Collinwood Care Center, DAB CR6645 (2025)

DECISION

Petitioner, Collinwood Care Center (Petitioner), is a skilled nursing facility (SNF) located in Plano, Texas, certified by and participating in the Medicare and Medicaid programs.  Based on surveys completed on September 20, 2019, Respondent, the Centers for Medicare & Medicaid Services (CMS), determined Petitioner was not in substantial compliance with Medicare participation requirements.  As a result of its determination, CMS imposed per-day civil money penalties (CMPs) for the facility’s noncompliance.

As explained herein, I find in favor of CMS.  I sustain the imposition of a $9,085 per-day CMP from September 3 through September 12, 2019, a $110 per-day CMP from September 13, 2019 through October 24, 2019, and the denial of payment for new Medicare and Medicaid admissions from October 12 through October 24, 2019.

I. Background

On September 10, 2019, surveyors from the Texas Health and Human Services Commission (THHSC or state agency) initiated a recertification survey and as a result cited Petitioner for two Life Safety Code deficiencies under 42 C.F.R. § 483.90(a) (Life

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Safety from Fire), Tags K0353 (sprinkler system maintenance and testing) and K0511 (gas and electric utilities), at scope and severity (s/s) level1 “E.”  CMS Exhibit (Ex.) 3.

The surveyors returned and completed the health portion of that survey on September 14, 2019 and, as a result, cited Petitioner for one immediate jeopardy-level deficiency at 42 C.F.R. § 483.25(d)(1)(2), Tag F689 (ensuring an environment free of accident hazards and providing adequate supervision and assistive devices) and three non-immediate jeopardy-level deficiencies at 42 C.F.R. § 483.20(e)(1)-(2), Tag F644 (coordination of pre-admission screening and resident assessment), 42 C.F.R. §§ 483.45(g),(h)(1)-(2), Tag F761 (labeling and storage of drugs and biologicals), and 42 C.F.R. § 483.60(i)(1)-(2), Tag F812 (food procurement and storage, preparation, distribution, and service).  CMS Ex. 7.

The surveyors completed a third survey on September 20, 2019, and as a result cited the facility for two additional deficiencies at 42 C.F.R. § 483.12(b)(1)-(3), Tag F607 (development and implementation of abuse or neglect policies) and 42 C.F.R. § 483.12(c)(1)-(4), Tag F609 (reporting of alleged abuse and neglect).  CMS Ex. 20.

Based on these survey findings, CMS informed Petitioner on October 7, 2019 that it found the facility no longer met the requirements for participation in the Medicare and Medicaid programs.  CMS Ex. 1 at 1.  As a result, CMS imposed the following penalties: a $9,085 per-day CMP from September 3 through September 12, 2019;2 a $110 per-day CMP from September 13, 2019 until further notice; and denial of payment for new Medicare and Medicaid admissions (DPNA) beginning October 12, 2019 and continuing until Petitioner achieved substantial compliance or CMS terminated its provider agreement.  Id. at 2-3.  CMS warned it would terminate Petitioner’s provider agreement if the facility did not return to substantial compliance by March 14, 2020.  Id. at 2.

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Relying on the findings from a THHSC revisit survey, CMS notified Petitioner on December 9, 2019 that the facility returned to compliance on October 25, 2019.  CMS Ex. 2 at 1.  CMS rescinded its notice of termination and confirmed the DPNA remained in effect from October 12 through October 24, 2019, while the $110 per-day CMP that began September 13, 2019 continued through October 24, 2019.  Id.

Petitioner timely requested a hearing before an Administrative Law Judge in the Civil Remedies Division to challenge CMS’s determination of noncompliance and imposition of remedies.  I was designated to hear and decide this case and issued an Acknowledgment and Pre-hearing Order (Pre-hearing order) that established a briefing schedule and directed the parties to file pre-hearing submissions that included written direct testimony for all proposed witnesses, proposed exhibits, and pre-hearing briefs.

CMS filed a combined motion for summary judgment and pre-hearing brief (CMS Br.) with 29 proposed exhibits (CMS Exs. 1-29), which included written direct testimony for five witnesses (CMS Exs. 14, 16, 27, 28, 29).  Petitioner filed a pre-hearing brief (P. Br.) and 30 proposed exhibits (P. Exs. 1-30), which included the written direct testimony of seven witnesses (P. Exs. 8-10, 18, 21, 22, 28).  Petitioner requested cross-examination of CMS’s witnesses and the issuance of a subpoena for a witness from whom CMS did not supply a declaration.  CMS requested cross-examination of six of Petitioner’s witnesses.

On September 26, 2023, I issued an order denying CMS’s motion for summary judgment as well as Petitioner’s subpoena request.  Petitioner withdrew its request to cross-examine two of CMS’s five witnesses.  CMS withdrew all its cross-examination requests.  Citing their unavailability for the hearing, CMS subsequently withdrew the declarations of Ida Owens and Daniel McElroy (CMS Exs. 16 and 27, respectively).

II. Hearing

On April 23, 2024, I held a hearing by videoconference to allow Petitioner to cross-examine the remaining CMS witness for whom CMS had submitted testimony and Petitioner had sought cross-examination.  Following the hearing, both parties timely filed post-hearing briefs (P. Closing Br.; CMS Closing Br.).

III. Admission of Exhibits

At the outset of the hearing, I ruled on the parties’ objections to the opposing party’s proposed exhibits.  Hearing Tr. at 8-11.  Overruling their objections for the reasons cited at the hearing, I entered into the record CMS Exhibits 1 through 29, excluding CMS Exhibits 16 and 27.  Id. at 11.  I also entered Petitioner’s Exhibits 1 through 30 into the record.  Id.  I provisionally accepted P. Exhibit 1 to allow the parties to clarify their positions as to its relevance in post-hearing briefing.  Id. at 8-9.  Petitioner did so, arguing

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the reasons it believes P. Exhibit 1 relevant.  P. Closing Br. at 3.  CMS made no similar effort.  As such, I find no basis to sustain its objection to the admission of P. Exhibit 1.

Petitioner renewed its objections to CMS Exhibits 3 through 9, 15, 17, 19 through 22, and 25, all documents generated by THHSC during survey visits.  P. Closing Br. at 1-2.  Petitioner argues the exhibits generated by the unavailable THHSC surveyor are hearsay evidence so unreliable as to be non-probative and therefore inadmissible.  Id.  It otherwise cites certain exhibits as irrelevant because their relevance is not readily obvious and are not cited in CMS’s briefing.  Id. at 2.  But while acknowledging my admonition at the hearing to argue the weight of otherwise admissible evidence in these proceedings, Petitioner simply restates its belief these exhibits should be excluded because they are unreliable hearsay or not obviously relevant.

Petitioner’s objections are without merit.  I recognize the potential for concern where a state surveyor is unavailable to be cross-examined as to documents generated during the survey process.  But Petitioner does not appear to seriously argue the state agency’s survey documentation is inauthentic; instead, it erroneously presumes that admission of these records means I will accept them as fully credible.  As I emphasized at the hearing, Petitioner had the opportunity to put its own witnesses and documentary evidence into evidence to contest the probative value of the surveyor’s observations and accuracy of her reports of contact.  Whatever its ultimate probative value, the relevance of the surveyor’s documentation of the surveys underlying the deficiencies cited before me is plain.  Petitioner’s renewed objections on this basis are overruled.

Petitioner’s objections to the admission of CMS Exhibits 5, 6, 9, 15, 17, 19, 21, and 22 as irrelevant hearsay that does not tend to prove any aspect of CMS’s case are equally without merit.  P. Closing Br. at 2.  Documentation of the state agency’s survey process and the investigation underlying the deficiency findings are plainly relevant, and Petitioner cites no authority for the dubious proposition that evidence is not admissible if not cited by a party in its briefing.  Petitioner’s objections to these exhibits are overruled.

Finally, Petitioner objects to the admission of CMS Exhibit 25, noting it is the medical record of a resident whose care did not relate to the finding of a deficiency in this matter.  P. Closing Br. at 3.  CMS makes no response.  Petitioner did not initially make this objection prior to or at the hearing, instead arguing for the exclusion of CMS Exhibit 25 because CMS did not cite it in its pre-hearing brief.  P. May 26, 2020 Obj. at 2.  I would normally consider an objection made after the time to do so waived.  However, Petitioner correctly asserts this exhibit pertains to an individual, Resident 3, who is not identified in the Statement of Deficiencies or CMS’s pre- or post-hearing briefing as the basis for a deficiency finding.  CMS improperly disclosed the personal health information of Resident 3 to Petitioner and made it part of this record.  I therefore sustain Petitioner’s objection and strike CMS Exhibit 25 from the record.

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CMS Exhibits 1 through 29, excluding CMS Exhibits 16, 25, and 27, are entered into the record, as are Petitioner Exhibits 1 through 30.

IV. Statement of Issues

The issues presented3 are:

1. Whether Petitioner was in substantial compliance with:
   • 42 C.F.R. § 483.90(a) (Tags K0353 and K0511) at the time of the September 10, 2019 survey;
   • 42 C.F.R. § 483.25(d)(1)(2) (Tag F689); 42 C.F.R. § 483.20(e)(1)(2) (Tag F644), 42 C.F.R. §§ 483.45(g),(h)(1)-(2) (Tag F761), and 42 C.F.R. § 483.60(i)(1)-(2) (Tag F812) at the time of the September 14, 2019 survey; and
   • 42 C.F.R. § 483.12(b)(1)-(3) (Tag F607) and 42 C.F.R. § 483.12(c)(1)-(4) (Tag F609) at the time of the September 10, 2019 survey.
2. If Petitioner was not in substantial compliance, whether CMS’s immediate jeopardy determination for Tag F689 was clearly erroneous; and
3. If Petitioner was not in substantial compliance with program requirements, whether the CMP imposed by CMS is reasonable.

