River Crossing of Edwardsville, DAB CR6693 (2025)

DECISION

I grant summary judgment in favor of the Centers for Medicare & Medicaid Services (CMS), sustaining its determination to impose remedies against Petitioner, River Crossing of Edwardsville, a skilled nursing facility (SNF).  These remedies are a civil money penalty of $1,660 per day for 53 days beginning on March 22, 2022 through May 13, 2022.  A denial of payment for new admissions (DPNA) from April 22, 2022 through May 13, 2022 was also imposed.

I. Procedural Background

By letter dated November 4, 2022, Petitioner appealed the determination of CMS and requested a hearing before an Administrative Law Judge (ALJ).  In an Acknowledgment and Standing Pre-Hearing Order that issued on November 7, 2022, the presiding ALJ1 set deadlines for the parties to file pre-hearing briefs in this matter.  The Order further set deadlines for the parties to submit their written request and intention to cross-examine

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opposing party witnesses.  CMS submitted its Pre-Hearing Brief and Motion for Summary Judgment (CMS Br.) on February 6, 2023.  CMS submitted 143 exhibits, including the written declarations for four witnesses.  Petitioner filed its Pre-Hearing Brief and Response to CMS’ Motion for Summary Judgment (P. Br.) on March 13, 2023.  Petitioner submitted three exhibits and no witness declarations.2

The Social Security Act (Act) sets forth requirements for nursing facilities to participate in the Medicare program and authorizes the Secretary of Health and Human Services (Secretary) to promulgate regulations implementing those statutory provisions.  Act § 1819.  The Secretary’s regulations are found at 42 C.F.R. Part 483.  To participate in the Medicare program, a nursing facility must maintain substantial compliance with program requirements.  To be in substantial compliance, a facility’s deficiencies may pose no greater risk to resident health and safety than “the potential for causing minimal harm.”  42 C.F.R. § 488.301.

The Secretary contracts with state survey agencies to survey SNFs in order to determine whether they are in substantial compliance with program requirements.  Act § 1864(a); 42 C.F.R. § 488.20.  Each facility must be surveyed annually, with no more than 15 months elapsing between surveys, and must be surveyed more often, if necessary, to ensure that identified deficiencies are corrected.  Act § 1819(g)(2)(A); 42 C.F.R. §§ 488.20(a), 488.308.  The state agency must also investigate all complaints.  Act § 1819(g)(4).

In this case, the Illinois Department of Public Health (IDPH or state agency) completed an annual survey on March 25, 2022 and two complaint surveys on April 18, 2022 and May 12, 2022.  Based on the state agency’s findings, and citing the regulatory sections below, CMS determined that the facility was not in substantial compliance with multiple program requirements:

• 42 C.F.R. § 483.25(d)(1)-(2) (Free of Accident Hazards / Supervision / Devices) cited at scope and severity level G (Tag F0689);
• 42 C.F.R. § 483.25(e)(1)-(3) (Bowel / Bladder Incontinence, Catheter, UTI) cited at scope and severity level G (Tag F0690);
• 42 C.F.R. § 483.24(a)(2) (ADL Care Provided for Dependent Residents) cited at scope and severity level E (Tag F0677);
• 42 C.F.R. § 483.25 (Quality of Care) cited at scope and severity level G (Tag F0684); and
• 42 C.F.R. § 483.80(a)(1)-(2), (4), (e)-(f) (Infection Prevention & Control) cited at scope and severity level E (Tag F0880).

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CMS has imposed a per-day CMP of $1,660 for 53 days beginning on March 22, 2022 through May 13, 2022.  A DPNA from April 22, 2022 through May 13, 2022 was also imposed.  CMS Ex. 1.

II. Issues

The issues before me are:

1. Whether summary judgment is appropriate.
2. Whether Petitioner failed to comply with any Medicare requirements of participation.
3. If the facility was not in substantial compliance, if the penalty imposed is reasonable.

