Frank M. Tejeda Texas State Veterans Home, DAB CR6448 (2024)

DECISION

I grant summary judgment in favor of the Centers for Medicare & Medicaid Services and against Petitioner, Frank M. Tejeda Texas State Veterans Home, a Texas Medicare-participating skilled nursing facility. I sustain CMS’s determination to impose a remedy against Petitioner consisting of a civil money penalty of $17,000 for each day of a period that began on April 24, 2020, and that continued through May 4, 2020. 

I. Background

This case was originally assigned to another administrative law judge. It was very recently reassigned to me. 

CMS filed a brief and exhibits, identified as CMS Ex. 1 – CMS Ex. 53, to support its motion. Petitioner filed a brief and exhibits, identified as P. Ex. 1 – P. Ex. 53, in opposition. Petitioner objected to my receiving many of CMS’s exhibits into evidence. It is unnecessary that I formally receive exhibits into evidence to decide CMS’s motion because I find that the facts supporting my decision are undisputed. That said, I overrule Petitioner’s objections. 

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The bulk of Petitioner’s objections are that CMS’s exhibits contain hearsay. Hearsay evidence is not precluded in this proceeding. Other objections made by Petitioner are that exhibits filed by CMS or parts of some CMS exhibits contain irrelevant information. I do not rely on any of those documents or on allegedly irrelevant portions in deciding this case. 

While I cite to some exhibits in this decision, I do so only to illustrate facts that are not in dispute or to address a party’s argument. 

II. Issues, Findings of Fact and Conclusions of Law

A. Issues

The issues are whether undisputed facts establish that Petitioner failed to comply substantially with a Medicare participation requirement, whether Petitioner’s noncompliance was so egregious as to put residents of Petitioner’s facility in immediate jeopardy, and whether CMS’s remedy determination is reasonable. 

B. Findings of Fact and Conclusions of Law

I apply the principles of Rule 56 of the Federal Rules of Civil Procedure in deciding whether to grant summary judgment. I base my decision on facts that are undisputed. I make no fact finding that requires a credibility determination. I find no impediment to deciding a case if resolving a fact dispute in favor of one party or the other would make no difference to the outcome. Where reasonable inferences may be made from the undisputed facts, I make those inferences that are favorable to the party against whom the motion for summary judgment is filed. Madison Cty. Nursing Home, DAB No. 2895 (2018). However, I do not find fact disputes based on bald and unsupported allegations of fact. Id.

At bottom, the question that I ask in any case where a party moves for summary judgment is this: is there any issue that would benefit from being resolved in an evidentiary hearing? Fal-Meridian, Inc. v. U.S. Department of Health and Human Services, 604 F.3d 445, 449 (7^th Cir. 2010). 

There is no such issue in this case. As I discuss below, undisputed facts unequivocally establish Petitioner’s noncompliance and its severity. Undisputed facts establish also that CMS’s remedy determinations are reasonable. 

1. Noncompliance

CMS alleges that in late April and early May 2020 Petitioner failed to implement an infection prevention and control program to address the Covid-19 (“Covid”) pandemic. 

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The virus that causes Covid is highly infectious. It is easily spread via inhaled respiratory droplets. CMS Ex. 40 at 3. Facilities with high density populations – nursing homes, for example – are particularly susceptible to mass infection by the Covid virus. CMS Ex. 31 at 5; CMS Ex. 36 at 3; CMS Ex. 40 at 4. 

In the spring of 2020 Covid swept through numerous skilled nursing facilities, including Petitioner’s facility, wreaking havoc among highly susceptible frail and elderly residents. Infection with Covid very often was a death sentence for a resident. As of May 2020, about one-third of all Covid deaths, nationwide, had occurred in nursing facilities.¹ Fourteen of Petitioner’s residents and nine members of Petitioner’s staff became infected. Five residents died. CMS Ex. 42 at 3, 10. 

CMS contends that Petitioner failed to comply substantially with a single Medicare participation requirement, stated at 42 C.F.R. § 483.80. The regulation in effect in April and May 2020 mandated that a skilled nursing facility establish an infection prevention and control program that is designed to provide a safe, sanitary, and comfortable resident environment and that helps prevent the development and transmission of communicable diseases and infections. It directed each participating skilled nursing facility to establish a system for preventing, identifying, reporting, investigating, and controlling infections and communicable diseases for all residents, staff, volunteers, visitors, and contractors. 42 C.F.R. § 483.80(a)(1). It explicitly required that, in developing this system, the facility must follow “accepted national standards.” Id.

