Wells LTC Partners, Inc., DAB CR6688 (2025)

DECISION

Wells LTC Partners, Inc. (Petitioner or facility), a skilled nursing facility (SNF), challenges the determination by the Centers for Medicare & Medicaid Services (CMS) that it was not in substantial compliance with the Medicare program participation requirement at 42 C.F.R. § 483.90(i)(4) (i.e., maintain an effective pest control program so that the facility is free of pests and rodents).  Petitioner also challenges the imposition of a per-day civil money penalty (CMP) of $3,195 from December 20, 2022, to January 14, 2023.

For the reasons discussed below, I affirm CMS’s determination and conclude that the CMP imposed is reasonable.

I. Legal Framework

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

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For Medicare program purposes, a 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 a 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 related to how it provides services, maintains the rights of its residents, and administers its facility.  42 U.S.C. § 1395i-3(a)(3), (b)-(d).  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 promulgated regulations to establish those additional requirements.  See 42 C.F.R. pt. 483, subpt. B.2

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

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 state agencies to conduct surveys to determine whether SNFs are in substantial

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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 a 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 a 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.3  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 a SNF is not in substantial compliance.  42 U.S.C. § 1395i‑3(h)(2)(A), (h)(2)(B)(ii)(I); 42 C.F.R. § 488.430(a).  For CMPs assessed on or after March 17, 2022, and for deficiencies that occurred after November 2, 2015, the CMP amounts may range as follows:  $2,400 to $23,989 for per-instance CMPs; $120 to $7,195 per day for less serious noncompliance; or $7,317 to $23,989 per day for more serious noncompliance that poses immediate jeopardy to the health and safety of residents.  45 C.F.R. § 102.3 (2022); 87 Fed. Reg. 15,100, 15,111 (Mar. 17, 2022); see 42 C.F.R. § 488.438(a)(1) (providing original CMP amounts before statutory inflation adjustments).

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

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

If a 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 8 (1997); see Batavia Nursing & Convalescent Inn, DAB No. 1911 (2004); Batavia Nursing & Convalescent Ctr., DAB No. 1904 (2004), aff’d, Batavia Nursing & Convalescent Ctr. v. Thompson,129 F. App’x 181 (6th Cir. 2005); Emerald Oaks, DAB No. 1800 (2001).  If a SNF challenges CMS’s determination as to the level of noncompliance, CMS’s determination must be upheld unless it is clearly erroneous.  42 C.F.R. § 498.60(c)(2).

If an ALJ concludes that there was a basis for imposing a CMP on a 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 a SNF that operates in Wells, Texas.  On December 20, 2022, surveyors from the Texas Health and Human Services Commission (state agency) completed an abbreviated standard survey to investigate complaints.  CMS Ex. 2.  The state agency subsequently issued a Statement of Deficiencies (SOD).  Id.  The SOD concluded that the investigation into the complaints yielded evidence of substantial noncompliance with 42 C.F.R. § 483.90(i)(4) (Tag F925) (i.e., failure to maintain an effective pest control program) at a scope and severity level “H” (i.e., pattern of substantial noncompliance that causes actual harm that is not immediate jeopardy).  CMS Ex. 2.

On January 6, 2023, CMS imposed a CMP of $3,195 per day beginning from November 10, 2022, until further notice.  CMS Ex. 1 at 3-6.  CMS also advised that it was imposing a denial of payment for new admissions (DPNA), effective January 20, 2023; and termination of Petitioner’s Medicare provider agreement, effective June 20, 2023.  Id.  On February 13, 2023, CMS notified Petitioner that it corrected its deficiencies and was in substantial compliance with Medicare participation requirements as of January 15, 2023.  Id. at 1-2.  Therefore, CMS imposed a civil money penalty of $3,195 per day from December 20, 2022, to January 14, 2023.  Id.  CMS also rescinded the termination and DPNA.  Id.

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On March 7, 2023, Petitioner timely requested a hearing before an ALJ.  On March 9, 2023, ALJ Tannisha D. Bell issued an acknowledgment and Standing Prehearing Order (SPO) which directed the parties to file briefs, proposed exhibits, and written direct testimony for all witnesses they wanted to present in this case.  In compliance with the SPO, CMS filed an exchange, including a combined motion for summary judgment and prehearing brief (CMS Br.) and nine proposed exhibits (CMS Exs. 1-9), which included written direct testimony from one proposed witness, Tammy Bell, RN (CMS Ex. 9).  Petitioner filed an exchange consisting of a prehearing brief and response to CMS’s motion for summary judgment (P. Br.) and thirteen proposed exhibits (P. Exs. 1-10, 12-14),4 including written direct testimony from two proposed witnesses, Kathleen Mitchell and Jared Risinger, RN, BSN (P. Exs. 9, 10).  In addition, Petitioner requested to cross-examine CMS’s proposed witness and filed objections to CMS’s exhibits (P. Objections).

