Medford Care Center, DAB CR6652 (2025)

DECISION

Following a complaint investigation survey completed on July 3, 2023, by the New Jersey Department of Health (NJDOH), the Centers for Medicare & Medicaid Services (CMS) determined that Petitioner, Medford Care Center, was not in substantial compliance with several Medicare participation requirements. CMS imposed a $10,440 per‑day CMP from June 17, 2023 through June 27, 2023, and a $470 per-day CMP from June 28, 2023 through July 27, 2023, for a total CMP of $128,940.

As explained below, I uphold the deficiencies alleged against Petitioner and conclude that the CMP amount that CMS imposed was appropriate under relevant statutory and regulatory factors.

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.

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§ 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).

In addition to complying with the terms of the provider agreement, a participating SNF must meet a variety of ongoing statutory requirements regarding how it provides services, maintains the rights of its residents, and administers its facility. 42 U.S.C. § 1395i-3(a)(3), (b)-(d). Further, SNFs must comply with “such other requirements relating to the health, safety, and well-being of residents or relating to the physical facilities thereof as the Secretary may find necessary.”1 42 U.S.C. § 1395i-3(d)(4)(B); see 42 U.S.C. § 1395i-3(c)(1)(xi), (f). The Secretary has promulgated regulations to establish those additional requirements. See 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 comprises 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.

The Secretary has the duty to enforce the statutory and regulatory participation requirements for SNFs. 42 U.S.C. § 1395i-3(f)(1). To do so, the Secretary contracts with

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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. Standard surveys are unannounced and occur at least once every 15 months. 42 U.S.C. § 1395i-3(g)(2)(A)(i), (iii)(I). State agencies also conduct investigations into complaints against SNFs. 42 U.S.C. § 1395i-3(g)(1)(C), (4). 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).

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 the 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 January 17, 2020, and for deficiencies that occurred after November 2, 2015, the CMP amounts may range as follows: $2,233 to $22,320 for per-instance CMPs; $112 to $6,659 per day for less serious noncompliance; or $6,808 to $22,320 per day for more serious noncompliance that poses immediate jeopardy to the health and safety of residents. 45 C.F.R. § 102.3 (2020); 85 Fed. Reg. 2869, 2870, 2880 (Jan. 17, 2020); 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), 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 such a showing is made, the SNF must then prove substantial compliance by a preponderance of the evidence. Hillman Rehab. Ctr., DAB No. 1611 at 4 (1997); see Batavia Nursing & Convalescent Inn, DAB No. 1911 at 5 (2004); Batavia Nursing & Convalescent Ctr., DAB No. 1904 at 6 (2004), aff’d, Batavia Nursing & Convalescent Ctr. v. Thompson, 129 F. App’x 181, 183 (6th Cir. 2005); Emerald Oaks, DAB No. 1800 at 5 (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).

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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 Medford, New Jersey. The state agency conducted a complaint survey of Petitioner’s facility that concluded on July 3, 2023. CMS Exs. 1, 2. Based on its survey, the state agency issued a Statement of Deficiencies noting the following deficiencies:

• 42 C.F.R. § 483.12(c)(2)-(4) (Tag F610) (Investigate/Prevent/Correct/ Alleged Violation) at a scope and severity level of “J”;
• 42 C.F.R. § 483.12(b)(1)-(5)(ii)(iii) (Tag F607) (Develop/Implement Abuse/Neglect Policies) at a scope and severity level of “F”;

CMS Exs. 1, 2.

On August 11, 2023, CMS issued an initial determination adopting the state agency survey findings. CMS Ex. 2. CMS imposed a $10,440 per‑day CMP from June 17, 2023 through June 27, 2023, and a $470 per-day CMP from June 28, 2023 through July 27, 2023, for a total CMP of $128,940. CMS Ex. 2, 16.

Petitioner timely requested a hearing before an ALJ to dispute the initial determination. The Civil Remedies Division (CRD) acknowledged receipt of the hearing request and issued ALJ Bill Thomas’ Standing Prehearing Order (SPO).