Among other things the regulation directed that a skilled nursing facility develop a system of surveillance designed to identify possible communicable diseases or infections before they could spread to other persons in the facility. 42 C.F.R. § 483.80(a)(2)(i). The system developed by a facility must explain when and how isolation should be used for a resident. 42 C.F.R. § 483.80(a)(2)(iv). 

Of course, it is not enough for a skilled nursing facility to develop an infection prevention and control program that facially complies with regulatory requirements but that the facility does not implement. Compliance requires implementation. 

CMS alleges that Petitioner failed in multiple ways to implement its infection prevention and control program to fight the introduction and spread of Covid in its facility. I find that undisputed material facts sustain the following allegations²:

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• Petitioner’s staff and management failed to effectively implement a protocol for screening visitors to the facility for possible Covid infection. Thus, potentially infected individuals could enter Petitioner’s premises and mingle with staff and residents. 
• Petitioner failed to assure that its staff wore properly fitted N95 respirators and failed to assure that staff dealing with exposed and Covid-negative residents followed appropriate practices and accepted national standards to prevent possible transmission of the virus.
• Petitioner failed to take necessary measures to socially distance residents of its Memory Care Unit – a housing unit for residents with memory issues and/or dementia – thereby facilitating transmission of the virus.

These assertions are supported amply by undisputed facts. Individually, and collectively, they comprise substantial noncompliance with 42 C.F.R. § 483.80, as I shall explain. 

The ease of transmission of Covid and its lethality among nursing home residents made it imperative for all skilled nursing facilities to be especially scrupulous in implementing their infection prevention and control programs to combat the Covid pandemic. There was little or no margin for error. While a skilled nursing facility could not hermetically seal itself from the outside world, it nevertheless had a duty to be as diligent as possible to attempt to protect its residents. Petitioner attempts to depict its and its staff’s undisputed errors and omissions as trivial or unimportant. But each of the deficiencies that I address in this decision effectively pierced any barrier that Petitioner had against transmission of Covid in its facility. Individually and collectively, they put residents at risk of becoming infected with a frequently fatal illness. 

a. Failure to screen visitors

Petitioner’s management knew that visitors to its facility during the pandemic brought with them the risk of transmissible infection. On April 7, 2020, the Texas Department of Health and Human Services (THHS) issued an explicit warning to nursing facilities in that State of the dangers to residents posed by visitors: 

Despite efforts to screen visitors prior to allowing them to enter the facility, every person allowed inside the building increases the risk of infection. Some people will present as

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asymptomatic during screening but will have COVID-19 and unknowingly spread the virus. Some visitors will not follow standard precautions including proper hand-washing, use of hand sanitizer, use of PPE [personal protective equipment], isolation protocols, and limiting the number of areas in the building that they access, all of which increase the risk of infection for residents and staff. 

CMS Ex. 31 at 9. To address this risk, THHS instructed skilled nursing facilities to “[a]ctively screen, monitor and surveil” all visitors to their premises. Id. at 9, 11, 13. THHS also provided explicit instructions to facilities about what to screen for and how to conduct screening: 

Facilities should also screen any visitors who are permitted to enter the building, including visiting health care providers. Maintain a log of all visitors who enter the building that at minimum includes name, current contact information, and fever and presence/absence of symptoms. 

Id. at 19. 

Consistent with THHS instructions, Petitioner adopted a policy to address screening of visitors to its facility. The policy required staff to screen each visitor to the facility and to obtain specific information from the visitor to determine whether he or she was at risk for transmitting Covid. CMS Ex. 3 at 41. 

Undisputed facts establish that Petitioner failed in significant respects to comply with THHS’s instructions and its own policy. Although it established a mechanism for screening visitors to its facility, it failed to implement that mechanism in a way that protected residents from possibly infected visitors. 

Visitors to Petitioner’s facility encountered a receptionist who checked their temperatures. The receptionist instructed the visitors to fill out a questionnaire at a

separate table that was not in the receptionist’s immediate line of sight. The receptionist did not immediately review the contents of the questionnaire. Rather, the questionnaire was placed in a file to be reviewed at some later time. CMS Ex. 3 at 40, 42. Petitioner’s administrator subsequently reviewed the questionnaires. Id. at 42. 

By failing immediately to review questionnaires, Petitioner’s staff allowed individuals to enter its premises who possibly had been recently exposed to Covid and who were harboring the illness. Examining the questionnaires later for completeness was like locking the barn door after the horse had escaped. The defect in this process should have been obvious to Petitioner’s management and staff. 

