.”  P. Ex. 2 at 2.

Resident # 1’s initial care plan that was developed shortly after her admission included a focus area of her risk for falls, explaining that she was at risk for falls due to “[g]ait/balance problems.”  CMS Ex. 25 at 4.  Despite Dr. Nayak’s August 2015 opinion regarding Resident # 1’s fall risk, the care plan does not address that Resident # 1 was also at risk for falls caused by spontaneous fractures.  P. Ex. 2 at 2.  The care plan’s goals included that Resident # 1 will be “free of falls” and “[w]ill not sustain serious injury”

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from falls.  CMS Ex. 25 at 4.  Interventions, which were last updated in August 2015, included the following:  Anticipate and meet Resident # 1’s needs; leave her call light within reach and encourage its use; keep needed items in reach; maintain a clear pathway free of obstacles; follow the facility’s falls protocol;Neither party submitted a copy of Petitioner’s falls protocol with its proposed exhibits. and, follow occupational, physical therapy evaluation, and physician orders.  CMS Ex. 25 at 4.   

Petitioner initiated a new care plan focus in December 2015 after Resident # 1 had a fall, at which time it listed the following interventions:  check range of motion; neuro-checks as ordered; and provide activities that promote exercise and strength-building when possible.  CMS Ex. 25 at 5.  After another fall in February 2016, Petitioner did not add any new interventions.  After a third and unwitnessed fall in April 2016, Petitioner added an intervention that it would toilet Resident # 1 every two hours.  Resident # 1 had another unwitnessed fall in June 2016, following which Petitioner added an intervention of non-skid socks.  And when Resident # 1 fell for a fifth time in December 2016, at which time she was found on the floor of her bathroom and reported that she had “slipped,” Petitioner added the intervention of “collect [urinalysis].”  CMS Ex. 25 at 5.   

A February 2017 Minimum Data Set (MDS) reported that Resident # 1 was unable to complete the Brief Interview for Mental Status portion of the assessment.  CMS Ex. 25 at 12.  An alternative assessment revealed that Resident # 1 had problems with short-term memory, which the assessment form defined as the ability to recall after five minutes.  CMS Ex. 25 at 12.  Resident # 1 was also assessed as having problems with long-term memory, along with being severely cognitively impaired with respect to daily decision making such that she “never/rarely made decisions.”  CMS Ex. 25 at 12.  

An evaluation of Resident # 1’s functional status as part of the MDS indicated that she required extensive assistance with, inter alia, bed mobility, transfers, and toilet use during the assessment’s lookback period.  CMS Ex. 25 at 16.  With respect to walking in her room, the MDS reported that Resident # 1 required supervision and a one-person physical assist during the assessment period.Petitioner submitted assessment records for “walk in room:  self performance,” which revealed that the overwhelming majority of instances in which Petitioner’s staff assessed Resident # 1’s performance of this activity prior to the date of her April 7, 2017 fall, she did not perform it independently without supervision or assistance.  P. Ex. 19.  CMS Ex. 25 at 16.  Resident # 1 required a one‑person physical assist with nearly all activities of daily living during the assessment period.  CMS Ex. 25 at 16.  The assessment reported that Resident # 1 had “total dependence” on staff for performance of bathing during the lookback period.  CMS Ex. 25 at 17.  The MDS reported that Resident # 1 was not steady during transitions and walking, but was able to stabilize without staff assistance when moving from the seated to standing position, walking, turning around, moving on and off the toilet, and

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transferring between surfaces.  CMS Ex. 25 at 17.  The MDS reported that Resident # 1 normally used a walker.  CMS Ex. 25 at 17.

On April 5, 2017, Resident # 1 was diagnosed with a fracture of left ribs 6 and 7 and prescribed a one-week course of tramadol for pain.  CMS Ex. 25 at 58.  At the time of her transfer to the hospital, Resident # 1 denied having any pain, although she had previously reported left side pain.  CMS Ex. 25 at 57-58.

The following day, on April 6, 2017, Dr. Nayak opined that Resident # 1’s rib injuries could have resulted from an unwitnessed fall, or alternatively, occurred spontaneously.  P. Ex. 3 at 1-2.  At that time, Dr. Nayak reported a chief complaint of “[a]cute visit – requested by staff – chest pain worsening dementia mental status changes question of dysuria weakness debility osteoporosis [degenerative joint disease].”  P. Ex. 3 at 1.  Dr. Nayak stated that Resident # 1 had progressive dementia and Alzheimer’s disease, and that her medical history was “limited due to forgetfulness” and she “is simply not a reliable historian.”  P. Ex. 3 at 1.  Dr. Nayak reported that x-rays had determined that Resident # 1 had left rib fractures.  P. Ex. 3 at 1.  Dr. Nayak commented that it was “truly puzzling because [Resident # 1] keeps insisting that she has not fallen but there is a possibility that [she] may have fallen against her nightstand or some other furniture in her room and could not remember that she had fallen because of her dementia.”  P. Ex. 3 at 1.  In her assessment, Dr. Nayak reiterated her previous concerns, stating:  “Very puzzling situation because of unreliable history from the patient.  It is very possible that patient suffered unwitnessed fall or some sort of trauma against furniture in her room and due to her dementia did not remember to report to the staff.”  P. Ex. 3 at 2.  Dr. Nayak performed a physical examination, assessing that Resident # 1 had obvious tenderness of her left middle chest and yellow discoloration, but did not have tenderness elsewhere, to include her spine.  P. Ex. 3 at 1.  Dr. Nayak reported that Resident # 1 uses her walker to ambulate and it is “simply not possible to prevent every fall.”  P. Ex. 3 at 2.  Dr. Nayak “[r]equested staff to follow fall precautions as would be indicated per nursing judgment and observation.”  P. Ex. 3 at 2.  