In compliance with the SPO, CMS submitted a prehearing exchange that included a prehearing brief (CMS Br.) as well as 16 proposed exhibits (CMS Exs. 1-16). CMS offered written direct testimony for one witness, Denise O’Donnell, R.N. (CMS Ex. 14). Petitioner filed a prehearing exchange (P. Br.) as well as eight proposed exhibits (P. Exs. 1-8)3. Petitioner also offered what appears to be the written direct testimony for one witness, Andrea Woodhull (P. Ex. 9).

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

III. Admission of Exhibits and Decision on the Written Record

Neither party objected to the opposing party’s proposed exhibits. Absent objections, I admit all of them into the record. See SPO ¶ 10.

In the SPO, ALJ Thomas indicated that the parties must submit written direct testimony for each of the witnesses they wanted to present and that hearing would only be held if a party or the parties requested to cross-examine one or more of the witnesses of the opposing party. SPO ¶¶ 11-13. As explained below, because the parties did not request to cross-examine any of the witnesses, I decide this case based on the written record.

Petitioner did not make any request to cross-examine the witness proposed by CMS. Petitioner provided written direct testimony for one witness and CMS ambiguously stated in its brief that “CMS herein reserves the opportunity to cross-examine one or more of Petitioner’s witnesses if a hearing is deemed to be necessary in this case.”

If I were to consider this statement as attempting to reserve the right to cross-examine Petitioner’s witnesses, it fails to comply with SPO ¶ 12, which directs the following:

CMS must affirmatively request cross-examination of any witness for whom Petitioner offers written direct testimony within fifteen (15) days of receipt of Petitioner’s exchange.

This requirement is consistent with CRD Procedures § 16(b). In this case, CMS only said it may want to call any or all of Petitioner’s witnesses for direct examination. This is insufficient because it is not an explicit request to cross-examine a particular witness.

As a result, I issue this decision based on the written record.

IV. Issues

1) Whether Petitioner was in substantial compliance with the Medicare requirements for SNFs at 42 C.F.R. §§ 483.12(c)(2)-(4) (Tag 610) and 483.12(b)(1)-(5)(ii)(iii) (Tag F607);

2) If Petitioner was not in substantial compliance with program requirements, whether CMS’s determination that the noncompliance with 42 C.F.R. § 483.12(c)(2)-(4) (Tag 610) immediately jeopardized the health and safety of the facility’s residents is clearly erroneous; and

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3) If Petitioner was not in substantial compliance with Medicare requirements, whether a $10,440 per day CMP from June 17, 2023 through June 27, 2023, and a $470 per-day CMP from June 28, 2023 through July 27, 2023, is appropriate under the statutory and regulatory factors for setting a penalty amount. 42 U.S.C. § 1320a-7a(d); 42 C.F.R. § 488.438(f).

V. Findings of Fact, Conclusions of Law, and Analysis

1. Resident 2 was admitted on July 28, 2021 with diagnoses that included hypertensive heart disease without heart failure, localized edema, and unspecified schizophrenia.

Resident 2’s diagnoses included: hypertensive heart disease without heart failure, localized edema, and unspecified schizophrenia. CMS Exs. 1 at 9; 7 at 2. According to the Minimum Data Set dated May 2, 2023, Resident 2 had moderate cognition and needed extensive assistance and one-person physical assistance with most activities of daily living. Id. Resident 2’s Care Plan showed that she was restrictive to care related to anxiety. Id. The Care Plan discussed how to include Resident 2 in a way that made her feel involved in the decision-making process to elicit cooperation. CMS Ex. 1 at 9-10. The plan also stated that if Resident 2 resisted with ADLs, the staff should leave and return 5-10 minutes later and try again. Id. at 10.

2. Resident 2 alleged a physical altercation between herself and a CNA in Resident 2’s room.

The statement of deficiencies notes that during an interview with the Administrator, the Administrator stated that Resident 2 told her family on June 17, 2023 that a few weeks ago the resident and the aide taking care of her were fighting. CMS Ex. 1 at 10. Resident 2 stated that while the aide was taking her out of the room she was holding the door frame. Id. Resident 2 said at the time the aide moved her arm and placed it on the wheelchair. Id. After placing her arm on the wheelchair, Resident 2 said the aide hit her on the wrist and told her “don’t do that.” Id. Resident 2 then hit the aide. Id.

