Chelsea Gardens Nursing Home, DAB CR6480 (2024)

DECISION

I grant summary judgment in favor of the Centers for Medicare & Medicaid Services (CMS) and against Petitioner, Chelsea Gardens Nursing Home, a Medicare-participating skilled nursing facility in the State of Texas. I sustain CMS’s determination to impose remedies against Petitioner consisting of: a civil money penalty of $9,485 for one day, November 16, 2021; civil money penalties of $330 for each day of a period that began on November 17, 2021 and that continued through February 10, 2022; and denial of payment for new Medicare admissions for a period running from January 7, 2022 to February 10, 2022.

Background

This case was recently reassigned to me from the docket of another administrative law judge.

CMS moved for summary judgment. Petitioner opposed CMS’s motion and cross-moved for summary judgment. CMS filed exhibits in support of its motion identified as CMS Ex. 1 – CMS Ex. 5, CMS Ex. 7 – CMS Ex. 15, and CMS Ex. 17 – CMS Ex. 22. Petitioner filed exhibits identified as P. Ex. 1 – P. Ex. 37.

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I do not receive the parties’ exhibits into evidence because I enter summary judgment based on undisputed material facts. I cite to some of the exhibits but only to illustrate facts that are not in dispute or to address a party’s contention.

II. Issues, Findings of Fact and Conclusions of Law

A. Issues

The issues are whether Petitioner failed to comply substantially with Medicare participation requirements, whether its noncompliance put a resident at immediate jeopardy, and whether CMS’s remedy determinations are authorized and reasonable.

CMS grounds its allegations of noncompliance and its remedy determinations on findings that surveyors employed by the Texas Health and Human Services Commission made at surveys of Petitioner’s facility on October 26, November 4, and December 9, 2021, and January 26, 2022. The surveyors found that Petitioner failed to comply substantially with multiple Medicare participation requirements. Petitioner challenged some, but not all of these findings. It did not challenge findings made at the October 26 and November 4, 2021, surveys, and one of the findings of noncompliance made at the December 9, 2021, survey, nor did it challenge the findings made at the January 26, 2022, survey. These noncompliance findings are administratively final as are remedy determinations that are based on these findings.

Petitioner challenged findings made at the December 9, 2021, survey that it had failed to comply substantially with regulations at 42 C.F.R. §§ 483.12(a)(1); 483.15(c)(1)(i) and (ii) and (2)(i) – (iii); and 483.25. I address these findings and Petitioner’s challenge to them in this decision.

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.

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. Dep’t of Health & Human Servs., 604 F.3d 445, 449 (7th Cir. 2010).

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There is no benefit to holding an evidentiary hearing. The parties do not dispute the material facts. Rather, they argue whether the undisputed facts justify findings of regulatory noncompliance and CMS’s remedy determinations.

1. Noncompliance

CMS alleges that Petitioner failed to comply with the requirements of 42 C.F.R. § 483.25. This regulation is known generally as the quality of care regulation. In relevant part it states:

Quality of care is a fundamental principle that applies to all treatment and care provided to facility residents. Based on the comprehensive assessment of a resident, 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....

CMS argues that Petitioner violated the quality of care regulation because it transferred or discharged a resident from its facility against her will, violating the requirements of 42 C.F.R. § 483.12, which prohibits abuse of residents, and C.F.R. § 483.15, which governs transfer and discharge of residents. I find that the undisputed facts sustain CMS’s allegations. These facts provide Petitioner with no defense.

CMS’s allegations center on the care that Petitioner gave to a resident who is identified as Resident #1. As of late 2021, the resident was 80 years old and had resided at Petitioner’s facility for about eight years. CMS Ex. 3 at 12; CMS Ex. 7 at 50. She had multiple medical problems that included hypertension, hereditary neuropathy, muscle wasting and atrophy, lack of coordination, depression, generalized anxiety disorder, and dementia. CMS Ex. 7 at 50.