On April 30, 2024, ALJ Bell denied CMS’s motion for summary judgement and scheduled a pre-hearing conference.  DAB E-File Doc. Nos. 18, 21.  Petitioner thereafter advised that “it no longer wishe[d] to cross-examine Surveyor, Tammy Bell” and the parties further agreed “that this case could be decided by the ALJ based on the written record.” 5  DAB E-File Doc. No. 22.

On January 22, 2025, the parties were directed to submit supplemental briefing addressing the decision in Emerald Shores Health Care Assocs., LLC v. U.S. Dep’t of Health & Human Servs., 545 F.3d 1292 (11th Cir. 2008).  DAB E-File Doc. No. 25.  On February 28, 2025, CMS filed its supplemental brief (CMS Supp. Br.).  Id. at Doc No. 26.  Petitioner filed its supplemental brief (P. Supp. Br.) on March 28, 2025.  Id. at Doc. No. 28. 

As the SPO explained, a hearing would be necessary only if a party requested an opportunity to cross-examine a witness or witnesses for whom the opposing party submitted written direct testimony.  SPO §§ 10-11.  Since neither party has requested an opportunity to cross-examine witnesses, a hearing is unnecessary for the cross-examination of any witnesses, and the matter is ready for a decision on the merits.

III. Admission of Exhibits into the Record

CMS has not objected to any of Petitioner’s proposed exhibits.  Therefore, Petitioner’s exhibits P. Ex. 1-10 and 12-14 are admitted into the record.

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Petitioner objected to CMS’s Exhibits 1, 2, 8, and 9.  See P. Objections at 1-3.  As explained below, I overrule the objections and admit all of CMS’s proposed exhibits into the record.

Petitioner objects to the following proposed exhibits:  CMS Ex. 1, CMS notice letters; CMS Ex. 2, CMS-2567 form December 20, 2022; CMS Ex. 8, surveyors notes; and CMS Ex. 9, the declaration of Tammy Bell, RN.  P. Objections at 1-2.

Petitioner objects to CMS Ex. 1, on the basis that its lacks foundation, to the extent the document is being used to establish a deficient practice.  Id. at 1.  CMS Exhibit 1 contains two notice letters that apprise Petitioner of the finding of noncompliance identified and the remedies imposed for the noncompliance.  Petitioner’s objection is overruled as its concern goes to the weight to be accorded to this document rather than its admissibility in this forum.

Petitioner also objects to Exhibit 2 and Exhibit 9 on the basis that they contain legal conclusions and opinions of the issues subject to de novo review.  Id. at 1-2.  I will admit these documents and overrule the objections.  However, if conclusions are not supported by underlying evidence, I will reject them.  To the extent Petitioner objects to the testimony as improper opinion testimony, I will disregard any testimony that purports to opine on the ultimate legal issues.

Lastly, Petitioner objects to Exhibit 8 on the basis that it contains irrelevant and prejudicial information as it is related to other residents and other alleged deficiencies.  Id. at 2.  CMS Exhibit 8 contains the surveyor’s notes about the deficiencies at issue and were created at or near the time of the events at issue in this appeal.  As such, the probative value of this exhibit is outweighed by any potential prejudice.

Therefore, I overrule Petitioner’s objections and admit all of CMS’s proposed exhibits into the record.

IV. Jurisdiction

I have jurisdiction to hear and decide this case.  Social Security Act (Act) §§ 1128A(c)(2), 1819(h)(2)(B)(ii) (codified at 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).

V. Issues

The following issues will be addressed in this decision:

1) Whether Petitioner failed to be in substantial compliance with the Medicare program participation requirement at 42 C.F.R. § 483.90(i)(4);

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2) If Petitioner was not in substantial compliance, whether the amount of the CMP imposed on Petitioner is reasonable under the factors in 42 U.S.C. § 1320a-7a(d) and 42 C.F.R. § 488.438(f).

