The Springs Healthcare and Rehabilitation, DAB CR6265 (2023)

DECISION

This is another case involving a long-term-care facility’s response to the COVID-19 pandemic.  The facility here has produced no written document describing how it planned to respond to the infectious disease, and its response fell short of accepted national standards.  Petitioner maintains that the facility was not required to follow guidance from the Centers for Disease Control and Prevention (CDC) because the CDC guidance does not represent “accepted national standards.”  Petitioner does not identify the standards it considers acceptable. 

Petitioner, The Springs Healthcare and Rehabilitation, is a long-term-care facility, located in Cedar Park, Texas, that participates in the Medicare program.  Based on a survey, completed on January 4, 2021, CMS determined that the facility was not in substantial compliance with Medicare program requirements and that its failure to meet requirements for infection control posed immediate jeopardy to resident health and safety.  CMS imposed civil money penalties (CMPs) of $12,730 per day for seven days of immediate jeopardy and $330 per day for 29 days of substantial noncompliance that did not pose immediate jeopardy. 

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Petitioner appealed and CMS has moved for summary judgment. 

For the reasons set forth below, I grant CMS’s motion.  Petitioner has not come forward with evidence showing that a factual dispute exists.  Instead, it characterizes legal conclusions and arguments as “material facts” in dispute.  

Based on the undisputed facts, I find that, from December 28, 2020, through February 1, 2021, the facility was not in substantial compliance with Medicare program requirements, and, from December 28, 2020, through January 3, 2021, its substantial noncompliance posed immediate jeopardy to resident health and safety.  I also find that the penalties imposed are reasonable.  

I.  Background

The Social Security Act (Act) sets forth requirements for nursing facilities to participate 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 conduct periodic surveys to determine whether skilled nursing facilities 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.  Facilities must be surveyed more often, if necessary, to ensure that identified deficiencies are corrected.  Act § 1819(g)(2)(A); 42 C.F.R. §§ 488.20(a), 488.308.  The state agency must also investigate all complaints.  Act § 1819(g)(4). 

Pursuant to section 1135(b) of the Act, CMS prioritized infection control surveys, creating a survey tool that focused on infection control, and, specifically, on critical elements associated with the transmission of COVID-19.  Facilities were expected to comply with the CMS guidance in effect at the time of the survey. 

In this case, someone complained that her mother, a facility resident who tested negative for COVID-19, was sharing a room with an unrelated resident who was COVID-19 positive.  In response, on December 28, 2020, surveyors from the Texas Health and Human Services Commission (state agency) began a COVID-19 focused infection control survey, which they completed on January 4, 2021.  CMS Ex. 12.  Based on the survey findings, CMS determined that the facility was not in substantial compliance with: 

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• 42 C.F.R. § 483.80(a)(1)(2)(4)(e)(f) (Tag F880) (infection control – prevention and control program) 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. § 483.12(a)(1) (Tag F603) (freedom from abuse, neglect, and exploitation – prohibition against verbal, mental, sexual, or physical abuse, corporal punishment, or involuntary seclusion) 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. 

Thereafter, CMS determined that the facility returned to substantial compliance on February 2, 2021.  CMS Ex. 1 at 1.  

Based on the deficiencies cited, CMS has imposed against the facility penalties of $12,730 per day for seven days of substantial noncompliance that posed immediate jeopardy to resident health and safety (December 28, 2020, through January 3, 2021), and $330 per day for 29 days of substantial noncompliance that did not pose immediate jeopardy (January 4 through February 1, 2021).  (Total:  $89,110 + $9,570 = $98,680).  CMS Ex. 1 at 2.  

Petitioner appealed.  CMS submitted a pre-hearing brief (CMS Br.) with 15 exhibits (CMS Exs. 1-15).  Petitioner submitted a pre-hearing brief and an amended pre-hearing brief (which added references to exhibits and page numbers that were missing from the initial submission) (P. Br.) and 17 exhibits (P. Exs. 1-17).  CMS subsequently filed a motion for summary judgment (CMS MSJ), and Petitioner filed a response (P. Response).  

Each party objects to my admitting various exhibits proffered by the other.  In deciding a case on summary judgment, I must consider all proffered evidence to determine whether any of it creates a material fact in dispute.  However, I need not rule on the parties’ objections to exhibits.  Lilia Gorovits, M.D., P.C., DAB No. 2985 at 3 n.4 (2020), aff’d, Gorovits v. Becerra, No. 20-1850, 2021 WL 1962903 (E.D. Pa. May 17, 2021). 

II.  Issues

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

On the merits, the issues are: 

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• From December 28, 2020, through February 1, 2021, was the facility in substantial compliance with Medicare program requirements, specifically, 42 C.F.R. §§ 483.80(a) and 483.12(a);

• If, from December 28, 2020, through January 3, 2021, the facility was not in substantial noncompliance with section 483.80(a), did those deficiencies then pose immediate jeopardy to resident health and safety; and

• If the facility was not in substantial compliance, were the penalties imposed –$12,730 per day for seven days of immediate jeopardy and $330 per day for 29 days of substantial noncompliance that did not pose immediate jeopardy – reasonable? 

III.  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 & 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 element essential to [that party’s] case, and on which [that party] will bear the burden of proof at trial.”  Livingston Care Ctr. v. U.S. Dep’t of Health & Human Servs.,388 F.3d 168, 173 (6th Cir. 2004) (quoting Celotex, 477 U.S. at 322).  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); see also Vandalia Park,DAB No. 1939 (2004); Lebanon Nursing & Rehab. Ctr., DAB No. 1918 (2004).  The non-moving party may not simply rely on denials but must furnish admissible evidence of a dispute concerning a material fact.  Ill. Knights Templar, DAB No. 2274 at 4; 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.”  W. Tex. LTC Partners, Inc., DAB No. 2652 at 6 (2015), aff’d, W. Tex. 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, 475 U.S. at 587). 

