Boulevard Manor, LLC, DAB CR6349 (2023)

DECISION

Following surveys by the Michigan Department of Licensing and Regulatory Affairs (state agency), the Centers for Medicare & Medicaid Services (CMS) determined that Boulevard Manor, LLC (Petitioner or the facility) was not in substantial compliance with numerous Medicare program participation requirements.  Based on these findings, CMS determined that Petitioner remained out of substantial compliance for six months and terminated Petitioner’s Medicare provider agreement effective January 19, 2022.  Petitioner requested a hearing to challenge the termination.  For the reasons explained below, I find that Petitioner was out of compliance with Medicare participation requirements for six months and did not return to substantial compliance before the termination date.  Accordingly, CMS was required to terminate Petitioner’s Medicare provider agreement.  Additionally, a discretionary denial of payment for new admissions (DDPNA) from September 12, 2021 through January 18, 2022, is reasonable.

I.    Background and Procedural History

Petitioner is a skilled nursing facility (SNF) located in Detroit, Michigan.  See CMS Exhibit (Ex.) 1 at 1.  The state agency completed an abbreviated (complaint) survey of

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the facility on June 17, 2021.  Id.  Following the June 17, 2021 survey, the state agency notified Petitioner that it was imposing a DDPNA effective July 15, 2021, and recommended that CMS terminate Petitioner’s Medicare participation on December 17, 2021, if Petitioner did not return to substantial compliance by that date.  Id. at 2.  The state agency completed another complaint survey on July 19, 2021, and complaint and Life and Safety Code (LSC) surveys on September 27, 2021, finding the following deficiencies:

July 19, 2021

• 42 C.F.R. § 483.25(b)(1)(i), (ii) (Tag F686) – Treatment/Svcs to Prevent/Heal Pressure Ulcer, Scope and Severity Level (S/S) D ¹
• 42 C.F.R. § 483.80(a)(1), (2), (4), (e), (f) (Tag F880) – Infection Prevention & Control, S/S E
• 42 C.F.R. § 483.90(i) (Tag F921) – Safe/Functional/Sanitary/Comfortable Environment, S/S E

September 27, 2021

• 42 C.F.R. § 483.20(f)(5), 483.70(i)(1)-(5) (Tag F842) – Resident Records ‒ Identifiable Information, S/S D
• 42 C.F.R. § 483.90(i) (Tag F921) – Safe/Functional/Sanitary/Comfortable Environment, S/S F
• National Fire Protection Association (NFPA) 101 (Tag K511) – Utilities – Gas and Electric, S/S D
• NFPA 101 (Tag K918) – Electrical Systems – Essential Electric System, S/S F

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CMS Exs. 10, 28, 29.  The state agency continued the DDPNA after the July 19 and September 27 surveys.  CMS Ex. 2 at 2; CMS Ex. 3 at 2.  During a revisit survey on October 26, 2021, the state agency determined Petitioner had corrected the deficiencies cited in the September 27 LSC survey.  CMS Ex. 5 at 1.

By letter dated December 2, 2021, CMS adopted the state agency’s findings, imposed a $1,615 per-day CMP beginning May 22, 2021, and notified Petitioner that it would terminate Petitioner’s participation on December 17, 2021, if Petitioner did not return to substantial compliance by that date.  CMS Ex. 4 at 2-4.  The state agency conducted another complaint survey on December 7, 2021, and determined Petitioner was not in substantial compliance with 42 C.F.R. § 483.12(c)(1), (4) (Tag F609) – Reporting of Alleged Violations, S/S D.  CMS Ex. 39.  As a result, the state agency continued the imposition of the DDPNA.  CMS Ex. 5 at 2.  The state agency determined Petitioner corrected the deficiency cited during the December 7 survey as of December 22, 2021.  CMS Ex. 7 at 1.

CMS issued an amended notice letter dated December 21, 2021.  CMS Ex. 6.  The December 21 letter informed Petitioner that CMS modified the effective date of the DDPNA to September 12, 2021 and the termination date to January 19, 2022, because the June 17 survey had been removed from the enforcement cycle.  Id. at 1-2.  Additionally, CMS removed the $1,615 per-day CMP it imposed in the December 2, 2021 letter.  Compare CMS Ex. 4 at 2-3 with CMS Ex. 6 at 2.

The DDPNA and pending termination remained in effect following surveys completed on December 16, 2021, and January 12, 2022.  CMS Ex. 7 at 2; CMS Ex. 8 at 1; CMS Exs. 45-48; CMS Ex. 72.  During those surveys, the state agency found the facility continued to be out of substantial compliance with the following participation requirements:

December 16, 2021

• 42 C.F.R. § 483.10(e)(2) (Tag F557) – Respect, Dignity/Right to Have Personal Property, S/S D
• 42 C.F.R. § 483.10(e)(3) (Tag F558) – Reasonable Accommodations Needs/Preferences, S/S D
• 42 C.F.R. § 483.25(b)(1)(i)(ii) (Tag F686) – Treatment/Svcs to Prevent/Heal Pressure Ulcer, S/S E
• 42 C.F.R. § 483.25(g)(1)-(3) (Tag F692) – Nutrition/Hydration Status Maintenance, S/S D
• 42 C.F.R. § 483.25(i) (Tag F695) – Respiratory/Tracheostomy Care and Suctioning, S/S D
• 42 C.F.R. § 483.80(a)(1), (2), (4), (e), (f) (Tag F880) – Infection Prevention & Control, S/S E
• 42 C.F.R. § 483.90(g)(2) (Tag F919) – Resident Call System, S/S E

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• 42 C.F.R. § 483.90(i) (Tag F921) – Safe/Functional/Sanitary/Comfortable Environment, S/S F
• 42 C.F.R. §§ 483.20(f)(5), 483.70(i)(1)-(5) (Tag F842) – Resident Records – Identifiable Information, S/S D

January 12, 2022

• 42 C.F.R. § 483.21(b)(3)(i) (Tag F658) – Services Provided Meet Professional Standards, S/S E
• 42 C.F.R. § 483.25 (Tag F684) – Quality of Care, S/S D
• 42 C.F.R. § 483.25(e)(1)-(3) (Tag F690) – Bowel/Bladder Incontinence, Catheter, UTI, S/S G
• 42 C.F.R. § 483.40 (Tag F740) – Behavioral Health Services, S/S D
• 42 C.F.R. § 483.80(h)(1)-(6) (Tag F886) – COVID-19 Testing-Residents & Staff, S/S F
• 42 C.F.R. § 483.90(i) (Tag F921) – Safe/Functional/Sanitary/Comfortable Environment, S/S D

CMS Exs. 45-48; CMS Ex. 72.

CMS issued a final disposition of remedies on February 14, 2022, which included a DDPNA effective September 12, 2021 through January 18, 2022, a mandatory six‑month termination effective January 19, 2022, and a nurse aide training and competency evaluation program prohibition for two years from September 12, 2021.  CMS Ex. 9 at 1‑2.

