Generations at Regency, DAB CR6660 (2025)

DECISION

Petitioner, Generations at Regency, challenges the determination by the Centers for Medicare & Medicaid Services (CMS) that it was not in substantial compliance with Medicare program participation requirements at 42 C.F.R. §§ 483.25(d)(1), (2) (F689) and 483.25(n)(1)-(4) (F700).  Petitioner also challenges the imposition of a per-day civil money penalty (CMP) of $1,530 for 31 days of substantial noncompliance (from February 4, 2023, through March 6, 2023), for a total penalty of $47,430.

The parties have requested a decision on the record.  For the reasons discussed below, I find that Petitioner was not in substantial compliance with program participation requirements from February 4, 2023, through March 6, 2023.  I also find that the per-day CMP imposed is reasonable.

I.     Background

Petitioner is a skilled nursing facility (SNF) located in Niles, Illinois, that participates in the Medicare program.  CMS Ex. 1 at 1.  The Illinois Department of Public Health (state agency) conducted a complaint investigation survey of the facility on February 7, 2023.

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CMS Ex. 1.  The surveyor found that the facility was not in substantial compliance with Medicare participation requirements, specifically:

• 42 C.F.R. § 483.25(d)(1)(2) (Tag F689 – Free of Accident Hazards/Supervision/Devices) cited at scope and severity (s/s) level G (isolated instance of substantial noncompliance that causes actual harm but does not pose immediate jeopardy to resident health and safety); and
• 42 C.F.R. § 483.25(n)(1)-(4) (Tag F700 - Bedrails) cited at s/s level D (isolated instance of substantial noncompliance that causes no actual harm with the potential for more than minimal harm).

Id.

Based on the deficiencies, the state agency notified Petitioner on February 17, 2023 (Initial Notice), that it recommended – and CMS concurred and authorized – a Discretionary Denial of Payment for New Admissions (DDPNA) effective March 4, 2023.  CMS Ex. 24 at 2.  The notice also informed Petitioner that the state agency was recommending a CMP and termination beginning August 7, 2023, and that CMS would issue a formal notice only if it agrees with the recommended remedies.  Id.  Finally, the notice stated that if, as relevant here, the facility is subject to a denial of payment, federal law prohibits approval of nurse aide training and competency evaluation programs and nurse aide competency evaluation programs offered by the facility.  Id. at 2.  The Initial Notice set forth Petitioner’s appeal rights, using standard language, and instructing that a request for hearing must be received within 60 days of receipt of the Initial Notice.  Id. at 3-4.

Petitioner requested Informal Dispute Resolution (IDR) for both cited deficiencies on February 27, 2023.  CMS Exs. 13, 14.  By notice dated, March 27, 2023, the state agency informed Petitioner that no changes were made to the Statement of Deficiencies (SOD) based on its IDR requests.  CMS Ex. 15.

The state agency returned to the facility on February 26, 2023, and completed another complaint investigation survey.  CMS Ex. 19.  The surveyor found that the facility was not in substantial compliance with Medicare participation requirements, specifically:

• 42 C.F.R. § 483.24(a)(2) (Tag F677 – ADL care provided for dependent residents) cited at scope and severity level D.  Id.

In a notice dated March 3, 2023, the state agency informed Petitioner that despite additional deficiencies being found, it was not recommending additional remedies.  CMS Ex. 25 at 1.  However, this notice reminded Petitioner that “all remedies proposed, recommended, or imposed in the Initial Notice . . . will continue to remain in effect.”  Id.

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On April 26, 2023, Petitioner was notified it returned to substantial compliance effective March 7, 2023.  CMS Ex. 27; see also CRD Dkt. Entry No. 11 (Joint Stipulation of Undisputed Facts) at ¶ 13.  The April 26, 2023 notice stated that the DDPNA that took effect on March 4, 2023, was discontinued effective March 7, 2023, and that CMS would notify Petitioner if additional remedies will be imposed.  Id.

CMS issued a formal notice to Petitioner on May 24, 2023 (CMS’s Notice).  CRD Dkt. Entry No. 1a.  CMS reminded Petitioner of the state agency’s findings of substantial noncompliance, and the remedy the state agency had imposed (i.e., the DDPNA).  Id. at 1, 3-4.  Regarding the DDPNA, CMS’s notice referred Petitioner to the Initial Notice for its appeal rights and stated that CMS had not received a request for a hearing as of the date of its notice.  Id. at 4.

In addition to the DDPNA, CMS advised Petitioner that it was imposing a per-day CMP of $1,530 for 31 days beginning February 4, 2023, through March 6, 2023, for a total of $47,430.  Id. at 2-3.  CMS further advised Petitioner that if it disagreed with the findings of noncompliance that led to the imposition of the CMP, it could request a hearing before an ALJ.  Id. at 4-5.  The notice also advised Petitioner that it could question the cited deficiencies through the Independent IDR (IIDR) process by submitting a request within 10 days from the receipt of the notice.  Id. at 5.

Petitioner filed a request for IIDR on June 6, 2023.  CMS Ex. 16.  On June 29, 2023, Petitioner was notified that no changes had been made based on documentation reviewed by the staff of the Michigan Peer Review Organization.  CMS Ex. 18 at 1.  Petitioner subsequently filed a hearing request on July 21, 2023, contesting the various penalties and remedies outlined in CMS’s Notice.  CRD Dkt. Entry No. 1 (RFH).

This matter was initially assigned to ALJ Jacinta L. Alves who issued an Acknowledgment and Standing Prehearing Order for Medicare Health, Safety, and Quality Standards.  CRD Dkt. Entry Nos. 2 (Acknowledgment Letter), 2a (Standing Prehearing Order).  Pursuant to ALJ Alves’s Standing Prehearing Order, CMS timely filed a Prehearing Brief and 31 exhibits (CMS Exs. 1-31).  CRD Dkt. Entry Nos. 5 (CMS’s Br.), 5a-5a6.  CMS included the written direct testimony of two witnesses, IDPH Surveyor Tammy Strowder and IDPH Surveyor Timothy Turpin.  CRD Dkt. Entry Nos. 5a5 (CMS Ex. 30), 5a6 (CMS Ex. 31).