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Moreover, not all the questionnaires that visitors filled out were complete. In some instances, forms lacked visitors’ names, date of visit, and other information. CMS Ex. 3 at 39. 

Petitioner concedes that the questionnaires were only reviewed by its administrator and not contemporaneously with their completion, but later. Petitioner’s Response to Respondent’s Motion for Summary Judgment and Memorandum in Support, or in the alternative, Prehearing Brief (Petitioner’s brief) at 16. It defends its screening process by asserting that the receptionist who greeted visitors to its facility took their temperatures and recorded their blood oxygen saturation levels. 

I accept Petitioner’s assertion as true for purposes of deciding the motion for summary judgment. But checking visitors’ temperatures and blood oxygen saturation levels, as important as that may have been, was not enough to protect residents against exposure from Covid-infected visitors. The questionnaire mandated by THHS required that visitors provide information about symptoms other than temperatures and blood oxygen saturation levels, and visitors’ personal histories, that might be indicative of infection. CMS Ex. 31 at 19. Petitioner’s staff plainly did not check for those symptoms and histories because they were not reviewing questionnaires as they were prepared and before visitors were allowed entry to the facility. 

b. Failure to assure that staff used PPE properly or followed procedures intended to protect residents against infection

Surveyors employed by the State of Texas who visited Petitioner’s facility observed instances in which members of Petitioner’s staff failed to use PPE properly or follow procedures intended to protect residents against infection. I find the following observations to be undisputed: 

• On April 20, 2020, a staff member unlocked the facility’s front door to allow a nurse who was not wearing a mask to enter the facility. CMS Ex. 3 at 40-41.
• On April 21, 2020, staff allowed a delivery driver to enter Petitioner’s facility without being screened. The delivery driver brought packages into the facility without the packages being disinfected. CMS Ex. 3 at 40.
• On April 21, 2020, staff allowed a contract phlebotomist to enter the facility without being screened. CMS Ex. 3 at 41.
• On April 22, 2020, staff permitted a food serviced delivery person to walk through the facility’s main corridor before being screened. CMS Ex. 3 at 41.

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• On April 20, 2020, surveyors observed a licensed vocational nurse wearing a surgical mask instead of an N95 mask. The nurse worked in areas of the facility where there were Covid-infected residents and provided care to those residents. The nurse told the surveyors that he’d not been issued an N95 mask. The nurse had a beard and had not been provided with guidance about how to wear a mask while having a beard. CMS Ex. 3 at 43-44.³
• On April 20, 2020, surveyors observed Petitioner’s activity director delivering mail to a Covid-positive resident. The activity director was not wearing protective face gear or a surgical gown. CMS Ex. 3 at 14, 44; CMS Ex. 13 at 8.
• Surveyors observed members of Petitioner’s staff wearing masks that were ill-fitting and containing significant gaps around the mouth or nose, or hanging loosely from staff’s faces. CMS Ex. 3 at 45.
• On April 26, 2020, surveyors observed a licensed vocational nurse whose mask repeatedly slipped off his face. The nurse had not been fitted for an N95 mask and had not received instructions about how to wear a mask properly. CMS Ex. 3 at 45, 48.
• On April 20, 2020, surveyors observed a licensed vocational nurse use instruments, including a blood pressure cuff, a thermometer, and a stethoscope, to provide care to a Covid-infected resident who was profusely coughing. After treating the resident, the nurse used improper sanitization technique, wiping one instrument with an alcohol wipe instead of using an approved sanitizing method. The nurse failed to make any effort to sanitize other instruments. CMS Ex. 3 at 52-53.
• Surveyors observed a speech therapist assisting a resident to eat a sandwich. The therapist briefly paused this care to assist another resident who was in danger of falling. The therapist did not change PPE after this intervention and resumed helping the first resident to eat. The therapist repeatedly touched her mouth with her gloved hand while providing care. CMS Ex. 3 at 53.

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• On April 20 and 26, 2020, surveyors observed a nursing assistant in Petitioner’s Memory Care Unit handling food with her bare hands and touching residents without sanitizing her hands between contact. CMS Ex. 3 at 54.

These lapses violated Petitioner’s policy for providing care during the Covid pandemic. It had adopted recommendations by the Centers for Disease Control and Prevention (CDC) that included directions that staff members wear gowns, N95 masks, and protective eyewear such as goggles or face shields before entering a Covid-positive resident’s room. CMS Ex. 3 at 38-39, 50, 55. But the undisputed facts plainly show that Petitioner failed to enforce this policy.

