Brookside Healthcare & Rehabilitation Center, DAB CR6465 (2024)

DECISION

Brookside Healthcare & Rehabilitation Center (hereinafter referred to as “Brookside,” “Petitioner,” or “the facility”) challenges the determination by the Centers for Medicare & Medicaid Services (CMS) that it was not in substantial compliance with Medicare participation requirements.  Petitioner also challenges the length of the non-compliance and the imposition of the $1,300 per day civil money penalty (CMP) imposed from November 25, 2021, through January 3, 2022.

As explained below, the record supports CMS’s finding of noncompliance. Based on the evidence presented, I find that there is a basis for the imposition of enforcement remedies and the per day CMP amount is reasonable.

I. Background and Procedural History

Brookside Healthcare & Rehabilitation Center is a skilled nursing facility (SNF) located in Roslyn, Pennsylvania, that participates in the Medicare and Medicaid programs. CMS Exhibits (Exs.) 1 at 1; 3 at 1.

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From November 30 to December 3, 2021, the Pennsylvania Department of Health (state agency) conducted a standard survey to determine whether Petitioner was in substantial compliance with Medicare participation requirements.  CMS Exs. 1; 3.  The state agency surveyors found, and CMS later agreed, that the facility was not in substantial compliance with the following Medicare participation requirements:

• 42 C.F.R. §483.12(a)(1) (Tag F600) - Free from Abuse and Neglect, scope and severity (s/s) level G (an isolated instance of noncompliance that caused actual harm but does not constitute immediate jeopardy to resident health or safety)¹;
• 42 C.F.R. §483.60(i)(1)(2) (Tag F812 – Food Procurement, Store/Prepare/Serve-Sanitary), s/s level F;
• 42 C.F.R. §483.10(f)(1)-(3)(8) (Tag F561 – Self-Determination), s/s level E;
• 42 C.F.R. §483.21(b)(1) (Tag F656 – Develop/Implement Comprehensive Care Plan), s/s level D;
• 42 C.F.R. §483.25(c)(1)-(3) (Tag F688 – Increase/Prevent Decrease in ROM/Mobility), s/s level D;
• 42 C.F.R. §483.60(d)(3) (Tag F805 – Food in Form to Meet Individual Needs), s/s level D; and
• 42 C.F.R. §483.60(g) (Tag F810 – Assistive Devices – Eating Equipment/Utensils), s/s level D.

CMS Ex. 1 at 1, 3, 6, 8, 9, 11, 12. By letter dated March 9, 2022, CMS notified Petitioner of the noncompliance determinations and resulting remedies.  CMS Ex. 3 at 1-2.  CMS explained that the facility had returned to substantial compliance as of January 4, 2022 and that a $1,300 per-day CMP was imposed for 40 days beginning November 25, 2021, through January 3, 2022, for a total CMP of $52,000.  CMS Ex. 3 at 2.

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Petitioner filed a request for an administrative law judge (ALJ) hearing on May 6, 2022. The case was assigned to me for hearing and decision under Docket No. C-22-510.

CMS filed a prehearing exchange that included a prehearing brief (CMS Pre-hrg. Br.), as well as 55 proposed exhibits (CMS Exs. 1-55).  Two of CMS’s exhibits (CMS Exs. 52, 53) are written direct testimony from witnesses.  Brookside filed a prehearing exchange that included a prehearing brief (P. Pre-hrg. Br.), as well as 11 proposed exhibits (P. Exs.1-11). Petitioner proposed no witnesses, nor submitted the written direct testimony of any witness.

A hearing was conducted on February 21, 2023. On March 20, 2023, a Notice of Receipt of Transcript and Post Hearing Briefing Schedule was issued.  Thereafter, each party filed post-hearing briefs (CMS Br.; P. Br.). CMS waived its reply to Petitioner’s post-hearing brief.

II. Admission of Exhibits and Decision

At the February 21, 2023 hearing, in the absence of objections, CMS Exs. 1-55 and P. Exs. 1-11 were admitted into evidence.  Transcript (Tr.) at 3 ¶¶8-14; 45 ¶24 through 46 ¶9.

The record is closed, and this decision will be issued based on the parties’ briefs, exhibits, and the transcript of the hearing testimony.  Standing Prehearing Order ¶11; Civil Remedies Division Procedures §22(a).

III. Issues

The remaining issues are as follows:

1. Whether Brookside was in substantial compliance with 42 C.F.R. §483.12(a)(1) (Tag F600, s/s level G); and
2. If Brookside was not in substantial compliance, whether a $1,300 per-day CMP for 40 days from November 25, 2021 through January 3, 2022, is reasonable.

