Lewis County General Hospital – Nursing Home Unit, DAB CR6632 (2025)

DECISION

Lewis County General Hospital – Nursing Home Unit (Petitioner or facility), a skilled nursing facility (SNF), failed to ensure a resident (Resident 37) received adequate supervision and assistance devices to prevent accidents.  On April 11, 2022, Resident 37 suffered a serious fall that resulted in a broken pelvis. 

Based on the findings of an investigation by state surveyors, the Centers for Medicare & Medicaid Services (CMS) concluded that Petitioner had an isolated deficiency of the Medicare participation requirement for SNFs at 42 C.F.R. § 483.25(d) (accidents), which constituted actual harm.  CMS imposed a $19,055 per-instance civil money penalty (CMP) on Petitioner. 

Petitioner disputes there was a deficiency and argues that the fall for Resident 37 was unavoidable.  Petitioner argues that the loss of the facility’s Nurse Aide Training and Competency Evaluation Program (NATCEP) is unreasonable. 

As explained below, I affirm CMS’s determination that Petitioner was in substantial noncompliance with Medicare participation requirements when it failed to properly 

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supervise Resident 37, which resulted in injury to Resident 37.  Further, I conclude that the CMP imposed in this matter is appropriate.1  

I. Legal Framework

The Medicare program “provides basic protection against the costs of . . . related post-hospital . . . care” for individuals over the age of 65 who are eligible for Social Security retirement benefits and for individuals under 65 who meet other criteria.  42 U.S.C. § 1395c.  Post-hospital care includes extended care services provided at an SNF.  42 U.S.C. §§ 1395f(a)(2)(B), 1395x(h)-(i). 

For Medicare program purposes, an SNF is an institution that is primarily engaged in providing skilled nursing care and/or rehabilitation services for its residents but is not primarily engaged in the care and treatment of mental diseases.  42 U.S.C. §§ 1395x(j), 1395i-3(a)(1).  Because an SNF is a “provider of services” in the Medicare program, each SNF that participates in the program must file a provider agreement with the Secretary of Health and Human Services (Secretary).  42 U.S.C. §§ 1395cc(a), 1395x(u).  Further, a participating SNF must meet a variety of ongoing requirements related to how it provides services, maintains the rights of its residents, and administers its facility.  42 U.S.C. § 1395i-3(a)(3), (b)-(d); 42 C.F.R. pt. 483, subpt. B.2  

When an 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,” an SNF’s deficiencies may “pose no greater risk to resident health or safety than the potential for causing minimal harm.”  42 C.F.R. § 488.301. 

Broadly, noncompliance that subjects an SNF to enforcement remedies is divided into two levels.  One level is comprised of deficiencies that immediately jeopardize the health or safety of residents and the other level is composed of deficiencies that do not.  42 U.S.C. § 1395i-3(h)(1).  “Immediate jeopardy” exists when “the provider’s noncompliance with one or more requirements of participation has caused, or is likely to cause, serious injury, harm, impairment, or death to a resident.”  42 C.F.R. § 488.301. 

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The Secretary contracts with state agencies to conduct surveys to determine whether SNFs are in substantial compliance.  42 U.S.C. §§ 1395aa(a), 1395i-3(g); 42 C.F.R. § 488.10.  These surveys can be unannounced surveys that occur at least once every 15 months or can be in response to a complaint.  42 U.S.C. § 1395i-3(g).  When the results of a survey show that an SNF is not in substantial compliance with program participation requirements, the Secretary may impose enforcement remedies on the SNF.  42 U.S.C. § 1395i-3(h)(2); 42 C.F.R. § 488.406.  When CMS selects an enforcement remedy to impose on an 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);3 see also 42 U.S.C. § 1395i-3(h)(2)(B)(ii)(III)(bb). 