Petitioner timely requested a hearing to challenge the remedies imposed in CMS’s December 2, 2021 notice.  The Civil Remedies Division (CRD) docketed that hearing request as C‑22‑176 and assigned it to me for hearing and decision.  Petitioner also timely requested a hearing to contest CMS’s amended notice dated December 21, 2021.  The CRD docketed Petitioner’s second hearing request as C‑22‑267, and also assigned it to me.  Following a telephone prehearing conference with the parties on February 10, 2022, during which they agreed that the pending cases should be consolidated, I consolidated Docket Nos. C‑22‑176 and C‑22‑267.

During the February 10, 2022 telephone conference, the parties also agreed that should Petitioner request a hearing to challenge an anticipated third notice letter from CMS, it would serve administrative efficiency to consolidate the third hearing request with the two currently pending before me.

On April 11, 2022, Petitioner filed a third hearing request challenging a CMS notice letter dated February 14, 2022.  The April 11, 2022 hearing request was docketed as C‑22‑447 and assigned to me.  Based on Petitioner’s renewed request for consolidation in the April

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11 hearing request and the agreement of the parties during the February 10 prehearing conference, I consolidated Docket Nos. C‑22‑267 and C‑22‑447.

In compliance with my Standing Prehearing Order (Prehearing Order), CMS filed a Motion for Summary Judgment and Prehearing Brief (CMS Br.).  CMS also filed 118 proposed exhibits (CMS Exs. 1-118), including the written direct testimony of eight witnesses.  Petitioner filed a Response to CMS’s Motion for Summary Judgment and Pre‑hearing Brief (P. Br.) and 23 proposed exhibits (P. Ex. A-W).²  While Petitioner did not style its submission as a motion for summary judgment, Petitioner requested summary judgment in its favor.  See, e.g., P. Br. at 9.  Petitioner also proposed two witnesses but did not submit any written direct testimony for the witnesses.  CMS filed a response and reply to Petitioner’s brief and request for summary judgment (CMS Reply).

Petitioner did not object to CMS’s proposed exhibits.  Accordingly, in the absence of objection, I admit CMS Exs. 1-118 into the record.  CMS objected to Petitioner’s exhibits generally because Petitioner did not submit the exhibits as individual PDF files and did not mark, paginate, and label the exhibits in compliance with my Standing Order.  CMS Objection at 1.  While CMS is correct that Petitioner’s exhibits are not in the required form, I overrule CMS’s objection.  Although the PDF file Petitioner submitted is cumbersome, it is possible to identify and cite to the exhibits using the bookmarks and PDF file pagination.  CMS also objected to P. Ex. B (P. Ex. at 2-12), a series of photographs, as unauthenticated and potentially irrelevant.  Id. at 2.  Petitioner represents that the photographs show it completed corrective actions to its physical environment.  See, e.g., P. Br. at 6.  CMS objects that Petitioner has not submitted any witness testimony describing when, where, and by whom the photos were taken and the photos themselves do not contain a date to show when the photos were taken.  CMS Objection at 2.  I overrule CMS’s objection and accept P. Ex. B (P. Ex. at 2-12) as evidence the facility completed some corrective actions.  However, I afford little weight to the exhibit in determining whether Petitioner returned to substantial compliance prior to the termination date.  As CMS points out, Petitioner did not offer any testimony or documentary evidence to authenticate the photos.  Therefore, I admit P. Exs. A-W into the record.

Although Petitioner’s prehearing exchange listed two proposed witnesses, Petitioner did not offer the written direct testimony of those witnesses, as required by Standing Order ¶ 8.  As stated in Standing Order ¶ 10, a hearing is necessary only “if a party files admissible, written direct testimony, and the opposing party requests to cross-examine in accordance with this order.”  Because Petitioner did not submit any written direct

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testimony and did not request to cross-examine witnesses, an in-person hearing to cross-examine witnesses is not necessary and I decide this case based on the written record without considering whether the standards for summary judgment are satisfied.  I deny the parties’ cross-motions for summary judgment as moot.

II.    Issues

The issues in this case are:

1.   Whether Petitioner was in substantial compliance with Medicare participation requirements;
2.   If Petitioner was not in substantial compliance with Medicare participation requirements, whether the DDPNA imposed is reasonable; and,
3.   Whether CMS properly terminated Petitioner’s Medicare provider agreement.

III.    Jurisdiction

I have jurisdiction to hear and decide this case.  Social Security Act (Act) §§ 1128A(c)(2), 1819(h)(2)(B)(ii) (codified at 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).

IV.    Discussion

1. Statutory and Regulatory Framework

The Act sets requirements for SNF participation in the Medicare program.  The Act authorizes the Secretary of Health & Human Services (Secretary) to promulgate regulations implementing those statutory provisions.  Act § 1819 (42 U.S.C. § 1395i-3).  The Secretary’s regulations are found at 42 C.F.R. part 483.

To participate in Medicare, a 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 or safety than the potential for causing minimal harm.”  42 C.F.R. § 488.301.  A deficiency is a violation of a participation requirement established by sections 1819(b), (c), and (d) of the Act (42 U.S.C. § 1395i-3(b), (c), and (d)), or the Secretary’s regulations at 42 C.F.R. pt. 483, subpt. B.  Id.  “Noncompliance” means “any deficiency that causes a facility to not be in substantial compliance.”  42 C.F.R. § 488.301.  Id.

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The Secretary contracts with state agencies to conduct periodic surveys to determine whether SNFs are in substantial compliance with the participation requirements.  Act § 1864(a) (42 U.S.C. § 1395aa(a)); 42 C.F.R. §§ 488.10, 488.20.  The Act and regulations require that facilities be surveyed on average every twelve months, and more often if necessary, to ensure that identified deficiencies are corrected.  Act § 1819(g)(2)(A) (42 U.S.C. § 1395i-3(g)(2)(A)); 42 C.F.R. §§ 488.20(a), 488.308.  When the results of a survey show that a SNF is not in substantial compliance with program participation requirements, the Secretary may impose enforcement remedies such as civil money penalties, a denial of payment for all new admissions, and termination of the provider agreement.  Act § 1819(h)(2) (42 U.S.C. § 1395i-3(h)(2)); 42 C.F.R. §§ 488.406, 488.412(a), 488.417, 488.456.

CMS is authorized to terminate a facility’s provider agreement if the facility is not in substantial compliance with participation requirements, regardless of whether immediate jeopardy is present.  42 C.F.R. § 488.456(b)(1)(i).  Termination is mandatory if a facility does not return to substantial compliance within six months.  Act § 1819(h)(2)(C) (42 U.S.C. § 1395i-3(h)(2)(C)); 42 C.F.R. § 488.412(d).

Termination of a provider agreement is an initial determination subject to review by an administrative law judge.  42 C.F.R. §§ 488.24(c), 498.5(b).  Before the administrative law judge, CMS must establish a prima facie case that it had a basis for termination, then the burden of persuasion shifts to the facility to prove by a preponderance of the evidence that it was in substantial compliance with the statutory and regulatory requirements. Hillman Rehab. Ctr., DAB No. 1611 (1997) (1997 WL 123708 at *9-*10), aff’d sub nom. Hillman Rehab. Ctr. v. U.S. Dep’t of Health & Human Servs., No. Civ. A-98-3789 (GEB), 1999 WL 34813783 (D.N.J. May 13, 1999); Batavia Nursing & Convalescent Ctr., DAB No. 1904 (2004) (2004 WL 230864), aff’d, Batavia Nursing & Convalescent Ctr. v. Thompson, 129 F. App’x 181 (6th Cir. 2005).

