Windsor Atrium, DAB CR6352 (2023)

DECISION

In this case, I consider whether a long-term-care facility may disregard a resident’s full code status and fail to administer promptly cardio-pulmonary resuscitation if that resident is sufficiently old and infirm.  

Petitioner, Windsor Atrium, is a long-term care facility, located in Harlingen, Texas, that participates in the Medicare program.  Based on a survey completed July 2, 2021, the Centers for Medicare and Medicaid Services (CMS) determined that the facility had not been in substantial compliance with Medicare requirements governing cardio-pulmonary resuscitation, and that its deficiencies posed immediate jeopardy to resident health and safety.  CMS has imposed a per-instance civil money penalty (CMP) of $21,845. 

CMS moves for summary judgment, which Petitioner opposes.  For the reasons set forth below, I grant CMS’s motion.  I find that the undisputed evidence establishes that the facility was not in substantial compliance with Medicare program requirements, and that the penalty imposed is reasonable. 

I have no authority to review CMS’s immediate jeopardy determination. 

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

Here, a surveyor from the Texas Health and Human Services Commission (state agency) completed a survey on July 2, 2021.  Based on her findings, CMS determined that the facility had not complied substantially with 42 C.F.R. § 483.24(a)(3) (Tag F678 – quality of life:  cardio-pulmonary resuscitation) cited at scope and severity level J (isolated instance of noncompliance that poses immediate jeopardy to resident health and safety).  CMS also determined that the facility had corrected the deficiency prior to the survey.  CMS Exs. 1, 2.  

CMS imposed against the facility one per-instance CMP of $21,845.

With its motion for summary judgment, CMS has filed a pre-hearing brief (CMS Br.) and nine exhibits (CMS Exs. 1-9).  Petitioner has filed a response to CMS’s motion and its own pre-hearing brief (P. Br.) with six exhibits (P. Exs. 1-6).¹  

Issues

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

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On the merits, the issues are:

1. Was the facility in substantial compliance with 42 C.F.R. § 483.24(a)(3); and
2. If the facility was not in substantial compliance, is the penalty imposed – $21,845 per instance – reasonable? 

The parties argue about whether CMS’s immediate-jeopardy determination is clearly erroneous.  However, I have no authority to review that determination.  I may review CMS’s scope-and-severity finding (which includes a finding of immediate jeopardy) if:  1) a successful challenge would affect the range of the CMP; or 2) CMS has made a finding of substandard quality of care that results in the loss of approval of a facility’s nurse aide training program.  42 C.F.R. §§ 498.3(b)(14), 498.3(d)(10); Madison Cnty. Nursing Home, DAB No. 2895 at 16 (2018); NMS Healthcare of Hagerstown, DAB No. 2603 at 6-7 (2014); Cedar Lake Nursing Home, DAB No. 2344 at 9 (2010); Heritage Park Rehab. & Nursing Ctr., DAB No. 2231 at 15-16 (2009); Evergreen Commons, DAB No. 2175 (2008); Aase Haugen Homes, Inc., DAB No. 2013 (2006).

For a per-instance penalty, the regulations provide only one range, so the level of noncompliance does not affect the range of the CMP.  42 C.F.R. § 488.438(a)(2).

Certain types of deficiencies, including quality-of-life (42 C.F.R. § 483.24), can lead to a finding of “substandard quality of care.”  The deficiency must be cited at one of the following scope-and-severity levels:

• immediate jeopardy;
• a pattern of or widespread actual harm that is not immediate jeopardy; or
• widespread deficiencies with the potential for more than minimal harm.

42 C.F.R.§ 488.301. 

The deficiency here was cited at the immediate jeopardy level, so CMS could have found substandard quality of care, although its notice letter does not indicate that it did so.  CMS Ex. 1.