An April 7, 2017 “Event/Change of Condition” progress note provides the following report of a new fall by Resident # 1 that same day:

[Certified Nurse Aide (CNA)] notified this writer that [Resident # 1] is on the floor . . . in her room.  CNA had assisted Res[ident] to bathroom and instructed Res[ident] to use call light to be assisted back to bed upon completion.  Res[ident] attempted to transfer back to bed without CNA assistance.  Gait very unsteady.  Noted res[ident] on the floor supine position with roller walker by AC unit.

CMS Ex. 25 at 47-48.  The same progress note reported that Resident # 1 complained of back pain that was 7 in intensity out of a scale of 10.  CMS Ex. 25 at 48.

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An April 7, 2017 progress note reported that an x-ray showed “[m]ild to moderate wedge compression fractures of the L3 and L5 [v]ertebral bodies respectively.”  CMS Ex. 25 at 56.  Petitioner transferred Resident # 1 to the hospital late that evening, and she returned several hours later.  CMS Ex. 25 at 55-56.  The hospital prescribed a new order for tramadol, to be taken four times per day for 10 days.  CMS Ex. 25 at 55.     

Petitioner completed an incident report that it revised on April 10, 2017.  CMS Ex. 25 at 45-46.  Petitioner reported that a “CNA had assisted Res[ident # 1] to the bathroom and instructed Res[ident # 1] to use call light to be assisted back to bed,” and that Resident # 1 fell when she “attempted to transfer back to bed without CNA assistance.”  CMS Ex. 25 at 45.  

In an April 12, 2017 consultation report, Dr. Nayak reported that Resident # 1 “does not like to call for assistance and wants to be as independent as possible and also wants her privacy when she is toileting.”  P. Ex. 4 at 1.  Dr. Nayak stated that “[s]taff stated that [Resident # 1] is actually really ambulatory and gets around with her walker.”  P. Ex. 4 at 1.  Dr. Nayak reported Resident # 1 “is expected to fall and it is unavoidable, and that there is nothing that the staff can do to keep her restrained.”  P. Ex. 4 at 2.

On April 13, 2017, the facility’s administrator, Rick Forscutt, interviewed Ms. Royal, the CNA who had taken Resident # 1 to the bathroom prior to her April 7, 2017 fall.  CMS Ex. 25 at 49.  The interview revealed that Resident # 1, who had been eating a meal in the dining room, asked to be taken to the bathroom.  CMS Ex. 25 at 49.  The CNA reported that she took Resident # 1 to the bathroom in her private room and waited outside the bathroom door for a few minutes until Resident # 1 asked to be left alone.  CMS Ex. 25 at 49.  Ms. Royal reported that she “gave [Resident # 1] the call light and said, ‘Before you get up, pull the call light.’”  CMS Ex. 25 at 49.  Ms. Royal informed Mr. Forscutt that Resident # 1 “sometimes . . . pulls the call light and other times she gets up on her own with nobody’s help.”  CMS Ex. 25 at 49.  Ms. Royal also explained that before she returned to the dining room and picked up a tray, she told Resident # 1 that she would be right back and directed her not to stand up on her own.  CMS Ex. 25 at 49.  Ms. Royal reported that after she heard screaming, she returned to Resident # 1’s room and found her on the floor by her bed.  CMS Ex. 25 at 49.   

Ms. Calma, the Director of Nursing Services, on behalf of Petitioner’s fall committee interdisciplinary team, entered a progress note on April 10, 2017.  CMS Ex. 25 at 52.  The progress note reported that Resident # 1 “[a]pparently . . . walked got up from the commode and dressed herself up and went in the room,” at which time she “lost balance in her room and she was noted on the floor.”  CMS Ex. 25 at 52.  Although facility staff did not observe a visible injury, the resident reported pain at a 7 out of 10 level.  CMS Ex. 25 at 52.  The report documented that an x-ray reported a “moderate wedge compression fracture of L3 and L5.”  CMS Ex. 25 at 52.  Ms. Calma stated that Resident

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# 1’s care plan would be updated to include the following intervention:  “[Primary physician] consult to address the pain and continue with at risk plan of care for fall.”  CMS Ex. 25 at 52.