V. Jurisdiction

I have jurisdiction to hear and decide this case.  42 U.S.C. §§ 1320a-7a(c)(2), 1395i-3(h)(2)(B)(ii); 42 C.F.R. §§ 488.408(g), 488.434(a)(2)(viii), 498.3(b)(13).

VI. Legal Authority for the Imposition of Penalties

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

A SNF must maintain substantial compliance with program requirements to participate as a provider in the program.  To be in substantial compliance, a facility’s deficiencies may

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“pose no greater risk to resident health or safety than the potential for causing minimal harm.”  42 C.F.R. § 488.301.

The Secretary contracts with state agencies to conduct periodic surveys to determine whether SNFs are in substantial compliance with the participation requirements.  Act § 1864(a) (42 U.S.C. § 1395aa(a)); 42 C.F.R. § 488.10.  The Act also authorizes the Secretary to impose enforcement remedies against SNFs that do not comply with the participation requirements.  Act § 1819(h)(2) (42 U.S.C. § 1395i-3(h)(2)).

The Act’s implementing regulations specify the enforcement remedies that CMS may impose if a facility is not in substantial compliance.  42 C.F.R. § 488.406.  Among other enforcement remedies, CMS may impose a DPNA for new admissions, a per-day CMP for the number of days a facility is out of substantial compliance, or a per-instance CMP for each instance of noncompliance.  42 C.F.R. § 488.430(a).

CMS initially had authority to impose a per-day CMP ranging from $50 to $3,000 per day for less serious noncompliance or $3,050 to $10,000 per day for more serious noncompliance that poses immediate jeopardy to the health and safety of residents; that range is adjusted annually for inflation.  42 C.F.R. § 488.430(a); 42 C.F.R. § 488.408(d)(1); 45 C.F.R. Part 102.  In September 2019, a per-day CMP could range from $107 to $6,417 for less serious noncompliance and $6,525 to $21,393 for more serious immediate jeopardy-level compliance.  84 Fed. Reg. 59,549, 59,559 (Nov. 5, 2019).

If CMS imposes a CMP against a facility based on a noncompliance determination, the facility may request a hearing before an ALJ to determine whether there was a basis for the deficiency findings that led to the imposition of the remedy and whether the CMP imposed was reasonable.  Act §§ 1128A(c)(2) (42 C.F.R. § 1320a-7a(c)(2)), 1819(h)(2)(B)(ii) (42 C.F.R. § 1395i(h)(2)(B)(ii)); 42 C.F.R. §§ 488.408(g), 488.434(a)(2)(viii), 498.3(b)(13).  However, CMS’s choice of remedies and the factors it considered to decide upon remedies are not subject to review.  42 C.F.R. § 488.408(g)(2).

VII. Burden of Proof

In adjudications proceeding under the Administrative Procedures Act (APA), Congress established that “the proponent of a rule or order has the burden of proof[,]” except where otherwise provided by statute.  5 U.S.C. § 556(d).  The Act does not “otherwise provide[]” for allocation of the burden of proof or the quantum of evidence necessary to meet that burden in this type of proceeding.  It would therefore be reasonable to conclude that CMS, the agency that propounded the regulations implementing its enforcement authority under the Act, bears the burden of proof and persuasion to justify imposition of penalties authorized by the Act.

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Nevertheless, the Departmental Appeals Board has imposed a burden-shifting regime in cases involving the imposition of enforcement penalties against providers whose appeals are adjudicated under 42 C.F.R. Part 498.  Hillman Rehab. Ctr., DAB No. 1611 (1997), aff’d, Hillman Rehab. Ctr. v. U.S. Dep’t of Health & Human Servs., No. Civ. A. 98-3789 (GEB), 1999 WL 34813783 (D.N.J. May 13, 1999); VITAS Healthcare Corp. of Calif., DAB No. 1782 at 4 (2001); Cross Creek Health Care Ctr., DAB No. 1665 (1998) (applying the burden-shifting regime to cases involving skilled nursing facilities); Batavia Nursing & Convalescent Inn, DAB No. 1911 (2004), aff’d sub nom., Batavia Nursing & Convalescent Ctr. v. Thompson, 143 F. App’x 664 (6th Cir. 2005).

Under that regime, CMS has the burden to come forward with evidence sufficient to make a prima facie showing4 it had a basis to impose a penalty.  In Hillman, an appeal by a rehabilitation center of its termination as a provider to the Medicare program by the Health Care Finance Administration (CMS’s predecessor agency), the Board identified the elements it believed necessary for CMS to make such a showing:

[CMS] must identify the legal criteria to which it seeks to hold a provider.  Moreover, to the extent that a provider challenges [CMS’s] findings, [CMS] must come forward with evidence of the basis for its determination, including the factual findings on which [CMS] is relying and, if [CMS] has determined that a condition of participation was not met, [CMS’s] evaluation that the deficiencies found meet the regulatory standard for a condition-level deficiency.

DAB No. 1611 at 8.

Once CMS makes a prima facie showing of noncompliance, the Board held the facility bears “the ultimate burden of persuasion” and can only prevail if it proves, by a preponderance of the evidence of record, that it substantially complied with statutory and regulatory requirements.  Id. at 7.

Subsequently, a SNF appealing CMS’s imposition of a civil money penalty (CMP) for failing to substantially comply with Medicare participation requirements argued burden-shifting would be improper in hearings proceeding under the APA.  Batavia Nursing &

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Convalescent Inn, DAB No. 1911 (2004), aff’d sub nom., Batavia Nursing & Convalescent Ctr. v. Thompson, 143 F. App’x 664 (6th Cir. 2005).

The Board rejected this claim, explaining the Supreme Court approved placing the burden of proof “on the claimant for governmental benefits when evidence is evenly balanced” because the party seeking the benefit, including a “non-monetary benefit or privilege,” would, in that context, be “the proponent of the rule or order.”  Batavia Nursing, DAB No. 1911 at 10 (citing Director, OWCP v. Greenwich Collieries, 512 U.S. 267, 276 (1994); U.S. Steel Corp. v. Train, 556 F.2d 822, 834 (7th Cir. 1977) (the applicant for a permit to discharge pollutants is a “proponent”); Day v. NTSB, 414 F.2d 950, 952 (5th Cir. 1969) (finding it appropriate to place the burden of proof on a pilot seeking certification of fitness to fly).

The Board reasoned that by appealing the penalties imposed by CMS, Batavia Nursing in essence sought “from the government an order certifying that it is in substantial compliance with SNF requirements, so that it may continue to participate in the Medicare program with no restrictions on payment.”  DAB No. 1911 at 10.  The Board therefore concluded it reasonable to place the burden of proof on Batavia to show its return to substantial compliance.  Id.

The legitimacy of the burden-shifting regime thus rests largely on the Board’s characterization of facilities that challenge the imposition of remedies by CMS as proponents of a rule or order when they do so.  To date, federal district and circuit courts have declined to disturb the burden-shifting regime on due process or other grounds.  See, e.g., Hillman Rehab. Ctr., DAB No. 1611 (1997), aff’d, Hillman Rehab. Ctr. v. U.S. Dep’t of Health & Human Servs., No. Civ. A. 98-3789 (GEB), 1999 WL 34813783 (D.N.J. May 13, 1999); Fairfax Nursing Home, Inc., DAB No. 1794 (2001), aff’d, Fairfax Nursing Home v. Dep’t of Health & Human Servs., 300 F.3d 835 (7th Cir. 2002), cert. denied, 2003 WL 98478 (Jan. 13, 2003); Batavia Nursing & Convalescent Inn, DAB No. 1911 (2004), aff’d sub nom., Batavia Nursing & Convalescent Ctr. v. Thompson, 143 F. App’x 664 (6th Cir. 2005).

However, the Supreme Court has since examined the scope of the Secretary’s rulemaking authority in the context of Medicare reimbursement and held that under section 1871 of the Act, the Secretary must comply with notice-and-comment rulemaking under the APA to impose any requirements upon regulated entities which constituted a change in a substantive legal standard.  Azar v. Allina Health Servs., 587 U.S. 566, 139 S. Ct. 1804 (2019) at 1809-14.

The Court has also recently renounced its longstanding interpretive rule, known as Chevron deference, which required courts reviewing agency actions to defer to agencies’ interpretation of their statutory mandate where the language of the statute in question was ambiguous.  See Loper Bright Enterprises v. Raimondo, 603 U.S. 369, 144 S. Ct. 2244

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(2024); Hillman Rehab. Ctr., DAB No. 1611 at 17-20 (justifying burden-shifting in part by noting it was consistent with the “long-standing interpretation” of the Board’s predecessor body).

It remains to be seen whether federal courts will consider the Board’s burden-shifting regime a “change in a substantive legal standard” under the Allina holding or, in the absence of Chevron deference, more broadly reject the Board’s interpretation of section 7 of the APA to identify entities challenging enforcement actions taken by the government as proponents of an order or rule.  Until such judicial scrutiny demands otherwise, and absent modification of the Act or CMS’s implementing regulations, I apply the Board’s burden-shifting regime.

VIII. Discussion

A. Petitioner did not substantially comply with 42 C.F.R. § 483.25(d)(1)-(2) (Tag F689).

As explained below, CMS has demonstrated by a preponderance of the evidence that Petitioner did not substantially comply with its regulatory obligation to provide adequate supervision to Resident 17 (R17).

