Elmhurst Rehabilitation and Healthcare Center, DAB CR6668 (2025)

DECISION

Elmhurst Rehabilitation and Healthcare Center (Petitioner or “the facility”) challenges the imposition of remedies by the Centers for Medicare & Medicaid Services (CMS) based on immediate jeopardy noncompliance with the Medicare participation requirement at 42 C.F.R. § 483.25(l) (quality of care, dialysis, cited as Tag F698), to include a per-day civil monetary penalty (CMP) of $14,755 from March 6 through 22, 2023.  Petitioner also challenges the imposition of a per-day CMP of $1,450 based on non-immediate jeopardy noncompliance for the period from March 23 through April 18, 2023.  I uphold the imposition of the aforementioned enforcement remedies. 

I. Background

The Social Security Act (Act) establishes requirements for skilled nursing facility (SNF) participation in the Medicare program and authorizes the Secretary of Health and Human Services (“the Secretary”) to promulgate regulations implementing those statutory provisions.  See 42 U.S.C. § 1395i-3; 42 C.F.R. pts. 483 and 488.  To participate in the Medicare program, SNFs must maintain substantial compliance with program participation requirements.  In order to be in substantial compliance, any deficiencies may “pose no greater risk to resident health or safety than the potential for causing minimal harm.”  42 C.F.R. § 488.301.  “Noncompliance” means “any deficiency that causes a facility to not be in substantial compliance.”  Id. 

Page 2

The Secretary contracts with state agencies to conduct periodic surveys to determine whether SNFs are in substantial compliance with participation requirements.  42 U.S.C. § 1395aa(a); 42 C.F.R. §§ 488.10, 488.20.  The Act and its implementing regulations require that facilities be surveyed on average every 12 months, and more often if necessary, to ensure that identified deficiencies are corrected.  42 U.S.C. § 1395i‑3(g)(2)(A); 42 C.F.R. §§ 488.20(a), 488.308.  CMS may impose a per-day CMP for the number of days a facility is not in substantial compliance or a per-instance CMP for each instance of the SNF’s noncompliance.  42 U.S.C. § 1395i-3(h)(2)(B)(ii); 42 C.F.R. § 488.430(a).1

If CMS imposes a remedy based on a noncompliance determination, then the facility may request a hearing before an administrative law judge (ALJ) to challenge the noncompliance finding and enforcement remedy.  42 U.S.C. §§ 1320a-7a(c)(2), 1395i‑3(h)(2)(B)(ii); 42 C.F.R. §§ 488.408(g), 488.434(a)(2)(viii), 498.3(b)(13). 

Surveyors from the Rhode Island Department of Health (state agency) completed a recertification survey, complaint investigation, and partial extended survey at Petitioner’s facility from March 6 to 24, 2023, and cited immediate jeopardy noncompliance2 with the Medicare program participation requirement found at 42 C.F.R. § 483.25(l) (cited as Tag F698 (Quality of Care, Dialysis)) at the “K” level scope and severity from March 6 to 22, 2023.3  CMS Ex. 1 at 1; see CMS Ex. 2 at 1-3; 29-35.  The statement of deficiencies reported that the state agency identified immediate jeopardy on March 6, 2023, and that 

Page 3

Petitioner abated immediate jeopardy on March 22, 2023.  CMS Ex. 1 at 1.  The statement of deficiencies identified other non-immediate jeopardy deficiencies, to include noncompliance with 42 C.F.R. § 483.25 (Tag F684, quality of care), 42 C.F.R. § 483.45(f)(2) (Tag F760, free of significant medication errors), and 42 C.F.R. § 483.80-(a)(1), (2),(4)(e), (f) (Tag F880, infection prevention and control).  CMS Ex. 2 at 12-20; 38-44; 60-65. 

In a letter dated April 18, 2023, CMS notified Petitioner of the imposition of the enforcement remedies, at which time CMS notified Petitioner that it had not yet returned to compliance.  CMS Ex. 1.  CMS imposed a per-day CMP of $14,755 for the period of immediate jeopardy from March 6 through March 22, 2023, and a per-day CMP of $1,450 for the non-immediate jeopardy noncompliance that continued thereafter.  On May 8, 2023, CMS informed Petitioner that it had returned to compliance on April 23, 2023.  CMS Ex. 12 at 1. 