Resident #1’s medical conditions rendered her dependent on Petitioner’s staff for the activities of daily living. She had severely impaired ability to use her extremities. She required a two-person assist and the use of a lift for transfers. She was totally dependent on staff and used a wheelchair for mobility. CMS Ex. 3 at 13; CMS Ex. 7 at 44, 47. Her impairments left her at risk for falls. CMS Ex. 3 at 12; CMS Ex. 7 at 39, 47.

The resident’s dependency made it difficult for staff who were assigned to care for her to attend to other residents’ needs in a timely manner. CMS Ex. 7 at 63-64.Furthermore, the resident’s attitude and emotional state substantially aggravated the problems associated with caring for her. Resident #1 was at times physically and verbally abusive towards staff. She regularly berated and threatened them. Several staff members resigned because they could not work with Resident #1. Id. at 13; 65-70.

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Petitioner’s management wanted Resident #1 out of the facility. On at least one occasion, in August 2021, management attempted to discharge the resident against her will. CMS Ex. 7 at 10. Resident #1 appealed this attempt. On October 27, 2021, a Texas State Hearing Officer ruled in the resident’s favor, finding Petitioner’s attempt to discharge her to be unjustified. Id. at 3-9.

Three weeks later, on November 16, 2021, Resident #1 left Petitioner’s facility in the company of her daughter for a routine appointment with an optometrist. CMS Ex. 7 at 71. Transportation by wheelchair van had been arranged for her. As she was being loaded into the van, the technician who was transporting the resident noticed that the resident’s eyes momentarily rolled upwards. CMS Ex. 7 at 104. The technician recommended that the resident go to an emergency room for evaluation. She rejected this recommendation and asked that she be transported to her optometrist appointment. Id.

The technician called Petitioner’s administrator and reported what he’d observed. CMS Ex. 7 at 104. The administrator contacted Petitioner’s medical director. The medical director – who was not Resident #1’s treating physician – issued an order that the resident be seen at an emergency room to rule out “neuro CVA/seizure.” CMS Ex. 7 at 105. The medical director’s order did not specify any tests that he wanted to be administered to Resident #1. Id.

Resident #1 was transported from her optometrist appointment to the emergency room at Houston Methodist-Sienna Hospital where she was seen and evaluated. CMS Ex. 7 at 71-77. The resident’s daughter told the emergency room staff that it had been recommended that Resident # 1 be evaluated because the ambulance technician had stated that her eyes were “abnormal and rolling back.” Id. at 71. The daughter also stated that someone at Petitioner’s facility had told her that Resident #1 would not be allowed back at the facility without an evaluation of the technician’s claim. Id. at 71-72.

The emergency room physician examined Resident #1. The resident was hypertensive with a blood pressure of 180/79. That aside, the resident was assessed as having stable vital signs. CMS Ex. 7 at 75-76. The physician discharged Resident #1 back to Petitioner’s facility. Id. at 76.

Before Resident #1 left the hospital, the emergency room staff received a call from someone at Petitioner’s facility, who stated that the facility was declining to receive the resident because Petitioner “was unable to meet the resident’s needs.” CMS Ex. 7 at 76.

Nevertheless, Resident #1 returned to Petitioner’s facility accompanied by her daughter. Petitioner’s staff denied the resident entry to the facility. CMS Ex. 15 at 4. There ensued a standoff between facility staff and the resident in the lobby of the facility from about 11:30 p.m. on November 16, 2021, until about 1:30 a.m. on November 17, 2021. Staff

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denied Resident #1 access to her room during this standoff. CMS Ex. 3 at 38-39; CMS Ex. 15 at 1, 4. At one point police were summoned. The police declined to intervene. See CMS Ex. 15.

At about 1:30 a.m. on November 17, the resident left Petitioner’s facility and was transported to the emergency room at Houston Methodist Sugar Land Hospital. CMS Ex. 3 at 38-39; CMS Ex. 7 at 94. A physician evaluated her in the emergency room and found her vital signs to be stable. CMS Ex. 7 at 94. She was admitted to the hospital for the night as she had no other place to go. Id. Later on November 17, 2021, Resident #1 found placement at another skilled nursing facility and was discharged to that facility from the hospital. CMS Ex. 7 at 33.