Petitioner submitted assessment records dated between February 28 and April 6, 2017,The records contain 106 entries regarding self-performance of toileting over the course of approximately five weeks, with Resident # 1’s self-performance of the activity assessed by Petitioner’s staff on 103 occasions.  P. Exs. 10 (toileting records duplicative of records contained in P. Ex. 18, but covering a narrower date range and including March 30 and 31, 2017 entries not contained in P. Ex. 18), 18.  It is unclear whether Petitioner completed an assessment every time staff toileted Resident # 1.  See CMS Ex. 25 at 5 (April 2016 care plan intervention that Resident be toileted every two hours). documenting Resident # 1’s self-performance of toileting.Petitioner’s assessments include the following language, which mirrors the MDS assessment criteria:  “TOILET USE:  SELF PERFORMANCE – How resident uses the toilet room, commode, bed pan, or urinal; transfers on/off toilet; cleanses self after elimination; changes pad; manages ostomy or catheter; and adjusts clothes.”  P. Exs. 10, 18.  P. Exs. 10, 18.  Curiously, the level of assistance provided to Resident # 1 seemingly correlates to the particular staff member who was present during the activity.  P. Exs. 10, 18.  For example, two CNAs who frequently observed this activity, Ms. Zafar and Ms. Makoni, documented that extensive assistance was necessary every single time; Ms. Zafar recorded that Resident # 1 required extensive assistance on 24 of 24 occasions, and Ms. Makoni recorded that Resident # 1 required extensive assistance on 21 of 21 occasions.Petitioner’s assessment forms define that extensive assistance as, “Resident involved in activity, staff provide weight-bearing support.”  P. Exs. 10, 18.  P. Exs. 10, 18.  Quite differently, another staff member, Ms. McLean, documented that Resident # 1 performed toileting independently on all 12 out of 12 occasions that she assessed Resident # 1’s performance of the activity.  P. Exs. 10, 18.  And Ms. Royal, the CNA who was involved in the April 7, 2017 fall incident, reported that Resident # 1 required only supervision or limited assistance all 10 times she assessed the activity, with seven of those instances involving only supervision.  P. Ex. 10.  In summary, the assessments document that Resident # 1 required extensive assistance or had total dependence on staff more than half the time Petitioner assessed Resident # 1’s self-performance of this activity.  P. Exs. 10, 18.

Petitioner also submitted assessments of Resident # 1’s self-performance of ambulation in her room.  Resident # 1 received supervision or limited assistance on 54 of 63

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occasions through April 6, 2017 (prior to the date of her April 7, 2017 fall), and performed the activity independently on only seven occasions.  P. Ex. 19.

Ms. Royal submitted written direct testimony explaining that prior to leaving Resident # 1 alone to toilet, she had instructed Resident # 1 not to get up until she returned from the dining room.  P. Ex. 8 at 1.  Ms. Royal reported that she “had assisted [Resident # 1] with using the restroom on other occasions,” and that on “these prior occasions, [Resident # 1] occasionally used the call light and frequently got up on her own without help or assistance.”  P. Ex. 8 at 2.

Mr. Forscutt, in his written direct testimony, recounted his April 13, 2017 interview with Ms. Royal.  P. Ex. 9; see CMS Ex. 25 at 49.  Mr. Forscutt reported that Ms. Royal had explained that Resident # 1 wanted to be left alone when she was in the bathroom, and that “sometimes [she] would pull the call light and other times, [she] would get up on her own with nobody’s help.”  P. Ex. 9 at 1-2.

Ms. Kristi Miranda, a CNA, provided written testimony stating the following:  “[Resident # 1] would get frustrated at times.  Sometimes she would let me care for her.  Other times, she would not let me care for her and wanted to be left alone.  Specifically, she would shout ‘Leave me alone!’”Although other CNAs reported that Resident # 1 required extensive assistance or had total dependence on staff with toileting from February 28 through April 6, 2017, Ms. Miranda always assessed that Resident # 1 required only limited assistance or supervision.  P. Exs. 10, 18.  P. Ex. 11 at 1.  Ms. Miranda also testified that Resident # 1 ambulated by walker and only used a wheelchair for long distances.  P. Ex. 11 at 1.

Dr. Nayak provided written direct testimony that Resident # 1 “had a very high risk of spontaneous atraumatic fractures that were difficult to modify” and that the L3 and L5 fractures diagnosed on April 7, 2017, were not related to Resident # 1’s fall that same day.  P. Ex. 5 at 1-2.  Dr. Nayak also testified that Resident # 1 “wished to do things for herself,” which “made her happy and gave her some quality of life.”  Dr. Nayak reported that she encouraged Resident # 1’s “independence in ambulation.”  P. Ex. 5 at 3.

Dr. Scott Bundy, a radiologist, provided written testimony that Resident # 1 had chronic fractures of L3 and L5 vertebrae that pre-dated her April 7, 2017 fall.  P. Ex. 14 at 1-2; see P. Exs. 7 at 1; 12 at 1-3 (radiology reports); see P. Ex. 13 (letter from Dr. Bundy to Petitioner’s counsel).

B. Petitioner has not raised a genuine dispute of fact that it failed to maintain an environment free of accident hazards and provide adequate supervision to

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protect Resident # 1 from foreseeable risks of harm, and therefore, was not in substantial compliance with 42 C.F.R. § 483.25(d).  

