Paris Health and Rehabilitation Center, DAB CR6370 (2023)

DECISION

Paris Health and Rehabilitation Center (Petitioner or the facility) is a skilled nursing facility located in Paris, Arkansas, that participates in the Medicare program.  On May 20, 2022, it was notified by the Centers for Medicare and Medicaid Services (CMS) that, based on an inspection by the State Survey Agency on April 15, 2022, it was found, as relevant herein, to be out of compliance with 42 C.F.R. § 483.25(d)(1)(2), Free of Accident Hazards/Supervision/Devices, Tag F0689, at the immediate jeopardy level.¹  CMS Exhibit (Ex.) 2.  For that noncompliance, CMS imposed a $6,900.00 per‑day civil money penalty (CMP) for 42 days, beginning March 3, 2022, and continuing through

Page 2

April 13, 2022, for a total CMP of $289,800.00.²  Id. at 2; CMS Ex. 3 at 1.  Petitioner filed a timely RH on July 18, 2022.  

I.  Background

The Social Security Act (Act) sets forth requirements for nursing facility participation in the Medicare program and authorizes the Secretary of Health and Human Services (Secretary) to promulgate regulations implementing the 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 with program participation requirements.  Act § 1864(a); 42 C.F.R. § 488.20.  The regulations require that each facility be surveyed once every twelve months, and 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.  

In this case, a survey of the facility was completed on April 15, 2022.  CMS Ex. 1.  Based on the survey findings, CMS determined that the facility was not in substantial compliance with federal requirements for nursing homes participating in the Medicare and Medicaid programs, and a deficiency existed which posed immediate jeopardy to resident health and safety.  CMS Ex. 2.  Specifically, as relevant herein, it found that the facility did not meet federal requirements under 42 C.F.R. § 483.25(d)(1)(2) (Tag F0689 – Free of Accident Hazards/Supervision/Devices).  Id. at 1.  CMS imposed a total CMP of $289,800.00 for this deficiency.  Id. at 2; CMS Ex. 3 at 1. 

Petitioner timely requested a hearing.  On July 20, 2022, Judge Leslie A. Weyn issued a Standing Prehearing Order, setting forth prehearing procedures.³  Both parties filed their prehearing exchanges, including prehearing briefs (CMS PH Br. and P. PH Br.).  With its brief, CMS submitted 16 proposed exhibits, including the written direct testimony of two witnesses (CMS Exhibits (Exs.) 1-16).  Petitioner submitted six proposed exhibits, including the written direct testimony of three witnesses and the declaration of an expert witness (P. Exs. 1-6).  Neither party filed objections to the proposed exhibits of the opposing party.  As a result, consistent with the Standing Prehearing Order of Judge

Page 3

Weyn requiring the parties to file objections to proposed exhibits with their prehearing exchanges, I admit CMS Exs. 1-16 and P. Exs. 1-6 into the record.  

Both parties filed requests to cross-examine the opposing party’s witnesses.  However, on March 10, 2023, the parties filed a Joint Motion by Petitioner and Respondent to Submit This Matter on the Written Record, indicating that both parties wished to withdraw the previously filed requests to cross-examine the other party’s witnesses.  Because a hearing to cross-examine witnesses was no longer necessary, the record was closed in an Order granting the joint motion dated March 17, 2023.  Accordingly, the decision will be issued based on the written record.⁴  Standing Prehearing Order ¶¶ 9, 10, 12. 

II.  Issues

1. Whether the facility was in substantial compliance with 42 C.F.R. §  483.25(d)(1)(2);
2. If the facility was not in substantial compliance with 42 C.F.R. § 483.25(d)(1)(2), whether CMS’s determination that the noncompliance immediately jeopardized the health and safety of the facility’s residents was clearly erroneous; and 
3. If the facility was not in substantial compliance, are the penalty amounts imposed reasonable?  

III.  Discussion

1. The facility was not in substantial compliance with 42 C.F.R. § 483.25(d)(1)(2).

42 C.F.R. § 483.25 provides that quality of care is a fundamental principle that applies to all care and services provided to facility residents.  The facility must ensure that residents receive treatment and care in accordance with professional standards of practice, the comprehensive person-centered care plan, and the resident’s choices.  Under the provisions of 42 C.F.R. § 483.25(d), the facility must ensure that—

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

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

42 C.F.R. § 483.25(d). 

Page 4

The facts in this case are not in dispute.  At the time of the survey, Resident 62 (R62) was 81 years of age and had been a resident of the facility since 2012.  CMS Ex. 6 at 1.  He had diagnoses of multiple sclerosis, heart failure, osteoporosis, and generalized muscle weakness.  CMS Ex. 1 at 9; CMS Ex. 6 at 7.  He required the assistance of two or more persons with bed mobility, toileting, transfers, and one person assist with personal hygiene and bathing.  CMS Ex. 6 at 3-4.  No cognitive problems were noted on the Minimum Data Set (MDS) dated March 11, 2022.  CMS Ex. 6 at 2, 15. 