Petitioner timely filed its Prehearing Brief, Objections to CMS’s proposed exhibits (P. Objections) and a List of Proposed Exhibits and Witnesses.  CRD Dkt. Entry Nos. 6 (P.’s Br.), 6a (Objections to CMS’s Exhibits), 6b (Petitioner’s Proposed Exhibits and Witnesses).  Petitioner adopted CMS’s proposed exhibits and did not propose any witnesses.  On December 8, 2023, CMS filed its response to Petitioner’s objections.  CRD Dkt. Entry No. 9 (CMS’s Response to Petitioner’s Evidentiary Objections).

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The parties also filed a Joint Settlement Status Report on December 8, 2023, indicating that the parties waived oral hearing and requested a decision on the record.  CRD Dkt. Entry No. 8 (Joint Settlement Status Report).  On December 21, 2023, the parties filed a Joint Statement of Issues Presented and Joint Stipulation of Undisputed Facts.  CRD Dkt. Entry Nos. 10 (Joint Statement of Issues Presented), 11 (Joint Stipulation of Undisputed Facts).

This case was reassigned to me on December 3, 2024.  CRD Dkt. Entry No. 12.  I requested supplemental briefing on January 27, 2025.  CRD Dkt. Entry No. 13.  Both parties timely submitted their responses on February 18, 2025.  CRD Dkt. Entry Nos. 14 and 15.

Based on the parties’ request and finding a hearing unnecessary, I will decide this case on the written record, meaning the parties’ written submissions and arguments.  42 C.F.R. §§ 498.66(b) and 498.74(a); Civ. Remedies Div. P. § 19(c), (d).

II.     Admission of Evidence Into the Record

Petitioner objected to CMS’s Exhibits 1, 12, 19, and 28.1 P. Objections.  These documents consist of:  CMS Exhibit 1, the SOD by the state agency dated February 7, 2023; CMS Exhibit 12, surveyor notes; CMS Exhibit 19, the SOD by the state agency dated February 26, 2023; and CMS Exhibit 28, the AEM Nursing Home Enforcement History.  P. Objections at 1-2.  As explained below, I overrule all objections and admit all the proposed exhibits into the record.

Petitioner objected to these documents, in whole or in part, on the basis that they contain hearsay.  Id.  However, I am permitted to admit and consider hearsay statements in these administrative proceedings even if they would be inadmissible under the rules of evidence applicable to court proceedings.  See 42 C.F.R. § 498.61; Florence Park Care Ctr., DAB No. 1931 (2004).  The Departmental Appeals Board (Board) has explained that hearsay statements may be accorded appropriate weight, if supported by adequate indicia of reliability.  Omni Manor Nursing Home, DAB No. 1920 (2004) (internal citations omitted).  The weight an ALJ accords hearsay is “determined by the degree of reliability, based on relevant indicia of reliability and whether the hearsay is corroborated by other evidence in the record as a whole.”  Id.  In accordance with the Board’s

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guidance, I overrule Petitioner’s objections, but accord CMS’s exhibits appropriate weight based on the indicia of reliability.

Petitioner also objects to CMS Exhibit 12, notes and records of the surveyor, proffering that the records lack hallmarks of authenticity because they are not transcribed word for word and were created for purposes of litigation.  P. Objections at 1.  Finally, Petitioner argues CMS Exhibit 28 is inadmissible because use of its enforcement history to support the amount of the CMP violates its right to due process.  Id.  Petitioner explains that the document contains a variety of references to and allegations of prior instances of noncompliance that it has not always been granted the right to contest at a hearing.  Id. at 1-2.

Regarding Exhibit 12, Petitioner offers no legal argument or factual support that the surveyor’s notes lack authenticity because they are not transcribed word for word or that they were created for purposes of litigation.  Based on my review of these documents, I find that they were created in the ordinary course of business, i.e., conducting a complaint investigation survey.  Moreover, as testified by the surveyor, she “took notes to record the results of [] interviews and record review” and “[t]rue and accurate copies of the notes . . . are marked as CMS Ex. 12.”  CMS Ex. 30 ¶ 6.  Therefore, I find the surveyor’s notes are sufficiently authenticated.  I also note the content to which Petitioner objects, interviews with facility staff, are admissible under the Federal Rules of Evidence.  Fed. R. Ev. 801(d)(2)(D).

More importantly, I am required to receive into evidence any testimony and documents that are relevant and material.  42 C.F.R. § 498.60(b)(1).  The Administrative Procedure Act provides:

Any oral or documentary evidence may be received, but the agency as a matter of policy shall provide for the exclusion of irrelevant, immaterial, or unduly repetitious evidence.  A sanction may not be imposed or rule or order issued except on consideration of the whole record or those parts thereof cited by a party and supported by and in accordance with the reliable, probative, and substantial evidence.

5 U.S.C. § 556(d).  Therefore, the primary test for the admission of evidence is whether it is relevant and material to an issue in the case.

The surveyor’s notes are plainly relevant to the February 7, 2023 survey, and Petitioner does not contend otherwise.  Omni Manor Nursing Home, DAB No. 1920 (holding that statements of facility employees to the surveyors may be admitted in an administrative proceeding and may constitute substantial evidence).  The facility’s enforcement history is also relevant.  In determining whether the CMP is reasonable, 42 C.F.R.

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§ 488.438(f)(1) requires consideration of the facility’s history of noncompliance.  In sum, CMS Exhibits 12 and 28 are relevant, and Petitioner’s objections are overruled.

Based on the above, CMS’s exhibits are entered into the record as CMS Exs. 1-31.

III.     Issues

The issues before me in this case are:

1. Whether I have the authority to review February 7, 2023 survey findings and, if so,
   1. Whether Petitioner was in substantial compliance with Medicare participation requirements at 42 C.F.R. § 483.25(d)(1), (2) (F689) and 42 C.F.R. § 483.25(n)(1)-(4) (F700); and
2. Whether the per-day CMP imposed is reasonable. 

I also identify the issues that are not before me.  Petitioner’s hearing request contested the deficiencies identified in both the February 7, 2023, and February 26, 2023 surveys.  RFH at 2.  However, in the Joint Statement of Issues Presented, the issues were limited to the deficiencies identified in the February 7, 2023 survey.  Joint Statement of Issues Presented; see also Joint Stipulation of Undisputed Facts at ¶ 17.  Similarly, while Petitioner initially contested all the imposed remedies, including the DDPNA and other remedies which I have no authority to review such as the publication of survey results, the parties agree that only the CMP is at issue.  Compare RFH, with Joint Statement of Issues Presented at ¶ 3. 