Petitioner, through counsel, timely requested a hearing on June 16, 2023.4  In its request for hearing, Petitioner limited its arguments to a challenge of the remedies imposed and Petitioner only challenged the remedies with respect to the cited immediate jeopardy noncompliance with Tag F698 (quality of care, dialysis) and non-immediate jeopardy noncompliance with Tag F684 (quality of care).  Petitioner did not challenge the other cited noncompliance that was a basis for the per-day CMP of $1,450 that continued until April 18, 2023.  See Request for Hearing. 

CMS filed a pre-hearing brief, along with 18 proposed exhibits (CMS Exs. 1-18), and Petitioner filed a brief and 10 proposed exhibits (P. Exs. 1-10).  With its reply, CMS submitted an additional exhibit (CMS Ex. 19).  Although I explained at the pre-hearing conference that I had admitted CMS Exs. 1-19 and P. Exs. 1-10, with the witness testimony provisionally admitted pending the appearance of the witnesses for cross-examination, I offered Petitioner 15 days to file a sur-reply that addressed CMS’s reply and CMS Ex. 19.  See July 16, 2024 order.  Petitioner declined this opportunity. 

Page 4

Following the hearing, I ordered Petitioner to file a document that was referenced by both a facility policy and a CMS witness (P. Ex. 11), and I admit P. Ex. 11 into the evidentiary record. 

CMS submitted the written direct testimony of a state agency surveyor J. Marcaccio (CMS Ex. 18) and a state agency manager E. Tsangarouli (CMS Ex. 19), and Petitioner submitted the written direct testimony of Stefan Gravenstein, M.D. (P. Ex. 3) and Aman Nanda, M.D. (P. Ex. 5).  Each party requested an opportunity to cross-examine the opposing party’s witnesses.  I presided over a hearing on August 27, 2024.  Thereafter, the parties filed post-hearing briefs and reply briefs. 

The record is closed and the case is ready for a decision.  

II. Issues

The issues presented, as agreed upon by the parties at the July 16, 2024 pre-hearing conference, are: 

• Whether Petitioner was in substantial compliance with 42 C.F.R. § 483.25(l) (cited as Tag F698);
• If not, whether the aforementioned deficiency posed immediate jeopardy to resident health and safety for 17 days from March 6 through March 22, 2023;
• Whether a per-day civil monetary penalty of $14,755 is a reasonable enforcement remedy for immediate jeopardy noncompliance;
• Whether a per-day civil monetary penalty of $1,450 is a reasonable enforcement remedy for non-immediate jeopardy noncompliance beginning on March 23, 2023, and continuing through April 18, 2023.  

III. Discussion5

1. 1. Resident # 147 has end-stage kidney disease and is treated with dialysis three times per week. Resident # 147 was re-admitted to the facility on February 24, 2023, after a six-day hospitalization. 

2. 2. On February 24, 2023, a physician ordered “daily weights” for Resident # 147. At that time, the physician ordered a fluid restriction. 

Page 5

3. 3. On February 25, 2023, another physician, Resident # 147’s attending physician at the facility, ordered daily weights. The attending physician also ordered a fluid restriction.
4. 4. On March 2, 7, and 15, 2023, a nurse practitioner ordered daily weights for Resident # 147.
5. 5. Progress notes do not evidence that Petitioner updated Resident # 147’s care plan/chart to reflect the multiple orders for daily weights.
6. 6. Progress notes do not evidence that Petitioner updated Resident # 147’s care plan/chart to reflect the orders for a fluid restriction or that facility staff otherwise monitored Resident # 147’s daily fluid intake.
7. 7. Petitioner failed to comply with 42 C.F.R. § 483.25(l) and its own policy when it failed to obtain daily weights of Resident # 147, a dialysis patient.
8. 8. Petitioner failed to comply with 42 C.F.R. § 483.25(l) when it failed to implement a fluid restriction on Resident # 147, a dialysis patient.