In any event, even if CMS had made that finding, its immediate-jeopardy determination would not be reviewable.  If (as here) I approve a penalty of $11,160 or more, CMS’s scope-and-severity finding does not affect approval of the facility’s nurse aide training program, assuming that it has one.  Under the statute and regulations, the state agency cannot approve the program if CMS imposes a penalty of $11,160 or more.  Thus, the facility loses its approval without regard to the scope-and-severity finding.  Act

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§ 1819(f)(2)(B); 42 C.F.R. § 483.151(b)(2)(iv); 85 Fed. Reg. 2869, 2886 (Jan. 17, 2020).  The immediate jeopardy determination is therefore not reviewable.²

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.  Southpark Meadows Nursing & Rehab. Ctr., DAB No. 2703 at 5 (2016); W. Tex. LTC Partners, Inc., DAB No. 2652 at 5 (2015), aff’d, W. Tex. LTC Partners, Inc. v. U.S. Dep’t of Health & Human Servs., 843 F.3d 1043 (5th Cir. 2016); 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, 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 Home, 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, DAB No. 2652 at 6; 1866ICPayday.com, L.L.C., DAB No. 2289 at 3 (2009) (quoting Matsushita, 475 U.S. at 587).

Where, for example, in support of its summary judgment motion, CMS submitted a statement of deficiencies, which included its factual findings, the Departmental Appeals Board determined that CMS’s motion was adequately supported and that Petitioner needed to submit relevant counter-evidence in order to create disputes and defeat the motion (which Petitioner failed to do).  Southpark Meadows, DAB No. 2703 at 6.

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

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Ctr., 388 F.3d at 172; Guardian Health Care Ctr., DAB No. 1943 at 8 (2004); see also Brightview, DAB No. 2132 at 10 (entry of summary judgment upheld where inferences and views of non-moving party are not reasonable).  However, drawing factual inferences in the light most favorable to the non-moving party does not require that I accept the non-moving party’s legal conclusions.  W. Tex. LTC, DAB No. 2652 at 6-7; 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 Healthcare & Rehab. Ctr., DAB No. 2947 at 8 (2019) (quoting Johnson v. Perez, 823 F.3d 701, 705 (D.C. Cir. 2016)) (noting that a genuine factual dispute does not exist “when a putatively disputed body of evidentiary material could not, even assuming a sympathetic factfinder, reasonably support a finding crucial to the nonmoving party’s legal position.”).

Summary judgment applied to administrative review in Medicare cases.  It is well‑established that an administrative law judge is empowered to decide a case on 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 E. Pa., DAB No. 2451 at 4 (2012); Vandalia Park, DAB No. 1939 at 5-6 (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 5-6.³;

Here, as explained in the following discussion, Petitioner concedes all of the material facts but argues that they do not constitute substantial noncompliance.  In the alternative, Petitioner identifies as “fact issues”:  1) whether the non-compliance rose to the level of actual harm and/or immediate jeopardy; and 2) the reasonableness/proportionality of the CMP imposed based on the level of noncompliance.  P. Br. at 11.  These are not issues of

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fact; they are conclusions of law.  As the Board has explained, 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.  Guardian, DAB No. 1943 at 11.

1. The undisputed evidence establishes that, contrary to the instructions in his care plan and contrary to his physician orders, as well as contrary to professional standards of nursing practice, facility staff did not timely administer CPR to a resident who was “full code.”  This puts the facility out of substantial compliance with 42 C.F.R. § 483.24(a)(3).⁴

Program requirement:  42 C.F.R. § 483.24(a)(3) (Tag F678).  The “quality of life” regulation characterizes “quality of life” as a “fundamental principle” that applies “to all care and services provided to facility residents.”  42 C.F.R. § 483.24.  Under the Medicare statute and this regulation, the facility must care for its residents “in such a manner . . . as will promote maintenance or enhancement of the quality of life of each resident”; each resident must receive, and the facility must provide, necessary care and services to attain or maintain the highest practicable physical, mental, and psychosocial well-being, in accordance with the resident’s comprehensive assessment and person-centered care plan.  Act § 1819(b); 42 C.F.R. § 483.24.  Among other specific requirements, personnel must provide basic life support, including CPR, to a resident requiring such emergency care, prior to the arrival of emergency medical personnel, and subject to physician orders and the resident’s advance directives.  42 C.F.R. § 483.24(a)(3).