IV.     Discussion

1. Petitioner did not timely file a hearing request to challenge the February 7, 2023 survey findings; therefore, those findings are administratively final and binding.

Section 1866(h) of the Social Security Act (Act) authorizes administrative review of determinations that a provider fails to comply substantially with Medicare program requirements “to the same extent as is provided in section 205(b) of the [Act].”  Under section 205(b), the Secretary of Health and Human Services must provide reasonable notice and opportunity for a hearing “upon request by [the affected party] who makes a showing in writing that his or her rights may be prejudiced” by the Secretary’s decision.  The hearing request “must be filed within sixty days” after receipt of the notice of CMS’s determination.  Act § 205(b) (emphasis added).  The 60-day time limit is thus a statutory requirement.  Rutland Nursing Home, DAB No. 2582 at 2 (2014); see also 42 C.F.R. § 498.40(a).

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Here, Petitioner failed to meet the deadline for appealing the state agency’s Initial Notice, imposing a DDPNA based on deficiencies identified in the February 7, 2023 survey, but did timely appeal CMS’s May 24, 2023 Notice imposing a CMP based on these same survey findings.  On January 27, 2025, I asked the parties for supplemental briefing on whether any of the findings of noncompliance identified in the February 7, 2023 survey were binding pursuant to 42 C.F.R. § 498.20(b) based on Petitioner’s failure to timely appeal the findings leading to the imposition of the DDPNA.  CRD Dkt. Entry No. 13.  In timely submitted responses, both Petitioner and CMS proffered that the noncompliance findings were binding only as to the enforcement remedy identified in the state agency’s initial determination, i.e., the DDPNA.  CRD Dkt. Entry No. 14 (CMS’s Response to Supplemental Briefing); CRD Dkt. Entry No. 15 (Petitioner’s Supplemental Brief).

CMS explains that when it imposes a CMP, it makes an initial determination apart from one previously made by the State agency.  CMS’s Response to Supplemental Briefing at 2-3.  Therefore, according to CMS, a facility may challenge its initial determination – both “the underlying findings of noncompliance and related CMP – irrespective of whether the underlying findings also support a different remedy that is the subject of a separate imposition notice.”  In support of this conclusion, CMS cites 42 C.F.R. §§ 498.20(a) and 498.20(b), noting as to the former that the notice of initial determination sets forth the basis for and effect of the determination as well as the party’s right to a hearing, and as to the latter that “the binding effect from a failure to appeal is accorded to the entire initial determination.”  Id. at 2-3 (internal quotations omitted); see also Petitioner’s Supplemental Brief at 6.

It is unclear how these two regulatory provisions support CMS’s conclusion that the findings of noncompliance are binding, but only to a specific remedy.  As CMS correctly notes, the regulation provides that a failure to appeal an initial determination is accorded to the entire initial determination, which necessarily encompasses the findings of noncompliance.  Neither CMS nor Petitioner cites any authority for their proposition that binding findings are remedy specific, and I am aware of none.

In fact, the position is not only contrary to the plainly stated regulation that states that an initial determination is binding unless, as is pertinent here, reversed or modified by a hearing decision but also to CMS’s previous position to ALJs and the Board that untimely or non-appealed findings are final and binding.  Taos Living Center, DAB No. 2293 (2009); see also Chicago Ridge Nursing Center, DAB CR1498 (2006) (CMS contends and ALJ agrees that because Petitioner did not timely appeal a cited deficiency in an October complaint survey, the deficiency is administratively final), aff’d DAB No. 2151 (2008) (noting there is no dispute that the facility failed to timely appeal the October survey and concluding that the facility was therefore not in substantial compliance); Willow Rose Rehab & Health Care Center, DAB CR6351 (2023) (noting

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CMS’s statement that the facility did not timely appeal the survey findings and finding the deficiencies identified in the survey as final and binding).

The Board and ALJs found in all these cases that non-appealed or untimely appealed survey findings leading to an imposition of an enforcement remedy are administratively final and binding, and none limit the finality of those findings to the specified enforcement remedy.  To do so could lead to an unsound result.  In this case, for example, there is an imposition of a DDPNA based on administratively final survey findings of noncompliance.  However, if those same binding findings are subject to further review, I could find that the facility was in substantial compliance and, therefore, find no basis for the imposition of a CMP.  See CMS May 24, 2023 Notice (imposing a CMP based on the previously advised deficiencies).

Taos Living Center is instructive.  In Taos, the Board upheld the ALJ’s finding that Petitioner was not entitled to a hearing on survey findings that were not timely appealed.  Taos Living Center, DAB No. 2293 at 8.  By letter dated March 19, 2008, the state agency notified the facility of its determination of noncompliance based on survey findings, and imposition of statutory DPNA.  Id. at 9.  The letter also provided explicit instructions to appeal the findings of noncompliance within 60 days if it disagreed with the determination.  Id.  The Board explicitly rejected the facility’s contention that CMS’s subsequent notice, issued on August 5, 2008, imposing additional remedies, constituted a revised determination or otherwise extended the deadline for appealing the underlying survey findings.  Id. at 10-11.

In addition, the August 5 notice did not provide TLC with a new opportunity to appeal the February survey findings, nor did it extend the 60-day filing period set forth in the March notice.  The August 5 notice did advise TLC of the additional remedies CMS was imposing for the facility’s noncompliance based on the February, May and July surveys.  The August 5 notice also included general language that if TLC “disagree[d] with the determination of noncompliance . . . that led to an enforcement action” it could request an ALJ hearing.  The August 5 letter further provided, however, that the “[p]rocedures governing this process are set out in 42 CFR § 498.40 et. seq.”  Id.  Under those regulations, as explained above and set forth in the March 19 notice, TLC was required to request a hearing to challenge the February survey findings no later than 60 days after its receipt of the March 19 notice.  Thus, we concur in the ALJ’s finding that while not “a model of clarity,” CMS’s August 5, 2008 notice did not extend the deadline for TLC to challenge the February survey findings.

Id. at 11 (internal citations omitted).  In this case, there is no dispute the Initial Notice informing Petitioner of the findings leading to the imposition of an enforcement action, was an initial determination subject to appeal.  42 C.F.R. §§ 488.402(f)(1), 488.406,

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498.3(b)(13).  Therefore, the facility’s failure to appeal the initial determination rendered the findings of substantial noncompliance final and binding.