Petitioner did not rigorously enforce its policies or attempt to implement CDC guidelines. There were too many instances of compliance failures to allow a conclusion that these failures were isolated. The conclusion that I draw from so many instances of compliance failures is that there was a systemic failure by Petitioner’s management and staff to enforce Petitioner’s infection prevention and control policies. That created a likelihood that residents and staff alike would be exposed to Covid. 

Petitioner does not rebut any of the surveyors’ observations that I recite. It asserts that there are fact disputes about the surveyors’ observations but fails to recite any facts that conceivably could create a dispute. In its brief Petitioner asserts generally, that certain exhibits identify facts that dispute those offered by CMS.⁴ Petitioner identifies no facts in these exhibits that create a dispute. I have reviewed Petitioner’s exhibits and I find that none of them or their contents respond directly to the surveyors’ observations. 

Petitioner offers several arguments that I find to be unpersuasive. 

First, Petitioner contends that it was overwhelmed by a confusing welter of CDC and THHS guidelines and recommendations that were changing constantly. It suggests that I should excuse it from compliance because it did not know what to do on any given day. Petitioner’s brief at 10. 

This argument is a red herring. It might have some merit if Petitioner identified conflicting policy guidelines that THHS or CDC had issued in April 2020. But it has not. It has offered no evidence that it was misled by anything that THHS or CDC issued. Furthermore, Petitioner issued its own policy governing the Covid infection and it and its staff violated that policy. Petitioner cannot now contend that violations of its own policy should be excused by allegedly – but unidentified – confusing CDC or THHS guidance. 

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Second, Petitioner asserts that none of CDC’s or THHS’s guidance had the force of regulations. It suggests, therefore, that it was free to ignore this guidance because it was not given adequate notice of the criteria to which it has been held accountable. Petitioner’s brief at 10. It makes this argument despite acknowledging that nursing facilities in Texas are required to follow guidance issued by the CDC, by THHS, and by local health departments. Petitioner’s brief at 11; P. Ex. 2 at 3.

It would be impossible for CMS to revise its regulation governing infection prevention and control in real time to address every recommendation and guidance that CDC or any other agency issues. I do not disagree that the Covid pandemic has been ongoing and dynamic. As the pandemic progressed, agencies learned more about the illness and revised their policies and guidance accordingly. Revisions did occur at a rapid pace. No regulatory process could keep up with the changing policies. However, 42 C.F.R. § 483.80 implicitly recognizes that changes in policy will occur by directing facilities to comply with “accepted national standards.” Those standards clearly were embodied in the policies issued by CDC. Petitioner was on notice that it had to keep abreast of CDC policies as they were issued and to tailor its response the pandemic accordingly. 

Moreover, Petitioner has not identified any change in national standards that excused it from enforcing its own policy. At bottom, what matters here is that Petitioner adopted a policy to address the pandemic but then failed to enforce it.

Petitioner makes a similar argument by asserting that in May and June 2020, understanding of the Covid virus and the infections it causes was rapidly evolving. It suggests that it should not be held accountable to comply with policies that were being continuously revised even as surveyors were inspecting Petitioner’s facility. Petitioner’s brief at 10-11. 

This argument is another red herring. Petitioner has not identified any national or State policy change that would excuse it from enforcing its own infection prevention and control policy. For example, it has not shown that there was a policy in effect as of May and June 2020 that would allow its staff to forego wearing PPE while treating Covid-positive residents. 

Petitioner also argues that federal and State policies were intended to be used in hospital settings. Petitioner’s brief at 11-12. From this, it suggests that it was inappropriate to enforce those policies in a nursing facility. However, Petitioner has not explained why it would be inappropriate to apply or enforce those policies in any setting – hospital or nursing facility – where vulnerable individuals are housed in close proximity with each other. Furthermore, THHS policy that I refer to in this decision was developed specifically to address Covid infection in nursing facilities and was sent by THHS to nursing facilities in Texas. CMS Ex. 31. 

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c. Failure to socially distance residents of Petitioner’s Memory Care Unit

The easy transmissibility of the Covid virus makes it imperative that individuals residing in a group setting not be in close contact with each other. Petitioner’s own policy directed that residents who were suspected of being infected be isolated from other residents. CMS Ex. 26 at 4, 7-8. 