VI. Discussion

A. Petitioner was not in substantial compliance with 42 C.F.R. § 483.90(i)(4) because it failed to maintain an effective pest control program that would keep its facility free of pests.6

Section 483.90, which governs the physical environment requirements for SNFs, provides generally that the “facility must be designed, constructed, equipped, and maintained to protect the health and safety of residents, personnel and the public.”  Subsection 483.90(i), which relates to other environmental conditions, imposes specific obligations upon a facility in order to “provide a safe, functional, sanitary, and comfortable environment for the residents, staff and the public.”  One such requirement is that a facility “[m]aintain an effective pest control program so that the facility is free of pests and rodents.”  42 C.F.R. § 483.90(i)(4).

Relatively few appellate decisions of the DAB have addressed a SNFs requirements to ensure compliance with 42 C.F.R. § 483.90(i)(4).  In Price Hill Nursing Home, DAB No. 1781 (2001), the DAB found that a SNF was not in compliance with its obligations to maintain an effective pest control program when surveyors found “beetle-like insects in [opened] boxes of cake mix,” “two live insects and one insect larva on the shelf next to the cake mix boxes” and flies throughout the facility.  Id. at 11.  The DAB noted that a facility is not “expected to have eradicated every single fly.”  Id.  However, the DAB reasoned that the facility did not have an effective pest control program because it did not remove the insects until after advised by the surveyors and the facility “did not know how long the bugs had been there.”  Id.  While the facility argued that some of the issues were related to seasonality, the DAB concluded that an “effective pest program would have addressed that situation.”  Id.

Similarly, in Emerald Shores Health & Rehab. Ctr., DAB No. 2072 (2007) (rev’d by Emerald Shores Health Care Assocs., LLC v. U.S. Dep’t of Health & Human Servs.,545 F.3d 1292), the DAB held that 42 C.F.R. § 483.90(i)(4) does not impose a strict liability standard.  Id. at 9.  The DAB did not adopt a specific standard to demonstrate regulatory

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compliance.7  Id.  Rather, the DAB observed that a successful integrated pest management program should be “designed to reduce the presence of ants and the likelihood of encountering them in and around a facility.”  Id.  Ultimately, the DAB concluded that the facility was not in substantial compliance with the pest control regulation.  Id. at 5-8.

The DAB’s decision in Emerald Shores, however, was vacated and remanded on appeal.  See Emerald Shores Health Care Assocs., LLC v. U.S. Dep't of Health & Hum. Servs.  545 F.3d 1292.  In its decision, the Eleventh Circuit noted that the regulation “do[es] not require facilities to adopt any particular program and have offered very little guidance about the standards for assessing effectiveness.”  Id. at 1297.  The Court elaborated that it would be “appropriate to assess the DAB’s evidence of noncompliance in light of what Emerald Shores would have reasonably expected it was required to do.”  Id. (Emphasis added).  While the Court acknowledged that an effective pest control program would not be examined on a strict liability standard, it was not clear where the lines would be drawn.  Id.  As the Court stated: “assessing whether a pest control program is ‘effective’ will almost always involve some degree of subjectivity due to the inherent vagueness of quantifying and qualifying ‘effectiveness.’”  Id. at 1300.  The Court, however, pointed out some specific factors to examine under the regulation including an assessment of whether the facility had been on notice of its problem and the extent and nature of the infestation.  Id. at 1298-1299.  It concluded that, while not “ideal,” the program in place substantially complied with the requirements of the regulation as the SNF would have reasonably understood them.  Id. at 1300.

Following the Court’s Emerald Shores decision, the DAB again addressed the issue of effective pest control in Pinehurst Healthcare & Rehab. Ctr., DAB No. 2246 (2009).  In this case, the DAB found a facility’s pest control program to be ineffective when the facility had roaches in its kitchen.  Pinehurst Healthcare, DAB No. 2246 at 32.

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The DAB concluded that the facility was out of compliance because it “did not take preventative steps to control pests.”  Id.

Here, in its briefing, CMS alleges that Petitioner did not comply with 42 C.F.R. § 483.90(i)(4) based on multiple incidents in which the facility’s residents were bitten by ants in their own beds.  CMS Br. at 8-12.  CMS specifically states that compliance with this regulation, in conjunction with the cases discussed above, requires that a facility conduct comprehensive surveillance, thoroughly document and timely evaluate, and use robust eradication measures.  See generally id.  Applying this standard, CMS argues that Petitioner was not in compliance with the regulation given its “eight-year history of infestations, inadequate surveillance and investigation, deficient documentation, and a failure to adopt a sustainable eradication strategy.”  CMS Supp. at 8.  CMS further states unlike in Emerald Shores, where CMS had previously found the facility’s pest-control program to be complaint, there was no such finding here.  CMS Supp. Br. at 6.