According to a Resident Incident Report, on March 3, 2022, R62 was in a shower chair and the Certified Nursing Assistant (CNA) was transporting him⁵ into the B side shower room when the shower chair hit the lip of the doorway and he fell out of the chair onto the floor.  CMS Ex. 12.  He was assisted back into the chair with a gait belt.  Id.  R62 complained of pain in the left hip, tailbone pain, and of hitting his head.  Id. at 4.  An initial X-ray of the left hip on March 3, 2022 showed only internal fixation of the hip with hardware.  CMS Ex. 9.  R62 continued to complain of left leg and hip pain and a subsequent CT scan on March 16, 2022 demonstrated a minimally displaced fracture of the left inferior pubic ramus.  CMS Ex. 11.  R62 was then placed on bedrest for four to six weeks.  CMS Ex. 8 at 2. 

The facility concluded the Resident Incident Report by indicating that “staff verbally inserviced to ask for help when assisting shower chair over ledge.”  CMS Ex. 12 at 3.  This in-servicing was documented in a form dated March 3, 2022, indicating the involved employee was advised to “[e]nsure when entering shower room with resident in shower chair always pull resident into shower room with resident facing outward due to lip of tile.”  CMS Ex. 13. 

CMS asserts that Petitioner violated 42 C.F.R. § 483.25(d) because it “failed to ensure that its resident environment remained ‘as free of accident hazards as is possible’ by the presence of a ‘lip’ on the floor of the shower room which presented an obvious fall hazard for residents being transported [to] the shower” and “failed to ensure R62 was

Page 5

secured in the shower chair, safely transport him, and adequately supervise him and provide him with sufficient assistance to prevent falling from the shower chair.”  CMS PH Br. at 8. 

I would initially note that several of the bases for CMS’s argument are not supported by the record.  CMS asserts that R62 should have been strapped into the shower chair during the transport to the shower and the facility did not provide the “two person plus” assist required by R62’s MDS.  CMS PH Br. at 8.  However, as Petitioner indicates, R62 did not have a medical condition that would have required the implementation of a lap belt with his motorized wheelchair or with the shower chair and, absent that medical condition, use of a lap belt raised concerning questions about the use of physical restraints on residents without justification. P. PH Br. at 10-11 (citing P. Ex. 2 at 2). Moreover, CMS incorrectly interpreted the requirement for a two person assist in the care plan and the MDS.  As Petitioner correctly notes, the “2 person +physical assist” was required during transfer, which refers to a “resident’s ability to move between surfaces - to/from: bed, chair, wheelchair, and standing positions.”  P. PH Br. at 11-12 (citing State Operations Manual, CMS Pub. 100-07, Appendix PP – Guidance to Surveyors for Long Term Care Facilities, definitions under Tag F0677). 

Petitioner further argues that the “lip” or threshold in the shower room is less than ¼ inch in height and is less than the maximum height allowed for straight vertical thresholds without a ramp or beveled edge established by the Americans with Disabilities Act.  P. PH Br. at 5.  I would agree with Petitioner that the less than ¼ inch threshold or “lip,” in and of itself, was not a standalone safety issue, such as a broken wheelchair, Ridgecrest Healthcare Ctr., DAB No. 2493 (2013), or black mold contamination, Franklin Care Ctr., DAB No. 4922 (2017). 

Petitioner primarily challenges the allegation that R62’s fall and resulting injury was an accident that should have prevented.  Instead, as its expert witness asserts, it was an “unavoidable accident because it did not result from a reasonably identified hazard in the facility, and the facility was therefore under no obligation to treat it as an environmental hazard nor to develop interventions to eliminate or minimize it as an environmental hazard.”  P. PH Br. at 4 (quotingP. Ex. 4 at 6).  It argues that the accident in this case was not reasonably foreseeable and cites as support the testimony of the facility Administrator that residents at the facility had been transported to and from shower rooms in shower chairs over 9,400 times without any falls prior to the fall at issue here.  P. PH Br. at 5-6 (citing P. Ex. 1 at 2-3). 