The progress notes dated June 19, 2023, written by the Unit Manager / Registered Nurse show that Resident 2 stated during an interview that someone pushed her hand while she was coming from the bathroom on an unknown date. CMS Ex. 1 at 10; CMS Ex. 14 at 6‑7. The Unit Manager / Registered Nurse noted that she spoke with an aide who explained that Resident 2 had opened her arms while being out of the bathroom and that Resident 2’s chest touched her chest. Id. The Unit Manager / Registered Nurse noted that it wasn’t intentional and that after assessing Resident 2, no visual injury was found. Id.

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3. Petitioner failed to thoroughly investigate the alleged altercation and failed to provide evidence that the alleged violation was thoroughly investigated.

Subsection 483.12(c) requires that, in response to allegations of abuse, neglect, exploitation, or mistreatment of residents, a facility must:

(1) Ensure that all alleged violations involving abuse, neglect, exploitation or mistreatment, including injuries of unknown source and misappropriation of resident property, are reported immediately, but not later than 2 hours after the allegation is made, if the events that cause the allegation involve abuse or result in serious bodily injury, or not later than 24 hours if the events that cause the allegation do not involve abuse and do not result in serious bodily injury, to the administrator of the facility and to other officials (including to the State Survey Agency and adult protective services where state law provides for jurisdiction in long-term care facilities) in accordance with State law through established procedures.

(2) Have evidence that all alleged violations are thoroughly investigated.

(3) Prevent further potential abuse, neglect, exploitation, or mistreatment while the investigation is in progress.

(4) Report the results of all investigations to the administrator or his or her designated representative and to other officials in accordance with State law, including to the State Survey Agency, within 5 working days of the incident, and if the alleged violation is verified appropriate corrective action must be taken.

42 C.F.R. § 483.12(c)(1)‑(4).

Residents of a facility have the right to be free from abuse. 42 C.F.R. § 483.12. To that end, a facility must develop and implement written policies and procedures that prohibit mistreatment, abuse, neglect, misappropriation and exploitation of residents. 42 C.F.R. § 483.12(b). It must ensure that all alleged violations are reported immediately to the facility administrator and appropriate state officials. The facility must have evidence that all alleged violations are thoroughly investigated, and it must prevent further potential violations while the investigation is in progress. The results of all investigations must be reported to the facility administrator (or designated representative) and to the appropriate

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state officials within 5 working days of the incident. If the violation is verified, the facility must take appropriate action. 42 C.F.R. § 483.12(c)(1)-(4).

Further, as the Board has repeatedly explained, a facility’s policy for implementing regulatory requirement reflects the facility’s own judgment about how best to achieve substantial compliance. Failing to comply with its own policies can support a finding that the facility did not achieve compliance with the regulatory standard. Bivins Memorial Nursing Home, DAB No. 2771 at 9 (2017); see Rockcastle Health and Rehab. Ctr., DAB No. 2891 at 19 (2018) (ruling that, absent contrary evidence, it is reasonable to presume that the facility’s policies reflect professional standards); Hanover Hill Health Care Ctr., DAB No. 2507 at 6 (2013); Life Care Ctr. of Bardstown, DAB No. 2233 at 21‑22 (2009) (finding that a facility’s failing to comply with its own policies can constitute a deficiency).

The facility’s own policy lays out the specific steps of an investigation as follows:

The investigation shall consist of:

a) Initiation of the Resident Abuse Investigation Form

b) An interview with the person(s) reporting the incident;

c) Interviews with any witnesses to the incident;

d) An interview with the resident;

e) A review of the resident’s medical record;

f) An interview with staff members on all shifts having contact with the resident during the period of the alleged incident;

g) Interviews with the resident’s roommate, family members and visitors;

h) A review of all circumstances surrounding the incident. 

CMS Ex. 12 at 7.