1. Relevant Facts

R17 entered Petitioner’s facility in June 2017 at the age of 84.  CMS Ex. 10 at 1.  His diagnoses included unspecified dementia, mild cognitive impairment, memory deficit, falls, and prior skull fracture.  Id. at 2.  On April 18, 2019, Social Worker Denise McSpadden observed R17 was “getting more confused.”  Id. at 92.  She noted the resident ate breakfast, forgot he ate, and returned to the dining room to again demand breakfast.  Id.  She expressed her concern that he would walk outside the facility, “often quite far,” and noted that based on past communications, the resident’s son had been “ok” with R17’s walks.  Id.  She nevertheless left him a voicemail to inform him about R17’s confusion and refusal to take medications.  Id.

On April 30, 2019, Licensed Certified Social Worker Randal Voss evaluated R17 after his physician, Dr. Tamara Barsik, referred the resident for mental and behavioral health services for generalized anxiety disorder.  P. Ex. 5 at 1.  LCSW Voss found R17 oriented with adequate attention and concentration.  Id.  LCSW Voss found him to exhibit poor memory but noted his thought process was “clear and logical, just vague at times.”  Id. at 2.

On May 14, 2019, R17 told facility staff that he fell in his room and struck his left side on the foot board of his bed.  CMS Ex. 10at 90.  He denied hitting his head, said he was ok,

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and refused pain medication.  Id.  Facility staff notified both R17’s son and his physician, Dr. Barsik.  Id.

On May 23, 2019, Dr. Barsik ordered the facility to send R17 to the hospital for evaluation because he had complained of wheezing and pain in the abdominal area for a week.  Id. at 89.  R17 refused medical evaluation or intervention.  Id.  Licensed Practical Nurse Marie Coffey ordered an ambulance to transport R17, but he refused to go to the hospital.  Id.  LPN Coffey notified the resident’s doctor and then contacted his son in an effort to persuade R17 to go to the hospital.  Id.  R17’s son explained that he would not be able to convince his father to go.  Id.

On May 29, 2019, Social Worker Denise McSpadden noted R17 continued to refuse medication and insisted on going outside and walking in the heat.  Id. at 88.  She spoke to R17’s son, who stated he could not change his father’s behavior and that there was “nothing anyone can do to MAKE him do anything.”  Id. (emphasis in original).  On May 31, 2019, the Family Dollar across the street notified the facility that R17 was standing outside the store and appeared confused.  Id.  Registered Nurse Grace Nganga checked on R17 and found him alert, though confused and fatigued with an unsteady gait.  Id.  R17 refused assessment or assistance returning to bed.  Id.

On June 1, 2019, LPN Alexis Nguitte-Kebongo observed R17 walking outside on the sidewalk but could not persuade him to return inside.  Id.  With two other members of staff and a wheelchair, she eventually assisted him back into the building.  Id.  R17 spent much of that day sleeping and refusing to take medication or eat.  Id. at 86.  He swung his arms at staff if they tried to wake him and asserted he could sleep all day if he wished.  Id.  On June 5, 2019, R17 exhibited increased confusion and remained difficult to re-direct, exiting the facility at 3:00 a.m. without pants.  Id.  Members of staff followed with a gown while R17 urinated at the facility’s front entrance when they attempted to redirect him inside to use the bathroom.  Id.  Facility staff advised R17’s son and physician.  Id.

For the next several days, R17 persisted in his refusal to take routine medications, which staff communicated to his son and doctor.  Id. at 83-85.  On June 11, 2019, R17 again left the facility wearing underwear and no pants.  Id. at 83.  He refused to sign himself out and facility staff followed him with a gown he refused to don.  Id.  Facility staff eventually convinced him to return and encouraged him to let staff know if he wanted to go outside, particularly late at night for safety reasons.  Id.

On June 12, 2019, R17 was admitted to the hospital after striking his head and passing out in an unwitnessed fall.  Id. at 97.  That evening around 9:30 p.m., Petitioner’s staff discovered R17 was not in his room and conducted a search for him first in the building and then outside in proximity to the facility.  Id. at 81.  Petitioner’s staff notified facility administrator Stephen Cutshaw and R17’s son.  Id.  Administrator Cutshaw contacted the local police department and discovered R17 had been taken to the hospital for emergent treatment.  Id.

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At the hospital, R17 reported walking around aimlessly and thought he tripped on a foley catheter line.  Id. at 106-07.  He appeared disoriented and refused examination but exhibited normal gait and station.  Id.  Imaging revealed a right frontal skull fracture and suspected spinal fluid leak.  Id.

R17 returned to the facility on June 19, 2019.  Id. at 80-81.  Petitioner’s staff noted he was “stable but very frail.”  Id. at 81.  He remained non-compliant with care or taking medication and required “constant redirection” related to environmental safety awareness.  Id. at 80.  The next day R17 continued his habit of going outside in the heat and refusing to come inside.  Id.  Petitioner’s staff indicated their plan of correction included changing the code to the front door and not supplying it to residents with dementia or who could not sit or walk outside safely.  Id.

For the next several days, R17 continued to leave the facility to sit across the street and resisted staff efforts to persuade him to come inside.  Id. at 74-79.  On June 24, 2019, RN Nganga observed him sitting outside across the street and could not persuade him to come inside from the heat, even after explaining to him the risk of being outside for more than 30 minutes.  Id. at 75.  She notified Administrator Cutshaw, who spoke with R17 but also failed to persuade him to return inside.  Id.  The administrator assigned a nurse aide to monitor R17 until he eventually returned.  Id.

The next day, LPN Pamela Okoronkwo observed the resident “remains resistant to care and medication administration . . . [R17] continues to go out of the facility unsupervised despite all efforts made by staff[] members to keep him safe within the facility parameters.”  Id. at 74.  She noted R17’s son was aware of this daily behavior.  Id.  Social Worker McSpadden noted the facility had changed the code to the front door and insisted that R17 sign out.  Id.  She explained R17 could safely sit on the facility’s porch and walk to the facility’s parking lot but that he would not be allowed to go outside if he persisted in crossing the street.  Id.  The social worker noted R17 was “VERY resistant to doing anything he doesn’t want to do.  He is very stubborn and easily angered/agitated.”).  Id.  (emphasis in original).

On June 26, 2019, the facility conducted a quarterly Minimum Data Set (MDS) evaluation of R17’s health and functional capacity.5  Id. at 3-47.  Petitioner’s staff

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evaluated R17 using the Brief Interview for Mental Status (BIMS)6 and assigned him a score of 7, suggesting moderate cognitive impairment.  CMS Ex. 10 at 8; BIMS Summary Score at C-14.  R17 could walk steadily and needed only supervision (oversight, encouragement, or cueing) but no assistance to walk in his room, in the unit, and to move around the facility.  CMS Ex. 10 at 13-14.

On June 27, 2019, Activities Director Carla Richmond escorted R17 outside to walk and found him compliant.  CMS Ex. 10 at 68.  She observed R17 needed “supervision to go outside for walks [because] he is easily disoriented and [confused].”  Id.  A member of the nursing staff noted R17 refused to let staff assess the skin tear on his forearm he had when he returned from the hospital.  Id.

On July 2, 2019, Petitioner conducted another comprehensive MDS assessment of R17.  P. Ex. 4.  Its staff again evaluated R17 using the BIMS tool and assigned him a score 10, indicating moderate cognitive impairment.  Id. at 7.  Facility staff noted the presence of delusions (firmly held misconceptions or beliefs held contrary to reality) but found his behavioral symptoms did not put him at significant risk of physical illness or injury and did not significantly interfere with his participation in activities or social interactions.  Id. at 11.

On July 3, 2019, LPN Okoronkwo observed R17 walking beyond the facility’s parameters along the road.  CMS Ex. 10at 65.  She notified Administrator Cutshaw and with other members of staff, attempted to persuade R17 to return to the facility, which he refused to do.  Id.  She observed him from her car and after 10 minutes, noted R17 walked inside an apartment complex.  Id.  LPN Okoronkwo notified the administrator of this new behavior and noted R17 “remained very non[-]compliant with signing out of [the] facility” and that “every intervention implemented by [the] facility remained futile.”  Id.

The next day, Social Worker McSpadden noted R17 left the facility, walked a short distance down the street, and sat under a tree by some apartments.  Id. at 64.  She sought to convince him to return but he “politely declined.”  Id.  R17 told her neither the facility nor the police could make him return.  Id.  He described a “circuit” he completed where he stopped at three different trees and sat beneath each before returning to the facility.  Id.  The social worker thought this to be an ongoing problem but noted R17 usually signed himself out and could usually be observed.  Id.  She stressed her concern that R17 went

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out in the heat without water but noted R17 assured her he had drank water before leaving the facility.  Id.  Social Worker McSpadden noted R17’s son had been notified and in response, explained R17 habitually walked after each meal “his entire life” and that “there is no way to change him.”  Id.  She indicated facility staff would “continue to watch for him the best we can and continue to try and convince him to not be out so long.”  Id.

On July 5, 2019, R17 refused incontinence care and walked around the facility in wet clothing.  Id. at 63.  He refused to change into dry clothes or take routine medication.  Id.  On July 13, 2019, LPN Cortera Gammage noted R17 kept coming out of his room and walking in the hall without pants, wearing only a shirt, underwear, and a cap.  Id. at 62.  LPN Okoronkwo reiterated on July 17, 2019 that R17 remained non-compliant in signing out of the facility unsupervised and could not be redirected.  Id.

