Scenic Pointe Nursing and Rehabilitation Center, DAB CR6726 (2025)

DECISION

Petitioner, Scenic Pointe Nursing and Rehabilitation Center, is a long-term care facility located in Millersburg, Ohio that participates in the Medicare program.  In May and June 2022, the Ohio Department of Health (state agency) conducted two surveys (a May 19 annual survey and a June 13 complaint investigation survey) and determined that the facility was not in substantial compliance with Medicare program requirements.  No remedies were imposed based on the deficiencies identified in the May 19 survey.  However, based on the June 13 survey findings, the Centers for Medicare & Medicaid Services (CMS) authorized the state agency to impose a Discretionary Denial of Payment for New Admissions (DPNA), and Directed In-service Training (DIT).  The state agency also notified Petitioner that it was recommending that CMS impose a Federal Civil Money Penalty (CMP).  Petitioner did not appeal.  

CMS later imposed, based on the deficiencies identified in the May and June surveys, a CMP of $1,065.00 per day for 21 days from June 10, 2022, through June 30, 2022, for a total penalty of $22,365.00.  Petitioner timely appealed the CMP.

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CMS moves for summary judgment, which Petitioner opposes.  For reasons other than those proffered by CMS and as set forth below, I grant CMS’s motion. 

I find that the June 2022 survey findings, which Petitioner did not timely appeal, are final and binding and cannot be disputed.  Based on the undisputed findings, CMS is authorized to impose an enforcement remedy, including the CMP issued here.  Because Petitioner does not offer any evidence or argument challenging the reasonableness of the CMP, CMS is entitled to judgment as a matter of law, and I find the CMP imposed by CMS is reasonable.

I.    Background

The Social Security Act (Act) sets forth requirements for nursing facilities to participate in the Medicare program and authorizes the Secretary of Health & 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 conduct periodic surveys to determine whether skilled nursing facilities are in substantial compliance.  Act § 1864(a); 42 C.F.R. § 488.20.  Each facility must be surveyed annually and 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). 

The May 19, 2022 annual survey.  On May 19, 2022, state agency surveyors completed an annual survey.  The surveyors found the facility was not in substantial compliance with the following program requirements: 

• 42 C.F.R. § 483.10(f)(10)(i), (ii) (Tag F567 – protection/management of personal funds) cited at scope and severity (s/s) level D (isolated instance of noncompliance that causes no actual harm with the potential for more than minimal harm);
• 42 C.F.R. § 483.25(b)(1)(i), (ii) (Tag F686 – treatment/services to prevent/heal pressure ulcer) cited at s/s level D;
• 42 C.F.R. § 483.60(i)(1), (2) (Tag F812 – food procurement, store/prepare/serve-sanitary) cited at s/s level F (widespread substantial noncompliance that causes no actual harm with the potential for more than minimal harm);
• 42 C.F.R. § 483.90(i) (Tag F921 – safe/functional/sanitary/comfortable environment) cited at s/s level F. 

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CMS Ex. 1; CMS Ex. 11.  The state agency did not impose any remedies based on the deficiencies.  CMS Ex. 1. 

The June 13, 2022 complaint investigation survey.  Surveyors returned to the facility and completed a complaint investigation survey, and found an additional deficiency:  

• 42 C.F.R. § 483.12(a)(1) (Tag 600 – Free from Abuse and Neglect) cited at s/s level G (isolated instance of noncompliance that causes actual harm that is not immediate jeopardy).

CMS Ex. 41.  On June 24, 2022, the state agency issued an initial determination notifying Petitioner of the deficiency.  CMS Ex. 2.  The notice also informed Petitioner that it was imposing, as authorized by CMS, a DPNA, effective July 9, 2022, if substantial compliance was not achieved, and a DIT covering the deficiency at Tag F600.  Id. at 1-2.  The notice also warned Petitioner that it was recommending that CMS impose a CMP based on the survey findings, and that CMS would send a separate written notice if it decided to impose additional remedies along with appeal rights. 