III. Findings of Fact and Conclusions of Law

1. Summary Judgment is appropriate

CMS filed its pre-hearing brief and motion for summary judgment.  Petitioner filed its pre-hearing brief and response to CMS’ motion for summary judgment.  It is well established that an ALJ is empowered to decide a case on a motion for summary judgment without an evidentiary hearing.  Shah v. Azar, 920 F.3d 987, 996 (5th Cir. 2019).  To obtain summary judgment, the moving party must show that there is no genuine dispute of material fact requiring an evidentiary hearing and it is entitled to judgment as a matter of law.  Mission Hosp. Reg’l Med. Ctr., DAB No. 2459 at 5 (2012).  To show that there are no genuine issues of material fact, the movant must show that there is no evidence in the record that supports a judgment for the non-movant.  Celotex Corp. v. Catrett, 477 U.S. 317, 322-325 (1986).  In other words, where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no “genuine issue for trial.”  Matsushita Elec. Indus. Co. v. Zenith Radio, Ltd., 475 U.S. 574, 586-87 (1986).

“To defeat an adequately supported summary judgment motion, the non-moving party may not rely on the denials in its pleadings or briefs, but must furnish evidence of a dispute concerning a material fact—a fact that, if proven, would affect the outcome of the case under governing law.”  Senior Rehab. & Skilled Nursing Ctr., DAB No. 2300 at 3 (2010), aff’d, Senior Rehab. & Skilled Nursing Ctr. v. Health & Human Servs., 405 F. App’x 820 (5th Cir. 2010).  In fact, it is well established that general denials do not satisfy a party’s burden to identify specific evidence demonstrating a material fact is in dispute.  Shah v. Azar, 920 F.3d 987, 995 (5th Cir. 2019); Forsyth v. Barr, 19 F.3d 1527, 1533 (5th Cir. 1994).

In examining the evidence for purposes of determining the appropriateness of summary judgment, I must draw all reasonable inferences in the light most favorable to the non-

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moving party.  See Brightview Care Ctr., DAB No. 2132 at 2, 9-10 (2007).  Nevertheless, drawing factual inferences in the light most favorable to the non-moving party does not require that I accept the non-moving party’s legal conclusions.  W. Tex. LTC Partners, Inc., d/b/a Cedar Manor, DAB No. 2652 at 6-7 (2015), aff’d, W. Tex. LTC Partners, Inc., d/b/a Cedar Manor v. U.S. Dep’t of Health & Human Servs., 843 F.3d 1043 (5th Cir. 2016).

Petitioner asserts that summary judgment cannot be granted as there are disputed material facts for review.  P. Br. at 2.  Specifically, Petitioner argues that CMS has failed to properly prove that any of the alleged violations caused “any accident” to the resident at issue (R3).  Id. at 22.

Despite Petitioner’s assertions, the Board has clearly held that “proof that a deficiency caused actual harm is not a prerequisite to finding a lack of substantial compliance.”  N. Las Vegas Care Ctr., DAB No. 2946 at 9 (2019) (citing Libertyville Manor Rehab. & Healthcare Ctr., DAB No. 2849 at 17-18 (2018) and Oaks of Mid City Nursing and Rehab. Ctr., DAB No. 2375 at 16-17 (2011)).  The Board explained in North Las Vegas Care Center that a SNF “may be found out of substantial compliance (and thus subject to CMPs and other remedies) if the deficiency has the ‘potential’ to cause more than minimal harm to resident health or safety.”  Id.

In the instant case, and as discussed more fully below, CMS presented evidence that Petitioner did not properly follow catheter and incontinence care.  CMS submits evidence and argument that in the presence of the state’s surveyor, Petitioner failed to follow its own guidelines and physician orders.  Petitioner does not deny the specific allegations and presents no evidence to rebut CMS.

Petitioner argues that CMS must offer more than testimony from residents with various levels of cognitive orientation, statements by employees, and self-serving statements by the state surveyor in order to support a summary judgment motion.  P. Br. at 2, 20, 22.  The Board has held that a statement of deficiencies (SOD) “may constitute prima facie evidence of the undisputed facts asserted in it.”  Oak Ridge Center, DAB No. 2913 at 8 (2018) (quoting Southpark Meadows Nursing & Rehab. Ctr., DAB No. 2703 at 6 (2016)); see also Laurels at Forest Glenn, DAB No. 2182 at 7 (2008) (noting that a SOD may function as both a “notice document” and as evidence of the facts asserted therein).

Accordingly, Petitioner’s arguments do not raise any genuine dispute about a fact or facts material to the outcome of this case.  Rather, Petitioner’s contentions challenge the legal consequences of the undisputed facts.  For the reasons discussed below, I reject Petitioner’s arguments, and I find that summary judgment is appropriate.