Petitioner is correct that an accident must be foreseeable and avoidable to support a finding of noncompliance under 42 C.F.R. § 483.25(d).  Although this regulation does not make a facility strictly liable for all accidents that occur, the Departmental Appeals Board (Board) has repeatedly held that the facility must “take all reasonable steps to ensure that a resident receives supervision and assistance devices that meet his or her

Page 6

assessed needs and mitigate foreseeable risks of harm from accidents.”  Briarwood Nursing Ctr.,DAB No. 2115 at 5 (2007) (citing Woodstock Care Ctr. v. Thompson, 363 F.3d 583, 590 (6th Cir. 2003)); Guardian Health Care Ctr.,DAB No. 1943 at 18 (2004) (citing42 C.F.R. § 483.25(h)(2)).⁶  The facility must anticipate what accidents might befall a resident and take steps to prevent them.  A facility is permitted the flexibility to choose the methods it uses to prevent accidents, but the chosen methods must constitute an “adequate” level of supervision under all the circumstances.  Briarwood,DAB No. 2115 at 5; Windsor Health Care Ctr.,DAB No. 1902 at 5 (2003).  

Moreover, as the Board stated in Josephine Sunset Home, DAB No. 1908 at 13 (2004), the “mere fact that an accident occurred does not, in itself, prove that the supervision or devices provided must have been inadequate to prevent it.”  On the other hand, it is not a prerequisite to finding noncompliance under section 483.25(h)(2) that any actual accident occurred or be caused by the inadequate supervision.  Woodstock Care Ctr., DAB No. 1726 at 17 (2000).  The occurrence of an accident is relevant to the extent the surrounding circumstances shed light on the nature of the supervision being provided and its adequacy for the resident’s condition.  St. Catherine’s Care Ctr. of Findlay, Inc., DAB No. 1964 at 12 (2005) (accident circumstances may support an inference that the facility’s supervision of a resident was inadequate).  

The question here then becomes whether the facility took “reasonable” steps to avoid a “foreseeable” risk of a resident falling out of a shower chair when being pushed into the shower room.  After carefully considering the entire record, I find that it did not. 

Petitioner asserts that “the facility had no reason to think the shower room thresholds in the facility present a risk or hazard,” as demonstrated by the years of safe transports over those thresholds.  P. PH Br. at 9.  However, the facility either knew, or should have known, that when transporting an unrestrained resident in a shower chair into the shower, the “lip” or bump created a safety hazard because of the risk of the resident being tossed out of the chair.  During the inspection, a surveyor interviewed CNAs, the individuals who did the transporting to the shower, and found they were aware of the problem of the “lip” when entering the shower with a resident in a shower chair.  Surveyor Williams testified:  

CNA # 1 was asked, “How do you take a resident into the B hall shower if they are in a shower chair?”  CNA # 1 stated, “Oh, on that one you have to pull the resident in backwards due to the little ledge going into the room.”  CNA # 1 was

Page 7

asked, “How do you know that?”  CNA # 1 stated, “I just figured it out.”  

CNA # 4 was asked, “How do you take a resident into the B hall shower if they are in a shower chair?”  CNA # 4 stated, “To get a resident into the B hall shower I have to pull the resident backwards into that shower.”  CNA # 4 was asked, “How do you know to do that?”  CNA # 4 stated, “It is really just common sense.”  

CNA # 5 was asked, “How do you take a resident in a shower chair into the B hall shower?”  CNA # 5 stated, “I cover them up and pull them through the door backwards due to the ledge going into that shower and some of the residents are heavier than others and with that ledge it is just for safety really.” 

CMS Ex. 4 at 19-20. 

Thus, the statements from the staff who actually did the transporting indicate that they were aware of the risk of a resident falling out of a shower chair and they developed techniques for addressing that risk.  Moreover, the statement from the Staff Development Nurse, discussed below, that “I usually tell staff to go backwards while standing in front of the resident, so the chair does not tip” (CMS Ex. 4 at 15) also demonstrates that the facility was aware of the risks posed by the shower room thresholds.  As a result, the facility knew, or should have known, that transporting a resident in a shower chair over the threshold, or “lip,” into the shower room created a foreseeable risk of an accident. 