One such remedy is a CMP.  42 U.S.C. § 1395i-3(h)(2)(B)(ii).  CMS may impose a per‑instance CMP for each instance of an SNF’s noncompliance, or a per‑day CMP for the number of days an 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 March 17, 2022, and for deficiencies that occurred after November 2, 2015, the CMP amounts may range as follows:  $2,400 to $23,989 for per-instance CMPs; $120 to $7,195 per day for less serious noncompliance; or $7,317 to $23,989 per day for more serious noncompliance that poses immediate jeopardy to the health and safety of residents.  45 C.F.R. § 102.3 (2022); 87 Fed. Reg. 15,100, 15,111 (Mar. 17, 2022); see 42 C.F.R. § 488.438(a)(1) (providing original CMP amounts before statutory inflation adjustments). 

If CMS imposes a CMP based on a finding of substantial noncompliance, then the SNF may request a hearing before an administrative law judge (ALJ) to challenge CMS’s initial determination of noncompliance that led to the imposition of an enforcement remedy and/or the level of noncompliance (if a successful challenge to the level would affect the range of CMP amounts imposed on the SNF).  42 U.S.C. §§ 1320a-7a(c)(2), 1395i‑3(h)(2)(B)(ii); 42 C.F.R. §§ 488.330(e)(3)(ii), 488.408(g)(1), 488.434(a)(2)(viii), 

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498.3(b)(13)-(14), (d)(10); see also 5 U.S.C. §§ 554, 556.  However, CMS’s choice of remedies is not reviewable.  42 C.F.R. §§ 488.438(e)(2), 488.408(g)(2), 498.3(b)(13).  

If an SNF challenges the existence of a deficiency, CMS must make a prima facie case that the SNF failed to substantially comply with federal participation requirements and, if this occurs, the SNF must then prove substantial compliance by a preponderance of the evidence.  Hillman Rehab. Ctr., DAB No. 1611 at 8 (1997); see Batavia Nursing & Convalescent Inn, DAB No. 1911 (2004); 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).  If an SNF challenges CMS’s determination as to the level of noncompliance, CMS’s determination must be upheld unless it is clearly erroneous.  42 C.F.R. § 498.60(c)(2). 

If an ALJ concludes that there was a basis for imposing a CMP on an SNF, then the SNF may dispute the amount of the CMP.  The ALJ’s review of the CMP amount is limited to considering the statutory and regulatory factors for setting a CMP amount.  42 C.F.R. § 488.438(e)(3); see 42 U.S.C. §§ 1320a-7a(d), 1395i-3(h)(2)(B)(ii)(I); 42 C.F.R. § 488.438(f).  The ALJ may not reduce a CMP to zero.  42 C.F.R. § 488.438(e)(1). 

Either the SNF or CMS may request Departmental Appeals Board (DAB) review of an ALJ’s decision.  42 C.F.R. § 498.80. 

II. Background and Procedural History

Petitioner is an SNF that operates in New York State.  Surveyors from the New York State Department of Health (state agency) conducted a complaint survey of Petitioner’s facility on July 6, 2022.  CMS Ex. 1 at 1.  The state agency subsequently issued a Statement of Deficiencies indicating the facility was not in substantial compliance with the Medicare program participation requirements for SNFs.  CMS Ex. 1.  Most significantly, the Statement of Deficiencies found substantial noncompliance with 42 C.F.R. § 483.25(d) (Tag F689) (i.e., free of accident hazards/supervision and assistive devices to prevent accidents) at a scope and severity level of “G” (i.e., isolated deficiency constituting actual harm) related to one resident (Resident 37).  CMS Ex. 1 at 11-21. 

On August 31, 2022, CMS issued an initial determination adopting the state agency survey findings and imposing a $19,055 per-instance CMP under 42 C.F.R. § 488.430 for the substantial noncompliance identified under Tag F689 (i.e., 42 C.F.R. § 483.25(d)).  P. Ex. 2.4   In that determination, CMS found that the state agency documented actual harm to resident health and safety on April 11, 2022.  P. Ex. 2 at 2; CMS Ex. 1 at 12. 

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Petitioner requested a hearing before an ALJ to dispute the initial determination.  In response, the Civil Remedies Division acknowledged receipt of the hearing request and issued Administrative Law Judge (ALJ) Leslie Rogall’s Standing Prehearing Order (Order).  In the Order, she directed the parties to file briefs, proposed exhibits, and written direct testimony for all witnesses they wanted to present in this case. 