Resident # 147

Resident # 147 is a man who was born in 1939.  Resident # 147 was initially admitted to the facility in April 2022.  CMS Ex. 11 at 1.  Resident # 147 was readmitted to the facility on February 24, 2023 after a six-day hospital admission.  CMS Ex. 11 at 1.  Resident # 147 had a care plan focus for “renal insufficiency related to end stage renal disease.”  CMS Ex. 11 at 73.  Resident # 147 also had a care plan focus for dialysis related to end-stage renal disease.  CMS Ex. 11 at 71. 

A physician issued admission orders in conjunction with Resident # 147’s readmission to the facility on February 24, 2023.  The orders included “Daily weights.  Low sodium diet.  2L Fluid Restriction.”  CMS Ex. 11 at 4.  The record lacks any evidence that Petitioner incorporated these orders into Resident # 147’s care plans or chart.  See CMS Ex. 11.  The record also lacks any evidence that Petitioner implemented these orders and obtained daily weights and/or imposed a fluid restriction, much less monitored Resident # 147’s fluid consumption. 

The following day, on February 25, 2023, Resident # 147 was seen by his attending physician at the facility, Dr. Akhtar.  CMS Ex. 11 at 36-37; see CMS Ex. 11 at 2 (listing 

Page 6

Dr. Akhtar as attending physician).  Dr. Akhtar noted a history of end-stage renal disease with hemodialysis, along with chronic heart failure.  Dr. Akhtar stated that volume status has been stable and that ultrafiltration/hemodialysis should continue.  Dr. Akhtar ordered a fluid restriction and daily weights, along with continued use of diuretics on non-hemodialysis days.  CMS Ex. 11 at 37.  The record does not evidence that Petitioner incorporated Dr. Akhtar’s orders into Resident # 147’s care plans or chart.  See CMS Ex. 11.  The record also does not indicate that Petitioner implemented these orders and obtained daily weights and/or imposed a fluid restriction, much less monitored Resident # 147’s fluid consumption. 

Resident # 147 was seen by a nurse practitioner on March 2, 2023, following his evaluation by a hospital emergency department.  CMS Ex. 11 at 33.  The nurse practitioner, in the assessment and plan, ordered, in part:  “Continue present diuretics.  Follow daily weights.  Adjust medications based on volume status and hemodynamics as needed.”  CMS Ex. 11 at 34.  Although the nurse practitioner did not discontinue the attending physician’s order for fluid restriction, she stated, “Encourage fluids.”  CMS Ex. 11 at 34.  The record does not indicate that, based on this order, Petitioner updated Resident # 147’s care plans or chart to require daily weights or that Petitioner obtained daily weights.  

Resident # 147 was seen by the same nurse practitioner on March 7, 2023.  At that time, in a nearly identical assessment and plan, the nurse practitioner again ordered, “Continue present diuretics.  Follow daily weights.  Adjust medications based on volume status and hemodynamics as needed.”  CMS Ex. 11 at 24.  The record does not indicate that, based on this order, Petitioner updated Resident # 147’s care plans or chart to require daily weights or that Petitioner obtained daily weights. 

Resident # 147 was seen by the same nurse practitioner on March 15, 2023.  In a similarly nearly identical assessment and plan, the nurse practitioner again ordered, “Continue present diuretics.  Follow daily weights.  Adjust medications based on volume status and hemodynamics as needed.”  CMS Ex. 11 at 17.  The record does not indicate that, based on this order, Petitioner updated Resident # 147’s care plans or chart to require daily weights or that it obtained daily weights.  

Despite the orders of two physicians on February 24 and 25, 2023, and the orders of a nurse practitioner on March 2, 7, and 15, 2023, Resident # 147’s care plans/chart were not updated to include any of the orders for daily weights.  CMS Ex. 11 at 71, 73; see CMS Ex. 11 at 4, 17, 24, 34, 36-37.  Likewise, despite two physicians’ orders for fluid restriction, Resident # 147’s care plans/chart were not updated to reflect any fluid restrictions.  CMS Ex. 11 at 71, 73; see CMS Ex. 11 at 4, 36-37. 

Page 7

Facility Policy

Petitioner has an “Encouraging and Restricting Fluids” policy.  CMS Ex. 8.  The policy requires staff to “[b]e sure an intake record is maintained per physician” and to “[d]ocument fluid restrictions volumes in [a] resident’s chart.”  CMS Ex. 8 at 1. 