Notwithstanding the facility’s inability to contest the February survey findings, the Board in Taos Living Center went on to hold that the facility was entitled to a hearing to challenge the date it returned to substantial compliance because the facility timely requested a hearing on that issue.  Taos Living Center, DAB No. 2293 at 13.

That is, TLC, like United Presbyterian and Mimiya Hospital, did not timely request a hearing to challenge the initial determination of noncompliance based on the first survey findings, thus rendering the first (February) survey findings of noncompliance final.  As in United Presbyterian and Mimiya Hospital, however, TLC did timely request a hearing to dispute a subsequent, appealable determination as to the duration of its noncompliance.

Id.; see also Mimiya Hospital, DAB No. 1833 (2002), aff’d Mimiya Hosp. v. U.S. Dep’t of Health and Human Servs., 331 F.3d 178 (1st Cir. 2003).

Similarly, in this case, CMS made a subsequent initial determination to impose an additional remedy, a CMP, “[b]ased on the survey findings.”  CMS’s Notice at 1.  Because Petitioner timely appealed this initial determination, it is entitled to a hearing to challenge the reasonableness of the CMP amount.  While a per-day CMP of at least $129 must be imposed based on the deficiencies identified in the survey, which are administratively final and support a finding the facility was not in substantial compliance with multiple program requirements, Petitioner is nevertheless entitled to challenge the reasonableness of the imposed CMP.  42 C.F.R. § 488.438(a)(1)(i); 45 C.F.R. § 102.3; 88 Fed. Reg. 69,531, 69,543 (Oct. 6, 2023).  Moreover, contrary to the parties’ assertions, Petitioner is afforded due process in relation to its timely filed appeal because I am required to consider the reasonableness of the CMP in accordance with the regulatory factors identified at 42 C.F.R. §§ 488.438(f) and 488.404.

Fortunately for CMS, in this case, if I had jurisdiction to review the February 7, 2023 survey findings, I would find Petitioner was not in substantial compliance with Medicare program requirements.  I explain:

1. The facility was not in substantial compliance with 42 C.F.R. § 483.25(d)(1), (2) (F689) because Petitioner did not follow R2’s care plan or take reasonable steps to provide adequate supervision and assistance to R2 to prevent foreseeable falls, placing R2 at risk of suffering more than minimal harm.

R2 was a resident at Petitioner’s facility since September 15, 2018.  CMS Ex. 4 at 174.  R2’s diagnoses included unspecified dementia with behavioral disturbance, anxiety disorder, unspecified psychosis, drug-induced subacute dyskinesia, chronic kidney disease, hypertension, anemia, hyperlipidemia, dysphagia, unsteadiness on feet, history of abnormal weight loss, altered mental status, and a history of COVID-19 disease.  Id. at 175.

On February 3, 2020, R2’s care plan history indicates that R2 was at risk for falling due to poor safety awareness related to dementia and anxiety, as well as unsteadiness on feet.  CMS Ex. 4 at 135.  At that time, R2’s care plan included wearing proper footwear; assuring the floor is free of glare, liquids and foreign objects; encouraging R2 to assume a standing position slowly and using environmental devices, such as hand grips and handrails; keeping the call light and personal and frequently used items within reach; observing frequently and placing in a high traffic area when out of bed; occupying R2 with meaningful distraction; and providing R2 an environment free of clutter.  Id. at 135‑36.  Notes further state that R2 “is noncompliant with fall prevention measures.”  Id.

On October 24, 2022, R2 underwent a fall risk assessment.  CMS Ex. 13 at 12.  At the time of the assessment, her mental status is indicated as intermittent confusion.  Id.  R2’s cardiovascular conditions – cardiac dysrhythmia and hypertension – as well as her psychiatric/cognitive conditions – delirium, decline in cognitive skills, manic depression, Alzheimer’s Disease, and other dementia – are indicated as contributing factors.  Id. at 13.  R2’s fall risk score was 11, a high-risk level.  Id.  R2 was referred to nursing rehabilitation and skilled therapies, and the plan was to continue her current care plan.  Id.

R2 fell on November 18, 2022.  CMS Ex. 4 at 161.  R2 was observed on the floor post‑fall, and, attributable to dementia, she was unable to verbalize what happened that led to the fall.  Id.  A nurse’s (V5’s) report following the fall states that R2 was in a new, temporary environment due to COVID-19 status and, because of dementia, unable to easily acclimate.  Id.  R2 was transferred to the hospital for further evaluation, and her CT was negative for a major injury.  Id.  The plan was to continue with skilled therapies and a bed alarm was provided.  Id.  On November 28, 2022, R2’s care plan was updated to include a bed alarm, with the goal to discontinue.  CMS Ex. 13 at 14.  The care plan also called for the bed alarm to be removed “to allow free time at meals or while attending activities (when staff is close to [R2]).”  Id. at 15.

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A November 30, 2022 minimum data set (MDS) report indicates that R2 was unable to repeat three words, and could not complete the brief interview for mental status.  CMS Ex. 4 at 61.  R2’s cognitive skills for daily decision making are marked as severely impaired, and inattentive and disorganized thinking behaviors were also marked as present.  Id. at 62.  Regarding functional status, R2 is noted as “[n]ot steady, only able to stabilize with staff assistance” for all Balance During Transitions and Walking activities.  Id. at 64 (emphasis in original).  R2’s fall history is documented.  Id. at 66.

On December 19, 2022, R2 fell and was observed on the floor post-fall.  CMS Ex. 4 at 162.  Again, R2 was unable to verbalize what happened that led to the fall.  Id.  R2 was noted sitting on a folding chair, which was brought by her family, and the chair was folded.  Id.  The chair was removed, and the family was educated on extra furniture in the room.  Id.  The report following the fall states, “[f]all precautions remain in place and in working condition” and staff to continue to monitor and redirect R2 as needed.  Id.

On the same day, a fall risk assessment was performed.  CMS Ex. 4 at 76.  R2’s mental status was marked as intermittent confusion, and her activity level was noted as “Up Ad Lib.”  Id.  Contributing factors included neuromuscular and functional conditions – including a decline in functional status – as well as psychiatric and cognitive conditions that were identified in the prior assessment.  Id. at 77.  R2’s fall risk score increased to 15, and referral to the falls prevention program was indicated but the plan was to continue R2’s current plan of care.  Id.  R2’s care plan history shows an update on December 20, 2022, to keep the “environment free of clutter[;]” however, this intervention was already in place on February 3, 2020.  Compare id. at 135, with id. at 136.