In examining the evidence for purposes of determining whether summary judgment is appropriate, 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 at 172; Guardian Health Care Ctr.,DAB No. 1943 at 8 (2004); see also

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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.  W. Tex. LTC Partners, Inc., DAB No. 2652 at 6-7 (2015); cf. Guardian, 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 & 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 (ALJ) is empowered to decide a case on summary judgment, without an evidentiary hearing.  Shah v. Azar, 920 F.3d 987, 996 (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); Jewish Home of Eastern Pa., DAB No. 2451 at 4 (2012); Vandalia Park, DAB No. 1939 at 5-6 (2004) (citing Crestview Parke Care Ctr. v. Thompson, 373 F.3d 743, 750 (6th Cir. 2004)).  As the Departmental Appeals Board reminded us in Jewish Home, the requirement for affording an oral hearing is not contravened by summary judgment if there are no genuine issues of material fact.  Jewish Home, DAB No. 2451 at 4; Vandalia Park, DAB No. 1939 at 5-6. 

Here, Petitioner lists as “material facts in dispute” two categories of issues: 

• with which federal, state, or local infection control standards did the facility have to comply; and

• did the facility’s infection control program, the conduct of its staff, and the care and services it provided meet infection control standards.

P. Response at 6.  Petitioner then asks eight additional questions, which are variations on these two and are also legal questions, not assertions of fact.  See P. Response at 6-7.  Disputes over conclusions of law do not preclude summary judgment.  W. Tex. LTC Partners, Inc., DAB No. 2652 at 6-7; Guardian, DAB No. 1943 at 11.¹

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1. CMS is entitled to summary judgment because the undisputed evidence establishes that the facility did not have in place written standards, policies, and procedures describing its plan to prevent the development and transmission of COVID-19; it did not follow accepted national standards nor any other coherent policy for cohorting residents based on COVID-19 status; and facility staff failed to follow CDC guidance and the facility’s own written policy on the use of personal protective equipment (PPE).  These deficiencies put the facility out of substantial compliance with 42 C.F.R. § 483.80(a).²

A.  Program requirements:  Section 1819(d)(3) of the Act mandates that a skilled nursing facility “(A) establish and maintain an infection control program to provide a safe, sanitary, and comfortable environment in which residents reside and to help prevent the development and transmission of disease and infection,” and “(B) be designed, constructed, equipped, and maintained in a manner that protects the health and safety of residents, personnel, and the general public.” 

Consistent with section 1819(d)(3), 42 C.F.R. § 483.80(a)(1)(2)(4)(e)(f) (Tag F880) requires the facility to establish and maintain an infection prevention and control program designed to provide a safe, sanitary, and comfortable environment and to help prevent the development and transmission of communicable diseases and infections. 

The program must include: 

1. a system for preventing, identifying, reporting, investigating, and controlling infections and communicable diseases for all residents, staff, volunteers, visitors, and other individuals providing services under a contractual arrangement based upon the facility assessment conducted according to § 483.70(e) and following accepted national standards;³

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2. written standards, policies, and procedures for the program, which must include: 

1. a system of surveillance designed to identify possible communicable diseases or infections before they can spread to other persons in the facility;
2. when and to whom possible incidents of communicable disease or other infections should be reported;
3. standard and transmission-based precautions to be followed to prevent spread of infections;
4. when and how isolation should be used for a resident, including:

1. the type and duration of the isolation, depending upon the infectious agent or organism involved: and
2. a requirement that the isolation should be the least restrictive possible for the resident under the circumstances.

v. the circumstances under which the facility must prohibit employees with a communicable disease or infected skin lesions from direct contact with residents or their food, if direct contact will transmit the disease; and

vi. the hand hygiene procedures to be followed by staff involved in direct resident contact. 

*  *  *  *  *

4. a system for recording incidents identified under the infection prevention and control program and the corrective actions to be taken by the facility. 

42 C.F.R. § 483.80(a)(1), (2), (4).  The facility must also conduct an annual review of its infection prevention and control program and must update the program, as necessary.  The infection control regulation thus obligates the facility to adopt policies and procedures to minimize the spread of an infection – including COVID.  See Golden Living Ctr. – Superior, DAB No. 2768 at 8 (2017).  Here, with two exceptions, described below, Petitioner’s written infection control policies and procedures are a mystery. 

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Petitioner’s view on the statutory and regulatory requirements.  Pointing out that the regulation does not define “accepted national standards” and does not incorporate CDC guidelines, Petitioner argues that the facility was not bound to follow those guidelines.  Petitioner notes that other federal agencies also provide guidance. Petitioner also complains that the guidelines are “everchanging and conflicting,” so should not be considered “accepted national standards.”  P. Response at 7-8. 

Petitioner’s case is considerably weakened because it hasn’t come forward with an actual written plan.⁴  Nor does Petitioner explain which “accepted national standards” the facility was implementing.  It does not claim that the facility adopted recommendations from any of the agencies it lists and does not explain how any of those other agencies’ guidance conflicts with that given by the CDC (and no evidence suggests any such conflict). 

That the regulation does not prescribe the specific measures a facility must implement was deliberate.  Congress recognized that professional standards change over time, and the regulation gives the facilities flexibility to adapt their policies as needed to ensure quality of care.  Golden Living Ctr. – Superior, DAB No. 2768 at 22-23 (quoting Omni Manor Nursing Home, DAB No. 1920 at 11 (2004)).  The facility must, however, identify and adopt a policy that complies with accepted infection control standards.  Here, CMS alleges that the facility’s policy (such as it was) did not comply with professional standards, and Petitioner has not come forward with evidence that it had an acceptable policy in place.  Instead, the evidence shows that facility staff implemented ad hoc (and largely unsuccessful) measures in response to a growing crisis.  