Because remedies were imposed, the June 24 notice provided Petitioner with “Appeal Rights” if it “disagree[d] with the finding of noncompliance which resulted in the imposition of the Denial of Payment for new Medicare and Medicaid eligible admissions, and Directed In-service training . . . .”  Id. at 3.  The notice clearly stated, “A request for hearing must be filed no later than 60 days from the date of receipt of this notice.”  Id. at 4.  Petitioner did not appeal this notice. 

Subsequently, on November 17, 2022, CMS issued a notice letter reminding the facility of the state agency’s findings of substantial noncompliance, the remedies the state agency imposed, and that it was previously notified of its appeal rights.  CMS Ex. 4.  Regarding the previously imposed remedies, the letter stated that the DPNA, effective July 9, 2022, did not go into effect, and that the DIT was imposed and completed.  Id. at 2.  In addition to these remedies, CMS advised Petitioner that it was imposing a CMP of $1,065.00 per day for 21 days from June 10, 2022, through June 30, 2022, for a total CMP of $22,365.00.  Id.  Also, because the total CMP was more than $11,160.00, the notice advised Petitioner that it was subject to a Nurse Aide Training and/or Competency Evaluation Program (NATCEP) prohibition for two years.  Id. at 4.  Finally, Petitioner was advised of its right to appeal if it “disagree[d] with the findings of noncompliance, which resulted in this imposition . . . .”  Id. at 5-6. 

In a letter dated January 15, 2023, Petitioner requested a hearing, challenging all the deficiency findings (from both the May and June surveys), and appealing the CMP and resulting NATCEP prohibition.  Request for Hearing (RFH).  This case was originally

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assigned to Administrative Law Judge (ALJ) Scott Anderson and reassigned to me on January 30, 2025. 

The parties’ submissions.  On May 18, 2023, CMS filed a motion for summary judgment and prehearing brief and 69 exhibits.  On May 23, 2023, CMS filed an amended motion for summary judgment and prehearing brief (CMS Prehearing Br.) and one additional exhibit.  Petitioner filed its prehearing brief and response to CMS’s motion (P. Prehearing Br.), along with three exhibits, on June 22, 2023.  Petitioner filed amended versions of its three exhibits on June 27, 2023.  Petitioner reserved the right to cross-examine each of CMS’s proposed witnesses.  CMS filed a reply brief (Reply Br.) on July 5, 2023.  Neither party objected to the exhibits proposed by the other; therefore, I admit CMS’s Exhibits (CMS Exs.) 1-70 and revised Petitioner’s Exhibits (P. Exs.) 1-3 into the record. 

On April 7, 2025, I issued an Order Directing Parties to Submit Supplemental Briefing.  Civil Remedies Division Docket (CRD Dkt.) Entry No. 25.  I directed the parties to submit briefing addressing my authority to review the findings of substantial noncompliance in this case considering Petitioner’s failure to request a hearing on those findings within 60 days from receipt of the notice of initial determination, i.e., the state agency’s June 24, 2022 notice.  On April 28, 2025, both parties timely submitted their responses, proffering, in sum, that when CMS issued its initial determination imposing its additional remedy –the per-day CMP– the findings of noncompliance from both surveys became reviewable.  CRD Dkt. Entry Nos. 26 (CMS Supp. Response) and 27 (P. Supp. Response). 

CMS’s motion for summary judgment is ripe for ruling. 

II.   Issues

As an initial matter, I explain why Petitioner is not entitled to a hearing challenging the June 13 survey findings.1

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The remaining issue before me is whether the CMP imposed by CMS is reasonable.  Because Petitioner fails to proffer any evidence or argument that the CMP is unreasonable based on the applicable regulatory factors, except to contend that there were no deficiencies, I find CMS is entitled to judgment as a matter of law. 

III.    Discussion

1. Petitioner is not entitled to a hearing challenging the June 13, 2022 survey findings because it did not timely file a request for hearing.