The next inquiry would be whether the facility took reasonable steps to avoid this foreseeable accident.  The interviews with the CNAs cited above illustrated the fact that there was no facility policy or formalized training on how to safely transport a resident in a shower chair into the B hall shower.  Consistent with the statements from the CNAs on this issue, Licensed Practical Nurse (LPN) # 3 was asked by the surveyor about the correct way to take a resident in a shower chair into the shower.  CMS Ex. 4 at 17.  LPN # 3 replied that “I don’t know that we have a policy on that.  I was always taught to back through the door.”  CMS Ex. 4 at 17.  Facility administrators acknowledged the informal nature of transmitting information on how to safely transport residents into the shower room.  The surveyor interviewed the Staff Development Nurse, who was asked: 

“How are staff supposed to push the residents in the shower chair into the shower room?”  The Staff Development Nurse stated, “They all know to go backwards, so that does not happen.  The aide taking the resident to the shower had only worked at the facility for 2 or 3 days.”  I asked the Staff

Page 8

Development Nurse, “How do the aides know to take the residents backwards in the shower chair into the shower room?”  The Staff Development Nurse stated, “Usually the more experienced aides tell the new aides to go in backwards when they are training them.” 

CMS Ex. 4 at 14. 

In essence, then, the facility relied on oral history, i.e., experienced aides passing down learned knowledge to newer aides on how to get a resident in a shower chair into the shower.  The inadequacy of this approach is seen in the statements of the CNAs interviewed by the inspector.  As indicated above, none of those CNAs reported getting training from a peer or anyone else on how to safely transport a resident in a shower chair.  CMS Ex. 4 at 19-20.  “Figuring it out” or using “common sense” are not reasonable steps to avoid the foreseeable risk of a resident falling out of a shower chair while being pushed over a threshold. 

The Board has provided interpretative guidance for adjudicating the question of whether the accident in question could be reasonably foreseen: 

The standard in section 483.25(h)(1) itself - that a facility “ensure that the environment is as free of accident hazards as possible” in order to meet the quality of care goal in section 483.25 -- places a continuum of affirmative duties on a facility.  A facility must determine whether any condition exists in the environment that could endanger a resident's safety.  If so, the facility must remove that condition if possible, and, when not possible, it must take action to protect residents from the danger posed by that condition. . . .  In other cases, an [administrative law judge (ALJ)] may need to consider the actions the facility took to identify, remove, or protect residents from the hazard.  Where a facility alleges (or shows) that it did not know that a hazard existed, the facility cannot prevail if it could have reasonably foreseen that an endangering condition existed either generally or for a particular resident or residents. 

Me. Veterans’ Home – Scarborough, DAB No. 1975 at 6-7 (2005). 

In this case, it may well have been that R62’s fall was the first time a resident had fallen out of a shower chair while going over the “lip” in the B hall shower.  However, the fact that the CNAs who transported the residents into the shower were aware of the risk of residents falling out of the shower chair when going over the “lip” should have put the

Page 9

facility on notice of this foreseeable risk of injury to residents and the need to take reasonable steps to prevent such risks. 

Petitioner then takes the position that the decision not to retrain all staff was not a violation of Tag F0689.  P. PH Br. at 13.  It argues that “[a]fter RI # 62’s fall, the facility’s management determined that it was appropriate to retrain the CNA who was transporting the resident when he fell, but did not believe that it was necessary or prudent to retrain all direct care staff,” citing the Administrator’s many years of experience without a similar event.  P. PH Br. at 14-15.  Ilene Warner-Maron, Ph.D., Petitioner’s expert witness, added her opinion that “the decision of the facility to limit education to a single CNA rather than the entire direct care staff was sound, reasonable and appropriate.”  P. Ex. 4 at 8. 

I do not find the approach of training only the involved CNA to constitute a “reasonable step,” in the face of the evidence.  Ms. Warner-Maron herself notes that “the resident himself told surveyors that he had, at times, been pushed over the threshold of the shower room facing forward.  The CNA involved in the incident was relatively new, indicating that she was not the only CNA who had used this technique.”  P. Ex. 4 at 4 (emphasis added).  Knowing this, it is difficult to see how training only the new CNA who was involved in the accident was reasonable.  Moreover, Ms. Warner-Maron does not address the statements from the interviewed CNAs, all of whom indicated they had developed their own techniques for handling the “lip” and did not receive any facility training on this.  Once the facility became aware that not all the CNAs were transporting residents into the shower in a safe manner, the “sound, reasonable, and appropriate” reaction would have been to train all the CNAs.  For these reasons, Ms. Warner-Maron’s opinion on the reasonableness of the response to the accident is not given weight. 