B.  CDC Guidance.  The CDC is a major operating component of the Department of Health and Human Services and serves as the nation’s public health agency.  Its mission is to protect public health and safety by controlling and preventing diseases, particularly infectious diseases.  See Centers for Disease Control and Prevention, Mission, Role, and Pledge, http://cdc.gov/about/organization/mission.htm (last visited April 4, 2023).  Given its expertise and its dominant national role in controlling infectious disease, CDC guidance effectively defines “accepted national standards.” 

COVID-19 response plan requirements.  In guidance, dated April 2, 2020, April 30, 2020, and November 20, 2020, the CDC reminded nursing homes to ensure that they comply with CMS and CDC infection prevention and control recommendations.  CMS

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Ex. 6 at 1-3; CMS Ex. 8 at 1.  Among its recommendations, the CDC emphasizes the need for advance planning.  It has repeatedly directed facilities to develop a “comprehensive COVID-19 response plan” that includes: 

• rapid identification and management of ill residents;

• considerations for visitors and consultant staff;

• supplies and resources;

• sick leave policies and other occupational health considerations;

• education and training;

• surge capacity for staffing, equipment and supplies, and postmortem care. 

CMS Ex. 7 at 2; see CMS Ex. 8; CMS Ex. 9 at 4-9.  Before the COVID crisis hit the facility, it was supposed to “[h]ave a plan for how roommates, other residents, and [health care personnel] who have been exposed to an individual with COVID-19 [would] be handled.”  CMS Ex. 9 at 7; see CMS Ex. 8 at 1. 

During the COVID pandemic, the CDC also emphasized, repeatedly, the importance of resident cohorting.  CMS Ex. 6 at 2-3; CMS Ex. 8 at 1, 3; CMS Ex. 9 at 7. 

Physically separating and grouping long-term care residents together within the facility based upon their COVID-19 status (COVID-19 confirmed positives; COVID-19 confirmed negatives; and COVID-19 exposed but infection status unknown) is essential to reduce the transmission and spread of COVID-19 in long-term care facilities. 

CMS Ex. 11 at 6-7 (Norman Decl.).⁵  The CDC directed facilities to “[d]etermine the location of the COVID-19 care unit and create a staffing plan before residents with or [health care personnel] with COVID-19 are identified in the facility” in order to “allow time for residents to be relocated to create space for the unit and to identify [staff] to work on th[e] unit.”  CMS Ex. 8 at 1 (emphasis added); CMS Ex. 9 at 7. 

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The guidance also requires that the unit be physically separated from other rooms or units housing residents without confirmed COVID.  Depending on the facility capacity, the COVID-care unit could be a separate floor, wing, or cluster of rooms.  The facility should assign dedicated staff (nurses and nurse aides) to the unit.  To the extent possible, ancillary personnel should not have access to the unit.  CMS Ex. 8 at 1. 

The facility should “ensure” that a resident with new-onset suspected or confirmed COVID-19 is isolated and cared for using all recommended PPE, placing the resident in a single room, if possible, pending the results of COVID testing.  CMS Ex. 8 at 3; CMS Ex. 9 at 7.  The guidance warned that cohorting residents on the same unit based on symptoms alone could result “in inadvertent mixing of infected and non-infected residents,” placing at risk a resident who had a fever due to a non-COVID-19 illness.  CMS Ex. 8 at 3.  If cohorting residents based on symptoms, “care should be taken to ensure infection prevention and control interventions are in place to decrease the risk of cross-contamination.”  Id.  Any resident confirmed to have COVID-19, regardless of symptoms, should be transferred to the COVID-19 care unit.  Id. 

The guidance acknowledges that roommates of COVID-19 positive residents should be considered exposed and potentially infected.  If possible, they should not share rooms with other residents unless they remain asymptomatic and/or have tested negative 14 days after their last exposure (the date their infected roommate was moved to the COVID-19 care unit).  CMS Ex. 8 at 3; CMS Ex. 9 at 7.  If space is not available, “exposed residents” may be permitted to room share with other exposed residents – note, this is not the same as sharing with COVID-confirmed residents.  Id. 

Petitioner erroneously maintains that, in April 2, 2020 guidance, the CDC directed facilities to “group together” COVID-19 positive residents and those with suspected COVID-19 (which, in Petitioner’s view is anyone exposed to the disease).  P. Response at 9 (referring to CMS Ex. 6 at 3).  That is not what the guidance directs.  Consistent with its later instructions (April 30 and November 20, 2020), the guidance directs facilities to “separate . . . residents who have COVID-19 from . . . residents who do not or have an unknown status.”  To achieve this, residents known to be COVID-19 positive and those suspected of having COVID should be separate from residents who are COVID-negative.  CMS Ex. 6 at 3.  It does not follow – and the CDC did not say – that keeping residents who might have COVID away from those that have tested negative means that they should be housed with COVID-positive residents; it means only that they shouldn’t be housed with COVID-negative residents.⁶ 

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PPE requirements.  The CDC directed facilities to place signage at the entrance to the COVID-19 care unit, instructing health care personnel that they “must” wear eye protection and an N95 mask or higher-level respirator at all times while on the unit.  Gowns and gloves should be added when entering resident rooms.  The facility must ensure that health care personnel have been trained on infection prevention measures, including the use of and steps taken to put on and remove PPE properly.  CMS Ex. 6 at 1-3; CMS Ex. 8 at 2; CMS Ex. 9 at 3, 6. 

If COVID-19 cases are widespread within a facility (as occurred here), healthcare personnel should use all recommended PPE facility-wide.  CMS Ex. 8 at 3; CMS Ex. 9 at 9 (recommending “universal use” of all PPE “when even a single case among residents or [health care personnel] is newly identified.”). 