Petitioner’s actions were a gross violation of Resident #1’s rights. The resident may have been obnoxious, even abusive towards Petitioner’s staff, but she was also incapable of functioning independently. Petitioner summarily barred Resident #1 access to her home of eight years and deprived her of her right to skilled nursing care and shelter. That action was abusive and violated 42 C.F.R. § 483.12. It failed to comply with Medicare regulations at 42 C.F.R. § 483.15, governing the transfer or discharge of residents from a skilled nursing facility and Petitioner’s policy governing transfers and discharges of residents. In sum, Petitioner’s noncompliance deprived Resident #1 of the quality of care that she was entitled to receive, in violation of 42 C.F.R. § 483.25.

A skilled nursing facility may not allow its residents to be abused. 42 C.F.R. § 483.12. Regulations define “abuse” to mean: “the willful infliction of injury, unreasonable confinement, intimidation, or punishment with resulting physical harm or mental anguish.” 42 C.F.R. § 483.5. Abuse includes: “the deprivation by an individual, including a caretaker, of goods or services that are necessary to attain or maintain physical, mental, and psychosocial well-being.” Id.

Petitioner’s management, in refusing to allow Resident #1 access to the facility, willfully deprived her of necessary goods and services. The resident’s many impairments, physical and mental, rendered her helpless to fend for herself. Petitioner’s management denied her access to any of the services and care rendered by Petitioner in the face of certain knowledge of the resident’s helplessness.

Petitioner’s denial of access to Resident #1 also violated the regulations governing transfer and discharge of residents. A skilled nursing facility may not transfer or discharge a resident unless one of six criteria are met. These criteria include: the transfer or discharge is necessary for the resident’s welfare and the resident’s needs cannot be met in the facility; the transfer or discharge is appropriate because the resident’s health has improved sufficiently so that the resident no longer needs the services provided by the facility; the safety of individuals in the facility is endangered due to the clinical or behavioral status of the resident; the health of the individuals in the facility would

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otherwise be endangered; the resident has failed, after reasonable and appropriate notice, to pay for a stay at the facility; or, if the facility ceases to operate. 42 C.F.R. § 483.15(c)(1)(i).

A facility may not premise a transfer or discharge on any of these reasons without documenting the basis for doing so. At a minimum, that requires an assessment of the resident’s condition and the circumstances of his or her stay and some written justification for the proposed action. 42 C.F.R. § 483.15(c)(2); CMS Ex. 11 at 26.

Petitioner’s own policy addressing transfer and discharge is consistent with regulatory requirements. It requires that the facility timely document a resident’s discharge needs and a discharge plan in that resident’s clinical record. It additionally requires that a resident be allowed to participate in planning any discharge. CMS Ex. 9 at 27. It requires that a discharge plan will identify the resident’s needs, including medical, nursing, equipment, educational, and psychosocial needs. Id. Failure by a skilled nursing facility to comply with its policies is noncompliance with the regulations that the policies address. See Life Care Ctr. of Tullahoma, DAB No. 2304 at 34 (2010) (addressing noncompliance with the quality of care participation requirement at 42 C.F.R. § 483.25).

Petitioner complied with neither its policy nor regulatory requirements when it denied Resident #1 access to the facility. It did not document the reasons for its refusal to allow the resident to return. It made no written assessment of the resident’s condition and no statement as to why Petitioner’s staff could not care for the resident’s needs. CMS Ex. 7 at 76.

Petitioner’s staff prepared a form entitled “SNF/NF to Hospital Transfer Form” on the evening of November 16. CMS Ex. 7 at 34-35. The form is manifestly noncompliant with the documentation requirements of 42 C.F.R. § 483.15. The form was prepared by a member of Petitioner’s staff. It is not signed. It contains minimal information about Resident #1’s condition. It does not refer to, nor does it attach, any documents addressing the resident’s condition. Id. It contains no assessment of the resident’s needs. It was prepared without the resident’s consent or participation in its preparation.