Brookside has not challenged the findings of noncompliance with 42 C.F.R.
§483.60(i)(1)(2) (Tag F812), 42 C.F.R. §483.10(f)(1)-(3)(8) (Tag F561), 42 C.F.R.
§483.21(b)(1) (Tag F656), 42 C.F.R. §483.25(c)(1)-(3) (Tag F688), 42 C.F.R.
§483.60(d)(3) (Tag F805), or 42 C.F.R. §483.60(g) (Tag F810). P. Pre-hrg Br. at 5 n.1.
As a result, those deficiencies are administratively final.

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IV. Jurisdiction

This tribunal has 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).

V. Legal Authorities

The Act sets requirements for SNFs to participate in the Medicare program and authorizes the Secretary of the U.S. Department of Health & Human Services to promulgate regulations implementing those statutory provisions. Act §1819 (42 U.S.C. §1395i-3). Those regulations are found at 42 C.F.R. part 483 and 488.

To participate in the Medicare program, a SNF must maintain substantial compliance with program requirements.  42 U.S.C. §1395i-3(a)(3), (b)-(d); 42 C.F.R. pt. 483, subpt.B.  When a SNF fails to meet a statutory or regulatory participation requirement, then the SNF has a “deficiency.”  42 C.F.R. §488.301; see 42 U.S.C. §1395i-3(h)(1).  “Noncompliance” means “any deficiency that causes a facility to not be in substantial compliance.”  42 C.F.R. §488.301; see also 42 U.S.C. §1395i-3(h)(3).  To maintain “substantial compliance,” a SNF’s deficiency may “pose no greater risk to resident health or safety than the potential for causing minimal harm.”  42 C.F.R. §488.301.

When CMS selects an enforcement remedy to impose on a SNF, it determines the scope (i.e., the number of residents affected or potentially affected) and severity (i.e., the degree of harm or potential harm) for each deficiency.  See 42 C.F.R. §488.404(a)-(b); see also 42 U.S.C. §1395i-3(h)(2)(B)(ii)(III)(bb). 

CMS may impose a per-day CMP for the number of days a SNF is not in substantial compliance.  42 U.S.C. §1395i‑3(h)(2)(A), (h)(2)(B)(ii)(I); 42 C.F.R. §488.430(a).  For CMPs assessed on or after November 15, 2021, if the deficiencies occurred on or after November 2, 2015, the CMP amounts may range as follows:  $113 to $6,774 per day for less serious noncompliance; or $6,888 to $22,584 per day for noncompliance that poses immediate jeopardy to the health and safety of residents.² 45 C.F.R. §102.3; 86 Fed. Reg. 62,928, 62,942 (Nov. 15, 2021); see 42 C.F.R. §488.438(a)(1) (providing the original CMP amounts before statutory inflation adjustments).

If CMS imposes a remedy based on a noncompliance determination, then the facility may request a hearing before an ALJ to determine whether there was a basis for the deficiency findings that led to the imposition of the remedy and whether the CMP imposed was

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reasonable. Act §§1128A(c)(2) (42 C.F.R. §1320a-7a(c)(2)), 1819(h)(2)(B)(ii) (42 U.S.C. §1395i-3(h)(2)(B)(ii)); 42 C.F.R. §§488.408(g), 488.434(a)(2)(viii), 498.3(b)(13). However, the facility may not appeal CMS’s choice of remedies.  42 C.F.R. §488.408(g)(2).

CMS must make a prima facie showing that the facility failed to comply substantially with federal participation requirements. If this occurs, the facility must prove substantial compliance by a preponderance of the evidence in order to rebut CMS’s showing and to prevail.³  Hillman Rehab. Ctr., DAB No. 1611 at 8 (1997), 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), aff’d sub nom. Batavia Nursing & Convalescent Ctr. v. Thompson,129 F. App’x 181 (6th Cir. 2005); Emerald Oaks, DAB No. 1800 (2001); Cross Creek Health Care Ctr., DAB No. 1665 (1998).

VI. Findings of Fact

1. Petitioner is a dually participating skilled nursing facility.  P. Pre-hrg. Br. at 1.
2. On November 25, 2021, a nurse aide employed at Petitioner’s facility attempted to transfer Resident 49 from his bed to the toilet.  The nurse aide was aware that Resident 49 required the use of a mechanical Hoyer lift and two people’s assistance to help with the transfer.  However, the nurse aide attempted the transfer alone using a sit-to-stand lift and was unable to maintain control of Resident 49.  This resulted in Resident 49 falling from the lift and hitting his head on the ground.  P. Pre-hrg. Br. at 1, 3-4; P. Ex. 2; CMS Ex. 13.
3. Petitioner concedes that Resident 49 was improperly transferred and that it was not in substantial compliance with 42 C.F.R. §483.12(a)(1) (Tag F600).  P. Pre-hrg. Br. at 9.
4. From November 30 to December 3, 2021, surveyors from the state agency conducted an annual recertification survey at Petitioner’s facility. CMS Exs. 1, 3.