Petitioner contends that under the factors discussed in the Emerald Shores decision, its facility was in substantial compliance with the regulation.  See generally P. Supp Br.  Specifically, like in Emerald Shores, Petitioner states that it “has never [been] previously . . . cited by CMS for any pest control related” problem and acted appropriately in relying on a professional extermination company over the prior eight years.  Id. at 3.  Petitioner further states that its pest control provider “did not make any suggestion for improvement” but instead would provide treatments that were necessary.  Id. at 3-4.  Finally, Petitioner avers that the “insignificant numbers of ants and pests” is indicative of its effective pest control program.  Id. at 4.  As Petitioner states, it “has shown that on every routine visit done by Ecolab, a third-party contractor not affiliated with [Petitioner], that no ants were present; no structural concerns which could contribute to ants were noted; and no sanitation or facility preparation issues that could contribute to ants was located.”  Id.

a. Facts

I find the following facts by a preponderance of the evidence, based on my review of the entire record in this case.

Resident 1.  At the time of the events at issue, Resident 1 was an 82-year-old male with diagnoses of, among other things, Alzheimer’s disease, heart failure, type 2 diabetes mellitus, muscle wasting and atrophy and dementia with agitation.  CMS Ex. 4 at 1-3.  Resident 1 was initially admitted to Petitioner’s facility on January 13, 2015.  Id. at 1.

Nursing progress notes reflect that on November 10, 2022, a certified nurse assistant (CNA) observed ants in Resident 1’s bed.  CMS Ex. 8 at 8.  Upon assessment, it was observed that Resident 1 had ant bites on his right rib cage and right upper thigh area.  Id.  Specifically, the resident was “noted to have approx[imately] 12 to 15 red raised areas to the right rib cage and approx[imately] 20-25 bites were noted to the right hip/upper thigh

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area.”  Id.  The nurse thereafter cleaned the bites and applied hydrocortisone cream.  Id.  The notes further indicate that the ants were “immediately killed by staff and [Resident 1] was immediately removed from the area and assessed and [his] room was examined for entry site as well as Ecolab to be contacted.  No noted entry site could be determined [at] this time.”  Id.

A nursing progress note from November 11, 2022, indicated that the nurse observed “more than initial 12 bumps” and described them as “raised pus filled bumps with redness . . . .”  Id.  The notes included instructions to continue to clean and treat with hydrocortisone until resolved.  Id.

On November 17, 2022, Petitioner’s staff completed a weekly skin assessment of Resident 1.  CMS Ex. 4 at 155-156.  The assessment noted that effective November 10, 2022, Resident 1 had a rash on his rib cage.  Id. at 155.  In an accompanying note, the record stated that “initially 12 bites on right rib cage were found then next day 12 [to] 25 ant bites on r[ight] rib cage with pus and 20 resolving bites resolving on right hip.”  Id.

In an undated entry to Resident 1’s care plan, language was included noting that Resident 1 had “actual impairment to skin integrity r/t ant bites on [right] rib cage and [right] upper thigh.”  Id. at 145.  The associated interventions were to keep Resident 1’s fingernails short to avoid scratching, call Ecolab pest control for ground rounds for insect control, educate resident and caregivers on measures to prevent skin injury and follow facility protocols for treatment of injury.  Id.

Resident 2.  At the time of the events at issue, Resident 2 was an 84-year-old male with diagnoses of, among other things, Alzheimer’s disease, malignant neoplasm of the prostate, dementia, and cognitive communication deficit.  CMS Ex. 5 at 1-3.  Resident 2 was initially admitted to Petitioner’s facility on November 29, 2021.  Id. at 1.

Nursing progress notes dated December 16, 2022, reflect that Resident 2 had ants in his bed.  CMS Ex. 8 at 12.  The Licensed Vocational Nurse (LVN) specifically noted that “[u]pon entering [the] room[,] aide had removed [Resident 2] from bed and ants were visible crawling on [Resident 2’s] sheets.  There were about 50 ants crawling.  [Resident 2’s] clothing was removed. . . .  [Resident 2] did express discomfort to noted healing wounds. . . .  [Resident 2] was removed from room and shower was provided by aide. [Resident 2] is noted to have 20 ant bites in total.”  Id.  Thereafter, Resident 2 was removed from his room, and the room was checked for additional insects.  Id.