Petitioner’s failure to perform the prerequisite steps to transfer or discharge Resident # 1 is particularly egregious when viewed in the context of the resident’s recent history at Petitioner’s facility. Petitioner’s management clearly knew what was required to justify a transfer or discharge – it had very recently failed in its previous attempt to discharge the resident involuntarily. CMS Ex. 7 at 3-9. Moreover, the facility’s peremptory denial of access violated the facility’s Resident Rights policy, which states that a resident has the right to be informed of and participate in the planning of his or her care and treatment. CMS Ex. 9 at 17.

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These violations – of the regulation prohibiting abuse and the regulation governing transfers and discharge, as well as Petitioner’s policies – underpin my conclusion that Petitioner deprived Resident # 1 of care of a professional quality, as is required by 42 C.F.R. § 483.25. Put simply, Petitioner deprived Resident #1 of the basic and essential services on which she depended. Petitioner denied her shelter, assistance, medication, and food.

Petitioner’s defenses – and its cross-motion for summary judgment – are without merit.

Petitioner’s central argument, which it makes repeatedly, is that Resident # 1 suffered a change of her condition when she was being transported to the optometrist on November 16, 2021. That change of condition, according to Petitioner, justified all of the actions that its management took, including denying the resident access to the facility on the evening of November 16. See e.g., Petitioner’s Response to Respondent’s Summary Judgment Motion & Cross-motion for Summary Judgment (Petitioner’s brief) at 4, 5, 9, 19, 20.

As Petitioner would have it, it was merely putting a “medical hold” on the resident’s return pending the outcome of tests that were necessary to rule out the possibilities that the resident had suffered a stroke, a seizure, or a brain bleed. Petitioner’s brief at 12. Petitioner asserts that had it allowed Resident #1 to return to its facility on the evening of November 16, it would have violated multiple regulations, including regulations governing residents’ rights, nursing services, and physicians’ services. Id. at 2. Petitioner expands on its argument by asserting that barring the resident from entry on the evening of November 16, 2021, was justified because the order by Petitioner’s medical director that the emergency room rule out the possibility of a neuro CVA or seizure had not been carried out. Id. at 6. Thus, according to Petitioner, the resident’s “status was not known and it was not established that Petitioner could meet her needs.” Id. It asserts that allowing the resident to return to the facility would have violated Petitioner’s policy governing changes in a resident’s medical condition. Id. at 6-7; See P. Ex. 8B.

In asserting that its medical director’s order was not carried out by the physicians at the emergency room, Petitioner contends that the order required the emergency room physicians to perform tests, including “EKG/ECG, exercise stress test, ambulatory monitor, echocardiogram, head-up tilt test, blood volume determination, hemodynamic testing, and autonomic reflex testing.” Petitioner’s brief at 8. It argues that it was justified in barring Resident #1 from entry until those tests were performed and the results showed that the resident had not suffered from a stroke, a seizure, or other neurological event. Id. at 9.

None of these assertions find support in the undisputed facts or governing regulations.

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Petitioner has offered no documentation for any of its claims. There is no facility record generated on November 16, 2021, or immediately thereafter, showing that Petitioner’s management or staff determined that it was critical that the tests that it enumerates had to be performed before Resident #1 was allowed to return to the facility. There is no assessment of the resident’s possible condition, there is no assessment of the facility staff’s capability to care for the resident, and there is no written justification whatsoever for concluding that the staff was incapable of caring for the resident.

There is nothing in the medical director’s order that suggests that he was instructing the emergency room staff to perform the battery of tests that Petitioner enumerates in its brief. The order simply states, laconically, that the hospital should rule out a “neuro CVA/seizure.” CMS Ex. 7 at 105. That left it to the emergency room’s physician’s judgment concerning what tests to perform. The emergency room physician examined the resident and concluded that she was stable and fit for return to the facility. That sufficed to require Petitioner to provide her with access to her room and to its staff’s services. Petitioner cites to no law, regulation, or policy that would allow its management to overrule the judgment of the emergency room physician who examined and discharged Resident #1.