According to Petitioner’s Abuse Prevention Program, residents have a right to be free from abuse. CMS Ex. 12 at 1. The policy states that residents “must not be subjected to above by anyone, including . . . facility staff . . . [.]” CMS Ex. 12 at 1. The abuse prevention program includes identifying occurrences and patterns of potential abuse; training staff on abuse prevention, identification, and reporting; timely and thorough investigations of all reports and allegations of abuse; protecting residents during abuse investigations; reporting and filing and accurate documents relative to alleged incidents of abuse; and implementing changes to prevent future occurrences of abuse. CMS Ex. 12 at 4-6.

Petitioner’s abuse policy provides that a thorough investigation will be conducted at the time the situation occurs. CMS Ex. 12 at 4-5. The policy also states that if staff is involved, “the staff will be suspended pending a full investigation.” CMS Ex. 12 at 5.

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Resident 2’s family reported the incident to the social worker the day they were informed. CMS Ex. 1 at 1-2. The CNA involved was sent to a lounge area while the social worker spoke with Resident 2. Id. The CNA resumed working that same day for a second shift on a different floor. Id. During that shift, the CNA was permitted to provide unsupervised care to residents. Id. at 1, 7.

The surveyor spoke with the Administrator and the Director of Nursing on June 28, 2023. CMS Ex. 13 at 2-8. The Administrator said she received a phone call from the social worker on June 17, 2023 at 2:15pm and that, after being informed that the CNA involved was currently working with Resident 2, she removed the CNA off the assignment right away. Id at 3. The timecard record shows that the CNA worked from 7:05am to 11:02pm on June 17, 2023. CMS Ex. 11 at 1. The Administrator explained that the CNA was not suspended because the incident had taken place weeks prior and there was no reason to suspend. CMS Ex. 14 at 9-10. The Administrator was aware that the facility’s policy required suspension during the pendency of an investigation but she explained that there are exceptions and that Resident 2 had no issues with the CNA working. Id. The Administrator further offered that normally if abuse is alleged, she would suspend the employee. Id.

Petitioner alleges that the CNA was immediately removed from all resident for the duration of the investigation pursuant to the facility’s polices. P. Br. at 7. However, as noted above, the CNA was not suspended for the duration of the investigation pursuant to the facility’s policy as the record shows the CNA was only asked to sit in an area separate from the residents for a short period of time.

Petitioner’s requirement to immediately and thoroughly investigate the alleged abuse of any resident was mandated by the regulations and by its own policy. The record shows that it did not thoroughly investigate the alleged abuse. This failure placed the resident at risk for more than minimal harm by the facility’s failure to substantially comply with 42 C.F.R. § 483.12(c)(2)-(4) (Tag F610).

Therefore, I agree that Petitioner was not in substantial compliance with 42 C.F.R. § 483.12(c)(2)-(4) (Tag F610), because the facility failed to thoroughly investigate the alleged abuse.

The facility must also “have evidence that all alleged violations are thoroughly investigated.” 42 C.F.R. § 483.12(c)(2).

Consistent with 42 C.F.R. § 483.12(b)(2), Petitioner’s abuse policy required that the social worker or designee ensure that there were no other instances or allegations of abuse at the time that involved other residents in the facility. CMS Ex. 12 at 5. As result, at a minimum, there should have been documentation of the social worker’s interviews

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with other residents to ensure there were no other allegations of abuse. The only mention of interviews with other residents is contained in Andrea Woodhull’s sworn statement and a printed note dated June 17, 2023, that according to CMS was not provided to the surveyor. P. Exs. 6, 9. However, as noted above, the facility’s own policy laid out additional, mandatory steps for a thorough investigation including interviews with residents, review of medical records, interviews with staff members, and interviews with family members and visitors. Ms. Woodhull’s own statement does not document that she followed the remaining steps in the facility abuse investigation policy. P. Ex. 9.

During the surveyor’s interview with the Administrator on June 28, 2023, the Administrator stated that the social worker interviewed other residents on the CNA’s assignment but that she did not provide any documentation. CMS Ex. 13 at 4. The surveyor testified that she was not provided with any documentation during the survey. CMS Ex. 14 at 7.