Resident 1 (R1).  R1 was a 99-year-old man, admitted to the facility on June 21, 2019.  He was undeniably very old and very ill, suffering from a multitude of impairments, including chronic obstructive pulmonary disease, pulmonary fibrosis, and peripheral vascular disease.  He suffered hearing loss, had difficulty walking, and required assistance with personal care.  CMS Ex. 4 at 1, 2.  Despite his age and sensory deficits, he was cognitively intact, scoring 15 out of 15 on his BIMS (Brief Interview for Mental Status) screening.  CMS Ex. 4 at 10.  His assessment also shows that he had no behavior issues or mood disturbances and considered it important to listen to the music that he liked, keep up with the news, engage with others, and participate in religious services, among other activities.  CMS Ex. 4 at 12, 14, 16.

Most significant, R1 was full code.  His care plan included specific, concise directions to staff:  “If resident has a cardiac arrest, initiate CPR and call 911.  Notify MD/RP and

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follow MD orders after notification.”  CMS Ex. 4 at 3 (emphasis added).  The plan also directed the facility to keep a crash cart well supplied at all times and to mark the resident’s chart and all pertinent documents with “FULL CODE.”  Id.

R1’s physician’s order also specified that R1 was “Full Code” for CPR.  CMS Ex. 4 at 19.

R1’s death.  Petitioner submitted 1,218 pages of medical records for R1.  Of that massive document, two pages of nursing notes allude to the circumstances surrounding R1’s death:

• A note dated May 24, 2021, at 7:05 a.m., signed by a licensed vocational nurse (identified in these proceedings as LVN A), reads:  “During morning round, resident assessed and noted to be stable at this time; [resident] continued sleeping.  [N]o signs of facial grimacing [related to] pain or discomfort at this time.”  P. Ex. 1 at 542. 
• A second note, dated May 24, 2021, at 7:20 a.m., also signed by LVN A, reads:  “[A]t this time[,] I returned to resident room to administer medications due and noted [resident] to be unresponsive.  I then proceeded to call RN to assist me in checking resident status.”  P. Ex. 1 at 541-542.
• A third note dated May 24, 2021, at 8:35 a.m., signed by Director of Nursing (DON) Sulema Castillo, reads:  “Enter resident room without vital signs and CPR initiated.  911 activated.  Upon arrival EMS took over and EMS pronounced resident.”  P. Ex. 1 at 541.
• A final note, dated May 24, 2021, at 10:33 a.m., reads:  “PATIENT DECEASED.”  P. Ex. 1 at 541.

Thus, the parties agree that, at about 7:20 a.m., LVN A found R1 unresponsive, with no vital signs.  She did not check the resident’s chart or otherwise attempt to verify his code status.  CMS Ex. 7 at 3; CMS Ex. 9 at 3 (Newton Decl. ¶ 9); P. Ex. 1 at 541-542.  She did not administer CPR.  Instead, she called the registered nurse (RN) on duty (identified as RN B) for assistance, asking her to “pronounce.”  She told the RN that the resident was “DNR” (Do Not Resuscitate).  CMS Ex. 7 at 3-4.

RN B was busy with other residents and did not respond immediately.  CMS Ex. 7 at 4.  She told Surveyor Juanita Newton that she felt no urgency because LVN A reported that the resident was “a do not resuscitate.”  RN B also told the surveyor that she “let the Director of Nursing know about fifteen to twenty minutes later.”  CMS Ex. 9 at 3 (Newton Decl.¶ 8).

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When Surveyor Newton spoke to DON Castillo, the DON confirmed that LVN A wrongly assumed that R1’s code status was “do not resuscitate.”  Staff later verified the resident’s code status and discovered that he was full code.  They then administered CPR and called 911.  DON Castillo said that she did not recall the time that staff initiated CPR.  CMS Ex. 9 at 4 (Newton Decl. ¶ 10).  However, her nursing note indicates that this occurred at 8:35 a.m., one hour and fifteen minutes after LVN A found the resident unresponsive.  P. Ex. 1 at 541-542.

Petitioner does not challenge any of this.  There is thus no doubt that, when LVN A found R1 unresponsive, she did not verify his code status, initiate CPR, or call 911.  Relying on LVN A’s representation that the resident was DNR, RN B delayed contacting the facility’s DON or otherwise responding, and staff did not check the resident’s code status until much later.  Ultimately, an hour and fifteen minutes passed before anyone initiated CPR and called the emergency medical services.  By then, it was too late to revive the resident.  This put the facility out of substantial compliance with section 483.24(a)(3).