On December 27, 2022, R2 fell again, this time in the dining room.  CMS Ex. 4 at 163.  Notes state R2 was observed on the floor in the dining room post-fall.  Id.  R2 stated that she wanted to get some water prior to the fall.  Id.  R2 was assessed, no major injuries noted, and she transferred to her room.  Id.  R2 was referred to a nurse practitioner and neurologist due to increased falls.  Id.  Notes further indicate, “[f]all precautions remain in place and in working condition” and staff were to continue to monitor and redirect R2 as needed.  Id.

Another fall risk assessment was performed the evening of the third fall.  CMS Ex. 4 at 120.  Regarding the number of falls, the assessment indicates one or two falls rather than three or more falls.  Id.  Only R2’s previously identified psychiatric and cognitive conditions were noted as contributing factors, and her fall risk score worsened to 12, and was still labeled as high risk.  Id. at 121.  No referrals are noted, and the plan was to continue R2’s current plan of care.  Id.

On December 28, 2022, R2 was examined by a nurse practitioner.  The nurse practitioner noted R2 was “difficult to educate due to progressive dementia.”  CMS Ex. 4 at 118.

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Progress notes document the plan to continue to monitor, a neuro consult, more frequent monitoring, and fall precautions.  Id.

Finally, on December 31, 2022, R2 fell again while in her room.  CMS Ex. 4 at 164.  R2 was observed on the floor next to her bed, and she was unable to verbalize what happened that led to the fall.  Id.  Notes indicate “[s]taff to continue to remind [R2] not to ambulate/transfer without staff assistance.”  Id.  R2’s fall prevention measures were noted as in place and in working condition, and staff were to continue to monitor and redirect as needed.  Id.

The surveyor’s interview notes with V7 state that “V5 said she had just walked pas[t] R2 room and saw R2 sitting on her bed.”  CMS Ex. 12 at 6.  V7 also stated that R2 has dementia and poor safety awareness.  Id.  “V7 omitted going into R2[’s] room to determine if R2 needed something and or to determine why was R2 sitting at he[r] bedside just prior to the fall.”  Id.  The surveyor’s interview notes with V9, the ADON, state that “she would expect the nurse to go in R2’s room if she saw R2 [] sitting at bedside to redirect R2.”  Id. at 11.  “V9 said R2 needs one-person assist with bed mobility and transfer.”  Id.

Another fall risk assessment was performed on December 31, 2022, and R2’s activity level is indicated as “confined to chair, totally unable to ambulate without assist.”  CMS Ex. 4 at 88.  This assessment correctly indicates three or more falls in the previous three months, and identifies multiple conditions, including perceptual, neuromuscular and functional, and psychiatric and cognitive, as contributing factors.  R2’s fall risk score increased to 22 and indicated an updated plan of care.  Id.

On January 2, 2023, R2’s plan of care was updated to give R2 “verbal reminders not to ambulate/transfer without assistance.”  CMS Ex. 4 at 135.  The next day, R2 was referred to skilled therapies and the following day to an X-ray of the left hip/femur/thigh due to complaints of hip pain.  Id.  The X-ray showed a left hip fracture.  Id. at 40.  On January 5, 2023, R2 was discharged to the hospital where she passed away on January 12, 2023.  Id. at 26.

Program Requirements.  Congress requires SNFs to “provide services to attain or maintain the highest practicable physical, mental, and psychosocial well-being of each resident, in accordance with a written plan of care.”  42 U.S.C. § 1395i-3(b)(2).  In furtherance of this mandate, the Secretary promulgated the general quality of care regulation at 42 C.F.R. § 483.25, which states in that section’s prefatory text that the SNF “must ensure that residents receive treatment and care in accordance with professional standards of practice,” based on a comprehensive resident assessment, a comprehensive care plan, and resident choice.  The quality-of-care regulation requires facilities to, in relation to accidents, ensure:

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(1) The resident environment remains as free of accident hazards as is possible; and

(2) Each resident receives adequate supervision and assistance devices to prevent accidents.

42 C.F.R. § 483.25(d).

Therefore, section 483.25(d)(1) requires that a facility address foreseeable risks of harm from accidents “by identifying and removing hazards, where possible, or, where the hazard is unavoidable because of other resident needs, managing the hazard by reducing the risk of accident to the extent possible.”  Maine Veterans’ Home - Scarborough, DAB No. 1975 at 10 (2005) (explaining the inherent standard of care in section 483.25(h)(1)).  The provisions of section 483.25(d) “come into play when there are conditions in a facility that pose a known or foreseeable risk of accidental harm.”  Meridian Nursing Ctr., DAB No. 2265 at 9 (2009), aff’d sub. nom. Fal Meridian, Inc. v. U.S. Dep’t of Health & Human Servs., 604 F.3d 445 (7th Cir. 2010).  Further, section 483.25(d)(2) requires that a facility take “all reasonable steps to ensure that a resident receives supervision and assistance devices that meet his or her assessed needs and mitigate foreseeable risks of harm from accidents.”  Briarwood Nursing Ctr., DAB No. 2115 at 11 (2007) (citing Woodstock Care Ctr. v. Thompson, 363 F.3d 583, 590 (6th Cir. 2003)) (facility must take “all reasonable precautions against residents’ accidents”), aff’g Woodstock Care Ctr., DAB No. 1726 (2000)).  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).

Substantial noncompliance:  failure to keep R2’s environment as free of accident hazards as is possible and provide adequate supervision.  In the present case, CMS asserts that Petitioner failed to ensure R2’s environment remained free of clutter, a long-standing care plan intervention, as evidenced by the facility’s failure to identify and remove the folding chair involved in R2’s fall on December 19, 2022.  CMS Br. at 14-15.  CMS argues that Petitioner’s post-fall amendment to R2’s care plan to add again the same intervention reinforces that the folding chair constituted clutter that posed an accident hazard.  Id. at 14.  CMS submits R2’s care plan to support the same.