Petitioner asserts that it conducted a thorough investigation and concluded that the incident did not constitute abuse. P. Br. at 3. Petitioner offers the determination of the New Jersey Department of Health to support its offer that a thorough investigation was completed. P. Ex. 13. However, the Department of Health’s determination only supports that the allegation of abuse was unsubstantiated not that CMS should have concluded that a thorough investigation was completed by the facility pursuant to the facility’s own policy and 42 C.F.R. § 483.12(c).

Petitioner did not follow its own policy for investigating suspected abuse.

CMS Ex. 12. Petitioner’s investigation was inadequate under its own policy, and my review of the record reveals that the documentation of its limited efforts could not be considered “evidence that all alleged violations are thoroughly investigated” as required by 42 C.F.R. § 483.12(c)(2).

While it is true that the facility interviewed Resident 2 and separated her from the CNA, the record does not support that there is evidence of a thorough investigation. Petitioner cannot provide documentation to show that Petitioner properly complied with 42 C.F.R. § 483.12(c)(2). Further, the timeline supported by both parties suggests that the investigation lasted approximately 30 minutes. Therefore, I conclude that Petitioner was not in substantial compliance with 42 C.F.R. § 483.12(c).

Lastly, Petitioner argues that the investigation by the surveyor was incomplete and improper because the CMP was decided prior to any discussions with the social worker who conducted the investigation. However, as noted above, it was clear from the surveyor’s time at the facility that a thorough investigation had not been completed. Further, when the social worker returned from vacation and was interviewed by the surveyor, the surveyor did not find a reason to change her immediate jeopardy determination.

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4. Petitioner was not in substantial compliance because Petitioner failed to provide proper training following the allegation of abuse.

During the interview between the surveyor and the Administrator and Director of Nursing on June 28, 2023, the surveyor asked what a CNA should do if a resident refuses care and the DON replied that she had not really spoken with the CNA because the social worker conducted the interview. CMS Ex. 13 at 5. She further stated that if there is a difficult resident, training is provided on how to handle the situation. Id. The DON could not say if the CNA involved had received any such training. Id at 5-6.

Further, as a part of Petitioner’s abuse policy, training of staff through orientation and ongoing sessions is required. CMS Ex. 12 at 1.

CMS alleges that Petitioner was in an immediate jeopardy situation until June 28, 2023, when the facility started in-services on Abuse, Reporting, Investigating and Dealing with Difficult Residents. CMS Br. at 2.

The regulations require that facilities both develop and implement abuse prevention policies. Although Petitioner did have policies and procedures regarding abuse, Petitioner did not implement its abuse prevention policy to protect Resident 1 from abuse by Resident 2. Petitioner’s abuse prevention program requires Petitioner to identify occurrences of potential abuse, conduct timely and thorough investigations of potential abuse, protect residents during abuse investigations, and implement changes to prevent future occurrences of abuse. CMS Ex. 12 at 1-3.

The factual findings and conclusions of law stated above in this decision show that Petitioner failed to properly investigate the allegation of abuse under the requirements in its own policies. Therefore, I incorporate those findings and conclusions into this section and conclude that Petitioner was not in substantial compliance with 42 C.F.R. § 483.12(c)(2)-(4).

5. CMS’s determination that Petitioner’s noncompliance with 42 C.F.R. § 483.12(c) posed immediate jeopardy to resident health and safety is not clearly erroneous.

Immediate jeopardy exists if a facility’s noncompliance has caused, or is likely to cause, serious injury, harm, impairment, or death to a resident. 42 C.F.R. § 488.301. The regulation does not require that a resident actually be harmed. Lakeport Skilled Nursing Ctr., DAB No. 2435 at 8 (2012).