2. Findings of Fact, Conclusions of Law, and Analysis³

CMS alleges Petitioner was not in substantial compliance with numerous Medicare participation requirements and did not return to substantial compliance prior to the termination date, January 19, 2022.  CMS Br. at 4, 23-25; CMS Reply at 1.  The record before me amply demonstrates that for at least six months, Petitioner housed its residents in an environment that was neither comfortable nor homelike.  Rather, the facility had broken windows and toilets, dirty and broken floors, and non-working call lights, among numerous other problems.  Although I focus my analysis of Petitioner’s noncompliance on the failure to remediate its physical plant, the record demonstrates that Petitioner’s

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noncompliance was not limited to a poorly maintained building.  In addition, Petitioner’s staff failed to observe infection control procedures and neglected to provide and document needed care and treatment.⁴  Further, the depth and breadth of Petitioner’s noncompliance, which was documented in four surveys conducted from July 2021 through January 2022, raises serious doubts as to whether Petitioner’s administration was capable of attaining and maintaining substantial compliance.

Petitioner does not dispute that it failed to comply substantially with a laundry list of Medicare participation requirements.  Instead, Petitioner contends that it finally managed to correct the deficiencies and return to substantial compliance on January 17, 2022, two days before CMS terminated its Medicare provider agreement.⁵   P. Br. at 6.  To prove that it achieved substantial compliance, Petitioner relies on plans of correction (POCs) it submitted that list a compliance date of January 17, 2022.  Id.  However, the regulations as interpreted in Departmental Appeals Board (DAB) decisions do not generally permit me to accept a facility’s POC as proving substantial compliance absent verification by a revisit survey.  This caution is particularly justified in the present case because Petitioner did not in fact fulfill all the promises made in its POCs.  As I describe in greater detail below, Petitioner’s own documentation shows that it did not complete all repairs and corrections by the termination date.  Therefore, CMS was required to terminate

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Petitioner’s provider agreement.  In the following sections of this decision, I first discuss the legal requirements for proving a return to substantial compliance.  I then explain why Petitioner’s evidence and argument are insufficient to prove that it achieved substantial compliance prior to January 19, 2022.

1. CMS was required to terminate Petitioner’s Medicare provider agreement because Petitioner failed to prove it returned to substantial compliance with Medicare participation requirements before January 19, 2022.

I reiterate:  Petitioner has conceded its facility was out of compliance with Medicare participation requirements.  Petitioner’s only argument is that CMS should have found it returned to substantial compliance as of January 17, 2022.  Petitioner asserts it “submitted substantial evidence in support of its claim of substantial compliance, including photographs of the facility [and] invoices related to repairs involving citations for defects related to the physical plant.” P. Br. at 6. However, Petitioner’s argument that its POCs are sufficient to demonstrate substantial compliance is contradicted by many appellate decisions of the DAB.  Moreover, I find that Petitioner’s evidence fails to establish that it corrected all deficiencies before January 19, 2022.

Contrary to Petitioner’s arguments, a “[POC] indicating a specific date of implementation is not sufficient evidence by itself to establish that the measures in the [POC] had been satisfactorily implemented.”  Ridgecrest Healthcare Ctr., DAB No. 2493 at 15 (2013) (citing Rosewood Care Ctr. of Rockford, DAB No. 2466 at 10-11 (2012)).  To demonstrate a return to substantial compliance, the facility must show that the incidents of noncompliance have ceased and that it has implemented appropriate measures to ensure that similar incidents will not recur.  Libertywood Nursing Ctr., DAB No. 2433 at 15 (2011) (citing Life Care Ctr. of Elizabethton, DAB No. 2367 at 16 (2011)), aff’d, Libertywood Nursing Ctr. v. Sebelius, 512 F. App’x 285 (4th Cir. 2013); accord 42 C.F.R. § 488.456(a) and (e).  Even after CMS or the state agency accepts a POC, a facility is not in substantial compliance until CMS determines, based on a revisit survey or “credible written evidence” that “CMS or the State can verify without an on-site visit,” that the facility returned to substantial compliance.  Oceanside Nursing and Rehab. Ctr., DAB No. 2382 at 20 (2011) (citing 42 C.F.R. § 488.454(a)(1)).  To be found in substantial compliance earlier than the date of the resurvey, the facility must supply documentation “acceptable to CMS” showing that it was in substantial compliance and could remain in substantial compliance on the earlier date.  Hermina Traeye Memorial Nursing Home, DAB No. 1810 (2002) (2002 WL 125185 at *7), aff’d Sea Island Comprehensive Healthcare Corp. v. U.S. Dep`t of Health & Human Servs., 79 F. App’x 563 (4th Cir. 2003).

Further, many DAB decisions hold that once a facility has been found out of substantial compliance, the facility has the burden to show that it has made all necessary corrections

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and has returned to substantial compliance.  Donelson Place Care and Rehab. Ctr., DAB No. 3046 at 43 (2021) (citing Taos Living Ctr., DAB No. 2293 at 19 (2009)).  “The period of noncompliance continues until the facility affirmatively demonstrates a return to substantial compliance.”  Ridgecrest, DAB No. 2493 at 15 (citing Premier Living & Rehab. Ctr., DAB No. 2146 at 23 (2008), Lake City Extended Care, DAB No. 1658 at 12-15 (1998)); see also W. Tex. LTC Partners, Inc., DAB No. 2652 at 18 (2015) (facility “has the substantive burden of proving that it achieved substantial compliance earlier than the date CMS determined.”).  The burden is on the facility to prove that it is back in compliance, not on CMS to prove that deficiencies continued to exist.  Owensboro Place & Rehab. Ctr., DAB No. 2397 at 12-13 (2011).

As I discuss in more detail in the following sections of this decision, Petitioner’s POCs and supporting documentation fail to prove, by a preponderance of the evidence, that the facility returned to substantial compliance prior to January 19, 2022.  Therefore, CMS properly terminated Petitioner’s Medicare provider agreement.

1. From July 19, 2021 through January 19, 2022, Petitioner failed to provide a safe, functional, sanitary, and comfortable environment for residents, staff, and the public; therefore, Petitioner did not achieve substantial compliance with 42 C.F.R. § 483.90(i).

A facility must provide a safe, functional, sanitary, and comfortable environment for residents, staff, and the public.  42 C.F.R. § 483.90(i).  In doing so, a facility must:

(1) Establish procedures to ensure that water is available to essential areas when there is a loss of normal water supply;

(2) Have adequate outside ventilation by means of windows, or mechanical ventilation, or a combination of the two;

(3) Equip corridors with firmly secured handrails on each side; and

(4) Maintain an effective pest control program so that the facility is free of pests and rodents.