Pursuant to the Act and its implementing regulations, to which I am bound, the June 13, 2022 survey findings, which Petitioner did not timely appeal nor ask for good cause to extend the filing deadline, are final and binding and cannot now be disputed.  In reaching this conclusion, I carefully considered the parties’ assertions that I have the authority to review the June survey findings as they pertain to the imposition of the CMP, despite the findings being binding as to the DIT remedy already imposed and completed; however, neither a plain reading of the statutory and regulatory authorities nor longstanding, established case law support this position.  Therefore, pursuant to my independent obligation to ensure jurisdiction, I find that I do not have authority to review the June 13, 2022 survey findings.  Restoration Risk Retention Grp., Inc. v. Gutierrez, 880 F.3d 339, 345 (7th Cir. 2018). 

Section 1866(h)(1) of the Act authorizes administrative review of determinations that a provider fails to comply substantially with Medicare program requirements “to the same extent as is provided in section 205(b)” of the Act.  Under § 205(b), the Secretary of Health and Human Services must provide reasonable notice and opportunity for a hearing

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“upon request by [an affected party] who makes a showing in writing that his or her rights may be prejudiced” by the Secretary’s decision.  The request, “must be filed within sixty days” after receipt of the notice of CMS’s determination.  Act § 205(b).  The 60-day limit is thus a statutory requirement. 

In accordance with the statutory requirement, the implementing regulations require that an affected party “file [a] request [for hearing] in writing within 60 days from receipt of the notice of initial . . . determination unless that period is extended . . . .”  42 C.F.R. § 498.40(a)(2).  Section 498.3 of the regulations identifies the types of actions considered “initial determinations” subject to administrative review.  Initial determinations include, with respect to a skilled nursing facility (SNF) or nursing facility (NF), “the finding of noncompliance leading to the imposition of enforcement actions specified in § 488.406, § 488.820, or § 488.1170 of this chapter, but not determination as to which sanction or remedy was imposed.”  42 C.F.R. § 498.3(b)(13); see also 42 C.F.R. § 488.408(g)(1) (“A facility may appeal a certification of noncompliance leading to an enforcement remedy.”).  Among the remedies specified in § 488.406 is a DIT.  42 C.F.R. § 488.406(a)(8).  The regulations further explain that, “[a]n initial determination is binding unless it is[,]” as pertinent here, “[r]eversed or modified by a hearing decision . . . .”  42 C.F.R. § 498.20(b)(2). 

Following an annual survey completed on May 19, 2022, where deficiencies were identified but no remedies were imposed or recommended, the state agency returned to Petitioner’s facility to conduct a complaint investigation survey on June 13, 2022.  CMS Exs. 11 and 41.  The state agency found Petitioner to not be in substantial compliance with 42 C.F.R. § 483.12(a)(1) (Tag 600 – Free from Abuse and Neglect) cited at s/s level G (isolated instance of noncompliance that causes actual harm that is not immediate jeopardy).  CMS Ex. 41.  As a result of the June 13 survey, the state agency issued a “Notice of Imposition of Remedy” dated June 24, 2022, notifying Petitioner that it continued to not be in substantial compliance and that it was imposing, as authorized by CMS, a DPNA, effective July 9, 2022, and a DIT covering the deficiency at Tag F600.  CMS Ex. 2 at 1-2.  The notice also informed Petitioner that it was recommending that CMS impose a CMP based on the survey findings, and that CMS would provide separate written notice with appeal rights if it imposed such a remedy.  Id. at 3. 

The June 24 notice provided Petitioner with “Appeal Rights” if it “disagree[d] with the finding of noncompliance which resulted in the imposition of the Denial of Payment for new Medicare and Medicaid eligible admissions, and Directed In-service Training . . . .”  Id. at 3.  The notice stated, “A request for hearing must be filed no later than 60 days from the date of receipt of this notice.”  Id. at 4. 