Subsection 483.25(d) is part of the quality of care regulation at 42 C.F.R. § 483.25, which states that “[q]uality of care is a fundamental principle that applies to all treatment and care provided to facility residents.”  Subsection 483.25(d) imposes specific obligations upon a facility related to accident hazards and accidents, as follows:  The facility must ensure that —

(1) The resident environment remains as free of accident hazards as is possible; and

(2) Each resident receives adequate supervision and assistance devices to prevent accidents.

42 C.F.R. § 483.25(d)(1)-(2).

The Departmental Appeals Board (DAB) has held that subsection 483.25(d)(1)The DAB referenced section 483.25(h)(1); that section was re-designated as section 483.25(d)(1) pursuant to regulatory revisions that became effective November 28, 2016.  81 Fed. Reg. 68,688 (Oct. 4, 2016). requires that a facility address foreseeable risks of harm from accidents “by identifying and removing hazards, where possible, or, where the hazard is unavoidable because of other resident needs, managing the hazard by reducing the risk of accident to the extent possible.”  Me. Veterans’ Home - Scarborough, DAB No. 1975 at 10 (2005) (explaining the inherent standard of care in section 483.25(h)(1)); see Bridge at Rockwood, DAB No. 2954 at 10 (2019) (“The correct question is whether the facility did what it reasonably could to ensure that all residents received supervision needed to ‘mitigate foreseeable risks of harm’ based on what it knew about the residents, their care needs, and the conditions in the facility.”).  The provisions of section 483.25(d) “come into play when there are conditions in a facility that pose a known or foreseeable risk of accidental harm.”  Meridian Nursing Ctr., DAB No. 2265 at 10 (2009), aff’d sub nom. Fal‑Meridian, Inc. v. U.S. Dep’t of Health & Human Servs., 604 F.3d 445 (7th Cir. 2010).  The DAB has held that subsection 483.25(d)(2) requires that a facility take “all reasonable steps to ensure that a resident receives supervision and assistance devices that meet his or her assessed needs and mitigate foreseeable risks of harm from accidents.”  Briarwood Nursing Ctr., DAB No. 2115 at 11 (2007) (citing Woodstock Care Ctr. v. Thompson, 363 F.3d 583, 589 (6th Cir. 2003) (facility must take “all reasonable precautions against residents’ accidents”), aff’g Woodstock Care Ctr., DAB No. 1726 (2000)).  Facilities are given “the flexibility to choose the methods” they use to provide supervision or assistive devices to prevent accidents, so long as the chosen methods constitute an “adequate” level of supervision for a particular resident’s needs.  Windsor

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Health Care Ctr., DAB No 1902 at 5 (2003), aff’d sub nom. Windsor Health Ctr. v. Leavitt, 127 F. App’x 843 (6th Cir. 2005).

Analysis

Resident # 1’s falls prevention care plan reports that she was at risk for falls due to gait and balance problems.  CMS Ex. 25 at 4.  The care plan also indicates that, in addition to her April 7, 2017 fall, she had falls in December 2015 and February, April, June, and December of 2016.  CMS Ex. 25 at 5.  Further, Resident # 1 had been diagnosed with left rib fractures two days prior to her April 7, 2017 fall, and her physician had opined, on April 6, 2017, that it was “possible” that her rib fractures had been caused by an “unwitnessed fall or some sort of trauma against furniture in her room and due to her dementia did not remember to report to the staff.”  P. Ex. 3 at 2.  And notably, Resident # 1 had previously sustained a fall in her bathroom only months earlier.  CMS Ex. 25 at 5.  Nonetheless, the only intervention added after June 2016 was to collect a urinalysis.  CMS Ex. 25 at 4-5. 

A February 2017 MDS assessment revealed that Resident # 1 toileted with extensive assistance and ambulated in her room with supervision, and that Petitioner’s staff provided a one-person physical assist for both activities during the assessment period.  CMS Ex. 25 at 16.  Although Petitioner contends that “the medical record reflects that the Resident did not require help with toileting” and “[n]o physical help is required from staff with . . . toileting,” undisputed evidence, in the form of assessment records submitted by Petitioner, indicates otherwise.  P. Response at 5; see P. Exs. 10, 18.  Specifically, in the five weeks prior to Resident # 1’s April 7, 2017 fall, Petitioner assessed more than half the time that Resident # 1 required at least “extensive assistance,” in the form of weight‑bearing support by a staff member, when toileting.  P. Exs. 10, 18.  Further, although Petitioner alleged that Resident # 1 “walks independently with her walker” and is “ambulatory around the unit, using her walker and doing so independently without the assistance of staff,” Petitioner’s assessment records over the same period of time leading up to Resident # 1’s April 7, 2017 fall evidence that Petitioner’s staff assessed that Resident # 1 ambulated in her room independently (and without supervision or assistance) on only 7 of 63 observed occasions.When a staff member supervises an activity such as ambulation, the staff member is immediately available if it appears that the resident will need assistance.  For example, if a resident is unsteady when ambulating, the staff member supervising the activity may be able to intervene when the resident begins to lose his or her balance such as to prevent a fall or mitigate a fall-related injury.  P. Response at 5; P. Ex. 19.  