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2. The facility did not substantially comply with 42 C.F.R. §§ 483.25(d)(1)-(2), 483.25(e)(1)-(3), 483.24(a)(2), 483.25 and 483.80(a)(1)-(2), (4), (e)-(f).

a. Failure to comply with the requirements of 42 C.F.R. § 483.25(d)(1)-(2).

A facility must ensure that the resident environment remains as free of accident hazards as is possible and each resident receives adequate supervision and assistance devices to prevent accidents.  42 C.F.R. § 483.25(d)(1)-(2).  “[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.”  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).

Petitioner failed to implement all of the fall interventions in Resident 11’s care plan.  CMS Ex. 5 at 13-14.  Resident 11’s care plan dated May 18, 2021, documented that she was at a risk for falls due to impaired cognition and safety awareness.  CMS Ex. 12; CMS Ex. 5 at 13.  The care plan implemented a sitter while awake beginning on June 30, 2021 and a self-releasing seat belt in July of 2021.  Id.

Resident 11’s fall log showed that she had fallen multiples times between September 2021 and February 2022.  CMS Ex. 9 at 6.  On February 14, 2022, Resident 11 was found on the floor of her room on her left side.  CMS Ex. 5 at 13-14.  She was sent to the emergency room where the records note that she suffered an unwitnessed fall and was diagnosed with a subdural hemorrhage and traumatic cephalohematoma.  Id.; CMS Ex. 9 at 6.  As a result of this fall, Resident 11 was placed on one on one care when using her wheelchair.  CMS Ex. 9 at 6.

On March 22, 2022, at 1:55 PM and on March 23, 2022, at 9:35 AM, Resident 11 was observed sitting in a wheelchair in the hallway.  CMS Ex. 5 at 13.  Resident 11 did not have a seat belt in place and no staff was present providing one on one care pursuant to the care plan.  Id.

There is no genuine issue of material fact present here.  The facility put a care plan in place for Resident 11 and failed to follow it.  Petitioner argues that numerous interventions were put in place and that increased fatigue due to a Covid-19 diagnosis may have led to her fall on February 14, 2022.  P. Br. at 5.  While it is true that the facility put interventions in place on paper, the record clearly shows that they were not being followed on February 14, March 22, or March 23, 2022.  On those dates Resident 11 was seen sitting alone despite being care planned for a sitter when awake and on

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March 22 and 23, 2022, she was observed in her wheelchair without the required seat belt.  CMS Ex. 5 at 13-14.

The facility also failed to provide supervision to Resident 1 resulting in a fall that required hospitalization and surgical repair.  P. Ex. 3 at 12.  Resident 1 told the surveyor that she was alone in the bathroom when she fell forward trying to transfer from the toilet to her wheelchair.  Id. at 12-13.  Resident 1 also stated that she told a nurse her hip was broken and she wanted to go to the hospital but was initially refused a hospital transport.  Id.

Resident 1’s care plan notes that she is at risk for falls.  P. Ex. 3 at 13; CMS Ex. 120 at 3, 5.  Her minimum data set (MDS) notes that she requires an extensive assistance of one for toileting.  P. Ex. 3 at 13; CMS Ex. 121 at 3, 4.  Despite these awarenesses, Resident 1 said staff told her that she “can do it” instead of always providing assistance for toileting.  P. Ex. 3 at 14.

The Director of Nursing (DON) told the surveyor that V5 left Resident 1 alone on the toilet to grab wipes in the room.  P. Ex. 3 at 17.  V5 told the surveyor that she was in the room, not the bathroom, with her back turned to Resident 1 when she fell.  Id. at 16.

Again, there are no genuine issues of material fact present here.  Petitioner argues that staff was present and that Resident 1’s own behavior contributed to the fall.  P. Br. at 15.  However, the facility staff’s own statements to the surveyor contradict this argument.  The DON and the CNA in Resident 1’s room at the time of the fall admit that Resident 1 was left alone on the toilet at the time she fell.  Resident 1’s care plan clearly states that she requires assistance of one for toileting.
 

b. Failure to comply with the requirements of 42 C.F.R. § 483.25(e)(1)-(3).