(5) Establish policies, in accordance with applicable Federal, State, and local laws and regulations, regarding smoking, smoking areas, and smoking safety that also take into account non-smoking residents.

Id.

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CMS alleges Petitioner was not in substantial compliance with 42 C.F.R. § 483.90(i) beginning with the July 19, 2021 complaint survey and remained out of compliance through January 19, 2022.  CMS Br. at 6-8, 16-17, 23.  During the July 19, 2021 complaint survey, the state agency surveyor observed a toilet seat in a resident’s room (room 163) facing backwards with plastic over the seat.  CMS Ex. 14 at 1; see also CMS Ex. 115 ¶ 11.  The surveyor also noticed a faint odor resembling bowel movement odor.  CMS Ex. 115 ¶ 11.  The current resident of the room, Resident 411, told the surveyor the toilet had been broken for approximately three weeks.  CMS Ex. 14 at 1.  The facility’s maintenance log also showed the “toilet seat [was] off” since July 5, 2021, and did not indicate it had been repaired.  CMS Ex. 23 at 4.  The maintenance log showed numerous other unrepaired issues in resident rooms and throughout the facility dating back to May 2021, including non-functional toilets, lack of running water, broken windows, multiple stopped sinks, broken lights, a bad smell in the shower toilet, broken air conditioners, broken foot boards, unhinged doors, and a loose dresser drawer.  CMS Ex. 23.

CMS determined Petitioner remained out of substantial compliance with 42 C.F.R. § 483.90(i) at the September 27, 2021 survey.  The broken windows had not been repaired.  CMS Ex. 33 at 2; CMS Ex. 35 at 2; CMS Ex. 36 at 4, 9, 10; CMS Ex. 37 at 17; CMS Ex. 113 ¶ 3; CMS Ex. 116 ¶¶ 7, 8.  Additionally, surveyors found:  sticky and peeling paint on handrails (CMS Ex. 37 at 1-2); air conditioning units in resident rooms not securely attached to windows (CMS Ex. 35 at 1; CMS Ex. 36 at 5, 7, 28; CMS Ex. 37 at 4, 8); missing window screens (CMS Ex. 36 at 1‑3, 8, 40, 42; CMS Ex. 37 at 17); vines from outside the building growing inside windows and obscuring the view outside (CMS Ex. 36 at 22-35; CMS Ex. 37 at 6, 7, 9, 10, 13); broken hand sanitizer boxes (CMS Ex. 37 at 14); cracked floor tiles (CMS Ex. 37 at 19, 20); cracked walls (CMS Ex. 37 at 15, 22‑24); lights that were out or hanging from the ceiling (CMS Ex. 37 at 11-12); a hanging exit sign with an exposed electrical cord (CMS Ex. 37 at 16); loose and missing ceiling tiles (CMS Ex. 37 at 27); leaking water creating puddles on the floor and carpet (CMS Ex. 35 at 3, 4); areas with water damage, mold, and debris (CMS Ex. 37 at 25, 28-29, 31); a leaking pipe next to an open electrical box (CMS Ex. 37 at 30); and a detached handrail hanging from a wall (CMS Ex. 35 at 5).  CMS Ex. 112 ¶ 4; CMS Ex. 113 ¶ 3; CMS Ex. 116 ¶¶ 7-10.

Surveyors also found unsafe, nonfunctional, and unsanitary conditions outside the facility.  The exterior was overgrown with weeds and vines growing on the building and there were pieces of broken tree limbs and branches scattered throughout the front and inner courtyard area.  CMS Ex. 112 ¶ 4.  Both courtyards were areas used by residents.  Id.  Additionally, the bench in the resident smoking area was broken and littered with cigarette butts, paper, and old leaves.  Id.

Although the overgrowth of vegetation and weeds was no longer present outside the facility at the December 16, 2021 survey, air conditioning units in resident rooms were

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still not properly secured (CMS Ex. 54 at 2), leaving gaps for insects, rain, and cold air to enter.  CMS Ex. 113 ¶ 6.  The facility still had not repaired the broken windows (CMS Ex. 54 at 1; CMS Ex. 55 at 14, 18), broken toilets (CMS Ex. 55 at 25, 28), cracked or missing floor tiles (CMS Ex. 55 at 2, 39, 41, 47), hanging ceiling panels (CMS Ex. 55 at 4), broken lights (CMS Ex. 55 at 6, 7, 37, 45), chipped walls (CMS Ex. 55 at 15), and areas with water damage (CMS Ex. 55 at 9).  CMS Ex. 53 at 6-7; CMS Exs. 54, 55; CMS Ex. 111 ¶¶ 12, 13; CMS Ex. 113 ¶ 7.  Additionally, surveyors found a sticky substance on the floor outside a resident’s room, which remained sticky even after a housekeeper attempted to clean twice, screws protruding out of the wall over a resident’s bed (CMS Ex. 55 at 21), a hopper in the soiled utility room with fecal particles and a foul odor noticeable in resident areas, and a large sharp iron object with protruding screws in a stairwell (CMS Ex. 55 at 50).  CMS Ex. 111 ¶¶ 12, 13.

Petitioner remained out of compliance with 42 C.F.R. § 483.90(i) at the January 12, 2022 survey.  CMS alleges Petitioner failed to provide a safe environment for residents because it left open the door to a storage room containing three uncovered five-gallon containers of corrosive heavy-duty floor stripper.  CMS Ex. 77 at 5, 7, 10; CMS Ex. 114 ¶ 12.  Although there was a keycode pad on the door, the surveyor observed the door open four times during the survey, including on January 11, 2022.  The surveyor had previously alerted Petitioner’s Corporate Maintenance Director to the issue on January 4.  CMS Ex. 114 ¶ 12.

All the above issues ‒ none of which Petitioner disputes ‒ created an unsafe, uncomfortable, and unhomelike environment for residents, which could cause residents to become depressed and placed residents at risk for more than minimal harm.  CMS Ex. 112 ¶ 4; CMS Ex. 113 ¶¶ 7-10; CMS Ex. 114 ¶ 12; CMS Ex. 115 ¶ 11.  Besides inconveniencing residents who could not use the toilet in their rooms, broken toilets could pose a fall or injury risk to residents who attempted to use the broken toilets or leave the room to use a functioning toilet.  CMS Ex. 115 ¶ 11.  Broken foot boards, unhinged doors, loose dresser drawers, hanging lights, hanging ceiling tiles, and protruding screws posed safety hazards to residents.  Staff even noted on the maintenance log that a broken window was “unsafe for resident.”  CMS Ex. 23 at 3.  Residents could trip and fall on the uneven floors with broken tiles, slip on puddles of water, fall because of lack of properly secured handrails (which the regulation specifically requires) while ambulating in hallways, trip and fall due to debris on the floor, and suffer serious health consequences from mold.  A resident could enter the storage room and ingest or spill the corrosive liquid and cause skin injuries.  CMS Ex. 114 ¶ 12.