Resident # 1 had cognitive deficits, as evidenced by her inability to complete the Brief Interview for Mental Status and by the alternative assessment, which revealed severely impaired decision making.  CMS Ex. 25 at 12.  The same assessment reported short-term

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memory deficits marked by an inability to recall after five minutes.  CMS Ex. 25 at 12.  Resident # 1’s physician, who acknowledged her progressive dementia and Alzheimer’s disease that caused delusions, remarked that Resident # 1’s April 5, 2017 rib fractures were “truly puzzling because [she] keeps insisting that she has not fallen but there is a possibility that [she] may have fallen against her nightstand or some other furniture in her room and could not remember that she had fallen because of her dementia.”  P. Ex. 3 at 1.  

In addition to her cognitive limitations, Resident # 1 had significant physical impairments.  Nearly two years before her April 7, 2017 fall, Resident # 1’s physician remarked that she appeared “frail” and “chronically ill,” and had a history of osteoporosis and degenerative joint disease in multiple joints.  P. Ex. 2 at 1.  Resident # 1’s physician opined that she had “a very high risk of spontaneous atraumatic fractures,” and that such a spontaneous fracture “can precede [a] fall, rather than the fall causing the fracture.”  P. Ex. 2 at 2.  And, Petitioner’s physician recognized the recent diagnosis of left rib fractures and remarked that Resident # 1 “was expected to fall and this was unavoidable.”  P. Ex. 5 at 2-3.    

Petitioner was aware that a cognitively and physically impaired resident who had fallen five times in the previous year and a half, and possibly a sixth time two days earlier, would attempt to toilet and ambulate on her own even though its own assessments documented that she required supervision, at a minimum, the majority of times she performed those activities.  P. Exs. 10, 18-19.Quizzically, Petitioner argues that a “review of [Resident # 1’s] [activities of daily living] documentation for the several weeks prior to the fall event of April 7, 2017, confirms that the Resident toileted herself and moved about in her room without incident, and without the extensive support of staff.”  P. Br. at 17.  Being that a scant amount of entries reference Resident # 1’s independent performance of these activities, but rather, reflect that she frequently required extensive assistance for toileting and supervision or limited assistance for ambulating in her room, Petitioner’s argument is inconsistent with the undisputed evidence it submitted.  See P. Exs. 10, 18, 19; see also P. Response at 13.  Ms. Royal acknowledged that Resident # 1 “occasionally” used her call light after she toileted and “frequently got up on her own without any help or assistance.”  P. Ex. 8 at 2; see P. Ex. 9 (Administrator’s report of his interview of Ms. Royal).   

Petitioner argues that its staff provided adequate care to Resident # 1 and that she was “allowed to ambulate and toilet as per her abilities.”  P. Response at 12.  Petitioner essentially argues that because Resident # 1, on other occasions, had been able to toilet herself and ambulate independently in her room and wanted to do so, she did not require any assistance.  The evidence indicates that Resident # 1 had significant memory problems and may not be able to recall an instruction given five minutes prior, such as an instruction to use a call light.  CMS Ex. 25 at 12.  Likewise, the evidence undisputedly

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indicates that in February 2017, Petitioner assessed that Resident # 1 needed as much as extensive assistance with toileting and limited assistance ambulating in her room (CMS Ex. 25 at 16); in fact, the evidence indicates that in more than half of the observed occasions in the approximately five weeks prior to her April 7, 2017 fall, she required extensive weight-bearing assistance when toileting.  P. Exs. 10, 18; see P. Response at 5 (Petitioner’s argument that “real-time nursing assessments” are a better gauge for Resident # 1’s ability to perform activities).  Further, over the same time period prior to the date of Resident # 1’s fall, staff assessed that Resident # 1 ambulated in her room independently on only 7 of 63 documented occurrences, requiring supervision on 47 of those occasions and either limited or extensive assistance with ambulation on other occasions.  P. Ex. 19.  And only four months earlier, in December 2016, Resident # 1 had an unwitnessed fall in her bathroom, which did not result in any new care plan interventions other than a urinalysis collection.  CMS Ex. 25 at 5.  And even more concerning, Resident # 1 had just sustained rib fractures, possibly due to a fall, and her physician had previously opined, on two occasions, that she could suffer from falls as a result of spontaneous fractures.  P. Exs. 2, 3.  Thus, even if Resident # 1 had successfully toileted and ambulated independently on previous occasions, it was not typical, as evidenced by dozens of staff activity assessments and her history of repeated and sometimes unwitnessed falls.I acknowledge that Petitioner submitted monthly nursing summary reports completed by Donna Harrell, RN, dated February 3, March 3, and April 3, 2017, which each report that Resident # 1 walked “independently” with a cane/walker and did not require any physical help from staff for transferring, bed mobility, and toileting.  P. Ex. 20.  Petitioner does not argue that such monthly observations by Ms. Harrell are more accurate than the dozens of contemporaneous observations by Petitioner’s staff that Resident # 1 was provided supervision or physical assistance when she toileted and ambulated in her room.  P. Exs. 10, 18, 19.  Even accepting Ms. Harrell’s monthly nursing summary reports as true and accurate for purposes of summary judgment, the simple fact is that Petitioner was on notice of the dozens of assessments completed by its staff documenting that Resident # 1 frequently required supervision or some level of assistance when toileting and ambulating in her room.  P. Ex. 20; see P. Exs. 10, 18, 19.