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5. The state survey agency found Petitioner was not in compliance with 42 C.F.R.
   §483.10(f)(1)-(3)(8) (Tag F561), 42 C.F.R. §483.12(a)(1) (Tag F600), 42 C.F.R.
   §483.21(b)(1) (Tag F656), 42 C.F.R. §483.25(c)(1)-(3) (Tag F688), 42 C.F.R.
   §483.60(d)(3) (Tag F805), 42 C.F.R. §483.60(g) (Tag F810), and 42 C.F.R.
   §483.60(i)(1)(2) (Tag F812).  CMS Exs. 1, 3.
6. Petitioner submitted a plan of correction (POC) with steps it intended to take to return to substantial compliance with Medicare participation requirements.  CMS Ex. 1.
7. On December 16, 2021, a state agency surveyor approved the facility’s POC with an alleged completion date of November 30, 2021 for 42 C.F.R. §483.12(a)(1) (Tag F600).  CMS Ex. 1 at 3; CMS Ex. 53 ¶8. 
8.  The state agency completed a revisit survey on January 8, 2022.  CMS Ex. 2.
9. The post-certification revisit report listed November 30, 2021 as the date Petitioner completed its corrective actions for 42 C.F.R. §483.12(a)(1) (Tag F600).  CMS Ex. 2. 
10. On March 9, 2022, CMS issued a notice letter finding Petitioner was not in substantial compliance with 42 C.F.R. §483.12(a)(1) from November 25, 2021 through January 3, 2022 and imposing a CMP of $1,300 per day.  CMS Ex. 3.

VII. Analysis and Conclusions of Law⁴

1. Petitioner was not in substantial compliance with 42 C.F.R. §483.12(a)(1) (Tag F600).

Under the Act and the regulations, residents have the right to be free from abuse, neglect, misappropriation of resident property, and exploitation.  42 C.F.R. §483.12.  “Abuse,” as defined by 42 C.F.R. §§483.5 and 488.301, is the “willful infliction of injury, unreasonable confinement, intimidation, or punishment with resulting physical harm, pain or mental anguish,” including the deliberate deprivation by an individual or caretaker of goods or services necessary to attain or maintain a resident’s physical, mental, and psychosocial well-being, which results in physical harm, pain or mental anguish.  “Neglect,” as defined by 42 C.F.R. §§483.5 and 488.301, is the “failure of the facility, its employees or service providers to provide goods and services to a resident that are necessary to avoid physical harm, pain, mental anguish, or emotional distress.”  42 C.F.R. §483.12(a)(1) specifically mandates that facilities “must not use verbal, mental, sexual, or physical abuse, corporal punishment, or involuntary seclusion.”

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Petitioner concedes that the nurse aide’s failure to comply with a two-person transfer assist resulted in injury to Resident 49, in violation of 42 C.F.R. §483.12(a)(1).  P. Pre-hrg. Br. at 9.  The evidence supports CMS’s finding of non-compliance with Medicare participation requirements at 42 C.F.R. §483.12(a)(1) (Tag F600).

2. The evidence shows that Petitioner returned to substantial compliance on January 4, 2022.

Petitioner argues that the facility returned to substantial compliance on November 20, 2021, the date indicated in the POC, not January 4, 2022, as noted by CMS.  Petitioner also argues that CMS is bound by the state survey agency’s determination regarding when a facility returned to substantial compliance with Medicare participation requirements. P. Pre-hrg. Br. at 9-15; P. Br. at 2-7, 9-13. Each argument is addressed below. 

a. CMS acted within its authority in determining that Petitioner returned to substantial compliance on January 4, 2022.

To return to substantial compliance, a facility must submit a plan of correction (POC) that is acceptable to CMS or the state agency.  42 C.F.R. §§488.402(d), 488.408(f), 488.401 (a POC is “a plan developed by the facility and approved by CMS or the survey agency that describes the actions the facility will take to correct deficiencies and specifies the date by which those deficiencies will be corrected”); 488.402(d)(1) (a facility with deficiencies must submit a POC for approval by CMS or the State survey agency); 488.454(a)(1) (a facility’s substantial compliance must be established by a resurvey or after an examination of credible written evidence produced by the facility); 488.454(e) (if the facility can supply documentation acceptable to CMS or the state that it was in substantial compliance and was capable of remaining in substantial compliance on a date preceding that of the revisit, remedies may terminate on the date that CMS or the state can verify as the date that substantial compliance was achieved and the facility demonstrated that it could maintain substantial compliance).