A facility must provide each resident who suffers from urinary incontinence with appropriate treatment and services.  42 C.F.R. § 483.25(e)(1)-(3).  The facility’s own policy provides that catheter care should be provided in a manner that promotes infection control and maintenance of the insertion site.  CMS Ex. 84 at 6.  The facility failed to provide care consistent with the regulations and their own policy with regard to Resident 18, Resident 25, Resident 29, Resident 41, and Resident 71.

On March 22, 2022, V7 came in to provide incontinent care to Resident 18.  CMS Ex. 5 at 17.  Resident 18 had an indwelling urinary catheter and when V7 removed Resident 18’s jeans, she pulled on her catheter which was not properly secured to her leg with a retention strap.  Id.  Resident 18 cried when the catheter was removed with her jeans.  Id.  The urine in Resident 18’s catheter bag was murky brown.  Id.

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V7 did not practice proper hygiene when cleaning Resident 18’s body and catheter.  CMS Ex. 5 at 17.  V7 was observed not practicing proper hand hygiene before putting on gloves and was further observed wiping Resident 18’s catheter while wearing gloves soiled in fecal matter.  Id.  V7 did not properly clean the catheter or Resident 18’s body before exiting the room wearing soiled gloves.  Id.

Resident 18’s care plan dated September 3, 2021, noted the use of an indwelling catheter and called for the use of a retention strap to assist in maintaining catheter alignment.  CMS Ex. 26 at 8.

On March 23, 2022, Resident 25 told the surveyor that the staff does not always clean him up timely and does not always clean around his catheter.  CMS Ex. 5 at 20.  Resident 25 stated that he has had multiple urinary tract infections (UTIs) and a few that resulted in hospital visits.  Id.

On March 24, 2022, V5 and V37 positioned Resident 25 onto his back to perform catheter care.  CMS Ex. 5 at 20.  Resident 25’s catheter was not secured with a leg strap and he complained that sometimes the catheter rubs his skin causing irritation.  Id.  V37 was observed cleaning Resident 25 without performing hand hygiene in between glove changes.  Id.  V37 did not thoroughly clean the catheter or Resident 25’s scrotum and was observed using washcloths soiled with fecal matter.  Id. at 21.  V37 then applied cream and a new diaper and pulled Resident 25 back into bed wearing the same gloves that were soiled in fecal matter.  Id.

Resident 25’s care plan called for the use of a retention strap as well as proper hygiene because of a history of recurrent UTIs.  CMS Ex. 34 at 2, 5.

On March 23, 2022, Resident 29 stated that she gets UTIs all the time.  CMS Ex. 5 at 24.

On March 23, 2022, V16 and V17 were observed providing catheter care to Resident 29 after a bowel movement.  CMS Ex. 5 at 24.  V17 opened Resident 29’s incontinence brief and wiped upwards towards her urethra with a washcloth.  Id.  V17 then tossed the washcloth on the floor and V16 began using wipes to clean Resident 29.  Id.  V16 wiped feces off Resident 29 and around a dressing that was loose and soiled.  Id. at 25.  V16 and V17 then turned Resident 29 onto her back and wiped down the catheter.  Id.  Without changing gloves, the nurses placed a clean incontinence brief on and a clean sheet under her.  Id.

Resident 29’s urine culture dated March 7, 2022, showed that Resident 29 had Escherichia coli, enterococcus faecalis, vancomycin resistant enterococcus and group D enterococcus.  CMS Ex. 5 at 25.  Her care plan, dated March 12, 2022, attributed Resident 29’s active UTI to the use of her catheter and called for proper hygiene to avoid cross-contamination.  CMS Ex. 37 at 2.

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On March 22, 2022, Resident 41 was observed lying in her bed with her catheter hanging under a wheelchair and the urinary drainage bag stretched between the wheelchair and the bed.  CMS Ex. 5 at 23.

On March 24, 2022, V5 and V7 provided catheter care to Resident 41.  CMS Ex. 5 at 23.  Resident 41 was not wearing a leg strap to secure the catheter.  Id.  When the nurses were removing her pants, Resident 41 cried out because the catheter got caught and was pulled on.  Id.  V7 was observed not providing proper cleaning care to the catheter site and left soap on Resident 41’s skin.  Id.  The nurses also did not take any action when Resident 41 verbalized discomfort over an area of redness near her groin.  Id.  V7 wore gloves while cleaning Resident 41 and used wipes to remove dried fecal matter.  Id.  Without changing gloves, she put a new diaper on Resident 41, pulled her up in bed, fixed her pillow, and covered her with a blanket.  Id. at 23-24.