Petitioner’s policy addressing changes in residents’ medical conditions provides no justification for Petitioner’s actions in this case. In relevant part, Petitioner’s policy states that return will be premised on the completion of orders given while a resident is outside of Petitioner’s facility. Additionally, the policy requires that the resident’s status must be known prior to the resident’s return. Finally, it states that a resident’s needs must be met. “Patient/residents with unknown status can’t be at the facility.” P. Ex. 8B.

Resident #1’s status was not unknown to Petitioner’s management. Management knew that the order issued by its medical director had been completed and that the resident had been found to be medically stable. CMS Ex. 7 at 71-77. There are no documents in the record to show that Petitioner or its staff questioned the emergency room physician’s judgment other than telling the emergency room staff that Petitioner was barring the resident’s return to Petitioner’s facility. Presumably, if there were concerns its medical director could have asked for additional tests or assessments. He did not.

Petitioner contends that the evaluation of Resident # 1 made at the emergency room was inadequate and therefore unreliable. “Medical staff cannot simply ask a couple of questions and take a pulse and declare that stroke, seizure, and brain bleed have been ruled out and the patient is good to go.” Petitioner’s Summary Judgment Reply (Petitioner’s reply brief) at 9. But no one on Petitioner’s staff was present when the emergency room physician evaluated the resident. Petitioner is simply guessing when it asserts that the emergency room physician decided that Resident #1 was medically stable based on “a couple of questions.”

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Petitioner also nit-picks the findings made at the emergency room on November 16, 2021, to justify its refusal to allow Resident #1 to return to its facility. It seizes on the resident’s admittedly high blood pressure of 180/79 on that date as justification for barring Resident # 1 from access to the facility. Petitioner’s brief at 8. There is no question that the resident’s blood pressure was high. But Petitioner knew that hypertension was one of the resident’s impairments and had documented it in the resident’s records. CMS Ex. 7 at 50. It offers nothing to show that her blood pressure was unusually elevated on November 16, as compared with the resident’s typical blood pressure, nor does it show that it was unequipped to address that issue by consulting with the resident’s treating physician.

In an affidavit, Petitioner’s medical director asserts that the resident’s elevated white blood cell count as recorded at the emergency room on November 16, 2021, was reason for the hospital to evaluate the possibility that the resident had a blood-borne infection (sepsis). P. Ex. 3 at 3. Accepting that assertion as true, it provides no justification for Petitioner to refuse access to the resident on the evening of November 16. As the medical director admits, he was unaware of those findings on that date. Id. Consequently, the need to conduct tests to rule out an infection could not have been a justification for Petitioner to refuse to allow Resident #1 access. Furthermore, the medical director does not explain why the facility could not care for Resident # 1 pending the outcome of any blood tests that might be made to determine the possibility of an infection.

Resident #1 passed away on April 2, 2022, from a ruptured cerebral aneurysm and cranial bleed. P. Ex. 11 at 23. Petitioner claims that the cause of the resident’s death establishes that Petitioner was justified in its insistence on additional testing so that the facility would know what steps were necessary to provide proper care for Resident #1, implying that it was justified in denying Resident #1 access to its facility. It asserts that: “the diagnostic testing ordered [by Petitioner’s medical director] would have revealed those conditions and extended her life.” Petitioner’s brief at 22.

I accept as true, for purposes of this decision, that Resident #1’s death in April 2022 was related to her condition in November 2021. But events occurring more than four months after Petitioner denied the resident access to its facility do not justify that action. As of November 16, 2021, Petitioner’s management knew only that Resident #1 had been declared medically stable by an emergency room physician. Petitioner’s assertions notwithstanding, Petitioner’s medical director had not, as of November 16, 2021, ordered the comprehensive testing that might have revealed the resident’s condition, had it been performed.

Petitioner argues that, had the medical director not ordered an evaluation of Resident #1’s condition to rule out a CVA or seizure, Petitioner would have been in violation of 42 C.F.R. § 483.30, governing physician services. Petitioner’s brief at 9. This argument is a red herring. CMS does not question the appropriateness of the medical director’s order.