In compliance with the Order, CMS filed an exchange, including a prehearing brief and motion for summary judgment (CMS Br.) and 22 proposed exhibits (CMS Exs. 1-22), which included a declaration from one proposed witness (CMS Ex. 20).  Petitioner timely filed an exchange consisting of a prehearing brief (P. Br.) and opposition to summary judgment and seven proposed exhibits (P. Exs. 1‑7).5   Petitioner did not offer testimony from any witnesses in accordance with ALJ Rogall’s standing order. 

The parties’ last filings in this case were made on May 19, 2023. 

This case was transferred to me on January 24, 2025. 

III. Issues

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

On the merits, the issues are: 

1. Whether the facility was in substantial compliance with 42 C.F.R. § 483.25(d)(1)-(2); and
2. If the facility was not in substantial compliance, whether the penalties imposed  are reasonable.

IV. Findings of Fact and Conclusions of Law

My findings of fact and conclusions of law are in bold and italics. 

Summary judgment is appropriate if a case presents no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law.  Bartley Healthcare Nursing and Rehab., DAB No. 2539 at 3 (2013) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-25 (1986)); Ill. Knights Templar Home, DAB No. 2274 at 3‑4 (2009) (and cases cited therein). 

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The moving party may show the absence of a genuine factual dispute by presenting evidence so one-sided that it must prevail as a matter of law or by showing that the non‑moving party has presented no evidence “sufficient to establish the existence of an element essential to [that party’s] case, and on which [that party] will bear the burden of proof at trial.”  Livingston Care Ctr. v. U.S. Dep’t of Health & Human Servs., 388 F.3d 168, 173 (6th Cir. 2004) (quoting Celotex Corp., 477 U.S. at 322).  To avoid summary judgment, the non-moving party must then act affirmatively by tendering evidence of specific facts showing that a dispute exists.  Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 n.11 (1986); see also Vandalia Park, DAB No. 1939 (2004); Lebanon Nursing and Rehab. Ctr., DAB No. 1918 (2004).  The non‑moving party may not simply rely on denials, but must furnish admissible evidence of a dispute concerning a material fact.  Ill. Knights Templar, DAB No. 2274 at 4; Livingston Care Ctr., DAB No. 1871 at 5 (2003).  In doing so, the non‑moving party must show more than “some metaphysical doubt as to the material facts.”  West Texas LTC Partners, Inc., DAB No. 2652 at 6 (2015), aff’d, West Texas LTC Partners, Inc. v. U.S. Dep’t of Health & Human Servs., 843 F.3d 1043 (5th Cir. 2016); 1866ICPayday.com, L.L.C., DAB No. 2289 at 3 (2009) (quoting Matsushita Elec. Indus. Co., 475 U.S. at 587).  

In examining the evidence for purposes of determining the appropriateness of summary judgment, I must draw all reasonable inferences in the light most favorable to the non‑moving party.  Brightview Care Ctr., DAB No. 2132 at 2, 9 (2007); Livingston Care Ctr., 388 F.3d at 172; Guardian Health Care Ctr., DAB No. 1943 at 8 (2004); but see Brightview, DAB No. 2132 at 10 (entry of summary judgment upheld where inferences and views of non-moving party are not reasonable).  However, drawing factual inferences in the light most favorable to the non-moving party does not require that I accept the non‑moving party’s legal conclusions.  West Texas LTC Partners, Inc., DAB No. 2652 at 6-7, 14-15; cf. Guardian Health Care Ctr., DAB No. 1943 at 11 (“A dispute over the conclusion to be drawn from applying relevant legal criteria to undisputed facts does not preclude summary judgment if the record is sufficiently developed and there is only one reasonable conclusion that can be drawn from those facts.”). 

Here, CMS has come forward with evidence, primarily the facility’s own documents, establishing facts showing that the facility was not in substantial compliance with 42 C.F.R. § 483.25(d)(1)-(2).  As discussed below, Petitioner does not dispute the material facts but instead offers facts and opinions, which while accepted at face value, do not establish that a dispute concerning a material fact exists.  