The state agency’s June 24 notice informing Petitioner of the findings leading to the imposition of an enforcement action is an initial determination subject to appeal.  42 C.F.R. §§ 488.402(f)(1), 488.406(a)(8), 498.3(b)(13).  The parties do not contend

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otherwise.  Nor is there any dispute that Petitioner did not appeal this initial determination or request an extension of time to file a request for hearing.  CMS Ex. 4 at 5; see also RFH; P. Supp. Response.  Therefore, by operation of law, the findings of substantial noncompliance and the remedies identified in the June 24, 2022 initial determination became final and binding because Petitioner failed to submit an appeal within the timeframes established by statute and regulation.  42 C.F.R. § 498.20(b)(2). 

According to Petitioner, it chose not to appeal the findings of noncompliance because it knew the DPNA would not go into effect and because it was not disadvantaged by the imposition of the DIT.  P. Supp. Response at 4.  And while it acknowledges a CMP was recommended, it did not know whether one would be imposed and, if so, when the CMP notice would issue.  Id.  Petitioner submits that a separately appealable initial determination occurs each time a remedy is imposed, regardless of whether the noncompliance served as a basis for a previously imposed remedy, as is the case here.  Id. at 2.  In sum, because Petitioner disagrees with the later-imposed remedy (the CMP), it now challenges the findings of noncompliance on which the remedy is based, despite having previously accepted (or, at least, failed to dispute) those same findings because it did not disagree with the previously imposed remedies (the DIT). 

CMS agrees with Petitioner that its subsequent initial determination imposing a CMP remedy renders the survey findings reviewable as they pertain to the CMP, notwithstanding the lack of an appeal by Petitioner in response to the state agency’s initial determination.  CMS Supp. Response.  CMS also agrees with Petitioner that facilities may not always want to challenge some remedies, such as a DPNA, and prefer to challenge others, such as CMPs.  Id.  CMS opines that if facilities are required to appeal survey findings in early imposition notices or risk waiving the right to challenge those same findings in connection with a later-imposed CMP, then facilities will file needless protective appeals.  Id.  CMS explains that this is often the case in Region 5, the region in which the facility is located, because its practice is to wait until the end of a survey cycle to impose a CMP.  CMS Supp. Response at 5.  CMS explains that it does so to consider noncompliance during an entire survey cycle, including the date of a facility’s return to substantial compliance.  Id. 

The parties’ arguments reflect a “misunderstanding of the applicable appeals process.”  Northlake Nursing and Rehab. Ctr., DAB No. 2376 at 5 (2011).  “The regulations at 42 C.F.R. Part 498 do not provide for appeals by SNFs of individual sanctions in isolation but rather for appeals from ‘initial determinations,’ defined (as relevant here) to include ‘a finding of noncompliance that results in the imposition or a remedy specified in § 488.406[]’ . . . .”  Id.  

In this case, Petitioner was told of the findings of noncompliance from the survey completed on June 13, 2022, and the remedies imposed based on those findings as well as the recommendation to CMS to impose additional remedies.  CMS Ex. 2.  Petitioner was

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also informed of its right to challenge the findings of noncompliance that resulted in enforcement remedies because it determined it was not disadvantaged by those remedies.  Id. at 3-4.  Whatever its reasons, as a result of Petitioner’s failure to appeal, the findings of noncompliance became binding.  42 C.F.R. § 498.20(b). 

That CMS subsequently issued a CMP, based on the May and June survey findings of noncompliance does not change the binding nature of the findings on which the CMP was imposed.  The Departmental Appeals Board’s (Board’s) decision in Northlake addresses this issue and is instructive.  It explains:  

a provider needs to appeal each finding of noncompliance with which it disagrees in order to challenge a remedy based on that noncompliance.  Where the provider concedes, or fails to dispute, the noncompliance findings it is precluded from challenging the choice of remedies, but may dispute the reasonableness of a CMP amount, the level of noncompliance (in limited circumstances), or the time at which it achieved substantial compliance if those are relevant to the remedies imposed. 