On July 25, 2019, R17 again left the facility without signing out and “wandered to a busy shopping complex.”  Id. at 61.  Facility nursing staff reiterated they could not redirect or educate him about safety awareness or the dangers associated with leaving the facility.  Id.  Social Worker McSpadden noted R17 left the building and “got lost” until facility staff found him and brought him back.  Id.  She notified his son and received permission to find a facility with a secured unit to which to transfer R17.  Id.  However, Administrator Cutshaw and Director of Nursing (DON) Emebet Haile spoke with a “clinical liaison” who confirmed that R17 could continue to go outside for daily walks so long as he signed out.  Id.  With Social Worker McSpadden, they educated R17 about the dangers of going outside, including heat stroke and falls.  Id.  R17 indicated his understanding.  Id.  The social worker advised R17’s son.  Id.

On July 31, 2019, R17 again left the facility without signing out.  Id.  However, because he had been complaining of nausea after dinner, RN Nganga went to check on R17, who was already sitting outside across the street.  Id.  He declined to return to the facility or return to sign out.  Id.  After R17 continued his walk, RN Nganga, DON Haile, and another member of staff followed him for about an hour but could not persuade him to return.  Id.  RN Nganga noted R17 was “very resistant to doing anything he doesn’t want to do” and “easily angered/agitated.”  Id.

On August 1, 2019, R17 again left the facility and walked across the street.  Id. at 59.  LPN Okoronkwo noted R17 “continues to endanger himself by signing out of the facility unsupervised” and that attempts made by facility staff to redirect him “remained futile.”  Id.  She noted that constant education and redirection were ineffective.  Id. at 60.  On August 8, 2019, another resident’s daughter called the facility and reported R17 had fallen on the street outside.  Id. at 59.After members of staff brought him back in a wheelchair, he reported falling on his head.  Id.  R17’s doctor ordered X-rays of his skull and right arm.  Id.  Facility staff notified R17’s son.  Id.  R17 remained non-compliant after the fall, refusing to submit to the X-ray and persisting in going outside.  Id.

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On August 10, 2019, R17 left his room in his underwear and jacket without pants and attempted to go outside.  Id. at 58.  He became agitated and aggressive when staff attempted to redirect him to his room to put on pants.  Id.  On August 12, 2019, a member of the facility’s maintenance staff let R17 outside.  Id.  LPN Okoronkwo attempted to hand him the sign-out sheet but R17 refused to sign, stating he could do whatever he wanted.  Id.  The nurse noted R17 remained “very difficult to redirect” and “oblivious” to the danger of leaving without supervision.  Id.  She also noted facility administrative staff, R17’s son, and R17’s physician were all aware of this behavior.  Id.  

2. Regulatory framework

42 C.F.R. § 483.25 requires facilities to treat “quality of care” as a fundamental principle in the treatment and care they provide to residents.  Subsection (d)(1) requires facilities to minimize the possibility of accidents by keeping residents’ environments as free of hazards as possible and by providing adequate supervision and assistive devices.  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).  In that circumstance, facilities “must identify and remove hazards, where possible, or where the hazard is unavoidable because of other resident needs, manage the hazards by reducing accident risks to the extent possible.”  Logan Healthcare Leasing, DAB No. 3036 at 13 (2021).

Subsection 483.25(d)(2) requires a facility to 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) (providing a facility must take “all reasonable precautions against residents’ accidents”), aff’g Woodstock Care Ctr., DAB No. 1726 (2000)); Maine Veterans’ Home - Scarborough, DAB No. 1975, at 6 (2005) (the regulation “places a continuum of affirmative duties” to provide residents an environment “as free of accident hazards as is possible.”

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).  To provide adequate supervision, the measures chosen by a facility must “reduce known or foreseeable accident risks to the highest practicable degree….”  Logan, DAB No. 3036 at 13 (citations omitted).

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3. Analysis

CMS argues Petitioner failed to adequately supervise R17 given his history of falls, wandering, and decreased cognition.  CMS Br. at 11; CMS Closing Br. at 10-11.  CMS asserts the interventions Petitioner put into place – redirecting R17 in the hope he would stay inside the facility, educating him about environmental awareness, and eventually, requiring him to sign in and out – were inadequate and, at any rate, irregularly applied.  Id.  Petitioner contests CMS’s characterization of R17 as cognitively limited and at high risk of falls, contending the resident’s ability to make his own medical decisions reflected greater cognitive capacity and that the record showed him to be at low risk of falls.  P. Br. at 4.  Petitioner asserts it took reasonable precautions and implemented appropriate interventions consistent with R17’s mental and physical condition, and that absent a physician’s order or assessment suggesting otherwise, the facility could do no more without impinging on R17’s right to leave the facility.  Id. at 4-7.

Petitioner’s claim that it provided adequate supervision to R17 and balanced his need for independence with his safety given his cognitive limitations and fall risk is not supported by the record.  The facility implemented minimal interventions to accommodate R17’s legitimate if inflexible demands but failed to recognize they were inadequate.  By not adjusting or adding to these interventions, Petitioner failed to take adequate measures to protect R17 from foreseeable risk of harm.

Certainly, Petitioner’s challenge to adequately supervise R17 was fraught with complexity, even when he was at his peak mental and physical capacity, owing to his fierce insistence to exercise his right to decline treatment and leave the facility as he wished.  To describe R17 as recalcitrant in that regard would be a profound understatement.  The record is replete with instances where R17 refused medication, refused treatment, refused to stay inside, refused to sign out, and if outside, refused to return to the building.7  CMS Ex. 10 at 58, 59, 61, 62, 63, 64, 65, 74-79, 80-81, 83-85, 86, 88, 89, 90.

The efforts made by Petitioner’s staff to curb or redirect R17’s difficult behavior reflect sincere concern for him.  The record repeatedly documents instances where various members of staff, from LPNs to RNs to the DON and even the facility’s Administrator, monitored R17, sought to educate him of the hazards of his walks, followed him as he walked outside, attempted to cajole him back indoors, and sat with him until he decided to return.  Id. at 61, 64, 65, 68, 75, 80, 83, 86, 88.

I am thus sympathetic to Petitioner’s claim that it did everything it could to preserve R17’s right to refuse treatment and leave the facility.  But good intentions and genuine

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concern, while entirely laudable, do not meet a facility’s regulatory obligation to keep their residents as safe as reasonably possible.  The interventions the facility selected – redirection and education – may have been a reasonable first step given R17’s relatively unencumbered mental condition.  P. Ex. 5 at 1 (April 2019 evaluation reflecting R17 exhibited “clear and logical” thought process and adequate attention and concentration).

But it quickly became evident that these minimal interventions were inadequate.  By the end of May 2019, the staff came to understood that R17 could not be redirected from taking his walks.  CMS Ex. 10 at 88 (note by Social Worker McSpadden that she expressed concern that R17 insisted on going out and walking in the heat to the resident’s son, who responded there was “nothing anyone can do to MAKE him do anything.”).  Evidence of R17’s bouts of increased confusion from as early as April 2019 bely Petitioner’s claim that educating him about environmental awareness would be effective.  CMS Ex. 10 at 88(May 31, 2019 note by Nurse Nganga observing R17 stood outside across the street at a Family Dollar appearing confused); CMS Ex. 10 at 92 (April 18, 2019 notation by Social Worker McSpadden observing R17 was “getting more confused.”).

Even if Petitioner’s interventions were reasonable up to this point, R17’s ingrained recalcitrance and incidents of confusion foreshadowed future issues.  By June 2019, R17’s cognitive and behavioral issues worsened.  On the first day of the month, he refused to return inside, had to be assisted back in by three members of staff using a wheelchair, and spent the remainder of the day sleeping and refusing food and medication, even swinging his arms at staff who tried to awaken him.  Id. at 86-88.  Four days later, on June 5, 2019, he exhibited increased confusion, exited the facility at 3:00 a.m. without pants and was observed urinating at the facility’s front entrance.  Id. at 86.  On June 11, 2019, R17 again left the facility wearing no pants and refused to don a gown facility staff offered to him.  Id. at 83.

Any one of these incidents should have signaled to Petitioner’s staff that attempts to redirect R17 or provide him education were insufficient to minimize the risk of harm to him during his outdoor walks.  It is unsurprising that R17 fell on June 12, 2019, suffered a skull fracture, and was taken to this hospital for emergent care, something Petitioner did not discover until it contacted the local police after it noticed R17’s absence later that evening.  Id. at 81, 97.

At this point, Petitioner was on clear notice that the interventions it chose to supervise R17 and limit his risk of harm were ineffective.  Yet on his return from the hospital on June 19, 2019, the only change Petitioner made the next day was to change the front door

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code to limit R17’s ability to leave the facility without the staff’s knowledge.8  Id. at 80.  But facility staff continued to let R17 go outside to walk and sit across the street.  Id. at 74-79.  On at least one occasion, R17 simply followed a member of the maintenance staff outside.  Id. at 58.  By July 2019, facility staff documented R17 walked around in wet clothing or without pants and refused to consistently sign out when he left the facility.  Id. at 62-63.  He also wandered into a shopping complex and got lost until facility staff found him and returned him.  Id. at 61.  These events all belie Petitioner’s claim that it implemented the appropriate interventions necessary to provide adequate supervision to R17.

The opinions of Petitioner’s own staff show they clearly understood these interventions were ineffective.  LPN Okoronkwo observed on June 25, 2019 that R17 “remains resistant to care and medication administration [and] continues to go out of the facility unsupervised despite all efforts made by staff[] members to keep him safe within the facility parameters.”  Id. at 74.  On June 27, 2019, Activities Director Richmond opined that R17 needed “supervision to go outside for walks [because] he is easily disoriented and [confused].”  Id. at 68.  On July 3, 2019, LPN Okoronkwo opined conclusively that R17 “remained very non[-]compliant with signing out of [the] facility” and that “every intervention implemented by [the] facility remained futile.”  Id. (emphasis added).