The undisputed evidence supports that Petitioner failed to comply substantially with the requirements of 42 C.F.R. § 483.25(d) when a CNA left Resident # 1 unattended and returned to the dining room while Resident # 1 was left to toilet on her own.  Resident # 1 had five falls over the course of the previous year (CMS Ex. 25 at 5), to include one unwitnessed fall in her bathroom and at least three other unwitnessed falls, and may have had another unwitnessed fall resulting in fractured ribs only two days prior to her April 7, 2017 fall.  P. Ex. 3 at 1.  Despite these repeated falls, Resident # 1’s care plan had not been updated with any fall prevention interventions, other than a urinalysis collection, since June 2016.  CMS Ex. 25 at 5.  Not only was Resident # 1 at risk of falls from her

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weakness and unstable gait, but she was at risk of falls due to an apparent risk of spontaneous fractures (even though this additional fall risk was not documented in her care plan).  P. Exs. 2 at 2; 3 at 2.  Resident # 1’s physician even recognized her fall risk, stating what was quite obvious after five confirmed falls and one additional possible fall, but prior to the April 7, 2017 fall, that “it is simply not possible to prevent every fall.”  P. Ex. 3 at 2.  Further, despite Ms. Royal’s testimony that she instructed Resident # 1 to use her call light and that Resident # 1 would use it occasionally (P. Ex. 8 at 2), Ms. Royal did not report an expectation that Resident # 1 would actually use her call light; to the contrary, Ms. Royal indicated that Resident # 1 often chose not to wait for her assistance.  See P. Ex. 9 at 1-2 (Administrator’s testimony that Ms. Royal explained that Resident # 1 sometimes used the call light and “other times, [she] would get up on her own with nobody’s help.”).  Petitioner did not take reasonable steps to protect Resident # 1 from a foreseeable accident involving a fall.  Petitioner not only exposed Resident # 1 to a foreseeable risk of harm, but she suffered actual harm, as evidenced by a fall with reports of pain, a transfer to the hospital, and a new order for a 10-day course of tramadol for pain.I need not determine whether Resident # 1 sustained L3 and L5 fractures as a result of her fall.

The DAB “has repeatedly held that section 483.25(d) obligates a facility to take “all reasonable steps to ensure that a resident receives supervision and assistive devices that meet his or her assessed needs and mitigate foreseeable risks of harm from accidents.”  Heritage Plaza Nursing Ctr., DAB No. 2829 at 6 (2017) (citing Briarwood Nursing Ctr., DAB No. 2115 at 5 (2007) (citing Woodstock Care Ctr., 363 F.3d 583, 590 (6th Cir. 2003), affirming Woodstock Care Ctr., DAB No. 1726 (2000)).  The DAB has also explained:

For a risk to be foreseeable, it need not have been made obvious by having already materialized.  The regulation speaks in terms of ensuring that what is “practicable” and “possible” to do is done.  What is thus required of facilities is not prescience but reason and professional judgment in assessing what can be done to make residents (given their special needs) safe, through removing accident hazards, providing appropriate devices, and ensuring adequate supervision.

Josephine Sunset Home, DAB No. 1908 at 14-15 (2004).

Petitioner did not take all reasonable steps to prevent avoidable falls.  Given Resident # 1’s risk for falls due to gait and balance problems (CMS Ex. 25 at 4), along with her history of prior falls (CMS Ex. 25 at 5), a well-documented frequent need for extensive

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assistance with toileting (P. Exs. 10, 18), only occasional use of her call light when toileting (P. Ex. 8 at 2), her documented need for, at a minimum, supervision the vast majority of times she was assessed for her ability to ambulate in her room (P. Ex. 19), and severe cognitive problems with short-term memory impairment (CMS Ex. 25 at 12), Petitioner knew or should have known that she was at risk for falling if she attempted to get up from the toilet and return to her bed without a staff member available to supervise or assist.I also note that the CNA returned to the dining room to apparently bus tables while Resident # 1 was toileting.  See CMS Ex. 25 at 49 (Administrator’s April 13, 2017 report that the CNA “went to the dining room, picked up a tray, and then a couple of minutes later started to hear the resident screaming.”).  Although CMS alleges that the call light was not working, I do not make a finding that the call light was non-operational because it is a disputed fact.  See P. Ex. 8 at 2 (Ms. Royal’s testimony that the call light was functional).  Petitioner expected Resident # 1, a cognitively impaired woman with a poor memory, who had a known desire to toilet and ambulate independently even though she typically required supervision, if not assistance, to remain on the toilet until the CNA returned from the dining room to assist her.  Regardless of whether Petitioner had meaningfully updated Resident # 1’s care plan after her five previous falls, Resident # 1’s care plan, dating back to her August 2015 admission to the facility, required Petitioner to “[a]nticipate and meet [her] needs” in furtherance of the goal that she remain free of falls and serious injuries from falls.  CMS Ex. 25 at 4; see CMS Ex. 25 at 5.  Even if Resident # 1 was able to toilet and ambulate in her room independently on some occasions, the evidence submitted by Petitioner indicates that its staff provided supervision or assistance for toileting and ambulation in the room on the vast majority of contemporaneously documented occasions, as would be consistent with the intervention of anticipating and meeting needs to prevent falls and serious fall injuries.  P. Exs. 10, 18, 19.  Petitioner was undoubtedly on notice that in the weeks preceding Resident # 1’s April 7, 2017 fall, she required extensive assistance on more than half of the observed instances of toileting and ambulated independently without supervision or assistance on only 7 of 63 documented instances.  P. Exs. 10, 18. 19.  By leaving Resident # 1, who had been determined to be at risk for falls, alone to toilet and ambulate following her use of the toilet, even though she had sustained several unwitnessed falls and had a well-documented need for supervision or assistance, Petitioner did not take all reasonable steps necessary to prevent a foreseeable risk of harm from an accident.