The undisputed facts establish that Petitioner and its staff blatantly contravened Petitioner’s policy in providing care to demented residents in Petitioner’s Memory Care Unit. Residents were not isolated. Rather, they were allowed to mingle with each other as if none of them potentially were infected, indeed, as if Covid did not exist.

On April 20, 2020, surveyors observed 19 residents seated for lunch in the Memory Care Unit. These residents were seated at three tables, without spacing between residents. Other residents were observed wandering in the dining area, unrestricted. CMS Ex. 3 at 51. Later, that same day, surveyors observed 18 residents and three staff members crowded around the dining room tables during dinner service. Id. The surveyors observed the same crowded seating at lunch on April 21. Surveyors also observed residents wandering the halls of the Memory Care Unit without wearing masks. Id. at 52.

Petitioner does not deny these facts. It attempts to deflect the undisputed facts by asserting that the surveyors’ observations and CMS’s allegations fail to account for the residents’ cognitive impairments and inability to consistently comply with social distancing protocols. Petitioner’s brief at 20. For support, Petitioner relies on CDC policy that acknowledges the challenges presented by demented residents and which recommends that social distancing be employed with these residents “as much as possible.” Id. at 20-21; CMS Ex. 49. 

But Petitioner offered no evidence to show that it had even attempted to socially distance the residents in its Memory Care Unit. It offered nothing to show that its staff assessed these residents and made determinations about what, if any, social distancing might be used to protect them. For example, there is nothing in the record to show that Petitioner considered, and rejected, the possibility of feeding Memory Care Unit residents in their rooms. The only reasonable conclusion that I can draw from the complete absence of such evidence is that Petitioner and its staff assumed that no social distancing measures would work in the Memory Care Unit and for that reason, did not attempt to implement them. That is hardly applying social distancing “as much as possible.” To the contrary, the absence of any effort to socially distance Memory Care Unit residents during the pandemic put these residents at grave risk of contracting an often lethal illness. 

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2. Immediate Jeopardy

CMS determined that Petitioner’s noncompliance with the requirements of 42 C.F.R. § 483.80 was so egregious as to comprise immediate jeopardy for residents of Petitioner’s facility. Regulations define immediate jeopardy as noncompliance that causes or is likely to cause a resident or residents of a facility to experience serious injury, harm, impairment, or death. 42 C.F.R. § 488.301. 

Where CMS determines that noncompliance is at the immediate jeopardy level the burden falls on the facility to prove that determination to be clearly erroneous. 42 C.F.R. § 498.60(c)(2). A finding of immediate jeopardy level noncompliance is presumptively correct. Liberty Commons Nursing & Rehab Ctr. - Johnston, DAB No 2031 at 18-19 (2006), aff’d, Liberty Commons Nursing & Rehab Ctr, - Johnston v. Leavitt, 241 F. App’x 76 (4^th Cir. 2007). 

In cases where I hold evidentiary hearings, I would evaluate a finding of immediate jeopardy by asking whether evidence proved that the finding is clearly erroneous. My task is a bit different when considering a motion for summary judgment. Here, I ask: has Petitioner offered facts that, assuming their truth, would show that CMS’s immediate jeopardy determination is clearly erroneous? 

I do not find anything in the record that could lead me to conclude that CMS’s determination of immediate jeopardy level noncompliance is clearly erroneous. To the contrary, the undisputed facts lead inexorably to the conclusion that Petitioner’s noncompliance put residents at immediate jeopardy. 

Covid’s lethality and easy transmission means for all practical purposes that a facility’s noncompliance with infection control requirements creates a likelihood that residents will acquire infections that cause them to experience serious injury, harm, impairment, or death. In this case, Petitioner’s porous implementation of its Covid prevention and control policy created avenues of transmission of the disease within the facility that exposed residents and staff to the risk of infection. Visitors were not adequately screened, staff was not versed in the use of PPE, staff did not rigorously apply measures to avoid inadvertent transmission of the illness, and residents were not socially distanced.  Petitioner has offered nothing to show that CMS’s determination of immediate jeopardy level noncompliance was clearly erroneous. It asserts that the facts offered by CMS do not show that serious injury, harm, impairment, or death was a probable consequence of Petitioner’s noncompliance. Petitioner’s brief at 24. It does not explain why that is so, either based on the undisputed facts offered by CMS or on anything else in the record. 

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3. Remedy

CMS determined to impose a remedy consisting of civil money penalties in daily amounts of $17,000 for each day of a period beginning on April 24, 2020, and continuing through May 4, 2020.⁵ I find that the undisputed facts establish this remedy to be reasonable. 