Northlake Nursing and Rehab. Ctr., DAB No. 2376 at 6 n.5.  In other words, a facility cannot later challenge a noncompliance finding that has become binding because it disagrees with the choice of remedy imposed on that finding, which is what Petitioner seeks to do here.  42 C.F.R. § 498.3(b)(13) (placing the choice of remedy outside the scope of review). 

I acknowledge CMS’s November 17 initial determination included appeal rights, stating “[i]f you disagree with the findings of noncompliance, which resulted in this imposition, you or your legal representative may request a hearing . . . .”  CMS Ex. 4 at 5.  Petitioner proffers that this language recognizes that while a request for hearing was not received for the prior imposition of the DIT, Petitioner could still request a hearing based on the findings of noncompliance resulting in the imposition of the CMP.  P. Supp. Response at 2; accord CMS Supp. Response at 3.  However, the Board has rejected this argument, including the specific language at issue here. 

In Taos Living Center, the Board considered, inter alia, a facility’s responsibility to appeal successive, initial determinations.  Taos Living Ctr., DAB No. 2293 (2009).  Like the instant case, Taos involved multiple surveys and notices, including a February 2008 survey identifying deficiencies for which the state agency issued a notice letter dated March 19, 2008.  Id. at 4.  The March letter notified the facility of its findings of noncompliance based on the February survey and the imposition of a DPNA, as authorized by CMS, based on those findings.  Id.  The facility did not appeal this initial determination.  After subsequent surveys conducted in May and July, each of which resulted in additional findings of noncompliance, CMS, by notice letter dated August 5, 2008, stated that the February, May and July surveys had found the facility was not in

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substantial compliance with participation requirements and that based on the facility’s noncompliance it was imposing additional remedies, including a CMP.  Id. at 5-6.  

In finding that the facility was not entitled to a hearing to contest the February survey findings, the Board rejected the facility’s arguments that subsequent initial determinations revised the earlier March initial determination or extended the deadline for appealing those findings.2  Id. at 9-12.  In response to the facility’s argument that receipt of CMS’s initial determination was the first time it was notified that CMS concurred with the state agency’s findings and advised it of all the remedies CMS was imposing, the Board noted that the state agency’s initial determination informed the facility that CMS authorized the imposition of a DPNA.  Id. at 10.  In other words, the state agency’s initial determination notified the facility that CMS concurred with the state agency’s survey findings.  Id.  Importantly, the Board further explained that:  

In addition, the August 5 notice did not provide TLC with a new opportunity to appeal the February survey findings, nor did it extend the 60-day filing period set forth in the March notice.  The August 5 notice did advise TLC of the additional remedies CMS was imposing for the facility’s noncompliance based on the February, May and July surveys.  The August 5 notice also included general language that if TLC “disagree[d] with the determination of noncompliance . . . that led to an enforcement action” it

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could request an ALJ hearing.  The August 5 letter further provided, however, that the “[p]rocedures governing this process are set out in 42 CFR § 498.40 et. seq.”  Under those regulations, as explained above and set forth in the March 19 notice, TLC was required to request a hearing to challenge the February survey findings no later than 60 days after its receipt of the March 19 notice.  Thus, we concur in the ALJ’s finding that while not “a model of clarity,” CMS’s August 5, 2008 notice did not extend the deadline for TLC to challenge the February survey findings.  

Id. at 2 (internal citations omitted).  Consistent with applicable authorities, including the Board’s established case law, I reject the parties’ arguments that CMS’s subsequent imposition of a CMP permits me to review the previously unchallenged, binding findings.3

To be clear, there is no dispute that CMS’s imposition of a CMP in this case based on the May and June survey findings was a new initial determination subject to appeal rights.  And because Petitioner timely appealed this determination, it is entitled to challenge the reasonableness of the imposed CMP, in accordance with the regulatory factors identified at 42 C.F.R. §§ 488.438(f) and 488.404.  42 C.F.R. § 488.438(a)(1)(i); 45 C.F.R. § 102.3; 88 Fed. Reg. 69,531, 69,543 (Oct. 6, 2023). 