Finally, Petitioner argues that the CNA who cared for Resident # 1 acted appropriately because Resident # 1 wanted to be left alone.  P. Response at 3.  It is plainly apparent that Resident # 1 wanted privacy when toileting, and it is obvious that any person would desire privacy when using the toilet.  See P. Exs. 8 at 1-2; 11 at 1 (testimony of two CNAs discussing that Resident would say, “Leave me alone!”).  However, the need to offer Resident # 1 privacy in the bathroom did not require the CNA to return to the dining

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room.  Petitioner has not shown that the CNA could not remain immediately available to assist while affording Resident # 1 privacy while toileting.  Further, Petitioner has not reconciled its claim that the CNA returned to the dining room to comply with Resident # 1’s need for privacy when other CNAs, particularly Ms. Zafar and Ms. Makoni, consistently provided extensive assistance with toileting on dozens of other recent occasions.In fact, had Petitioner reviewed its ongoing assessment records prior to the April 7, 2017 fall, it may have been able to incorporate input from Ms. Zafar and Ms. Makoni with respect to balancing Resident # 1’s desire for privacy while also being able to provide extensive assistance.  P. Exs. 10, 18.  To afford Resident # 1 the necessary amount of privacy, the CNA simply could have remained nearby and readily available.  And being that Resident # 1 had required, and accepted, extensive assistance with toileting on dozens of other occasions, Petitioner’s claim that Resident # 1 toileted independently is not supported by Petitioner’s own evidence.  The CNA assisting Resident # 1 left her alone so that she could return to the dining room, and it was simply unnecessary to return to the dining room to accommodate a request for privacy.  See Rosewood Care Ctr. of Edwardsville, DAB No. 1898 (2003) (upholding ALJ’s rejection of a facility’s argument that it had been “‘[s]triking a proper balance’ between privacy and supervision” when it left a resident unattended on a toilet, and upholding the ALJ’s determination that the facility’s privacy argument was “‘poorly concocted in the aftermath.’”). 

C. Petitioner remained out of compliance until May 8, 2017.

Substantial compliance means not only that the facility corrected the specific cited instances of substantial noncompliance, but also that it implemented a plan of correction designed to assure that no additional incidents would occur in the future.  Once a facility is found to be out of substantial compliance, it remains so until it affirmatively demonstrates that it has achieved substantial compliance once again.  Ridgecrest Healthcare Ctr., DAB No. 2493 at 15 (2013) (citing Premier Living & Rehab. Ctr., DAB No. 2146 at 23 (2008) and Lake City Extended Care Ctr., DAB No. 1658 at 12-15 (1998)).  The burden is on the facility to prove that it is compliant with program requirements, and not on CMS to prove that deficiencies continued to exist after they were discovered.  Asbury Ctr. at Johnson City, DAB No. 1815 at 19-20 (2002).  Noncompliance found during a survey is “presumed to continue until the facility demonstrates that it has achieved substantial compliance.”  Taos Living Ctr., DAB No 2293 at 20 (2009); see Pearsall Nursing & Rehab. Ctr. – North, DAB No. 2692 at 7 (2016) (affirming summary judgment where Petitioner “refer[red] broadly to ‘the evidence presented in [its] Response’” but “identifie[d] no specific evidence relevant to the material facts”). 

CMS determined that Petitioner was not in substantial compliance beginning on April 7, 2017, and that it did not return to compliance until May 8, 2017.  In its request for

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hearing, Petitioner does not challenge the duration of the cited noncompliance.  Likewise, in its brief, Petitioner does not argue that it returned to compliance prior to May 8, 2017, but rather, alleges that it “was in substantial compliance . . . at all relevant times.”  P. Br. at 2.  Further, in its response to CMS’s motion for summary judgment, Petitioner likewise does not challenge the duration of noncompliance, arguing that “it was compliant at all times relevant to this survey with the Medicare requirements.”  P. Response at 16.  In addition, Petitioner has not appealed numerous other deficiencies cited in the March 2017 surveys, all of which would have required correction in order for Petitioner to return to substantial compliance.  CMS Exs. 1 at 1-2; 2 at 1.  Petitioner has not demonstrated that it returned to compliance earlier than May 8, 2017.   