CMS also argues Petitioner failed to ensure R2 received adequate supervision to prevent accidents because it failed to increase her supervision after she continued to experience falls.  CMS Br. at 15-16.  CMS argues that R2’s need for increased supervision was evident following her December 19 fall, which established a pattern of falling while alone in her room, and in consideration of R2’s age and diagnoses that increased her fall risk and functional status.  Id. at 15.  CMS proffers the facility could have increased supervision by implementing 1:1 supervision and ensuring staff intervened when they

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observed R2 attempting to ambulate without assistance or sitting in an unsafe position.  Id.  To support its arguments, CMS submits the facility’s notes following the falls, the November 30, 2022 MDS assessment, and R2’s care plan history.  CMS proffers that because of the facility’s failures, R2 suffered multiple falls and broke her hip.

Petitioner does not dispute the general chronology of events or that the final fall caused R2’s hip fracture.  Rather, Petitioner argues that it was in substantial compliance because it ensured R2’s environment remained as free of accidents hazards as was possible and prevented all avoidable accidents.  P. Br. at 6.  Relying on the State Operations Manual guidance, Petitioner proffers that R2 was identified upon admission to its facility as a fall risk and she was assessed, and an appropriate care plan was established.  Id. at 6-7.

Petitioner notes that prior to the first November fall, R2 was assessed on October 24, 2022, and the care plan had fall precautions in place, appropriate to her needs.  P. Br. at 8.  Petitioner proffers that after each fall R2 was reassessed and care plan updated.  Id. at 8‑12.  For example, Petitioner states that after the November fall, a bed alarm and additional assessment by a nurse practitioner were added as interventions.  Id. at 10.  Similarly, after the December 19 fall, Petitioner proffers that R2’s care plan was updated to include new interventions including a reminder to staff to keep R2’s room free of clutter.  Id. at 11.  Petitioner notes that after the third fall a neurology consult was recommended but that R2 fell again while awaiting the consult.  Id. at 12.  Petitioner explains that R2’s care plan was pending recommendations from the neurologist.  Id.

I find CMS provided sufficient evidence to meet its burden of showing a prima facie case for noncompliance (i.e., the potential for causing more than minimal harm).  Hillman Rehab. Ctr., DAB No. 1611 at 8 (1997).  CMS submitted R2’s care plan, which demonstrates facility staff failed to comply with R2’s existing intervention to keep R2’s environment free of clutter and that the facility failed to provide an adequate level of supervision.  CMS Ex. 4 at 135-36.

The evidence demonstrates that R2’s care plan, established February 3, 2020, required the facility to provide R2 an environment free of clutter.  CMS Ex. 4 at 136.  However, on December 19, 2022, R2 was observed post-fall sitting atop a folding chair that was brought by R2’s family and left in R2’s room.  Id. at 162.  This demonstrates staff were not providing an environment free of clutter as required by R2’s care plan.  Id.  Thus, contrary to Petitioner’s contention, this fall was not unavoidable, but occurred because staff were not following R2’s care plan.  Azalea Ct., DAB No. 2352 at 12 (2010) aff’d, Azalea Ct. v. United States Dep’t of Health & Human Servs., 482 F. App’x 460 (11th Cir. 2012) (“[A] facility’s care plan indicates the facility’s assessment of what the resident needs, and that failure to follow the care plan may be grounds for concluding that the facility is not in substantial compliance with section 483.25 quality of care standards.”).

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Moreover, following the December 19 and 27 falls, the facility failed to review and revise R2’s care plan as required by its Policy.  The facility had in place a Falls Prevention and Management policy that required staff to “maintain communication with appropriate personnel when situations or resident behaviors suggest the current intervention(s) are not effective.”  CMS Ex. 7 at 1.  Care plans are to “be reviewed and revised at least quarterly and with any fall event the resident might experience.”  Id. (emphasis added).  The policy states that past history of falls is the single best predictor of future falls and, therefore, it is crucial for staff to respond quickly and effectively after a fall.  Id. at 1-2.  A post-fall response includes “immediate actions to assure the safety of the resident, assessment/clinical review, investigation and observations of the fall circumstance, implementation of immediate actions to prevent further falls, [and] notification of appropriate parties.”  Id. at 2 (emphasis added).  In this case, however, assessments following the falls show that the plan was largely to continue R2’s current care plan with the notation that “[f]all precautions remain in place and in working condition.”  CMS Ex. 4 at 162, 163; see also id. at 77, 83.  Thus, while Petitioner is correct that it assessed R2 after each fall, it failed to reasonably revise her care plan after it became evident that the current interventions were ineffective, in violation of its own policy.  Hanover Hill Health Care Ctr., DAB No. 2507 at 7 (2013) (observing that “the Board has long held that a facility’s own policy may be sufficient evidence . . . of what the facility has determined is needed to meet the quality of care requirements in section 483.25”).

I acknowledge that R2 remained free from falls prior to the string of four falls over two months, and that after the first fall in November R2’s care plan was updated to include a bed alarm.  However, after the next fall, the facility did not update R2’s care plan to address her changing conditions but to add an intervention (i.e., keeping R2’s environment free of clutter/accident hazards) that was already in place.  The November 30, 2022 MDS indicates R2 was unable to complete the brief interview for mental status, her cognitive skills for decision-making were severely impaired, and her functional status was noted to be “[n]ot steady, [and] only able to stabilize with staff assistance.”  CMS Ex. 4 at 62, 64.  Notwithstanding R2’s impaired cognitive and functional status as well as multiple falls, the facility’s plan was to continue to monitor and redirect as needed.  Id. at 162.  However, staff did not even do that.

R2 fell again on December 27 in the dining room.  CMS Ex. 4 at 163.  R2 stated that she got up to get some water, but no staff monitored or redirected R2.  Id.  According to interview notes, when asked why staff did not redirect R2 immediately when R2 got up from the wheelchair, V5 responded, “we do our best to monitor.”  CMS Ex. 12 at 13.  It is worth noting that at the time of this fall, R2 was assessed as requiring extensive assistance – “resident involved in activity, staff provide weight-bearing support” – when self-performing transfers and would more likely than not have taken enough time to get up from a sitting position for staff to notice and redirect R2.  CMS Ex. 4 at 63.  Staff failed to do so, and R2 fell.  I find, by the December 27 fall, the facility was on notice that the fall precautions it had in place were not working.