A subsequent nursing progress note indicated that Resident 2’s room was “being deep cleaned” and that “proper extermination was being provided.”  Id. at 13.  Moreover, the room would be checked for insects every thirty minutes for a seventy-two-hour period.  Id.  An additional nursing progress note stated that no ants were found in Resident 2’s room, bed, clothing or person during the next shift.  Id.

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In an undated entry to the care plan, it was noted that Resident 2 had “actual impairment to skin integrity” as a result of ant bites.  CMS Ex. 5. at 28.  The care plan’s goals included to heal and have no complications from the ant bites with interventions including to avoid scratching and identifying and documenting “potential causative factors and eliminate/resolve where possible.”  Id.  Resident 2’s wounds would also be monitored and treated along with blood testing and cultures.  Id.  In a second undated entry to Resident 2’s care plan, language was included noting that Resident 2 had ants in his room and the care plan set a goal of “no pests in building or on the facility grounds.”  Id.  The associated interventions included “9 PM rounds by nursing for pest monitoring/source of pest attractions,” “Ecolab notified . . . to treat rooms affected and facility grounds,” “Q 30-minute monitoring x 72 hours,” “Q Shift rounds for pests or sources that attract pests.”  Id.  Additionally, it was noted that Resident 2’s room was “deep cleaned” and the “[s]upervisor on weekends to make rounds and treat for pests.”  Id. at 29.  The care plan further notes that Ecolab would treat the outside areas of the facility with “Orthene” and treat Resident 2’s room “with approved pesticides.”  Id.

On December 16, 2022, Petitioner’s staff completed a weekly skin assessment for Resident 2.  Id. at 138-139.  The assessment indicated that Resident 2 had approximately “20 ant bites in scattered areas on [his] body.”  Id. at 138.  It was further noted that the bites were located on his right and left shoulders.  Id.  Skin tears and bruising were also visible on Resident 2’s skin.  Id.

Resident 3.  At the time of the events at issue, Resident 3 was a 64-year-old male with diagnoses of, among other things, type 2 diabetes mellitus, major depressive disorder, muscle wasting and atrophy, and severe chronic kidney disease.  CMS Ex. 6 at 1-9.  Resident 3 was initially admitted to Petitioner’s facility on August 22, 2022.  Id. at 1.

Nursing progress notes dated December 19, 2022, reflect that a LVN saw fifteen ant bites on Resident 3’s upper and lower back as well as left hand.  CMS Ex. 8 at 15.  Resident 3 was taken to the shower after his ant bites were discovered.  Id. at 25.  The CNA who took Resident 3 to the shower stated that “ants have been a problem for a while and housekeeping is not here every day.”  Id.  The LVN who was also informed of Resident 3’s ant bites noted that “there has been an issue with ants for a long time” and that “ants are in various locations on the men’s unit.”  Id. at 25-26.

In an undated entry to Resident 3’s care plan, language was included noting that Resident 3 had ants in his room and the care plan set a goal of “no pests in building or on the facility grounds.”  CMS Ex. 6 at 85.  The care plan also noted the following interventions:  “9 PM rounds by nursing for pest monitoring/source of pest attractions,” “Ecolab notified . . . to treat affected rooms and facility grounds,” “Q 30-minute surveillance x 72 hours,” “Q Shift rounds for pests or sources that attract pests.”  Id. at 85-86.  Additionally, it was noted that Resident 3’s room was “deep cleaned” and the

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“[s]upervisor on weekends [was] to make rounds and treat for pests.”  Id. at 86.  The care plan also notes that Ecolab would treat the outside areas of the facility with “Orthene” and treat Resident 3’s room with pesticide.  Id.  Another undated entry to the care plan noted that Resident had “actual impairment to skin integrity” as a result of ant bites.  Id. at 95-96.  The care plan’s goals included to heal and have no complications from the ant bites with interventions, identifying and documenting “potential causative factors and eliminate/resolve where possible.”  Id.  In addition, Petitioner’s wounds would be monitored and treated along with blood testing and cultures.  Id. at 95-96.

On December 19, 2022, the surveyor also viewed Resident 3’s room and observed two “ants crawling on the electrical outlet behind the bed” as well as dead ants on his nightstand.  CMS Ex. 8 at 15.  Resident 3 stated that ants were in his bed and bit him on his hands and back.  Id. at 16.  Resident 3 further stated that a bag of food on his nightstand also had ants in it.  Id.