If CMS accepts a noncompliant facility’s POC, then the facility must timely implement all of the steps identified in the POC as necessary to correct the cited problems.  Cal Turner Extended Care Pavilion, DAB No. 2030 at 18-19 (2006); see also Meridian Nursing Ctr., DAB No. 2265 (2009); Lake Mary Health Care, DAB No. 2081 at 29 (2007).  A noncompliant facility “is not considered to be [back] in substantial compliance until a determination has been made, through a revisit survey or based on ‘credible written evidence’ that ‘CMS or the State can verify without an on-site visit,’ that the facility returned to substantial compliance.”  Omni Manor Nursing Home, DAB No. 2431 at 6 (2011) (citing or quoting 42 C.F.R. §488.454(a)(1) and Oceanside Nursing & Rehab. Ctr., DAB No. 2382 at 20 (2011)).  See also 42 C.F.R. §488.401 (definition of POC).

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Petitioner argues that it returned to substantial compliance with Medicare participation requirements by November 30, 2021, the date listed in the POC, and that CMS is bound by the state survey agency’s acceptance of its POC.  P. Pre-hrg. Br. at 2, 4-6, 11-15; P. Br. at 1-2, 4-6, 9-13. In the POC, Petitioner listed four corrective actions it would take to return to substantial compliance with 42 C.F.R. §483.12(a)(1) (Tag F600):

1. Resident 49 no longer resides in the facility.
2. Residents requiring mechanical lift for transfers have the potential to be [a]ffected. On 11/26/21, The Director of Nursing and/or designee audited current residents to ensure that the correct lift device is care planned, on the [K]ardex and physician order match based upon transfer status.  On 11/26/21, the Director of Nursing and/or designee audited current residents via observation that correct mechanical lift and appropriate number of staff were utilized to transfer residents per residents’ care plan, [K]ardex, and physician order.
3. To prevent the potential for re-occurrence, the Director of Nursing and/or designee will educate nursing staff on the appropriate use and designation of mechanical lifts.  Nursing staff will also be educated on abuse/neglect.
4. To monitor and maintain compliance, the Director of Nursing and/or designee will audit 10 residents transfers weekly for 4 weeks and monthly for 3 months after to ensure residents are being transferred per their care plan, [K]ardex and physician order.  Needed corrections will be addressed as they are discovered. Results will then be reported to QAPI committee for further review and recommendations monthly for 3 months. 

CMS Ex. 1 at 4. The POC, which was approved by the state agency, lists the completion date as November 30, 2021.  CMS Ex. 1 at 3-4.  Petitioner argues that all four of the remedial actions were completed on or before November 30, 2021, the date of the standard survey.  P. Pre-hrg. Br. at 3-4; P. Br. at 3-4, 5-6.

Resident 49 was admitted to the hospital trauma service’s intensive care unit on November 25, 2021, and never returned to Petitioner’s facility. CMS Ex. 34 at 9, 60.  As a result, Resident 49 was no longer residing at Petitioner’s facility and the first corrective action item was accomplished.  See CMS Ex. 1 at 4.

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In support of its argument, Petitioner submitted what it alleges are the completed on-site monitoring documents for all residents to confirm that staff was using the approved lift and transfer procedures.  P. Exs. 3, 5; see P. Pre-hrg. Br. at 3-4.  Each resident on the audit table has a completion date prior to November 30, 2021.  P. Ex. 5. Some residents refused a transfer, which they have the right to do.  However, this document is insufficient to confirm that all residents requiring mechanical lift for transfers had been audited.  Even without the residents who refused the transfer, there are two residents marked as “N” under the “DID TRANSFER OCCUR Y/N” column.  P. Ex. 5 (capitalization in the original).  Both of those residents required a mechanical lift with a two-person assist for transfers, but the Director of Nursing did not observe that the correct mechanical lift and appropriate number of staff were utilized to transfer either resident.  Compare P. Ex. 5 with P. Ex. 3 at 2 (Resident LH) and P. Ex. 3 at 4 (Resident FA). As a result, Petitioner has not proven that the second corrective action item was accomplished by November 30, 2021.  See CMS Ex. 1 at 4.