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Again, however, staff failed to monitor and redirect, and R2 fell in her room on December 31.  Even worse, after that fall, the facility documented R2’s fall precautions were in place and in working condition, and that staff would continue to monitor and redirect as needed.  CMS Ex. 14 at 164.  Interview notes with V7 show that another nurse had walked by R2’s room prior to the fall and saw R2 sitting on her bed.  CMS Ex. 12 at 6.  However, V7 did not go to R2’s room to determine if R2 needed something or to determine why R2 was sitting at her bedside just prior to the fall.  Id.  V9 stated that she would expect the nurse to go into R2’s room if she was seen sitting at the bedside to redirect.  Id. at 11.  I find the evidence establishes the falls were not unavoidable but resulted from the staff failing to implement the interventions in R2’s plan of care and to take all reasonable steps to provide adequate supervision and assistance.

While Petitioner is correct that a facility has flexibility to choose the methods and devices it uses to prevent accidents, the chosen interventions must provide an adequate level of supervision and assistance under the circumstances.  Heritage Plaza Nursing Ctr., DAB No. 2829 at 14 (2017) (citing Woodstock Care Ctr., DAB No. 1726 at 28-35 (“What is ‘adequate’ depends in each case on the resident’s condition, the facility environment and the viable and preferred methods available to the facility.”)).  I acknowledge Petitioner’s contentions that R2 was awaiting a neurological consult prior to the December 31 fall, to determine if there were additional factors contributing to these falls.  P. Br. at 11.  While this is supported by the record, there were no accompanying interventions to increase R2’s supervision while awaiting the consult.  Indeed, even after the December 31 accident, R2’s care plan was not updated to increase monitoring, but rather to give R2 verbal reminders not to ambulate or transfer without assistance.  Considering R2’s cognitive status was significant for dementia and staff’s history of being noncompliant with fall prevention measures, this seems like an ineffective intervention and does not constitute an adequate level of supervision.

Based on the record evidence, I have no difficulty in finding that Petitioner did not take all reasonable steps to provide R2 with adequate supervision and assistance to guard against foreseeable accidents.  Petitioner failed to provide R2 with any additional monitoring or assistance, but inexplicably continued to find the existing level of precautions were in working condition, despite a series of falls.  This is in addition to the facility’s failure to even implement the existing requirements to monitor and redirect, the lack thereof resulting in the December 27 and 31 falls.  Therefore, I find Petitioner was not in substantial compliance with 42 C.F.R. § 483.25(d) due to its failure to provide any increased supervision, after the existing level of monitoring clearly was failing (as evidenced by R2’s multiple falls) and due to its failure to follow R2’s existing care plan interventions to keep R2’s environment free of clutter and accident hazards.

2. The facility was not in substantial compliance with 42 C.F.R. § 483.25(n)(1)-(4) (F700) because, contrary to its policy to use bed rails as assessed in R2’s care plan, staff did not adequately monitor R2 and left the bed rails up while not in use.

Regarding the use of bed rails, the quality-of-care regulation also mandates that:

The facility must attempt to use appropriate alternatives prior to installing a side or bed rail.  If a bed or side rail is used, the facility must ensure correct installation, use, and maintenance of bed rails, including but not limited to the following elements.

(1) Assess the resident for risk of entrapment from bed rails prior to installation.

(2) Review the risks and benefits of bed rails with the resident or resident representative and obtain informed consent prior to installation.

(3) Ensure that the bed’s dimensions are appropriate for the resident’s size and weight.

(4) Follow the manufacturers’ recommendations and specifications for installing and maintaining bed rails.

42 C.F.R. § 483.25(n)(1)-(4).

The facility also had in place a written bed rail use policy, “[t]o provide guidance for the use of bed rails to promote mobility and safety.”  CMS Ex. 11 at 1.  Pertinent here, the policy states the resident care plan will include the use of bed rails as assessed.  Id.

As previously stated, R2 was a long-term resident at Petitioner’s facility and had a long list of diagnoses.  CMS Ex. 4 at 174.  About the time of her admission, R2 had limited physical mobility and required the use of bed rails for bed mobility related to generalized muscle weakness.  Id. at 145.  As of November 3, 2018, R2’s care plan history states bed rails were up daily while R2 was in bed to aid in mobility.  Id.  Other approaches included not allowing R2 “to lie too close to side rails,” monitoring for presence of pain or intolerance during bed mobility, providing limited assistance for repositioning and transferring, and turning and repositioning every two hours.  Id.

A restorative assessment was performed on October 24, 2022.  At the time of this assessment, side rails were indicated and served as an enabler to promote bed mobility.  Id. at 20.  Risks included, “getting caught in side rail” and “skin impairment.”  Id.  R2’s bed mobility is indicated as limited assist for all tasks assessed, including rolling from

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side to back, moving from a supine to sitting position, and moving up and down in bed.  Id. at 22.  The progress note, signed by the restorative nurse who performed the assessment, states R2 “requires limited assistance of one staff member with Bed Mobility.”  Id. at 28.  A functional status assessment, also dated October 24, 2022, states that for bed mobility self-performance R2 required limited assistance, described as “resident highly involved in activity; staff provide guided maneuvering of limbs or other non-weight-bearing assistance.”  Id. at 29.  For bed mobility with support, R2 was assessed as “one person physical assist.”  Id.

A progress note, dated November 9, 2022, indicated a family concern with discoloration to R2’s left upper arm.  CMS Ex. 4 at 166.  The nurse’s (V13) notes state that upon assessment, fading discoloration was present.  Id.  V13 spoke with staff about possible instances that would have caused the discoloration, but the staff could not identify any event.  Id.  Notes further indicate that R2 favors leaning on her left side and the discoloration is “lined up with bed rail.”  Id.  V13 informed R2’s family, who was at bedside, that padding would be added to avoid further discoloration.  Id.; see also CMS Ex. 12 at 3 (surveyor’s interview notes with V13 stating discoloration was related to R2 leaning on bed rail and took several days to resolve).  R2’s care plan was updated on November 30, 2022, stating that R2 “will use bed rails for bed mobility with staff assistance.”   CMS Ex. 14 at 145.

The surveyor’s interview notes with V5 states R2 required side rails for bed mobility and transfer.  CMS Ex. 12 at 4.  According to V5, R2 could not lean on the bed rails if they were in the down position and that the rails should have only been in the up position when staff is using them to assist R2 with bed mobility or transfers.  Id.  V5 further stated staff should put the rails down after use.  Id.

Petitioner does not dispute the discoloration of R2’s upper left arm was caused by the side rail being left in the up position when not in use.  P. Br. at 14.  Instead, Petitioner argues that it was in substantial compliance because the bed rails were appropriately used.  Id. at 14-16.  I disagree.