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1. 1. CMS is entitled to summary judgment because the undisputed evidence establishes that the facility failed to ensure that the resident environment remained as free of accident hazards as possible, and that each resident received adequate supervision to prevent accidents. These deficiencies put the facility out of substantial compliance with 42 C.F.R. § 483.25(d).
2. 2. On April 11, 2022, Resident 37, a SNF resident diagnosed with Alzheimer’s Disease with behavioral disturbances, suffered a witnessed fall while ambulating without her walker that resulted in a broken pelvis. The fall occurred when Resident 37 was walking in the hallway without her walker or staff assistance. 

As noted above, Petitioner was charged with a violation of 42 C.F.R. § 483.25(d).  The opening provision of that section of the regulations, which implements sections 1819(b)(2) (Medicare) and 1919(b)(2) (Medicaid) of the Social Security Act, 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 . . . .

42 C.F.R. § 483.25.  42 C.F.R. § 483.25(d)(1) and (2) require the facility to ensure that-

• (1) The resident environment remains as free of accident hazards as is possible; and
• (2) Each resident receives adequate supervision and assistance devices to prevent accidents. 

The material facts in this case are not in dispute.  Resident 37 had diagnoses including Alzheimer’s Disease with behavioral disturbances and the January 13, 2022, Minimum Data Set (MDS) documented that the resident had one fall without major injury since her last assessment.  CMS Ex. 4.  An assessment completed on February 5, 2022, documented that Resident 37 required extensive assistance of two for transfers and walking in her room and extensive assistance of one for bed mobility.  CMS Exs. 8 at 6; 1 at 13; see also CMS Ex. 6 at 9 (MDS score key).  Limited assistance of one was required for walking in the corridor and extensive assistance of one was required for locomotion on unit.  CMS Exs. 8 at 8; 1 at 13; 6 at 9.  Resident 37 was noted to be unsteady when walking and was only able to stabilize with human assistance.  CMS Ex. 1 at 13.  The assessment also noted that Resident 37 used a wheelchair and a walker.  Id.; see also CMS Ex. 9 at 1 (Resident 37’s care plan recommending using a two-wheeled walker for 

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ambulation and transfers and a wheelchair for transport).  On January 12, 2022, RN 20 completed a fall risk assessment and concluded that Resident 37 was a high fall risk who was impaired with gait/transferring, had a history of falls, and used a walker.  CMS Exs. 17 at 1; 1 at 14. 

A comprehensive care plan dated February 28, 2022, documented that Resident 37 was to be encouraged to use a two-wheeled walker or handheld assistance to ambulate to the toilet and the dining room.  CMS Exs. 9 at 1; 1 at 14.  It was noted that the resident needed cues for the use of the wheeled walker.  The care plan called for fall precautions to include non-skid strips by the bed and chair as well as a toileting schedule.  CMS Exs. 9 at 3; 1 at 14.  To reduce stress, behavior interventions were added to include one bassinet in the room.  CMS Exs. 9 at 4; 1 at 14.  

On April 11, 2022, Resident 37 had a witnessed fall in the hallway.  CMS Ex. 1 at 14-15.  Resident 37 was seen to be ambulating in the hallway, lost her balance, and was incontinent.  Id.  The fall was witnessed by a maintenance worker.  CMS Ex. 11 at 4.  The accident report notes that Resident 37 was not using her walker.  Id.  Immediately following the fall, it was noted that Resident 37 did not suffer an injury and was not properly using her assistance device.  Id. at 2-3. 

An entry in the accident report from CNA 48 dated April 12, 2022, stated that Resident 37 had been refusing to use her walker after multiple attempts from the staff members prior to the fall.  CMS Ex. 11 at 6.  The CNA stated that Resident 37 had been walking around the unit throughout her shift with the bassinet.  Id. 

On April 13, 2022, an addendum was created to the accident report to document Resident 37’s complaints of left side pelvic pain.  CMS Ex. 11 at 4.  An x-ray was taken that showed a left superior and inferior pubic ramus fracture.  Id. 