With no significant change to the interventions the facility applied to supervise him, it is no surprise that on August 8, 2019, R17 suffered yet another unwitnessed fall and was returned to the facility in a wheelchair.  Id. at 59.  Staff again noted R17 to be impervious to education and redirection.  Id.  As LPN Okoronkwo observed, after three falls and countless attempts at education and redirection, R17 still refused to sign out, stated he could do whatever he wanted, and remained “oblivious” to the danger associated with leaving the facility unsupervised.  Id. at 58.

Petitioner responds to the overwhelming evidence of the ineffectiveness of its interventions by arguing it could not have done more for R17 without violating his rights and infringing on his liberty.  P. Br. at 6-7, citing Good Shepherd Home for the Aged, Inc., DAB No. 2858 (2018).  Petitioner contends that short of a physician’s order, it could not have restrained R17.  Id. at 7.  Petitioner asserts that it met its obligation under the regulations by having R17 sign out so its staff could monitor his whereabouts after they first sought to dissuade him, advise him of the dangers of leaving, offer companionship, or redirect him.  Id. at 8, 13-14.

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The premise of Petitioner’s argument – that it could either impermissibly confine R17 or let him wander freely outside – is a false dilemma.  The record does not establish Petitioner made the effort to implement adequate interventions less restrictive than confinement to keep R17 as foreseeably safe as possible.  For example, Petitioner states unequivocally that it could not have considered the use of a WanderGuard or otherwise limited R17 from leaving the facility without an order from R17’s physician.  Id. at 13.  Even if this is true, once it became apparent to its staff that the interventions in place to keep R17 were ineffective, Petitioner should have initiated contact with R17’s doctor and requested he order the WanderGuard or consider other necessary restrictions, particularly after R17’s second fall in June 2019.

The facility cannot passively rely on a doctor who may see a resident only sporadically to obviate its own responsibility to maximize the safety and wellbeing of its residents.  Britthaven of Havelock, DAB No. 2078 at 16 (2007) (“. . . even if some of these services required a doctor’s order, Britthaven could have easily requested such an order from the treating physician.”); Beverly Health and Rehabilitation – Spring Hill, DAB No. 1696 at 39-44 (1998) (providing “a physician’s order alone does not absolve a facility from its independent responsibility to provide care in compliance with participation requirements.”) (citing Cross Creek Health Care Center, DAB No. 1665 at 11).  Nor can Petitioner disclaim its responsibility simply because it consistently notified R17’s son that its implementations were ineffective; family members bear neither the primary responsibility to keep SNF residents safe nor the authority to absolve a facility that fails to do so.

Petitioner’s claim that it eventually did implement adequate interventions – attempting to redirect R17 or dissuade him from leaving, advising him of the dangers of leaving, offering companionship, or, when those failed, having R17 sign out so its staff would know his whereabouts – would be more persuasive if the record reflected it to be true.  Instead, it plainly reveals Petitioner did not consistently provide these interventions as it now claims.  In its own brief, Petitioner could only cite to a handful of documented instances.  P. Br. at 8, 12 (citing CMS Ex. 10 at 60, 63, 74).  And aside from their irregular application, most of these interventions were plainly inadequate in turning R17 from his daily routine, even as his behavior became more erratic.

The most effective and least restrictive intervention may have been sending a member of staff to accompany R17 on his walks, but the record rarely documents staff accompanied R17 as opposed to trailing him or looking for him after they realized he was no longer at the facility.  In several instances, Petitioner was simply unaware R17 even left, either because he slipped out or, on one occasion that resulted in a fall and injury, obtained the door code by observing staff enter it to exit.  Petitioner describes this behavior as “cunning,” see P. Br. at 9, but facility staff could have neutralized R17’s spycraft with the simple expedient of obstructing the keypad from view while using it.  Petitioner’s claim that it could effectively monitor R17 while he was outside is also suspect – by its own admission, he preferred to walk to a store across the street that was approximately two

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football fields away.  Id. at 8.  It is unclear how monitoring R17 from that distance could effectively minimize the risk of harm to him.

In sum, whatever his baseline, R17’s cognitive ability and behavioral issues worsened over time and exceeded the interventions Petitioner provided.  R17’s first serious fall in June 2019 put Petitioner on notice that simply requiring him to sign out to leave unsupervised was inadequate.  As his behavior deteriorated, to include public urination, efforts to leave improperly dressed, and persistent and aggressive refusals to sign out or return to the facility, Petitioner’s staff should have consulted R17’s physician and considered other options, such as employing a WanderGuard, refusing to let R17 to leave the facility without a personal escort, or advising R17 and his son the facility could no longer safely house him.9

Because CMS opted to delay the beginning of the IJ citation period until September 3, 2019, the precise date Petitioner’s interventions became inadequate to supervise R17 in light of his deteriorating condition is irrelevant.  Affording Petitioner every benefit of the doubt, the inadequacy of its supervision of Resident 17 became unavoidably obvious after his third fall on August 8, 2019.  Id. at 59.  CMS could have reasonably initiated the period of immediate jeopardy much earlier, particularly after R17’s second fall on June 12, 2019, unwitnessed by facility staff, which resulted in a skull fracture and hospitalization.  Id. at 81, 97.  In any case, the record demonstrates CMS had a valid basis to determine Petitioner did not provide adequate supervision and assistance to R17 required by 42 C.F.R. § 483.25(d).  Windsor Health Care Center, DAB No. 1902 at 5 (2003), aff’d, Windsor Health Care Ctr. v. Thompson, No. 04-3018 (6th Cir. Apr. 13, 2005) (a facility’s “chosen methods must constitute an ‘adequate’ level of supervision under all the circumstances.”).

B. CMS has not met its prima facie burden to show Petitioner was not in substantial compliance with 42 C.F.R. § 483.20(e)(2) (Tag F644).

1. Relevant Facts

Petitioner admitted Resident 84 on June 22, 2018.  CMS Ex. 11 at 1.  Her diagnoses on admission included bipolar schizoaffective disorder, depression, anxiety, and an unspecified psychotic disorder.  Id. at 2.  That same day, the facility conducted a Pre-admission Screening and Resident Review (PASRR) and found Resident 84 exhibited no

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signs of mental illness.  Id. at 69.  Surveyor Wilson declared MDS Coordinator Tameka Spencer10 confirmed to her on September 12, 2019 that Resident 84 started taking medication for schizophrenia and bipolar disorder after being diagnosed September 6, 2018, but that for reasons unknown to Ms. Spencer, the resident had not since received PASRR evaluations.  CMS Ex. 29 at 3.

Petitioner first admitted Resident 59 on June 2, 2017.  CMS Ex. 12 at 1.  The facility conducted a PASRR screening which indicated no evidence of mental illness or intellectual disability.  Id. at 5.  Petitioner readmitted Resident 59 on January 23, 2018 and again identified no mental impairments.  Id. at 2.  Resident 59 was subsequently diagnosed with bipolar depression on May 10, 2018 and anxiety disorder on July 12, 2018.11  Id.  Petitioner again admitted Resident 59 on September 2, 2018.  Id.  It made no reference to these diagnoses at that time.  Id.  On March 25, 2019, Petitioner indicated Resident 59 had a history of major depressive disorder.  Id.

Surveyor Wilson declared that MDS Coordinator Spencer confirmed the facility had not reassessed Resident 59 after his bipolar depression diagnosis on May 10, 2018.  CMS Ex. 29 at 4.  Ms. Spencer also confirmed Resident 59 took medication for his mental condition.  Id.

2. Regulatory framework

Long-term care facilities must comprehensively assess residents on admission and then on a quarterly basis, or whenever a resident experiences a significant change in physical or mental condition.  42 C.F.R. § 483.20(b), (c).  They may not admit new residents with a “serious mental disorder” or intellectual disability unless a state mental health authority determines that individual requires nursing facility services and considers whether the individual requires specialized services.  42 C.F.R. § 483.20(k)(1).

Medicare-certified facilities must screen residents prior to admission (PASRR screening) and identify those who are suspected of having “mental illness or intellectual disability.”

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42 C.F.R. §§ 483.106(a)(1), 483.128(a).12  This initial evaluation is referred to as Level I screening.  42 C.F.R. § 483.128(a).  For purposes of PASRR screening, mental illness means a “serious mental illness,” defined as a diagnosable “major mental disorder” recognized by the Diagnostic and Statistical Manual of Mental Disorders.13  42 C.F.R. § 483.128(a) (incorporating by reference the definition of mental illness found at 42 C.F.R. § 483.102(b)(1)).14  That mental disorder must have caused serious functional limitations in major life activities (interpersonal functioning; concentration, persistence, and pace; or adaptation to change) within the preceding three to six months.  42 C.F.R. § 483.102(b)(ii).  Finally, treatment history for that serious mental illness within the preceding two years must reveal the individual experienced “[p]sychiatric treatment more intensive than outpatient care more than once,” or within that same timeframe, suffered an episode of “significant disruption” requiring supportive services or which resulted in official intervention.  42 C.F.R. § 483.102(b)(iii).

If a nursing facility identifies an individual with serious mental illness, it must refer the individual to a state mental health authority for further evaluation, known as Level II screening, to assess the need for nursing facility or other specialized services.  42 C.F.R. §§ 483.112(a), 483.128(a).

To avoid duplicative testing and effort, the Secretary’s regulations require facilities certified to provide long-term care and receive Medicaid patients to coordinate the assessment of residents for mental impairments required under both regulatory regimes.  42 C.F.R. § 483.20(e)(1).  Coordination in this context includes a facility’s obligation to refer for Level II screening previously identified Level II residents as well as residents with a “newly evident or possible serious mental disorder” who experience a significant change in status.  42 C.F.R. § 483.20(e)(2).