In addition, Petitioner submitted an undated sign-in sheet for an in-service training on abuse and neglect and patient transfers.  P. Ex. 4.  Petitioner claims that the in-service training was completed by November 30, 2021.  P. Ex. 4; see also P. Pre-hrg. Br. at 4, 11.  Petitioner cites to surveyor notes in support of its allegation that the in-service was conducted by November 30, 2021.  P. Pre-hrg. Br. at 4, 11.  However, the surveyor notes only reference that “Transfer training was conducted with all nursing staff after incident” and “All staff recounted abuse neglect training which just concluded prior to the survey.”  CMS Ex. 51 at 1.  The on-site resident monitoring sheet for residents requiring mechanical lifts does not demonstrate that staff were educated on the correct mechanical lifts or the appropriate number of staff for transfers by November 30, 2021.  As a result, Petitioner has not proven that the third corrective action item was accomplished by November 30, 2021.  See CMS Ex. 1 at 4.

Petitioner alleged it “implemented a process to monitor compliance moving forward, including scheduling weekly audits for four weeks following the [transfer fall], and monthly audits for the subsequent three months.”  P. Pre-hrg. Br. at 4.  However, Petitioner cites only to the POC and not to any other written evidence.  Id. (citing P. Ex. 1); P. Br. at 5-6 (same).  Petitioner has not proven that the Director of Nursing or designee audited ten resident transfers weekly for four weeks to ensure that the staff were transferring residents in accordance with their care plans, Kardex, and physician orders.  See CMS Ex. 1 at 4.  Petitioner submitted an undated in-service sheet, along with a resident monitoring sheet that shows the audit was not completed for every resident requiring mechanical lifts for transfers.  P. Exs. 3, 4, 5.  Even if Petitioner had submitted evidence supporting its process to monitor compliance and the weekly audits, Petitioner could not have conducted weekly audits for four weeks by November 30, 2021.  As a result, Petitioner has not proven that the fourth corrective action item was accomplished by November 30, 2021.  See CMS Ex. 1 at 4.

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Once a facility has been found to be out of substantial compliance (as Petitioner was here), it remains so until it affirmatively demonstrates that it has achieved substantial compliance once again.  Ridgecrest Healthcare Ctr., DAB No. 2493 at 2-3 (2013); Taos Living Ctr., DAB No. 2293 at 20 (2009); Premier Living & Rehab Ctr., DAB No. 2146 at 23 (2008); Lake City Extended Care Center, 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 Ctr. at Johnson City, DAB No. 1815 at 19-20 (2002). 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)); accord, 42 C.F.R. §488.454(a) and (e); Hermina Traeye Memorial Nursing Home, DAB No. 1810 at 12 (holding that, 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 was capable of remaining in substantial compliance on the earlier date); Cross Creek Care Center, DAB No. 1665 (1998).  A facility’s return to substantial compliance usually must be established through a resurvey.  42 C.F.R. §488.454(a); Ridgecrest at 2-3.

As the Board has recognized, a POC indicating a specific date of implementation is not sufficient evidence, by itself, to establish that the measures in the POC were satisfactorily implemented.  See Rosewood Care Ctr. of Rockford, DAB No. 2466 at 10-11 (2012).  Petitioner has the burden to show that it implemented the corrective action steps listed in its POC: “[i]t is not enough that some steps have been taken, but rather the facility must prove that the goal has been accomplished.”  Lake Mary Health Care, DAB No. 2081 at 29 (2007).  In-service training “could not alone establish that the facility had successfully implemented the practices and procedures required,” and “CMS could reasonably require evidence that the new practices and requirements were actually put into effect” before considering substantial compliance attained.  Oceanside, DAB No. 2382 at 20-21 (also stating “[W]e agree with the ALJ that CMS was not required to accept mere assertions” of staff instruction, and “CMS could reasonably require evidence of corrections in practice.”).  Petitioner has not met its burden to show that it had implemented three of the four corrective action steps listed in its POC and that it achieved substantial compliance by November 30, 2021.

Even if Petitioner demonstrated that it had taken the corrective actions with respect to its noncompliance with 42 C.F.R. §483.12(a)(1) by November 30, 2021, the POC completion date is not a return to substantial compliance date.  The state agency found six additional deficiencies constituting more than minimal harm during the revisit survey completed on December 3, 2021:  42 C.F.R. §§483.60(i)(1)(2) (Tag F812); 483.10(f)(1)-(3)(8) (Tag F561); 483.21(b)(1) (Tag F656); 483.25(c)(1)-(3) (Tag F688); 483.60(d)(3) (Tag F805); and 483.60(g) (Tag F810).  CMS Exs. 1, 3.  Petitioner listed corrective actions with completion dates of January 4, 2022. CMS Ex. 1 at 1-2, 6-14. These

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unchallenged deficiencies put Petitioner out of substantial compliance with Medicare participation requirements from November 30, 2021 through January 3, 2022. As a result, Petitioner did not return to substantial compliance by November 30, 2021.

b. Where CMS and the state agency disagree, CMS’s noncompliance determination controls.