Petitioner argues that RN B is not accountable for the error because the LVN relayed no sense of urgency, and the LVN was responsible for the resident.  P. Br. at 12.  From this, Petitioner reasons that the facility itself is not responsible for the errors of just one nurse because it trained its staff properly and “did everything it could” to ensure that LVN A would administer CPR when required.  P. Br. at 12-13.

The Board long ago rejected this argument and has consistently maintained that a facility may not disavow the errors of its staff and may properly be held responsible for their actions.  Madison Cnty., DAB No. 2895 at 8-9; Kindred Transitional Care & Rehab - Greenfield, DAB No. 2792 at 10 (2017); Springhill Senior Residence, DAB No. 2513 at 15 (2013) (citing Beverly Health Care Lumberton, DAB Ruling No. 2008-5 at 6-7 (2008)) (Denial of Petition for Reopening Decision No. 2156 (2008)); Gateway Nursing Ctr., DAB No. 2283 at 8 (2009); N.C. State Veterans Nursing Home, Salisbury, DAB No. 2256 (2009); Emerald Oaks, DAB No. 1800 at 7 n.3 (2001).  RN B’s degree of responsibility, if any, is irrelevant.

Whether the facility had properly trained its staff is not material where, as here, “there is undisputed evidence that staff did not act on that education and training.”  Avalon Place Kirbyville, DAB No. 2569 at 11 (2014).

Nor do I accept Petitioner’s confusing suggestion that the facility substantially complied with section 483.24 because no resident, other than R1, was at risk from the LVN’s errors.  According to Petitioner, only a very old resident with diagnoses comparable to R1’s, who had full-code status, would have been jeopardized.  P. Br. at 13.  To the contrary, Board decisions have consistently found that staff’s failure to provide CPR as required has much broader implications.  Because CPR is a potentially life-saving

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procedure, failing to perform CPR in accordance with professional standards of care poses “a risk of more than minimal harm [the loss of a chance for survival and recovery] to any full-code resident . . . needing resuscitation.”  N. Las Vegas Care Ctr., DAB No. 2946 at 10 (2019) (emphasis added) (quoting Southpark Meadows, DAB No. 2703 at 8); Royal Manor, DAB No. 1990 at 8 (2005) (finding that a facility’s noncompliance was at the immediate jeopardy level because its incompetent response to a life-threatening emergency could have harmed other residents facing a similar emergency).

Petitioner also makes much of R1’s age and significant impairments, suggesting that he would not have benefitted from CPR anyway:  “[S]ome individuals simply cannot be helped with basic or even advanced life support.”  See P. Br. at 9-10, 13.  Again, the Board has soundly rejected this as a justification for declining to administer CPR.  Green Valley, DAB No. 2947; N. Las Vegas, DAB No. 2946; Lakeridge Villa Healthcare Ctr., DAB No. 2396 (2011); Woodland Oaks Healthcare Facility, DAB No. 2355 (2010).  The Board recognizes a “bright-line rule” with respect to treating residents in distress:  a resident without a do-not-resuscitate order must be administered CPR unless that resident is irreversibly dead.  Woodland Oaks, DAB No. 2355 at 16.  Nursing staff may not disregard an advance directive because they determine that CPR would not likely save the resident, a position that has no support in the regulations or standards of care.  As the Board has pointed out, one of CPR’s goals is to reverse clinical death, “even though that outcome is achieved in only a minority of cases.”  Id. (quoting John J. Kane Reg’l Ctr. – Glen Hazel, DAB No. 2068 at 17 (2007)).

Finally, Petitioner attacks the surveyor’s qualifications, an issue that I find irrelevant, particularly where, as here, the surveyor’s factual findings are undisputed.  P. Br. at 11.  Moreover, Surveyor Newton was perfectly capable of reviewing the medical records, speaking to staff, and reporting those findings.  See CMS Ex. 9 at 2 (Newton Decl. ¶ 8).