The regulation also specifically requires adequate ventilation through windows, mechanical ventilation, or a combination of the two.  However, the facility had broken windows, broken air conditioning units, and gaps between improperly secured air conditioning units and the windows.  In the summer months of June and July, staff noted on the maintenance log that resident rooms with broken air conditioners were “HOT,

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HOT, HOT” and “VERY HOT – NO AIR OR FANS.”  CMS Ex. 23 at 4, 6 (capitalization in original).  By December, the facility still had not repaired the windows and gaps between windows and air conditioning units, placing residents at risk for consequences from the cold fall and winter in Detroit.

Petitioner submitted photos it asserts demonstrate it completed corrective action for the conditions found during the surveys prior to the termination date.  P. Ex. at 2-12.  The photos show the facility replaced hallway lights (P. Ex. at 2) and missing floor tiles (P. Ex. at 2-3), cleaned the sticky substance off the floor (P. Ex. at 3), fixed broken toilets (P. Ex. at 4, 8), removed protruding screws and the protruding sharp iron object in a stairwell (P. Ex. at 5, 8), and cleaned and sanitized the utility room and first floor bathtub (P. Ex. at 7).  However, these photos are insufficient to establish Petitioner returned to substantial compliance with 42 C.F.R. § 483.90(i) before January 19, 2022.  I accord the photos little weight because, as CMS correctly points out, the photos are undated, and Petitioner did not submit testimony or other evidence to authenticate the photos.  See CMS Objection at 2.  Additionally, while the photos may show the facility corrected some of the issues at the facility, the photos do not prove Petitioner corrected all the identified problems and returned to substantial compliance prior to the termination date.

Petitioner offered other documentation, such as logs and checklists, which it asserts prove it achieved substantial compliance before January 19, 2022.  The preamble to the final rule promulgating 42 C.F.R. § 488.454 suggests a facility may establish substantial compliance based on written evidence alone for certain types of deficiencies.  59 Fed. Reg. at 56,116, 56,207 (Nov. 10, 1994).  For example, the preamble describes a deficiency involving mechanical breakdown and repair of equipment as amendable to proof by credible written evidence.  Id.  In such a case, a facility might offer a receipt or invoice to show that the malfunctioning equipment had been repaired or replaced.  Id.  Here however, Petitioner’s documentary evidence does not establish it achieved substantial compliance with 42 C.F.R. § 483.90(i) because the lists of repairs it submitted in its POCs showed unrepaired items even after the termination date.  For example, a toilet log dated January 17, 2022, the date Petitioner alleges it achieved substantial compliance, shows several toilets still in need of repair.  P. Ex. at 392, 473, 949.⁶  Another toilet log shows all toilets repaired, however, this log is dated January 24, 2022, after the termination date.  Id. at 393.  There is no other evidence to show that Petitioner repaired all toilets prior to the termination date.

Similarly, Petitioner submitted checklists of other items needing maintenance and repairs, but these checklists do not demonstrate Petitioner repaired all items before the termination date.  Id. at 404‑466.  Each checklist includes columns headed “Room/Area,”

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“Concern,” “Check off,” and “Comment.”  See, e.g., id. at 404.  It appears staff indicated completed items with a check mark in the “Check off” column.  Id.  A checklist dated January 16, 2022, noted needed repairs including “replace toilet – tank lid broken” for room 150; “no screen in window” and “replace all white floor tiles” in bathroom and caulk toilet for room 165; “replace bathroom white floor tiles” for room 170; “floor tile broken” for room 227 and 228 hall; and “bathroom ceiling” for room 243.  Id. at 418-19.  None of those items was checked as completed.  Id.  A subsequent checklist dated January 21, 2022, after the termination date, did not include check marks indicating the items were completed.  Id. at 415-16.  As of a January 25, 2022 walkthrough, staff checked the toilet with the broken lid in room 150 as completed.  Id. at 408, 411.  However, the other items remained unchecked.  Id. at 408-11.  As of a January 27, 2022 walkthrough, staff checked the floor tiles for rooms 170 and 227 as completed.  Id. at 406.  Staff marked the bathroom floor tile for room 165 as completed by February 7, 2022.  Id. at 404.  However, the missing window screen for room 165 and the bathroom ceiling for room 243 were not marked as completed on the February 7 checklist.  Id. at 406.  Thus, Petitioner’s own documentation supports an inference that it did not complete all repairs prior to January 19, 2022.

Moreover, even if the facility completed items but neglected to check the items off, I infer from comments on the January 21, 24, and February 7 checklists that items remained unrepaired after the termination date.  Id. at 405 (“need black silicone” for room 263); 409 (blinds or curtains in room 275 were “still broken”); 412 (“curtain up but missing hooks” in room 158); 413 (“Replace Bed 1 missing cranks” for room 270).  Additionally, Petitioner presented no evidence showing that it addressed other maintenance issues such as improperly secured air conditioning units, leaking water, and mold.  For all these reasons, I find Petitioner’s evidence insufficient to prove that it returned to substantial compliance by January 19, 2022.

Regarding the allegation that Petitioner failed to safeguard residents from possible exposure to hazardous materials, the record includes logs dated January 12, 21, and 28, and February 4, 2022, showing staff verified that storage rooms with hazardous materials were secured and inaccessible by residents.  Id. at 736-739.  Although these documents suggest Petitioner may have corrected the specific hazardous materials storage issue cited in the statement of deficiencies, they are insufficient to prove that similar incidents would not recur in the future.  See Omni Manor Nursing Home, DAB No. 2431 at 14 (2011), aff’d Omni Manor Nursing Home v. U.S. Dept. of Health & Human Servs., 512 F.App’x 543 (6th Cir. 2013).  Further, the in-service training records Petitioner produced are also not dispositive.

Petitioner offered attendance sheets showing that it conducted in-service trainings on “Safety – Maintaining Repairs/Facility Cleanliness” on December 22, 2021, and “Security of Storage Room” on January 12, 2022.  P. Ex. at 735, 947.  However, even considered together with the photos and checklists, the attendance sheets do not establish

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that Petitioner achieved substantial compliance.  As CMS argues (CMS Reply at 3), in‑service training alone is not adequate to show that Petitioner addressed all the maintenance repairs and cleaning issues the state agency identified during multiple surveys.  In-service trainings do “not alone establish that the facility had successfully implemented the practices and procedures required in the POC and training materials.”  Oceanside, DAB No. 2382 at 20.  Moreover, the in-service training attendance sheets do not show that all the training topics specified in the POCs were covered during the training sessions.  The sign-in sheets indicate the title of the course, but do not include an agenda or a list of topics for any of the sessions.  Petitioner also did not proffer any testimony from staff who conducted the trainings or attended the trainings.  See North Las Vegas Care Ctr., DAB No. 2946 at 13 (2019).