Resident 41 had a physician order dated March 1, 2022, for a leg strap to secure catheter tubing.  CMS Ex. 47 at 4.

On March 22, 2022, Resident 71 was observed in bed with her indwelling urinary catheter bag touching the floor.  CMS Ex. 5 at 26.

On March 24, 2022, Resident 71 received similar treatment to Resident 29.  V16 and V17 presented to perform catheter care and change Resident 71’s incontinence brief following a bowel movement.  CMS Ex. 5 at 26.  V16 and V17 cleaned Resident 29’s right buttock but not her left.  Id.  They then placed a clean incontinence brief on and a clean bed pad under Resident 71 without changing their gloves.  Id.  The surveyor observed the dirty gloves leaving feces on Resident 71 and her catheter tube.  Id.

Resident 71 had multiple documented UTIs.  CMS Ex. 5 at 27.  She was admitted to the hospital on January 28, 2022 with a UTI.  Id.  Like Resident 29, Resident 79’s care plan, dated March 4, 2022, attributed Resident 71’s active UTI to the use of her catheter and called for proper hygiene to avoid cross-contamination.  CMS Ex. 55 at 6.

Petitioner argues that each resident discussed above was transferred to the facility with a catheter and the potential for recurrent urinary tract infections.  P. Br. at 5-7.  However, Petitioner failed to provide each resident who suffers from urinary incontinence with appropriate treatment and services on multiple occasions.  There were at least three documented occasions where a resident’s care plan was not followed when the use of a leg strap had been ordered.  The DON stated she would expect nurses to change gloves and perform proper hand hygiene when providing catheter care.  CMS Ex. 5 at 27.  Further, the facility’s own guidelines state that catheter care will be provided in a manner that promotes infection control and maintenance of the insertion site.  Id. at 27-28; CMS Ex. 84 at 6.  The lack of proper hygiene exhibited by the nursing staff performing

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catheter care and the persistent UTI diagnoses show that catheter care was not being provided in a manner that promotes infection control.

c. Failure to comply with the requirements of 42 C.F.R. § 483.24(a)(2).

A facility must ensure that a resident who is unable to carry out activities of daily living (ADLs) receives the necessary services to maintain good nutrition, grooming, and personal and oral hygiene.  42 C.F.R. § 483.24(a)(2).

The facility failed to provide assistance with personal hygiene to multiple residents.

On April 13, 2022, the surveyor observed Resident 3 in the dining room.  He was unshaven and wearing a stained sweatshirt.  CMS Ex. 85 at 1.  On April 14, 2022, Resident 3 was still unshaven.  Id. at 2.  The surveyor spoke with Resident 3 who relayed that he was unsure of his shower days and that he would like to be clean shaven.  Id.  Resident 3 said the facility told him they couldn’t give him a shave.  Id.  Resident 3 said he couldn’t shave himself with razors his sister provided him because he couldn’t access his closet in his wheelchair.  Id.  Resident 3’s care plan dated March 30, 2022, states that he needs assistance with ADLs including personal hygiene and bathing.  Id.; CMS Ex. 92 at 2.

On April 13, 2022, Resident 9 was observed sitting in her bed with facial hair and unshaven.  CMS Ex. 85 at 4.  On April 14, 2022, Resident 9 was observed unshaven lying in bed.  Id.  Resident 9 told the surveyor that she does not want facial hair but that the staff would have to shave her.  Id.  V9 confirmed to the surveyor that Resident 9 would not be able to shave herself.  Id.  Further, Resident 9’s care plan states that she requires assistance with ADLs including personal hygiene and bathing.  Id.; CMS Ex. 102 at 7.

On April 13, 2022, Resident 10 was observed sitting in a wheelchair unshaven and appearing disheveled.  CMS Ex. 85 at 3-4.  On April 14, 2022, Resident 10 was still unshaven.  Id. at 4.  Resident 10’s care plan noted that he had moderate cognitive impairment and requires extensive assistance for personal hygiene and total dependence on staff for bathing.  Id. at 3; CMS Ex. 104 at 3.  A facility staff member also told the surveyor that Resident 10 is not alert, has dementia, and is not able to perform showers and shave himself.  CMS Ex. 85 at 4.