C.  The facility’s deficiencies:  1) No written standards, policies, or procedures describing the facility’s comprehensive COVID-19 response plan.  The facility’s overarching problem seems to be that it lacked comprehensive written standards, policies, and procedures for responding to the COVID-19 crisis, which helps explain its other infection control deficiencies.  This inability to produce a written plan, by itself, should put it out of substantial compliance with section 483.80(a).  

The undisputed evidence establishes that Surveyor Cristie Purple asked the facility’s administrator and its director of nursing (DON) for the facility’s complete COVID-19 emergency response plan.  The DON admitted that the facility did not have a “complete COVID-19 emergency response plan.”  She said that she had reached out to the facility’s Corporate Compliance Director, who sent some policies, but they “were not sufficient for a complete emergency response plan.”  The DON claimed that she had a plan “in her head.”  CMS Ex. 4 at 4 (Purple Decl. ¶ 15); CMS Ex. 7 at 7.  The DON apparently produced a binder identified as a “COVID binder,” but it was not personalized to the facility and did not have any of the required information in it.  CMS Ex. 7 at 7. 

The facility’s DON, Mary Perdue, RN, does not challenge Surveyor Purple’s testimony that, during the survey, she conceded that the facility lacked a written COVID-19 plan.  It is well settled that, when statements are made by the facility’s own employees, and those individuals have not refuted them, they may constitute substantial evidence.  See Beatrice State Developmental Ctr., DAB No. 2311 at 17, 18 (2010) (pointing out that the facility could have but did not present employee testimony that refuted the statements the surveyors claimed they made); Omni Manor Nursing Home, DAB No. 1920 at 11 (2004) (holding that statements of facility employees may be admitted in an administrative proceeding and may constitute substantial evidence). 

In fact, the parties have produced minimal evidence of any written infection-control policies and procedures.  Petitioner has produced just one written policy, titled, “Cleaning and Disinfection of Environmental Surfaces.”  P. Ex. 14.  Adequate cleaning and

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sanitation instructions are, of course, important and require written policies and procedures as part of any infection control program.  But, by itself, this one policy is not sufficient to meet the regulatory requirement for a comprehensive infection control program with “written standards, policies, and procedures.”  42 C.F.R. § 483.80(a)(2). 

The surveyor also reviewed a written, but undated, policy titled “Universal Source Control & PPE.”  A corporate officer told the surveyor that this was the only policy the facility had on PPE, which Petitioner has not denied.  See Beatrice State, DAB No. 2311 at 17, 18; Omni Manor, DAB No. 1920 at 11.  The policy directs “[a]ll facility staff and essential personnel [to] wear appropriate PPE when they are interacting with residents, to the extent to which PPE is available, and in accordance with CDC PPE optimization strategies.”  CMS Ex. 2 at 20. 

The IDR reviewer’s recommendation also mentions a written policy that Petitioner submitted for those proceedings (which occurred more than a year after the survey).  The IDR reviewer’s description aligns loosely with the facility’s response to a December 2020 COVID outbreak (discussed below).  However, the recommendation is suspiciously silent as to when the writing was created.  P. Ex. 1 at 4, 18.  The undisputed evidence establishes that facility staff did not produce it at the time of the survey, and, for reasons that Petitioner has not explained, it was not produced for these proceedings.  CMS Ex. 4 at 4 (Purple Dec. ¶ 15); CMS Ex. 7 at 7. 

Nevertheless, DON Perdue characterizes as “incorrect” the assertion that the facility did not have a COVID-19 emergency response plan and alludes generally to the facility’s “establishing a COVID isolation unit and staffing plan.”  P. Ex. 2 at 2 (Perdue Decl. ¶ 3); P. Ex. 2 at 5 (Perdue Decl. ¶ 17).  (I discuss below the facility’s inadequate response and Petitioner’s current denial of the DON’s assertion).  This conclusory statement is without foundation, and thus does not preclude my entering summary judgment.  DON Perdue doesn’t produce a written plan or any other concrete evidence but relies on 1) earlier (2020) surveys in which, she claims, the facility’s “policies and procedures related to COVID” were reviewed, with no infection control deficiency cited;⁷ and 2) the IDR recommendation.  P. Ex. 2 at 2 (Perdue Decl. ¶ 5); P. Ex. 2 at 5 (Perdue Decl. ¶ 17). 

I am not bound by the state’s purported findings during earlier surveys, particularly surveys that don’t seem to have been reviewed by CMS (see CMS Ex. 13); those survey findings are not before me, and Petitioner points to no evidence underlying their purported conclusions.  As for the IDR recommendation, an IDR “reviewer’s opinion is just that.”  Unless CMS accepts it, “it is inconsequential that an [IDR] reviewer expressed an opinion favorable to [the facility].”  The ALJ reviews, de novo, and determines

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whether the facility was in substantial compliance with the applicable regulations.  Kindred Transitional Care & Rehab., DAB No. 2792 at 21-22 (2017).  

Remarkably, Petitioner claims that CMS accepted the reviewer’s recommendations and now “does not allege in the [statement of deficiencies] that Petitioner did not have an infection prevention and control program or policy or that it was in any way non-compliant with the requirements of 42 C.F.R. § 483.80(a)(1), (2) and (4).”  P. Response at 8.  This claim is verifiably not so.  CMS may have altered some of its findings based on the IDR reviewer’s recommendations (the original statement of deficiencies is not in the record), but it did not agree that the facility had in place an adequate infection prevention and control program.  The revised statement of deficiencies maintains: 

Based on observation, interview[,] and record review, the facility failed to establish and maintain an infection prevention and control program designed to provide a safe and sanitary environment and to help prevent the development and transmission of communicable diseases and infections for 100 of 100 residents. 

CMS Ex. 2 at 6; see CMS Ex. 2 at 4-5 (citing 42 C.F.R. § 483.80(a)(1), (2), (4)) (emphasis added). 