Additionally, there must be evidence that a facility has implemented appropriate education and other operational measures “to ensure that similar incidents will not recur.”  Florence Park Care Ctr., DAB No. 1931 (2004) (2004 WL 1764743 at *19); see also Omni Manor, DAB No. 2431 at 6.  Therefore, based on the information in its POCs, Petitioner was obligated to produce evidence, beyond in-service training attendance sheets, that staff members understood and implemented the training thereafter.  But, as discussed above, checklists show numerous items remained unrepaired after the in-service trainings in December and January and even after the termination date.  I therefore infer that staff did not fully implement the subject matter of the in-service trainings.  Accordingly, Petitioner failed to provide a safe, functional, sanitary, and comfortable environment for residents, staff, and the public for in violation of 42 C.F.R. § 483.90(i), for more than six months.  Petitioner’s noncompliance had the potential to cause more than minimal harm to its residents.  Therefore, CMS had a basis to terminate Petitioner’s Medicare participation agreement.

2. From July 19, 2021, through January 19, 2022, Petitioner failed to provide its residents with a properly functioning call light system; therefore, Petitioner did not achieve substantial compliance with 42 C.F.R. § 42 C.F.R. § 483.90(g) and 42 C.F.R. § 483.10(e)(2), (3).⁷

The regulation governing SNF physical environment generally includes specific directives concerning a facility’s call system:

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The facility must be adequately equipped to allow residents to call for staff assistance through a communication system which relays the call directly to a staff member or to a centralized staff work area from ‒

(1) Each resident’s bedside; and

(2) Toilet and bathing facilities.

42 C.F.R. § 483.90(g).  A facility complies with the regulation “only if all portions of the system are functioning (e.g., system is not turned off at the nurses’ station, the volume is not too low to be heard, the light above a room or rooms is not working).”  Care Ctr. of Opelika, DAB No. 2093 at 4 (2007).⁸

In addition, Petitioner adopted a “Nurse Call” policy which required that all residents have access to a nurse call device while in their room and the nurse call device be operable by the resident with consideration for any physical disabilities or limitations a resident may have.  CMS Ex. 24.  The policy directed staff to ensure call light cords were within reach of all residents and to address resident calls immediately.  Id.  Further, if staff identified missing, inoperable, or otherwise non-functional call light cords, staff were to immediately inform the charge nurse, DON, and facility manager.  Id.  Appellate decisions of the DAB have held that a facility’s “failure to comply with its own policies can support a finding that the facility did not achieve compliance with the regulatory standard.”  Bivins Memorial Nursing Home, DAB No. 2771 at 9 (2017) (citing Life Care Ctr. of Bardstown, DAB No. 2233 at 21-22 (2009)); see also Sheridan Health Care Ctr., DAB No. 2178 at 32 (2008) (observing that a facility’s adoption of a resident care policy supports an inference that the policy was “necessary to attain or maintain resident well-being”).

During the July 19, 2021 survey, the surveyor observed that although a call light panel by a nurses’ station was beeping, the call light panel did not light up to show which resident had called the nurse’s station.  CMS Ex. 115 ¶ 12.  According to the surveyor, when a resident activates a call light, the panel with the room number lights up at the nurses’ station so that staff know which resident requires assistance.  Id.  However, because the

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call light panel did not function properly, staff did not know which resident required assistance until 20 minutes later, when a staff member determined the resident in room 227 had activated the call light.  Id.  Shortly thereafter, Resident 418, who resided in room 227, wheeled herself to the nurses’ station.  Id.  At that time, the surveyor also observed that the call light indicator over Resident 418’s room was not lit up as it should have been when the resident activated the call light.  Id.  The non-functioning call light system had the potential to cause more than minimal harm.  Staff could not meet residents’ needs efficiently and effectively if they were unable to determine which resident activated their call light.  Id.  Additionally, if residents felt that staff were not responsive to their needs, they may attempt to perform their own self-care, transfers, or other tasks, which could result in injury and harm.  Id.  Accordingly, Petitioner failed to comply substantially with 42 C.F.R. § 483.90(g).

The December 16, 2021 survey documented continuing problems with Petitioner’s call system.  The surveyor observed multiple rooms where call lights were not functioning or not within the residents’ reach.  CMS Ex. 111 ¶ 11.  The call light panel at the nurses’ station did not light up when residents in three rooms activated their call lights.  CMS Ex. 46 at 34; CMS Ex. 53 at 9.  The call lights in residents’ rooms and the nurses’ panel did not light up when call lights were activated in 24 resident rooms.  CMS Ex. 46 at 34-35; CMS Ex. 53 at 9-10.  Call lights were out of reach in five resident rooms and the surveyor did not observe any temporary call light bells in six resident rooms.  Id.  According to the surveyor, the failure to ensure call lights were placed within residents’ reach or functioned properly had the potential to cause more than minimal harm because residents may not have been able to alert staff when they required assistance or in the event of an emergency.  CMS Ex. 111 ¶ 11.  I therefore conclude Petitioner remained out of substantial compliance with 42 C.F.R. § 483.90(g) following the December 16, 2021 survey.

Based on the non-functioning call lights during the December 16 survey, CMS also concluded that Petitioner failed to ensure its residents were treated with respect and dignity, in violation of 42 C.F.R. § 483.10(e)(2), (3).  CMS Br. at 9, 15-16.  Because the facility failed to provide Resident 210 with a functioning call light, the resident had to wheel himself into the hallway and shout repeatedly to get help.  CMS Ex. 53 at 9; CMS Ex. 111 ¶ 6.  In addition to creating a dignity issue for the resident, Petitioner’s failure to provide Resident 210 with a functioning call light had the potential to cause more than minimal harm to the resident.  Resident 210 had self-care deficits secondary to impaired cognition due to dementia.  CMS Ex. 63 at 3.  According to his care plan, he required supervision for bed mobility and one person assist for bathing, dressing, and hygiene/oral care.  Id.  If Resident 210 required assistance but could not call nursing staff for help, his needs could go unmet, or he could injure himself getting out of his bed into his wheelchair or performing self-care without assistance.

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CMS also found that by failing to provide Residents 205 and 209 with call lights that they were able to use, Petitioner failed to protect the residents’ rights to reasonable accommodations in violation of 42 C.F.R. § 483.10(e)(3).  CMS Br. at 16 n.6.  Resident 205 required assistance with activities of daily living and transfers, had difficulty making himself understood related to limited verbal communication, and had cognitive deficits due to dementia.  CMS Ex. 59 at 5, 19, 21, 25.  Resident 209 required assistance with activities of daily living and transfers due to impairments related to a spine fracture.  CMS Ex. 62 at 3.  As a result of their diagnoses, Residents 205 and 209 were unable to use push button call lights.  CMS Ex. 111 ¶ 7.  However, the surveyor observed the residents had push button call lights and the call lights were out of the residents’ reach.  Id.  Petitioner’s failure to provide call lights that accommodated the needs of Residents 205 and 209 had the potential to cause more than minimal harm because the residents could not contact nursing staff when they required assistance or during a medical emergency.  Id.