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But, as I have stated, the order does not request that the hospital perform the battery of tests that Petitioner now asserts that the hospital should have performed. The undisputed facts show that the emergency room physician performed an examination of Resident #1 and ruled out a CVA or a seizure, by finding the resident to be medically stable. CMS Ex. 7 at 71-77. That examination complied literally with the medical director’s order.

Petitioner argues also that it would have been in violation of other regulatory requirements had it failed to inform its medical director of a change in Resident #1’s condition. Petitioner’s brief at 10. This argument also is a red herring. CMS makes no allegation that there was a failure to consult with Petitioner’s medical director.

Petitioner asserts that CMS’s allegations of noncompliance rest on a theory that the ambulance technician, Petitioner’s medical director, and Petitioner’s administrator conspired to evict Resident #1 from Petitioner’s facility. Petitioner’s brief at 16-17. That is incorrect. CMS did not allege a conspiracy. There is no need to find a conspiracy to conclude that Petitioner violated Medicare regulations when it denied Resident #1 entry to its facility.

One could conclude that Petitioner’s management seized on a pretext to evict Resident #1. That Petitioner had attempted to discharge the resident involuntarily and had been rebuffed just three weeks prior to November 16 provides strong support for that conclusion. But that is not a necessary element of my decision. Whatever was Petitioner’s management’s motive for evicting the resident, Petitioner’s actions were noncompliant with regulatory requirements.

Assume, however, that Petitioner’s management was motivated by entirely altruistic impulses, that it barred Resident #1 from Petitioner’s premises because it determined that it was absolutely necessary that thorough testing be performed for the resident’s sake and as a predicate for her return. But no one had ordered any of these advanced tests and the emergency room physician had certified the resident as medically stable and discharged her from the hospital. With nowhere else to go, the resident returned to her home of the past eight years. How was Petitioner acting on the resident’s behalf by barring her from entry to its facility? Doing so left a helpless individual in precarious circumstances without food, shelter, and medication.

Petitioner argues also that Resident #1 is culpable for Petitioner’s refusal to allow her access. Petitioner asserts that if the resident or her family: “had been truthful with ... [emergency room] staff about her headaches and syncopal event and asked them to rule out seizure, stroke and brain bleed, it probably would have saved her life. In the event that testing was negative she could have returned to Petitioner’s facility that day.” Petitioner’s brief at 17. However, Resident #1’s right to return to the facility didn’t depend on her being truthful with emergency room staff. She was entitled to return based on the results of the physical exam that the emergency room physician conducted.

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Finally, Petitioner asserts administrative proceedings of the Texas Health and Human Services Commission, and the Texas Board of Nursing found no fault with Petitioner’s actions. It concedes that these entities’ findings are not binding in this case but contends that they are nonetheless relevant. Petitioner’s reply brief at 7. Petitioner is correct in asserting that these proceedings are not binding. It has also failed to establish why these agencies’ findings are relevant to this case. It has not, for example, established that the matter before the Texas Health and Human Services Commission addressed identical legal questions and standards as are at issue here. Moreover, my mandate is not to be influenced by the proceedings before other agencies but to make a de novo decision as to Petitioner’s compliance with applicable federal standards.

2. Immediate Jeopardy

CMS determined that Petitioner’s noncompliance with the requirements of 42 C.F.R. § 483.25 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 is 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 (4th 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 yield only the conclusion that Petitioner’s noncompliance put its residents at immediate jeopardy.

The undisputed facts strongly support a conclusion that Petitioner’s evicting Resident #1 from its facility was likely to cause this resident to suffer serious injury, harm, or worse. The resident was helpless to care for herself. She was incapable of transferring herself from – for example – a wheelchair to her bed. She was unable to walk. She suffered from severe emotional and mental problems, including dementia. Leaving this resident to fend for herself, without food, shelter, or medication, was a recipe for disaster. The fact

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that disaster was averted when the resident left Petitioner’s facility for a second emergency room visit was fortuitous, but it did not lessen the likelihood of serious injury, harm, or worse that Petitioner’s actions created.