2)  No coherent policy and inadequate plans and practices for cohorting infected residents.  Petitioner effectively concedes that the facility had no plan for cohorting infected residents.  It criticizes DON Perdue for telling the surveyor that the facility’s “infection control and prevention plan included ‘establishing a COVID isolation unit,’ which it had done during a prior outbreak.”  Petitioner maintains that DON Perdue’s statement does not establish that the facility had any such plan in place as of December 2020.  According to Petitioner, “testimony regarding the facility’s practices does not establish an official policy upon which a regulatory violation, or summary judgment, can be based.”  Petitioner declares, “Neither CMS’ nor Petitioner’s exhibits include a policy on this topic.”  I agree that no one has produced the required policy, but this does not help Petitioner’s case.  P. Response at 12. 

In fact, the absence of an “official policy” does create a regulatory violation since sections 483.80(a)(1) and (2) require it.  P. Response at 12.  And Petitioner’s failing to come forward with evidence that the facility had such an “official policy” in place (in fact, argues that it did not) means that summary judgment is appropriate.  The undisputed evidence shows that, contrary to CDC guidance, the facility had no response in place until after multiple residents had tested positive for COVID – even then, the response was not in writing.  Not surprisingly, its ad hoc (and unsuccessful) response fell short of accepted national standards for cohorting facility residents.  

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The facility has 120 beds, and, in December 2020, its census was 107.  P. Ex. 2 at 3 (Purdue Decl. ¶ 8).  After its housekeeping supervisor tested positive for COVID, the facility tested residents living on halls 500 and 600, where the housekeeping supervisor had worked the previous week.⁸  When residents tested positive, the facility decided to cohort those infected.  P. Ex. 2 at 3 (Purdue Decl. ¶ 8).  But its plan was too little and too late. 

On December 22, 2020, 11 residents had tested positive for COVID.  CMS Ex. 2 at 7; P. Ex. 2 at 3 (Purdue Decl. ¶ 8).  The facility established the 200 hall as the “hot zone” and moved the COVID positive residents there.  P. Ex. 2 at 3 (Purdue Decl. ¶ 8).⁹  The 200 hall was small, just 14 beds, and, predictably, given the facility size and the speed at which COVID was known to spread, the hot zone filled up rapidly.  CMS Ex. 5 at 5.  DON Perdue concedes that the facility “needed a larger hot zone space the same day the unit was created.”  P. Ex. 2 at 4 (Purdue Decl. ¶ 16) (emphasis added). 

As the numbers of infected residents grew, the facility had no backup plan.  By December 28, 2020, approximately 78 residents had tested positive,¹⁰ and the facility designated the 400, 500, and 600 halls as hot zones.  CMS Ex. 2 at 11-13; P. Ex. 2 at 3 (Purdue Decl. ¶ 11).  However, contrary to the CDC’s instructions, the facility left the COVID-negative residents in place among the infected residents.  CMS Ex. 5 at 6.  Essentially, anyone exposed to COVID – even those testing negative – would remain with the infected.  In some cases, COVID-negative and COVID-positive residents shared rooms.  For example, a December 27, 2020 resident roster showed that: 

• The 400 hall housed 13 residents who were COVID-positive and 10 residents who were COVID-negative; a COVID-positive resident (Resident 37) shared a room (411) with a COVID-negative resident (Resident 36).  CMS Ex. 2 at 8-9; see CMS Ex. 11 at 4 (Norman Decl.). 

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• Of 31 residents living on the 500 hall, 20 were COVID-positive and 11 were COVID-negative.  In five of those rooms, a COVID-positive resident shared with a COVID-negative one.  CMS Ex. 2 at 9-10; see CMS Ex. 11 at 4 (Norman Decl.). 

• Of 32 residents on the 600 hall, 23 were COVID-positive and nine were COVID-negative.  CMS Ex. 2 at 10-11; see CMS Ex. 11 at 4-5 (Norman Decl.). 

Surveyor Purple observed these residents in their rooms.  They were not wearing face masks; the only room dividers were curtains; and most of the curtains were pulled halfway to the middle of the resident’s bed.  CMS Ex. 2 at 10. 

Petitioner claims that, even though the residents had tested negative, they weren’t really COVID-19 negative.  Petitioner reasons, fatalistically, that moving the COVID-negative residents out of the hot zones was pointless because the noninfected roommate would eventually test positive as well.  Of course, it was possible that the infected resident’s roommate was also infected, notwithstanding the negative test results, but it was by no means certain.  Moreover, leaving someone who has tested negative closely confined with someone who is COVID-positive all but guarantees that the uninfected resident will become infected, which is what happened here.  This does not comport with accepted national standards, which declare that residents suspected of having COVID “should not . . . be moved to the COVID-19 care unit unless they are confirmed to have COVID-19 by testing.” CMS Ex. 9 at 7 (emphasis added); see CMS Ex. 8 at 3. 

Petitioner also claims that it was not possible to isolate the COVID-positive residents.  CMS disputes that claim, but, even if it were true, the facility should have developed a coherent and workable plan to protect residents and staff well before its residents were testing positive.¹¹  Moreover, when the outbreak began, at a minimum, it should have separated COVID-positive residents from its most vulnerable, those with multiple risk factors for bad outcomes should they contract the disease. 

3) Staff misuse of PPE.  The Departmental Appeals Board has repeatedly explained that a facility’s policy for implementing a regulatory requirement reflects the facility’s own

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judgment about how best to achieve substantial compliance.  Failing to comply with its own policies “can support a finding that the facility did not achieve compliance with the regulatory standard.”  Bivins Mem’l Nursing Home, DAB No. 2771 at 9 (2017); see Bridge at Rockwood, DAB No. 2954 at 19 (2019) (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. of Bardstown, DAB No. 2233 at 21-22 (2009) (finding that a facility’s failing to comply with its own policies can constitute a deficiency). 