The surveyor also conducted an observation of Resident 3’s room on December 20, 2022.  Id.  At that time, the surveyor again saw “several ants . . . crawling on the wall, ceiling, and coming out of the electrical outlet behind the bed.”  Id.

b. Analysis

In the instant case, I find that CMS has established a prima facie case that Petitioner failed to comply substantially with 42 C.F.R. §483.90(i)(4).  Petitioner has further failed to prove substantial compliance by a preponderance of the evidence.  In reaching this decision, I am mindful that such a determination “involve[s] some degree of subjectivity.” Emerald Shores Health Care Assocs., LLC v. U.S. Dep't of Health & Hum. Servs.  545 F.3d at 1300.  However, based on the prior decisions discussed above, at a minimum, an analysis of compliance with 42 C.F.R. §483.90(i)(4) requires consideration of at least three factors: 1) notice of the insect problem; 2) the extent and nature of the infestation; and 3) preventive steps taken by the facility.  In considering these factors, I conclude that Petitioner was not in substantial compliance with the requirements for maintaining effective pest control so that the facility was free of pests and rodents.

The DAB and the Courts have made clear that the regulation does not impose a strict liability standard.  See Emerald Shores Health Care Assocs., LLC v. U.S. Dep't of Health & Hum. Servs.  Id. at 1297; Emerald Shores Health & Rehab. Ctr., DAB No. 2072 at 7. Rather, Petitioner’s noncompliance has been demonstrated by the multiple instances of ant bites sustained by residents in their own rooms which resulted in skin impairments.  Moreover, while Petitioner engaged the services of a pest control company, Ecolab, the program was ineffective as ants were able to enter multiple residents’ beds and cause physical injury.  In addition, because Petitioner failed to fully follow the recommendations of Ecolab, its program to prevent pests and rodents was severely compromised.

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At the outset, I agree with CMS that this case is distinguishable from Emerald Shores.  See CMS Supp. Br. at 6.  In Emerald Shores, the SNF’s pest control program was found to be complaint with the pest control regulation prior to it being cited for noncompliance.  Emerald Shores, 545 F.3d at 1299.  In this case, Petitioner has not put forth any evidence establishing that CMS or the state agency had found its pest control program to be complaint.  As such, there is no evidence that Petitioner’s facility was determined to be an “already-compliant program.”  Emerald Shores, 545 F.3d at 1299.  Further, while Petitioner notes that it “completed a self-report” of a July 2020 ant-bite incident (P. Ex. 6), the record does not include any showing that its pest-control maintenance was deemed compliant at that time, or at any time for that matter.

To the contrary, the record evidence demonstrates that Petitioner had been on notice of its ant problems for years prior to the deficiencies cited by the state agency.  To this point, the record evidence reveals that Ecolab had been treating Petitioner’s facility for more than eight years prior to the incidents at issue.  CMS Ex. 2 at 8; CMS Ex. 8 at 15.  In addition, according to Kathleen Mitchell, administrator of Petitioner’s facility, the facility has had issues with ant bites from the time she began her role in July 2020.  P. Ex. 6; P. Ex. 9.  In fact, Petitioner has a “specific Ecolab ‘ant program.’”  P. Ex. 9 at 1.  Ms. Mitchell recounted that on July 30, 2020, she “completed a self-report due to resident being bitten 7x’s by ants.”  P. Ex. 6 at 1.  Moreover, this incident seemingly also took place in a resident’s room as Ms. Mitchell added that Ecolab came out and found “sticky stuff under the bed.”  Id.  Ms. Mitchell also detailed other incidents involving residents being bitten by ants on May 10, 2022, July 18, 2022, November 10, 2022 and December 16, 2022.  Id.; see also P. Ex. 9 (Written declaration of Kathleen Mitchell).

Based on this evidence, the record establishes that Petitioner had known about recurring occurrences of ants on its premises for at least eight years and further been on notice of issues related to ants in residents’ rooms and resulting injuries from ant bites since at least July 2020.

I further disagree with Petitioner’s claim that its issues with ants were “an isolated incident,” in part, because the two incidents in December took place “during a three-day window.”  P. Br. at 6.  As noted above, Petitioner has had at least five instances of its residents being bitten by ants, including three instances during the state agency’s survey.  As CMS states, Petitioner’s “infestation is not a onetime aberration but a chronic problem.”  CMS Supp. Br. at 6.

While I acknowledge that Petitioner used the services of a pest control company, it often failed to comply with Ecolab’s instructions, which resulted in multiple incidents of harm to its residents.  This ultimately caused its preventive program to be ineffective.  An examination of Petitioner’s Exhibit 2, which contains documentation from Ecolab beginning in January 2022, shows repeated concerns from Ecolab and detailed recommendations for the facility to take to reduce pests.  See generally P. Ex. 2.