A physical therapy evaluation from April 13, 2022, noted that Resident 37 had four falls in the last year.  CMS Ex. 13 at 3.  The therapist notes all indicate that following prior treatment, it was determined that Resident 37 was encouraged to use her two-wheeled walker but that she was often too distracted and that handheld assistance worked best.  Id. 

3. 3. Petitioner was not in substantial compliance with 42 C.F.R. § 483.25(d) (Tag F689) because it did not take all reasonable steps to provide the supervision and assistance necessary to prevent a foreseeable accident and, as a result, Resident 37 fell, was injured, and suffered actual harm.

The Social Security Act requires SNFs to “provide services to attain or maintain the highest practicable physical, mental, and psychosocial well-being of each resident, in accordance with a written plan of care.”  42 U.S.C. § 1395i-3(b)(2).  In furtherance of this mandate, the Secretary promulgated the general quality of care regulation at 

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42 C.F.R. § 483.25, which states that the SNF “must ensure that residents receive treatment and care in accordance with professional standards of practice,” based on a comprehensive resident assessment, a comprehensive care plan, and resident choice.  Subsection 483.25(d) imposes specific obligations upon a facility related to accident hazards and accidents, as follows:6  

• The facility must ensure that ˗
• (1) The resident environment remains as free of accident hazards as is possible; and
• (2) Each resident receives adequate supervision and assistance devices to prevent accidents.  

Therefore, subsection 483.25(d)(1) requires that a facility address foreseeable risks of harm from accidents “by identifying and removing hazards, where possible, or, where the hazard is unavoidable because of other resident needs, managing the hazard by reducing the risk of accident to the extent possible.”  Maine Veterans’ Home - Scarborough, DAB No. 1975 at 10 (2005) (explaining the inherent standard of care in section 483.25(h)(1)).  The provisions of section 483.25(d) “come into play when there are conditions in a facility that pose a known or foreseeable risk of accidental harm.”  Meridian Nursing Ctr., DAB No. 2265 at 10 (2009), aff’d sub. nom. Fal‑Meridian, Inc. v. U.S. Dep’t of Health & Human Servs., 604 F.3d 445 (7th Cir. 2010).  Further, subsection 483.25(d)(2) requires that a facility take “all reasonable steps to ensure that a resident receives supervision and assistance devices that meet his or her assessed needs and mitigate foreseeable risks of harm from accidents.”  Briarwood Nursing Ctr., DAB No. 2115 at 11 (2007) (citing Woodstock Care Ctr. v. Thompson, 363 F.3d 583, 590 (6th Cir. 2003) (facility must take “all reasonable precautions against residents’ accidents”), aff’g Woodstock Care Ctr., DAB No. 1726 (2000)).  An “accident” may consist of any event that may cause injury to a resident and that may be prevented by supervision.  Woodstock Care Ctr., DAB No. 1726 at 21, 36.  Facilities are given “the flexibility to choose the methods” they use to provide supervision or assistive devices to prevent accidents, so long as the chosen methods “constitute an ‘adequate’ level of supervision” for a particular resident’s needs.  Windsor Health Care Ctr., DAB No. 1902 at 5 (2003), aff’d sub. nom. Windsor Health Ctr. v. Leavitt, 127 F. App’x 843 (6th Cir. 2005). 

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Petitioner admits that Resident 37 had a history of falls at the facility.  Petitioner does not directly challenge the above material facts.  Instead, it argues that it was in substantial compliance with Medicare program requirements because it provided Resident 37 with the required assistance and monitoring and that the April 11, 2022 fall was unpreventable because Resident 37 refused to use the walker on many occasions.  Petitioner also asserts that there was an adequate care plan in place for Resident 37 so substantial compliance should be found under the regulations.  See generally P. Br.  These arguments are unavailing.  As discussed above, Resident 37 had a history of falls, her care plan noted that assistance or the use of a walker to ambulate was to be encouraged, and ultimately she fell in the hallway walking both unassisted and without her walker. 