Because its staff did not immediately administer CPR to a resident who was full code, the facility failed to provide him with basic life support, which put it out of substantial compliance with 42 C.F.R. § 483.24(a)(3).

2. The undisputed evidence establishes that the penalty imposed is reasonable.

To determine whether the CMP 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

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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 above factors.  I am neither bound to defer to CMS’s factual assertions, nor free to make a wholly independent choice of remedies without regard for CMS’s discretion.  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; CarePlex of Silver Spring, DAB No. 1683 at 8 (1999).

The burden is on the facility to demonstrate that a reduction is necessary to make the CMP amount reasonable.  Heritage Plaza Nursing Ctr., DAB No. 2829 at 22 (2017).

Penalties are inflation-adjusted and change annually (more or less).  The amount is determined as of the date the penalty is assessed, in this case, on August 5, 2021.  CMS Ex. 1; see 85 Fed. Reg. 2869.  At that time, the per-instance range was from $2,233 to $22,320.  42 C.F.R. §§ 488.408(d), 488.438(a)(2); 45 C.F.R. § 102.3; 85 Fed. Reg. 2869, 2880 (Jan. 17, 2020).

CMS imposed a per-instance penalty of $21,845, which is in the upper range for per-instance penalties.  42 C.F.R. §§ 488.408(d), 488.438(a)(2); 45 C.F.R. § 102.3; 85 Fed. Reg. 2869, 2880 (Jan. 17, 2020).  Considering what CMS might have imposed – a comparable per-day penalty for multiple days of substantial noncompliance (based on staff’s disregard of advance directives and physician orders), this penalty is relatively modest.  Plum City Care Ctr., DAB No. 2272 at 18-19 (2009) (observing that even the maximum per-instance CMP can be “a modest penalty when compared to what CMS might have imposed.”).⁵

Applying the relevant factors here, the $21,845 per-instance penalty is reasonable. 

CMS has presented evidence showing that the facility has a significant history of substantial noncompliance, and Petitioner has neither challenged that evidence nor submitted counter-evidence, creating a factual dispute on that issue.  CMS Nurse Consultant Susana Cruz reviewed the facility’s compliance history since January 1, 2018, and testified that the facility was repeatedly found not in substantial compliance (“eight noncompliance cycles”) during the time.  CMS Ex. 8 at 2 (Cruz Decl. ¶ 3).  By itself, the facility’s history justifies a significant penalty.

Petitioner does not claim that its financial condition affects its ability to pay the penalty.

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Applying the remaining factors, an LVN neglected her responsibility to a resident who had made his wishes known, which demonstrates disregard for his care and safety.  She did not check his code status; she did not immediately perform CPR; she did not contact the emergency medical services.  For these failures the facility is culpable.  As discussed above, the Board has repeatedly determined that staff’s failing to administer CPR in accordance with a resident’s directive constitutes a serious deficiency, compromising the safety of all full-code residents.  N. Las Vegas, DAB No. 2946; Southpark Meadows, DAB No. 2703; Royal Manor, DAB No. 1990.

Petitioner has thus not met its burden of establishing that the penalty imposed is unreasonable.

Conclusion

The facility was not in substantial compliance with 42 C.F.R. § 483.24(a)(3), and the penalty imposed – $21,845 per-instance – is reasonable.

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Endnotes

¹  Petitioner has also parsed through CMS exhibits – surveyor notes and the declarations of its witnesses – and pulled out portions to which it objects.  Petitioner’s Objections to CMS’s Proposed Exhibits.  Because I decide this case on summary judgment, I need not rule on those objections.  Lilia Gorovits, M.D., P.C., DAB No. 2985 at 3 n.4 (2020); Ill. Knights Templar Home, DAB No. 2274 at 6-7 (2009).

²  The scope and severity of the deficiency is, nevertheless, not irrelevant.  In determining whether the amount of the CMP is reasonable, I consider (among other factors) the scope and severity of the deficiency.  42 C.F.R. §§ 488.438(f), 488.404 (see discussion below).

³  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.

⁴  My findings of fact/conclusions of law are set forth, in italics and bold, in the discussion captions of this decision.

⁵  A per-day penalty could have been as high as $22,320.  85 Fed. Reg. 2869, 2880 (Jan. 17, 2020).