Discussion

Pursuant to 42 C.F.R. § 483.25, quality of care is “a fundamental principle that applies to all treatment and care provided to facility residents.”  Pursuant to this requirement, a facility “must ensure that residents receive treatment and care in accordance with professional standards of practice, the comprehensive person-centered care plan, and the resident’s choices, including but not limited to . . .  dialysis.”  42 C.F.R. § 483.25(l).  With respect to quality of care related to dialysis, a facility “must ensure that residents who require dialysis received such services, consistent with professional standards of practice, the comprehensive person-centered care plan, and the residents’ goals and preferences.”  Id. 

Petitioner does not claim that it obtained daily weights in compliance with the physicians’ and nurse practitioner’s orders for Resident # 147, a dialysis patient with end-stage kidney disease.  CMS Ex. 11 at 4, 17, 24, 34, 36-37.  Nor does Petitioner claim that it implemented a fluid restriction, as had been ordered by physicians on February 24 and 25, 2023.  CMS Ex. 11 at 4, 36-37.  Petitioner justifies its failure to implement these orders based on its unsupported claim that Resident # 147, prior to his discharge and readmission on February 24, 2023, had a history of noncompliance with a fluid restriction.  P. Post-hrg. Br. at 18 (citing CMS Ex. 11 at 51 (progress notes documenting fluid restriction discontinued on January 19, 2023, based Resident # 147 being “non-compliant with fluid restriction”); 65-66 (progress notes documenting fluid restriction discontinued in both April and June of 2022, but without specifying a reason(s) for discontinuing the fluid restriction)). 

Dr. Gravenstein, without any basis or reference to the evidentiary record, opined that “[f]acility staff familiar with [Resident # 147’s] past noncompliance with fluid restrictions likely recognized the ineffectiveness of continued fluid restriction orders following readmission.”  P. Ex. 3 at 8.  Dr. Nanda, in strikingly identical language to Dr. Gravenstein, stated the following:  “Facility staff familiar with [Resident # 147’s] past noncompliance with fluid restrictions likely recognized the ineffectiveness of continued fluid restrictions following readmission.”  P. Ex. 5 at 8. 

Petitioner is mistaken that it can simply disregard physicians’ orders because unidentified staff pre-determined that the orders are futile based on a resident’s anticipated noncompliance with the orders.  See P. Br. at 15 (“Facility providers and staff were well aware of the Resident’s history of noncompliance upon readmission and determined that 

Page 8

reintroduction of a fluid restriction was futile.”).6  However, in the intervening time between this single documented refusal and Resident # 147’s readmission to the facility on February 24, 2023, Resident # 147 had been hospitalized for six days with a condition reported to be “critical” and “guarded” owing to a fall with head injury.  CMS Ex. 11 at 41.  To the extent Petitioner speculated that Resident # 147 would be noncompliant with any fluid restrictions ordered after February 24, 2023, there is simply nothing in the record to indicate that Resident # 147 had indicated a future refusal to comply with a fluid restriction upon his readmission.  See CMS Ex. 11 at 51, 54 (documenting that Resident # 147 was “non-compliant” with a fluid restriction on January 19, 2023, during his previous admission to the facility).  Petitioner cites to no authority that it is free to disregard orders because a resident, during a previous admission, refused an intervention.  While a resident is undoubtedly free to refuse an intervention, that does not give Petitioner license to disregard future orders. 

And inasmuch as at least three practitioners ordered daily weights on Resident # 147 on at least five occasions, and Petitioner nonetheless did not obtain daily weights, much less chart this requirement, the record evidences a blatant refusal to comply with orders and incorporate such orders into a resident’s care plan/chart.  See CMS Ex. 8 at 1.  There is simply no evidence that Resident # 147 had refused to comply with daily weights or that the treating practitioners had discontinued orders for daily weights.  To the contrary, it appears that these practitioners continued to order daily weights in the absence of documentation of daily weights. 