Much of Petitioner’s appeal turns on a legal question:  what effect does the state agency’s determination that the facility was in substantial compliance have?  Specifically, Petitioner argues that CMS is bound by the state surveyor accepting November 30, 2021 as the date that Petitioner returned to substantial compliance, as noted in the POC. P. Pre-hrg. Br. at 9-15; P. Br. at 2-7, 9-13.

Contrary to Petitioner’s assertions, CMS is not bound by the state agency’s findings.  The state agency certifies the compliance or noncompliance of non-state operated SNFs or dually participating SNFs, subject to CMS approval.  42 C.F.R. §488.330(a)(1)(i)(C)-(D).  With respect to dually participating SNFs, a finding of noncompliance takes precedence over that of compliance in the case of a disagreement between CMS and the state survey agency.  42 C.F.R. §488.330(a)(1)(i)(D).  CMS sends the notice letter certifying the nature of the SNF’s noncompliance, imposing the remedy and its effective date, and detailing the SNF’s appeal rights.  42 C.F.R. §§488.330(c); 488.402(f)(1).  A facility’s “noncompliance is deemed to be corrected or removed only when the incidents of noncompliance have ceased, and the facility has implemented appropriate measures to ensure that similar incidents will not recur.”  Life Care Center of Elizabethton, DAB No. 2367 at 16 (2011) (emphasis supplied) (citing Florence Park Care Ctr., DAB No. 1931at 30 (2004)).  Even if a POC is accepted, the facility is not regarded as in substantial compliance until CMS determines, “usually through a revisit survey,” that the deficiency no longer exists.  Barn Hill Care Center, DAB No. 1848 at 10 (2002); Cross Creek Health Care Center, DAB No. 1665 at 3 (1998); see also Briarwood Nursing Center, DAB No. 2115 (2007) (“[t]he accrual of per diem penalties ends when the facility is found to have indeed achieved substantial compliance, usually through a revisit unless the deficiency is of a nature that correction can be verified through written evidence alone”).

Petitioner could not have relied on the surveyor mistakenly accepting Petitioner’s POC because of the completion dates of the proposed action items and because a revisit survey had not yet been completed.  Surveyor Martin testified that she made a mistake when she accepted Petitioner’s POC with the November 30, 2021 completion date for Tag F600.  Tr. at 23-24.  Petitioner listed January 4, 2022 as the completion date for the other deficiencies and Surveyor Martin did not notice that Tag F600 had a different completion date.  Surveyor Martin testified that she would not have approved a November 30, 2021 completion date for Tag F600 because Petitioner could not have completed the proposed action items so quickly after Resident 49’s fall.  CMS Ex. 53 ¶8; Tr. at 19 ¶13 through

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20 ¶18. Surveyor Martin also testified that the facility could not have returned to substantial compliance by November 30, 2021, because it submitted an incomplete event report to the state survey agency, which was not accepted until December 10, 2021.  CMS Ex. 53 ¶11; CMS Exs. 9, 10, 11.  Further, Petitioner did not submit documentation acceptable to CMS or the state survey agency that it was in substantial compliance and was capable of remaining in substantial compliance on a date preceding that of the revisit.  Accordingly, neither CMS nor the state could verify that Petitioner achieved or could maintain substantial compliance before January 4, 2022.

The Board has rejected the argument that “a Post-certification Revisit Report found the facility in substantial compliance where the report contained no statement to that effect, even though the report indicated that a deficiency from the prior survey had been corrected.”  W. Tex. LTC Partners, Inc., d/b/a Cedar Manor, DAB No. 2652 at 18 (2015), aff’d, W. Tex. LTC Partners, Inc. v. U.S. Dep’t of Health & Human Servs., 843 F.3d 1043 (5th Cir. 2016).  A state agency accepting a POC “simply means that it may thereafter conduct a revisit or review to determine if the allegation of correction is substantiated.”  Donelson Place Care & Rehab. Ctr., DAB No. 3046 at 32 (2021). 

The state survey agency mistakenly accepted Petitioner’s POC with a November 30, 2021 completion date for 42 C.F.R. §483.12(a)(1) (Tag F600). CMS Exs. 1, 2.  However, Petitioner could not have completed all of the proposed action items contained in its POC by November 30, 2021, and a POC is not a determination that a facility returned to substantial compliance.  Petitioner remained out of compliance with six additional deficiencies that constituted more than minimal harm.  As a result, CMS determined that Petitioner did not return to substantial compliance until January 4, 2022.  CMS Ex. 3.  Petitioner has failed to rebut CMS’s determination of continuing noncompliance.

c. Petitioner’s noncompliance with 42 C.F.R. §483.12(a)(1) (Tag F600) was not past noncompliance.