In her declaration, Jaclyn Hughes, the facility administrator, stated that given the tens of thousands of transports over the same threshold completed without incident, she “did not think it was necessary or prudent to pull all direct care staff away from resident care duties in order to train them on how to safely transport residents into the shower room when they obviously already knew how to do that and were doing so consistently without incident.”  P. Ex. 1 at 4.  Whether training only the involved CNA was a necessary or prudent step is not an issue before me.  The question is whether the facility took all reasonable steps to ensure R62 and other residents received supervision and assistance devices that met their needs and mitigated foreseeable risks of harm from accidents.  It was apparent from the record that the involved CNA was not the only staff member who utilized an unsafe technique when entering the shower room.  The statement from R62 that the incident on March 3, 2022 was not the only time he had been pushed into the shower room in the forward position indicated that not all staff “obviously already knew how to do that.”  CMS Ex. 4 at 13.  Statements from the interviewed CNAs and LPN # 3 confirmed that there was little to no facility policy on how to safely transport residents into the shower room.  A reasonable (and likely prudent) approach would be to then

Page 10

ensure that all CNAs were aware of the appropriate means of safely transporting residents into the B hall shower by conducting an in-service on this topic.  For these reasons, I give no weight to the opinion of Ms. Hughes on the reasonableness of the facility’s response to the accident on March 3, 2022. 

In essence, Petitioner’s argument that it was reasonable to only retrain the involved CNA is also considered to be an argument that it returned to substantial compliance on March 3, 2022, the date of that retraining, rather than April 14, 2022, when the entire staff was retrained. ⁷  However, as discussed extensively above, the failure to have a formal policy on how to safely transport residents in a shower chair into the shower of which all staff was aware cannot be found to be the provision of “adequate supervision and assistance devices to prevent accidents.”  Therefore, after carefully considering the entire record, I find that the facility did not take all reasonable steps to ensure that its residents received supervision and assistance devices that met their assessed needs and did not mitigate foreseeable risks of harm from accidents.  As a result, it was not in substantial compliance with the requirements of 42 C.F.R. § 483.25(d) prior to April 14, 2022. 

B. CMS’s determination that the facility’s substantial noncompliance posed immediate jeopardy to resident health and safety is not clearly erroneous. 

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 (2005) (citing Florence Park Care Ctr., DAB No. 1931 at 27‑28 (2004)); Daughters of Miriam Ctr., DAB No. 2067 at 7, 9 (2007). 

Petitioner asserts that its actions “did not result in an immediate jeopardy condition because it was not likely to result in serious injury, harm, impairment, or death to RI #62 or any other residents.”⁸  P. PH Br. at 2.  It argues that “even if the failure to retrain all direct-care staff constituted a deficient practice, the contention that the failure to conduct this training made serious injury, harm, impairment, or death likely is utterly belied by the

Page 11

statistical improbability of this accident.”  P. PH Br. at 23 (citing P. Ex. 4 at 7).  Petitioner, once again, relies on the argument that the accident on March 3, 2022 was the first accident that occurred after thousands of transports and, therefore, there was no risk of serious harm. 

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

I have discussed in detail why the facility was not in substantial compliance and did not return to substantial compliance prior to April 14, 2022.  Here, Petitioner does not address, and does not directly challenge, the evidence indicating there was no facility policy on how to safely transport residents in a shower chair over the threshold, even though some staff members were aware of the risk and developed ad hoc methods of addressing that risk independently.  Petitioner also does not address, or directly challenge, the evidence that this was not the first time R62 was pushed from the front into the shower room.  See CMS Ex. 4 at 13.  Petitioner’s expert witness herself points out that the new CNA “was not the only CNA who had used this technique.”  P. Ex. 4 at 6.  Given the number of vulnerable residents who were transported into the shower by way of a shower chair, the failure to ensure that all staff were aware of the risks and the appropriate way to address that risk through training did result in serious harm to R62 and created a risk for serious harm and impairment to those other residents of the facility.  

Based on the above evidence, I find that CMS’s determination that the deficiencies posed immediate jeopardy to resident health and safety was not clearly erroneous. 