Treating practitioners determined that it was necessary to impose a fluid restriction and daily weights when managing this dialysis patient, and regardless of whether Petitioner disagreed with those orders or had somehow pre-determined noncompliance, Petitioner was obligated to comply with those orders.  Further, to the extent Petitioner claims Resident # 147 had the right to refuse a fluid restriction, there is nothing in the record indicating that he had, in fact, refused the February 2023 orders for daily weights or a fluid restriction.  And all the more important, if Petitioner had determined that Resident # 147 would refuse fluid restriction, the necessity for the daily weights that had been ordered five times between February 24 and March 15, 2023, was even more apparent. 

By failing to comply with orders, much less its own policy, Petitioner repeatedly failed to comply with 42 C.F.R. § 483.25(l). 

Page 9

9. 9. Petitioner’s repeated noncompliance with 42 C.F.R. § 483.25(l) amounted to immediate jeopardy to resident health and safety.

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.  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 erroneous.”  42 C.F.R. § 498.60(c).  The Departmental Appeals Board (DAB) directs that the “clearly erroneous” standard imposes on a facility a heavy burden to show no immediate jeopardy and 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 11 (2005) (citing Florence Park Care Ctr., DAB No. 1931 at 27-28 (2004)). 

Petitioner argues that Resident # 147 was not harmed as a result of any noncompliance.  See, e.g., P. Br. at 15-16.  Petitioner’s witnesses testified that Resident # 147 did not suffer any harm as a result of the failure to implement a fluid restriction or to obtain daily weights.  P. Exs. 3 at 6-8; 5 at 6-8. 

The question is whether Petitioner’s deficient practices caused or were likely to cause serious injury, harm, impairment, or death to a resident.  The period at issue was rather brief, inasmuch as Resident # 147 was readmitted to the facility on February 24, 2023, and the surveyors discovered the immediate jeopardy condition while they were on site at the facility in early March.  While I agree that there is no evidence that Resident # 147 suffered actual harm as a result of Petitioner’s failure to obtain daily weights and include a fluid restriction in his plans of care or chart, only a matter of days had passed before the surveyors discovered that Petitioner had disregarded these orders.  But for the intervention of the survey team, it appears that Petitioner would have continued to disregard the orders regarding the care of a dialysis patient with chronic kidney disease and other significant conditions.  See CMS Ex. 11 at 2 (admission record), 43 (February 4 and 11, 2023 “weight warnings” based on documented change in weight), 52 (documenting weights between December 2022 and March 2023 ranging from 197.6 pounds to 216 pounds).  Petitioner’s noncompliance with the quality-of-care requirements for dialysis patients and its own fluids policy is certainly the type of noncompliance that would be likely to cause serious harm.  See Liberty Commons Nursing and Rehab Center – Johnston, DAB No. 2031 at 12 (2006) (“Immediate jeopardy exists if a SNF’s noncompliance is the type of noncompliance that would likely cause serious injury, harm, impairment, or death if not corrected, even if surveyors did not observe or identify a particular resident who was actually threatened with harm during the survey.”) (emphasis in original); see also CMS Ex. 8.  Therefore, Petitioner’s failure to obtain daily weights, and to chart the orders for a fluid restriction, amount to immediate jeopardy to resident health and safety, inasmuch as they exposed a dialysis patient the likelihood of serious harm.  See CMS Exs. 14-16 (medical articles discussing 

Page 10

the cardiovascular risk factors associated with fluid balance and weight in hemodialysis patients).  

10. 10. Although Petitioner generally challenges the finding of immediate jeopardy noncompliance, it does not challenge the duration of immediate jeopardy noncompliance from March 6 through 22, 2023.
11. 11. Petitioner does not challenge the duration of non-immediate jeopardy noncompliance from March 23 through April 18, 2023.

Substantial compliance means not only that the facility corrected the specific cited instances of substantial noncompliance, but also that it implemented a plan of correction designed to assure that no additional incidents would occur in the future.  Once a facility is found to be out of substantial compliance, it remains so until it affirmatively demonstrates that it has achieved substantial compliance once again.  Ridgecrest Healthcare Ctr., DAB No. 2493 at 15 (2013) (citing Premier Living & Rehab. Ctr., DAB No. 2146 at 23 (2008) and Lake City Extended Care Ctr., DAB No. 1658 at 12-15 (1998)).  The burden is on the facility to prove that it is compliant with program requirements, and not on CMS to prove that deficiencies continued to exist after they were discovered.  Asbury Ctr. at Johnson City, DAB No. 1815 at 19-20 (2002).  Noncompliance found during a survey is “presumed to continue until the facility demonstrates that it has achieved substantial compliance.”  Taos Living Ctr., DAB No. 2293 at 20 (2009); see Pearsall Nursing & Rehab. Ctr. – North, DAB No. 2692 at 7 (2016) (affirming summary judgment where Petitioner “refer[red] broadly to ‘the evidence presented in [its] Response’” but “identifie[d] no specific evidence relevant to the material facts”). 