In support of its contention that its call system complied with the regulations before the termination date, Petitioner submitted attendance sheets for several training sessions, including sessions on keeping call lights within reach of residents.  P. Ex. at 58, 59, 81‑85, 359.  As I have stated above, training sessions alone are not sufficient to show a return to substantial compliance.  Oceanside, DAB No. 2382 at 20.  This is particularly true in the case of the call light system, since placing call lights within residents’ reach would be of no benefit if the call light itself was not working.  Petitioner claims that all call lights had been serviced and repaired and residents were assessed for proper call light needs.  P. Ex. at 52, 76.  The record includes a letter stating that “the nurse call stations installed for the Boulevard Manor Skilled Nursing and Rehab Center [] [h]ave all been replaced, tested and are ready [] for patient care.”  Id. at 353.  Yet, the letter is undated; therefore, it does not prove that the call light system was repaired prior to the termination date.  Id.  The record also includes nurse call audits indicating maintenance staff checked the nurse call system weekly by checking all beside and bathroom call cords, activating the nurse call button/cord, checking activation of the hall light and nurse annunciator panel, and resetting the call station.  Id. at 69-72, 474-483.  However, the audit on January 11, 2022 revealed that the pressure pad in room 154 was not working.  Id. at 478.  Then, on January 24, 2022, five days after the termination date, the hall light and nurses’ station panel still did not function properly when the call button was activated in room 174.  Id. at 69.  Therefore, Petitioner did not establish that it returned to substantial compliance with 42 C.F.R. § 483.90(g)(2), nor with 42 C.F.R. § 483.10(e)(2) and (e)(3).

In summary, Petitioner does not dispute that its facility was out of compliance with numerous Medicare participation requirements from July 19, 2021, through at least January 12, 2022.  Although Petitioner argues that it achieved substantial compliance with all participation requirements by January 17, 2022, Petitioner has not offered evidence that its training and other interventions were effective, i.e., that staff capably followed the training, that management put effective monitoring tools in place, and that

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those interventions resolved the noncompliance.  For all these reasons, I find Petitioner has not met its significant burden of proving that it has corrected the numerous threats to resident health and safety and that the deficiencies would not recur.  See Oceanside, DAB No. 2382 at 19.  Accordingly, I conclude that Petitioner did not return to substantial compliance with participation requirements within six months; therefore, termination of Petitioner’s provider agreement was mandatory.  Act § 1819(h)(2)(C) (42 U.S.C. § 1395i‑3(h)(2)(C)); 42 C.F.R. § 488.412(d).  Moreover, as I explain in the following discussion, Petitioner’s legal arguments are not a basis to reverse the termination.

2. Petitioner’s other arguments do not establish that CMS lacked a basis to terminate Petitioner’s Medicare provider agreement.

Petitioner argues that CMS violated its right to procedural due process because CMS conducted only a single revisit survey on December 16, 2021, which Petitioner asserts was improper.  P. Br. at 6, 8.  Petitioner acknowledges revisit surveys are not guaranteed but claims that due process requires a revisit survey prior to termination of the provider agreement.  P. Br. at 7 (citing Ridgeview Manor of Midlands, L.P. v. Leavitt, No. 3:07‑cv‑861‑JFA, 2007 WL 1068224 (D.S.C. Mar. 30, 2007)).  Petitioner also notes that none of the deficiencies was cited at the immediate jeopardy level.  P. Br. at 8.

Administrative law judges do not have the authority to ignore unambiguous statutes or regulations on the basis that they are unconstitutional.  Florida Health Sciences Ctr., Inc., DAB No. 2263 at 6 (2009) (quoting Sentinel Med. Labs., Inc., DAB No. 1762 at 9 (2001), aff’d, Teitelbaum v. Health Care Fin. Admin., 32 F. App’x 865 (9th Cir. 2002)).  The Secretary is authorized to provide Medicare program reimbursements to a SNF for a maximum of six months when the SNF is not in compliance with the participation requirements.  Act § 1819(h)(2)(C) (42 U.S.C. § 1395i‑3(h)(2)(C)).  Where a facility’s deficiencies do not place residents in immediate jeopardy, the regulations require CMS to terminate a SNF’s participation in the Medicare program if it is not in substantial compliance for a six-month period from the last day of the survey that found noncompliance.  42 C.F.R. § 488.412.  Therefore, I do not have the authority to reverse the termination based on Petitioner’s constitutional arguments.

Moreover, I have no authority to review the timing of the surveys.  See 42 C.F.R. § 498.3(b).  The appellate decision in North Las Vegas Care Ctr. held that “[w]hether and when revisit surveys are performed is in the discretion of the State and CMS, not the facility.”  DAB No. 2946 at 15 (internal quotation marks omitted) (quoting Cal Turner Extended Care Pavilion, DAB No. 2030 at 13 (2006)).  Additionally, even the date of the revisit survey is not decisive in determining when a facility actually returned to substantial compliance.  Ridgecrest, DAB No. 2493 at 16.  Here, even if the state agency had conducted a revisit survey prior to the termination date, the evidence Petitioner submitted with its POCs shows Petitioner remained out of compliance with multiple deficiencies after January 19, 2022, more than six months after the July 19, 2021 survey.

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Finally, contrary to Petitioner’s arguments, the facts in Ridgeview Manor are not analogous to this case.  In Ridgeview Manor, the state agency completed a survey on February 14, 2007, and CMS imposed an involuntary termination effective March 30, 2007, a little over one month after the survey.  2007 WL 1068224 at *3.  The state agency determined Ridgeview Manor’s POC was not acceptable and did not authorize a revisit survey.  Id. at *4.  The court granted a temporary restraining order to stop CMS from imposing a discretionary termination of Ridgeview Manor’s provider agreement pursuant to 42 C.F.R. § 488.456.  Id. at *6.

In contrast, here CMS imposed a mandatory termination under 42 C.F.R. § 488.412 because Petitioner was continuously out of substantial compliance with participation requirements for six months.  In a letter dated June 30, 2021, the state agency notified Petitioner that it recommended CMS terminate Petitioner’s Medicare participation if Petitioner did not achieve substantial compliance by December 17, 2021.  CMS Ex. 1 at 2.  The state agency again notified Petitioner of the termination date in subsequent letters dated July 29, 2021, October 4, 2021, and December 16, 2021.  CMS Ex. 2 at 2; CMS Ex. 3 at 3; CMS Ex. 5 at 2.  By letter dated December 2, 2021, CMS notified Petitioner on that it adopted the state agency’s findings and was required to terminate Petitioner’s participation on December 17, 2021, if it did not return to substantial compliance by that date.  CMS Ex. 4 at 4.  The state agency conducted a revisit survey on December 16, 2021, before the termination was set to go into effect, but Petitioner remained out of substantial compliance with participation requirements.  See, e.g., CMS Exs. 45-48.  However, rather than terminate Petitioner’s participation, CMS removed the June 17, 2021 survey from the survey cycle and extended the termination effective date to January 19, 2022, six months from the July 19, 2021 survey.  CMS Ex. 6 at 1-2.  CMS notified Petitioner of this change by letter dated December 21, 2021.  Id.