Here, as noted above, the facility’s PPE policy incorporated CDC guidance.  It directed “[a]ll facility staff and essential personnel [to] wear appropriate PPE when they are interacting with residents, to the extent to which PPE is available, and in accordance with CDC PPE optimization strategies.”  CMS Ex. 2 at 20 (emphasis added).  

Under CDC guidelines, residents with known or suspected COVID-19 should be cared for “using all recommended PPE, which includes use of an N95 or higher-level respirator . . . eye protection . . . gloves, and gown.  Cloth face coverings are not considered PPE and should not be worn when PPE is indicated.”  CMS Ex. 9 at 9 (emphasis in original). 

Staff entering a COVID-19 care unit “must wear eye protection and an N95 or higher-level respirator . . . at all times while on the unit.  Gowns and gloves should be added when entering resident rooms.”  CMS Ex. 8 at 2.  CDC guidelines also direct facilities to ensure that healthcare personnel are trained on infection control measures, including the use of and steps to take in putting on and taking off PPE.  Id. 

Because the facility housed so many COVID-positive residents, it was vitally important that staff adhere to those guidelines and to use all recommended PPE facility-wide.  CMS Ex. 8 at 3; CMS Ex. 9 at 9.  Yet, staff were not following PPE guidelines.¹² Surveyor Purple observed the following infractions: 

• Housekeeper A was cleaning rooms on the 300 hall.  He wore a face mask with a “big gap” between the top of the mask and the bridge of his nose.  He said that he

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did not know that the mask was supposed to be airtight.  CMS Ex. 2 at 19; CMS Ex. 12 at 5; see CMS Ex. 9 at 9 (recommending universal use of PPE on an affected unit or facility-wide when even a single case among residents or health care personnel is identified in the facility). 

• The 300 hall was designated as a “warm zone,” and it housed recently-admitted hospital patients who were in their 14-day quarantine period.  CMS Ex. 5 at 6. 

• Nurse Aide A was in the “warm zone” wearing a visor and surgical masks instead of an N95 mask.  The nurse aide subsequently admitted that she should have been wearing the N95, but there were none at the front door screening area, and she did not know where to get one.  A few minutes later, a nurse, identified as RN A, handed the nurse aide the N95 mask.  CMS Ex. 2 at 19; CMS Ex. 12 at 5. 

• A group was clustered around the nurses’ station in the “warm zone,” not socially distanced.  Among them:  RN C was not wearing the required visor or gloves; RN A wore no visor; Nurse Aide C wore no visor.  Resident 3 (negative status) was not wearing a mask.  RN C acknowledged that he should have been wearing a mask and gloves but explained that he had just started his shift and hadn’t yet put them on.  CMS Ex. 2 at 20; CMS Ex. 12 at 5. 

• In the 200 hall (warm zone), Housekeeper B was not wearing a gown.  She removed her visor and mask, complaining that it was too hot to wear them.  She subsequently acknowledged that she had been instructed to wear her mask and visor at all times, but it was too hot, and she needed a break.  CMS Ex. 2 at 20; CMS Ex. 12 at 6. 

Petitioner has come forward with no evidence indicating a dispute over these infractions.¹³

Instead, Petitioner characterizes these instances of staff not appropriately wearing PPE as “limited” and argues that the noncompliance presented no risk for more than minimal harm.  P. Response at 13-14.  I do not consider these infractions “minimal.”  Any one of them could have spread the disease.  As the CDC emphasizes, “nursing home populations are at high risk of being affected by respiratory pathogens like COVID-19.”  A strong

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infection prevention and control program “is critical to protect both residents and healthcare personnel.”  CMS Ex. 9 at 1. 

Indeed, the facility’s own experience underscores the need for strict adherence to PPE guidance.  Its devastating December 2020 outbreak can be traced to the actions of one person, a housekeeping supervisor, who did not know that he was infected.  P. Ex. 2 at 2 (Perdue Decl. ¶ 6).  Although he purportedly wore a mask, residents in halls 500 and 600, where he worked, were infected, ultimately leading to a facility-wide outbreak.  P. Ex. 2 at 2 (Perdue Decl. ¶ 6).  It is impossible to minimize how vital it is that staff meticulously adhere to PPE guidelines. 

That staff were not consistently and meticulously following the CDC’s PPE guidelines, and, thus, the facility’s own policy put the facility out of substantial compliance with section 483.80(a). 

2. CMS is entitled to summary judgment that the facility was not in substantial compliance with 42 C.F.R. § 483.12 because the undisputed evidence establishes that, against a resident’s will, a nurse aide physically confined that resident to her room.

Program requirement:  42 C.F.R. § 483.12 (tag F603).  A facility resident has the right to be free from abuse, neglect, and exploitation.  This includes the right to be free from involuntary seclusion.  42 C.F.R. § 483.12.  The facility must not use involuntary seclusion, and it must ensure that the resident is free from physical restraints that are not required to treat medical symptoms.  42 C.F.R. § 483.12(a)(1), (2). 

The facility had in place a policy on physical restraints.  According to the policy, the facility “is committed to reducing unnecessary physical restraints and ensuring that residents are free of physical restraints unless deemed necessary and appropriate as permitted by regulation.”  CMS Ex. 10 at 1; CMS Ex. 2 at 4  

On December 29, 2020, Surveyor Purple observed Nurse Aide C wheel Resident 1 into the resident’s room, even though the resident was objecting.  The nurse aide put the resident in her room and shut the door, as the resident attempted to leave.  To prevent the resident from leaving, the nurse aide put her back to the door and gripped the door lever.  The resident subsequently complained that staff prevented her from leaving her room several times per night.  She said that she “hated being in her room alone.”  The nurse aide agreed that she “had to hold the resident’s door knob several times a night to keep the resident in her room.”  CMS Ex. 2 at 3; CMS Ex. 4 at 5 (Purple Decl. ¶¶ 18, 19); CMS Ex. 12 at 5. 