Petitioner concedes that it was not in compliance with 42 C.F.R. §483.12(a)(1) at the time of Resident 49’s fall but argues that the deficiency should be treated as past noncompliance which began and was promptly corrected before the survey.  P. Pre-hrg. Br. at 7-15; P. Br. at 3, 6.

Past noncompliance requires more than an acknowledgment that a facility’s noncompliance began before a survey was conducted.  “Uncorrected noncompliance is not past,” but “‘[p]ast noncompliance,’ instead, means a period of noncompliance which not only began but also was corrected by the facility itself before the survey.”  Donelson Place Care & Rehab. Ctr., DAB No. 3046 at 23 (2021) (citing Green Valley Healthcare & Rehab. Ctr., DAB No. 2947 at 3 (2019)).  To be cited as past noncompliance at the time of the survey, three elements must be met:

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1. The facility was not in compliance with the specific regulatory requirement(s) at the time the situation occurred;
2. The noncompliance occurred after the exit date of the last standard (recertification) survey and before the survey (standard, complaint, or revisit) currently being conducted; and
3. There is sufficient evidence that the facility corrected the noncompliance and is in substantial compliance at the time of the current survey for the specific regulatory requirement(s), as referenced by the specific F-tag or K-tag.

State Operations Manual (SOM) §7510.1 (emphasis supplied).  A facility “does not provide a [POC] for a deficiency cited as past noncompliance because the deficiency is already corrected,” but the POC column on the CMS 2567 form will print “Past noncompliance-no plan of correction required” for tags identified as past noncompliance.  SOM §§7510.1-.2.  Surveyors will also specifically document the facility’s actions to correct the past noncompliance on the CMS 2567 form.  SOM §7510.2. 

At the time of Resident 49’s fall, Petitioner was not in compliance with 42 C.F.R. §483.12(a)(1) (Tag F600).  P. Pre-hrg. Br. at 8-9.  The first element of past noncompliance is satisfied.

Resident 49’s November 25, 2021 fall occurred after the exit date of the last standard survey and before the November 30, 2021 survey.  P. Pre-hrg. Br. at 9-10.  The second element of past noncompliance is satisfied. 

Regarding the third requirement, Petitioner has not provided sufficient evidence that it corrected the noncompliance and was in substantial compliance at the time of the survey for Tag F600.  The surveyors did not investigate Petitioner’s actions to correct the past noncompliance or document them on the CMS 2567 form, because Petitioner did not inform the surveyors that it was alleging Resident 49’s fall to be an instance of past noncompliance with 42 C.F.R. §483.12(a)(1).  Additionally, the investigation into Resident 49’s fall was ongoing, and the Pennsylvania Abuse Report was not complete by the first day of the survey that began on November 30, 2021.  Tr. at 41 ¶25 through 42 ¶16; CMS Ex. 52 ¶¶10, 13-14; Tr. at 33 ¶20 through 36 ¶4; CMS Ex. 53 ¶¶10-13, 14, 16; see CMS Ex. 12, P. Exs. 2, 10, 11.  Even if Petitioner had requested the surveyors to consider treating the Tag F600 deficiency as past noncompliance, Petitioner could not have returned to substantial compliance at the time of the survey.  The weekly audits were listed as action items yet to be completed because the noncompliance needed to be corrected and substantial compliance had not been achieved.  CMS Ex. 1 at 4. Petitioner did not provide the surveyors with evidence that it had corrected the noncompliance and

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was in substantial compliance at the time of the survey. Therefore, the third requirement of past noncompliance was not satisfied.  As a result, Petitioner’s noncompliance with 42 C.F.R. §483.12(a)(1) (Tag F600) was ongoing, not past.

3. The CMP amount imposed, $1,300 per day from November 25, 2021 through January 3, 2022, is reasonable.

In determining whether the CMP amount is reasonable, I must apply the following factors which are listed in 42 C.F.R. §488.438(f):1)the facility’s history of noncompliance, including repeated deficiencies; 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 42U.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)(4).  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).

The regulations leave the choice of remedy to CMS, and the amount of the remedy to CMS and the ALJ, requiring only that the regulatory factors at 42C.F.R. §§488.438(f) and 488.404 be considered when determining the amount of a CMP within a particular range.  42 C.F.R. §§488.408, 488.408(g)(2),498.3(d)(11); see also 42 C.F.R. §488.438(e)(2), (3); Alexandria Place,DAB No. 2245 at 27 (2009); Kenton Healthcare, LLC,DAB No. 2186 at 28-29 (2008).  The Board has explained that “there is a 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 that CMP amount, the ALJ must sustain it.”  Coquina Ctr., DAB No. 1860 at 32 (2002) (emphasis supplied).