On April 13, 2022, Resident 12 was observed lying in bed eating his lunch meal with his fingers.  CMS Ex. 85 at 3.  Resident 12 was unshaven and appeared disheveled.  Id.  Resident 12 told the surveyor that he gets a shower about once a week but does not get shaved.  Id.  He stated that he preferred to be clean shaven but that with staffing it was hit or miss.  Id.

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Resident 12’s care plan stated that he was moderately cognitively impaired and is totally dependent on staff for personal hygiene and showers.  CMS Ex. 85 at 2; CMS Ex. 108 at 2.

On April 18, 2022, Resident 13 was observed lying in bed unshaven and with food on his covers.  CMS Ex. 85 at 5.  Resident 13 was asked if he liked having a beard and he said he would like to be shaven but that no one will shave him.  Id.  He explained that he has Parkinson’s disease and cannot shave himself.  Id.  Resident 13 also complained that he has trouble at meal time because he requires alternative, heavy utensils but that the staff won’t assist him or bring the alternative utensils for him to use.  Id.  V6 confirmed that Resident 13 depends on the staff for eating and shaving.  Id.  Resident 13’s care plan also notes that he requires maximum assistance with eating, personal hygiene and bathing.  Id. at 4-5.

The facility’s policy on ADL Care and Assistance issued in December 2016 and revised on March 27, 2021 states that personal hygiene includes combing hair, brushing teeth, shaving, applying makeup, and washing and drying face and hands.  CMS Ex. 110.  The policy further states that the facility will provide the resident with ADL care and assistance in accordance with their level of function.  Id.

Petitioner argues that each of the residents above were encouraged to participate to the fullest extent possible with personal hygiene.  P. Br. at 11-12.  However, Petitioner does not dispute that each resident above was unshaven, some appeared dirty or disheveled, and they were not provided with personal hygiene assistance.  As a result, there is no dispute that the facility failed to follow its own policy on ADL Care and Assistance and the residents’ care plans and personal choices when it failed to assist with personal hygiene.

d. Failure to comply with the requirements of 42 C.F.R. § 483.25.

The 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.  42 C.F.R. § 483.25.

In violation of the regulations and the facility’s own policies, the facility failed to respond to changes in residents’ conditions and failed to timely notify the physicians and the families.

On May 10, 2022, the surveyor observed Resident 1 upset in her bed.  P Ex. 3 at 8.  Resident 1 stated that she fell on April 27, 2022 after feeling weak on the toilet.  Id.  She said she had been experiencing diarrhea for about two weeks prior to the fall.  Id. at 8-9.  Resident 1 said she and her family had been telling V4 about the diarrhea but that V4 kept insisting it was just loose stools.  Id. at 9.  V6 confirmed that V4 had been told that

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Resident 1 had been complaining of diarrhea for two weeks and that Resident 1 was eventually diagnosed with clostridium difficile (C-diff) in the hospital.  Id.

Resident 1’s progress note dated April 27, 2022 at 9:00 AM states that she was in her wheelchair without pants because she had frequent urges to use the bathroom for loose bowels.  P. Ex. 3 at 9; CMS Ex. 122 at 3.

The fall report dated April 27, 2022 at 10:59 AM states that Resident 1 was sitting on the toilet, leaned forward to get up, and slipped in feces before falling on the floor.  P. Ex. 3 at 9; CMS Ex. 123.  The hospital report shows that Resident 1 was treated for C-diff and a surgical repair for a displaced intertrochanteric fracture of the left femur.  P. Ex. 3 at 10; CMS Ex. 125.

On May 10, 2022, V4 told the surveyor that she was called into Resident 1’s room by V5 and that Resident 1 was on the floor in the bathroom.  P. Ex. 3 at 10.  V4 stated that Resident 1 had complained of loose stools one time.  Id.  She also stated that Resident 1’s physician was there on an unknown date and said he wasn’t worried if it was just loose stools.  Id.  V5 informed the surveyor that Resident 1 had asked to be transported to the hospital earlier on the day of her fall because of diarrhea.  Id. at 11.

The DON informed the surveyor on May 10, 2022, that if a resident had requested to go to the hospital, she would have informed the physician and wouldn’t argue with the resident because they have a right to go.  P. Ex. 3 at 11.  The DON also stated that if a resident has a change in condition the nurses should notify the physician, run labs, or explore other options that would help pinpoint what was making the resident sick.  Id.  On May 12, 2022, Resident 2’s physician said he not been made aware that Resident 1 was complaining of diarrhea for two weeks prior to the fall.  Id.