Petitioner has neither disputed these facts, nor argued that the facility was in substantial compliance with section 483.12.  See P. Br. at 18; P. Response.  

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3. The undisputed evidence establishes that CMS’s determination that the facility’s deficiencies posed immediate jeopardy to resident health and safety is not clearly erroneous.

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).  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.”  Barbourville Nursing Home, DAB No. 1962 at 11 (2005) (quoting Florence Park Care Ctr., DAB No. 1931 at 27-28 (2004)); Daughters of Miriam Ctr., DAB No. 2067 at 7, 9 (2007). 

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 (2006), aff’d, Liberty Commons Nursing & Rehab Ctr. – Johnston v. Leavitt, 241 F. App’x 76 (4th Cir. 2007)).  The harm or threatened harm is presumed to be serious, and the facility has the burden of establishing that the harm or threatened harm “did not meet any reasonable definition of ‘serious.’”  Maysville Nursing & Rehab., DAB No. 2874 at 21 (2018) (quoting Libertywood Nursing Ctr., DAB No. 2433 at 18 (2011), aff’d, Libertywood Nursing Ctr. v. Sebelius, 512 F. App’x 285 (4th Cir. 2013)). 

I need not find that the facility’s noncompliance caused actual harm or injury to a resident.  So long as the deficiencies are likely to cause serious injury or harm, they pose immediate jeopardy. 

Pointing to the unsupported opinions of its DON and its physician witness, Petitioner argues that the CDC guidelines were neither tested nor proven effective in a nursing home environment and, in any event, by leaving COVID-negative residents confined with COVID-positive residents, the facility complied with the CDC guidelines.  P. Response at 16 (citing P. Exs. 2, 5).  As explained above, those assertions are plainly wrong.  In fact, leaving a resident who tested negative for COVID-19 in close proximity to someone who is COVID-19 positive will almost certainly cause that COVID-negative resident serious harm. 

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Because the facility’s deficiencies were likely to cause serious harm, CMS’s determination that those deficiencies posed immediate jeopardy to resident health and safety is not clearly erroneous.  As my colleague pointed out in a similar case:  

COVID is a highly infectious respiratory virus that can spread like wildfire once introduced to a vulnerable population in an enclosed space.  It has infected tens of millions of Americans and caused hundreds of thousands of deaths.  It is a particularly deadly disease among elderly individuals and especially the elderly who are already sick and weakened from other issues.  Covid has wreaked havoc in this country’s skilled nursing facilities.  About one-third of all COVID deaths have been nursing facility residents. . . .  Scrupulous compliance is literally a life and death matter for residents[,] and the regulation does not allow for the lax application of its requirements. 

Crouse Cmty. Ctr., DAB CR6028 at 3 (2022) (internal citation omitted). 

4. The penalties imposed – $12,730 per day for the period of immediate jeopardy and $330 per day for the period of substantial noncompliance that did not pose immediate jeopardy – are reasonable.

To determine whether a civil money penalty 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) 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 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.  

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 section 488.438(f) 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.  Barn Hill Care Ctr., DAB No. 1848 at 21 (2002); Cmty. Nursing Home, DAB No. 1807 at 22 et seq. (2002); Emerald Oaks, DAB No. 1800 at 9 (2001); CarePlex of Silver Spring, DAB No. 1638 at 8 (1999). 

I determine whether a penalty is reasonable based on the per-day penalty, not the total accrued penalty.  Crawford Healthcare & Rehab., DAB No. 2738 at 20 (2016). 

Penalties are inflation-adjusted and change annually.  The amount is determined as of the date the penalty is assessed, in this case, March 22, 2021.  CMS Ex. 1; 85 Fed. Reg.

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2869, 2880 (Jan. 17, 2020).  Here, CMS imposed a penalty of $12,730 per day for the seven days of immediate jeopardy, which is in the low to mid penalty range for situations of immediate jeopardy ($6,808 to $22,320).  CMS also imposed a penalty of $330 per day for the period of substantial noncompliance that did not pose immediate jeopardy, which is at the very low end of the range ($112 to $6,695).  42 C.F.R. §§ 488.408(e), 488.438; 45 C.F.R. § 102.3; 85 Fed. Reg. 2869, 2880 (Jan. 17, 2020). 

Considering the relevant factors, these amounts are reasonable. 

The facility has a less-than stellar compliance history, particularly with respect to infection control requirements.  For the recertification surveys completed on January 9, 2019, and December 11, 2019, the facility was not in substantial compliance with section 483.80(a) at scope and severity levels D and E (pattern of substantial noncompliance that causes no actual harm with the potential for more than minimal harm), showing that its level of noncompliance with the regulation increased.  CMS Ex. 13 at 1. 

Nor was the facility substantially compliant with other program requirements.  In surveys completed December 29, 2016, January 25, 2017, January 25, 2018, and May 22, 2018, the facility was not in substantial compliance with additional program requirements, its deficiencies cited at scope and severity levels D through F (widespread substantial noncompliance that causes no actual harm with the potential for more than minimal harm).  CMS Ex. 13.  By itself, the facility’s history justifies the penalties imposed. 

Petitioner does not deny this history but asserts that “no evidence” establishes that CMS considered it in setting the penalty amounts.  P. Response at 16.  My review is de novo, and, regardless of what CMS may have considered, I am required to apply the factors listed in 42 C.F.R. § 488.438(f), which includes the facility’s history. 

Petitioner also points to alleged findings of substantial compliance with surveys completed between March and December 2020.  P. Response at 16.  These surveys are not listed in the AEM Nursing Home Enforcement History (Automated Survey Process Environment Enforcement Manager), which lists the results of surveys conducted from June 4, 2016, through June 4, 2021.  CMS Ex. 13.  Petitioner has provided no details as to the types of surveys nor their specific findings. 