Regulations authorize CMS to impose per-diem civil money penalties for immediate jeopardy level noncompliance. 42 C.F.R. § 488.438(a)(1)(i). In assessing the reasonableness of any civil money penalty, one looks to regulatory factors that govern penalty amounts. These factors may include the seriousness of a facility’s noncompliance, its culpability, its compliance history, and its financial condition. 42 C.F.R. §§ 488.438(f)(1)-(4); 488.404 (incorporated by reference into 42 C.F.R. § 488.438(f)(3)). 

The regulations establish ranges that govern minimum and maximum amounts for immediate jeopardy level penalties. 42 C.F.R. § 488.438(a)(1)(i), 45 C.F.R. Part 102 (penalty amounts are adjusted annually to account for inflation). The penalties that CMS imposed against Petitioner are within the range of allowable immediate jeopardy level penalties. 

The seriousness of Petitioner’s noncompliance is, in and of itself, sufficient to justify the penalty amount. When a facility fails to be rigorous in its efforts to prevent and curb the spread of Covid, it is likely that, sooner or later, residents will die from the disease’s depredations. The undisputed facts establish that Petitioner and its staff opened avenues for Covid to invade the facility through their failure to implement Petitioner’s own policies. A penalty amount of $17,000 per day is modest when measured against the dangers caused by the lax enforcement of Petitioner’s policy. 

I find also that Petitioner was culpable for its noncompliance. Its management knew or should have known that Covid prevention and control policy was not being implemented. For example, management had to know that visitors’ screening questionnaires were not being reviewed in real time by staff. Also, Petitioner had been put on notice by THHS on April 21, 2020, that its Covid policy was not being implemented correctly. On that date, THHS provided Petitioner with the results of a survey of the facility that established deficiencies and made recommendations concerning improvements in Covid prevention and protection. CMS Ex. 32. Petitioner should have implemented those

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recommendations immediately. That it did not is reason to conclude that Petitioner is culpable. 

CMS asserts additionally that Petitioner had received a previous immediate jeopardy deficiency citation and had also been cited in the past for infection control deficiencies. That history provides additional basis for the penalty amount. 

Petitioner argues that there is no basis for the penalty amount that CMS determined to impose. Petitioner’s brief at 25. It premises its argument on its assertions that it complied with participation requirements. I have addressed those arguments. I need not reiterate them here. 

Petitioner did not offer evidence to rebut CMS’s allegations about Petitioner’s compliance history. 

Finally, Petitioner argues that CMS failed to consider Petitioner’s financial condition. Petitioner’s brief at 25. While a facility’s financial condition is a relevant factor for determining whether a penalty is reasonable, it is not CMS’s obligation to ferret out information that is uniquely in Petitioner’s possession. If Petitioner believes that it lacks the wherewithal to pay the penalty amount, then the burden falls on it to come forward with evidence that establishes that belief to be true. Petitioner offered nothing addressing its financial condition. 

Endnotes

¹ https://www.nytimes.com/interactive/2020/05/09/us/coronavirus-cases-nursing-homes-us.html. 

² CMS makes some allegations that I do not address because the facts are in dispute. For example, CMS asserts that Petitioner failed to provide N95 respirators to all staff. While that is clearly true, I make no findings about that allegation that are adverse to Petitioner because Petitioner alleges in response to CMS that in the spring of 2020 it was contending with a shortage of N95 respirators that was beyond its ability to control. That raises a fact dispute as to whether Petitioner had sufficient N95 respirators or had access to them, sufficient to supply its staff. 

³ As I explain above, at n.2, there is a fact dispute about whether Petitioner had access to sufficient N95 masks to equip its entire staff with them. I do not find Petitioner deficient because it failed to equip its entire staff with N95 masks. However, Petitioner asserts that it equipped its nursing staff with N95s, and this is an example of a member of the nursing staff who had not been equipped with an N95 mask. 

⁴ These exhibits are: P. Ex. 3; P. Ex. 6; P. Ex. 32; P. Ex. 33; P. Ex. 34; P. Ex. 35; P. Ex. 39; P. Ex. 40; and P. Ex. 42. Petitioner’s brief at 5-6. 

⁵ The initial notice of remedy that CMS sent to Petitioner announced the $17,000 per diem penalty, but it also informed Petitioner that CMS was imposing a second remedy of $115 per day for each day of a period that began on June 1, 2020, and that continued through August 10 of that year. Petitioner has not challenged that remedy or the deficiency findings on which it was based.