Resident 1’s care plan notes that changes in her bowel movements should be reported to her physician.  P. Ex. 3 at 10; CMS Ex. 120 at 4.  Resident 1’s MDS states that she is cognitively intact but requires extensive assistance of staff when toileting.  P. Ex. 3 at 10; CMS Ex. 121 at 3.

Petitioner argues that Resident 1’s behavior contributed to the fall and that her family member and physician were notified immediately after the fall.  P. Br. at 14.  However, the facility does not dispute that Resident 1 had been complaining of diarrhea for almost two weeks and her physician was not notified.  Her personal choices were also not honored when she asked to go to the hospital and was not sent.

Resident 2 was admitted to the facility with acute respiratory failure with hypoxia.  P. Ex. 3 at 1.  Resident 2’s care plan stated that she required monitoring for changes in breathing and that a nurse should be notified if there was shortness of breath, coughing, fever, chills, difficulty breathing or bluish skin color.  Id. at 1-2; CMS Ex. 130 at 4-5.

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The progress note dated April 30, 2022 at 8:15 AM for Resident 2 states that she was hypoxic when she sat up for breakfast with an oxygen saturation of 40-50%.  P. Ex. 3 at 2-3; CMS Ex. 132.  The note states that Resident 2 was refusing to go to the hospital and had a do not resuscitate order (DNR) in place.  Id.  The progress note further states that the doctor was called who ordered that her oxygen be increased to keep her saturation level at a level of at least 90%.  Id.  The physician also recommended that Resident 2’s emergency contact be contacted regarding the transfer to a hospital.  Id.  The nurse wrote in the progress note that she spoke with the emergency contact who approved the plan for increased oxygen before sending Resident 2 to the hospital.  Id.  The progress note states that her oxygen saturation level rose to 90%.  Id.

On April 30, 2022 at 7:30 PM, a second progress note indicates that 911 was called after speaking with Resident 2’s emergency contact because her oxygen saturation was at 71%.  P. Ex. 3 at 3; CMS Ex. 132.  There were no other notes entered between 8:15 AM and 7:30 PM monitoring Resident 2’s oxygen levels.  CMS Ex. 132.

On May 12, 2022, Resident 2’s emergency contact told the surveyor that he had not spoken with the facility until the 7:00 PM phone call when he was informed Resident 2 was having shortness of breath and that she was delirious.  P. Ex. 3 at 4.  The emergency contact stated that he was not aware Resident 2’s oxygen saturation had dropped to 40%.  Id.

On May 12, 2022, the surveyor spoke with V9 and V10 about Resident 2’s hypoxia on April 30, 2022.  P. Ex. 3 at 5-6.  V9 stated that she called the nurse practitioner and told her that Resident 2’s oxygen levels were ranging from 40-50% but that Resident 2 did not want to go to the hospital.  Id. at 5.  The nurse practitioner told V9 she would have to check with Resident 2’s emergency contact because she would not be able to make decisions on her own with that level of hypoxia.  Id.  V9 said she spoke with the emergency contact and told him about the doctor recommending that additional oxygen be provided.  Id.  V9 said the emergency contact agreed with the plan.  Id.

On May 12, 2022, the surveyor also spoke with Resident 2’s physician.  P. Ex. 3 at 5-6.  The physician stated that he was not notified about Resident 2’s hypoxia or change in condition.  Id.  The physician stated that he found out that Resident 2 had been sent to the hospital when he went to visit her on either April 30, 2022 or the next day.  Id.

A facility nurse practitioner interviewed by the surveyor said that she had not been informed of Resident 2’s change in condition and that if she had been told Resident 2’s oxygen level was at 40-50% she would have sent her to the hospital.  P. Ex. 3 at 8.

Regardless of whether or not the facility spoke with the physician and the emergency contact, the staff did not document Resident 2’s oxygen saturation levels throughout the

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day and, therefore, could not know if her levels were at or above 90% as ordered earlier in the day.  As a result, it is clear that the staff failed to monitor Resident 2’s change in condition and respond timely.

e. Failure to comply with the requirements of 42 C.F.R. § 483.80(a)(1)-(2), (4), (e)-(f).