It is worth reiterating here that Petitioner had notice and the opportunity to respond to the now administratively final findings of noncompliance that led to the imposition of the CMP.  Rock River Health Care, LLC, et al. v. Eagleson, 14 F.4th 768, 776 (7th Cir. 2021) (stating that the “concept of due process is a flexible one which calls for such procedural protections as are necessary for a particular situation for the purpose of minimizing the risk of erroneous decisions” and “[t]he essential requirement of due process is notice and an opportunity to respond”).  Petitioner was presented with the specific findings of substantial noncompliance, with which CMS concurred, and the remedies imposed as well as recommended remedies based on these findings.  Petitioner chose not to respond, despite being explicitly provided the opportunity to do so.  CMS’s subsequent imposition of a CMP, again which Petitioner was informed the state agency was recommending to

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CMS to impose, based on those same findings of substantial noncompliance does not change that procedural safeguards were provided to Petitioner.  See id. at 779 (providing an example of adequate due process when providers are given advance notice of a decision to decertify, informed of the deficiencies upon which the decision is based and afforded an opportunity to submit documentation explaining or refuting the existence of the deficiencies).  

Furthermore:  

[i]t is instructive to recall that the party in the role of “claimant” here is not an individual insurance recipient or program beneficiary but a provider that has executed a contract to receive federal funds for services that it provides on condition that it adheres to regulatory conditions of participation.  Hence, considerably more justification is present in this situation for holding the provider to some responsibility for being familiar with the rules on survey and enforcement and on the appeal process.  Correspondingly, as reflected in the discussion of the absence of good cause for late filing, there is considerably less justification for such a party and its counsel to respond to federal notices with inaction. 

Cary Health and Rehab. Ctr., DAB No. 1771 at 14 n.5 (2001). 

Finally, I acknowledge the parties’ arguments that it is administratively inefficient to require facilities to appeal each initial determination, even if the facility does not oppose the imposed remedy, to preserve its right to appeal if other remedies are later imposed based on the same deficiencies.  P. Supp. Response at 4; CMS Supp. Response at 5-6.  I agree that there is a possibility that an earlier-imposed remedy, like a DPNA, may not go into effect,4 rendering a facility’s appeal moot (in the absence of other appealable initial determinations).  I have also considered CMS’s explanation of Region 5’s typical chronology of imposing remedies, which potentially increases the number of appeals that may later result in dismissed or withdrawn appeals.  CMS Supp. Response at 5. 

However, this is the procedural process established by the regulations and confirmed by Board case law.  I do not have the authority to disregard the administrative appeals process set forth in the regulations to accommodate a specific region’s preferred procedures or policies, especially considering that other CMS regions acknowledge and advocate for the process set forth in the regulations.  See, e.g., Chicago Ridge Nursing Ctr., DAB CR1498 (2006) (“CMS contends that, because Petitioner did not appeal the

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cited deficiency . . . from the October 27, 2004 survey, the existence of the deficiency is administratively final”), aff’d, DAB No. 2151 (2008) (noting there is no dispute that the facility failed to appeal timely the October survey and concluding that the facility was therefore not in substantial compliance); see also Excel Healthcare and Rehab Topeka, d/b/a Brookdale Post Acute and/or Brookfield Post Acute, ALJ Ruling No. 2025-11 (Mar. 18, 2025) (CMS moving for dismissal because the facility did not challenge the cited deficiencies in a survey or the remedies imposed but only challenged the subsequent termination, which CMS was authorized to impose based on the unchallenged findings); Grandview Nursing and Rehab, ALJ Ruling No. 2025-15 (Apr. 29, 2025) (rejecting the facility’s response to CMS’s motion to dismiss that equity and judicial economy allow for a SNF to challenge the latest initial determination rather than each initial determination as they are issued).  