CMS determined that the period of immediate jeopardy noncompliance was from March 6 through 22, 2023, and non-immediate jeopardy noncompliance continued from March 23 until April 18, 2023.  In its request for hearing, Petitioner does not challenge the duration of the cited noncompliance.  Likewise, in its brief, Petitioner does not argue an earlier date of abatement of immediate jeopardy or otherwise argue that it returned to compliance earlier than April 18, 2023.  In fact, Petitioner did not appeal several deficiencies cited by the survey team.  See CMS Ex. 2.  In the absence of any challenge by Petitioner or allegation that immediate jeopardy or non-immediate jeopardy compliance was abated sooner, there is no basis to disturb the duration of the cited noncompliance. 

Page 11

12. 12. A per-day CMP of $14,755 is a reasonable enforcement remedy for the immediate jeopardy noncompliance.
13. 13. A per-day CMP of $1,450 is a reasonable enforcement remedy for the period of non-immediate jeopardy noncompliance that was not challenged by Petitioner.

If a facility is not in substantial compliance with program requirements, CMS has the authority to impose one or more of the enforcement remedies listed in 42 C.F.R. § 488.406, to include a CMP.  In determining whether the CMP imposed against Petitioner is reasonable, 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;7 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 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.  Unless a facility contends that a particular regulatory factor does not support the CMP amount that CMS proposed, an ALJ must sustain the CMP.  Coquina Ctr., DAB No. 1860 at 32 (2002). 

The DAB has explained that “[i]t is settled law that ALJ review of the reasonableness of CMP amounts imposed by CMS is de novo.”  Fireside Lodge Retirement Ctr., Inc., DAB No. 2794 at 19 (2017).  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 in light of the above 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.  See, e.g., Barn Hill Care Ctr., DAB No. 1848 at 21 (2002).  The DAB has explained that “[t]he determination of whether a CMP amount is reasonable is a conclusion of law, not a finding of fact.”  Cedar Lake Nursing Home, DAB No. 2344 at 12 (2010), aff’d, Cedar Lake Nursing Home v. U.S. Dep’t of Health & Human Servs., 619 F.3d 453, 457 (5th Cir. 2010).  

The regulations specify that a CMP that is imposed against a facility on a per-day basis will fall into one of two ranges.  42 C.F.R. §§ 488.408; 488.438.  The upper range of a CMP, $3,050 per day to $10,000 per day, as adjusted annually under 45 C.F.R. pt. 102, is reserved for deficiencies that pose immediate jeopardy to a facility’s residents and, in some circumstances, for repeated deficiencies.  42 C.F.R. § 488.438(a)(1)(i), (d)(2).  

Page 12

The lower range of CMP, $50 to $3,000 per day, as adjusted annually under 45 C.F.R. pt. 102, is reserved for deficiencies that do not pose immediate jeopardy, but either cause actual harm to residents, or cause no actual harm but have the potential for causing more than minimal harm.  42 C.F.R. § 488.438(a)(1)(ii).  The inflation-adjusted per-day CMP ranges applicable to this case are $7,317 to $23,989 for the period of immediate jeopardy noncompliance, and $120 to $7,195, for the period of substantial noncompliance.  45 C.F.R. § 102.3 (2022).  In assessing the reasonableness of a CMP amount, an ALJ looks at the per-day amount, rather than the total accrued CMP.  See Kenton Healthcare, LLC, DAB No. 2186 at 28 (2008).  Pursuant to 42 C.F.R. § 488.408(g)(2), a facility cannot appeal CMS’s choice of a remedy, and an appeal of a CMP is limited to review based on the regulatory factors set forth at 42 C.F.R. §§ 488.438(f) and 488.404(a)-(c).  See, e.g., Senior Rehab., DAB No. 2300 at 19-20 (2010).  