Here, CMS imposed a CMP of $1,300 per day from November 25, 2021, through January 3, 2022, totaling $52,000.  CMS Ex. 3 at 2.  The evidence shows that CMS considered the scope and seriousness of the deficiencies, in addition to the facility’s history of noncompliance in determining the amount of the imposed CMP.  CMS Ex. 3 at 2. 

Petitioner argues that the total amount of the CMP was miscalculated because the duration of its noncompliance was shorter.  P. Br. at 13-14.  However, I have determined that Petitioner did not regain substantial compliance until January 3, 2022.  Therefore, Petitioner’s argument is without merit. 

Petitioner also argues that it is entitled to a 50% reduction of the CMP because it self-reported the noncompliance.  P. Br. at 14.  I do not have the authority to review Petitioner’s argument regarding its entitlement to a 50% CMP reduction. The issue

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before me is whether the regulatory factors were considered in setting the CMP amount and whether those factors support the CMP amount.  42 C.F.R. §§488.438(f), 488.404.  Petitioner does not allege that a particular regulatory factor does not support the CMP amount.  See RFH; P. Pre-hrg. Br. at 15-19; P. Br. at 13-14.

Neither party has presented evidence regarding the facility’s history of noncompliance or the facility’s financial condition.  Considering the remaining factors, Petitioner’s noncompliance was very serious.  Petitioner has not appealed the deficiency citations for 42 C.F.R. §483.60(i)(1)(2) (Tag F812), 42 C.F.R. §483.10(f)(1)-(3)(8) (Tag F561), 42 C.F.R. §483.21(b)(1) (Tag F656), 42 C.F.R. §483.25(c)(1)-(3) (Tag F688), 42 C.F.R. §483.60(d)(3) (Tag F805), and 42 C.F.R. §483.60(g) (Tag F810).  Petitioner concedes that it was not in substantial compliance with 42 C.F.R. §483.12(a)(1) (Tag F600), and that the injury to Resident 49 was a result of its employee’s failure to meet Resident 49’s needs.  P. Pre-hrg. Br. at 9.  Petitioner’s neglect resulted in serious injury to Resident 49.  P. Pre-hrg. Br. at 3.  Petitioner’s culpability is also significant.  Petitioner failed to provide a safe transfer that met Resident 49’s needs, despite an assessment to determine the minimum level of assistance needed to ensure Resident 49’s safety during the transfer process.  Petitioner concedes this occurred in violation of 42 C.F.R. §483.12(a)(1). P. Pre-hrg. Br. at 3, 9.  As a result, considering the regulatory factors here, I conclude that the CMP amount imposed is reasonable.

VIII. Conclusion

Brookside was not in substantial compliance with the participation requirements at 42 C.F.R. §483.12(a)(1) (Tag F600).  There is a basis for the imposed remedy and the $1,300 per-day CMP amount imposed from November 25, 2021 through January 3, 2022 is reasonable.

Endnotes

¹ CMS or the state agency designates the scope and severity level using a letter from A through L based on a scope and severity matrix published in the State Operations Manual (SOM), Ch. 7, §7400.3.1 (Rev. 185, Eff. Nov. 16, 2018).  The matrix, which is based on 42C.F.R. §488.408, specifies which remedies are required and optional at each scope and severity level. “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 but does not constitute immediate jeopardy. A scope and severity level of J, K, and L describes a deficiency that poses immediate jeopardy to resident health or safety.

² CMS increases the CMP amounts annually to account for inflation in compliance with the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015, Pub. L. No. 114-74, §701, 129 Stat. 584, 599 (2015). See 86 Fed. Reg. 62,928 (Nov. 15, 2021).

³ Petitioner’s post-hearing brief suggests it does not understand the burden of proof in this matter.  Without legal support, Petitioner suggests that CMS is trying to shift the burden, that it should have appealed the state survey agency’s determination or cross-appealed, and that it is “bound by the determination of its survey agency”. See P. Br. at 4-5, 13.  As discussed in section VII, infra, CMS determines when Petitioner returned to substantial compliance with Medicare participation requirements.  It is Petitioner’s burden to rebut CMS’s showing that it was not in substantial compliance with 42 C.F.R. §483.12(a)(1) and that it returned to compliance at an earlier date.

⁴ My conclusions of law are set forth in italics and bold font.