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Specifically, a January 25, 2022 invoice and customer service report notes the presence of cockroaches in the kitchen and details a number of safety and sanitation concerns within the facility “that could cause pest problems.”  Id. at 2.  The report provided numerous instances of hole/gaps in kitchen walls and food debris throughout various locations in the kitchen.  Id.  The February 27, 2022 invoice and customer service report noted further sanitation issues including an open compactor/dumpster.  Id. at 4.  The March 20, 2022 invoice and customer service report again noted the presence of cockroaches and identified a number of “sanitation deficiencies, structural defects and improper [food] storage practices contributing to pest infestations.”  Id. at 5.  The March report also noted difficulty with properly treating the kitchen area “due to clutter and stored items.”  Id. at 6.

The April 15, 2022 invoice and customer service report showed improvements at the facility with no pest activity, structural concerns, sanitation or food preparation issues.  Id. at 7.  However, in the May 11, 2022 invoice and customer service report, the technician noted concerns with ants both inside and outside of the building.  Id. at 8.  As a result, the technician treated the exterior areas as well as the interior areas in rooms 10 and 27, including the use of Wisdom Lawn Granular.  Id.  A May 23, 2022 invoice and customer service report again noted pest activity in the kitchen area and interior including cockroaches and large flies.  Id. at 11.  This report noted structural concerns, sanitation issues and food preparation issues leading to insects and pests.  Id.  On June 21, 2022 and July 18, 2022, the facility continued to have pest activity including large flies and cockroaches, structural concerns, sanitation issues, and food preparation issues.  Id. at 14-17.  In addition, on July 19, 2022, ants were observed outside the building near the parking area.  Id. at 18.  The ants were treated with Tempo Ultra WP as well as Wisdom Lawn Granular.  Id.  The July 27, 2022 report noted no pest activity, sanitation issues or food preparation issues but did note a number of structural concerns, including gaps in the bathroom/locker room, which could lead to pest problems.  Id. at 19-20.

The August 1, 2022 report noted continued structural concerns and identified a number of “sanitation deficiencies, structural defects and improper [food] storage practices contributing to pest infestations.”  Id. at 21-22.  The August 9, 2022 report noted the presence of cockroaches and additionally noted a number of structural and sanitation issues that could cause pest problems.  Id. at 23-24.  The August 23, 2022 customer service report again noted the presence of cockroaches and identified sanitation deficiencies, structural defects and improper food preparation issues and also noted treatments in the front bathrooms, available hallways, break rooms and offices.  Id. at 25-26.  No pest activity was found on September 20, 2022 or October 6, 2022 but the October 20, 2022 invoice and customer service report noted the presence of cockroaches and identified sanitation deficiencies, structural defects and improper food preparation issues.  Id. at 28- 31.

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On November 13, 2022, Ecolab, treated the exterior of the facility with “Wisdom Lawn Granular” to target ants.  Id. at 32.  This report noted that pest activity was found during service and “[f]ire ants were noted at front walks.”  Id.  On December 20, 2022, Ecolab observed fire ants in room 8 and treated them.  Id. at 35.  Treatment for fire ants was also performed on January 5, 2023, when fire ants were found in the Director of Nursing office.  Id. at 37.  Pesticides were thereafter applied to a number of rooms, offices and the shower room.  Id.  The technician also suggested structural updates including sealing potential points of entry.  Id.  On January 12, 2023, the technician treated a number of rooms for fire ants on Petitioner’s request, though no pest activity was noted at the time of service.  Id. at 39.  The technician also provided additional structural defects that the facility needed to address.  Id.  Additional pesticide applications were applied on January 19, 2023.  Id.  The technician further advised that food should be cleaned from residents’ rooms to reduce pests.  Id.

In a survey interview with the technician for Ecolab, it was noted that “the facility has had a problem with ants for over eight years . . . .”  CMS Ex. 8 at 16.  While the technician told the state agency that no product for treating ants can be one-hundred percent effective, the facility could take additional mitigation measures.  Id.  The technician stated that “sanitation is a huge issue because the ants go into the facilities looking for food and could be in dirty linens.”  Id.  In addition, the technician recommended that the facility “do daily walk arounds outside and treat the mounds as they see them would help prevent ants from coming inside.”  Id.  Petitioner’s staff further confirmed that the facility had “an issue with ants for a long time” and ants were known to be “in various locations on the men’s unit.”  Id. at 25-26.