I must uphold CMS’s determination as to the level of a facility’s substantial noncompliance (which includes an immediate jeopardy finding) unless it is “clearly

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erroneous.” 42 C.F.R. § 498.60(c). The “clearly erroneous” standard imposes on facilities a heavy burden to show no immediate jeopardy, and the DAB has sustained determinations of immediate jeopardy where CMS presented evidence “from which ‘[o]ne could reasonably conclude’ that immediate jeopardy exists.” See, e.g., Barbourville Nursing Home, DAB No. 1962 at 7 (2005) (quoting Florence Park Care Ctr., DAB No. 1931 at 27-28 (2004)). In reviewing CMS’s finding, I “must consider whether the totality of the allegations support the Agency’s determination that [the SNF’s] noncompliance ‘has caused, or [was] likely to cause, serious injury, harm, impairment, or death to a resident.’” Rosewood Care Ctr., 868 F.3d 605, 618 (7th Cir. 2017) (emphasis omitted).

CMS contends that its immediate jeopardy finding is appropriate because Petitioner did not comply with the regulations and its own abuse policies when it failed to thoroughly investigate Resident 2’s allegation of abuse. There is no doubt that Petitioner placed Resident 2 and other residents in immediate jeopardy. Accordingly, I conclude that CMS did not clearly err in determining that Petitioner’s noncompliance with 42 C.F.R. § 483.12(a)(1), 42 C.F.R. § 483.12(b)(1)-(2), and 42 C.F.R. § 483.12(c)(2), (4) posed immediate jeopardy to the health and safety of its residents.

6. Petitioner was not in substantial compliance with Tag F607 because it failed to develop and implement policies and procedures that prohibit and prevent abuse and neglect.

Facilities are required to develop and implement written policies and procedures that:

(1) Prohibit and prevent abuse, neglect, and exploitation of residents and misappropriation of resident property,

42 C.F.R. § 483.12(b)(1)-(2). A facility may not be in substantial compliance with § 483.12(b)(1) if it fails to develop adequate policies and procedures to prevent neglect or fails to implement such policies. Heritage Plaza Nursing Ctr., DAB No. 2829 at 5 (2017) (citing Glenoaks Nursing Ctr., DAB No. 2522 at 14 (2013)).

CMS alleges that Petitioner failed to implement written policies and procedures to prevent abuse. CMS Br. at 16-17. Petitioner asserts that it did have policies and procedures regarding abuse, preventing of abuse, and reporting of abuse. P. Br. at 15-16.

The regulation requires that facilities both develop and implement abuse prevention policies. CMS alleges that as part of the policies to prevent abuse, a facility must run criminal background checks. CMS Br. at 16-17. Petitioner had a background investigation policy in place that required reference checks, driving record investigations, and license verifications, if applicable. CMS Ex. 4 at 1. The policy had passive regarding criminal background checks. Id. The policy only states that employees are

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required to self-attest to any criminal background and that the facility may run checks with local, state, or federal law enforcement agencies. Id. Petitioner argues that this policy is more than sufficient to comply with the regulations.

However, 42 C.F.R. § 483.12(a)(3) states that a facility must:

(3) Not employ or otherwise engage individuals who –

(i) Have been found guilty of abuse, neglect, exploitation, misappropriation of property, or mistreatment by a court of law.

The regulatory language makes it clear the facility must affirmatively act to ensure that it does employ individuals who have a criminal background. A background investigations policy that allows employees to self-attest to their own criminal history fails to ensure that the facility does not employ individuals who have been found guilty of abuse in a court of law. Therefore, I conclude that Petitioner was not in substantial compliance with Tag F607.

7. The $10,440 per‑day CMP from June 17, 2023 to June 27, 2023, and the $470 per-day CMP from June 28, 2023 through July 27, 2023, for a total CMP of $128,940, is appropriate under relevant statutory and regulatory factors for determining the amount of CMPs.

CMS imposed a $10,440 per‑day CMP from June 17, 2023 through June 27, 2023, and a $470 per-day CMP from June 28, 2023 through July 27, 2023, for a total CMP of $128,940. CMS Ex. 16 at 1-2. The larger penalty amount addresses the days when CMS determined Petitioner’s noncompliance to be at the immediate jeopardy level. The smaller amount addresses a period during with CMS found that Petitioner’s noncompliance continued, but at a level that was less than immediate jeopardy.