Petitioner does not claim that it is unable to pay the penalty.  

With respect to the remaining factors, Petitioner asserts that “[t]here is no evidence that CMS considered the reasoning and careful deliberations undertaken by [Petitioner] when making decisions, particularly about cohorting, during the COVID outbreak.”  P. Response at 17.  Again, what CMS considered is irrelevant.  I look at the evidence with fresh eyes and, based on the relevant factors, determine whether the penalty amounts are

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reasonable.  I have discussed in detail the facility’s infection control deficiencies and the real danger they posed to vulnerable residents, for which the facility is culpable. 

Finally, with respect to the section 483.12 deficiency, the undisputed evidence establishes the noncompliance.  The nurse aide who confined the resident to her room was not aware that her actions were improper, for which the facility is also culpable. 

IV.  Conclusion

The undisputed evidence establishes that, from December 28, 2020, through February 1, 2021, the facility was not in substantial compliance with Medicare program requirements, and, from December 28, 2020 through January 3, 2021, its infection control deficiencies posed immediate jeopardy to resident health and safety.  Based on the undisputed evidence, the penalties imposed are reasonable. 

I therefore grant CMS’s motion for summary judgment. 

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Endnotes

¹  Deciding a case on summary judgment does not mean that it is decided without a hearing.  In reviewing administrative appeals decided on summary judgment, courts describe the case as having been decided without an “oral hearing” or without an “evidentiary hearing.”  They recognize that, by considering the evidence and applying the law, the ALJ has granted the petitioner a hearing.  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.”).  Thus, granting summary judgment (or deciding a case on the written record) satisfies the hearing requirements of sections 205(b) and 1866(h) of the Act. 

²    My findings of fact/conclusions of law are set forth, in italics and bold, in the discussion captions of this decision. 

³   Section 483.70(e) mandates that the facility conduct and document a facility-wide assessment to determine what resources are necessary to care for its residents competently during both day-to-day operations and emergencies. 

⁴  As discussed below, the Independent Dispute Resolution (IDR) reviewer’s recommendation alludes to a written policy, titled “Facility Response Policy and Procedure.”  This allusion raises more questions than it answers and does not establish that such a writing existed at the time of the survey.  P. Ex. 1 at 4, 18; see P. Response at 12 (admitting that the parties’ exhibits include no policy or procedure for cohorting residents) (discussed below).  

⁵   “Cohorting” refers to grouping individuals with the same condition in the same location (room, wing, building).  For COVID purposes, this means keeping residents who are COVID-positive or suspected of having COVID in the same space (wing, floor, etc.), separate from those who are COVID-negative or haven’t been exposed to COVID.  See CMS Ex. 6 at 3; CMS Ex. 8 at 1-2; CMS Ex. 9 at 7; CMS Ex. 11 at 3-4 (Norman Decl.). 

⁶  In any event, as the undisputed evidence establishes, the facility here kept residents who had tested negative housed with residents known to be COVID-positive, on the theory that the negative residents would eventually test positive.  See discussion below. 

⁷  She does not mention surveys completed on January 9, 2019, and December 11, 2019, which found the facility out of substantial compliance with the infection control regulation.  CMS Ex. 13 at 1. 

⁸   Petitioner concedes that the supervisor had some symptoms compatible with COVID (“minor nasal congestion”), but, according to DON Perdue, he attributed them to “seasonal allergies” and continued working.  P. Ex. 2 at 2 (Perdue Decl. ¶ 6). 

⁹   “Hot zones” house only COVID-19 positive residents, and “cold zones” house only COVID-19 negative residents.  “Warm zones” house residents who present a clinical picture compatible with COVID-19, or who are awaiting COVID-19 test results.  See CMS Ex. 4 at 2, 4 (Purple Decl. ¶¶ 7, 14). 

¹⁰  It is hard to pin down the exact numbers, which were constantly changing.  The Administrator and the DON told the surveyor that the facility had 58 COVID-positive residents.  The facility’s records indicated that, on December 22, 2020, 11 residents were COVID-positive.  Less than a week later (December 28, 2020), 78 to 80 (depending on the roster) residents were COVID-positive.  In any event, the records show that COVID spread through the facility at an alarming rate.  CMS Ex. 2 at 7, 11.  

¹¹  In fact, although not material, this turned out not to be true.  The surveyor identified eight double-occupancy rooms with 16 available beds that were not being used.  In addition, private rooms could have been made double occupancy for purposes of cohorting.  Ultimately, the facility relocated the remaining eight negative residents to the “warm” side of the building.  CMS Ex. 2 at 24; CMS Ex. 11 at 5-6 (Norman Decl.); P. Ex. 2 at 4 (Purdue Decl. ¶ 15). 

¹²   That the surveyor observed any unsafe infection-control practices suggests that the facility had significant problems.  The surveyor was in the facility for a limited time; staff knew that she was observing and assessing facility compliance with the CDC’s infection control guidelines.  Presumably, staff would have wanted to make the best possible impression.  That the surveyor observed any infractions would indicate that staff did not understand what was required of them or decided to disregard those instructions.  Here, one staff member professed ignorance; others admitted that they knew the requirements but opted not to follow them. 

¹³  Petitioner points out that CMS “originally alleged” multiple instances in which staff members misused PPE and that, for summary judgment purposes, it limited itself to five instances.  In Petitioner’s view, CMS limited itself to five instances “likely because most of CMS’s original allegations can be disproven or are not supported by evidence.”  P. Response at 13.  In fact, CMS limited itself to those instances for which Petitioner presented no evidence establishing a dispute of fact.  If this case were not resolved on summary judgment, I would weigh the conflicting evidence.