PASRR screening requirements do not apply to residents transferred from another nursing facility, those readmitted after being transferred to a hospital for care, or temporary residents entering from acute inpatient hospital care who are anticipated to receive less than 30 days of nursing facility services.  42 C.F.R. § 483.106(b)(1)-(3).  Nursing facilities must still provide annual screening to residents not subject to PASRR screening.  42 C.F.R. § 483.106(a)(3).

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3. Analysis

CMS contends Petitioner failed to meet its obligations to coordinate PASRR screening with respect to Resident 84 because its PASRR Level I screening on June 22, 2018 reflected no mental impairments and because the facility had not conducted re-evaluations for her subsequent diagnosis with a serious mental illness.  CMS Br. at 13; CMS Closing Br. at 12.  The agency similarly argues Petitioner failed to meet this same obligation with respect to Resident 59, who the facility failed to reassess after his diagnosis with several mental illnesses.  CMS Br. at 13; CMS Closing Br. at 13.

Petitioner responds that it had no obligation to refer either resident for Level II screening because Resident 59 did not receive antipsychotic medications, Resident 84’s dosage was evaluated for reduction, and neither resident exhibited a significant change in behavior.  P. Br. at 16.

Petitioner prevails because CMS misunderstands the applicable regulations to require a facility to refer new or newly diagnosed residents for Level II assessment based on the mere diagnosis of a mental impairment.  CMS Br. at 13 (“At no point was Resident 84 referred for a Level II resident review after being diagnosed with a serious mental illness;” “Even though Resident 59 was subsequently diagnosed with multiple mental illnesses, Resident 59 was not referred for a Level II resident review.”).

CMS’s view is incorrect.  Long-term nursing facilities cannot admit new residents with a “serious mental disorder” without prior evaluation by a state mental health authority.  42 C.F.R. § 483.20(k)(1).  Facilities certified by Medicaid must conduct a Level I PASRR screening to identify all residents suspected of having a mental impairment (defined to mean a “serious mental disorder”) and refer such residents for Level II screening by the appropriate state authority.  42 C.F.R. § 483.128(a).

Both regulatory regimes limit the duty of referral to instances where screening suggests the possibility of a “serious mental disorder” and apply the same definition for that term:

• a diagnosable “major mental disorder,” recognized by the Diagnostic and Statistical Manual of Mental Disorders
• that caused serious functional limitations in major life activities within the preceding three to six months
• with treatment history within the preceding two years showing the individual experienced “[p]sychiatric treatment more intensive than outpatient care more than once,” or within that same timeframe, suffered an episode of “significant disruption” requiring supportive services or which resulted in official intervention.

42 C.F.R. § 483.102(b)(1).

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Nothing in the record before me suggests either resident suffered from a mental impairment of the severity necessary to constitute a potential “serious mental disorder” within the meaning of this regulation.  CMS provided no treatment records at all for Resident 59 and the records it did submit for Resident 84 fail to demonstrate the latter two criteria.

CMS also argues in passing that Petitioner failed to re-evaluate either resident upon their subsequent diagnoses with mental impairments after admission.  CMS Br. at 13; CMS Closing Br. at 12.  It is true the regulations anticipate the possibility that an admitted resident could be diagnosed with a “newly evident or possible serious mental disorder” that would trigger anew a facility’s obligation to determine whether to refer that resident for Level II screening.  42 C.F.R. § 483.20(e)(2).  But the plain language of the regulation limits this obligation to residents diagnosed with a “serious mental disorder,” as defined by 42 C.F.R. § 483.102(b)(1), who experience “a significant change in status.”  Id.

CMS has cited no evidence sufficient to establish either resident suffered a “serious mental disorder” within the meaning of the regulations.  Nor has it established either resident experienced a significant change in status.  As Petitioner argues, Resident 59 did not even receive antipsychotic medications, while Resident 84’s record memorialized an attempt to gradually reduce her dosage.  P. Br. at 16, citing CMS Ex. 11 at 52; CMS Ex. 12 at 39.  Neither of these circumstances suggests either resident suffered a significant change in status that would have warranted screening for possible referral to state authorities for Level II assessment.  CMS has failed to establish Petitioner failed to comply with its regulatory obligation to initiate Level II screening for either Resident 59 or 84 upon their admission or after subsequent diagnoses with mental impairments.

C. CMS has not established Petitioner failed to substantially comply with 42 C.F.R. § 483.60(i) (Tag F812).

42 C.F.R. § 483.60(i)(2) requires Petitioner to meet professional standards for the storage, preparation, distribution, and service of food.  Relevant here, a dishwasher must use, in conjunction with chemical sanitization, water heated to 120 degrees Fahrenheit.15  SOM, App. PP at 666.  On September 11, 2019, Surveyor Kathy Marlow observed facility staff test the dishwasher by running it through five cycles.  CMS Ex. 7 at 21-22; CMS Ex. 13 at 10.  The dishwasher’s water failed to reach 120 degrees in each cycle.  Id.

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As a result, CMS contends Petitioner did not substantially comply with its obligation to meet professional standards for food handling practices.  CMS Br. at 14; CMS Closing Br. at 13-14.  Petitioner responds that it cannot be out of compliance with this requirement because it did not use the dishwasher in question.  P. Br. at 16-17.

CMS has not proffered sufficient evidence or argument for me to conclude Petitioner did not meet its regulatory obligations.  Specifically, CMS cited Petitioner at the ‘F’ scope and severity level under this regulation, meaning the alleged deficiency caused no actual harm but had the potential for more than minimal harm on a widespread basis.  SOM, Ch. 7, § 7400.3.1.  But CMS has not submitted evidence Petitioner ever used or intended to use the dishwasher with inadequately heated water.  The surveyor’s observations only establish that facility staff tested the water temperature while the dishwasher was empty.  CMS Ex. 7 at 21-22; CMS Ex. 13 at 10.  Petitioner emphasizes it had not used the dishwasher in a malfunctioning state and that after it ran the test, its staff immediately followed facility procedures and declared the dishwasher out of order, prohibited its use, and took steps to repair it.  P. Br. at 17; P. Ex. 28 at 1.

In other words, CMS’s evidence that Petitioner did not substantially comply with its obligation to use water heated to at least 120 degrees in its dishwasher is the fact that Petitioner tested the dishwasher to ensure the water was appropriately hot.  But it is unclear how testing equipment to ensure it met regulatory standards amounts to a failure to meet those standards.

Of course, a deficiency under 42 C.F.R. § 483.60(i)(2) does not arise solely when a facility’s failure to meet professional food handling practices actually causes harm to residents; it need only create the potential for harm.  Perry Cnty. Nursing Ctr., DAB No. 2555, at 15 (2014) (“[T]he occurrence of actual harm to a resident is not a prerequisite for finding a SNF noncompliant with a Medicare participation requirement, even at the immediate jeopardy level.”), aff’d, 603 F. App’x 265 (5th Cir. 2015).  And it is possible such harm could have existed here; for example, there is no evidence or argument to establish how often a facility must test a dishwasher’s water temperature – is a minimum frequency for testing advised or prescribed by CMS guidance, professional food handling standards, the manufacturer’s recommendations, or the facility’s own policy?  Is there an obligation to log water temperatures taken, as there is for refrigerator and freezer temperatures?

In the three sentencesof its pre-hearing brief CMS devotes to this deficiency, it does not say.  CMS Br. at 14.  But neither the state agency nor CMS cited Petitioner for failing to comply with an obligation to test water temperature at a certain frequency or failing to document that testing.  CMS simply asserts testing on the day of the survey revealed inadequately hot water temperatures as evidence for Petitioner’s substantial noncompliance.  Id.

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In its post-hearing briefing, CMS claims Petitioner failed to provide evidence it operated the dishwasher per manufacturer’s standards prior to the test observed during the survey.  CMS Closing Br. at 13-14.  But there is no evidence Petitioner used the dishwasher in question in a malfunctioning state prior to the day the surveyor witnessed the test.  CMS simply wishes me to infer Petitioner must have used the dishwasher at least once before with inadequately hot water before testing it.  There is no basis to draw such an inference.

Indeed, the meager evidence of record suggests otherwise.  Dietary Manager Latosha Toon reported to Surveyor Marlow that “she checked the dishwasher that morning and it was working.  Further, she stated she periodically checked the dish machine two to three times per week to verify it was running at a proper temperature.  She had not noted any problems with the dish machine in the past.”  CMS Ex. 7 at 22.  CMS contradicts its own argument by proffering evidence Petitioner’s dishwasher worked properly on the morning of the survey and that the facility’s dietary manager conscientiously checked the temperature of the water several times a week before that.

In sum, CMS seeks to place Petitioner in an impossible position by declining to articulate how the facility failed to meet its regulatory obligations under 42 C.F.R. § 483.60(i)(2) while insisting the facility produce evidence that it complied with these nebulous obligations at all times prior to the survey.  This is not reasonable.  CMS cannot baldly claim that a facility must not have complied with a regulatory obligation prior to a survey without evidence.  It cannot leave it to Petitioner to speculate as to the facts necessary to combat that claim.  And it cannot expect me to fashion a coherent theory for its case so the government can take its pound of flesh.

CMS has established only the following:

• Petitioner had a dishwasher;
• A state agency surveyor witnessed Petitioner’s staff test that dishwasher to measure its water temperature;
• That testing revealed the water running to the dishwasher to be inadequately heated;
• Petitioner did not use the dishwasher, posted a sign to notify staff, and took steps to repair it.