I acknowledge that Petitioner “spends thousands of dollars each year contracting with Ecolab . . . to provide pest control services.”  See P. Br. at 7.  However, the three instances of residents being bitten by fire ants in their own rooms combined with Petitioner’s history of ant and sanitation issues undermine its assertion that its program was effective.  As detailed above, Resident 1 was found to have ants in his bed and between 12 and 25 ant bites on his right rib cage and right upper thigh area.  CMS Ex. 8 at 8.  Resident 2 had approximately 50 ants visibly crawling in his bed and approximately “20 ant bites in scattered areas on [his] body.”  CMS Ex. 5 at 138; CMS Ex. 8 at 12.  Lastly, Resident 3 sustained 15 ant bites on his upper and lower back as well as left hand.  CMS Ex. 8 at 15.  Given the extent and nature of Petitioner’s ant issues, which resulted in harm to residents, and its eight-year history of documented concerns, consideration must have been given to other treatment measures.

Thus, in light of the foregoing, Petitioner failed to maintain an effective pest program so that the facility was free of pests.

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B. The penalties imposed are reasonable in amount and duration.

In determining whether the CMP amount is reasonable, I must apply the factors listed in 42 C.F.R. § 488.438(f):  1) the facility’s history of noncompliance, including repeated deficiencies; 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)(4).  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 choice of remedy to CMS, and the amount of the remedy to CMS and the ALJ, requiring only that the regulatory factors at 42 C.F.R. §§ 488.438(f) and 488.404 be considered when determining the amount of a CMP within a particular range.  42 C.F.R. §§ 488.408, 488.408(g)(2), 498.3(d)(11); see also 42 C.F.R. § 488.438(e)(2), (3); Alexandria Place, DAB No. 2245 at 27 (2009); Kenton Healthcare, LLC, DAB No. 2186 at 28-29 (2008).  The DAB has explained that “there is a presumption that CMS has considered the regulatory factors in setting the amount of the CMP and that those factors support the CMP amount imposed by CMS.  Unless a facility contends that a particular regulatory factor does not support that CMP amount, the ALJ must sustain it.”  Coquina Ctr., DAB No. 1860 at 32 (2002).  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).

In assessing the reasonableness of a CMP amount, an ALJ considers the per-day amount, rather than the total accrued CMP.  See Kenton, 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.  See, e.g., Senior Rehab. & Skilled Nursing Ctr., DAB No. 2300 at 19-20 (2010).  The lower per-day CMP range of $120 to $7,195, as adjusted annually, is applicable to this case, because this range applies to deficiencies that do not constitute immediate jeopardy, but either cause actual harm to residents, or have the potential for causing more than minimal harm.  42 C.F.R. § 488.438(a)(1)(ii); 45 C.F.R. § 102.3 (Table) (2022); 87 Fed. Reg. 15,100, 15,111.

Here, CMS imposed a CMP of $3,195 from December 20, 2022, to January 14, 2023. which is reasonable.  The $3,195 amount is near the middle of the penalty range.  The evidence shows that CMS “consider[ed] the seriousness and pervasiveness of the deficiencies, the degree of facility culpability, facility compliance history, and financial condition.”  CMS Ex. 1 at 4.

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Petitioner argues that the total amount of the CMP is unreasonable because the facts fail to demonstrate any noncompliance.  P. Br. at 8.  However, I have determined that the facts before me support a finding of substantial noncompliance.  Thus, the issue before me is whether the regulatory factors were considered in setting the CMP amount and whether those factors support the CMP amount.  42 C.F.R. §§ 488.438(f), 488.404. Petitioner does not allege that a particular regulatory factor does not support the CMP amount.  See P. Br.

Considering the factors, Petitioner’s noncompliance was very serious.  Petitioner’s failure to maintain effective pest control resulted in actual harm to three residents, for which Petitioner is culpable.  Petitioner has not offered any argument or rebuttal to CMS’s evidence showing its history of noncompliance, nor has it made any argument that it cannot pay the per-day CMP.  I thus find no basis to reduce the CMP.  As a result, considering the regulatory factors here, I conclude that the CMP amount imposed is reasonable.

VII. Conclusion

For the reasons set forth above, I sustain CMS’s determination that Petitioner was not in substantial compliance with 42 C.F.R. § 483.90(i)(4) and that a CMP of $3,195 from December 20, 2022, to January 14, 2023 is fully supported by the relevant statutory and regulatory factors in this case.