The facility must establish and maintain an infection prevention and control program designed to provide a safe, sanitary, and comfortable environment and to help prevent the development and transmission of communicable diseases and infections.  42 C.F.R. § 483.80(a)(1)-(2), (4), (e)-(f).

The facts previously laid out above with regard to catheter care will not be rediscussed here.  The discussion above documents the lack of proper hygiene that was utilized and the failure to provide a safe and sanitary environment to multiple residents.

Resident 275 is yet another example of this failure.  On March 23, 2022, V21 provided wound care to Resident 275.  CMS Ex. 5 at 45.  V21 donned gloves and assisted Resident 275 with sitting up.  Id.  She removed his undated dressing and then washed her hands and applied new gloves.  Id. at 45-46.  Resident 275 then laid down without new dressing while V21 went to the treatment cart and touched several drawers, 4x4 gauze and dermal wound cleanser.  Id. at46.  V21 then re-entered Resident 275’s room, helped him sit back up, and turned on a light.  Id.  Without changing gloves, she touched both sides of the 4x4 gauze, cleansed the incision, and wiped it with the same 4x4 gauze.  Id.  V21 then dressed the wound without washing her hands or changing gloves.  Id.

The facility’s own staff said they would expect staff to wash hands or use hand sanitizer throughout wound care.  CMS Ex. 5 at 46.  Petitioner’s glove policy dated March 4, 2021, states that gloves must be changed often, as soon as they become soiled or torn, and before beginning a new task.  Id.  The hand hygiene policy dated March 27, 2021, states that hand hygiene shall be performed before moving from a contaminated body site to a clean body site during resident care.  Id.; CMS Ex. 84 at 13.

It is clear that there is no genuine issue of material fact with regard to maintaining an infection prevention and control program designed to provide a safe, sanitary and comfortable environment.  Petitioner does not provide any evidence to dispute the surveyors’ observations of multiple violations of the facility’s own glove and hand hygiene polices.  The failure to follow these policies resulted in an unsafe and unsanitary environment for residents.

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3. The CMP imposed is reasonable

In appealing a determination of noncompliance, a SNF may challenge the reasonableness of the amount of any CMP imposed.  Crawford Healthcare & Rehab., DAB No. 2738 at 2 (2016).  In deciding whether a CMP is reasonable, I may consider only the factors specified in 42 C.F.R. § 488.438(f).  Those factors include:  (1) the facility’s history of noncompliance; (2) the facility’s financial condition; (3) 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 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.

I must 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’ factual assertions, nor free to make a wholly independent choice of remedies without regard for CMS’ discretion.  Barn Hill Care Ctr., DAB No. 1848 at 21 (2002); Cmty. Nursing Home, DAB No. 1807 at 22 et. seq. (2002); Emerald Oaks, DAB No. 1800 at 9 (2001); CarePlex of Silver Spring, DAB No. 1683 at 8 (1999).

The daily or per-instance penalty amount selected by CMS is presumptively reasonable based on the regulatory factors found in 42 C.F.R. § 488.438(f).  N. Las Vegas Care Ctr., DAB No. 2946 at 16 (2019) (citing Crawford, DAB No. 2738 at 19).  The burden is on the SNF “to demonstrate, through argument and the submission of evidence addressing the regulatory factors, that a reduction is necessary to make the CMP amount reasonable.”  N. Las Vegas, DAB No. 2946 at 16; Crawford, DAB No. 2738 at 19.  Here, CMS imposes a per-day penalty of $1,660 for 53 days resulting in a total CMP of $87,980.

CMS submits that the CMP is reasonable in light of Petitioner’s history of noncompliance.  CMS asserts that Petitioner was cited twice before for tag F0689.  CMS Brief at 25 (citing CMS Ex. 137).

Regardless of Petitioner’s noncompliance history, Petitioner’s culpability in this case alone justifies the CMP amounts.  I find that the facility is culpable for all of these serious failings.

Finally, Petitioner has not asserted that its financial condition affects its ability to pay the CMP.  For all these reasons, I find the CMP amount reasonable.

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IV. Conclusions

For the reasons set forth above, I conclude that Petitioner was not in substantial compliance with the participation requirements at 42 C.F.R. §§ 483.25(d)(1)-(2), 483.25(e)(1)-(3), 483.24(a)(2), 483.25, and 483.80(a)(1)-(2), (4), (e)-(f).  I further conclude that the CMP at issue is reasonable.