CMS has not identified an obligation under the regulations for facilities to test the temperature of water supplied to dishwashers at a certain frequency or to document those results.  It therefore cannot reasonably justify the imposition of a deficiency under either basis.  Absent any articulation of its case, CMS cannot meet its prima facie burden to show Petitioner did not substantially comply with 42 C.F.R. § 483.60(i)(2) and that this failure had the potential to cause widespread harm to its residents.

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D. CMS has not established Petitioner failed to substantially comply with 42 C.F.R. § 483.90(a) concerning Tag K353.

Facilities like Petitioner must be designed, constructed, equipped, and maintained to protect the health and safety of its residents, its personnel, and the public.  42 C.F.R. § 483.90.  To do so, they must meet the demands of the National Fire Protection Association’s Life Safety Code (LSC or NFPA-101), a set of fire protection requirements.  42 C.F.R. § 483.90(a)(1)(i).

From CMS’s briefing, it would appear the NFPA-101 imposes an obligation to keep ceilings free of obstructions to sprinkler heads.  CMS Br. at 14; CMS Closing Br. at 8-9.  I say “appear” because CMS relies on a provision of the NFPA-101 as a basis for liability but makes no effort to quote relevant language from this code, attach relevant provisions as an exhibit, or even cite to a source that would allow me to review the code to understand CMS’s basis for asserting noncompliance.  CMS simply asserts Petitioner failed to maintain sprinkler heads based on an observation made by Safety Officer Don Davis during his September 10, 2019 LSC survey of the facility that boxes “obstructed” a sprinkler head in a hall of the facility.  CMS Br. at 14; Closing Br. at 8-9; CMS Ex. 28 at 3.

On this basis alone, I could conclude CMS has failed to meet its prima facie burden to demonstrate Petitioner’s substantial noncompliance with 42 C.F.R. § 483.90(a).  That regulation simply adopts the NFPA-101.  42 C.F.R. § 483.90(a)(1)(i).  But without providing evidence or argument as to what the NFPA-101 demands pertaining to the obstruction of sprinkler heads, I am left unable to assess whether Safety Officer Davis’s observation is sufficient to establish noncompliance.

Petitioner more helpfully explains that section 8.5.6.1 of NFPA 25 mandates facilities assure at least 18 inches of clearance from the ceiling to the top of stored items.  P. Br. at 17.  However, Petitioner similarly failed to provide the relevant portion of the NFPA-101 as an exhibit or include a citation that would lead a reader to the NFPA-101.  Id.  I decline to develop facts or arguments to assist either party, but in the race to snatch defeat from the jaws of victory, CMS prevails.

For purposes of this decision, I assume Petitioner’s characterization of the NFPA-101 as it pertains to the placement of storage in the vicinity of sprinklers to be accurate.  Aside from relying on Petitioner’s counsel’s ethical obligation to accurately represent the law to me, I note CMS had the opportunity to respond to Petitioner’s characterization of the requirements of the NFPA-101 in its post-hearing briefing.  It declined to do so.  I therefore find a reasonable basis to conclude the NFPA-101 permits storage under sprinkler heads so long as it does not come within 18 inches of a sprinkler head.

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Applying this standard, CMS has failed to establish a prima facie case of noncompliance with the NFPA-101.  The record shows no effort made by Safety Officer Davis to measure the distance between the stored boxes at issue here and the ceiling.  In his sworn declaration, he simply stated that he observed a storage room with “excess boxes stored to the ceiling.”  CMS Ex. 28 at 3.  I cannot infer Petitioner stored boxes to a height of 18 inches or closer to the ceiling based on the inspector’s vague characterization that boxes were “stored to the ceiling;” any observer could reasonably view boxes stacked at a height that reached to almost 18 inches from a ceiling as being “stored to the ceiling.”  Absent measurements or photographic documentation, I cannot conclude CMS met its prima facie burden here.

To the extent CMS intended to rely on the inspecting safety officer’s opinion that a deficiency finding is warranted here because the sprinkler head obstruction he observed “could delay the activation response time” in the event of a fire, I give no weight to this opinion.  First, while Safety Officer Davis cites various provisions of the NFPA-101 in his declaration, he does not indicate an awareness that the code permits storage up to 18 inches from the ceiling without being considered obstruction.  Id.  Second, the applicable regulation adopts the NFPA-101 as the standard for compliance.  42 C.F.R. § 483.90(a)(1)(i).  It does not leave room for CMS to establish noncompliance by means of a witness’s opinion, whatever his expertise, that a facility’s storage practice obstructed sprinkler heads such that the potential for more than minimal harm might result.  See CMS Ex. 28 at 3.  In short, the NFPA-101 required CMS to show Petitioner stored boxes up to a height 18 inches or less from a sprinkler.  CMS has not done so.

E. CMS established Petitioner failed to substantially comply with its obligation under 42 C.F.R. § 483.90(a) identified by Tag K511 with respect to its wet electrical equipment but not its electrical panel.

CMS asserts Petitioner did not comply with its regulatory obligation to maintain electrical panels and wet electrical equipment free of hazards as mandated by the NFPA-101.  CMS Br. at 14.  Again, CMS has not supplied relevant portions of the NFPA-101 or provided a citation a reader could follow to verify its claim.  But here, CMS at least identifies the nature of Petitioner’s alleged noncompliance, asserting that Safety Officer Davis observed a missing breaker in an electrical panel, which exposed live current wiring, and that the ice maker in the kitchen received power from a non-GFCI receptacle.  CMS Br. at 14; CMS Ex. 28 at 4.

Petitioner’s response confirms the parties agree as to the obligations imposed by the NFPA-101 in this context, though again, Petitioner cites language from the code but provides no means for me to read it.  P. Br. at 18.  As before, CMS declined to reply to dispute Petitioner’s characterization of the code’s requirements in its post-hearing briefing.  I therefore take it to be accurate.

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Though it does not cite the precise provision of the NFPA-101 applicable here, Petitioner concedes a deficiency because its ice maker did not receive power from a GFCI receptacle.  Id.  It asserts I should consider the infraction an “isolated incident.”  Id.  But where the plain language of the NFPA-101 worked against CMS as it pertained to the sprinkler head deficiency, here it works against Petitioner.  By failing to power its wet electrical equipment through a GFCI receptacle, Petitioner failed to comply with the code and thus violated 42 C.F.R. § 483.90(a)(1)(i).  Its plea that the absence of a GFCI receptable is an isolated instance of noncompliance does not change the nature of that noncompliance.

Petitioner does contest CMS’s claim that it failed to meet the code’s requirements as to exposed live wiring.  It explains that one section of the NFPA-101 requires electrical panelboards to be mounted in a cabinet, cutout box, or enclosure, while another provision mandates use of “deadfront construction” for all control panels, meaning all electrical panels be operable without exposing a live wire.  P. Br. at 18.  CMS does not contest the accuracy of this characterization, and I therefore accept it.

Petitioner asserts it cannot be found noncompliant for the exposure of live wires in its electrical panel because no live wires were exposed.  Id.  It points to pictures of the panel taken before and after the “repair” made as a result of the survey, P. Exs. 23-24, as well as the declaration of its Maintenance Director, Anthony Monson, who stated no wires were visibly exposed during the survey.  P. Ex. 22 at 1.

CMS makes no response to this argument.  Having reviewed the exhibits cited by Petitioner, it is difficult to imagine the national standard for electrical safety would not require a facility to repair a high-voltage panel with a hole where a breaker would normally be placed.  Even if a live wire is not exposed as a result, the potential for inadvertent contact with a non-visible wire through the gap would seem undesirable.

But I am not an electrician, and it is not my role to flesh out the parties’ undeveloped arguments.  CMS describes the deficiency here as follows:  “[o]n September 10, 2019, the electrical panel [i]n Hall 30 had a missing breaker, which exposed live current wiring.”  CMS Br. at 14 (emphasis added).  By CMS’s articulation then, I am led to conclude that the NFPA-101 only prohibits holes in control panels that expose a live wire.  This is consistent with Petitioner’s claim that the NFPA-101’s definition of the required “deadfront” for electrical control panels only forbids operation where a live wire is exposed.  P. Br. at 18.

Therefore, while not affording me the opportunity to view the applicable provisions of the NFPA-101, the parties agree that the code defines the danger to stem from an exposed live wire, not the possibility of access behind the control panel through an exposed opening.  That being the case, Petitioner’s exhibits and the testimony of its Maintenance Director disprove CMS’s contention that the missing breaker in the electrical panel

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exposed a live wire.  There is no wiring visible in the picture taken before the “repair.”  P. Ex. 23.  Maintenance Director Monson confirmed that no wires were visible through the opening.  P. Ex. 22 at 1.  CMS has failed to meet its prima facie burden to establish Petitioner did not comply with this particular aspect of the NFPA-101.

F. Petitioner did not substantially comply with 42 C.F.R. §§ 483.12(b)(1) and (c)(1) (Tags F607 and F609).

42 C.F.R. § 483.12 provides residents of nursing facilities have “the right to be free from abuse, neglect, misappropriation of resident property, and exploitation as defined in [42 C.F.R. pt. 483, subpt. B].”  Subsection (b)(1) requires facilities to develop and implement written policies and procedures to prohibit and prevent abuse.  Subsection (c)(1) requires facilities to report alleged violations to relevant state authorities “immediately,” which is defined to mean within 24 hours unless the allegation involves abuse or results in bodily injury, in which case the facility must report the alleged violation within two hours.

The abuse allegation at issue here involved two residents.  Petitioner admitted Resident 1 on May 30, 2017 and Resident 2 on November 14, 2018.  CMS Ex. 23 at 1; CMS Ex. 24 at 1.  On admission, Resident 1 scored 0 out of 15 on the BIMS assessment, indicating severe impairment in her cognitive skills.  CMS Ex. 23 at 6.  Resident 2 scored 12 out 15, indicating moderate cognitive limitation.  CMS Ex. 24 at 6.