For all these reasons, the findings of noncompliance identified in the June 13 survey are final and binding.  Therefore, from June 10, 2022, through June 30, 2022, the facility was not in substantial compliance, and CMS is authorized to impose a remedy, including the CMP imposed here. 

2. CMS is entitled to summary judgment because Petitioner has produced no evidence establishing that the penalty is unreasonable.

Petitioner timely appealed CMS’s determination to impose a $1,065.00 per day CMP; therefore, I consider whether the amount of the CMP is reasonable. 

Except to assert that the facility was in substantial compliance, so no CMP should be imposed, Petitioner presents no argument or evidence to establish that a reduction is necessary to make the CMP amount reasonable.  RFH; P. Prehearing Br.  Nor does Petitioner challenge the duration of its substantial noncompliance.  Id.  CMS is therefore entitled to summary judgment on the issue.  Crawford Healthcare, DAB No. 2738 at 19 (2016) (holding that there is a presumption that CMS considered the regulatory factors when choosing the CMP amount and the factors support the penalty imposed, and that the burden is on the facility to introduce evidence and argument regarding the regulatory factors). 

In any event, considering the relevant factors, I find the CMP is reasonable.  To determine whether the CMP is reasonable, I apply the factors listed in 42 C.F.R. § 488.438(f):  1) the facility’s history of noncompliance, including repeat deficiencies; 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

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3) the facility’s prior history of noncompliance in general and specifically with reference to the cited deficiencies. 

Penalties are inflation-adjusted and change annually.  The amount is determined as of the date the penalty is assessed, in this case, November 17, 2022.  CMS Ex. 4.  CMS imposed a penalty of $1,065.00 per day, which is at the low end of the penalty range ($120.00 to $7,195.00).  42 C.F.R. §§ 488.408(d), 488.438; 45 C.F.R. § 102.3; 87 Fed. Reg. 15,100, 15,111 (Mar. 17, 2022). 

Based on the relevant factors, the relatively low CMP is reasonable.  While Petitioner did not have a long history of Medicare participation at the time the CMP was imposed, the evidence shows Petitioner has been cited for multiple program requirements.  Significantly, the survey completed on August 8, 2019, shows the facility was out of substantial compliance with 42 C.F.R. § 483.12(a)(1) (Tag F600 – freedom from abuse, neglect and exploitation), cited at s/s level G, which is the same deficiency cited during the instant survey.  CMS Ex. 10 at 2.  Indeed, the imposition of the DIT and “all the remedies” was “[due to] the assessment of the facility [history], which included another harm tag in the regulatory tag at F600 with the same incident related to resident-to-resident physical abuse.”  CMS Ex. 9 at 3. 

Other significant deficiencies were cited at s/s level F, indicating the deficiencies were widespread.  For the survey completed on January 31, 2022, the facility was cited for 42 C.F.R. § 483.80(g) (Tag F884 – respiratory illness reporting).  CMS Ex. 10 at 1.  And for the survey completed in May 2022, the facility was cited for:  42 C.F.R. § 483.60(i)(1), (2) (Tag F812 – food procurement, store/prepare/serve-sanitary), and 42 C.F.R. § 483.90(i) (Tag F921 – safe/functional/sanitary/comfortable environment).  Id.  I find the facility’s history of noncompliance supports the relatively low CMP imposed by CMS. 

With respect to the facility’s financial condition, it is well-settled that the facility has the burden of proving, by a preponderance of the evidence, that paying the CMP would render it insolvent or would compromise the health and safety of its residents.  Van Duyn Home and Hosp., DAB No. 2368 at 18 (2011); Gillman Care Ctr., DAB No. 2357 at 7 (2010).  Here, Petitioner has not claimed that it is unable to pay the penalty without compromising its solvency or the health and safety of its residents. 