Petitioner submitted a Root Cause Analysis conducted by the facility after Resident 37’s fall.  P. Ex. 4.  The analysis places blame for the fall on Resident 37’s poor safety awareness.  Id. at 5.  However, this document created by the facility itself does nothing to contest that the staff was aware that Resident 37 required assistance or the use of a walker to ambulate and that she was able to walk from her room into the hallway unassisted before her fall.  As discussed above, the accident report submitted by Respondent does not challenge that Resident 37’s fall was foreseeable.  P. Ex. 7.  Lastly, Petitioner submitted testimony from the State Enforcement Proceeding.  P. Exs. 5 and 6.  The testimony submitted by Petitioner is not weighed or evaluated consistent with the granting of summary judgment.  Instead, I conclude that it does not provide “material facts” which would make the granting of summary judgment inappropriate.  The testimony provides that Resident 37 was offered a walker pursuant to her care plan, but that she was neither using a walker nor being supported by staff when she fell in the hallway. 

The uncontested material facts show that the April 11, 2022 fall was foreseeable when Resident 37 fell after ambulating without staff assistance or her walker. 

4. 4. The evidence establishes that the penalty imposed is reasonable.

CMS imposed a single per-instance CMP in the amount of $19,055 on Petitioner.  P. Ex. 2 at 2.  When determining whether a CMP amount is reasonable, I apply the factors listed in 42 C.F.R. § 488.438(f):  1) facility history of noncompliance; 2) facility financial condition; 3) factors specified in 42 C.F.R. § 488.404; and 4) facility culpability, which includes neglect, indifference, or disregard for resident care, comfort, or safety.  See 42 U.S.C. §§ 1320a-7a(d)(2), 1395i-3(h)(2)(B)(ii)(I).  The absence of culpability is not a mitigating factor.  42 C.F.R. § 488.438(f)(4).  The factors listed in 42 C.F.R. § 488.404 include:  1) scope and severity of the deficiency; 2) relationship of the deficiency to other deficiencies resulting in noncompliance; and 3) facility 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). 

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The regulations leave the decision regarding the choice of remedy to CMS, and the amount of the remedy to CMS and the ALJ, requiring only that the regulatory factors at 42 C.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).  However, unless a facility contends that a particular regulatory factor does not support the CMP amount, an ALJ will sustain it.  Coquina Ctr., DAB No. 1860 (2002). 

In this case, CMS imposed a $19,055 per-instance CMP as well as a ban on conducting a NATCEP for two years.  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 added).  Thus, the burden is not on CMS to explain its decision-making process or to explain the relative weights assigned to each deficiency to support the CMP amounts imposed.  Once the facility contends that a regulatory factor does not support the CMP amount, CMS must then produce evidence as to that factor.  Id.

Petitioner has not submitted any evidence or otherwise contended that a lower CMP should be imposed.  The $19,055 per-instance CMP for the facility’s noncompliance with the requirement that a facility address foreseeable risks of harm from accidents is at the higher end of the range for per-instance CMP amounts ($2,400 to $23,989).  42 C.F.R. §§ 488.438(a)(2), 488.408(d)(1)(iv), 488.408(e)(2)(ii); 45 C.F.R. § 102.3 (inflation-adjusted table); 81 Fed. Reg. 61,565 (Sept. 6, 2016), as amended at 87 Fed. Reg. 15,101 (Mar. 17, 2022).  As discussed above, the facility’s noncompliance here was serious.  Resident 37’s fall resulted in a fractured pelvis.  The facility was also very culpable because it was aware that Resident 37 had a history of falls and that she was not using her walker or assistance to ambulate.  These factors more than support the $19,055 CMP amount imposed. 

Petitioner challenged the loss of its NATCEP.  P. Br. at 21.  Given the facility’s noncompliance with the requirements discussed above, CMS had a basis for imposing a total CMP in excess of $11,995.  Act § 1819(f)(2)(B)(iii)(I)(c) (42 U.S.C. § 1395i-3(f)(2)(B)(iii)(I)(c)).  And, because Petitioner met this condition, the loss of the NATCEP was mandatory.  42 C.F.R. § 483.151(b)(2), (f). 

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V. Conclusion

For the reasons set forth above, I sustain CMS’s initial determination that Petitioner was not in substantial compliance with 42 C.F.R. § 483.25(d) and that a $19,055 per‑instance CMP is fully supported by the relevant statutory and regulatory factors in this case.