The incident at issue occurred on July 15, 2019.  Petitioner described the incident in its abuse allegation report to THHSC as follows:

This is a resident to resident incident.  [Resident 1] was in the dining room pushing chairs around the table.  [Resident 2] became very annoyed with this and hit [Resident 1] on the shoulder.  It was described by another resident as hitting with her fist.  A staff person reported that it was with her open hand.

P. Ex. 25 at 3.

CMS asserts Petitioner failed to substantially comply with 42 C.F.R. § 483.12(b)(1) because it did not develop and implement written policies and procedures to prohibit and prevent resident abuse and with 42 C.F.R. § 483.12(c)(1) because its administrator did not submit a report to THHSC within two hours of being notified of the incident.  CMS Br. at 15.

Petitioner contends it adequately implemented its policy in compliance with 42 C.F.R. § 483.12(b)(1) when it “immediately activated its safety protocols” following the incident.  P. Br. at 18-19.  The facility also claims it complied with the two-hour

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reporting requirement of 42 C.F.R. § 483.12(c)(1) because its administrator initiated the report to THHSC online within the two-hour window, even if he did not complete it within that timeframe.  Id. at 19.  Petitioner also objects to the scope and severity assigned by CMS, asserting that both deficiencies were cited as pattern deficiencies even though they involved one isolated incident.  Id.

Petitioner’s claims are without merit.  The obligation to develop and implement an adequate abuse policy demanded by 42 C.F.R. § 483.12(b)(1) cannot be satisfied where a facility develops and puts into place an otherwise adequate policy but then fails to implement a critical part of it – in this case, compliance with the two-hour reporting requirement.  See 38-40 Freneau Avenue Operating Company LLC, d/b/a Atrium Post Acute Care of Matawan, DAB No. 3008 at 8 (2020) (observing the Board has frequently held a facility’s failure to follow its own policies and procedures amounts to failing to implement them) (citations omitted).  As I discuss next, Petitioner’s noncompliance concerns the facility administrator’s failure to recognize the critical need to submit a report of abuse within the strict timeframe provided by regulation.  The failure to complete this critical task can reasonably be seen as a failure to implement the facility’s abuse policy.

Petitioner claims it in fact complied with 42 C.F.R. § 483.12(c)(1) because its administrator initiated the reporting process within two hours.  But that explanation conflicts with the plain language of the regulation, which unequivocally requires an allegation of abuse to be “reported immediately, but not later than 2 hours after the allegation is made . . . .”  A report in the process of being written cannot be deemed to have been “reported” in any reasonable sense of the word.

Petitioner otherwise attempts to excuse the delay in reporting.  Administrator Cutshaw explained that he reasonably delayed beginning his report until he had first provided instructions to staff and ensured the safety of Residents 1 and 2.  P. Ex. 10 at 4-5.  He also claims the reporting system was “slow” and took time to maneuver.  Id. at 4.  Even if true, the regulation does not excuse a delay in reporting for these reasons.16  Moreover, the claim that the administrator had to first ensure the safety of the involved residents is a false dilemma – he could have delegated the tasks he described to ensure he met the facility’s abuse reporting obligations.

Finally, Petitioner asserts CMS erroneously concluded the deficiency here occurred at the ‘pattern’ level of scope when it should have been deemed ‘isolated.’  Petitioner’s claim is misplaced.  CMS imposed a remedy for this deficiency at scope/severity level ‘D,’

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indicating a deficiency isolated in scope that had the potential for more than minimal harm but not immediate jeopardy.  CMS Ex. 1 at 1; SOM Rev. 185, Ch. 7, § 7400.3.1.

In sum, I find Petitioner did not meet its regulatory obligation to report an allegation of abuse to THHSC within two hours, and that this failure by its most senior officer to recognize the critical need to timely report abuse constituted a failure to implement the facility’s abuse policy.

G. The $9,085 per-day CMP imposed by CMS from September 3, 2019 to September 12, 2019 is reasonable.

Petitioner first asserts the immediate jeopardy finding on which CMS based the imposition of a per-day CMP is clearly erroneous because there is no basis for a deficiency finding under Tag F689.  P. Br. at 19.  As I previously explained, that assertion is incorrect.  Because Petitioner makes no other argument to explain why the immediate jeopardy was clearly erroneous, I need not discuss the merits of that finding further.

Petitioner then argues CMS improperly considered its financial condition to calculate a per-day CMP, instead of first determining the CMP and then evaluating it against the facility’s financial condition.  P. Br. at 20.  Petitioner provides no legal basis for this assertion.  CMS must consider the regulatory factors and select a reasonable CMP amount.  42 C.F.R. §§ 488.438(f) and 488.404 (incorporated by reference into 42 C.F.R. § 488.438(f)(3)).  The CMP amount selected by CMS is presumptively reasonable; it is Petitioner’s burden “to demonstrate, through argument and the submission of evidence addressing the regulatory factors, that a reduction [in the penalty amount] is necessary to make the CMP amount reasonable.”  Crawford Healthcare & Rehab., DAB No. 2738 at 19 (2016).  Petitioner has not done so here.

Nevertheless, I have considered the regulatory factors and find CMS’s selection reasonable.  The deficiency at issue was serious.  R17 was difficult and strident but Petitioner’s permissiveness resulted in the resident falling three times in four months, twice outside, and once resulting in a skull fracture and a hospital visit.  I recognize Petitioner’s staff expended considerable effort to accommodate R17’s inflexible demand to leave the facility.  But Petitioner should have recognized the futility of its minimal interventions sooner and taken more meaningful steps to ensure R17’s safety beyond requiring him to sign out, particularly once he started exhibiting signs of deterioration, including public urination and leaving his room (and one occasion, the facility) without pants.  As a result, Petitioner’s culpability is high.  Petitioner has not proffered evidence of inability to pay.  Neither party has addressed the facility’s history of deficiencies.  The $9,085 per-day CMP is in the lower-middle of the upper CMP range of $6,525 to $21,393 per day.  I find it reasonable considering the regulatory factors I have discussed.

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Petitioner also objects to the duration of the $9,085 immediate jeopardy per-day CMP, which started September 3, 2019.  Id. at 20-21.  CMS, unsurprisingly, stands mute.  Petitioner notes correctly that the only basis for this duration is found in the declaration of Nurse McElroy, which I did not permit into evidence, where the nurse indicates he determined to begin the per-day CMP on September 3, 2019, even though the earliest immediate jeopardy finding occurred on May 29, 2019, the first time R17 left the facility unsupervised.  CMS Ex. 27 at 4.  Nurse McElroy declared he considered the statutory factors set forth in the Civil Money Penalties Act to assess a reasonable CMP and determined it appropriate to begin the IJ-level per-day CMP on September 3, 2019.  Id. at 4-5.

Petitioner is correct that there is no apparent basis for this start date.  But as I have explained, the record establishes Petitioner’s interventions became ineffective in June 2019, long before the September 3, 2019 start date selected by CMS.  42 C.F.R. § 488.440(a)(1) provides “[t]he per day [CMP] may start accruing as early as the date that the facility was first out of compliance . . .” (emphasis added); Chicago Ridge Nursing Ctr., DAB No. 2151 at 26 (2008).  CMS is thus authorized to initiate a per-day CMP on a date that occurs after the date Petitioner was first out of compliance, as is the case here.

Petitioner next objects to CMS’s selection of a per-day CMP over a per-instance CMP, claiming that selection is inconsistent with CMS’s own guidance.  P. Br. at 21-22.  Even if true, Petitioner’s claim is beyond my purview.  CMS may elect to impose a per-day CMP for the number of days a facility is out of substantial compliance, or a per-instance CMP for each instance of noncompliance.  42 C.F.R. § 488.430(a).  In either case, CMS’s choice of remedies and the factors it considered to decide upon remedies are not subject to my review.  42 C.F.R. § 488.408(g)(2).

H. The $110 per-day CMP imposed by CMS from September 13, 2019 to October 24, 2019 is reasonable.

CMS imposed a CMP of $110 per day for the remaining deficiencies that did not rise to the level of immediate jeopardy.17  CMS Ex. 2 at 1.  I have overturned the deficiencies concerning Tag F644, Tag F812, Tag K353, and one of the two deficiencies identified at Tag K511.  However, between September and October 2019, CMS was authorized to impose a lower-end per-day CMP from $107 to $6,417.  CMS imposed a per-day CMP

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only $3 greater than the lowest possible amount.  Accordingly, the fact that I have overturned several of the deficiencies which form the basis for this per-day CMP does not affect the reasonableness of the per-day penalty amount.

IX. Conclusion

I affirm CMS’s determination that Petitioner was not in substantial compliance with 42 C.F.R. § 483.25(d)(1),(2) (Tag F689), one of the two deficiencies under 42 C.F.R. § 483.90(a) (Tag K511), and 42 C.F.R. §§ 483.12(b)(1) and (c)(1) (Tags F607 and F609).  CMS has not established deficiencies arising under 42 C.F.R. § 483.20(e)(2) (Tag F644),  42 C.F.R. § 483.60(i) (Tag F812), 42 C.F.R. § 483.90(a) (Tag K353) and one of the two deficiencies under 42 C.F.R. § 483.90(a) (K511).  CMS was authorized to impose a DPNA from October 12 through October 24, 2019.  The $9,085 per-day CMP imposed by CMS from September 3, 2019 to September 12, 2019 and the $110 per-day CMP imposed by CMS from September 13, 2019 to October 24, 2019 are reasonable.