With respect to the remaining factors, I consider the deficiency in this case –the facility’s failure to protect a resident from physical abuse– serious.  The underlying events involved an altercation between two residents, R1 and R2, resulting in the hospitalization of R1. 

R2’s diagnoses included dementia with behavioral disturbance, history of traumatic brain injury, aphasia, and depressive disorder.  CMS Ex. 52 at 1.  R2 had a known and

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documented history of verbal and physical aggression, including physical altercations, beginning in February 2022.  On February 4, 2022, R2 was involved in a physical altercation with another resident, R3, who was also his roommate.  CMS Ex. 55 at 3.  According to staff who witnessed the altercation, R2 and R3 were in the courtyard smoking when R3 began yelling and struck at R2, and R2 struck R3.  Id. at 3-4.  Later the same month, R2 was placed on 15-minute checks beginning on February 23, 2022, due to being upset over a peer’s music, and then again on February 27, 2022, for being upset with a roommate for talking on the phone.  CMS Ex. 59 at 8.  R2 was transported to a behavioral hospital for psychological evaluation and treatment on April 8, 2022, and readmitted to the facility on April 22, 2022.  CMS Ex. 59 at 8-9.  Finally, on May 6, 2022, R2 was involved in another altercation with R3.  CMS Ex. 55 at 2.  R3 expectorated on the ground, upsetting R2.  Id.  R2 then struck R3.  Id.  It was this altercation that led to the room reassignment with R1 as well as 15-minute checks.  Id. at 1. 

R1 was a newly admitted resident on May 3, 2022, and R1’s diagnoses included unspecified dementia without behavioral disturbance, major depressive disorder, unspecified paraphilia, and unspecified hearing loss.  CMS Ex. 51 at 1.  At the time of reassignment, R2 was placed on 15-minute checks for safety, and the interdisciplinary team reviewed the checks daily and monitored R2’s behaviors.  CMS Ex. 55 at 1.  On May 12, 2022, no changes were noted but R2 continued to receive 15-minute checks to monitor for adjustment to the room and unit change.  Id.  The 15-minute checks were discontinued on May 26, 2022, after R2’s behavior was deemed under control.  CMS Ex. 59 at 10.  However, the record is silent as to who determined R2’s behaviors were under control or whether any monitoring, albeit at less frequent intervals, continued or other interventions remained or were put in place. 

Less than a week later, on June 1, 2022, R1 and R2 had a physical altercation that ultimately resulted in hospitalization of R1.  CMS Ex. 51 at 1, 3.  While there are conflicting accounts of what led to the physical altercation, there is no dispute that R2 struck R1 resulting in serious injuries to R1.  CMS Ex. 53 at 5 (R2 indicating that he struck R1 for not moving out of the way fast enough); CMS Ex. 56 at 2 (June 1, 2022 notes stating R2 indicated he struck R1 for not moving fast enough, but June 2, 2022 notes stating R2 hit R1 after R1 hit him for turning off the television).  Nor is there any dispute that R1 sustained serious injuries.  R1 required hospitalization and his diagnoses included an acute intracranial hemorrhage with subdural hematoma, a suspected concussion in setting of assault/trauma, an L3 burst fracture, and facial trauma with marked swelling and contusion over left side of face.  CMS Ex. 50 at 34. 

The undisputed facts show that Petitioner failed to implement any interventions to monitor R2 after it was determined his behavior was under control and the 15-minute checks were stopped, despite R2’s known behavioral issues and long history of both verbal and physical aggression.  That R1 and R2 had a physical altercation, resulting in

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serious injury to R1, shows Petitioner’s neglect and indifference to R1’s safety and right to be free from abuse, for which the facility is culpable. 

For all these reasons, I have no trouble finding that the modest CMP imposed by CMS is reasonable.

IV.      Conclusion

I grant CMS’s motion for summary judgment based on the facts and law discussed above.  From June 10 through June 30, 2022, Petitioner was not in substantial compliance with Medicare program requirements.  The CMP imposed, $1,065.00 per day, is reasonable.