C. The penalties imposed are reasonable in amount and duration.

In assessing the reasonableness of any penalties imposed, consideration is given to the factors listed in 42 C.F.R. § 488.438(f):  1) the facility’s history of noncompliance; 2) the facility’s financial condition; 3) the factors specified in 42 C.F.R. § 488.404; and 4) the facility’s degree of culpability, which includes neglect, indifference, or disregard for resident care, comfort, or safety.  See 42 U.S.C. §§ 1320a-7a(d)(2), 1395i‑3(h)(2)(B)(ii)(I).  The absence of culpability is not a mitigating factor.  42 C.F.R. § 488.438(f).  The factors listed in 42 C.F.R. § 488.404 include:  1) the scope and severity of the deficiency; 2) the relationship of the deficiency to other deficiencies resulting in noncompliance; and 3) the facility’s prior history of noncompliance in general and specifically with reference to the cited deficiencies.  See 42 U.S.C. §§ 1320a‑7a(d)(1), (3), 1395i-3(h)(2)(B)(ii)(I). 

Page 12

CMS imposed a $6,900 per-day CMP for each day of immediate jeopardy (March 3, 2022 through April 13, 2022), which is near the minimum CMP for immediate jeopardy level deficiencies ($6,888 to $22,584).  42 C.F.R. §§ 488.408(e)(1)(iii), 488.438(a)(1)(i).  These amounts are modest when measured against the maximum allowable CMP amount. 

Petitioner does not directly challenge the reasonableness of the penalties in this case, beyond the argument that immediate jeopardy level penalties are not appropriate.  It has not presented any specific argument addressing the factors cited in the regulation for assessing the reasonableness of the CMP.  Petitioner failed to argue that any of the factors support a reduction of the CMP amount.  Because of the presumption that CMS has considered the regulatory factors in setting the amount of the CMP and that those factors support the CMP amount imposed by CMS, unless a facility contends that a particular regulatory factor does not support the CMP amount, an ALJ must sustain it.  Coquina Ctr., DAB No. 1860 at 32 (2002).  On that basis, I conclude that the CMP amount is reasonable. 

IV.  Conclusion

For the reasons discussed above, I find that the facility was not in substantial compliance with 42 C.F.R. § 483.25(d)(1)(2) during the period from March 3, 2022 through April 13, 2022, and its noncompliance during that period posed immediate jeopardy to resident health and safety.  I affirm, as reasonable, the penalties imposed. 

---

Endnotes

¹  While the facility was found not in substantial compliance with several other Medicare requirements at that survey, Petitioner has only appealed the above finding and the associated penalties.  Request for Hearing (RH) at 1.  Petitioner did include a brief statement at the beginning of its Prehearing Brief that it also disputed that non-compliance existed at the facility from April 14, 2022 through May 5, 2022.  Petitioner’s Prehearing Brief (P. PH Br.) at 1.  However, it did not provide any further argument on this issue.  As a result, that issue is not addressed in this decision.

²  CMS imposed additional remedies, including other CMPs, but they were not appealed by Petitioner and are not addressed in this decision.  CMS Ex. 2 at 1-2; CMS Ex. 3 at 1.

³  This case was reassigned to me on June 30, 2023.

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

⁵  There is a conflict in the record with respect to the exact manner in which R62 was being pushed into the B side shower room.  According to the above Resident Incident Report, the CNA walked in backwards, pulling the resident in the shower chair.  CMS Ex. 12 at 1.  However, the Director of Nursing reportedly told the surveyor that the CNA “pushed him forward into the shower room and the shower chair hit the lip at the entrance and he fell forward.”  CMS Ex. 4 at 12.  R62 told the surveyor that the CNA “pushed me forward and the chair tilted forward, and I was tipped out.”  Id.  R62 also indicated that this was not the only time that someone had pushed him into the shower room in the forward position.  CMS Ex. 4 at 13.  Given the fact that R62 would certainly know how he was being pushed, it is more likely he was being pushed forward into the shower room when the incident occurred.

⁶  The regulations governing long-term care facilities have been revised.  The requirement that facilities minimize the risk of accidents was previously at § 483.25(h) and is now found at § 483.25(d).  81 Fed. Reg. 68,688 (Oct 4, 2016); 82 Fed. Reg. 32,256 (Jul. 13, 2017).

⁷  Petitioner’s argument that the failure to retrain all staff did not constitute immediate jeopardy is addressed below.

⁸  This argument ignores the fact that R62 sustained a left inferior pubic ramus or pelvic fracture as a result of the fall.  CMS Ex. 11 at 1.  It is difficult to imagine an argument that this was not a “serious injury”.