In this case, CMS imposed a per-day CMP of $14,755 for immediate jeopardy noncompliance.  The $14,755 amount is approximately 62 percent of the allowable penalty for an immediate jeopardy deficiency.  The deficiency here was not an isolated incident; Petitioner disregarded at least five orders issued by two physicians and a nurse practitioner that it obtain daily weights of Resident # 147.  Further, Petitioner presumed Resident # 147 would refuse a fluid restriction and did not enter the fluid restriction in the resident’s plan of care/chart or otherwise monitor Resident # 147’s fluid intake.  These multiple instances of noncompliance involving a single resident who is a dialysis patient are particularly egregious and evidence a high degree of culpability.  But for the intervention of the survey team, this immediate jeopardy situation may not have been expeditiously abated. 

Notably, in the year and a half period preceding the March 2023 survey, Petitioner was cited with numerous other deficiencies over multiple surveys and a CMP was imposed following three of those surveys.  CMS Ex. 17.  Significantly, Petitioner was cited with other deficiencies related to quality of care.  In October 2021, Petitioner was cited with an immediate jeopardy deficiency involving the failure to maintain an environment free of accident hazards, with an associated CMP of approximately $46,000.  CMS Ex. 17 at 3.  Only months later, Petitioner was cited for an “H” level (actual harm) deficiency related to pressure ulcers, at which time a CMP of approximately $122,000 was imposed.  CMS Ex. 17 at 2.  In October 2022, more than a half dozen deficiencies were cited, to include a quality of care deficiency involving nutrition/hydration status, with an associated $3,464.50 CMP for one day of noncompliance.  CMS Ex. 17 at 2.  Further, I note that Petitioner did not appeal several deficiencies cited during the instant survey cycle, to include another quality-of-care deficiency involving medication errors that was cited at the “G” level (actual harm) of scope and severity.8 See CMS Ex. 1 at 1. 

Page 13

Petitioner also did not appeal a finding of noncompliance related to infection control in which Petitioner did not post signage or an isolation card outside of a resident’s room to indicate the resident is on contact precautions.  CMS Ex. 11 at 64.  While Petitioner contends that “[o]ver the past three years prior to the survey . . . [it] has had only two surveys resulting in any tags with a scope and severity of G or above (actual harm or above)” (P. Br. at 23), I consider the repeated serious deficiencies over the span of only 18 months to demonstrate serious and ongoing problems relating to resident health and safety.  The frequency, seriousness, and nature of the recent deficiencies reflects broader failures in Petitioner’s ability to provide quality care. 

Considering the egregiousness of the instant immediate jeopardy deficiency involving Resident # 147, combined with the history of repeated serious deficiencies and CMPs, a per-day CMP of $14,755, in the middle of the range for immediate jeopardy noncompliance, is entirely reasonable, if not too low, for the fourth enforcement remedy imposed over the span of approximately 18 months.9  A per-day CMP of $14,755 for immediate jeopardy noncompliance is therefore appropriate.  See 42 C.F.R. §§ 488.408(e)(1)(iii); 488.438(a)(1)(i)); 45 C.F.R. § 102.3 (2022).  

Petitioner has not offered any specific basis to dispute the low per-day CMP of $1,450 for the non-immediate jeopardy noncompliance.  See P. Br. at 23 (“[T]he imposition of the $1,450 CMP is likewise unreasonable based on the conduct of the facility”).  I note that the $1,450 CMP is only 20 percent of the allowable CMP amount for a non-immediate jeopardy deficiency.  Considering Petitioner’s significant enforcement history, combined with the fact that at least two residents sustained actual harm with respect to the unappealed deficiency cited under Tag F760, a low per-day CMP of $1,450 is entirely reasonable, if not unreasonably low.  See 42 C.F.R. § 488.438(f).  

IV. Conclusion

For the reasons discussed above, I find that the facility was not in substantial compliance with the Medicare participation requirements.  A per-day CMP of $14,755 for immediate jeopardy noncompliance, from March 6 through March 22, 2023, and a per-day CMP of $1,450 for non‑immediate jeopardy noncompliance from March 23 through April 18, 2023, are reasonable enforcement remedies.