Because CMS removed the June 17, 2021 survey from the survey cycle and modified the termination effective date, CMS in effect allowed Petitioner an additional month to return to substantial compliance.  Nevertheless, Petitioner remained out of compliance at the January 12, 2022 survey, and was cited for six additional deficiencies.  CMS Ex. 72.  As I have explained above, Petitioner failed to prove by a preponderance of the evidence that it in fact achieved substantial compliance with all participation requirements before the January 19, 2022 termination date.  Therefore, CMS was required to terminate Petitioner’s provider agreement.  Donelson Place Care & Rehab. Ctr., DAB No. 3046 at 24 (2021) (“The only relevant question, therefore, is whether, at any time during the statutory and regulatory period ( . . . six months for mandatory termination), the facility achieved substantial compliance with all requirements.”) (emphasis added) (citing Sunshine Haven Lordsburg, DAB No. 2456 (2012), aff’d on other grounds, Sunshine Haven Nursing Operations, LLC, d/b/a Sunshine Haven Lordsburg v. U.S. Dept. of Health & Human Servs., 742 F.3d 1239 (10th Cir. 2014)).

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3. CMS lawfully imposed a DDPNA on Petitioner from September 12, 2021 through January 18, 2022.

CMS also imposed a DDPNA from September 12, 2021 through January 18, 2022.  CMS Ex. 9 at 1.  CMS is authorized to impose a DPNA “for any days on which a SNF is not in substantial compliance.”  Rosewood Care Ctr. of Rockford, DAB No. 2466 at 20 (2012) (citing 42 C.F.R. § 488.417(a)).  For the reasons explained in the prior sections of this decision, I have concluded that Petitioner was out of compliance with numerous participation requirements and remained out of substantial compliance on the termination effective date, January 19, 2022.  Petitioner has not established that it returned to compliance prior to January 19, 2022.  I thus conclude that CMS was authorized to impose a DDPNA during the period September 12, 2021 through January 18, 2022, and that the DDPNA is a reasonable enforcement remedy.

V.    Conclusion

For the foregoing reasons, I conclude that Petitioner was not in substantial compliance with 42 C.F.R. §§ 483.90(i), 483.90(g)(2), 483.10(e)(2), and 483.10(e)(3).  I further conclude Petitioner did not achieve substantial compliance with Medicare participation requirements prior to January 19, 2022, and was out of compliance with requirements for more than six months.  Therefore, CMS was required by statute to terminate Petitioner’s Medicare provider agreement.  Act § 1819(h)(2)(C) (42 U.S.C. § 1395i-3(h)(2)(C)).  Finally, a DDPNA from September 12, 2021 through January 18, 2022 is a reasonable enforcement remedy.

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Endnotes

¹  CMS and state survey agencies consider the scope and severity of deficiencies when selecting enforcement remedies.  CMS summarizes the scope and severity levels in a matrix published in the State Operations Manual (SOM).  CMS Internet Only Manual 100-07, chapter 7, section 7400.3.1, available at https://www.cms.gov/Regulations-and-Guidance/Guidance/Manuals/Downloads/som107c07pdf.pdf (last visited Aug. 1, 2023).  “Scope” describes how many residents are potentially affected by a particular deficiency.  Deficiencies may be “isolated,” “pattern,” or “widespread” in scope.  “Severity” describes the possible harm that a deficiency may cause.  A scope and severity level of A, B, or C describes a deficiency that causes no actual harm with the potential for minimal harm.  Facilities cited with deficiencies at level C or lower remain in substantial compliance.  42 C.F.R. § 488.301.  A scope and severity level of D, E, or F describes a deficiency that has caused no actual harm with the potential for more than minimal harm that is not immediate jeopardy.  A scope and severity level of G, H, or I describes a deficiency that has caused actual harm that is not immediate jeopardy.  A scope and severity level of J, K, or L describes a deficiency that poses immediate jeopardy to resident health or safety.

²  Petitioner did not prepare its exhibits as required by my Standing Order ¶ 6.  Petitioner submitted a single PDF file containing all proposed exhibits and did not separately mark or paginate the exhibits.  In this decision I cite to Petitioner’s exhibits as “P. Ex. at” the PDF page number of the cited document.

³  My conclusions of law appear as headings in bold italic type.  My findings of fact and analysis appear in the accompanying text.

⁴  As my analysis will show, Petitioner’s remained out of substantial compliance with 42 C.F.R. §§ 483.90(i), 483.90(g)(2), 483.10(e)(2), and 483.10(e)(3) for more than six months.  The Act and regulations authorize CMS to terminate a SNF’s Medicare participation “based on one or more deficiencies constituting noncompliance.”  Oaks of Mid City Nsg. & Rehab. Ctr., DAB No. 2375 at 29 (2011).  Thus, Petitioner’s noncompliance with 42 C.F.R. §§ 483.90(i), 483.90(g)(2), 483.10(e)(2), and 483.10(e)(3) is sufficient to support the termination of Petitioner’s Medicare participation agreement.  CMS additionally found Petitioner noncompliant with 42 C.F.R. §§ 483.25; 483.25(b)(1)(i), (ii); 483.25(g)(1)-(3); 483.25(i); 483.40; 483.70(i)(1); 483.80(a)(1), (2), (4), (e), (f); and 483.80(h)(1)-(6).  Petitioner did not contest the existence of those deficiencies.  Petitioner did, however, contend that it corrected its noncompliance with those requirements before January 19, 2022.  I am permitted, “in the interests of judicial economy, [to] review only those deficiencies that have a material impact on the outcome of the dispute.”  Claiborne-Hughes Health Ctr. v. Sebelius, 609 F.3d 839, 847 (6th Cir. 2010).  Because Petitioner’s compliance, or not, with the additional participation requirements does not affect CMS’s authority to impose the termination or DDPNA, I do not consider those requirements in this decision.

⁵  Petitioner explains that the POCs it submitted after the January 12, 2022 survey incorrectly listed a compliance date of January 31, 2022.  P. Br. at 6.  Petitioner discovered its error and on January 18, 2022, submitted a corrected POC with a compliance date of January 17, 2022.  Id.

⁶  In several instances, Petitioner offered duplicate copies of checklists and other documents.  Hereafter, I cite to a single page reference, even though there may be duplicate pages in the record.

⁷  CMS alleges that Petitioner’s nonfunctioning call system also supported findings of noncompliance with 42 C.F.R. § 483.10(e)(2), 42 C.F.R. § 483.10(e)(3), and 42 C.F.R. § 483.90(i).  CMS Br. at 7, 9, 15-16.  If the facts demonstrate the facility violated more than one participation requirement, CMS may, in its discretion, cite the SNF for violating any, or all, of the applicable requirements.  Brian Ctr. Health & Rehab./Goldsboro, DAB No. 2336 at 6.

⁸  The Care Ctr. of Opelika decision discussed noncompliance with 42 C.F.R. § 483.70(f).  In 2016, CMS issued a final rule that redesignated and revised the provisions of 42 C.F.R. Part 483.  See Final Rule, Medicare and Medicaid Programs; Reform of Requirements for Long-Term Care Facilities, 81 Fed. Reg. 68,688 (Oct. 4, 2016).  Following that revision, the content of subsection 483.70(f) was redesignated as subsection 483.90(g).  See id. at 68,870.  I find it appropriate to rely on the reasoning of the Opelika decision in interpreting the redesignated provision because the regulatory requirements concerning call systems remained substantially similar to the prior version.