D. The CMP is reasonable.

If a facility is not in substantial compliance with program requirements, CMS has the authority to impose one or more of the enforcement remedies listed in 42 C.F.R. § 488.406, to include a CMP.  In determining whether the CMP imposed against Petitioner is reasonable, I apply the factors listed in 42 C.F.R. § 488.438(f):  1) the facility’s history of noncompliance; 2) the facility’s financial condition; 3) the factors specified in 42 C.F.R. § 488.404; and 4) the facility’s degree of culpability, which includes neglect, indifference, or disregard for resident care, comfort or safety.  The absence of culpability is not a mitigating factor.  The factors listed in 42 C.F.R. § 488.404 include: 1) the scope and severity of the deficiency; 2) the relationship of the deficiency to other deficiencies resulting in noncompliance; and 3) the facility’s prior history of noncompliance in general and specifically with reference to the cited deficiencies.  Unless a facility contends that a particular regulatory factor does not support the CMP amount that CMS proposed, an ALJ must sustain the CMP.  Coquina Ctr., DAB No. 1860 at 32 (2002).

The DAB has explained that “[i]t is settled law that ALJ review of the reasonableness of CMP amounts imposed by CMS is de novo.”  Fireside Lodge Retirement Ctr., Inc., DAB No. 2794 at 19 (2017).  I consider whether the evidence supports a finding that the amount of the CMP is at a level reasonably related to an effort to produce corrective action by a provider with the kind of deficiencies found, and in light of the above factors.  I am neither bound to defer to CMS’s factual assertions, nor free to make a wholly independent choice of remedies without regard for CMS’s discretion.  See, e.g., Barn Hill Care Ctr., DAB No. 1848 at 21 (2002).  The DAB has explained that “[t]he determination of whether a CMP amount is reasonable is a conclusion of law, not a finding of fact.”  Cedar Lake Nursing Home, DAB No. 2344 at 12 (2010), aff’d sub nom. Cedar Lake Nursing Home v. U.S. Dep’t of Health & Human Servs., 619 F.3d 453, 458 (5th Cir. 2010).  

The regulations specify that a CMP that is imposed against a facility on a per-day basis will fall into one of two ranges.  42 C.F.R. §§ 488.408, 488.438.  The lower CMP range

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of $50 to $3,000 per day, as adjusted annually under 45 C.F.R. part 102, is applicable here.The cost-of-living adjustment was mandated pursuant to the Federal Civil Penalties Inflation Adjustment Improvements Act of 2015, 104 Pub. L. No. 114-74, § 701, which was enacted on November 2, 2015.  The inflation-adjusted CMPs are applicable, as the survey was completed on April 13, 2017, and the CMP was imposed on June 26, 2017.  The per-day CMP ranges applicable to this case are $105 to $6,289 for deficiencies that do not constitute immediate jeopardy.  82 Fed. Reg. 9174, 9182-83 (Feb. 3, 2017); see 82 Fed. Reg. at 9174-75 (“The adjusted civil penalty amounts apply to civil penalties assessed on or after February 3, 2017, when the violation occurred after November 2, 2015.”).  42 C.F.R. § 488.438(a)(1)(i).  In assessing the reasonableness of a CMP, an ALJ looks at the per-day amount, rather than the total accrued CMP.  See Kenton Healthcare, LLC, DAB No. 2186 at 28 (2008).  Pursuant to 42 C.F.R. § 488.408(g)(2), a facility cannot appeal CMS’s choice of a remedy, and an appeal of a CMP is limited to review based on the regulatory factors set forth at 42 C.F.R. §§ 488.438(f) and 488.404(a)-(c).  See, e.g., Senior Rehab., DAB No. 2300 at 19-20. 

CMS imposed a per-day CMP of $2,615 per day for 31 days of substantial noncompliance from April 7 through May 7, 2017, for a total CMP of $81,065.  The per‑day CMP of $2,615 is at the low-to-middle range of the $105 to $6,289 CMP range applicable at that time for deficiencies that did not constitute immediate jeopardy.  See 45 C.F.R. § 102.3; 82 Fed. Reg. at 9182-83.  Petitioner has not argued that any of the enumerated regulatory factors warrant a reduction of the per-day CMP, and it does not cite any regulatory basis to challenge the reasonableness of the per-day CMP.

The per-day CMP of $2,615 is reasonable.  While Petitioner denies actual harm, I have determined that Resident # 1 suffered actual harm, at a minimum, based on her fall, resulting in back pain at a level of 7 out of 10, transfer to a hospital, and a new order for a 10-day course of pain medication.  See 42 C.F.R. § 488.438(f)(4).  I also note that Petitioner has a history of noncompliance, which it does not dispute.  See CMS Ex. 42 at 1 (listing several deficiencies cited at the level of actual harm or immediate jeopardy in March 2015 and April 2016 surveys, to include two citations for the same deficiency under Tag F323).  Even without consideration of Petitioner’s history of noncompliance, a per day CMP of $2,615 in the low-to-middle CMP range is entirely reasonable pursuant to 42 C.F.R. § 488.438(f).    

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IV.  Conclusion

For the reasons discussed above, I grant summary judgment in favor of CMS.  There is no genuine dispute of material facts, and I find that the facility was not in substantial compliance with the Medicare participation requirements.  A $2,615 per-day CMP for 31 days of noncompliance is reasonable.