Petitioner cites to R2’s care plan that indicates that bed rails were to be used throughout the day to assist in bed mobility.  P. Br. at 15-16.  While this is accurate, this was established on November 3, 2018, when R2 was initially assessed for bed rail use.  CMS Ex. 14 at 145.  Moreover, I find it significant that the care plan also included not allowing resident “to lie too close to side rails” and turning and repositioning every two hours.  Id.  Had the facility followed R2’s care plan established in 2018, I find it more likely than not R2 would not have had been leaning on the side rail long enough to cause discoloration that took several days to resolve; therefore, I find the evidence supports that it is more likely than not facility staff were not following R2’s care plan.  See Azalea Ctr. at 12 (failure to follow the care plan can establish non-compliance).

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More importantly, on October 24, 2022, R2 was assessed as limited assist for all bed mobility activities.  The progress note signed by the restorative nurse that assessed R2, which Petitioner suggests is the best staff member on which to rely related to this issue, states that R2 “requires limited assistance of one staff member for Bed Mobility.”  P. Br. at 28; CMS Ex. 14 at 28.  R2’s functional assessment, also performed on October 24, 2022, identifies R2’s needing the assistance of staff.  P. Br. at 29.

As such, contrary to Petitioner’s assertion, I find it more likely than not R2 required the assistance of a staff member when using bed rails at the time of reported incident.  Petitioner failed to update R2’s care plan after the assessment to account for her need for assistance with bed mobility, until after the discoloration was reported by family, in violation of its policy to care plan for the use of bed rails as assessed.  CMS Ex. 14 at 30 (updating care plan on November 30, 2022, “to use bed rails for bed mobility with staff assistance”); see also CMS Ex. 11.  The bed rails, consistent with V5’s interview statements, should not have been in the up position unless they were being used, with a staff member, to assist R2 with bed mobility.  Keeping the bed rails in the up position all day, even when R2 was not actively using them for bed mobility, in fact caused discoloration—or actual harm—to R2’s arm and otherwise posed a risk of entrapment.  CMS Ex. 14 at 23.  Therefore, I find the facility did not ensure the correct use of bed rails for R2 as assessed, putting the facility out of substantial compliance with Medicare regulations.

2. Petitioner has offered neither argument nor evidence addressing the regulatory factors that I may consider in evaluating the reasonableness of a CMP.  I find a $1,530.00 per-day CMP reasonable.

Petitioner timely appealed CMS’s determination to impose a $1,530 per day CMP; therefore, I consider whether the amount of the CMP is reasonable.

In this case, CMS imposed a CMP of $1,530 per day for 31 days (February 4, 2023, through March 6, 2023).  Petitioner argues that the CMP is unreasonable solely on the basis that there was no noncompliance of a severity to support the CMP.  P. Br. at 21.  Petitioner does not challenge the duration of its substantial noncompliance.

I evaluate whether a CMP is reasonable by applying 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.  The absence of culpability is not a mitigating factor.  The factors listed in section 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.

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I consider whether the evidence supports a finding that the amount of the CMP is at a level reasonably related to an effort to produce corrective action by a provider with the kind of deficiencies found, and considering the section 488.438(f) factors.  I am neither bound to defer to CMS’s factual assertions nor free to make a wholly independent choice of remedies without regard for CMS’s discretion.  Barn Hill Care Ctr., DAB No. 1848 (2002); Community Nursing Home, DAB No. 1807 (2002); CarePlex of Silver Spring, DAB No. 1683 (1999).

The burden is on the facility to demonstrate that a reduction is necessary to make the CMP amount reasonable.  Heritage Plaza Nursing Ctr., DAB No. 2829 at 22 (2017). “Unless a facility contends that a particular regulatory factor does not support the CMP amount that CMS proposed, the ALJ must sustain it.”  Coquina Ctr., DAB No. 1860 (2002).  In other words, the burden is on Petitioner “to demonstrate, through argument and the submission of evidence addressing the regulatory factors, that a reduction is necessary to make the CMP amount reasonable.’  Oaks of Mid City Nursing & Rehab. Ctr., DAB No. 2375 at 26-27 (2011) (citation omitted).

The sole basis on which Petitioner challenges the CMP, that there was no noncompliance, is immaterial because, as explained above, the February 7 survey findings became final and binding when Petitioner failed to timely challenge them through the administrative hearing process and, in any event, substantial noncompliance is otherwise supported by the record.  In other words, Petitioner has offered neither argument nor evidence addressing the regulatory factors.  For example, Petitioner has not argued that the CMP is unreasonable based on its compliance history or financial condition.

The established deficiencies, along with the facility’s history of noncompliance, more than support the reasonableness of the relatively modest CMP of $1,530 per day, which is in the lower one-third of the CMP range for deficiencies that cause actual harm but do not constitute immediate jeopardy ($129 to $7,752 per day).  42 C.F.R. § 488.438(a)(1)(i), (d)(2).  As explained above, the facility failed to prevent foreseeable accidents and provide adequate supervision, which is part of the quality-of care regulation, 42 C.F.R. § 483.25(d)(1)(2).  Within just 12 days, a resident fell three times, the third time resulting in a hip fracture.  After each fall, the facility failed to provide adequate supervision.  This is in addition to failing to follow the same resident’s care plan related to the use of bed rails, which could have caused the resident to be entrapped.

Moreover, the record demonstrates the facility has a history of deficiencies.  For example, in October 2022, the facility had multiple deficiencies, the majority cited at scope and severity level D.  CMS Ex. 28 at 2.  However, two were cited at scope and severity level G - one under pressure ulcers, 42 C.F.R. § 483.25(b) (F686) and one under pain management, 42 C.F.R. § 483.25(k) (F697).  Id.  In addition, a survey conducted in November 2020 found the facility was not in substantial compliance with the

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requirements at 42 C.F.R. § 483.25(d) (F689), the same at issue in this case, at scope and severity level E.  Id. at 3; see also id. at 4-5 (in surveys conducted in 2020, the facility was not in substantial compliance with multiple life safety code and other requirements).

Considering Petitioner’s failure to proffer evidence or argument otherwise, I find the regulatory factors support the reasonableness of the CMP.

V.     Conclusion

From February 4 to March 6, 2023, the facility was not in substantial compliance with Medicare program requirements.  The CMP imposed, $1,530 per day, is reasonable.