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

The regulations establish ranges that describe minimum and maximum amounts for both immediate jeopardy and non-immediate jeopardy level penalties. 42 C.F.R. § 488.438(a)(1); 45 C.F.R. pt. 102 (penalty amounts are adjusted annually to account for inflation). The penalties that CMS imposed against Petitioner are near the bottom point of the permissible range for both the immediate jeopardy level penalties (from $7,317 to

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$23,989) and for non-immediate jeopardy level penalties (from $120 to $7,195). 45 C.F.R. § 102.3; 88 Fed. Reg. 69531, 69543.

Duration of CMP

Petitioner did not challenge the duration of the CMP. The SNF bears the burden of showing that its noncompliance was of shorter duration than alleged by CMS. Owensboro Place & Rehab. Ctr., DAB No. 2397 at 12 (2011) (citing Kenton Healthcare, LLC, DAB No. 2186 at 24-25 and Lake Mary Health Care, DAB No. 2081 at 30 (2007)). Therefore, I accept the duration as found by CMS.

Amount of CMP

When determining whether a CMP amount is appropriate, I apply the factors listed in 42 C.F.R. § 488.438(f): 1) the facility’s history of noncompliance; 2) the facility’s financial condition; 3) the factors specified in 42 C.F.R. § 488.404; and 4) the facility’s degree of culpability, which includes neglect, indifference, or disregard for resident care, comfort, or safety. See 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). The factors listed in 42 C.F.R. § 488.404 include: 1) the scope and severity of the deficiency; 2) the relationship of the deficiency to other deficiencies resulting in noncompliance; and 3) the facility’s prior history of noncompliance in general and specifically with reference to the cited deficiencies. See 42 U.S.C. §§ 1320a-7a(d)(1), (3), 1395i-3(h)(2)(B)(ii)(I).

The regulations leave the 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 sections 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) and (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 must sustain it. Coquina Ctr., DAB No. 1860 at 18 (2002).

Facility’s History of Non-Compliance: CMS does not argue that Petitioner has a history of noncompliance with 42 C.F.R. Part 483. Therefore, this is not a factor requiring consideration.

Scope and Severity of Deficiencies and Relationship Between Deficiencies: This case involves an immediate jeopardy level deficiency related to abuse of a resident by a staff member and the facility’s failure to thoroughly investigate the abuse in accordance with the facilities’ own policies. Further, there is non-immediate jeopardy level noncompliance involving the facility’s failure to conduct criminal background checks on

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its employees. Petitioner’s failure to take appropriate action to avoid the threat of further harm weighs heavily in favor of a high CMP in this case.

Culpability: Petitioner is very culpable because, in defiance of Medicare requirements and its own abuse prevention policies, the Administrator and DON did not thoroughly investigate alleged staff-on-resident abuse. Petitioner’s failure to follow its policies and protect Resident 2 from further potential abuse by a staff member shows neglect and disregard for the facility’s residents’ care and safety.

Further, the facility failed to follow its own polices and the regulations with regard to background checks. By failing to conduct criminal background checks on its employees, the facility failed to ensure that its hires would not pose a danger to the residents. This factor strongly supports the CMP imposed in this case.

Financial Condition of the Facility: Petitioner alleges in its brief that the CMP creates a substantial financial burden on the facility. However, Petitioner presents no evidence of its financial condition. Therefore, this is not a factor that impacts the CMP amount in this case.

CMP Amount: As indicated by the review of factors above, a $10,440 per‑day CMP June 17, 2023 through June 27, 2023, and a $470 per-day CMP from June 28, 2023 through July 27, 2023, for a total CMP of $128,940 is well-supported. The per-day CMPs imposed are in the lower half of the ranges for noncompliance. Therefore, based on the factors above and in consideration of the amounts imposed, the CMPs are supported by the record and appropriate.

VI. Conclusion

Petitioner was not in substantial compliance with 42 C.F.R. §§ 483.12(c)(2)-(4) and 483.12(b)(1)-(5)(ii)(iii). Finally, the $10,440 per‑day CMP from June 17, 2023 through June 27, 2023, and a $470 per-day CMP from June 28, 2023 through July 27, 2023, for a total CMP of $128,940, is an appropriate penalty.