At the very least, Petitioner’s actions concerning Resident #1 evidence a failure by Petitioner’s management to understand a skilled nursing facility’s duties when it discharges or transfers one of its residents. Petitioner’s wholesale disregard for the regulations governing transfers and discharges and its failure to follow its own policy make that conclusion evident. That lack of understanding endangered not just Resident #1 but every resident of Petitioner’s facility.

Petitioner offers no facts to dispute specifically CMS’s determination of immediate jeopardy level noncompliance. It does not explicitly claim CMS’s determination to be clearly erroneous. Rather, Petitioner asserts that it did not violate the regulations cited by CMS and that it was compliant with Medicare participation requirements. I have addressed Petitioner’s argument. It is unnecessary that I repeat my analysis.

3. Remedies

CMS imposed a civil money penalty of $9,485 against Petitioner for one day, November 16, 2021, to remedy Petitioner’s immediate jeopardy level noncompliance on that date. It imposed a penalty of $330 for each day of a period that began on November 17, 2021 and that continued through February 10, 2022, to remedy Petitioner’s noncompliance during that period at a level of scope and severity that was less than immediate jeopardy. It imposed a denial of payment for new Medicare admissions for each day of a period that began on January 7, 2022, and that continued to February 10, 2022, to remedy Petitioner’s continued noncompliance during that period.

I find these remedies to be authorized and reasonable.

Regulations authorize CMS to impose per-diem civil money penalties for both immediate jeopardy level and non-immediate jeopardy level noncompliance. 42 C.F.R. § 488.438(a)(1). 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)). Regulations authorize imposition of a denial of payment for new Medicare admissions for each day that a skilled nursing facility fails to comply substantially with participation requirements. 42 C.F.R. § 488.418(a).

The regulations establish ranges that describe minimum and maximum amounts for both immediate jeopardy and non-immediate jeopardy level penalties. 42 C.F.R. § 488.438(a)(1), 45 C.F.R. Part 102 (penalty amounts are adjusted annually to account for

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inflation). The immediate jeopardy level penalty that CMS imposed against Petitioner is for less than half of the maximum permissible amount per day for immediate jeopardy level noncompliance. The non-immediate jeopardy level penalty that CMS imposed is near the bottom of the permissible range for such penalties.

Petitioner has not challenged findings of noncompliance that were made at surveys other than the one that was conducted of Petitioner’s facility on December 9, 2021. As for the December 9 survey, Petitioner did not challenge all of the deficiencies identified at that survey. There is thus a continuous period that overlaps the period of imposition of non-immediate jeopardy level remedies during which CMS made findings of noncompliance that are administratively final. That continuous period of noncompliance at a non-immediate jeopardy level authorizes the imposition of non-immediate jeopardy level penalties as determined by CMS. It also authorizes imposition of denial of payment for new Medicare admissions during the period. I need not do further analysis to sustain these remedy determinations.

Petitioner did not challenge the amount of the immediate jeopardy level penalty –

$9,485 – that CMS imposed except to argue that it was, in fact, compliant with participation requirements and that, therefore, no penalty is merited, and to state, without elaboration, that the penalty amount is “unreasonable.” Petitioner’s brief at 21. I have considered the penalty in light of the criteria for determining penalty amounts at 42 C.F.R. §§ 488.438 and find it to be reasonable.

To begin with, the noncompliance in this case was serious. As I have discussed, Petitioner left an elderly and helpless resident to fend for herself, exposing her to potentially disastrous consequences. Furthermore, Petitioner’s actions reveal, at the least, a failure by Petitioner’s management to understand Petitioner’s obligations when transferring and discharging residents. That failure put all of Petitioner’s residents at risk.

Petitioner was culpable for its noncompliance. The eviction of Resident #1 from Petitioner’s premises was a deliberate act.

Petitioner has a history of noncompliance with Medicare participation requirements. These include findings of noncompliance in 2019, 2020, and 2021. CMS Ex. 20.

Finally, Petitioner has not alleged, nor has it produced, facts showing that it would suffer financial hardship from imposition of the penalties that CMS determined to impose.